{ "id": 477005, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY PORTER, Appellant", "name_abbreviation": "People v. Porter", "decision_date": "1995-01-26", "docket_number": "No. 74438", "first_page": "400", "last_page": "410", "citations": [ { "type": "official", "cite": "164 Ill. 2d 400" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 Ill. 2d 386", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166824 ], "weight": 13, "year": 1986, "pin_cites": [ { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "391-92" }, { "page": "393-94" }, { "page": "397" }, { "page": "397-98, 402" }, { "page": "396-407" }, { "page": "405" }, { "page": "403-04" }, { "page": "404" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0386-01" ] }, { "cite": "479 U.S. 898", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6437602 ], "opinion_index": 0, "case_paths": [ "/us/479/0898-01" ] }, { "cite": "93 L. Ed. 2d 272", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "107 S. Ct. 298", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "125 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554681 ], "year": 1994, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0100-01" ] }, { "cite": "161 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783176 ], "weight": 2, "pin_cites": [ { "page": "158" }, { "page": "158", "parenthetical": "noting that \"[principles of fundamental fairness *** will support relaxation of the res judicata and waiver doctrines when appropriate\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0148-01" ] }, { "cite": "161 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783183 ], "weight": 3, "pin_cites": [ { "page": "88" }, { "page": "87" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0082-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "525-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 11, "pin_cites": [ { "page": "695-96" }, { "page": "698-99" }, { "page": "2068-69" }, { "page": "695" }, { "page": "698" }, { "page": "2068" }, { "page": "695" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "101 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160364 ], "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0470-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "228 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5221473 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0855-01" ] }, { "cite": "223 Ill. App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5256858 ], "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0110-01" ] }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "weight": 2, "pin_cites": [ { "page": "233-34" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "465 U.S. 37", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334651 ], "weight": 3, "pin_cites": [ { "page": "42-44" }, { "page": "35-36" }, { "page": "875-76" } ], "opinion_index": 0, "case_paths": [ "/us/465/0037-01" ] }, { "cite": "109 Ill. 2d 484", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126614 ], "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0484-01" ] } ], "analysis": { "cardinality": 794, "char_count": 14695, "ocr_confidence": 0.763, "pagerank": { "raw": 6.041645881626492e-08, "percentile": 0.37416853260556887 }, "sha256": "2969c7c92494446a0774d1f809ffee40806fc67a60864dea2f56086d1b8f0c51", "simhash": "1:9a164152de6152b1", "word_count": 2315 }, "last_updated": "2023-07-14T20:03:53.225061+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY PORTER, Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nA Cook County jury convicted defendant of several crimes committed in Chicago\u2019s Washington Park on August 15, 1982, including the killing of Jerry Hillard and Marilyn Green. For the murders, the trial judge sentenced defendant to death. A majority of this court affirmed the convictions and sentence on direct appeal. (People v. Porter (1986), 111 Ill. 2d 386.) The United States Supreme Court denied certiorari. Porter v. Illinois (1986), 479 U.S. 898, 93 L. Ed. 2d 272, 107 S. Ct. 298.\nDefendant thereafter sought, in a post-conviction action (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1 et seq.), a new trial, but relief was denied without an evidentiary hearing. Defendant pursued this appeal, seeking a hearing on his petition\u2019s allegations. 134 Ill. 2d R. 651(a).\nFinding no basis for an evidentiary hearing, we affirm the denial of post-conviction relief. What facts are pertinent to that disposition are explained in the course of addressing the issues here raised.\nIneffective Assistance of Trial Counsel\nDefendant contends he is entitled to a new trial because his trial counsel purposefully did not generate certain allegedly exculpatory evidence. That evidence was not generated, defendant alleges, because he had not paid in full counsel\u2019s fee for legal services. Though not identified, the requisite constitutional foundation (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1) for defendant\u2019s claim is found in sixth and fourteenth amendment protections. See U.S. Const., amends. VI, XIV.\nThe evidence pointed to is the proposed testimony of several persons which could have suggested Alstory Simon, rather than defendant, killed Hillard and Green. The evidence, summarized below, is stated in affidavits and recorded sworn oral statements filed in support of defendant\u2019s post-conviction petition.\nJoyce Haywood would have testified that the victims had walked to the park with Alstory Simon and his girlfriend, Inez Johnson. The victims\u2019 mothers and Christina Green, Marilyn Green\u2019s sister, would have corroborated the point. Ricky Young could have testified that Hillard had been selling drugs for Simon and that a dispute existed between Simon and Hillard over money. Roy Davis, Hillard\u2019s brother, would have stated, in contrast, that no animosity existed between defendant and Hillard, who were members of the same street gang. Finally, Joyce Haywood would have revealed further that Simon threatened her when she asked about what had happened in the park.\nThe State argues that the evidence should be ignored because defendant\u2019s appellate counsel did not raise an ineffective-assistance claim on that basis on direct appeal. Appellate counsel did not represent defendant during trial proceedings.\nIt is, of course, the general rule that post-conviction petitioners are barred from raising claims that either were or could have been raised on direct appeal. (People v. Albanese (1988), 125 Ill. 2d 100, 104-05; but see People v. Thompkins (1994), 161 Ill. 2d 148, 158 (noting the exception for \"fundamental fairness\u201d).) The trial record reveals what representation was afforded. Thus, a claim of ineffectiveness not raised in relation to the representation shown \u2014 for example, the vigorousness of cross-examination \u2014 cannot be resurrected in a post-conviction proceeding. (See People v. Erickson (1994), 161 Ill. 2d 82, 88.) The procedural bar forces acknowledgment of the finality of a conviction and sentence, a fundamental concept at work in a post-conviction action given that only collateral relief is offered. See Erickson, 161 Ill. 2d at 87.\nBut the bar cannot operate here. No foundation existed in the trial record to raise, on direct appeal, the particular ineffectiveness claim defendant now makes. Except for Davis, who testified only to identify his brother as one of the murdered victims, the witnesses who would have supplied the purportedly exculpatory evidence were not called at trial. The representation defendant complains of was the very reason their testimony was not given and so fixed in the trial record. Principles of res judicata and waiver, the mechanisms which operate to preclude post-conviction claims that were or could have been raised, cannot apply. See Erickson, 161 Ill. 2d at 93.\nNevertheless, defendant\u2019s claim fails on its merits. Even assuming counsel performed incompetently in not generating the proposed testimony, sufficient prejudice did not result to support the claim. (See People v. Albanese (1984), 104 Ill. 2d 504, 525-27, adopting Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (holding that ineffective-assistance claims may be determined on examination of the prejudice prong of the two-part test alone).) And, parenthetically, the reason why the testimony was not generated is therefore immaterial.\nPrejudice is measured by looking at findings unaffected by error and accounting for the error\u2019s effect on remaining findings to answer whether the decision would \"reasonably likely\u201d have been different. (Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.) The assessment \"must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,\u2019 and the like.\u201d (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The showing of prejudice must be a strong one. People v. Stewart (1984), 101 Ill. 2d 470, 492.\nThe evidence against defendant was considerable. The unaffected findings include the testimony of two eyewitnesses, Henry Williams and William Taylor. Williams recounted how defendant came up to him in the park on the night of the murders, put a gun to his forehead, and robbed him of $2 before approaching the area where Hillard and Green sat together. (Porter, 111 Ill. 2d at 391.) Williams saw defendant point the gun at Hillard from a few feet away and heard several gunshots. (Porter, 111 Ill. 2d at 391.) Taylor, too, saw defendant point the gun at Hillard and fire. Porter, 111 Ill. 2d at 391.\nThe unaffected findings also include the testimony of Anthony Liance, a Chicago police officer who responded to reports of the shootings. Liance\u2019s testimony placed defendant in the park near where the shootings occurred shortly after 1 a.m. Porter, 111 Ill. 2d at 391-92.\nThe error in not generating the proposed testimony deprived the jury of evidence complementing the alibi defendant presented at trial. But accounting for the error\u2019s effect shows no real prejudice could have resulted.\nDefendant\u2019s alibi was established by Kenneth Doyle and Georgia Moody. They testified that defendant could not have been in Washington Park when the murders occurred. Both stated that defendant was at his mother\u2019s house until at least a full hour after the murders, sometime after 2 a.m. See Porter, 111 Ill. 2d at 393-94.\nThe proposed testimony supporting defendant\u2019s ineffectiveness claim could supply but circumstantial proof suggesting who was the \"true\u201d murderer of Hillard and Green. But that evidence would simply echo the alibi the jury rejected in view of the testimony of Williams and Taylor. If the jury believed defendant was at his mother\u2019s house when Hillard and Green were shot in the park, someone else had to be responsible. That the proposed testimony could provide speculation as to who that someone else was is immaterial. Cf. Thompkins, 161 Ill. 2d at 166-68 (noting that where evidence did not show defendant to have been the gunman in a double murder, a hearing was necessary to evaluate a claim of ineffectiveness in not presenting mitigating evidence complementary to the defense).\nDefendant relies independently on the failure to present Roy Davis\u2019 proposed testimony to mount a slightly different ineffectiveness claim. Davis, as noted, stated that he would have testified that his murdered brother and defendant were friendly members of the same street gang. Davis\u2019 testimony would have tended to disprove that defendant, Hillard\u2019s friend, would have killed him.\nThere is no indication as to whether trial counsel was aware of Hillard\u2019s and defendant\u2019s shared gang affiliation and amicability. Even if counsel was not so aware, the failure to discover and present such evidence could not have, for the same reasons explained above, caused sufficient prejudice. And if counsel was aware of such facts, not presenting Davis\u2019 testimony would have been an unchallengeable choice of trial strategy. (See People v. Flores (1989), 128 Ill. 2d 66, 106.) Evidence of street gang affiliation would hardly have endeared defendant to the jury.\nConsidering the collective effect of the testimony, as well as Davis\u2019 alone, we do not conclude a different trial outcome was reasonably likely.\nJury Participation of Lillie B. Trigleth\nThe issues raised on direct appeal stemmed, primarily, from the fact that juror Lillie B. Trigleth attended the same church as Marilyn Green\u2019s mother. Trigleth had realized the fact after trial proceedings had begun. (See Porter, 111 Ill. 2d at 397.) The fact became generally known only after the jury had reached its verdict. (Porter, 111 Ill. 2d at 397-98, 402.) Before dismissing the jury, the trial judge questioned Trigleth as to whether she deliberated impartially. The trial judge was satisfied that she had and therefore determined defendant was not denied a fair trial. (See U.S. Const., amend. VI; Porter, 111 Ill. 2d at 396-407.) A majority of this court agreed. Porter, 111 Ill. 2d at 405.\nDefendant again challenges Trigleth\u2019s jury participation. He concedes the issue was decided previously and would normally be barred as res judicata. Defendant urges, however, that we should ignore the bar to consider Trigleth\u2019s newly generated statement revealing how well she knew the Green family and Marilyn Green particularly. See Thompkins, 161 Ill. 2d at 158 (noting that \"[principles of fundamental fairness *** will support relaxation of the res judicata and waiver doctrines when appropriate\u201d).\nOn direct appeal, this court determined that defendant had properly raised the issue of Trigleth\u2019s participation in his post-trial motion. (Porter, 111 Ill. 2d at 403-04.) But defendant failed to carry the burden there of establishing the fact of Trigleth\u2019s alleged bias. (Porter, 111 Ill. 2d at 404.) Defendant neither subpoenaed Trigleth nor generated her affidavit to reveal how well she knew the Green family or Marilyn Green particularly. Porter, 111 Ill. 2d at 403.\nThe concept of fundamental fairness escapes precise definition. (See People v. Flores (1992), 153 Ill. 2d 264, 279 (noting that fundamental fairness concerns are similar to the \"cause and prejudice\u201d test applied by Federal courts evaluating procedurally defaulted claims in habeas corpus proceedings); People v. Teague (1992), 228 Ill. App. 3d 855, 857 n.2; People v. Yates (1991), 223 Ill. App. 3d 110, 116 (specifically defining fundamental fairness against the same \"cause and prejudice\u201d test).) That, of course, benefits post-conviction petitioners who seek review of procedurally defaulted claims. The answer to whether it is fundamentally fair to review such a defaulted claim turns upon the particular circumstances of each case. But though, to that extent, the concept is flexible, its application requires, at a minimum, some identifiable reason.\nThe generation of Lillie B. Trigleth\u2019s sworn statement is not reason enough. This court already determined that the time for presenting that evidence was during the post-trial hearing. The only reason for finding that it would be unfair to preclude consideration of Trigleth\u2019s jury participation anew would be our disagreement with this court\u2019s earlier treatment of the issue. Fundamental fairness does not dictate, here, that the res judicata bar to addressing Trigleth\u2019s participation can be excused.\nIneffective Assistance of Appellate Counsel\nDefendant claims his appellate counsel failed to contend on direct review that death was an inappropriate sentence. Had counsel done so, defendant insists, this court would have mandated resentencing. That conclusion rests on an observation that, recent to the time of the direct appeal, other juries had spared double murderers from death.\nDefendant\u2019s claim of ineffective assistance of appellate counsel fails when measured, as above, against the requisite standard for assessing prejudice. (See People v. Johnson (1993), 154 Ill. 2d 227, 233-34.) Essentially, the test is whether, but for appellate counsel\u2019s failure, defendant\u2019s sentence would have been reversed. See Johnson, 154 Ill. 2d at 234.\nThe fact that other double murderers did not receive death sentences provides no basis to conclude that this court would have vacated defendant\u2019s sentence had it been challenged. A death sentence, of necessity, rests on the particular aggravating and mitigating circumstances found in each individual case. (See Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(c).) And the proportionality review underlying defendant\u2019s ineffectiveness claim is not itself constitutionally mandated. Pulley v. Harris (1984), 465 U.S. 37, 42-44, 79 L. Ed. 2d 29, 35-36, 104 S. Ct. 871, 875-76.\n\"When aggravating and mitigating factors are assessed properly, the penalty imposed cannot be disturbed. (See People v. Walker (1986), 109 Ill. 2d 484, 506.) There is nothing in the record to suggest that the trial judge here did not properly consider those factors. To conclude that this court would have vacated defendant\u2019s sentence had its propriety been challenged would amount to factoring arbitrariness into the consideration of prejudice. That we may not do. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nFor the above reasons, we affirm the judgment of the circuit court. We direct the clerk of this court to enter an order setting Tuesday, May 9, 1995, as the date on which the sentence of death, entered by the circuit court of Cook County, shall be carried out. Defendant shall be executed in the manner provided by law (Ill. Rev. Stat. 1991, ch. 38, par. 119 \u2014 5). The clerk of this court shall send a certified copy of this mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.\nAffirmed.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Kenneth N. Flaxman, of Chicago, for appellant.", "Roland Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Arleen C. Anderson, Assistant Attorney General, of Chicago, and Renee G. Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 74438.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY PORTER, Appellant.\nOpinion filed January 26, 1995.\nRehearing denied April 3, 1995.\nKenneth N. Flaxman, of Chicago, for appellant.\nRoland Burris, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Arleen C. Anderson, Assistant Attorney General, of Chicago, and Renee G. Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0400-01", "first_page_order": 410, "last_page_order": 420 }