Robert Cloutier was arrested on February 1, 1990, after he was identified as the perpetrator of attacks on two women, Susan Bradford and Elizabeth Halili. Also, the victim in this case, Alice Cogler, had last been seen with defendant, and defendant was suspected of involvement in the disappearance of a fourth woman, Cynthia Cooney.

Following his arrest, Cloutier admitted to police that he had killed both Cogler and Cooney, and he disclosed where their bodies could be found. Cloutier gave detailed statements about the killings in the presence of a court reporter.

According Cloutier's statement, he visited a tavern called the Huggery on the evening of January 27, 1990. At about 9 p.m. Cloutier left the tavern, accompanied by Alice Cogler.

Cloutier related that Cogler performed oral sex on him, and they later returned to the Huggery, where they remained until closing time. They then proceeded in Cogler's car to the vicinity of the Rose Meat Packing Company in Chicago, where they engaged in consensual vaginal and anal sex in the backseat of the car. After having sex, Cloutier and Cogler held each other for a few minutes.

Cloutier then began choking Cogler with his hands. After determining that Cogler still had a heartbeat, Cloutier wrapped a fan belt that he found in the car around Cogler's throat. Defendant squeezed the fan belt until Cogler's lips were blue and he could no longer detect a heartbeat. Cloutier then covered the body with some clothing and left it on the backseat. Cloutier eventually transferred the body to the trunk of the car, which he then abandoned.

Cloutier told the authorities that he met Cynthia Cooney on the evening of January 29, 1990, at a tavern called Panama Sid's. They left together at 12:30 or 1 a.m. and drove in Cooney's car to Summit, Illinois, where they engaged in vaginal and oral sex.

Cloutier stated that he and Cooney then held each other for a while, and Cloutier started to choke Cooney with his hands. When Cloutier believed that Cooney was dead, he drove to Willow Springs, and disposed of Cooney's body in the Des Plaines River.

People's response in opposition to petition for executive clemency

Inmate No. N-41047

October 2002 Session

HISTORY OF THE CASE

Petitioner, Robert Cloutier, raped and strangled to death Alice Cogler and Cynthia Cooney. He later stated that Alice’s eyes had “bugged out” when he strangled her and “that police should have taken a stick and poked Alice to let the air out of her.” When asked why he killed Alice, he stated that “shit happens,” and that he “surprised” Alice.

After raping and killing Alice, Cloutier kidnapped and attacked other women, forcing them to look at Alice’s naked, dead body on the backseat of her car while telling them that if they did not cooperate with him, they would “wind up” like Alice. Those women fortunate enough to escape Cloutier testified at his trial and resentencing hearing.

Cloutier has never claimed actual innocence. A jury found Cloutier guilty of the first degree murder and aggravated criminal sexual assault of Alice Cogler. He was sentenced to death for her murder and to 30 years in the Illinois Department of Corrections for the aggravated criminal sexual assault. People v. Cloutier, 156 Ill.2d 483, 622 N.E.2d 774 (1993).

Cloutier then pled guilty to the first degree murder and aggravated criminal sexual assault of Cynthia Cooney, for which he received a sentence of natural life.

On an appeal from his convictions and sentences in Alice’s case, the Illinois Supreme Court affirmed Cloutier’s convictions but reversed and remanded the case for a new death penalty hearing since the trial court failed to pose “reverse-Witherspoon” questions to prospective jurors during voir dire as mandated by Morgan v. Illinois, 504 U.S.719, 112 S.Ct. 222 (1992). People v. Cloutier, 156 Ill.2d 483, 622 N.E.2d 774 (1993). (The Morgan case was decided by the Supreme Court after Cloutier’s trial in Alice’s case and guilty plea in Cynthia’s case.) The United States Supreme Court denied Cloutier’s petition for writ of certiorari. Cloutier v. Illinois, 510 U.S. 1200, 114 S.Ct. 1315 (1994).

Upon remand, a jury again found Cloutier eligible for the death penalty and could find no mitigating factors to preclude the imposition of death. On appeal, the Illinois Supreme Court affirmed that jury’s decision in People v. Cloutier, 178 Ill.2d 141, 687 N.E.2d 930 (1997). The United States Supreme Court subsequently denied Cloutier’s petition for writ of certiorari.

Cloutier v. Illinois, 524 U.S.906, 118 S.Ct. 2064 (1998).

Cloutier filed a post conviction petition which was dismissed by the trial court. On appeal from that ruling, the Illinois Supreme Court affirmed the judgment of the circuit court.

People v. Cloutier, 191 Ill.2d 392, 732 N.E.2d 519 (2000). (See Attachment)

Cloutier then filed a petition for Writ of Habeas Corpus with the United States District Court. The matter has been fully briefed by the parties and is currently pending for the court’s ruling.

FACTS OF THE CASE

TRIAL AND RESENTENCING

On February 1, 1990, Detective William Drish and his partner, Frank Connolly, of the Chicago Police Department went to the Oak Lawn Police Department to interview Cloutier regarding various crimes. Once there, Officer Tom Scott informed the detectives that after the Chicago Police Department issued special bulletins regarding Cloutier, Officer Scott observed Cloutier at approximately the 9900 south block of Pulaski Avenue. He placed Cloutier under arrest, transported him to the station, and contacted the Chicago Police Department. Prior to transporting Cloutier to Area 3, Violent Crimes, the detectives took possession of some of Cloutier's personal items recovered from his person including a pack of cigarettes and some keys along with a Miranda form signed by Cloutier.

Once at Area 3, the detectives and Cloutier had lunch while another detective was sent out with one of the recovered keys to the victim, Alice Cogler's, car. Cloutier told the detectives that the car was located behind a barbershop at approximately 6509 South Archer Avenue and that Alice's body was in the trunk.

Cloutier also gave the detectives details regarding his killing of Cynthia Cooney. He told them that she was in the Des Plaines River in Willow Springs, where he dumped her body. He also told them where her car was located.

Pursuant to that information and following Cloutier’s directions, several detectives, Cloutier, Lieutenant Jack Regan and Assistant State's Attorney Bill Merritt, a supervisor in the Cook County State’s Attorneys Office Felony Review Unit, took three cars to the location where Cloutier said he got rid of Cynthia's body. Cloutier also directed them to where he stopped the car in order to not be seen by passing traffic. Cloutier told the detectives that he murdered Cynthia approximately five miles away from where he dumped the body, in Summit off of Archer and Harlem Avenues.

Once at the location, the detectives observed Cynthia's Levi's and her tan-colored leggings on one of the girders of the bridge located over the river. Cloutier told them that he had thrown the clothes over the railing, thinking that they had gone into the river along with her body. The detectives proceeded down the embankment to the water's edge and found Cynthia's body in a shallow part of the water. Once the fire department recovered her body from the river, they observed that she was wearing a black, knit sweater with a portion of a camisole underneath and was naked from the waist down. There was an object protruding from her mouth which, upon closer inspection, they found to be a woman's brassiere that had been stuffed down her throat.

When they left the area, they proceeded past the William's Chalet, where Cloutier stayed after he murdered and disposed of Cynthia. They continued to approximately 7650 Lincoln where Cloutier showed them the viaduct under which he had stopped in the car and murdered Cynthia at approximately 2:00 a.m. on January 30, 1990.

The key that was recovered from Cloutier was found to be the ignition key of the Alice’s car. When the car was brought to the Area 3 garage, the trunk was forced open by evidence technicians since the trunk key was not recovered. They found Alice’s dead body in the trunk, naked except for two white socks. She had a rubber fan belt wrapped and tied around her neck and she had some other abrasions on her upper body.

When the parties returned to Area 3, Cloutier gave court-reported confessions to Assistant State's Attorney Merritt regarding the murders of both Alice and Cynthia, which were later typed up and presented to Cloutier for his signature.

Mr. Merritt introduced himself to Cloutier and informed Cloutier of his rights, which Cloutier acknowledged that he understood.

Cloutier was very cool, calm, collected, alert and coherent, responding to all questions in great detail and willing to give a court-reported statement. Cloutier also indicated that he did not need anything and that he had been treated "fine." During his conversation with Mr. Merritt and in giving the court-reported statement, Cloutier never expressed any difficulty in recalling specific events for the dates from January 27, 1990 up to the day of his arrest.

In his court-reported statements regarding his murdering Alice, Cloutier stated that on January 27, 1990 at about 8:00 p.m., he went to the Huggery tavern at Archer and Keeler. He stayed about an hour and then left with Alice. They went to the parking lot by the Miami Bowl down the block where they kissed and Alice performed oral sex on him and then they returned to the Huggery tavern. They stayed at the tavern until closing time.

Cloutier left the tavern with Alice and they drove to a little side road that goes into the Rose Meat Packing Company. They had vaginal and anal sex in the back seat. Afterwards, they were holding each other with Alice’s hands on his back when Cloutier "just started hitting it, choking her" with his hands. Alice did not struggle. Her "[e]yes got big, she looked at [Cloutier], and that was it."

Cloutier then put his ear on her and listened to her heart to see if she was still alive. Upon hearing her heartbeat, he picked up a fan belt fromthe floor of the car, "wrapped it around her throat and squeezed it." At that point, Cloutier was "pretty sure she was dead because her lips turned blue." He covered up her body with her clothes and his jacket and proceeded to a 5:00 o'clock bar called Mr. Charlie's. Cloutier had some beers at that bar. When the bar closed, he left with a guy named Jeff and his girlfriend. They went to a liquor store to buy more beer. As they were getting into the car, Jeff's girlfriend attempted to get into the backseat but Cloutier told her that his friend was sleeping back there and that they would all have to sit in the front.

After they bought beer at the liquor store around 63rd and Oak Park, they went to Jeff's mom's house around 53rd and Kedvale. Cloutier stayed at the house between 45 minutes to an hour and a half with Jeff, his girlfriend, his mom, his mom's boyfriend, some other people and "a broad named Sue."

When Cloutier left about 6:00 a.m., he took Sue with him. Cloutier stated that he pulled the car into an alley behind someapartments and he "started kissing on her and playing with her and after afew minutesof that, shefreakedand ran outof thecar, and [Cloutier] drove away" with Alice’s body still covered up in the back seat.

Later that morning, Cloutier parked the car about a block and a half away from 50th and Oakley. He then went to a woman named Marie's house to have breakfast with her and her son. He then returned to the car and drove around for a while. He later put Alice’s body in the trunk and parkedthecarbehind abarbershop on Archer and Nashville. He then took a bus downtown and never returned to the car.

In his court-reported statement regarding his murdering Cynthia Cooney, Cloutier stated that on January 29, 1990, he went to Panama Sid's tavern located at Archer and Sacramento at approximately 6:00 or 7:00. There, for the first time, he met Cynthia some time between 8:00 and 9:00.

About 12:30 or 1:00, Cloutier and Cynthia left the bar and drove her car to Summit. They stopped on a street, the name of which Cloutier did not recall, underneath a viaduct in a dark and unincorporated area. Cloutier stated that they had oral and vaginal sex both in the back and the front seats of the car while both of themhad all their clothes off. When they were completely finished with the sex acts, they were both in the back seat. They held each other for a little bit and then Cloutier started choking Cynthia with his hands.

Once Cloutier thought she was dead, he drove to an area off of Willow Springs Road, "to this little spot on the river [that he knew of]" and parked on the left-hand side of the bridge so that no one driving on the Willow Springs bridge would be able to see him. Cloutier then "picked [Cynthia] up out of the car, and dropped her in the river." He thought he threw Cynthia's clothes into the river but some of them ended up on the bridge. Afterwards, he stayed at the William Chateau on Archer Avenue. He then proceeded to drive Cynthia's car around for a few days.

At Cloutier’s resentencing hearing, Dwayne Sundberg, a clerk in Judge Karnezis' courtroom on May 6, 1991, testified that a jury returned a guilty verdict against Cloutier for the murder and aggravated criminal sexual assault of Alice Cogler. On July 26, 1991, Mr. Sundberg also witnessed Cloutier plead guilty for the murder and aggravated criminal sexual assault of Cynthia Cooney.

AGGRAVATION AND MITIGATION

In January of 1990, Mary Laughlin's 95-pound daughter, Alice Cogler lived with her. (See Attachment) Alice had one daughter, Mary Kathleen McGee, who lived with her father. Alice worked as a bartender at the Huggery, a neighborhood tavern at Archer and Kostner, and had known her fiance, Jack Lapice, for a little over two years.

On Friday, January 26, 1990, Mary called Alice to comeand pick her up fromwork. Alice arrived about ten minutes to ten and went to the bar to wait for her mother. After Mary finished her work, she and Alice had a few drinks in the bar and then went home.

The next morning, Mary did not see Alice but heard her say, "I'll see you later, mom," as she was leaving for work. Mary went into Alice’s room and noticed that Alice left her purse. Alice would carry her license in her back pocket unless she planned on going out after work at which time she would take her purse with her. Later that night, Alice spoke to Jack and told himshe would not be coming over because she did not feel well. That was the last time Jack spoke to Alice; she did not come home that night or the next morning.

At the time, Alice had been driving Jack'sbrown car to and fromwork for about six months.

While driving it, she sat on a pillow because she was too small and could not see over the steering wheel.

On the Friday before Alice disappeared, there was a broken fan belt that Jack had replaced, on the back floor of the car. At that time, Jack observed that the interior of the car was clean and there was no damage in the area of the front sun visor or to the roof of the car.

On Sunday, January 28th, Jack called Alice's mother to see if she was at home but Mary had notheard from her. Hespoke toher mother again on Monday morning. Mary wanted to know if Alice was with him because Alice had not come home and had not called. Mary then went out to look for Alice. She spoke to the owner of the Huggery who told her that Alice did not show up for work on Sunday.

After speaking with Mary, Jack went to the Huggery Lounge to look at a car that was mistaken for the one Alice had been driving. He and his friends then continued their search for Alice over the course of the next several days. Mary and other family members began searching for the victim and filled out a missing person report.

Chicago Police Officer Thomas Bachelder was working as an evidence technician in the crime lab mobile unit on February 1, 1990. During the afternoon hours, he went to 6509 Archer Avenue with his partner. He observed numerous police officers and detectives as well as an older model Oldsmobile two door sedan with a light colored top and a dark brown bottom. Officer Bachelder spoke to Detective Drish who informed him that the trunk possibly contained a body but that they did not have keys to the trunk itself. Officer Bachelder then drove the car to the private garage at Area 3 Police Headquarters.

At Area 3, the officer forced open the trunk and found Alice's body with her arms and legs spread apart. She was naked but for a pair of white socks, a watch and a fan belt wrapped around her neck. Alice had bruises on her face and ligature wounds around her neck. She had a large amount of blood and fecal matter around her vaginal area. Whenthe officer removed her body fromthe trunk, he observed that she had a deep redness on her back, and blood and fecal matter in the anal area.

That day, Mary received word that her daughter had been found. She subsequently identified Alice's remains at the morgue. At Cloutier’strial, Mary read her victim impact statement to the jury as part of the aggravation presented against Cloutier.

In January of 1990, Cynthia Cooney was thirty-four years old. (See Attachment) She had been a pharmacy apprentice for Walgreen's Pharmacy for ten years and she was her sister Albina Lavery's best friend.

On January29, 1990 between 7:00 and 8:00 p.m., Cynthia's friend, Pamela Shanks, met her at a bar called Panama Sids located at Archer and Sacramento. The two left to go to a friend's house and when they returned sometime between 10:00 and 11:00 later that evening, Cloutier was present in the bar.

A lot of people were there playing darts, including Cloutier. He did not have any difficulty in keeping score or in playing the game. He won quite a few games and since they were playing for money, he would buy drinks for everyone. During the couple of hours that they played the game, Cloutier appeared to be friendly and nice. He did not do anything to cause anyone to be alarmed about him. During the course of the evening, Ms. Shanks observed Cloutier drink approximately four beers.

He did not behave as though he had had too much to drink. Cindy, however, did not drink at all.

Sometime during the course of the evening, Cloutier made a telephone call. When he returned, he asked Ms. Shanks if she could give him a ride to pick up his car and she said, "no."

Cloutier asked another woman for a ride and then he asked Cindy. Cindy asked Ms. Shanks if she thought Cindy should give hima ride. Ms. Shanks responded that he asked her for a ride but since she wanted to stay at the bar she said, "no," and that it was up to Cindy.

WhenCindy decided to give Cloutier a ride, she told Ms. Shanks who agreed to wait for her at the bar. The bar closed at 2:00 a.m.but Ms. Shanks never saw Cindy again. The last person she saw Cindy with was Cloutier.

On Tuesday, January 30th, Cynthia' sister, Albina, received a call from Jack McDonald, Cynthia's boss. He asked Albina if she knew where Cynthia was because she did not comein to work nor did she call which was unusual for her. By the following day, Wednesday, numerous people began looking for Cynthia. On Thursday, February 1, 1990, Albina was told that Cynthia had been found and Albina remained at the police station most of the day. At approximately 4:00 or 5:00, the sergeant told Albina that Cynthia was dead and that her body was going to be removed from the river. Her father subsequently identified Cynthia's remains in the morgue.

Chicago Police Officer Thomas J. Ginnellly was able to remove a footprint from the windshield inside of Cynthia's car. That footprint was sent to the crime identification lab to be compared to a footprint obtained from Cynthia at the Cook County Morgue. The footprint removed from Cynthia's car windshield was subsequently determined to be Cynthia's.

Dr. Barry Lipschultz, a deputy medical director with the Cook County Medical Examiner's Office, performed the post-mortem examinations on Alice and on Cynthia. Alice measured four feet, eight inches and weighed 95 pounds. Cynthia measured five feet, two and a half inches and weighed 116 pounds. Both Alice and Cynthia had blood which had pooled in the white part of their eyes, had bones broken in their neck and lower throat area and had bitten through their tongues. Additionally, after reviewing all the numerous and extensive internal and external injuries sustained by both women including the fan belt that Cloutier wrapped around Alice’s neck and the bra that Cloutier had shoved deep down into Cynthia’s throat (See Attachment), Dr. Lipschultz concluded that the cause of death for both women was strangulation. Cloutier cut off their oxygen supply by continuously compressing or squeezing their necks for approximately five minutes before Alice and Cynthia died.

In the early morning hours on January 28, 1990, Susan Bradford Musso and Jeff Cesak were with some friends at a bar called Mr. Charlie's located at 63rd and Parkside in Chicago. Jeff introduced her to Cloutier since she had never met him before and Cloutier indicated that he wanted to meet her. Later that night, Jeff invited Cloutier, along with some of Jeff's other friends, to his house.

When they left the bar, Cloutier offered to give Jeff and his girlfriend, Andrea, a ride in Cloutier's car. As Jefftried to lift the seat up to get into the back seat ofCloutier's car, Cloutierpushed it back and said that his friend was sleeping in the back seat and to just sit in the front. Jeff looked in the back seat and saw a covered up body with the top of the head and hair showing. He was unable to tell whether the body was alive, dead or asleep, male or female. Jeff also observed that the sun visor and the roof portion of the interior of Cloutier's car was torn up.

Cloutier,Jeff, and hisgirlfriend Andreafollowed Susan and Gary Somolis to a liquor store.

Cloutier did not have any trouble driving and he followed all the traffic signals and the posted speed limit.

At the store, Susan bought two cases of beer which she went to put in the back seat of Cloutier’s car when defendant slammed the seat back. He told her that he did not have a license and asked if she could put the beer in her car so Susan placed the beer in Gary's car.

They arrived at Jeff's house around 5:30. Since it was cold out, Jeff went to lift the seat up to wake Cloutier's friend in the back stating that the friend could come in the house and sleep it off.

Cloutier pushed the seat back and said, "no, just leave him alone." Inside the house, they sat around and talked. Beer was the only alcoholic beverage being consumed and there was no other drug activity. Susan and Cloutier talked about various subjects. Cloutier never acted in an erratic or bizarre fashion. He did not raise his voice or swear. He appeared to be very polite, nice, and normal. Susan did not see Cloutier using any drugs that night nor did she observe him act as though he had been using cocaine or any other drug that evening.

When Susan announced that she was leaving the party, Cloutier offered to give her a ride which she eventually accepted. As Cloutier was leaving, he thanked Jeff's mother, kissed her on the cheek, and told her that he enjoyed himself and had a nice time. He andSusanthen leftthe party in the car that she had seen Cloutier driving.

As they drove off, it was getting light outside. Approximately half a block later, Cloutier told Susan that he had to go to the bathroom. He turned into an alley and parked behind some apartment buildings. Cloutier reached over, locked Susan's door, and covered her mouth. She told him that she had a baby at home and not to hurt her. Cloutier told her that he did not want to hurt her and to do as he said. He jerked her head around by pulling her hair. With his other hand, he reached into the backseat and took a blanket off a naked, dead girl lying on her back.

Susan began taking off her clothes because she believed that Cloutier would either rape or kill her. He fondled her breasts and kissed her. Susan took off her shirt and boots and then told him that her necklace got caught on one of her buttons. Cloutier told her that he did not want her to break her necklace. As Susan took off her shirt she reached over for the door and was able to get her legs out of the car. Cloutier grabbed her by the back of her hair to try to pull her back in the car but she got out only wearing her pants and bra.

As Susan tried to run, Cloutier kicked her feet out from underneath her and she fell to the ground. He then used his fists and feet to hit her in the face, back and front between 25 to 35 times while she lying in a fetal position. Susan rolled out into the middle of the alley and Cloutier was again approaching her when he suddenly stopped, apparently frightened by something. He kicked her once more and told her that he was going to find her and kill her. He then got into the car and gunned the car in reverse, missing Susan by a foot after she had rolled off onto the grass. Badly bruised and beaten, Susan subsequently started running down the railroad tracks looking for Jeff Cesak's house but instead went to someone else's house. This attack occurred approximately two and a half hours after Cloutier killed Alice.

In September of 1989, Maria Goodman worked at The Huggery Lounge and Twilliger's, where she met Cloutier. On January 20, 1990, Cloutier was at the bar with someone Maria knew as John or Hoss. Cloutier was not acting in an unusual or bizarre fashion at that time. Maria left that bar and went to another bar called Davern's Tavern. Cloutier arrived there after Maria and she had a conversation with him later that evening. He was very nice and polite to her and she did not feel threatened by him.

As Maria was leaving  the bar, she invited some people to her home and although she did not invite Cloutier, he nevertheless arrived at her home with John. Cloutier returned to Maria's home in the same uninvited manner every day from the 21st through the 26th. He continuously asked her out but she would refuse, telling him that she had a boyfriend. Cloutier never appeared intoxicated or under the influence of any drugs. Hedid not misbehave or cause her to feel uncomfortable with himin any way.

On January 28th at approximately 7:00 or 7:15 a.m., Cloutier showed up uninvited at Maria's home. Maria asked him "what the hell he was doing [at her home] that early." Cloutier told her that he had been out drinking and that he wanted to take them out for breakfast. Cloutier had scratches on his chin, neck, and on the inner portion of his right wrist. He told her that he had gotten into a fight with a bouncer. Cloutier then left stating that he had to return his mother's car.

At approximately 10:30 later that same morning, Cloutier returned again, apologizing for coming over so early and waking them. He asked Maria if he could make it up to her by taking her out to breakfast while her girlfriend watched Maria's son. Maria told him that she was not going to leave her son with anyone and that if she was to go anywhere, she was bringing her son with her.

Cloutier asked Maria about the restaurants in the area because he stated that he no longer had a car. She suggested Ray's Restaurant on 45th and Western and the three of them went there for breakfast. Cloutier did not appear to be under the influence of any drugs or cocaine nor did he ever use any drugs in Maria's presence. Approximately an hour later, after breakfast, they began walking home.

They were walking across Western Avenue when they noticed two police cars. Cloutier stated that he "did not like cops." He put his hair in the back of his jacket, put Maria's son on his shoulders, grabbed her hand and ran across the street.

When they arrived at Maria's home, her son went to play with a neighbor and Cloutier went to use the bathroom. Maria stayed in the hallway.

When Cloutier came out of the bathroom, Maria felt a pair of hands on the back of her neck.

Cloutier pulled her backwards to where there was a mattress on the floor and then he pulled her down.

He stuck his thumb on the base of her neck so that Maria could barely breath. He repeatedly stated that "all it takes is a touch," while he proceeded to touch her. Cloutier's pants were undone and his penis was coming up over his pants. He took her hand and placed it on his penis. He then ripped open her shirt, exposing her breasts. At that point, Maria's son walked in and told Cloutier to please leave his mommy alone and not hurt her. Cloutier then left the apartment.

On January 28, 1990, Elizabeth Halili was working at the Clark Gas Station at 5458 South California as a cashier. Some time around 7:00 a.m. that day, she was outside checking the gas tank levels when Cloutier approached her and asked her if she was open. She said yes and Cloutier picked up the cleanser that she was using on the gas stick and went inside the gas station. Elizabeth followed him inside and went behind the counter.

Cloutier got a soda and as Elizabeth was ringing it up and the cash register opened, Cloutier came around the counter and grabbed her mouth. He told her not to scream and that he would not hurt her. Elizabeth felt a weapon at her back but did not know what it was. Cloutier took the money out of the register and asked if that was all the money there was. Elizabeth told him that it was because she just opened the station.

Cloutier pulled Elizabeth out frombehind the counter and when she asked, he told her that he was "taking [her] out into the country where they won't find you because [Cloutier did not] want [Elizabeth] to be a witness." When she told him that she would not say anything, Cloutier told her that he could not leave her because she could identify him.

Cloutier dragged Elizabeth into the alley behind the gas station where he parked his car. He told her to take off her coat which she eventually did and Cloutier pushed her inside the driver'sside of the car.

Cloutier began driving cautiously. He told her that his name was Jeff and Elizabeth told him her name was Lisa. Elizabeth asked him to not rape her and he told her that he was not going to rape her. She asked him why he had to do this and Cloutier said, "[B]ecause I have a wife and kids to support. You don't understand." Elizabeth said that he needed to look for help and Cloutier repeated, "[Y]ou don't understand. You don't understand. I have kids to support."

As they were driving, Cloutier told Elizabeth to put her head in his lap and she refused stating that, "[he] might kill [her] or something." He told her to at least "duck down a little," which Elizabeth did.

Cloutier pulled into an alley and told Elizabeth to take off her clothes. Elizabeth told him "no," and attempted to get out of the car but was unable to do so because the door was locked and the lock knob was unscrewed.

Cloutier grabbed her chin and turned her head to the back seat saying, "[I]f you don't take off your clothes and do what I say, you are going to end up like her." Cloutier moved some blankets and showed her a dead woman's body. He then ripped open her blouse which had been buttoned up, causing someofthe buttons to fall off. Cloutier tried to rip off somemore of Elizabeth's clothes when she went to hit him. He said, "[I]f you are going to fight me...this is what's going to happen to you," and he hit her in the jaw with his fist. Elizabeth began taking off her pants, shoes, and pantyhose when

he ripped her underwear, causing it to eventually come off. Elizabeth hit Cloutier in the groin. He said, "[Y]ou are going to fight me," and he started hitting her. They began struggling and although she, at times, was facing away from him, she continued to reach over to grab his face, neck, or whatever she could. She scratched him and when she turned facing him, Cloutier continuously hit her in the face with his fist.

Between blows, Elizabeth saw that Cloutier's door was unlocked so she grabbed for the door lever and managed to open his door. He tried to hit her again, and he grabbed her but she lunged forward. She was able to get out and she started to run dressed only in her blouse and tank top.

Cloutier followed her for a few steps but then returned to the car, closing his door while driving away On November 23, 1983 at approximately 10:00 p.m., Richard Sparks was at the Foremost Liquor Store located at 35th and Damen to pick up a 12-pack of beer. Mr. Sparks picked out his beer, walked up to the checkout counter and pulled money out from his pocket when Cloutier approached himfrombehind, pulled out a gun and told himto put his money on the counter because Cloutier was sticking him up. Mr. Sparks observed Cloutier had entered the store with another individual who was, at the time of the stick up, standing by the door. While holding the gun about a foot away from Mr. Sparks' chest, Cloutier also told the store manager behind the counter to give him all the money from the cash register. During the armed robbery, Cloutier remained very calm. As Cloutier and his accomplice were leaving the scene, Cloutier told the manager not to follow them outside for at least five minutes or they would start shooting.

At approximately11:45 p.m. on January 6, 1990, Barbara King was working as a cashier at an Amoco food shop and gas station located at 6751 West Archer. She was busy with two or three people in line. Cloutier got a bottle of Gatorade and waited until everyone in line was through. He then came up to the counter and asked for a pack of Marlboro cigarettes. When Ms. King rang up the sale, Cloutier put down a revolver on the counter and told her to give him the money. At the time, there was another man standing at the counter and Cloutier told him not to move and to put his hands on the counter where Cloutier could see them. Ms. King opened the cash register and began giving him the money. Cloutier told her to hurry up and give him the money. She asked him whether he wanted the coins, too and he responded that he only wanted the paper money. He was very cool and calm at the time. After he left out the side door, Ms. King called the police.

On December 7, 1983 at approximately 9:30 p.m., Michael Szot was working as a cashier at a Keane Gas Station located on West 55th Street and Linder. At that time, Cloutier entered the gas station with another individual. Cloutier approached Mr. Szot and asked him for money while his accomplice stood by the door. Cloutier appeared calm during this robbery.

On January 12, 1990 at approximately 10:40 p.m., Jeanette Jerozal was working at a McDonald's located at 5733 South Kedzie. She was cleaning up and getting ready to close when Cloutier walked in and ordered a large Coke. In return for the Coke, he gave her some change but it was not enough. Cloutier then told her to give him all the money in the register and Ms. Jerozal observed what appeared to be a gun protruding from under neath his flannel shirt. She gave him money from the register and he told her that if she did not give him the rest of the money, he would kill her, so she retrieved for him the money under the register tray. He told her to give him the money from the other register but Ms. Jerozal informed him that she did not have the key to those registers. By that time, sensing that something was wrong, the manager approached her and Cloutier. Cloutier again demanded the money fromthe other registers and the manager told himthat she did not have the key.

Cloutier then ran out the side door.

At approximately 5:30 a.m. on January 29, 1990, Ruth Wagner was working at the White Hen Pantry at 3700 West 55th Street with a co-worker. Cloutier came into the store. He said good morning to Ms. Wagner and told her that he had a "rough night." He then selected a juice and came up to the register. When she rang up his sale, he put his hand in the register and took between $50 and $100 while keeping his other hand in the jacket pocket. As Cloutier was leaving the store, he told her not to "do anything funny." During the course of the robbery, Cloutier acted "like a normal person."

At approximately 6:00 p.m. on January 31, 1990, April Haynes was working as a cashier at the Keane Gas Station located at 5458 West 55th Street. Cloutier walked into the station, asked her how she was and went to get a soda. As Ms. Haynes started to ring up the soda, Cloutier came up behind her and pushed her, telling her to get out of the way. (R. 679-80) He then took money out of the already opened register and ran. During the robbery he acted "like normal...nothing out of the ordinary."

On November 17, 1983, Linda Healy was working as a cashier at a White Hen Pantry at 2600 West 51st Street. At approximately 7:35 p.m., Cloutier walked into the store and went to the last aisle. After Ms.Healy waited on some customers, Cloutier came up to the register and pulled a gun on her. He pointed the gun at her head and had her open the register and give him money. Cloutier also took the money from the other cashier's register and told them not to call the police or he would come back and kill them.

On January 28, 1990, Elsie Baker and Joel Sanchez were working as cashiers at the Airport Food and Liquor on 63rd Street in Cicero. At approximately 9:45 p.m., Cloutier came into the store and took a pop out of the cooler. He approached the register and when Mr. Sanchez opened the register to give him change from Cloutier's $10, Cloutier reached over the register and started taking money out. Ms. Baker observed this from the deli department and ran up to the register asking what was going on. Neither person said anything and she attempted to grab the money back from Cloutier's

hand. Cloutier turned around and left the store. She followed him out and saw him get into a car that was parked in the alley behind the store.

On January 20, 1990, Dorothy Niewiadomski was a cashier at a Jewel Food Store located at 5320 South Pulaski. At approximately 6:25 p.m., Cloutier walked up behind her, pressed his body against her, put his hands on the register drawer that was open and told her to give him the money because he had a gun and he would kill her. Asshe was reaching for the singles in the drawer, Cloutier told her, "no, not those," and Ms.Niewiadomski gave him approximately $1,000. worth of larger bills.

When Cloutier left the store, she called security over the intercom system.

On October 7, 1983 at approximately 12:50 p.m., Chicago Police Officer Kenneth L.Abels was patrolling the area of 47th and Archer with his partner. They were waiting at a red light facing eastbound on 47th Street behind a 1979 Ford LTD that Cloutier was driving. When the light turned green, Cloutier accelerated and his tires squealed as he proceeded northbound on Archer. The officers activated their emergency equipment to pull Cloutier over but Cloutier continued to accelerate and a chase ensued during which time Cloutier drove up to 70 miles per hour. Another set of officers set up

a roadblock with their squad car across Pulaski Avenue between 43rd and 45th. Cloutier attempted to go around it and lost control of the car, sliding and smashing into the squad car with the two police officers in it. Cloutier was arrested and the dispatcher subsequently informed the officers that the car Cloutier was driving had been stolen three days earlier.

On January 29, 1990 at 2:10 a.m., Mary Finn was working at a 7-11 store. She was standing at the end of the counter reading a newspaper when Cloutier walked in. He had a brief conversation with her and then asked for a pack of Camel filters. Then, with one hand in his pocket and the other on the counter, Cloutier told her that he had a gun and to open the register and give him all the money.

On January 30, 1990 at approximately 5:45 p.m., Tina Callicho was working at a White Hen Pantry at 79th and Oak Park in Burbank. When she rang up Cloutier's purchases, Cloutier placed some money on the counter and once the register was open, he reached over and started to grab money out of the cash drawer. Ms. Callicho grabbed his arm and Cloutier said, "[W]atch it, I have a gun," keeping his one hand behind his back. Cloutier then threw the cash drawer on the ground, took the money on the bottom of the register, and ran out of the store. Ms. Callicho subsequently identified Cloutier in a lineup conducted on February 1, 1990. A fingerprint recovered from the juice bottle

Cloutier carried to the register was submitted for fingerprint analysis and was determined to be that of Cloutier.

On February 1, 1990 at approximately 11:27 a.m., Oak Lawn Police Officer Thomas Scott was in the vicinity of 99th and Pulaski when he observed Cloutier walking southbound on Pulaski. He recognized Cloutier from a special bulletin issued by the Chicago Police Department which concerned two missing females. Shortly thereafter, Officer Scott stopped Cloutier and advised him to place his hands on the hood of the car. When asked, Cloutier told the officer that his name was Michael Bitney and that he was looking for work, but Cloutier was unable to spell the name Michael. Officer Scott asked Cloutier if he had any tattoos and Cloutier turned to face the officer and said, "[Y]ou have got me. Just don't beat me." The officer asked him who he was and Cloutier stated that he was Robert Wilson but acknowledged that he was also know as Robert Cloutier. Cloutier did not appear to be under the influence of alcohol or cocaine. His gait, speech, and responses were fine. He was sober and coherent.

The officer advised Cloutier of his constitutional rights at the time of arrest and later at the station. At first, Cloutier told the officer that he did not have to continue because Cloutier was already aware of his rights. Later, there were numerous television, radio, and newspaper personnel at the police station and as Cloutier was being turned over to the Chicago police officers, Cloutier told Officer Scott that he was going to make the officer "a star."

On February 1, 1990, Cook County Assistant State's Attorney Jeanne Bischoff was a supervisor on a felony review team. She participated in interviewing Cloutier at Area 3. After introducing herself to Cloutier and advising him of his Miranda rights, she discussed with him his attacks on Elizabeth Halili, Susan Bradford, and the other various robberies. All of Cloutier's responses were appropriate and he was coherent, alert, cooperative and polite. He never mentioned that cocaine played a part in any of these crimes nor did he appear to be under the influence of cocaine or any other drugs at the time of the interview.

One of the robberies that Cloutier discussed with ASA Bischoff occurred on January 26, 1990 at 6:50 p.m. at a Cupboard Liquors store located at 4101 West 47th Street in Chicago. Cloutier was purchasing some candy and when the register opened, he reached into the register to grab the money but the woman slammed the cash register drawer on his hand. When he freed his hand, he walked out of the store.

Timothy Raymond Pruett was employed as a correctional officer at the Pontiac Correctional Center in Pontiac, Illinois on July 17, 1994. At about 6:30 a.m., he was on duty in the area of Cloutier's cell located on the ground level. As Mr. Pruett was walking approximately three feet away from Cloutier's cell, Cloutier threw a half gallon pitcher of scalding water on him. Initially, he had been facing Cloutier and saw Cloutier look right at him. When Mr. Pruett saw what Cloutier was about to do, he turned and attempted to get out of the way but the water hit him in the back and neck.

Cloutier kept saying, "[Y]eah, that was me; I threw it. Yeah, that was me." The water was hotter than the tap water in the cell's sink and caused a burning sensation on Mr. Pruett's back and neck.

Inmates at Pontiac would light fires to boil something or use a "stinger" which is an electrical rod placed in something to bring the item to a boil.

At Cloutier’s resentencing hearing, the parties then stipulated that if called, Faith Howard would testify that on November 21, 1983 at 7:00 p.m., she was working at the 7-11 store at 5325 South Kedzie. At that time, Cloutier displayed a gun, demanded and took money from the register. Cloutier was subsequently convicted for this offense.

At approximately 7:50 a.m.on October 28, 1989, Springfield Police Officer Robert Crouch was on his way home after getting off duty. While driving through a residential neighborhood, he observed a woman lying on the ground screaming for help with Cloutier standing over her, holding her collar and hitting her in the face and head with a large chain. The woman was screaming, "[S]top him, he's going to kill me." The officer stopped the squad car, took away Cloutier's chain, and handcuffed him. He then called an ambulance for the victim who he later learned to be Loretta Lynn Kinnoy.

She told the officers that she and Cloutier, her boyfriend at the time, went to a party. When they left the party, he became angry at her, grabbed a chain, put it around her neck and dragged her down the street. When they got to the spot where Officer Crouch found them, Cloutier started beating Ms. Kinnoy with the chain. The victim had numerous abrasions about her head and face. Her eyes were swollen shut so that she could not see. Her clothes were all dirty from being dragged on the ground. She also had ligature marks around her neck consistent with the chain having been around her neck.

At the resentencing hearing, the parties stipulated to the following: that Cloutier entered the Illinois Department of Corrections on March 30, 1983 where he was serving four 12 year sentences for armed robbery and a three year sentence for theft, concurrently; that he was paroled on September 7, 1989; that he returned to the Illinois Department of Corrections on October 28, 1989 for a violation of his parole terms; that he was released on December 22, 1989; that while he was an inmate from March

30, 1983 to September 7, 1989 and from October 28, 1989 to December 22, 1989, he received a total of 52 disciplinary tickets from correctional personnel [which were enumerated to the jury]; that defendant was received from the Cook County Jail on August 9, 1991 and remained in the custody of the Illinois Department of Corrections until January 9, 1995 when he was transferred to the Cook County Jail for purposes of the instant sentencing hearing; that while an inmate of the Illinois Department of Corrections from August 9, 1991 to January 9, 1995, defendant received a total of five

disciplinary tickets from correctional personnel [which were enumerated to the jury];that disciplinary tickets were written for each of these incidents and each one was sent to either a pram committee or adjustment committee and disciplinary action ranging from verbal reprimand, denial of commissary privilege, segregation and/or loss of good time was imposed; that defendant received his G.E.D.degree on December 14, 1984 and had earned 12 hours of college credits as of his release on December 22, 1989.

Doctor Lawrence Heinrich, a licensed clinical psychologist, testified on Cloutier's behalf. He concluded that Cloutier suffered from the antisocial personality disorder and that he showed many features of a narcissistic particular personality.

Alvin Hill, a coordinator of the sentencing advocacy program with the Cook County Public Defender's Office, testified on Cloutier's behalf. He testified to a story that Cloutier’s mother wrote about Cloutier's drug habits as a youth. He also testified as to his conversation with Cloutier regarding his drug use and his family and how he wanted to help younger inmates.

After hearing closing arguments, the jury deliberated for less than three hours and unanimously found that there were no mitigating circumstances sufficient to preclude imposition of a death sentence.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
ROBERT CLOUTIER, Appellant.

Opinion filed May 25, 2000.

JUSTICE HEIPLE delivered the opinion of the court:

Petitioner, Robert Cloutier, appeals from a Cook County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). For the reasons which follow, we affirm.

BACKGROUND

A jury in the circuit court of Cook County convicted petitioner of the first degree murder and aggravated criminal sexual assault of Alice Cogler. Details regarding the evidence presented at petitioner's trial and sentencing are set forth in the opinions disposing of petitioner's direct appeal, and will be referred to herein only as necessary to dispose of petitioner's instant appeal. On direct appeal, this court affirmed petitioner's convictions, but vacated his death sentence and ordered a new sentencing hearing. People v. Cloutier, 156 Ill. 2d 483 (1993).

On remand, a jury again found defendant eligible for the death penalty, this time based on two separate aggravating factors: (1) the murder of Cogler occurred during the course of another felony (720 ILCS 5/9-1(b)(6)(c) (West 1994)), and (2) defendant had been convicted of murdering two or more individuals, in that, since the time of his initial sentencing, defendant had pled guilty to the unrelated first degree murder and aggravated criminal sexual assault of Cynthia Cooney (720 ILCS 5/9-1(b)(3) (West 1994)). Defendant was again sentenced to death. This court affirmed petitioner's sentence on direct appeal. People v. Cloutier, 178 Ill. 2d 141 (1997).

Petitioner subsequently filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)). The circuit court appointed counsel, who amended and supplemented the post-conviction petition. The circuit court granted the State's motion to dismiss the amended post-conviction petition without an evidentiary hearing, and subsequently denied petitioner's motion to reconsider.

ANALYSIS

A proceeding brought under the Post-Conviction Hearing Act is a collateral attack on a judgment of conviction. The principles of waiver and res judicata limit the scope of post-conviction review. People v. Winsett, 153 Ill. 2d 335, 346 (1992). Consequently, the inquiry in a post-conviction petition is limited to allegations of constitutional violations that were not and could not have been raised previously. People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The petitioner is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. People v. Coleman, 168 Ill. 2d 509, 537 (1995). In making that determination, all well-pleaded facts in the petition and any accompanying affidavits are taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989). This court reviews the dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 387-89 (1998).

Failure to Present Testimony of Victim's Coworker

Petitioner first claims that trial counsel was ineffective for failing to interview or present the testimony of Brenda Grubisch, a coworker of Cogler and one of the last people to see her alive. At trial, Grubisch was called by the State and testified but was not called by the defense. Petitioner's theory at trial was that his sexual relations with Cogler just prior to her murder were consensual. Petitioner never denied murdering Cogler, but argued that he did not commit aggravated criminal sexual assault, and thus no such conviction could serve as the basis for his death penalty eligibility. The jury rejected this argument.

In an affidavit attached to the post-conviction petition, Grubisch states that on the night of Cogler's murder, she, Cogler and petitioner were at a bar where she and Cogler worked, and that she witnessed Cogler and petitioner acting like "a couple for the night." Grubisch further states that she saw petitioner and Cogler leave the bar together and return about an hour later, where they stayed until closing time. Petitioner argues that this information corroborates his version of the events that took place prior to Cogler's murder, namely, that the two engaged in consensual sex the first time they left the bar together, thereby supporting his defense that they engaged in consensual sex again after the bar closed, and that only after this consensual sex did petitioner murder Cogler. Petitioner claims that his trial counsel was ineffective for failing to interview Grubisch or to call her as a witness. According to petitioner, had the jury heard the evidence presented in Grubisch's affidavit, there is a reasonable probability its verdict would have been different and he would not have been sentenced to death.

In order for petitioner to succeed on a claim of ineffective assistance of counsel, he must show (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance so prejudiced him that there is a reasonable probability that the outcome would have been different without counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176 (1995). A reviewing court may reject a claim of ineffective assistance of counsel by finding that petitioner was not prejudiced by counsel's representation without determining whether counsel's performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90 (1994).

In the instant case, even if defense counsel had contacted Grubisch prior to trial and elicited the statements contained in her affidavit, there is no reasonable probability that the outcome of the trial and sentencing would have been different. Evidence presented at trial overwhelmingly indicated that Cogler was sexually assaulted before petitioner strangled her, a finding upheld by this court in petitioner's direct appeal. People v. Cloutier, 156 Ill. 2d 483, 506 (1993).

Specifically, petitioner told police that he strangled Cogler with a fan belt while lying on top of her in the back seat of Cogler's car and that she did not put up a fight, facts supported by the gross disparity in size between petitioner and the victim. The fan belt was still around Cogler's neck when her body was found. Fresh bruises and abrasions, however, were found on Cogler's forehead, elbow, knees and thigh, suggesting the use of force. The headliner and visor in Cogler's car were torn, also indicating a struggle took place in the front seat of the car. Most damning, however, was the other-crimes evidence produced by the State at trial showing a common design or plan by petitioner to sexually assault and strangle several women in Cogler's car within the space of a few hours of Cogler's murder. The jury further heard evidence of petitioner's initial statement to police regarding the Cooney sexual assault and murder in which he also claimed to have engaged in consensual sexual intercourse before killing her. See Cloutier, 156 Ill. 2d at 500-06.

Furthermore, Grubisch's statements that petitioner and Cogler were acting like a couple for the night and that they left the bar together once earlier add nothing new to Grubisch's testimony for the State at trial that the two were on friendly terms before leaving the bar. Specifically, Grubisch testified that Cogler voluntarily left with petitioner at closing time and planned to drive him home. Nevertheless, the jury still found that petitioner sexually assaulted Cogler in her car. Thus, petitioner was not prejudiced by defense counsel's failure to bring forward Grubisch's additional testimony now contained in her affidavit.

Finally, petitioner suffered no prejudice during his sentencing hearing because he was found death-eligible on the independent basis of having murdered more than one person. 720 ILCS 5/9-1(b)(3) (West 1994). The outcome of petitioner's sentencing thus would have been no different even if the jury had found that petitioner did not commit Cogler's murder in the course of another felony.

State's Failure to Disclose Evidence

Petitioner next claims that the prosecution failed to disclose to defense counsel Grubisch's statements that petitioner and Cogler were acting like a couple for the night and left the bar together once before closing time. Petitioner argues that the prosecution's failure to disclose this favorable and material evidence denied him due process and a fair trial and sentencing hearing in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

In Brady, the United States Supreme Court required disclosure of evidence that is both favorable to the accused and " 'material either to guilt or to punishment.' " People v. Morgan, 187 Ill. 2d 500, 539 (1999), quoting Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1197. Under Brady and its progeny, favorable evidence is material, and constitutional error results from its suppression by the government " 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Coleman, 183 Ill. 2d at 393, quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). Materiality is demonstrated by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light so as to undermine confidence in the verdict. Coleman, 183 Ill. 2d at 393, quoting Kyles v. Whitley, 514 U.S. 419, 435, 131 L. Ed. 2d 490, 506, 115 S. Ct. 1555, 1566 (1995).

Taking petitioner's allegations that the prosecution failed to disclose Grubisch's statements as true, we find this evidence lacks the requisite materiality under Brady and its progeny. As explained above, the evidence of sexual assault presented at petitioner's trial was overwhelming. See Cloutier, 156 Ill. 2d at 500-06. We do not believe that, had the testimony contained in Grubisch's affidavit been disclosed to the defense, it is reasonably probable that the outcome of either the trial or the sentencing hearing would have been different. Nor do we believe this evidence could reasonably have put the entire case in such a different light so as to undermine the petitioner's conviction of aggravated criminal sexual assault. The evidence allegedly withheld by the State is merely cumulative of that already presented at trial, namely, that petitioner and Cogler were on friendly terms and left the bar together at closing time the night of Cogler's murder. The State committed no Brady violation.

Use of Guilty Plea to Other Murder

Petitioner next challenges the use of his plea of guilty to the unrelated Cooney murder as a basis for finding him death-eligible in the instant case. First, petitioner argues that counsel in the Cooney case was ineffective for failing to inform him that his guilty plea could be used as a basis to sentence him to death in the instant case. Petitioner, however, may not raise a challenge to the conduct of his counsel in the Cooney case in this wholly separate proceeding. This court's review is limited to the proceedings which resulted in his convictions for crimes committed against Alice Cogler only. See 725 ILCS 5/122-1(a) (West 1996).

Second, petitioner argues that defense counsel in the instant case was ineffective for failing to sufficiently investigate the circumstances surrounding his guilty plea in the Cooney case and for failing to properly defend him against the State's use of this guilty plea to find him death-eligible. Attorney Stephen Richards was assigned to defend petitioner at the eligibility phase of his resentencing. Richards was new to the case and had not previously represented petitioner in any other matters, although he states in his affidavit that he was aware petitioner had pleaded guilty to the Cooney murder. Upon learning that the State intended to use petitioner's guilty plea to the Cooney murder as an additional basis for finding him death-eligible, Richards filed motions in limine seeking to bar use of the plea on grounds of double jeopardy and the failure of the trial judge in the Cooney proceeding to admonish petitioner that his conviction could be used against him in another case. Petitioner argues that counsel should have conducted additional investigation of his guilty plea to the Cooney murder, which he claims would have revealed that his plea in that case was based on the ineffective assistance of counsel and was therefore uninformed and involuntary. The failure to conduct such an investigation and to file an objection on such grounds, petitioner claims, constitutes ineffective assistance of counsel.

In order to establish that he was denied effective assistance of counsel, petitioner must first show that counsel's actions fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. In assessing counsel's performance, the reviewing court must indulge in a strong presumption that counsel's conduct fell into a wide range of reasonable representation, and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. People v. Mack, 105 Ill. 2d 103, 131 (1984). In conducting an investigation, counsel has only a duty to make reasonable investigations or to make a reasonable decision which makes particular investigations unnecessary, and the reasonableness of a decision to investigate is assessed by applying a heavy measure of deference to counsel's judgment. People v. Orange, 168 Ill. 2d 138, 149 (1995).

Under the forgoing standards, we do not believe counsel's representation of petitioner at his eligibility hearing fell below an objective standard of reasonableness. Petitioner does not claim that Richards failed to conduct any investigation before defending him at the eligibility phase of his sentencing. Indeed, the motions in limine filed by Richards necessarily required investigation into the circumstances surrounding his guilty plea to the Cooney murder. It was not unreasonable for Richards to forgo additional investigation into why petitioner changed his plea from not guilty to guilty in the Cooney murder. See People v. Pecoraro, 175 Ill. 2d 294, 324 (1997); Orange, 168 Ill. 2d at 150. The motions in limine filed by Richards seeking to bar use of the prior murder conviction, though ultimately unsuccessful, constituted a reasonable level of assistance.

Aggravation-Mitigation Hearing

Petitioner next argues that he was denied effective assistance of counsel during the aggravation-mitigation phase of his death penalty hearing because his attorneys failed to develop or present accurate mitigation evidence, and instead presented nonmitigating and erroneous evidence which actually caused him harm.

At sentencing, the defense presented evidence in mitigation attempting to show that petitioner's offenses were the result of his polysubstance abuse and antisocial and narcissistic personality disorders. Dr. Lawrence Heinrich, a psychologist, testified for the defense that he believed petitioner was suffering from an extreme mental or emotional disturbance at the time he committed the Cogler and Cooney murders. The defense also presented testimony from Alvin Hill, a mitigation specialist employed by the Cook County public defender's office, who opined that petitioner committed the murders because he was "drugging." Petitioner contends, however, that a neuropsychological evaluation conducted after his sentencing hearing revealed that he suffers from an organic brain dysfunction. Petitioner further claims that subsequent post-conviction investigation revealed that petitioner's low birth weight and head trauma as a child could also account for his psychological dysfunctions and behavior problems, information which was not presented at the sentencing hearing. Petitioner claims that his criminal activity was not the result of drug abuse, as the jury heard at his sentencing, but rather was the product of a traumatic and violent childhood. According to petitioner, the failure by defense counsel to properly investigate and present this information in mitigation places the reliability of his death sentence in serious doubt. We disagree.

Defense counsel's performance at the penalty phase of a sentencing hearing is measured by the two-part standard of Strickland. Under Strickland, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that, absent the errors, the judge "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

Counsel's failure to order neuropsychological testing of petitioner prior to his sentencing was not unreasonable. Each of the three psychologists who examined petitioner concluded that he suffered from personality disorders. None of the experts found anything to indicate that petitioner suffered from an organic brain disorder, and there was nothing to indicate that further testing would be beneficial in any way. Counsel's decisions to investigate must be assessed in light of the information known at the time the decisions are made. In the instant case, defense counsel's decision not to investigate further into organic brain disorders, electing instead to present mitigation evidence of petitioner's personality disorders, was trial strategy and was not unreasonable under the circumstances.

We further find no error with regard to the allegedly inaccurate evidence presented in mitigation. In his post-conviction petition, petitioner relies on a report prepared by Marylynne Kaplan, a social worker, which cites scientific evidence allegedly showing that petitioner's criminal history was not the result of his "drugging," but rather was the product of his dysfunctional family history, a childhood plagued by violence and a mother who was emotionally distant and depressed. A review of the record, however, reveals that, while the primary theory advanced by the defense was that petitioner's actions were the product of his impaired judgment due to drug and alcohol abuse and personality disorders, the jury also heard testimony of petitioner's failure to find a place within his family, his rejection by his mother, his inability to relate to female members of his family including his four sisters, and his lack of a male role model while growing up. Alvin Hill also testified in mitigation regarding petitioner's drug use since the age of 12, his constant truancy throughout adolescence, his running away from home, his mother's abandonment of him, and his placement with juvenile authorities on several occasions. Given the extent of the testimony heard by the jury regarding petitioner's troubled childhood and family dysfunction, we believe that the additional information contained in Kaplan's report is merely cumulative of that already presented and would not have changed the outcome of petitioner's sentencing. Thus, petitioner has failed to demonstrate that he suffered prejudice from defense counsel's failure to present the information found in Kaplan's report at sentencing.

Petitioner further contends that defense counsel made a manifestly incompetent decision to present the dubious expert testimony of Dr. Heinrich at the aggravation-mitigation hearing. A review of the record, however, belies petitioner's claims that Dr. Heinrich, the defense expert, was ill-prepared and did not have adequate notice from which to prepare his mitigation evidence. Dr. Heinrich was first contacted by defense counsel in August 1994, several months prior to petitioner's resentencing hearing. Dr. Heinrich interviewed petitioner on two separate occasions and conducted several personality tests. In addition, Dr. Heinrich reviewed police reports, investigative reports and trial transcripts, as well as reports of psychological evaluations conducted by two previous experts, Dr. Schwarz and Dr. Cavanaugh. The record also reveals that petitioner himself was responsible for any lack of preparation by Dr. Heinrich because he specifically instructed Dr. Heinrich not to speak with his mother or with his four sisters because he did not want them involved in the instant proceedings.

Remaining Claims

Petitioner argues that Marijane Placek, lead counsel during the aggravation-mitigation phase of petitioner's sentencing hearing, may have been influenced in her defense by a fear of later claims of ineffectiveness and thus acted under a conflict of interest. Petitioner's claims, however, are unsupported by the record or by affidavits, and amount to no more than speculation. Thus, the trial court properly denied relief on this basis.

Petitioner also raises the following three arguments: that he was denied due process by the prosecution's use of his plea of guilty to the Cooney murder to find him death-eligible because, at the time he committed the Cogler murder, he could not have been found death-eligible under the multiple-murder aggravating factor; that the prosecution's use of certain victim impact evidence and argument relating to crimes other than the Cogler and Cooney murders denied him a fair sentencing hearing; and that the Illinois Pattern Instructions used at the sentencing hearing were unconstitutionally vague and confusing. Each of these arguments is waived however, because it could have been previously raised but was not. See People v. Madej, 177 Ill. 2d 116, 127 (1997).

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. The clerk of this court is directed to enter an order setting Wednesday, November 29, 2000, as the date on which the sentence of death entered in the circuit court of Cook County is to be carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119-5 (West 1998). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where defendant is now confined.

Affirmed.

CHIEF JUSTICE HARRISON, dissenting:

I disagree with the majority's assertion that Cloutier cannot raise an ineffective assistance of counsel claim in this proceeding based on the advice he received from his attorney to plead guilty in the Cooney case. The Post-Conviction Hearing Act, upon which my colleagues rely, provides that

"[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his [or her] conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article." 725 ILCS 5/122-1(a) (West 1996).

Although the Cooney case involved a separate set of circumstances, it was inextricably linked to the present matter because it provided one of the predicates for Cloutier's eligibility for the death penalty. As such, it was part of the "proceedings" which resulted in the judgment challenged by Cloutier here. Accordingly, defense counsel's recommendation to plead guilty in the Cooney matter was a proper subject for Cloutier's post-conviction challenge to his death sentence in this case.

Having reached this conclusion, I nevertheless do not feel it necessary to resolve whether Cloutier's attorney did, in fact, provide ineffective assistance. Regardless of counsel's performance, Cloutier's sentence of death cannot be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, �2). Cloutier's sentence of death should therefore be vacated and he should be sentenced to a term of imprisonment. 720 ILCS 5/9-1(j) (West 1994).

Gov. George Ryan Clears Illinois Death Row

On Jan. 11, 2003, Ill. Gov. George Ryan announced that he was commuting the sentences of 167 death row prisoners due to "the demon of error" in the capital punishment system.