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
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.
response in opposition to petition for executive clemency
Inmate No. N-41047
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).
pled guilty to the first degree murder and aggravated criminal sexual
assault of Cynthia Cooney, for which he received a sentence of natural
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
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.
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
Cloutier carried to the register
was submitted for fingerprint analysis and was determined to be that of
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
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,
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.
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.
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,
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
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
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
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
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
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
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
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.
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