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People v. Barrow
Citation: Not availableDocket: 80332 Rel
Court: Illinois Supreme Court; January 28, 2001; Illinois; State Supreme Court
Ronald Barrow appeals the dismissal of his amended post-conviction relief petition by the La Salle County circuit court, which occurred without an evidentiary hearing. Barrow was originally sentenced to death for murder, armed robbery, and residential burglary after being found eligible for capital punishment due to committing murder during a felony. His convictions were affirmed on direct appeal, and the U.S. Supreme Court denied his certiorari petition. Following the direct appeal, Barrow filed a pro se post-conviction petition, which was amended by appointed counsel. He later sought to submit a supplemental pro se petition, which the court denied. The State moved to dismiss the amended petition, and the circuit court granted this motion, concluding that Barrow's claims were barred by res judicata, did not raise constitutional issues, or did not demonstrate errors impacting the trial's outcome. The court's opinion highlights key testimony from Barrow's trial, particularly from Darlene Brown, the victim's daughter, who found her father, Joseph O’Berto, shot and dead in his basement with signs of robbery. A crime scene technician noted no forced entry and observed disarray at the scene, while a neighbor reported unusual activity regarding the victim's outdoor light around the time of the murder. The court ultimately affirmed the circuit court's dismissal of Barrow’s petition. Harry Hockings, an Illinois state trooper, received information from Judy Herron about her boyfriend, Harold 'Smokey' Wrona, who was incarcerated in Maryland and had details regarding a victim's death. Hockings and La Salle County Sheriff Pete Wahl met Wrona in prison, leading to arrangements for Wrona's temporary release to gather evidence against the defendant. On April 6, 1984, Wrona met the defendant in a hotel room equipped with hidden audiovisual devices, where the defendant made incriminating statements. Wrona testified that he met the defendant in prison in July 1983. During their conversations, Wrona recounted a burglary from 1966 involving two friends who stole $64,000 from a home in Cedar Point, Illinois. He mentioned they discovered additional money that had not been taken. The defendant, after being released on bond, visited Wrona twice in February 1984, expressing interest in the Cedar Point robbery and asking for details about the location. Wrona stated that the defendant described a home invasion where he and his brother, Bruce Barrow, held the victim at gunpoint after entering under the pretense of needing to use the phone. The defendant indicated he found money and a bankbook in the victim’s possession, attempted to locate hidden funds but did not succeed, and physically assaulted the victim for information. The defendant later discarded the gun in a river in Indiana and was subsequently apprehended for speeding. A tape recording of the defendant's conversation with Wrona was played in court, where the defendant confirmed the planning and execution of the crime, detailing the assault on the victim. The defendant reported searching for money in various locations, including an empty safe in the basement and the first two stairs leading to the basement, without success. He identified the firearm used in the incident as a "hot, nine millimeter" from Delaware, which he disposed of by tossing it off a bridge during his return trip. Evidence presented by the State indicated that the defendant, residing in Maryland, was near Cedar Point at the time of the murder. Judy Herron, Wrona’s girlfriend, testified about visits from the defendant and his brother, Bruce, to her Seatonville home in February 1984. She noted that the defendant drove a white car and claimed to be staying at a Holiday Inn in Peru under an assumed name. Herron reported that during a later visit, the defendant mentioned Bruce had been pulled over for a traffic violation, which nearly led to the discovery of a gun in their vehicle. Additional witness testimonies placed the defendant in the area during the relevant time frame. A car rental employee confirmed that the defendant rented a white Ford Thunderbird in Delaware on February 11, 1984. A Holiday Inn clerk corroborated that the defendant and another man checked into a room on February 13 and checked out on February 19. On February 16, a police officer stopped Bruce Barrow while he was driving the rented Thunderbird, which had a Delaware license plate, and he misidentified himself. Later, Bruce made a phone call from the police station to someone identifying as Ronald Barrow. Walter Hamlin testified that he saw Bruce Barrow at his parents' restaurant in Cedar Point on February 18, 1984, the day before the murder. Trooper Curtis Barmes observed the same white Ford Thunderbird on February 19, 1984, near Cedar Point, confirming that it could only have accessed Route 51 from Cedar Point. Indiana State Trooper Dave Doll later stopped the defendant driving the same vehicle east on the Indiana Toll Road, noting that another occupant was asleep. The distance from Cedar Point to where the defendant was stopped was approximately 160 miles. Evidence presented by the prosecution linked the defendant’s shoes, found at his mother’s Maryland home, to a shoe impression from the victim’s basement. Forensic scientist Robert Hunton testified that the shoes "could have made the footwear impressions" due to matching size and sole pattern. The trial court denied the defendant's motion for a directed verdict, and the defense did not present any evidence. The defendant was subsequently convicted of murder, armed robbery, residential burglary, and burglary, and sentenced to death. In the post-conviction appeal, the defendant is represented by counsel and has also filed a pro se brief. After the appellate brief was submitted, a motion for limited remand for discovery was granted, allowing depositions of three individuals. The State requested multiple extensions for filing its brief, which were ultimately denied, resulting in the appeal being considered without the State's brief. Post-conviction proceedings, governed by the Post-Conviction Hearing Act (725 ILCS 5/122–1 through 122–7), allow defendants to challenge their convictions or sentences for constitutional violations not addressed on direct appeal. Such proceedings are collateral, not appeals of the original judgment. Issues previously raised or that could have been raised on direct appeal are barred by res judicata and waiver. A defendant does not have an automatic right to an evidentiary hearing; one is warranted only if substantial evidence shows a violation of constitutional rights. All well-pleaded facts in the petition and supportive affidavits are assumed true when determining the need for a hearing. A circuit court's dismissal of a post-conviction petition without a hearing is reviewed de novo. The defendant claims ineffective assistance of trial counsel. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient performance by counsel and that this deficiency resulted in prejudice affecting the trial's outcome, as outlined in Strickland v. Washington. Prejudice is defined as a reasonable probability that, absent the counsel's errors, the trial's result would have been different. The defendant contended that his trial counsel, Wayne McFarland, was ineffective for advising him not to testify and for failing to present a defense despite promising to prove his innocence in the opening statement. These claims were rejected on direct appeal, which bars their reconsideration. On appeal, the defendant argued that McFarland's advice was based on preserving the right to contest the denial of a directed verdict motion. After the motion was denied, McFarland indicated that presenting evidence might waive the right to appeal the ruling. The defendant ultimately chose not to present evidence, claiming he had intended to testify about information obtained from the actual offender and to call witnesses to discredit testimony against him. The court on appeal acknowledged that a defendant's choice to present evidence post-denial of a directed verdict does not waive the challenge if the motion is renewed later. However, the court found no reasonable probability that the trial's outcome would differ had the defendant presented the intended evidence, given the overwhelming evidence of guilt. The court noted that the defendant's potential testimony could have been detrimental and that his prior convictions could have been introduced during cross-examination. Consequently, the court concluded that the defendant did not meet the Strickland test for prejudice. The defendant claims ineffective assistance of trial counsel, arguing that counsel's opening statement promised a defense that was never presented and advised him not to testify. This claim mirrors arguments made on direct appeal regarding trial counsel's failure to present evidence, which is barred from reconsideration under the doctrine of res judicata. Additionally, the defendant asserts ineffective assistance for trial counsel's failure to investigate a police agreement involving witness Harold 'Smokey' Wrona and for not impeaching Wrona with prior convictions. However, these issues have been waived due to not being raised on direct appeal. The defendant further contends that appellate counsel was ineffective for not addressing these issues. The standard for evaluating appellate counsel's performance is the same as for trial counsel, requiring proof of both deficiency and resulting prejudice. Appellate counsel is not required to raise every potential issue, and failure to raise a meritless issue does not constitute incompetence. Given the overwhelming evidence of the defendant's guilt, including witness testimonies and incriminating statements made by the defendant, it is concluded that even if the issues had been raised, the outcome of the appeal would likely not have changed. The presence of the defendant and his brother near the crime scene and the details provided by Wrona, including a recorded conversation, further support this conclusion. The defendant claims multiple instances of ineffective assistance of trial counsel, specifying that counsel improperly instructed the jury to evaluate Wrona’s testimony similarly to other witnesses, suggested in his opening statement that the prosecutor personally believed in the defendant’s guilt, and acknowledged significant circumstantial evidence against the defendant. Additional allegations include failing to object to references of the defendant’s prior bad acts, not pursuing police officers' street files, neglecting to have the defendant’s shoes and a piece of plywood examined by appointed experts, and failing to impeach Judy Herron’s testimony regarding a map of Cedar Point. Although these issues could have been raised on direct appeal, the defendant did not do so, leading to their waiver. The defendant contends that appellate counsel was ineffective for not presenting these issues, but the court finds no established prejudice due to overwhelming evidence of guilt. Furthermore, the court dismisses repeated challenges to trial counsel’s performance as already rejected on direct appeal, invoking the doctrine of res judicata. The defendant also argues a violation of his right to counsel and a public trial stemming from the trial court's removal of attorney Daniel Bute, who was initially appointed to assist with the case. After appointing Bute as a special assistant due to the case's complexity, the State moved to remove him due to potential conflicts of interest involving prior representations of prosecution witnesses. The trial judge, having ascertained the defendant's voluntary and informed waiver of any conflict claims, denied the State's motion. Subsequently, defense counsel McFarland sought to withdraw and substitute Bute just before the trial was set to commence. McFarland, the defendant's initial attorney, resigned as the Grundy County public defender, claiming that the scheduled trial conflicted with a family matter. The trial court denied his motion for substitution of counsel, stating Bute was only appointed for pretrial preparation. On May 2, 1985, McFarland sought to extend Bute's representation through the trial, but the court again denied this request. Jury selection commenced on May 7, 1985, with McFarland as the sole representative for the defendant. The defendant contends that his right to counsel and a public trial were violated when Bute was removed from the case. However, this argument mirrors one previously considered and rejected on direct appeal, asserting that the denial of McFarland's request for substitution of counsel constituted ineffective assistance. The court held that the trial court's decision was within its discretion, citing potential conflicts of interest and the lack of persuasive reasons for the substitution. The court further determined that, despite the defendant's willingness to waive his right to conflict-free counsel, the trial court was not obligated to accept such a waiver. The initial appointment of Bute was deemed appropriate solely for pretrial matters. The defendant's claim that the trial court's reasoning regarding the county's financial responsibility for two attorneys was erroneous was also dismissed, as was the assertion of prejudice resulting from McFarland's representation. The court found that McFarland provided effective counsel throughout the trial. The defendant argues that res judicata should not apply due to newly discovered evidence, specifically an affidavit from Bute asserting that his substitution would not have delayed the trial. The court disagreed, stating this does not constitute new evidence as the argument regarding Bute's preparedness was already made during the motion hearing. The defendant also presented additional documents to support his claim that Bute was not limited to pretrial duties. The State filed a motion on January 29, 1985, to remove attorney Bute from the case, accompanied by a hearing transcript and correspondence from attorneys concerning trial preparations. The defendant requested that Bute remain, but the court found the evidence presented did not constitute new information that would justify revisiting previous decisions under the doctrine of res judicata. The defendant did not argue that any information was newly discovered or unavailable during the direct appeal. The court had previously addressed the State's motion and the trial court's refusal to accept the defendant's waiver of conflict-free counsel. The defendant's claims regarding the removal of Bute and the violation of his right to effective counsel were deemed barred by res judicata. Additionally, the defendant's argument invoking "fundamental fairness" to reconsider the case was rejected. The defendant further claimed a violation of due process due to the State allegedly eliciting false testimony from witness Harold Wrona, who testified without any agreements with authorities. The court noted that perjured testimony, if knowingly used or uncorrected by the State, could affect the verdict and mandates a conviction to be set aside. The testimony indicated that Wrona's felony charges were dismissed before the trial, which could have implications for his credibility. Orders were issued approximately three weeks post-sentencing of the defendant. The State maintained that felony charges against Wrona, specifically theft and aggravated battery from 1980, were dismissed due to unavailability of witnesses. The defendant contends that the dismissal resulted from a deal between Wrona and Illinois authorities, citing a letter from McFarland to attorney Dan Bute, which indicates that a Bureau County judge believed all pending charges against Wrona were dropped in exchange for his testimony. Additionally, affidavits from two witnesses willing to testify against Wrona claim they were not contacted by the prosecutor’s office. The defendant filed a motion for a limited remand for discovery, referencing the ruling in *People v. Olinger*, which granted evidentiary hearings on undisclosed witness deals. The court allowed the remand, permitting depositions of three prosecutors involved in the case. However, the circuit judge denied requests for further discovery and a hearing on the alleged multijurisdictional agreement. The depositions revealed that the prosecutors were unaware of any deals concerning the dismissal of Wrona's charges. The defendant highlighted perceived inconsistencies in the depositions but did not provide the full record to the court. Ultimately, the court determined that the defendant did not demonstrate a reasonable likelihood that Wrona's purported false testimony could have influenced the jury's verdict. Even assuming an undisclosed agreement existed, the overwhelming evidence against the defendant negated any potential impact of the testimony on the outcome of the trial. The evidence against the defendant was substantial, with numerous indications placing him near Cedar Point during the week before the victim's murder. The defendant's own statements, recorded during a conversation with Wrona in a Maryland hotel, further implicated him. He detailed the crimes, revealing knowledge only the perpetrator would possess. This included surveilling the victim’s home for a week, breaking in, and physically assaulting the victim to extract information about money, which he ultimately failed to find. The defendant mentioned using a "hot" nine-millimeter gun from Delaware and expressed concern about neighbors potentially hearing the incident. He also discussed disposing of the gun after receiving a speeding ticket in Indiana, asserting that even if evidence was found, it would be difficult to prove his guilt. Despite the defendant's claims of an agreement between Wrona and Illinois authorities, the overwhelming evidence of guilt led to the conclusion that any alleged false testimony would not have significantly influenced the jury's decision. The defendant further argued a Brady v. Maryland violation, asserting that the State failed to disclose exculpatory evidence related to a 1966 burglary of the victim's home, Wrona’s criminal history, and prior witness testimony. For a Brady violation to be established, the undisclosed evidence must be favorable and material, meaning there is a reasonable probability that its disclosure could have altered the trial's outcome. The determination of materiality hinges on whether the government's suppression of evidence undermines confidence in the trial's result, rather than merely assessing the sufficiency of the evidence presented. The cumulative effect of suppressed evidence plays a critical role in determining materiality in legal proceedings. The defendant claims that the State failed to disclose information regarding a 1966 burglary of the victim’s home, which he argues is significant to the credibility of witness Wrona, who allegedly had knowledge of details about the residence that the defendant had shared with him. The defendant contends that if Wrona had participated in the burglary, it would undermine his testimony. Evidence presented includes testimony from Herbert Klein, a captain at the La Salle County sheriff’s department, who indicated that Wrona was considered a suspect in that burglary. Despite a motion filed by defense counsel for the investigative files related to the burglary, the trial court ordered only a check for available information, and the court sustained objections to inquiries about Wrona’s suspected involvement during a pretrial hearing. The defendant cites the introduction of crime scene photographs from the 1966 burglary as indicative of an investigative file's existence, which the circuit court subsequently denied access to during post-conviction proceedings. Additionally, the defendant argues that the State violated Brady v. Maryland by not providing Wrona’s criminal record. Defense counsel requested this information multiple times before and during the trial, but the prosecutor claimed to lack access. The defendant later obtained Wrona’s FBI rap sheet, revealing numerous burglary and theft convictions, and references a letter from an investigator confirming the existence of this document. The defendant also notes a prior appellate court case identifying Wrona as a habitual offender. Furthermore, the defendant highlights a request for discovery related to police interviews with Wrona, where significant discussions about the case took place. The State informed the trial court that no written reports from meetings existed, and the defendant did not provide any such reports in his post-conviction petition. The defendant asserted that the State had discovery related to telephone conversations between Wrona and his girlfriend, Judy Herron, which were never produced. He did not include a transcript of these conversations in his petition. Additionally, the defendant claimed the State failed to disclose prior testimony from Walter Hamlin, who had seen the defendant's brother, Bruce Barrow, at a restaurant on the night of the murder. The defendant’s trial counsel had requested any prior testimonies from Hamlin. The defendant attached a transcript from Hamlin's testimony in a perjury case involving Bruce, highlighting discrepancies between Hamlin's statements in that case and at the defendant's trial regarding the timing and circumstances of his sighting of Bruce. The defendant argued that the State's failure to disclose this evidence constituted a Brady violation, warranting a new trial. However, the court found no basis for a new trial, stating that even assuming the evidence existed, its nondisclosure would not affect the trial's outcome given the overwhelming evidence of guilt. Furthermore, the defendant claimed he was on psychotropic medication during the trial without a fitness hearing conducted by the judge. This issue was first raised in a motion for leave to file a second pro se supplemental petition, which the court denied. The court noted that failing to raise this issue in the original or amended petition resulted in its waiver. Any claim of substantial denial of constitutional rights that was not raised in the original or amended petition is considered waived, and the defendant did not raise the fitness hearing issue on direct appeal. Despite this procedural default, the court will address the issue due to the State's lack of a brief on waiver. The defendant argues that the failure to hold a fitness hearing deprived him of due process and that his trial counsel was ineffective for not requesting such a hearing. Under section 104–21(a) of the Code of Criminal Procedure of 1963, a defendant on psychotropic medication is entitled to a fitness hearing. The defendant's medical records indicate he was taking Adapin, a psychotropic drug, during the trial. However, based on the court's ruling in People v. Mitchell, the failure to conduct a fitness hearing under section 104–21(a) does not constitute a due process violation and cannot form the basis for post-conviction relief, as it is a statutory right rather than a constitutional one. The court recognizes the defendant's claim of ineffective assistance of counsel regarding the failure to invoke section 104–21(a) as constitutionally cognizable in post-conviction proceedings. To succeed in this claim, the defendant must demonstrate that counsel's performance was deficient and that this deficiency prejudiced him, as outlined in Strickland v. Washington. Applying the Strickland test, the court notes the defendant must show a reasonable probability that he would have been found unfit had a fitness hearing been requested. The definition of unfitness is rooted in the defendant's ability to understand the proceedings and assist in his defense. The defendant has not met the burden of proof to demonstrate that he would likely have been found unfit based on the evidence presented. The medication log confirms he received Adapin daily during the relevant period. The defendant did not provide evidence to show a reasonable probability of being found unfit for trial had a fitness hearing been requested. He was taking medication for anxiety and other ailments but failed to present further supportive information. Consequently, the court concluded he did not establish a reasonable chance of being deemed unfit. The court permitted the defendant to file a pro se supplemental appellate brief, recognizing that while a defendant cannot simultaneously represent themselves and have counsel, it would still consider the arguments made in this brief, particularly regarding claims of actual innocence. Citing *People v. Washington*, the court noted that a post-conviction petitioner may claim actual innocence based on newly discovered evidence, which must be new, material, noncumulative, and conclusive enough to likely change the trial outcome. The defendant submitted affidavits from David and Cheryl Stevenson, asserting that Harold "Smokey" Wrona admitted to lying at trial and implicated another individual. However, the court found the affidavits insufficiently conclusive to alter the trial's result, emphasizing the overwhelming evidence against the defendant, including his own incriminating statements recorded in a conversation. Therefore, the court affirmed the circuit court's judgment, ordering that the defendant's death sentence be executed on May 15, 2001. A certified copy of the mandate will be sent by the court clerk to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the defendant's current confinement facility. The judgment is affirmed. Justice Freeman concurs with the court's decision but expresses a shift in his stance regarding the dissent he previously authored in People v. Mitchell. He notes that since the Mitchell decision, the law has remained unchanged, despite his prior dissenting opinions in subsequent cases. Freeman emphasizes the importance of consistency in legal principles, especially in capital cases, and acknowledges that the only change since Mitchell is the turnover of justices on the court. He argues that this change does not justify overturning the doctrine of stare decisis. Chief Justice Harrison agrees that the convictions should not be disturbed but dissents regarding the death sentence, referencing his previous opinions. The Illinois death penalty law is deemed unconstitutional under the Eighth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 2 of the Illinois Constitution. Consequently, Barrow's death sentence is to be vacated, and the case is to be remanded to the circuit court for a prison sentence instead. Justice McMorrow dissents, arguing that the defendant deserves a new trial due to the administration of psychotropic medication during the original trial. The majority opinion, referencing People v. Mitchell, 189 Ill. 2d 312 (2000), rejected this claim. McMorrow, along with other dissenting justices, expresses disagreement with the Mitchell decision and advocates for resolving the medication-related claim based on precedents that existed prior to Mitchell. McMorrow's dissent is consistent with previous cases where she also opposed the majority's interpretation.