Anthony Hackett was eighteen, and on July 16, 1983, he and his girlfriend drove from their hometown of Emden, Illinois, to the Great America amusement park in Gurnee. He bought her a stuffed Tasmanian Devil and kept the receipt in his wallet. On the way home they pulled off Interstate 55 in Will County to sleep, and at about 1:30 in the morning a man tapped on the window and shot Hackett dead in the front seat. The Illinois Supreme Court’s account of what followed comes from her testimony: she was ordered into a pickup truck, sexually assaulted as it drove, raped when it stopped, stabbed in the chest and pushed out onto the road. A passing motorist found her on the grassy median at 5:30 in the morning with no pulse or blood pressure, and she survived. For seven months the investigation went nowhere. Then, on February 28, 1984, a young woman called the Will County sheriff’s office about a night in July when a dark pickup had circled her and a friend on Bruce Road, and she still had the license number she had written on a slip of paper. It belonged to a 1977 Chevrolet pickup owned by the stepfather of Milton Johnson, a Joliet man paroled in March 1983 after thirteen years in prison for a 1970 rape. The truck had been sitting in a Lockport garage since September, waiting to be repainted. When police seized it on March 9, 1984, they found the receipt for the doll.
Five opinions of the Illinois Supreme Court follow what came after, and they concern two separate prosecutions. The first, decided in 1986, affirmed Johnson’s conviction in Iroquois County, where the trial was moved because of the coverage in Will County, for Hackett’s murder and the rape and attempted murder of Hackett’s girlfriend, and the death sentence the judge imposed after Johnson waived a jury for sentencing. That opinion also reviews evidence from the Homer Township shootings of the same weekend, in which two Will County sheriff’s auxiliary deputies, Dennis Foley and Steven Mayer, were among those killed, and it quotes what Foley told an investigator before he died of his wounds thirty-two days later. The second, in 1987, affirmed four more death sentences, for the murders of Pamela Ryan, Barbara Dunbar, Marilyn Baers, who owned the Greenware ceramic shop on East Cass Street in Joliet, and Anna Ryan, seventy-five, all killed there on August 20, 1983. Much of that opinion is about Johnson himself: he refused the public defenders the court gave him, refused to represent himself, and told the judge he would stay away from his own trial.
The three later opinions are post-conviction appeals, and two of them turn on the lawyers. In 1993 the court revived Johnson’s claims that his trial lawyers in the Hackett case had failed him and sent them back to the circuit court. In 2000 the court ordered the ceramic shop appeal rebriefed from scratch, finding that the lawyer who wrote Johnson’s brief had not given him the reasonable assistance the rules required. In 2002, back on the Hackett case, it held that Johnson was entitled to ask for DNA testing of the rape kit taken from Hackett’s girlfriend, and that the trial court should have let him take the evidence deposition of William Swano, his lawyer in 1984, who had since pleaded guilty to federal racketeering charges and testified at a Cook County judge’s corruption trial that from 1975 to 1990 he had bribed judges and lied. None of it freed him. His death sentences were commuted to life when Governor George Ryan cleared Illinois’s death row in January 2003, and he died at Menard Correctional Center in Chester on May 16, 2025, the day after his seventy-fifth birthday. Police linked him to fourteen killings that summer. He was convicted of five.
These are five decisions of the Illinois Supreme Court, printed in full. Two are direct appeals that weighed the trial evidence and upheld the convictions, and those are the court’s findings. The other three are about process, above all about the lawyers, and say nothing new about guilt. The nine killings the police attributed to Johnson and never prosecuted appear here only where the State used them as evidence at a sentencing hearing or to connect him to a gun or a truck, and nothing in these opinions amounts to a conviction for any of them. The court’s own accounts differ from later sources on some particulars. The 1987 opinion gives Pamela Ryan’s age as twenty-nine and Marilyn Baers’s as forty-six, while other accounts say twenty-five and forty-five, and it calls the shop “Greenware by Mary,” printing “[sic]” after the prosecutor’s “Merry.” We have left the court’s version as it stands and not tried to settle which is right.
Published opinions of a state supreme court are government work, and there is nothing to clear before reproducing them. We have reduced the living private people in them to initials: P.P., Hackett’s girlfriend, who survived the attack; the young woman who wrote down the license number and the passenger who survived the Homer Township shootings; the woman Johnson attacked in 1970 and the man who was with her; the witness who described a truck near the ceramic shop; the Lockport man who stored the pickup; a Great America employee and a defense witness; and Johnson’s mother, stepfather and brother, in whose house he lived that summer and whose truck it was. One of these, the 1970 witness, appears only as C., because the brief in the 2000 appeal was written by an attorney whose initials are L.C. The dead keep their names, and so do the judges, lawyers, police officers and forensic scientists.
The text is the Harvard Law School Library’s digitization of the Illinois Reports and was never scanned, so it has not been spell-checked or repaired, and apart from closing up three words the typesetter broke across a line we have changed nothing. The reporter’s own slips stand, among them “111. Rev. Stat.” for Ill. Rev. Stat. and “Ninth Ulinois,” both in the 2000 opinion. The records the court was reading are not part of this file; for the ceramic shop case alone, the 2000 opinion counts more than eight thousand pages of trial and post-conviction record.
(No. 60826.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILTON JOHNSON, Appellant.
Opinion filed October 17, 1986.
— Rehearing denied December 1, 1986.
SIMON, J., concurring in part and dissenting in part.
Charles M. Schiedel, Deputy Defender, and Beth Katz and Gary S. Rapaport, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Roma J. Stewart, Solicitor General, and Mark L. Rotert and Marcia L. Friedl, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY CHIEF JUSTICE CLARK type=majority]
CHIEF JUSTICE CLARK
delivered the opinion of the court:
Following a jury trial in the circuit court of Iroquois County, the defendant, Milton Johnson, was found guilty of the murder of Anthony Hackett (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(3)) and the aggravated kidnaping (Ill. Rev. Stat. 1983, ch. 38, pars. 10 — 2(a)(3), (aX5)), deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 3), rape (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 1(a)), and attempted murder of P.P. (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4(a), 9 — 1(a)). Defendant waived his right to a jury at the death penalty hearing. The trial court found that the necessary aggravating factors existed, and that there were no mitigating factors sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death for the murder of Hackett and to concurrent prison terms of 40 years for rape, deviate sexual assault, and attempted murder. The death sentence was stayed (87 Ill. 2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d R. 603).
As a threshold matter, we consider defendant’s contention that he was denied his sixth amendment right to an impartial jury drawn from a fair cross-section of the community when the trial court, in granting defendant’s motion for a change of venue, moved the place of trial from Will to Iroquois County.
Prior to trial, defendant moved for a change of venue from the circuit court of Will County, citing pretrial publicity within that county as the reason necessitating the transfer. In transferring the case to Iroquois County, the trial court noted that because Iroquois County is buffered from Will and Cook counties by Kankakee County, the local and Chicago news media would least likely have an impact in Iroquois County. The trial judge further noted that Iroquois County is one of three counties in the Twelfth Judicial Circuit over which he presided.
Thereafter, defendant filed a second motion to change the place of trial from Iroquois County to Cook County, alleging a lack of racial diversity within Iroquois County. In arguing the motion, defense counsel stated that the population of Iroquois County was 95.5% white, and that approximately 10% of Will County was black. The trial judge, in denying the motion, found that Iroquois County was the closest and most convenient forum unaffected by pretrial publicity, and stated that if it appeared during voir dire that an impartial jury could not be impaneled, he would reconsider the denial of defendant’s motion.
Defendant initially moved for a change of venue, alleging that he could not be tried by an impartial jury drawn from a fair cross-section of the community living in Will County due to exposure to pretrial publicity. Having prevailed on his first motion for a change of venue, defendant cannot now be heard to complain that distinctive groups in Will County were not proportionately reflected on the venire in Iroquois County, which the trial court determined was the closest and most convenient forum least likely to be affected by pretrial publicity.
This is not a case involving the systematic exclusion of “a ‘distinctive’ group in the community” (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668), which would trigger a fair-cross-section inquiry under the standard recently announced by the Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Nor are we familiar with any constitutional right allowing a defendant to select his own place of trial. (See People v. Gacy (1984), 103 Ill. 2d 1, 43.) To require that the venire of the transferee county proportionately mirror any distinctive groups found in the originating county would either saddle our judiciary with an onerous, if not impossible, task or effectively grant defendants a heretofore unrecognized right to choose their place of trial.
Defendant concedes that the allowance of a motion for a change of venue lies within the sound discretion of the trial court. Indeed, our statute provides that if, upon motion, the trial court determines that a defendant cannot receive a fair trial, “it shall transfer the cause to the circuit court in any county where a fair trial may be had.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 6(c).) Without a showing that anything but an impartial jury was impaneled in the present case, we find no basis on which to disturb the trial court’s well-reasoned and proper exercise of discretion in selecting Iroquois County as the place of trial.
At trial, testimony from P.P. established that on July 16, 1983, she and her boyfriend, Anthony Hackett, left their homes in Emden, Illinois, and spent the afternoon and evening at Great America Amusement Park (Great America) in Gurnee, Illinois. While there, Hackett purchased a stuffed doll depicting a cartoon character popularly known as the Tasmanian Devil. Hackett placed the sales receipt for the doll in his wallet. At approximately 10 p.m., the two left Great America in Hackett’s car. On their way home the pair took a wrong turn and found themselves in Chicago. After reestablishing the proper direction, Hackett and P. drove for another 45 minutes south on Interstate 55 before they pulled off onto the shoulder of the interstate to sleep. Hackett slept on the front seat, while P. slept on the back.
Shortly after 1:30 a.m., P. was awakened by a tapping sound on the passenger-side window, followed by gunshots which struck Hackett and the sound of glass breaking. The passenger door was opened and P. was ordered to hand over Hackett’s wallet, watch, and her purse. As she complied, P. noted that the assailant was a black man wearing a light- and dark-blue flannel shirt. P. was then ordered to get out of the car and “crawl on her belly” to a pickup truck parked approximately 10 feet away. When P. reached the truck she was told to get inside, to stay on the floor, and to keep her eyes closed. However, P. was able to steal quick glances of the assailant’s face after he climbed into the driver’s side of the pickup truck.
Once the truck was moving, P. was directed to get on the seat. The assailant inserted his fingers in her vagina and commanded her to move back and forth. After 10 minutes P.’s assailant ordered, and then forced, her to perform oral sex. He then pulled off the interstate and stopped the truck near a white building where P. could see many highway lights and hear voices. The assailant spoke briefly to someone and then raped P..
During the rape P. was taunted by her assailant, who asked why she was crying and had she not engaged in intercourse before with her boyfriend. Her assailant then resumed driving and told P. that it was 4:30 a.m. A short time later he again pulled off the road and stopped the pickup truck. P. was gagged and blindfolded. Her assailant once again started to drive, only to pull off onto the shoulder of the highway after about 10 minutes. P. was then stabbed once in the chest and she lost consciousness.
At approximately 5:30 a.m., a passing motorist found P. in a grassy area in the median along Illinois Route 53 near Wilmington, Illinois. She was subsequently taken to St. Joseph’s Hospital in Joliet, Illinois. Dr. Clyde Dawson testified that upon P.’s arrival at the hospital in the early morning hours of July 17, 1983, she had no pulse or blood pressure. Dr. Dawson performed surgery to repair a stab wound to P.’s left chest and prescribed a pain killer and sleep-inducing medication, s. -combination of drugs which he testified would make a person “doubly drowsy.”
John Meduga, special agent with the Illinois Department of Law Enforcement, testified that he met with P. in the emergency room at 7:22 a.m., on July 17. Because of P.’s condition, she was able only to respond to Agent Meduga’s questions with a simple yes or no, or a shake of her head. P.’s responses indicated that her assailant was a black male who she believed was in his mid-20s, 6 feet to 6 feet 2 inches in height, medium to heavy build with a pot belly, no observable facial hair, and a strong body odor; he was wearing a blue-plaid flannel shirt, blue jeans, low-cut gym shoes, and was armed with a shiny revolver that had a white handle. Agent Meduga also interviewed P. at two other times later that day. At each of their three meetings, P. stated that she would be able to recognize her assailant’s low growly voice and strong body odor.
The car in which P. and Hackett had traveled was found by police parked on the shoulder of Interstate 55. Hackett’s body was on the front seat. An autopsy revealed that he had been shot five times. Two of the bullets recovered were forwarded to State evidence technicians for processing. Reddish-brown fibers were found on the floor of Hackett’s car, on the grassy shoulder of the interstate near the right front passenger door, and in the grassy area adjacent to Illinois Route 53 where P. was found by the motorist.
On July 25, 1983, eight days after the occurrence, P. viewed approximately 1,500 photographs and picked out 42 photographs of persons with facial characteristics similar to her assailant, 34 of whom had a beard, moustache, or both. The record does not reveal whether defendant’s photograph was among those P. viewed on July 25. On September 6, P. looked through another group of photographs. There were 137 photographs in a single stack, including one of defendant. P. set aside four photographs of persons having a beard, moustache or both, as having facial characteristics similar to her assailant; defendant’s photograph was not among the four. At trial P. could not recall whether she had seen defendant’s photograph among those in the stack.
During the summer of 1983, the defendant lived at the home of his stepfather, S.M., with his mother, D.M., and his brother, J.J.. On September 12, 1983, defendant was questioned by special agents with the Illinois Division of Criminal Investigations regarding the use of his stepfather’s black 1977 Chevrolet Scottsdale pickup truck, which was parked outside the M. residence at that time. In mid or late September, S.M. brought the pickup truck to the home of E.U. in Lockport, Illinois, to have some rust repaired and the truck repainted black. Due to illness, U. was unable to work on the truck, which was stored in his garage. In either October or November 1983, and once before Christmas, M. inquired about the truck, saying that he was in no rush for it. The truck remained in the U. garage until March 9, 1984, when it was seized by police after the following developments.
The investigation into Hackett’s murder and the assault, rape, and attempted murder of P. stood at a standstill until February 28, 1984, when A.S. telephoned the Will County sheriff’s office. S. spoke with Charles Malinkowski, a Will County deputy sheriff, and informed him of an incident which occurred on July 9, 1983, that prompted her to record on a slip of paper license plate number 889930B, which belonged to the M. pickup truck.
Over defense counsel’s objection at trial, S. testified that during the late evening hours on July 9, 1983, she and a girlfriend were walking on Bruce Road in Will County when a dark pickup truck with a cabin enclosure over the flatbed portion passed them, turned around at the corner, and passed them again. After several more such passes, the girls became frightened and returned to a party they had been at earlier. After telling everyone about the truck, S. and her friend got into S.’s car and followed the truck. On cross-examination, S. explained that they wanted to find out who the driver of the truck was because they believed that he was someone they knew who was playing a joke on them.
The two followed the truck for over an hour, during which time S. wrote down the aforementioned license number along with the words “blue or black Chevy.” Several times they pulled into a driveway, shut off the car lights, and waited. Each time, the truck would turn around and come back. Finally, S. testified that, at one point, they saw the truck pulled over to the side of the road under a street light with its hood up. The driver, who was standing near the passenger side of the truck, was a black man, approximately 5 feet 9 inches in height, weighed approximately 200 pounds, and was wearing what S. believed was a red-flannei shirt. The record does not indicate what S. did after she observed the driver of the truck.
Thereafter, on March 6, 1984, S. met with Deputy Malinkowski and Investigator James Fetzner of the Will County sheriff’s police, and tendered to them the slip of paper bearing the license number of the M. truck. That same day, Agent Meduga visited P. at her home, where he showed her an array of five photographs. Of the five photographs, defendant’s was the only one among those submitted to P. on September 6, 1983, at which time she did not identify his photograph. The record does not disclose whether any of the other four photographs were among those submitted to P. on July 25,1983.
After examining defendant’s photograph for several minutes, P. tentatively identified the defendant as her assailant, stating that he looked “pretty right” and adding “my gut feeling is it’s him but I can’t be sure— his side view looks right and his hairline seems right.” P. testified that she told Agent Meduga that she could be more certain in her identification if she heard the individual’s voice.
On March 9, 1984, P. viewed a six-person lineup at the Will County courthouse. The six participants were black males, ranging from 5 feet 8 inches to 6 feet 2 inches in height, and weighed from 180 to 250 pounds. Defendant was 5 feet 9 inches in height, and weighed 240 pounds at the time of the lineup. Because defendant had a moustache and goatee-type beard at the time and police were uncertain as to whether P. had observed facial hair on her assailant, three other participants were included who had either a beard, moustache, or both.
Agent Meduga told P. not to say anything until after all the participants had individually repeated the following commands her assailant had made: “Get on the ground and crawl on your belly to the truck,” “Stay low,” “Get in the truck,” “Stay on the floor,” “Keep your eyes closed,” and “You got your eyes closed?” After each participant had repeated the commands, P. positively identified the defendant’s face and voice as the same face and voice of her assailant. P. further told Agent Meduga that she had heard the participants perfectly, and when asked if she wanted to smell their body odors, P. stated that there was no need to do so because she had no doubt that the defendant was the assailant.
On March 9, 1984, S.M. signed a “Consent to Search” form for police. The form authorized the search of the pickup truck parked at the U. residence and indicated that M. was voluntarily signing it with an understanding that he had a right to refuse consent. Upon locating the truck in the U. garage, police had it towed to Illinois State Police Headquarters, where a search of the vehicle was conducted. Among the items found during the search were reddish-brown fibers, stains which appeared to be blood, Caucasian head hairs, and a sales receipt from Great America. Search warrants for the pickup truck and the M. residence were issued on the basis of these items. A second search of the truck uncovered more reddish-brown fibers and a steak knife. Among the items seized from the M. residence were three .357 magnum cartridges from the dresser top in the bedroom of S.M. and D.M., a pair of size-10 low-cut gym shoes and another pair of size-11 high-cut gym shoes, both of which were found in the basement where the defendant and his brother, J.J., slept.
A.L., training supervisor for the merchandising department at Great America, testified that the receipt recovered from the M. truck identified the purchase on July 16, 1983, of a Tasmanian Devil doll at Great America. The doll itself had to be destroyed shortly after the Hackett vehicle was processed because it was saturated with blood and infested with insects. L. identified a photograph of the doll as depicting the same Tasmanian Devil doll sold at Great America.
David Metzger, a forensic scientist with the Illinois Department of Law Enforcement’s Bureau of Scientific Services, testified that the vast majority of fibers discovered within the M. truck were the same as, with some being indistinguishable from, those found at the scene where P. had been stabbed, on her clothing and hospital bedsheet, and outside of Hackett’s car. The unusual nature and multiplicity of the fiber clumps found, which appeared to Metzger to be useful only as stuffing to provide bulk to another object, strongly suggested that they had come from the same source. Metzger further testified that the knife found in the M. truck was consistent in size with the holes in P.’s shirt, though no blood was found on the blade or on or underneath the handle, and the knife was of common size. Lastly, Metzger testified that one Caucasian head hair removed from the truck was morphologically consistent with a head-hair standard taken from P..
Defendant did not testify at trial. C.G. testified for the defense that defendant had a moustache and goatee during the summer of 1983. G. also testified that he helped defendant and S.M. repair the exhaust system and muffler on the pickup truck in August of 1983, and that he had seen all members of the M. family and some of their friends drive the truck.
Finally, D.M., defendant’s mother, testified that the pickup truck was used by all family members and various relatives. One of the two sets of keys to the truck was kept in a kitchen drawer. Mrs. M. stated that she and her husband were in Mississippi in the middle of July of 1983, having driven there for a two-week vacation in one of their three other cars. She testified that the muffler on the pickup truck was broken and the front windshield was badly cracked prior to the vacation. The insurance claim submitted by S.M., however, indicated that the windshield was broken on July 27, 1983, at noon on Illinois Route 6 in Marseilles, Illinois. Mrs. M. further testified that defendant had worn a moustache and goatee for the past 13 years. In addition, Mrs. M. testified that when defendant’s brother, J.J., was not staying with his girlfriend in Gary Indiana, he shared a bedroom in the basement with defendant. Mrs. M. stated that the size-10 low-cut gym shoes found in the basement belonged to James and that defendant wore size-11 shoes — always high-top gym shoes.
Defendant contends that the evidence presented against him did not prove his guilt beyond a reasonable doubt. However, it is well established in Illinois that identification of the accused by a single eyewitness is sufficient to sustain a conviction, provided that the witness viewed the accused under circumstances permitting a positive identification. People v. Yarbrough (1977), 67 Ill. 2d 222, 226; People v. Jones (1975), 60 Ill. 2d 300, 307-08; People v. Stringer (1972), 52 Ill. 2d 564, 569.
In an attempt to discredit P.’s positive identification of him, defendant calls to our attention two purported discrepancies between P.’s initial description of her assailant and defendant’s actual physical appearance. First, defendant points out that P. estimated that her assailant stood 6 feet to 6 feet 2 inches in height, whereas defendant stands 5 feet 9 inches in height. We find no substantial discrepancy here. Although her ordeal lasted approximately three hours, P.’s only opportunity to observe her assailant standing upright was when she was crawling on the ground toward the pickup truck. Obviously, such a difficult and awkward angle afforded her little, if any, occasion to accurately judge his height. It is not inconceivable that a person lying on the ground could overestimate the height of another standing nearby given the extreme visual angle involved. The fact that P.’s height estimation was off by as little as three inches, or as much as five, is insignificant under these circumstances.
Secondly, defendant argues that doubt was cast on P.’s identification because she described her assailant as having no observable facial hair, whereas defendant’s mother and a family friend claimed that defendant wore a goatee and moustache in July of 1983. The fatal flaw in this alleged discrepancy is that it, like P.’s testimony that she did not recall seeing defendant’s photograph which was included among the 137 photographs tendered to her in September of 1983, simply presents a question of the credibility of the witnesses and the weight to be given their testimony. Such questions are within the province of the trier of fact, and not this court. It is well settled that “[i]t is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses.” People v. Novotny (1968), 41 Ill. 2d 401, 412.
The sufficiency of identification evidence is a question for the jurors (People v. Williams (1972), 52 Ill. 2d 455, 465), and we will not substitute our judgment for theirs. A reviewing court will not set aside a conviction unless the evidence is so unsatisfactory as to raise.a reasonable doubt as to the guilt of the defendant. (People v. Ellis (1978), 74 Ill. 2d 489, 496; People v. Reese (1973), 54 Ill. 2d 51, 58.) The evidence presented in the case at bar does not permit us to draw that conclusion.
Notwithstanding the fact that identification by voice alone may establish guilt beyond a reasonable doubt (see People v. Nunn (1981), 101 Ill. App. 3d 983, 989), defendant asserts that P. only identified his voice at the March 9, 1984, lineup. Defendant’s contention is without merit. After viewing and hearing the lineup participants repeat commands she was given during her lengthy ordeal, P. unqualifiedly identified the defendant as her assailant. P. testified that she recognized defendant’s face as that of her assailant’s at the lineup. Her identification of defendant at the in-person lineup, and again at trial, was positive, unequivocal and convineing. The record reflects that P. had ample opportunity to observe defendant’s face during her ordeal and that the lighting conditions were particularly good in the area where defendant raped P.. In short, the jury could reasonably have believed P.’s testimony at trial and found that defendant had assaulted her and murdered Hackett.
P.’s testimony was also corroborated by overwhelming circumstantial evidence found within the M. pickup truck, to which defendant undisputedly had access: the Great America receipt which documented the purchase of a Tasmanian Devil doll on July 16, 1983; the unusual fibers, indistinguishable from those found at the scenes where Hackett was murdered and P. was stabbed; the head hair that was morphologically similar to the head-hair standard of P.; and the knife which could not be eliminated as the cause of the stab holes made in P.’s shirt.
Defendant argues that the trial court erred in denying his pretrial motion to suppress evidence seized in the search of the truck. However, we agree with the trial court that defendant did not have standing to contest the search and seizure of the truck.
The fourth amendment protection against unreasonable government search and seizure extends only to individuals who have a reasonable expectation of privacy in the place searched or property seized. (Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430.) Property ownership, while not dispositive, is a factor to be considered in determining whether an individual has standing to test the constitutionality of a search and seizure. (United States v. Salvucci (1980), 448 U.S. 83, 91, 65 L. Ed. 2d 619, 628, 100 S. Ct. 2547, 2553.) Other factors relevant in determining whether a reasonable privacy expectation exists, include whether defendant was legitimately present in the area searched; his possessory interest in the area or property seized; prior use of the area searched or property seized; ability to control or exclude others’ use of the property; and a subjective expectation of privacy in the property. See United States v. Lochan (1st Cir. 1982), 674 F.2d 960, 965; People v. Flowers (1982), 111 Ill. App. 3d 348, 353.
Guided by the foregoing factors, we conclude that defendant failed to carry his burden of establishing that he held a reasonable expectation of privacy in the pickup truck at the time it was searched and seized. The fact that defendant had driven the truck six months prior to its seizure is insufficient in view of the lack of any other evidence of a reasonable privacy expectation. The question whether a defendant has a reasonable expectation of privacy in the area searched or the items seized must be resolved in view of the totality of the circumstances of the particular case. People v. Becktel (1985), 137 Ill. App. 3d 810, 815.
The record does not support defendant’s contention that he had “continuous use and right of access” to the truck, which was owned by his stepfather, S.M.. Although defendant did use the truck prior to September 1983, the record shows that defendant had no contact whatsoever with the truck during the next six months prior to its seizure. Defendant was not present at, or in possession of, the truck when it was seized at the U. residence in March 1984. More importantly, defendant did not establish that his presence in, or possession of, the truck while it was stored in the U. garage would have been legitimate. Thus, defendant has plainly failed to show that he had a right of access to the truck at the time it was searched and seized.
Finally, defendant did not claim any property interest in the items seized and failed to establish that he had ever stored any personal effects in the truck or otherwise maintained a subjective expectation of privacy in its contents. Since we hold defendant lacked standing to contest the search and seizure of the truck, we need not consider the effect that Mr. M.’ written consent to search the truck had upon the subsequent police search and seizure of the vehicle. The trial judge correctly denied defendant’s motion to suppress evidence seized from the truck.
We also reject defendant’s contention that the trial court erred in denying his motion in limine to bar the testimony of A.S. on the ground of relevancy. “The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse.” (People v. Ward (1984), 101 Ill. 2d 443, 455-56.) We cannot say that the trial court abused its discretion in admitting S.’s testimony.
Relevant evidence is that having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without such evidence. (People v. Free (1983), 94 Ill. 2d 378, 413, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200; People v. Monroe (1977), 66 Ill. 2d 317, 322.) Defendant argues that S.’s testimony was not relevant because it did not implicate him as the driver of the M. truck on July 9, 1983. We disagree. S.’s physical description of the driver closely fit defendant. The fair inference that defendant was the driver was not rebutted by evidence that anyone else in the M. family or their friends had driven the truck that evening. Proof that defendant had access to the truck during the late-night weekend hours, as in the S. incident, was certainly relevant in establishing his identity, only eight days later, as the individual who murdered Hackett and assaulted P. during the early Sunday morning hours on July 17, 1983.
S.’s testimony was also relevant in explaining to the jury the reason why P. was shown a photograph of defendant on March 6, 1984, despite her failure to identify him from the group of photographs shown to her six months earlier. The consequential steps in the investigation of a crime are relevant when necessary and important to a full explanation of the State’s case to the trier of fact. (People v. Guyon (1983), 117 Ill. App. 3d 522, 534; People v. Byrd (1976), 43 Ill. App. 3d 735, 742.) In opening statement and again in closing argument, defense counsel suggested that police had unjustifiably targeted defendant eight months after the offenses by conducting the March 6 photographic lineup and the subsequent in-person lineup. S.’s testimony, therefore, was relevant to rebut this suggestion.
We believe that it was necessary and important for the jury to know the basis — S.’s testimony — for what would otherwise be an unexplained and arguably suggestive police procedure employed in securing defendant’s identification. As the court in People v. Byrd (1976), 43 Ill. App. 3d 735, 742, stated:
“The State must be permitted to make some explanation why a previously unidentified defendant was arrested and shown to the victim of a crime. If this were not permitted defense counsel could play upon it in argument, asking why the defendant — of all the men in the world — was on trial, insinuating that the accused was arrested without reason.”
Finally, inasmuch as defendant concedes that S.’s testimony did not establish any criminal activity, we conclude that its probative value clearly outweighed the prejudicial effect, if any, that it may have had.
Defendant also contends that the trial court erred in allowing Roger Peele, special agent with the Federal Bureau of Investigation, to testify to the results of a neutron-activation analysis he conducted on the cartridges found in the defendant’s home and the bullets recovered from the victim. Defendant argues that the results of Agent Peele’s analysis were inconclusive and irrelevant, and that he was therefore denied his right to a fair trial by its admission. Because the admissibility of neutron-activation-analysis results has never before been challenged in the reviewing courts of our State, a brief explanation of its operation and application, within the context of this case, is in order.
As Agent Peele explained at trial, neutron-activation analysis is a two-phase method of instrumental chemical analysis, which detects, in parts per million, trace elements in a sample of material for the purpose of identifying the source of the material. In the case at hand, sample pieces were first cut from each bullet. In the energy-activation phase, the samples were placed separately in a nuclear reactor, bombarded with neutrons, and thereby made radioactive. In the energy-detection phase, each radioactive sample was removed from the reactor and the presence and quantity of any trace amounts of antimony, copper, and arsenic in the bullet lead were determined by measuring the number of gamma rays and the associated energy emitted. The manufacturer, Agent Peele explained, specifies the quantity of antimony that is added to its lead for hardening purposes. Copper and arsenic, on the other hand, are used in the manufacturing process, but the amounts present are random, not specified. Therefore, boxes of cartridges manufactured on or about the same day will contain a unique quantity of these trace elements. By comparing the trace-element composition of the samples, Agent Peele was able to form an opinion as to whether the bullets found at the scene of the Hackett murder and in defendant’s home would commonly be found within the same box of cartridges or from another box of the same type and manufacture-packaged on or about the same day.
The record belies defendant’s assertion that the neutron-activation-analysis results were inconclusive or, at best, only supported a conclusion that the bullets tested were possibly manufactured on the same day. While Agent Peele testified that the absence of arsenic in the samples prevented him from ultimately designating a match, he stated that the fact that arsenic was not detected in any of the samples nevertheless provided a significant correlation among them. Based upon the very close copper and antimony compositions of the bullets from the scene of the Hackett murder and the defendant’s residence, Agent Peele concluded that the samples “would commonly be expected to be found among bullets within the same box of cartridges with compositions just like these, and that [i.e., another box of cartridges close in composition] could best be found from the same type and manufacture packaged on the same day.” We find that Agent Peele’s testimony, while not conclusive, clearly imports more than a possibility of common origin.
Defendant cites State v. Holt (1969), 17 Ohio St. 2d 81, 246 N.E.2d 365, for the proposition that expert opinions expressing less certitude than a “probability” or an “actuality” in interpreting the results of a neutron-activation analysis are incompetent. In that case, the Ohio Supreme Court stated that it was adopting the above standard “since Neutron Activation Analysis has not yet reached the point of generally proven reliability, and since the testing procedures followed by the witness herein are subject to challenge.” (17 Ohio St. 2d 81, 85, 246 N.E.2d 365, 367.) Far from being the “leading case” on the subject, as defendant suggests Holt is, our research indicates that no other jurisdiction has adopted its rationale in excluding the results of a neutron-activation analysis.
We view the persuasiveness of Holt as limited to the temporal context in which the decision was rendered. When Holt was decided the Ohio court was correct in observing that neutron-activation analysis was a relatively new and untested forensic-science technique. Since Holt, however, neutron-activation analysis has come to be accepted as a consistently reliable forensic-science technique, with a majority of jurisdictions holding that the results of such tests are admissible in criminal proceedings. (E.g., Chatom v. State (Ala. 1977), 348 So. 2d 838; Keith v. State (Alaska 1980), 612 P.2d 977; Mills v. State (Fla. 1985), 476 So. 2d 172; State v. Warden (1979), 100 Idaho 21, 592 P.2d 836; State v. Ulrich (1980), 187 Mont. 347, 609 P.2d 1218; State v. Journey (1978), 201 Neb. 607, 271 N.W.2d 320; Commonwealth v. Sangricco (1977), 475 Pa. 179, 379 A.2d 1342.) We are persuaded by the reasoning of those courts in so doing and likewise believe that any lack of certitude in a qualified expert’s testimony, or inconclusiveness in the results of an otherwise reliable neutron-activation analysis, goes to the weight and not the admissibility of such evidence. Mills v. State (Fla. 1985), 476 So. 2d 172, 176-77; Jones v. State (Ind. 1981), 425 N.E.2d 128, 131; State v. Spencer (1974), 298 Minn. 456, 460, 216 N.W.2d 131, 134; cf. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18 (medical testimony that conditions of employment “could have” or “might have” resulted in injury properly admitted despite objection that testimony was inconclusive and speculative); People v. Columbo (1983), 118 Ill. App. 3d 882, 962 (microscopic analysis establishing a “possibility” that two hairs came from same source properly admitted).
Finally, we are not persuaded by defendant’s conclusory assertion that the results of the neutron-activation analysis were irrelevant. As stated earlier, evidence is relevant if it has any tendency to make the existence of any material fact more probable or less probable than it would be without such evidence. (People v. Free (1983), 94 Ill. 2d 378, 415, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Clearly the test results were relevant in establishing, as more probable, the material fact that the bullets from the Hackett murder were from the same box as the cartridges found in defendant’s home. The trial court did not abuse its discretion in allowing this evidence.
Defendant next urges that his convictions should be reversed because the prosecutor made various comments during closing argument which allegedly denied him his right to a fair trial. We observe that the vast majority of the remarks complained of were not objected to at trial or raised in defendant’s post-trial motion and are therefore waived unless it is “plainly apparent that an error is so prejudicial that real justice has been denied or that the verdict of the jury may have resulted from the error.” (People v. Yates (1983), 98 Ill. 2d 502, 533.) Upon review of the record, we cannot say that the unobjected-to remarks were of such a nature that either standard was violated.
Although opinions made by a prosecutor during closing argument are generally improper, this court has consistently recognized an exception where the comment was based on the evidence. (E.g., People v. Adams (1985), 109 Ill. 2d 102, 118; People v. Holman (1984), 103 Ill. 2d 133, 172-73.) With one exception, all of the unobjected-to prosecutorial comments were properly based upon the evidence presented or a reasonable inference drawn therefrom. The prosecutor’s one comment expressing an opinion on a matter not relating to the evidence came when he stated:
“Some may call it fate, I’d like to call it a miracle. Gail’s life was spared. *** In my opinion the reason for that is so that she could have the opportunity some day down the road to sit upon a witness stand in some court in this land and finger the person, finger that black man that slaughtered her boyfriend.”
Defendant does not argue that this comment prejudiced him beyond the fact that it was an improper expression of personal opinion, and on this record, we will not conjecture otherwise. However, we find unnecessary and potentially offensive the prosecutor’s reference to defendant as “that black man,” even though defendant does not contend that the remark was intended to incite racial prejudice among the all-white jury or that it had that effect. We also consider the prosecutor’s comment on why he thought P. had survived her assault to be pure philosophical musing. Although we consider the remark intemperate and improper, the record indicates that the jury was instructed to consider only the evidence at trial and to disregard any statements made in closing argument that were not based on the evidence. We note further that the remark, which was not objected to by defendant, was isolated and the prosecutor did not dwell on it any further. In view of the entire record and the overwhelming evidence of defendant’s guilt, we cannot say that the improper comment either constituted a material factor in defendant’s convictions or otherwise prevented him from receiving a fair trial so as to require reversal.
Defendant also complains that the prosecutor improperly suggested that defendant’s mother, D.M., was lying when she testified that the windshield of the pickup truck was broken before she and her husband went on vacation in the middle of July of 1983. Over objection, the prosecutor stated further that there was no way to verify Mrs. M.’ testimony. This court has held that a prosecutor’s statement that a witness was lying is not improper if it is based on the evidence. (People v. Adams (1985), 109 Ill. 2d 102, 118; People v. Tiller (1982), 94 Ill. 2d 303, 318-19.) Here, Mrs. M.’ testimony was in direct conflict with the insurance claim form the State later introduced, which stated that the windshield was broken on July 27, 1983, 10 days after P.’s assault. Just as defense counsel was entitled to argue that Mrs. M. had simply been mistaken in her testimony, the State was likewise entitled to argue on the evidence that she was lying. We find nothing improper in the prosecutor’s comments.
The defendant also claims that further error occurred in the State’s rebuttal closing argument when the prosecutor told the jury, “You are going to have to decide in this case members of the jury who is telling the truth.” We cannot agree. It is not open to question that the jury, as trier of fact, bears the “responsibility to judge the credibility of the witnesses and to ascertain the truth.” (People v. Yates (1983), 98 Ill. 2d 502, 525.) Further, defendant’s assertion that the prosecutor informed the jury that it would have to adjudge P. a liar “in order to acquit Mr. Johnson” finds no support in the record.
In closing argument defense counsel implied that Agent Meduga, as the major force in a police conspiracy against defendant, employed suggestive police procedures to prompt P.’s tentative identification of defendant’s photograph on March 6, 1984. Defense counsel then portrayed Agent Meduga as acting on his own belief in defendant’s guilt by unjustifiably conducting the subsequent in-person lineup in which P. positively identified defendant. It was in this context that the prosecutor responded:
“You have got to say Gail is a liar, you have got to say that she is part of the police conspiracy. [Defense counsel] says we don’t know what Meduga said on the 6th, we don’t know what he suggested to her. She testified. She would have to be lying about what happened March 6th if Meduga suggested or did anything improper.”
It is quite clear that the prosecutor did not state that defendant could not be acquitted unless the jury found that P. was lying. Rather, the prosecutor simply argued that, before the jury could accept defense counsel’s factual assertion that Agent Meduga engineered suggestive photographic and in-person lineups, they would first have to disbelieve P.’s testimony. P. testified that it was she who asked Agent Meduga for an opportunity to make a voice identification, and there was no evidence whatsoever that Agent Meduga had said anything improper to focus P.’s attention on defendant. By suggesting the existence of a police conspiracy, defense counsel invited this rebuttal, and it thus was neither improper nor prejudicial.
The defendant also complains that the prosecutor, over objection, urged the jury to accept, as fact, several unfounded assertions when he explained:
“We don’t have the gym shoes because he got rid of the gym shoes, and we don’t have the gun because he got rid of the gun, and we don’t have the wallet because he got rid of the wallet, we don’t have the purse because he got rid of the purse and he thought he had the truck out of commission because it was going to be painted *** but he didn’t know the fibers and didn’t know *** the receipt was in there. Where was the truck for eight months ***? It was locked up in a garage.”
We believe that the prosecutor’s comments were fair inferences based on the evidence. The evidence establishing defendant’s guilt was overwhelming, and it was therefore a fair inference that the above missing items associated with the offense were not recovered because defendant had disposed of them. Moreover, the remarks were an invited response to defense counsel’s suggestion that, considering the exhaustive investigation by authorities, it was incredible “not one iota” of physical evidence connecting defendant to the crimes was discovered until the M. truck was searched eight months later.
Having determined that no reversible error occurred during the guilt phase of defendant’s trial, we affirm defendant’s convictions on all charges and next address his allegations of error at the sentencing hearing.
We first note that the affirmation of defendant’s convictions disposes of his contention that his conviction for felony murder based on the armed robbery of Hackett was supported by insufficient evidence and therefore could not form the basis for the statutory aggravating factor which triggered his eligibility for the death penalty. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6).) Further, insofar as this conviction provided the necessary statutory aggravating factor, we need not consider defendant’s ancillary contention that his convictions for the felonies committed against P. should not be construed to support statutory aggravating factors under section 9 — 1(b)(6) because they were not perpetrated against the murder victim.
The sentencing hearing was held before the trial judge, the defendant having waived his right to a jury and, against advice of counsel and over the State’s objection, exercised his right not to be present during the course of the proceeding. At the hearing and over objection, the State presented evidence of a multiple homicide which occurred in Homer Township during the early morning hours of July 16, 1983. Defendant contends that the evidence presented was irrelevant because the homicides occurred in a different area and prior to the offenses for which he stands convicted and because the evidence did not sufficiently connect him to their commission. The State argues that defendant did not allege in his post-trial motion any error arising from his sentencing hearing, and thus any claim of error in this regard is waived. (People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Wright (1985), 111 Ill. 2d 128, 148; People v. King (1986), 109 Ill. 2d 514, 533.) Without ruling on the waiver question, defendant’s contention is without merit.
During the early morning hours of July 16, 1983, the day preceding the Hackett-P. incident, four people were shot to death and two others wounded in the vicinity of 147th Street and Gauger Road in Homer Township. Property from the victims was recovered 15 miles from defendant’s residence and eight miles from the scene of Hackett’s murder.
In his reply brief, defendant concedes that evidence connected the M. truck to the Homer Township homicides: a dark-colored Ford or Chevy pickup truck with a cabin over the flatbed portion was seen traveling east on 143rd Street at a very high rate of speed at approximately 3:45 a.m., minutes after the shootings. In addition, defendant does not contest that, despite the weather being hot and humid at the time, a dry and unfaded receipt made out to S.M., and last seen by him on the truck’s dashboard, was discovered at the scene under the body of Will County sheriff’s auxiliary deputy Steven Mayer. Notwithstanding, defendant maintains that “no evidence” connects him to the homicides. We cannot agree.
James Fetzner, investigator with the Will County sheriff’s police, testified that he met with Will County sheriff’s auxiliary deputy Dennis Foley five or six times following the Homer Township shootings. Deputy Foley, who was hospitalized for serious gunshot wounds, died 32 days after the shootings. During their meetings, Deputy Foley stated that as he and Deputy Mayer approached 147th Street and Gauger Road they observed a brown van partially blocking the roadway nose to nose with a red car. (Later discovered in the two vehicles, a red Chevrolet Chevette and brown Chevrolet Suburban, were the bodies of three of the victims.) A black man walked from behind the driver’s side of the van and said that he needed a “jump.” The man then pulled a handgun and shot both deputies. He next took their guns and wallets. Deputy Foley noted that his assailant was wearing a flannel shirt and blue jeans. He also stated that the assailant was approximately 6 feet in height, weighed over 200 pounds, and was clean-shaven.
Officer Fetzner also interviewed L.T., who was a passenger in the brown Chevy Suburban driven by George Kiehl. T. told Officer Fetzner that she and Kiehl were traveling westbound on 147th Street when they observed a medium-blue pickup pulled partially into a field entrance facing a red Chevrolet Chevette. A white man was standing next to the driver’s door with his arm on top of the car and his head down, as though he were talking to someone inside the car.
T. and Kiehl drove down to 151st Street, turned around and came back. On the return trip, T. could see red lights of a squad car flashing, and she thought she saw someone duck between the vehicles. As they neared the pickup truck, a white man; who T. thought was a police officer, called to them, “Stop. Wait, wait.” When Kiehl slowed the vehicle and rolled down his window, shots were fired. T. told Officer Fetzner that she thought she had been shot by the police officer. However, T. also told Will County Sheriff’s Deputy Charles Malinowski that a photograph of Deputy Mayer, who was found dead at the scene, looked “very similar” in physical appearance to that of the police officer she had seen in front of their vehicle before she was shot.
Stipulated ballistics evidence indicated that Anthony Hackett and Deputy Mayer were both shot with a .38 or .357 weapon creating rifling characteristics of six lands and six grooves to the left. Also, neutron-activation analysis of bullets recovered from their bodies and the .357 cartridges found in defendant’s home were of a close compositional association, such that they would commonly be found among bullets from the same box of cartridges or different boxes of cartridges of the same type and manufacture-packaged on or about the same date. It was further stipulated that shoeprints consistent with Converse Brand All-Star gym shoes were found near the Chevette and the squad car.
The admissibility of evidence at the aggravation and mitigation phases of the sentencing hearing is not governed by the restrictive rules of evidence in effect at the guilt phase of the trial. (People v. Free (1983), 94 Ill. 2d 378, 426-27, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200; Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(e).) The broadened standard governing admissibility of evidence allows the State and the defendant considerable leeway in presenting evidence so long as the proffered evidence is relevant and reliable (People v. Owens (1984), 102 Ill. 2d 88, 111, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 362), as determined by the trial court in its sound discretion (People v. Perez (1985), 108 Ill. 2d 70, 88). Proof of prior misconduct not resulting in prosecution or conviction is admissible as relevant to the question of defendant’s character. (People v. Brisbon (1985), 106 Ill. 2d 342, 365.) When a sentencing hearing is conducted by a trial judge acting without a jury, “the trial judge is presumed to consider only competent and relevant evidence in determining sentence.” People v. Morgan (1986), 112 Ill. 2d 111, 144.
In light of these principles and given the nature of Officer Fetzner’s testimony, as well as the strong circumstantial evidence presented, we cannot find that the trial judge abused his discretion in admitting evidence of defendant’s involvement in the Homer Township homicides as relevant to the sentencing phase of defendant’s trial. The Homer Township incident occurred less than 24 hours before defendant murdered Hackett and almost succeeded in murdering P.. Significantly, P. told police that her assailant was a black male, medium to heavy build, wearing a flannel shirt, blue jeans, and gym shoes, while Deputy Foley also told Officer Fetzner that his assailant was a black male who weighed over 200 pounds, and wore a flannel shirt and blue jeans. Moreover, shoeprints consistent with Converse Brand All-Star gym shoes were discovered at the scene. Given the fact that the accuracy of this evidence was never directly challenged, the trial court did not abuse its discretion in finding the evidence reliable. The trial court was aware that defendant had yet to be charged in the Homer Township slayings and was able to consider- that fact in weighing the aggravation value of the evidence.
Defendant next argues that he involuntarily and unknowingly waived his sixth amendment right to assistance of counsel because the trial court, in accepting defendant’s decision not to call witnesses in mitigation, did not inform him that without affirmative presentation of mitigating evidence defendant was subjecting himself to a mandatory imposition of the death penalty. Following the State’s case in aggravation, defense counsel informed the trial court that defendant remained steadfast in his wish, adamantly expressed before and during the sentencing hearing, to waive his right to have counsel present mitigating evidence. Counsel had intended to call a minister and defendant’s parents. We note that defendant did not raise this issue in his post-trial motion. Accordingly, any claim of error regarding it is deemed waived. People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Wright (1985), 111 Ill. 2d 128, 148; People v. King (1986), 109 Ill. 2d 514, 533.
Moreover, even if it had not been waived, defendant’s argument would fail, since it rests upon the erroneous legal premise that the death penalty must be imposed where a capital defendant waives his right to have counsel present mitigating evidence. Neither our death penalty statute nor the decisions of this court permit the automatic imposition of the death penalty, or likewise allow for an admonishment to a defendant that such a result shall obtain, where a capital defendant waives presentation of mitigating evidence. Suffice it to say that, while a defendant shall be sentenced to death if there are no mitigating factors sufficient to preclude imposition of the death penalty (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — (l)(g), (h)), mitigation may be found in the evidence adduced at trial as well as any evidence introduced at the sentencing hearing. People v. Gacy (1984), 103 Ill. 2d 1, 100; People v. Lewis (1981), 88 Ill. 2d 129, 146-47, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307; People v. Carlson (1980), 79 Ill. 2d 564, 589-90.
We next address defendant’s argument that qualification of the jury pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, denied him his right to a jury drawn from a fair cross-section of the community and resulted in a conviction-prone jury. The Supreme Court has recently rejected in Lockhart v. McCree (1986), 476 U.S. 169, 90 L. Ed. 2d 137, 106 S. Ct. 1758, a challenge to the qualification of jurors under Witherspoon on precisely the same grounds as defendant now raises. Our decisions are in harmony with Lockhart and therefore need not be reconsidered. The qualification of jurors under Witherspoon does not deny a defendant the right to a jury drawn from a fair cross-section of the community (People v. Neal (1985), 111 Ill. 2d 180, 197; People v. Gacy (1984), 103 Ill. 2d 1, 37-38; People v. Silagy (1984), 101 Ill. 2d 147, 165), nor does it result in a conviction-prone jury (People v. Neal (1985), 111 Ill. 2d 180, 197; People v. Collins (1985), 106 Ill. 2d 237, 279; People v. Gacy (1984), 103 Ill. 2d 1, 37-38).
Defendant also raises three issues alleging that the IIlinois death penalty statute is unconstitutional. All of defendant’s contentions have been previously considered and rejected by this court. This court has rejected the contention that the imposition of the death penalty is arbitrarily limited to individuals who do not require special provisions or assistance to understand the proceeding or assist in their defense. (People v. Neal (1985), 111 Ill. 2d 180, 202; People v. Madej (1985), 106 Ill. 2d 201, 212; People v. Stewart (1984), 104 Ill. 2d 463, 499-502, cert. denied (1985), 471 U.S. 1120, 86 L. Ed. 2d 267, 105 S. Ct. 2368.) It has also rejected the contention that the death penalty statute fails to adequately narrow the group of persons eligible for death from others guilty of murder. (People v. Olinger (1986), 112 Ill. 2d 324, 352; see also People v. Williams (1983), 97 Ill. 2d 252, 266; People v. Brownell (1980), 79 Ill. 2d 508, 541-44.) Finally, this court has rejected the contention that the death penalty statute does not contain adequate safeguards to prevent the arbitrary or capricious imposition of death sentences. (People v. Morgan (1986), 112 Ill. 2d 111, 148; People v. Neal (1985), 111 Ill. 2d 180, 202-03; People v. Albanese (1984), 104 Ill. 2d 504, 539-42.) Defendant offers no persuasive arguments for reconsideration of these issues, and we therefore decline to do so.
For the reasons stated herein, the judgment of the circuit court of Iroquois County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, January 27, 1987, as the date on which the sentence of death entered in the circuit court of Iroquois County is to be carried out. The defendant shall be executed by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 119 — 5). A certified copy of the mandate in this case shall be transmitted by the clerk of this court to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein defendant is confined.
Judgment affirmed.
[OPINION BY JUSTICE SIMON, type=concurring-in-part-and-dissenting-in-part]
JUSTICE SIMON,
concurring in part and dissenting in part:
I concur in the majority’s decision to uphold the conviction. However, for the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and in People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional and that the death sentence in this case should be vacated.
(No. 63024.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILTON JOHNSON, Appellant.
Opinion filed December 21, 1987.
Rehearing denied February 2, 1988.
SIMON, J., concurring in part and dissenting in part.
Charles M. Schiedel, Deputy Defender, and Gary S. Rapaport, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Roma J. Stewart, Solicitor General, and Mark L. Rotert and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE MORAN type=majority]
JUSTICE MORAN
delivered the opinion of the court:
Defendant, Milton Johnson, was indicted in the circuit court of Will County for four counts of murder and four counts of felony murder in violation of sections 9 — 1(a)(1) and 9 — 1(a)(3), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1(a)(1), (a)(3)). He was tried by a jury and found guilty on all eight counts. At a separate bifurcated sentencing hearing, as to which defendant waived his right to a jury, the trial court found that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death on each of the felony-murder convictions. No sentence was pronounced as to the four murder convictions. Defendant’s post-trial motion was denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 107 Ill. 2d R. 603), alleging numerous errors at all stages of the proceedings.
The evidence adduced at trial reveals that on August 20, 1983, four women were murdered in the “Greenware by Mary” ceramic shop, located on East Cass Street in Joliet, Illinois. Three of the victims, 29-year-old Pamela Ryan, 38-year-old Barbara Dunbar, and 46-year-old Marilyn Baers, the owner of the ceramic shop, sustained multiple stab wounds which caused their death. The fourth victim, Anna Ryan, age 75, was stabbed and shot to death.
The first issue we address is whether defendant knowingly and effectively waived his right to counsel during the guilt phase of the trial.
The record reveals that on August 16, 1984, defendant appeared for his arraignment without counsel. The trial court furnished him with a copy of the indictment, which set forth the nature of the charges. Defendant waived reading of the indictment, stating that he was “familiar with it.” At his request, the court then set a new date for the arraignment to allow defendant additional time in which to secure private counsel.
On September 13, 1984, defendant appeared in court represented by his counsel, William Swano. Mr. Swano waived formal reading of the indictment, and entered defendant’s plea of not guilty to each of the charges.
Approximately two months later, defendant’s counsel filed a motion for leave to withdraw because of defendant’s inability to pay his legal fees. During the December 19, 1984, hearing, the trial court initially denied the motion, indicating that defendant’s inability to compensate Mr. Swano in accordance with their prior agreement was an insufficient basis upon which to permit Mr. Swano leave to withdraw. However, defendant then personally addressed the court, stating that he wished to have his counsel “dismissed” from the case because he would not receive “true legal representation by an attorney who isn’t being paid for his services.”
Defendant further advised the court that he would prefer not to be represented by the public defender’s office, and specifically requested the court not to appoint the two assistant public defenders who. represented him in a previous murder trial. Defendant indicated that he would be “more than satisfied” if the court appointed Mr. Andreano of the public defender’s office to represent him. Accordingly, the court granted Mr. Swano leave to withdraw, and appointed Mr. Andreano to represent defendant.
On September 30, 1985, the date upon which the trial was scheduled to proceed, defendant orally advised the court that he no longer wished to be represented by Mr. Andreano and the assistant public defender assigned to the case, Mr. Orloff. He filed a pro se motion on October 1, 1985, in which he requested the court to “remove” his present counsel and appoint him “other counsel from outside of the Public Defender’s office and from outside of Will County.” Defendant claimed in the motion that his counsel denied him opportunities to review discovery materials, refused to investigate certain matters, and failed to contact certain individuals whom he believed should be interviewed.
During the hearing on the motion, defendant stated that he was unable to communicate with his attorneys, and that they were attempting to “convict me more than the State is right now.” He further claimed that his attorneys refused to interview certain individuals with whom the police spoke in connection with the murders. When the court inquired as to the basis for defendant’s belief that these individuals gave statements to the police, he responded: “It comes around. You hear it, you check it out, you find out. That’s all I can tell you about it.” Defendant conceded that no one ever informed him that the individuals he wished to have interviewed spoke with the police.
In response to defendant’s motion, the State represented to the court that, during his previous murder trial, defendant also moved to dismiss his counsel on the date of trial, claiming he was unable to communicate with the attorneys appointed to represent him. Defendant did not dispute this representation.
At the conclusion of the hearing, the court denied defendant’s motion, finding that he failed to provide any basis upon which the court should appoint other counsel.
During another hearing conducted on the afternoon of October 1, 1985, defendant informed the court that he refused to accept Messrs. Andreano and Orloff as his attorneys; he refused to represent himself; and that he intended to absent himself from the proceedings. The court advised defendant that he had a right not to be present during trial, but that he would require his counsel to conduct the defense.
On October 2, 1985, the date scheduled for jury selection, defendant changed his mind and appeared in court. Since it was unclear at that time whether he intended to proceed pro se, or to absent himself from the proceedings, the court gave defendant the following admonishments:
“THE COURT: Mr. Johnson, you had previously been represented in this cause by privately retained counsel, Mr. Swano, is that correct? ***
MR. JOHNSON: Original counsel in this case, yes.
THE COURT: Okay, and during the time that Mr. Swano represented you, he advised you of the charges against you, did he not?
MR. JOHNSON: Yes.
THE COURT: Four separate distinct felony murder charges, as well as four murder charges involving four different people, is that correct?
MR. JOHNSON: Yes.
THE COURT: Allegedly occurring at a ceramic shop on East Cass Street. He also informed you as to the possible sentence or sentences that could be imposed if you were found guilty of any or all of these charges, is that correct?
MR. JOHNSON: Yep.
THE COURT: You are aware that they are capital cases? In other words, if the State, upon conviction of any of these charges, could request, and did, in fact, indicate early in this cause that they were going to seek a death sentence hearing in the event of any conviction, is that correct?
MR. JOHNSON: True.
THE COURT: So that you’re fully aware of that?
MR. JOHNSON: I am.
THE COURT: You’re also fully aware that you are entitled to be represented by a lawyer, that your original lawyer retained by you or your family was allowed to withdraw when it developed that certain monetary arrangements could not be completed by you or your family, and that you insisted that he be allowed to withdraw because in your words you didn’t think if he wasn’t getting paid he would do the maximum effort in your behalf, is that a correct statement?
MR. JOHNSON: True.
THE COURT: Following the allowance of that withdrawal, the Court appointed [the] Public Defender and indicated Mr. Sam Andreano, Public Defender, would be one of the counsel representing you, and that you had no objection at that time to Mr. Andreano, is that a correct statement?
MR. JOHNSON: True.
THE COURT: And that that appointment was made, sir, on December 19th of 1984, that is the date that Mr. Swano [was] relieved and that is the same date that Mr. Andreano was appointed with certain restrictions on Mr. Andreano, at your request, that Mr. Alex Bonds and Mr. Ira Goldstein, Assistant Public Defenders, would not be assigned to the case in any way, is that correct?
MR. JOHNSON: True.
THE COURT: And that from that December 19th, 1984, up until September 30, 198[5], there had been no request by you *** to remove Mr. Andreano and Mr. Richard Orloff from representing you. The first motion or indication of any dissatisfaction was on September 30th, is that correct?
MR. JOHNSON: True.”
The court then asked defendant whether he still wished to absent himself from the proceedings. Defendant responded that he did “not know” but that he would decide after talking further with Mr. Andreano. The court then recessed the proceedings to allow defendant an opportunity to consult with his counsel.
When court reconvened shortly thereafter, Mr. Orloff stated that he and Mr. Andreano spoke with defendant and that they would continue to represent him. However, when the court asked defendant if he was accepting them as his counsel for the duration of the trial, he stated that he was not. The court again inquired of defendant whether he intended to proceed pro se, and he responded that “[Tjhese counsel and I are trying to get an understanding. That’s the only thing I can say about these counsels right now.”
At the conclusion of the hearing, defendant represented that he was willing to communicate with his counsel. Accordingly, the court continued the proceedings until the following day to allow him a further opportunity to consult with them.
When court reconvened on October 3, 1985, Mr. Andreano stated that defendant refused to speak with him and that nothing “has been resolved nor can it be.” The court thereupon advised defendant that he would be required to proceed pro se, but that Messrs. Andreano and Orloff would be appointed as standby counsel “available for advice and consultation at all times during the course of this trial.” The trial was continued until November 12, 1985, to provide defendant with an opportunity to review the discovery and prepare for trial.
On November 12, 1985, the court again asked defendant whether he would accept Messrs. Andreano and Orloff as his attorneys. At that time, defendant indicated that he would prefer to have them represent him than to proceed pro se. Defendant also advised the court that he believed his prior counsel, Mr. Swano, failed to tender to his current counsel all of the discovery materials pertaining to the case. The court thereupon continued the case to subpoena Mr. Swano and hold a hearing on defendant’s claim.
Mr. Swano appeared in court on November 20, 1985, at which time an extensive hearing was conducted. The court determined that defendant’s allegations were unwarranted, and rescheduled the trial for the following day. The defendant again advised the court that he was accepting Mr. Andreano, and a new assistant public defender, Kathleen Kallen, to represent him. At Mr. Andreano’s request, the court continued the trial date to allow defendant further opportunities to consult with his lawyers, and to file any desired pretrial motions.
On November 26, 1985, during a hearing on various motions, defendant advised the court that he did not agree with a proposed stipulation his attorneys intended to enter into with the State regarding certain evidence. As a result, he again refused to be represented by his counsel and informed the court that he would not be present for the trial. The court thereupon reappointed Mr. Andreano and Ms. Rallen as standby counsel.
The case was continued until December 2, 1985. On that date, defendant inquired about the types of matters as to which he could consult with standby counsel. The court responded that they could advise him with respect to voir dire questions and the examination of witnesses, and they would aid in the preparation of any subpoenas defendant wished to issue. The court advised defendant that standby counsel could not conduct any witness examinations.
During another hearing held later that afternoon, the court again admonished defendant that the offenses charged could be the basis for imposition of the death penalty. The court also advised defendant that if he were convicted, he could receive a death sentence because of his prior murder conviction. Finally, the court explained to defendant the two phases of the death penalty hearing and stated that, in the event the jury did not impose the death sentence, “the Court will give the number of years” for which defendant would be incarcerated. The court failed to apprise defendant that, as a result of his prior murder conviction, life imprisonment was the minimum sentence that could be imposed if he were convicted of any of the offenses charged.
On December 3, 1985, the court conducted a hearing relative to the parties’ proposed voir dire questions. Two of the questions prepared by standby counsel, and reviewed by defendant, related to the jurors’ attitude toward life imprisonment as a penalty for the offense of murder. In defendant’s presence, the State objected to these proposed questions, stating: “If the Defendant is convicted, it’s [life imprisonment] a mandatory sentence ***.” Defendant agreed to omit these two questions.
The trial commenced after several days of jury selection. Defendant questioned the prospective jurors, delivered an opening statement, argued evidentiary issues, cross-examined the State’s witnesses, and called several witnesses to testify on his behalf. Although defendant’s standby counsel were present, throughout the trial, the record does not disclose whether they actually assisted defendant during the course of the proceedings.
Defendant initially contends that he did not knowingly and intelligently waive his right to counsel during the guilt phase of the trial where he was not properly admonished in accordance with our Rule 401(a) (107 Ill. 2d R. 401(a)). In a related contention, he argues that his sixth amendment right to counsel was violated because the trial court incorrectly advised him as to the minimum sentence that would be imposed in the event he was convicted. The State responds that Rule 401(a) admonishments were unnecessary because defendant did not actually waive his right to counsel. In the alternative, it is argued that even if the admonishments were required, the trial court substantially complied with Rule 401(a).
Supreme Court Rule 401(a) provides, in relevant part:
“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, E he is indigent, to have counsel appointed for him by the court.” 107 Ill. 2d R. 401(a).
We note initially that defendant failed to raise this issue in his pro se post-trial motion. “The general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues.” People v. Precup (1978), 73 Ill. 2d 7, 16, citing People v. Pickett (1973), 54 Ill. 2d 280.
Further, we find that, under the circumstances of this case, defendant was properly admonished in accordance with Rule 401(a).
Contrary to defendant’s contention, the record reveals that he was informed of the “nature of the charges” against him. The trial court specifically advised defendant that he was charged with “four separate *** felony murder charges, as well as four murder charges involving four different people,” and that the offenses occurred “at a ceramic shop on East Cass Street.” Moreover, defendant was furnished with a copy of the indictment, and informed the trial court that he was “familiar with it.” He further represented that his original counsel, Mr. Swano, also informed him as to the nature of the charges. Defendant never indicated to the trial court that he did not understand the charges, and he does not make that claim here.
We do agree with defendant that he was not specifically advised by the trial court that, because of a previous murder conviction, he faced a mandatory minimum sentence of life imprisonment upon conviction of any of the offenses here charged. He contends that, in the absence of a strict, technical compliance with Rule 401(a), any waiver of counsel will automatically be invalid and the alleged error reversible. (E.g., People v. Derra (1981), 92 Ill. App. 3d 1106; People v. Montoya (1981), 94 Ill. App. 3d 6; People v. Brown (1980), 80 Ill. App. 3d 616.) The State, in turn, directs our attention to several appellate court cases which hold that substantial compliance with Rule 401(a) is sufficient. E.g., People v. Black (1979), 68 Ill. App. 3d 309; People v. Pittman (1979), 75 Ill. App. 3d 683; People v. Jackson (1978), 59 Ill. App. 3d 1004.
We believe that where, as here, a review of the entire record indicates that defendant’s waiver of his right to counsel was made knowingly and voluntarily, and the sole admonishment which he did not receive in no sense prejudiced defendant’s rights, substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of counsel. Further, under the circumstances of this case, we find that the trial court’s admonishments substantially complied with the Rule.
The trial court advised defendant of his right to be represented by counsel, informed him of the charges and where the offenses took place, explained to him the phases of the death penalty hearing and his right to a jury during those phases of the proceeding. Defendant was also fully and repeatedly admonished regarding the possibility that he might receive a death sentence, both because of his prior murder conviction and because of the nature of the offenses charged. Although the trial court did not advise defendant that life imprisonment was the minimum penalty to which he would be subjected in the event he was convicted of the charges, the record reveals that he was aware of this penalty.
As previously noted, defendant reviewed the voir dire questions drafted by his attorneys, two of which referred to life imprisonment as a punishment for the offenses charged. In defendant’s presence, the State objected to these proposed questions on the ground that life imprisonment was a “mandatory sentence.” Contrary to defendant’s claim, we do not believe that the fact he subsequently agreed to omit these questions indicates that he did not realize he could receive a sentence of life imprisonment.
We note in this connection that defendant does not claim he was unaware of the potential penalties in the event he was convicted of the charges. Indeed, he was initially represented by privately retained counsel, and defendant represented to the court that his attorney informed him of the possible penalties that could be imposed if he were found guilty on any or all of the charges.
Moreover, the record reveals that defendant is no stranger to criminal proceedings. He had previously been tried and convicted for aggravated battery, burglary and rape, and was incarcerated for those offenses from 1970 until March of 1983. Subsequently, he was convicted of murder, attempted murder, rape, aggravated kidnapping, and deviate sexual assault arising out of an incident occurring on July 17, 1983. This court upheld his death sentence in that case in 1986. (People v. Johnson (1986), 114 Ill. 2d 170.) Defendant was represented by counsel throughout the proceedings which culminated in his death sentence, and, as demonstrated by the foregoing, had ample opportunity to become acquainted with his right to counsel. Cf. People v. Hall (1986), 114 Ill. 2d 376, 412-13 (it is “reasonable to conclude” that defendant was aware of the requirement that the jury reach a unanimous decision on the death sentence since he “had the experience” of four prior felony convictions); People v. Albanese (1984), 104 Ill. 2d 504, 536 (since defendant had already been sentenced to death by a jury in a related case, he was “familiar with the jury’s function at the sentencing hearing”).
Finally, it is clear that defendant suffered no prejudice as a result of the trial court’s failure to specify the minimum penalty to which he would be subjected in the event of his conviction. Defendant was fully apprised that he could receive the death penalty, and that was, in fact, the punishment imposed. We note in this connection that he does not assert his decision to waive counsel would have been different had he been specifically admonished regarding the possibility of a sentence to life imprisonment and our review of the record, including his alleged reasons for choosing to represent himself, indicates that he could make no such claim. Cf. People v. Hall (1986), 114 Ill. 2d 376, 412 (“It is apparent that the requirement that a jury reach a unanimous decision on the death sentence played no part in [defendant’s] jury waiver, and we will not find error in the court’s failure to admonish [him] of the requirement”).
It is our view, based on the record, that the trial court did what it could to accommodate defendant during the entire course of the proceedings. Defendant, on the other hand, engaged in conduct designed to impede and delay those proceedings. As previously noted, at defendant’s request, the trial court allowed his privately retained counsel to withdraw from the case, and appointed Mr. Andreano of the public defender’s office to represent him. At the time of the appointment, defendant stated that he would be “more.than satisfied” if Mr. Andreano served as his counsel. Then, several months later, on the eve of trial, defendant advised the court that he wished to have new counsel appointed from “outside” Will County and not affiliated with the public defender’s office. When the request was denied because defendant failed to provide any basis for the appointment of new counsel, defendant stated that he would not “accept” his current counsel, he would not represent himself, and he intended to absent himself from the proceedings.
The next day, having apparently changed his mind, defendant appeared in court. However, he refused to represent to the trial court whether or not he intended to proceed pro se. On several occasions, defendant attempted to delay and manipulate the proceedings by refusing the services of his counsel and refusing to represent himself.
We recognize, of course, the importance of a defendant’s right to counsel. However, we cannot countenance use of that right in a manner which appears calculated to “thwart the administration of justice or to otherwise embarrass the effective prosecution of crime.” (People v. Myles (1981), 86 Ill. 2d 260, 268.) As this court recently stated in People v. Taylor (1984), 101 Ill. 2d 508, 523, wherein defendant claimed he was denied the effective assistance of counsel:
“Defendant repeatedly interfered with counsel’s efforts to represent him competently, and attempted to delay the proceedings on several occasions by asserting his inability to obtain counsel and his desire to waive counsel and appear pro se. *** Our system of criminal justice simply could not function were we to permit defendants, indigent or otherwise, to intentionally hamper counsel’s efforts to represent them and later plead the resulting ineffectiveness of counsel as a grounds for reversal.”
See also People v. Hall (1986), 114 Ill. 2d 376, 403-04; People v. Friedman (1980), 79 Ill. 2d 341, 349.
Similarly, a defendant should not be permitted to frustrate the trial court’s efforts to conduct an orderly, fair and expedient trial, and then benefit from an alleged error by the court which he invited through his own conduct.
In addition to the foregoing, we believe the admonishments defendant received in this case were sufficient since, although he represented himself, he had the benefit of standby counsel “for advice and consultation at all times during the course of [the] trial.” Whether or not defendant actually chose to avail himself of their services, and the extent to which counsel in fact participated in the proceedings is not, as defendant suggests, the relevant inquiry.
In People v. Myles (1981), 86 Ill. 2d 260, the defendant similarly had his privately retained counsel removed from the case, refused to proceed pro se, and stated that he did not desire the services of the public defender whom the court had appointed. The trial court refused to allow the assistant public defenders to withdraw, and they were available to advise defendant throughout the trial. Although they apparently tendered advice to defendant, they did not participate- in the trial. In determining that Rule 401(a) was inapplicable under these circumstances, this court held:
“Here defendant clearly and repeatedly declined to undertake his own representation. *** Defendant’s refusal to heed the advice or employ the services of appointed counsel did not necessitate that the circuit court admonish defendant in accordance with Rule 401(a).” 86 Ill. 2d at 269.
Defendant invites us to reconsider our holding in Myles in light of the United States Supreme Court’s subsequent decision in McKaskle v. Wiggins (1984), 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944. We decline to do so as McKaskle is not apposite to the issue before us.
In McKaskle, the Court held that defendant’s sixth amendment right to self-representation was not violated by the trial court’s appointment of standby counsel over defendant’s objection. In so holding, the Court stated that a defendant who wishes to proceed pro se must “preserve actual control over the case,” and “participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that defendant is representing himself.” In proceedings outside the jury’s presence, defendant must be able to “address the court freely on his own behalf” and any disputes between him and his counsel should be resolved in his favor. 465 U.S. at 178-79, 79 L. Ed. 2d at 133-34, 104 S. Ct. at 951.
Defendant is apparently arguing that, based upon McKaskle, he in fact proceeded pro se despite the appointment of standby counsel, and thus compliance with Rule 401(a) was necessary. However, McKaskle did not address the issues of when a defendant will be deemed to waive counsel and what specific admonishments are necessary in the event he does. That case was concerned only with the extent to which standby counsel may participate in the proceedings consistent with defendant’s right to represent himself.
In a related contention, defendant asserts that his alleged waiver of counsel violated the sixth amendment because he was misled by the trial court’s statement that he could be incarcerated for a “number of years” when, in fact, the minimum penalty was life imprisonment. As previously noted, this comment was made in the context of the trial court’s explanation to defendant as to the role of a jury in the death sentencing hearing. The court informed defendant that it was the jury’s province to recommend the death penalty and, if it chose not to do so, it was the court’s responsibility to determine the length of defendant’s prison sentence. This remark was an accurate explanation of the roles of the judge and jury during the sentencing phase of the proceeding. Thus, defendant’s argument is reduced again to the contention that he was not advised that life imprisonment was the minimum applicable penalty in the event he was convicted. For the same reasons that the failure to so admonish defendant did not violate Rule 401(a), under the facts of this case, we do not believe defendant’s sixth amendment rights were violated.
Defendant cites several Federal court cases for the proposition that his alleged waiver of counsel was not “knowing” or “voluntary” because he was not accurately advised of the range of possible punishments. (Von Moltke v. Gillies (1948), 332 U.S. 708, 92 L. Ed. 309, 68 S. Ct. 316; Molignaro v. Smith (5th Cir. 1969), 408 F.2d 795; Meadows v. Maxwell (6th Cir. 1967), 371 F.2d 664; Gannon v. United States (6th Cir. 1953), 208 F.2d 772.) In each of these cases, contrary to the instant case, the defendants both waived their right to counsel and, without benefit of counsel, pled guilty to the charges against them. Moreover, the admonishments the defendants received in those cases fall far short of those which defendant here received.
We do not mean to imply by our holding that trial courts may disregard the admonishments set forth in Rule 401(a). It would have been preferable, in the instant case, if the court recited to defendant each of those admonishments. We hold only that, considering all of the circumstances of this case, defendant was sufficiently admonished in accordance with Rule 401(a). Cf. People v. Stewart (1984), 101 Ill. 2d 470, 485-87 (the trial court substantially complied with Rule 402, relating to guilty pleas, although it did not specifically advise defendant of the nature of the charge against him or the minimum penalty applicable in the event he was convicted).
Defendant further contends that his convictions should be reversed because the prosecutor made two comments during closing argument in the guilt phase of the trial which allegedly denied him his right to a fair trial. Neither of the comments as to which defendant assigns error was objected to at trial. Thus, as the State points out, defendant would ordinarily be precluded from raising these issues on appeal. People v. Hall (1986), 114 Ill. 2d 376, 418; People v. Lewis (1981), 88 Ill. 2d 129, 149 (objections to prosecutor’s argument not raised are waived).
However, defendant did raise, in his pro se post-trial motion, that “prejudicial, inflammatory” remarks were made by the prosecutor during his closing argument. Moreover, during the April 10, 1986, hearing on defendant’s motion, he specifically referred to the two remarks which he now asserts were improper. Accordingly, we have considered the comments which defendant contends constitute prejudicial error.
Defendant initially argues that the prosecutor’s characterization of him as an “animal” was an improper attempt to inflame and prejudice the jury. Specifically, the prosecutor made the following remark during closing argument:
“Mr. White: What you have heard in this case was how five people became involved in Greenware by Merry [sic], the ceramic shop on East Cass Street on August 20, 1983.
Four of those people were butchered by an animal, and that animal is among us today, and he sits right there. (Indicating.)”
This court has consistently “emphasized that prosecutors may not engage in inflammatory” arguments designed solely to arouse the passions of the jury. (People v. Bryant (1983), 94 Ill. 2d 514, 523, citing People v. Whitlow (1982), 89 Ill. 2d 322.) Indeed, this court has specifically held that it is improper to characterize a defendant as an “animal,” even where that characterization is based on the evidence. (People v. Mackey (1964), 30 Ill. 2d 190; People v. Elder (1962), 25 Ill. 2d 612. Accord, Darden v. Wainwright (1986), 477 U.S. 168, 91 L. Ed. 2d 144, 106 S. Ct. 2464.) Nevertheless, “[i]mproper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused.” People v. Tiller (1982), 94 Ill. 2d 303, 321, quoting People v. Baptist (1979), 76 Ill. 2d 19, 29. See also People v. Johnson (1986), 114 Ill. 2d 170, 199 (improper prosecutorial comments which are not a material factor in defendant’s conviction do not constitute reversible error).
Here, the jury was specifically instructed that closing arguments are not evidence, and to disregard any statements made during arguments which were not based on evidence. Prior to commencing his closing argument, the prosecutor also informed the jury that “what I say here in argument is not evidence.” We note additionally that the comment, to which defendant did not object, was an isolated remark and was not dwelled upon further by the prosecutor.
Moreover, the evidence presented at trial was not “closely balanced.” (People v. Carlson (1980), 79 Ill. 2d 564, 576-77.) Indeed, defendant does not even contend that the evidence was insufficient to establish his guilt beyond a reasonable doubt.
The record reveals that three of the victims, Pamela Ryan, Anna Ryan, and Barbara Dunbar, drove to the ceramic shop on the morning of the murders in a 1977 Chevrolet Blazer belonging to Pamela Ryan and her husband. The Blazer was discovered later that afternoon at a nearby car wash. The testimony from various police officers and investigators established that two of defendant’s fingerprints were found on the vehicle, one of which was recovered from an apparent bloodstain on the gear shift.
Photographs were taken of footprint impressions discovered at the scene of the murders' and in the area where the Blazer was parked at the car wash. The footprints were made by a gym shoe with a diamond-shaped pattern, and could have been made by a size 10 or 11 shoe. The diamond pattern was identical to the one depicted on the soles of a pair of size 10 or 11 Converse All-Star gym shoes recovered from the home of D.M. and S.M., with whom defendant was residing. Defendant wore size 11 shoes.
In addition, three .357-magnum-caliber shells with a Lubaloy coating were recovered from the home in which defendant resided. Bullet fragments discovered at the scene of the murders also had a Lubaloy coating, which one witness testified was an “unusual” ammunition coating. While the fragments were unsuitable for further comparison, they could have been fragments from a .357-caliber bullet.
Three of the victims’ purses, which contained virtually no money, were discovered in a creek located about three-tenths of a mile from Jim’s Pool Hall in Joliet. Testimony revealed that defendant was gambling at that pool hall on the afternoon of the murders, at which time he had approximately $500 in cash. Other evidence revealed that the victims had $500 to $600 in cash in their purses on the morning of the murders.
Finally, defendant is a black man and two Negroid hair fragments were recovered from a blood-stained cloth found near one of the victim’s bodies. Although one witness, apparently a black woman, testified that she visited the ceramic shop a few days before the murders, she stated that she did not use that cloth.
We are cognizant that some conflicting testimony was presented at trial, and that the evidence against defendant was circumstantial. We also recognize that he pro-" duced two witnesses who claimed to have seen an individual other than defendant operating the Ryans’ vehicle on the afternoon of the murders. Nevertheless, after a careful review of the record, we are convinced that the improper comment did not constitute a material factor in defendant’s convictions or deprive defendant from receiving a fair trial. We therefore conclude that the remark did not constitute reversible error.
Defendant further claims that, during his closing argument, the prosecutor improperly asserted his personal opinion, and argued facts which were not based on evi-' dence, in an alleged effort to discredit a principal defense witness. In order to address defendant’s contention, it is necessary to briefly review the relevant testimony adduced at trial.
S.K. testified for the defense that during the afternoon of August 20, 1983, while driving in the vicinity of East Cass Street, she observed a red and white Blazer with license plate number RR650, which other evidence indicated was the license number of the Ryans’ vehicle. She stated that the vehicle was operated by a Caucasian male with “sandy-blond hair, about shoulder-length, and in his early twenties.”
On cross-examination, K. stated that she underwent hypnosis several weeks subsequent to the murders. Prior to being hypnotized, she was unable to describe the driver of the Blazer.
During the State’s rebuttal, David Simpson, a sergeant with the Will County sheriff’s office, testified that he interviewed K. in connection with her observation of the Blazer. K. personally pointed out to him the locations where she observed the vehicle. According to the measurements Simpson obtained, K. was approximately 580 feet from the Blazer at the time she first observed it. She was 850 feet from the vehicle when she first observed the license plate. Simpson also testified that the letters on a license plate are approximately three inches in height.
With reference to K.’s observation of the Blazer, the prosecutor made the following remark during closing argument:
“Mr. White: She first saw the Blazer at 580 feet, as it was measured, and then saw a license plate from a distance of 850 feet.
Now, the letters or numbers on a license plate are two inches, three inches high. From 850 feet, if you take the standard print, approximately one eighth of an inch in a magazine print. Since there are 24 one eighths to three inches, one is to 24 as what is to 850 feet, and if you work that proportion out, it would be similar to reading a magazine from a distance of 35.4 feet, and you can hold a magazine at 35.4 feet, and it is literally impossible to read, absolutely impossible to read that magazine.
You can’t read it from 600 feet. A license plate, which would be the same as 25 feet, if you take it even to 300 feet, that’s reading a magazine from 12-and-a-half feet, and that, too, is impossible.”
We agree with defendant that it is improper for a prosecutor to express his personal opinion or to argue facts which are not based on any evidence. (People v. Weaver (1982), 92 Ill. 2d 545; People v. Beier (1963), 29 Ill. 2d 511.) However, it is perfectly permissible for the prosecutor to state an opinion which is based on the record, or on a legitimate inference derived therefrom. E.g., People v. Johnson (1986), 114 Ill. 2d 170; People v. Owens (1984), 102 Ill. 2d 88; People v. Bryant (1983), 94 Ill. 2d 514.
Contrary to defendant’s contention, the prosecutor’s opinion that the license plate would have been “impossible” to read was based on testimony relating to the distance from which K. claimed to have observed the plate, and the height of the letters appearing on the license plate. The prosecutor’s comparison between reading a license plate and a magazine, even if the jury could comprehend it, did not, as defendant suggests, “so [infect] the trial with unfairness as to make the resulting conviction[s] a denial of due process.” Darden v. Wain wright (1986), 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157, 106 S. Ct. 2464, 2472.
Having determined that no reversible error occurred during the guilt phase of defendant’s trial, we next consider allegations of error at the sentencing proceeding.
Defendant initially contends that he did not knowingly and intentionally waive his right to counsel during the sentencing hearing and the hearing on his post-trial motion. We note that defendant failed to raise this issue in the trial court. (See People v. Precup (1978), 73 Ill. 2d 7, 16.) Further, we believe that defendant’s sixth amendment rights were not violated by the trial court’s failure to repeat at the subsequent proceedings the same admonishments it gave him prior to trial.
At the commencement of the sentencing proceeding, defendant informed the court that he waived his right to a jury, “and any defense in this sentencing phase, and I will be absenting myself from the sentencing phase of the trial.” The trial court then advised defendant that he could return to the courtroom when he desired, and that he was entitled to cross-examine any of the witnesses and to consult with standby counsel, who would be present for the proceedings. Defendant was subsequently placed in a room where he could listen to the proceedings through an audio system. The record does not reveal whether counsel actually assisted defendant; however, he did cross-examine a witness at length and objected to the admission of certain evidence.
Since we have previously held that the admonishments defendant received prior to trial were sufficient, the precise issue here is whether his alleged waiver of counsel at that time was operative during all subsequent proceedings. Under the circumstances of this case, and based upon this court’s decision in People v. Baker (1982), 92 Ill. 2d 85, we hold that it was.
In Baker, the defendant appeared for his arraignment on a murder charge with court-appointed counsel, and informed the trial court that he did not wish to be represented by an attorney. The court advised him, as it did on other occasions, that he had a right to counsel at all stages of the proceedings. Defendant persisted in his refusal to be represented by counsel, and entered a plea of guilty to the charge. Approximately two weeks later, defendant appeared at his sentencing hearing without counsel, and received a term of 30 years to life imprisonment.
The appellate court concluded that defendant was entitled to a new sentencing hearing because the court failed to again advise him at the sentencing hearing of his right to counsel. This court reversed, concluding that the trial judge was not “required to renew the offer of counsel or ascertain whether defendant had changed his mind when he appeared for sentencing two weeks later.” (92 Ill. 2d at 91.) In so holding, this court noted:
“The greater number of courts considering the precise issue here presented have held that a competent waiver of counsel by a defendant once made before the court carries forward to all subsequent proceedings unless defendant later requests counsel or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.” (Emphasis added.) 92 Ill. 2d at 91-92.
Here, of course, defendant did not change his mind and later request counsel and, contrary to his claim, there is nothing in the record which suggests that he only intended to represent himself during the guilt phase of the trial. Moreover, we do not agree with defendant’s claim that Baker is distinguishable because there, unlike in the instant case, the trial court specifically stated that he was entitled to an attorney “at all stages of the proceeding.”
The trial court specifically advised defendant that he had a right to be represented by an attorney, and did so in the context of apprising him that he was charged with capital offenses for which the State could seek the death penalty. In addition, as previously noted, defendant had already been convicted of murder and sentenced to death in another case, and was represented by counsel throughout those proceedings. Thus, he became familiar with his right to counsel during post-trial proceedings. Further, the fact that defendant had standby counsel present during those proceedings belies any claim that he was unaware of his right to counsel.
Defendant further asserts that the “continuing waiver” doctrine adopted in Baker and the several cases cited therein should be rejected as contrary to the holding in Chessman v. Teets (1957), 354 U.S. 156, 1 L. Ed. 2d 1253, 77 S. Ct. 1127. We disagree, as that case is factually inapposite.
In Chessman, the defendant chose to represent himself during the trial proceedings, although the court advised him of his right to counsel. Subsequent to the proceedings, the official court reporter for the case died, and the testimony was transcribed by other reporters. A hearing was conducted on settlement of the transcript, which constituted the record upon which the State supreme court would decide defendant’s appeal. Counsel for the State was present; however, despite his request, defendant was not permitted to participate in the hearing. An attorney was not appointed to attend the hearing on his behalf. The United States Supreme Court held that where defendant’s request to appear pro se in the settlement proceeding was denied, it was incumbent on the court to appoint him counsel for the proceeding despite defendant’s waiver of counsel at trial. The failure to do so rendered the ex parte hearing a denial of due process.
Similarly, the remaining cases upon which defendant primarily relies for the proposition that the “continuing waiver” rule is invalid are distinguishable from the instant case. In Rini v. Katzenbach (7th Cir. 1968), 403 F.2d 697, the trial court failed to advise defendant of his right to counsel at any stage of the proceedings, including the sentencing hearing where defendant attempted to withdraw, a previously entered guilty plea. In both Davis v. Holman (5th Cir. 1965), 354 F.2d 773, and Tobin v. United States (7th Cir. 1968), 402 F.2d 307, defendants, without benefit of counsel, changed their pleas from not guilty to guilty. Finally, in Williams v. Alabama (5th Cir. 1965), 341 F.2d 777, the court merely held that an effective waiver of counsel at trial could not operate retroactively to cure the trial court’s failure to offer the defendant counsel at his arraignment. The court further noted that defendant was prejudiced by not having counsel at the arraignment to plead a potentially meritorious insanity defense.
Here, of course, we are not confronted with the situation wherein a defendant who previously waived counsel later chooses to enter a guilty plea without benefit of an attorney’s advice. Since the facts in this case do not reveal any change in circumstances which might trigger the necessity to admonish defendant anew, his alleged waiver of counsel prior to trial was operative throughout the subsequent proceedings.
Defendant next asserts that because there is some “residual doubt” of his guilt, imposition of a death sentence is “inappropriate and excessive.” Again, defendant failed to raise this issue in the trial court. In any event, even assuming that “residual” or “whimsical” doubt were a factor warranting a lesser penalty, there is simply no evidence in the record that the trial court harbored any such doubt with respect to defendant.
The court presided over defendant’s trial and was the sentencing authority during the death penalty hearing. Based on the evidence before him, and after considering all aggravating, and mitigating circumstances, the court determined that- the death penalty was appropriate. Given defendant’s prior serious criminal history, and the multiple offenses involved in this case, we do not agree that imposition of the death penalty upon defendant was excessive.
Defendant further contends that he was denied the opportunity to confront witnesses against him during the second phase of the sentencing hearing when the trial court allowed into evidence the hearsay testimony of John Meduga, an investigator with the Illinois Department of State Police, and C., a witness to one of defendant’s previous offenses.
C. testified, inter alia, that he and his companion P.W. were accosted in her automobile on the evening of February 15, 1970, by an individual “later identified” as the defendant. He stated that defendant took his wallet, struck P.W. repeatedly, burned her with a cigarette lighter, and sexually assaulted her.
Officer Meduga testified that he interviewed P.P. in connection with a July 1983 incident in which she was kidnapped, raped and stabbed and her companion, Anthony Hackett, was shot to death. Meduga stated that P. identified defendant as the perpetrator of the offenses. He also stated that bullets recovered from the scene of the offense and from Hackett’s body were identified by an employee of the State crime lab as .357-magnum Lubaloy bullets.
We note initially that defendant failed to object to this testimony, and did not raise the admission of this evidence as error in his post-trial motion. Thus, the alleged errors would normally be deemed waived. See People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Precup (1978), 73 Ill. 2d 7, 16.
Further, “it is well settled that a defendant in a capital case has no due process right to cross-examine all out-of-court sources of information relied upon in sentencing.” (People v. Jones (1982), 94 Ill. 2d 275, 286, citing Williams v. New York (1949), 337 U.S. 241, 250-51, 93 L. Ed. 1337, 1343-44, 69 S. Ct. 1079, 1085. But see Proffitt v. Wainwright (11th Cir. 1982), 685 F.2d 1227, 1253-54 (defendant was entitled to cross-examine a physician-witness before his report could be used in determining sentence).) Thus, hearsay testimony is not “per se” inadmissible during the second phase of a sentencing proceeding (People v. Hall (1986), 114 Ill. 2d 376, 417; People v. Morgan (1986), 112 Ill. 2d 111, 143), even where there has been no showing that the declarant is unavailable to testify. See People v. Szabo (1986), 113 Ill. 2d 83, 94-95; People v. Del Vecchio (1985), 105 Ill. 2d 414, 437-38.
The “factors controlling the admissibility of evidence at a capital sentencing hearing are relevance and reliability.” (People v. Hall (1986), 114 Ill. 2d 376, 416; People v. Eddmonds (1984), 101 Ill. 2d 44, 65.) Defendant does not, nor could he, contend that the evidence was irrelevant or unreliable. The testimony by both witnesses related to prior violent criminal offenses for which defendant was convicted.
Finally, we note that even if the evidence was erroneously introduced, the sentencing hearing was conducted by a trial judge acting without a jury, and he “is presumed to consider only competent and relevant evidence in determining sentence.” People v. Johnson (1986), 114 Ill. 2d 170, 205, quoting People v. Morgan (1986), 112 Ill. 2d 111, 144.
Defendant next asserts that the trial court’s alleged belief that it could not consider sympathy or prejudice in imposing sentence violated the eighth and fourteenth amendments of the United States Constitution. Defendant apparently refers to Instruction 1.01(5) of the Illinois Pattern Jury Instructions, Criminal, No. 1.01(5) (2d ed. 1981), which requires the trier of fact to base its verdict on the evidence and not on any sympathies or prejudices which may exist.
Once again, defendant did not raise this issue in the trial court. Moreover, this court has previously rejected his claim (People v. Morgan (1986), 112 Ill. 2d 111, 145-46), and the United States Supreme Court has now upheld as constitutional an instruction to the jury in a capital sentencing hearing not to consider, inter alia, “sympathy” or “prejudice.” California v. Brown (1987), 479 U.S. 538, _, 93 L. Ed. 2d 934, 938, 107 S. Ct. 837, 838.
Nevertheless, defendant urges that we reconsider our prior holding in light of Caldwell v. Mississippi (1985), 472 U.S. 320, 330, 86 L. Ed. 2d 231, 240, 105 S. Ct. 2633, 2640, wherein the Supreme Court noted that “compassionate factors” are permissible considerations in capital cases. This court, too, “has acknowledged that mercy is a relevant factor for consideration at a capital sentencing hearing, but it is to be considered within the context of all factors in aggravation and mitigation.” (People v. Hall (1986), 114 Ill. 2d 376, 416, citing People v. Holman (1984), 103 Ill. 2d 133, 170.) In the instant case, the record reveals that the trial court did consider mercy for the defendant, but determined that there were no factors which warranted it, or which justified imposition of a sentence other than the death penalty.
Finally, defendant raises numerous contentions concerning the constitutionality of the death penalty statute which were not raised in his post-trial motion and which have already been resolved. This court has determined that the statutory grant of discretion and authority to the prosecutor is proper (People v. Davis (1983), 95 Ill. 2d 1; People v. Brownell (1980), 79 Ill. 2d 508); that the statute provides for adequate review to insure that sentences are not arbitrarily imposed (People v. Kubat (1983), 94 Ill. 2d 437); that the sentencing authority need not make written factual findings (People v. Del Vecchio (1985), 105 Ill. 2d 414); that defendants need not receive pretrial notice of all the aggravating factors upon which the State intends to rely (People v. Albanese (1984), 104 Ill. 2d 504); that the State is not required to prove the absence of mitigating factors beyond a reasonable doubt (People v. Perez (1985), 108 Ill. 2d 70); that the sentencing authority is not required to make a specific finding that death is the appropriate sentence (People v. Del Vecchio (1985), 105 Ill. 2d 414; People v. Walker (1985) 109 Ill. 2d 484); and that the statutory provision limiting application of the death sentence to defendants who do not require assistance to be fit for trial is not arbitrary (People v. Whitehead (1987), 116 Ill. 2d 425).
Defendant has provided no basis upon which this court should reconsider those holdings, but has instead referred us to the opinion of a Supreme Court justice who dissented from the denial of certiorari in two cases. We thus decline the invitation to overrule our previous decisions.
For the reasons stated herein, the judgment of the circuit court of Will County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, March 22, 1988, as the date on which the sentence entered in the circuit court of Will County is to be carried out. The defendant shall be executed by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 119—5). A certified copy of the mandate of this court shall be transmitted by the clerk of this court to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein defendant is confined.
Judgment affirmed.
[OPINION BY JUSTICE SIMON, type=concurrence]
JUSTICE SIMON,
concurring in part and dissenting in part:
I concur in the portion of the majority opinion affirming the defendant’s convictions. I dissent, however, from the imposition of the death sentence for the reasons stated in my separate opinion in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), based on my belief that the Illinois death penalty statute is unconstitutional and that the death sentence in this case should be vacated. See also United States ex rel. Lewis v. Lane (C.D. Ill. 1987), 656 F. Supp. 181, 195 (expressing “grave doubts” over the constitutionality of the Illinois death penalty statute); Eddmonds v. Illinois (1984), 469 U.S. 894, 896, 83 L. Ed. 2d, 207, 208, 105 S. Ct. 271, 272 (Marshall, J., dissenting) (urging review of the Illinois death penalty statute because “there are serious questions about the constitutionality of a scheme that gives the prosecutor the unbridled discretion to select, from the group of individuals convicted of an offense punishable by death, the subgroup that will be considered for death”); DeGarmo v. Texas (1985), 474 U.S. 973, 975, 88 L. Ed. 2d 322, 323, 106 S. Ct. 337, 338 (Brennan, J., dissenting) (quoting Gregg v. Georgia (1976), 428 U.S. 153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932) (“[t]he selection process for the imposition of the death penalty does not begin at trial; it begins in the prosecutor’s office. His decision whether or not to seek capital punishment is no less important than the jury’s. Just like the jury, then, where death is the consequence, the prosecutor’s ‘discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action’ ”); see Schnapper, The Capital Punishment Conundrum, 84 Mich. L. Rev. 715, 719 (1986) (quoting White, Book Review, Life in the Balance: Procedural Safeguards in Capital Cases (1984)) (“Any system that permits prosecutors to refrain from seeking the death penalty *** ‘will exhibit all of the vices that Furman found antithetical to the values of the Eighth Amendment’ ”); Bowers, The Pervasiveness of Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 74 J. Crim. L. & Criminology 1067 (1983) (arguing that prosecutors seek the death penalty for extralegal considerations); Note, State v. Wilson: The Improper Use of Prosecutorial Discretion in Capital Punishment Cases, 63 N.C.L. Rev. 1136, 1144 (1985) (concluding that “unbridled prosecutorial discretion permits arbitrary and capricious imposition of the death penalty”).
I also disagree with the majority’s apparent conclusion that because the sentencing hearing was conducted before a judge and not a jury (119 Ill. 2d at 149) the erroneous admission of evidence would be harmless error. Although there is a presumption that a judge considers only competent and relevant evidence in determining a sentence, it is a presumption only. My view is that if the evidence erroneously admitted is so prejudicial or voluminous as to draw into question any person’s ability-judge or jury — to completely discount the evidence, the presumption may be set aside. It defies common sense and human nature to simply presume that a judge would not be be affected by the introduction of such evidence.
For these reasons, I respectfully dissent.
(No. 70469.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILTON JOHNSON, Appellant.
Opinion filed February 18, 1993.
Michael J. Pelletier, Deputy Defender, and Karen Daniel, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Terence M. Madsen, Assistant Attorney General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE BILANDIC type=majority]
JUSTICE BILANDIC
delivered the opinion of the court:
The defendant, Milton Johnson, appeals from an order of the circuit court of Will County dismissing his petition for post-conviction relief. The defendant’s appeal lies directly to this court pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)).
Following a jury trial, the defendant was convicted in the circuit court of Iroquois County of the murder of Anthony Hackett and the attempted murder, rape, deviate sexual assault and aggravated kidnapping of P.P.. The defendant waived his right to a jury at the death penalty hearing. The trial court determined that one or more of the aggravating factors set forth in section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)) existed and that there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(g)). The court then sentenced the defendant to death for murder and to concurrent prison terms of 40 years for rape, deviate sexual assault and attempted murder. This court affirmed the defendant’s convictions and sentences on direct appeal (People v. Johnson (1986), 114 Ill. 2d 170), and the United States Supreme Court denied certiorari (Johnson v. Illinois (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618).
The defendant then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), by filing a pro se petition for post-conviction relief in the circuit court of Will County. The petition alleged that the defendant was deprived of the effective assistance of counsel. The court appointed the Will County public defender to represent the defendant in the post-conviction proceedings. Subsequently, the assistant public defender who was working on the defendant’s case resigned from the public defender’s office and was appointed to represent the defendant. On December 14, 1989, defendant’s counsel filed an amended post-conviction petition which realleged the allegations in the pro se petition and added two new allegations. The State moved to dismiss the post-conviction petition. Following arguments, the trial court granted the State’s motion and dismissed the defendant’s post-conviction petition without an evidentiary hearing. The defendant’s appeal from this dismissal was transferred to this court for direct review, pursuant to Supreme Court Rule 651 (134 Ill. 2d R. 651).
The facts of this case are adequately set forth in this court’s opinion on the defendant’s direct appeal (People v. Johnson (1986), 114 Ill. 2d 170) and will be repeated here only where necessary. Two issues are raised in this appeal: (1) whether the defendant received the effective assistance of counsel on direct appeal; and (2) whether the defendant received adequate representation in the post-conviction proceedings.
I
We first consider the defendant’s post-conviction claim that he was deprived of the effective assistance of counsel on direct appeal. The Post-Conviction Hearing Act (the Act) provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred in their trials. (People v. Eddmonds (1991), 143 Ill. 2d 501, 510.) The purpose of the post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction that have not been and could not have been adjudicated on direct appeal.
The defendant argues that the trial court should have granted him relief on his post-conviction claim that he was deprived of the effective assistance of counsel on direct appeal. The defendant initially claims, for the first time in this appeal, that his appellate counsel was ineffective in failing to challenge the trial court’s exclusion of photographs of his brothers. He claims that these photographs were relevant because they “resemble more closely” the police artist sketch than did the defendant. We decline to address this claim, as it was not raised in either the pro se or the amended petition for post-conviction relief, and was therefore waived. (People v. Flores (1992), 153 Ill. 2d 264, 274.) The defendant next claims that his appellate counsel was constitutionally ineffective because he failed to raise as an issue, on direct appeal, the trial court’s refusal to admit a police artist sketch of the offender into evidence at trial.
Challenges to the effectiveness of counsel on direct appeal are judged under the two-pronged standard enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (See People v. Albanese (1984), 104 Ill. 2d 504.) Under this standard, the defendant must first establish that his counsel’s performance on direct appeal was deficient, in that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Second, the defendant must demonstrate that he suffered prejudice as a result of his counsel’s deficient performance. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) To demonstrate prejudice, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A defendant who contends that appellate counsel was ineffective for failing to raise a particular issue on direct appeal must show that “the failure to raise that issue was objectively unreasonable” and that “but for this failure, his sentence or conviction would have been reversed.” (People v. Caballero (1989), 126 Ill. 2d 248, 270.) Both prongs of the Strickland test must be satisfied before counsel will be found to have rendered constitutionally ineffective assistance.
The trial court dismissed the defendant’s post-conviction challenge to the competency of his appellate counsel. The court found that the defendant had not made a substantial showing that his appellate counsel was incompetent, within the meaning of Strickland, for failing to challenge on direct appeal the trial court’s refusal to admit the police artist sketch into evidence. At trial, the defendant sought to introduce the police artist sketch into evidence for the purpose of impeaching the identification testimony of P.P., the surviving victim of the defendant’s attack. The defendant claimed that the sketch was prepared at P.’s direction and bore no resemblance to the defendant. The trial court refused to admit the sketch, finding that the defendant failed to lay a proper foundation for its admission. In so holding the trial court relied upon this court’s decision in People v. Yates (1983), 98 Ill. 2d 502.
Yates discussed the evidence necessary to establish a proper foundation for admission of a composite sketch into evidence for the purpose of impeaching a witness’ in-court identification of a defendant. The court there held that a proper foundation is laid where there is evidence that the witness previously adopted the sketch as an accurate portrayal of the suspect. Where the witness denies, in court, that the composite sketch accurately portrayed the suspect, a proper foundation for admission of the sketch may be established only through “unequivocal testimony from the police artist that the drawing not only was a representation prepared at the direction of the witness, but that the witness, after having had an opportunity to view the completed sketch, adopted it as an accurate portrayal of the suspect. [Citation.]” Yates, 98 Ill. 2d at 528.
At the defendant’s trial, the victim denied that the composite sketch accurately portrayed the offender. The police artist testified that, when he showed the completed composite sketch to the victim, she told him that the sketch was “a likeness of the suspect” except that the face in the sketch should have been heavier. The trial court, considering this testimony, concluded that the police artist’s testimony was not sufficient to establish a foundation for the admission of the sketch. The court concluded that the police artist had not unequivocally testified that the victim had adopted the composite sketch as accurate, and therefore refused to admit the sketch into evidence.
We do not consider here whether the trial court’s evaluation of the evidence was correct. Rather, the question for our review is whether, under the circumstances of this case, appellate counsel’s decision not to challenge the trial court’s ruling on direct appeal was patently erroneous. We conclude that it was not.
Our court has recognized that it is not incompetence for appellate counsel to refrain from raising issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong. (People v. Barnard (1984), 104 Ill. 2d 218.) Here, defendant’s appellate counsel undoubtedly considered the fact that the trial court’s ruling on the admissibility of the sketch would not be reversed on direct appeal unless the trial court was found to have abused its discretion and the resulting error could not be deemed harmless. Appellate counsel’s conclusion that these hurdles could not be overcome was not erroneous. The trial court had the opportunity to hear the police artist’s testimony and was obviously in the best position to consider whether that testimony satisfied the standard set forth in Yates. The trial court based its decision excluding the sketch upon the express language which this court used in Yates. In such circumstances, it is highly unlikely that this court would have found that the trial court abused its discretion in excluding the sketch. Yates, 98 Ill. 2d at 526-29; see People v. Barnard (1984), 104 Ill. 2d 218, 231.
In any event, any resulting error would have been deemed harmless beyond a reasonable doubt. Defense counsel used the sketch to cross-examine the victim and repeatedly advised the jury of the asserted discrepancies between the sketch and the defendant. Admission of the sketch would have added little probative value to this attempted impeachment. In this regard, we note that the sketch, in fact, bears a close resemblance to a photograph of the defendant which is included in the record in this appeal. The only real discrepancy between the sketch and the photograph is that the sketch portrays a man with no facial hair, while the photograph of the defendant, which was taken some time after the crime, depicts the defendant with facial hair. Admission of the sketch would not have seriously undermined the jury’s assessment of the victim’s identification of the offender. (See Yates, 98 Ill. 2d at 529.) Under the circumstances, appellate counsel’s decision that the issue had no merit and would not affect the outcome on direct appeal was not patently erroneous. See People v. Winsett (1992), 153 Ill. 2d 335, 347-48.
Thus, the defendant failed to make a substantial showing that his appellate counsel was incompetent within the meaning of 'Strickland. Accordingly, the defendant’s post-conviction claim that he was deprived of the effective assistance of counsel on direct appeal was properly dismissed without an evidentiary hearing.
II
The defendant next claims that the trial court’s dismissal of his post-conviction petition should be reversed on an entirely unrelated ground. The defendant claims that the trial court’s decision must be reversed and the cause remanded for further proceedings because he was not given adequate representation during the post-conviction proceedings. It is well established that a defendant has no constitutional right to the assistance of counsel in post-conviction proceedings. (People v. Flores (1992), 153 Ill. 2d 264, 276; see Pennsylvania v. Finley (1987), 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993.) Our legislature, however, has provided by statute for the appointment of counsel to indigent capital defendants who file pro se post-conviction petitions. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 4; see also Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(1).) The legislature anticipated that most of the petitions under the Act would be filed pro se by prisoners who did not have the aid of counsel in their preparation. To ensure that the complaints of a prisoner might be adequately presented, the statute contemplates that the attorney appointed to represent an indigent petitioner will ascertain the basis of the petitioner’s complaints, shape those complaints into appropriate legal form and present the prisoner’s constitutional contentions to the court. People v. Owens (1990), 139 Ill. 2d 351, 359; People v. Slaughter (1968), 39 Ill. 2d 278, 285.
To that end, Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), which governs appeals from post-conviction proceedings, requires that the record on appeal disclose that appointed post-conviction counsel took the steps necessary to assure adequate representation of the petitioner’s claims in the trial court. Specifically, Rule 651(c) requires that the record disclose that post-conviction trial counsel: (1) consulted with the petitioner to ascertain his contentions of constitutional deprivation; (2) examined the record of the proceeding of the original trial; and (3) made any amendments to the pro se petition necessary to adequately present the petitioner’s constitutional contentions. (134 Ill. 2d R. 651(c).) Rule 651(c) requires post-conviction counsel to file an affidavit certifying that he or she has complied with these requirements. Although this court has held that compliance with the duties set out in Rule 651(c) is mandatory, the absence of counsel’s affidavit will be excused where the record demonstrates that counsel adequately fulfilled his duties as post-conviction counsel. People v. Szabo (1991), 144 Ill. 2d 525.
In the present case, post-conviction counsel did not file an affidavit showing that he discharged his duties as required by Rule 651(c). The record establishes, however, that petitioner’s counsel consulted with the petitioner on several occasions to ascertain his grievances. The record also establishes that petitioner’s counsel reviewed the voluminous record of the proceedings in the trial court.
The petitioner concedes that the first two requirements of Rule 651(c) were satisfied in this case. He argues, however, that his post-conviction counsel did not adequately represent him because he did not amend the pro se petition in the manner necessary to adequately present the petitioner’s claims. The petitioner argues that his post-conviction counsel failed to interview any of the witnesses named in the post-conviction petition, marshalled no evidence in support of the petitioner’s contentions, attached no affidavits or other records to the amended petition, and failed to explain the absence of supporting documentation. Thus, he claims that his post-conviction counsel did nothing to shape his claims of constitutional deprivation into appropriate legal form as required by Rule 651(c).
In the present case, the petitioner filed a seven-count pro se petition for post-conviction relief in November 1987. The pro se petition was not accompanied by affidavits or other supporting documents. However, the petition specifically identified witnesses and documents which would support the allegations raised in the petition. Two years after the pro se petition was filed, petitioner’s counsel filed an amended petition for post-conviction relief. The amended petition realleged, verbatim, every allegation in the pro se petition and added two additional claims. The amended petition, however, was not accompanied by any affidavits or supporting documents.
We note that, under the Post-Conviction Hearing Act, the defendant bears the burden of establishing that a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois occurred at his original trial. (People v. Silagy (1987), 116 Ill. 2d 357, 365.) An evidentiary hearing will be held only where the allegations of the post-conviction petition make a substantial showing that the defendant’s constitutional rights have been violated (People v. Caballero (1989), 126 Ill. 2d 248, 259; People v. Gaines (1984), 105 Ill. 2d 79, 91-92), and the petition is supported by “affidavits, records, or other evidence” or explains “why the same are not attached” (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2). The affidavits which accompany a post-conviction petition must identify with reasonable certainty the sources, character and availability of alleged evidence supporting petitioner’s allegations. People v. LeCompte (1976), 38 Ill. App. 3d 513; see also People v. Jones (1991), 210 Ill. App. 3d 375.
A post-conviction petition which is not supported by affidavits or other supporting documents is generally dismissed without an evidentiary hearing unless the petitioner’s allegations stand uncontradicted and are clearly supported by the record. (People v. McGinnis (1977), 51 Ill. App. 3d 273.) In fact, our courts have specifically held that the absence of affidavits, records or other evidence in support of the post-conviction petition renders the petition insufficient to require an evidentiary hearing. People v. Powell (1970), 46 Ill. 2d 416; People v. Jones (1991), 210 Ill. App. 3d 375 (petitioner not entitled to evidentiary hearing on post-conviction claim of ineffective assistance, where he did not attach to his petition affidavit of witness who purportedly would have corroborated his testimony had trial counsel called him); People v. Lawrence (1991), 211 Ill. App. 3d 135 (trial court properly dismissed the defendant’s post-conviction petition due to failure to support claims with affidavits); People v. Barr (1990), 200 Ill. App. 3d 1077 (post-conviction petition, which alleged that trial counsel was ineffective in failing to contact an alibi witnesses, was insufficient to warrant an evidentiary hearing though defendant attached his own affidavit to petition, alleging that he was in the company of alibi witnesses at the time the crime occurred; affidavits of the witnesses themselves were not provided).
The State concedes that a post-conviction petitioner who attacks the competency of his trial counsel for failing to call or contact certain witnesses must attach the affidavits of such witnesses to his post-conviction petition and explain the significance of their testimony. (People v. Carmickle (1981), 97 Ill. App. 3d 917.) The State also concedes that this procedure was not followed in this case. The State nevertheless argues that the defendant received the reasonable level of assistance which is required in post-conviction proceedings. Under the circumstances of this case, however, we cannot agree.
In the ordinary case, a trial court ruling upon a motion to dismiss a post-conviction petition which is not supported by affidavits or other documents may reasonably presume that post-conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but was unable to do so. Here, however, this presumption is flatly contradicted by the record. Post-conviction counsel filed an affidavit as a supplemental record in this appeal, which unequivocally establishes that counsel made no effort to investigate the claims raised in the defendant’s post-conviction petition or to obtain affidavits from any of the witnesses specifically identified in the defendant’s pro se petition. To adequately establish the manner in which post-conviction counsel deviated from his duties, it is necessary to discuss in some detail post-conviction counsel’s actions as to each claim raised in the post-conviction petition.
As stated, the amended post-conviction petition raised six claims of ineffective assistance of trial counsel. Two of these alleged errors were apparent in the record and were supported in the post-conviction petition with citations to the record. The defendant apparently concedes that these two claims were properly dismissed without an evidentiary hearing under the waiver doctrine, because they could have been raised on direct appeal, but were not. The defendant challenges counsel’s performance with respect to the remaining claims in the petition. We must therefore consider whether post-conviction counsel adequately represented the defendant with respect to these claims.
The post-conviction petition alleged that the defendant’s trial attorneys were ineffective because they failed to call three parole officers at the hearing on the defendant’s pretrial motion to suppress. According to the post-conviction petition, the defendant testified at the suppression hearing that he was effectively arrested at approximately 1 p.m. on March 9, 1984, on the basis of suspicion rather than probable cause. He testified that he was confronted by several police officers when he first arrived at the parole office and was not permitted to leave the office after 1 p.m. Police witnesses testified that the defendant was not arrested until approximately 6 p.m. on that date, after probable cause had been established. The post-conviction petition claimed defendant’s trial attorneys were ineffective because they failed to call three parole officers, who were identified by name. The petition claimed that these parole officers would have substantiated the defendant’s claim that he was effectively arrested at 1 p.m. This contention was realleged in the amended post-conviction petition, but was not supported by affidavits from the named parole officers. During arguments on the State’s motion to dismiss, post-conviction counsel openly admitted his failure to investigate this claim. Counsel stated:
“The third argument I would make is *** the failure to call witnesses [to] substantiate the illegal arrest. I want to say a couple [of] things about this. [The prosecutor] has brought out the fact that no affidavit was filed, particularly in regard to this. And I would be irresponsible in my duties if I didn’t tell the court that after the motion to dismiss was filed, I went to Pontiac to meet with Milton Johnson and go over this with him. And one of the things that Milton asked me to do was to obtain affidavits from Mr. Mitchell, Mr. Eskridge, and Mr. O’Malley— Mr. Hemingway — excuse me. Who were all parole officers that were present on the date of the arrest. And as much as I don’t like to admit this to the court, based upon my schedule, I was not able to obtain those affidavits. This is all within the last two weeks. So to say that my client is upset about the failure to obtain those affidavits would be an understatement.”
Post-conviction counsel’s affidavit, which was filed in this court, likewise states that he made no attempt to contact two of the parole officers named in the post-conviction petition, and that he was unable to reach the third parole officer. Counsel failed to take any action to obtain the affidavits of potential witnesses whose identities were known to him for more than two years during which the post-conviction petition was pending.
We conclude that post-conviction counsel’s statements during arguments on the State’s motion to dismiss, together with his concessions in the affidavit submitted to this court, clearly demonstrate that Supreme Court Rule 651(c) was not complied with here. As stated, that rule requires the record on appeal to show that counsel made any amendments to the pro se petition which were “necessary for an adequate presentation of petitioner’s contentions.” (134 Ill. 2d R. 651(c).) Here, counsel simply copied an allegation raised in the pro se petition. He concedes that he made no effort to contact the witnesses specifically identified in the pro se petition, or to amend the petition with affidavits of such witnesses. In such circumstances, we must conclude that counsel failed to adequately comply with Supreme Court Rule 651(c).
We reach the same conclusion regarding counsel’s performance on three other claims raised in the post-conviction petition. The pro se petition alleged that the defendant’s trial attorneys were ineffective because they failed to present available expert testimony at the defendant’s trial. According to the petition, the State presented expert testimony at trial that bullets recovered from the murder victim’s body were indistinguishable from bullets found in the defendant’s home, and probably came from the same box. The expert’s conclusions were based on neutron activation comparisons. The defendant’s pro se petition alleged that his trial attorneys were ineffective because they failed to present available expert testimony that the neutron activation tests performed by the State’s expert were unreliable. Specifically, the petition alleged that his attorneys were aware that Dr. Vincent Guinn, a member of the chemistry department at the University of California at Irvine, would have testified that the State’s tests were unreliable. Defendant’s post-conviction counsel included this identical claim in the amended petition, but failed to include any evidentiary support for the claim. In an affidavit filed with this court, counsel admitted that he made no attempt to contact or obtain an affidavit from Dr. Guinn during the two-year period when the post-conviction proceeding was pending.
The post-conviction petition also alleged that defendant’s trial attorneys were ineffective because they did not have sufficient time to prepare for trial. Post-conviction counsel failed to support this claim with evidence in the record that the defendant’s trial counsel repeatedly informed the trial court that they did not have adequate time to prepare for trial. Post-conviction counsel also failed to contact the defendant’s trial attorneys to obtain affidavits in support of this claim.
The petitioner’s post-conviction petition also alleged that his trial attorneys were ineffective at the capital sentencing hearing because they failed to rebut the State’s evidence regarding his prison disciplinary record. He argues that his attorneys improperly stipulated to the fact that he had 24 citations for misconduct in prison. He claimed that his counsel should have informed the jury that these citations were for trivial rule violations. Post-conviction counsel admitted in his affidavit that he had never reviewed the defendant’s disciplinary records to determine whether the infractions were truly trivial.
Post-conviction counsel had an obligation to present the defendant’s post-conviction claims to the court in appropriate legal form. At a minimum, counsel had an obligation to attempt to obtain evidentiary support for claims raised in the post-conviction petition. Because the allegations in the defendant’s petition were not supported by affidavits, records or other evidence, the trial court had no choice but to dismiss the post-conviction petition without an evidentiary hearing.
The State argues that, even if we find that post-conviction counsel failed to provide the defendant with the reasonable level of assistance required by statute, we should nevertheless affirm the trial court’s dismissal of the post-conviction petition. The State argues that the trial court could have properly dismissed the petition for reasons other than the lack of supporting affidavits. For example, the State claims that the trial court may have reasonably concluded that the defendant’s ineffective-assistance claims would not rise to the level of a constitutional deprivation under Strickland, even if those claims had been supported by affidavits. The State also suggests that the trial court could have determined that some of the claims were barred under the doctrine of res judicata.
While it is true that the trial court might have found grounds, other than the absence of supporting affidavits, to dismiss the defendant’s claims, it is not apparent from the record that the trial court did dismiss the claims on such grounds. (Cf. People v. Spreitzer (1991), 143 Ill. 2d 210 (where the record showed that the trial court dismissed the post-conviction claims under the doctrines of waiver and res judicata, and not due to the failure to provide evidentiary support for those claims).) The trial court here concluded that the allegations in the petition relating to counsel’s performance at trial did not warrant an evidentiary hearing. It is entirely possible that the trial court would have reached this same conclusion even if counsel had contacted the witnesses named in the petition and attached affidavits in support of the post-conviction claims. We cannot simply presume, however, that the trial court would have dismissed the petition without an evidentiary hearing if counsel had adequately performed his duties under Rule 651(c). It is the duty of the trial court, and not this court, to determine on the basis of a complete record whether the post-conviction claims require an evidentiary hearing. Therefore, we are unpersuaded by the State’s argument that the trial court’s decision should be affirmed even if post-conviction counsel failed to adequately represent the defendant.
The defendant also claims that his attorneys were ineffective because they failed to present available mitigation witnesses at the capital sentencing hearing. The defendant claimed that his attorneys should have called numerous prison employees to testify that petitioner had adjusted well to prison. Defendant’s pro se petition specifically named seven prison employees who, he claimed, would have testified to his excellent adjustment to prison. The defendant also claimed that his attorneys should have offered other character witnesses, “including petitioner’s previous neighbors, co-workers, friends, and personnel of the Department of Corrections.”
Post-conviction counsel realleged these same errors in the amended post-conviction petition, but failed to supplement the petition with any evidentiary support. In the affidavit filed in this court, counsel admitted that he did not attempt to contact or obtain affidavits from any of the prison employees named in the pro se petition. He also admitted that he did not conduct an investigation to locate other potential character witnesses who might have testified at the capital sentencing hearing. Defendant claims that his counsel therefore did not adequately comply with the requirements of Rule 651(c).
In addressing this claim, we must draw a distinction between two arguments the defendant makes regarding the duties of his post-conviction counsel. On the one hand, the petitioner claims that his post-conviction counsel had an obligation to attempt to contact witnesses specifically identified by name in the post-conviction petition as offering support for constitutional claims made in the petition. As stated, we agree that post-conviction counsel has an obligation under Rule 651(c) to attempt to obtain affidavits from such witnesses for the purpose of shaping the allegations in the post-conviction petition into appropriate legal form. Here, post-conviction counsel should have attempted to contact the seven prison employees identified by name in the pro se petition.
The defendant also contends, however, that post-conviction counsel had an obligation to locate witnesses not specifically identified by the petitioner and to conduct an investigation to discover the identity of witnesses who might offer evidentiary support for a general claim raised in a post-conviction petition. For example, the defendant claims that his post-conviction counsel had an obligation to conduct an investigation of his background in an attempt to discover witnesses who might have offered mitigating evidence at the capital sentencing hearing. We reject this claim. While post-conviction counsel has an obligation to present a petitioner’s claims in appropriate legal form, he is under no obligation to actively search for sources outside the record that might support general claims raised in a post-conviction petition. The petitioner has the obligation to inform counsel with specificity of the identity of witnesses who should have been called in his defense. The petitioner also has an obligation to inform counsel generally of the information which such witnesses might have offered at trial or the sentencing hearing. Upon receipt of such information, counsel has an obligation to attempt to contact those witnesses who might provide information needed to support a potentially meritorious claim raised in the post-conviction petition. Counsel has no obligation, however, to engage in a generalized fishing expedition in search of support for claims raised in a petition.
Accordingly, we reject the defendant’s claim that his post-conviction counsel did not adequately represent him because he did not conduct an investigation to find additional mitigation witnesses, including previous neighbors, co-workers and friends, who could have testified at his sentencing hearing. Post-conviction counsel had no obligation to discover witnesses or evidence that could have been offered in mitigation at the capital sentencing hearing. Because there is no evidence that the defendant informed post-conviction counsel of the identity of witnesses who should have been called or the nature of the testimony they might have offered, counsel had no obligation to seek out such witnesses.
In sum, we conclude that the record fails to show that post-conviction counsel amended the defendant’s post-conviction petition in the manner necessary to adequately present the defendant’s claims, as required by Rule 651(c). The affidavit which counsel submitted to this court establishes that counsel made no effort to contact witnesses specifically identified by name in the pro se post-conviction petition. Counsel also made no attempt to obtain affidavits in support of the post-conviction claims. The record suggests that counsel may have been under the misapprehension that the post-conviction petition would not be dismissed without an evidentiary hearing. Counsel may have believed that there was no need to contact witnesses named in the post-conviction petition until after the matter was set for an evidentiary hearing. Our cases have established, however, that a post-conviction petition may be dismissed without an evidentiary hearing where the petition raises claims outside the record which are not supported by affidavits or other documents. People v. Powell (1970), 46 Ill. 2d 416; People v. Jones (1991), 210 Ill. App. 3d 375; People v. Barr (1990), 200 Ill. App. 3d 1077.
We conclude that this cause should be remanded to the circuit court so that post-conviction counsel may comply, insofar as compliance is possible, with Rule 651(c). On remand, counsel should be given the opportunity to contact witnesses named in the post-conviction petition and to supplement the amended post-conviction petition with the affidavits (if any) of those witnesses who offer support for the claims the defendant raised in the petition. The trial court may then reconsider the State’s motion to dismiss the petition on the basis of a record which is properly developed. We emphasize, however, that we express no opinion on the question of whether an evidentiary hearing is necessary, or even appropriate, in this case. We simply hold that, once counsel represents the defendant in the manner contemplated by the post-conviction statute and Rule 651(c), the trial judge, and later this court, will have available a complete record for evaluating the ineffective-assistance claims raised in the defendant’s post-conviction petition under Strickland. Because counsel has already read the record, consulted with the petitioner and amended the post-conviction petition, there is no reason why complete compliance with Rule 651(c) and the hearing on the State’s motion to dismiss cannot be accomplished on an expedited basis.
III
In sum, the dismissal of the defendant’s post-conviction petition is affirmed in part and reversed in part. The trial court’s dismissal of the post-conviction claim challenging the performance of counsel on direct appeal is affirmed. The trial court’s dismissal of the post-conviction claims relating to the performance of defendant’s trial counsel, however, is reversed. The cause is remanded to the circuit court for further proceedings in accordance with the views expressed in this opinion.
Circuit court affirmed in part and reversed in part; cause remanded with directions.
(No. 85053.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILTON JOHNSON, Appellant.
Opinion filed August 10, 2000.
FREEMAN, J., concurring in part and dissenting in part.
Marshall J. Hartman, Deputy Defender, and L.C. Redmond, Jr., John C. Greenlees and Terri L. Marroquin, of the Office of the State Appellate Defender, of Chicago, for appellant.
James E. Ryan, Attorney General, of Springfield, and James Glasgow, State’s Attorney, of Joliet (Joel D. Bertocchi, Solicitor General, and William L. Browers and Jay Paul Hoffmann, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE RATHJE type=majority]
JUSTICE RATHJE
delivered the opinion of the court:
Following a jury trial in the circuit court of Will County, defendant, Milton Johnson, was convicted of four counts of murder and four counts of felony murder (111. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(3)). The trial court found that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude a death sentence. Accordingly, the trial court sentenced defendant to death.
On direct review, we affirmed defendant’s conviction and sentence. People v. Johnson, 119 Ill. 2d 119 (1987) (Johnson I). The United States Supreme Court denied defendant’s petition for a writ of certiorari. Johnson v. Illinois, 486 U.S. 1047, 100 L. Ed. 2d 629, 108 S. Ct. 2027 (1988). Defendant filed a first-amended petition for post-conviction relief, which the State moved to dismiss without an evidentiary hearing. The court granted the State’s motion to dismiss, and this appeal followed. Because the judgment challenged in defendant’s petition imposed a sentence of death, the appeal was taken directly to this court. 134 Ill. 2d R. 651(a).
On appeal, defendant is represented by the Capital Litigation Division of the office of the State Appellate Defender. Defendant’s brief was written by a panel attorney for the Capital Litigation Division, L.C. Redmond, Jr. Additionally, the names of two staff attorneys for the Capital Litigation Division — John C. Greenlees and Terri L. Marroquin — appear on defendant’s brief.
The State moved to strike defendant’s original brief because it did not comply with the supreme court rules. The State identified three problems with the brief. First, the statement of facts was inadequate and did not comply with Supreme Court Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6) (made applicable to criminal cases by Supreme Court Rule 612(i) (177 Ill. 2d R. 612(i)))). Second, defendant failed to comply with Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7) (made applicable to criminal cases by Supreme Court Rule 612(i) (177 Ill. 2d R. 612(i)))), by inadequately citing to the record. Major portions of the brief contained no citations to the record despite specific references to trial court proceedings or to specific documents. Third, the brief was filed with the wrong case number. This court granted the State’s motion to strike and gave defendant leave to file a corrected brief.
On June 7, 1999, defendant filed a new brief and corrected some of the problems. The incorrect case number was crossed out, and the correct number was written above it. Additionally, the statement of facts was expanded. However, the statement of facts was merely a recitation of evidence from the original trial and did not include any information about the post-conviction proceedings, except to mention that the court dismissed defendant’s petition without an evidentiary hearing. The statement of facts does not mention what the allegations of the post-conviction petition are or what evidence the post-conviction investigation uncovered. The problems with inadequate record citations in the first brief were not corrected in the subsequent brief.
At the beginning of defendant’s statement of facts, he states that he will use the abbreviation “EC.” when he cites the common law post-conviction record and “P.R.” when he cites the post-conviction report of proceedings. These abbreviations never appear again, as defendant fails to cite the post-conviction record when referring to the post-conviction proceedings. The only citations in defendant’s brief are sporadic ones to the original trial record, which he failed to make part of the record on appeal. Additionally, the appendix to defendant’s brief, which must contain a “complete table of contents, with page references, of the record on appeal” (155 111. 2d R. 342(a)), contains a table of contents of the original trial record rather than of the post-conviction record.
Throughout the argument section of defendant’s brief, he repeatedly refers to facts, events, documents, and statements of the parties or the trial court, with no corresponding record citations. At times, defendant even quotes from the record without providing citations.
Rule 341(e)(7) provides in relevant part that the appellant’s brief shall include:
“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal or abstract, if any, where evidence may be found.” 177 111. 2d R. 341(e)(7).
Defendant makes virtually no attempt to comply with this rule. Almost every page of defendant’s brief contains references to the record with no supporting citations.
An additional significant problem with defendant’s brief is the lack of legal citations supporting his arguments. At the beginning of his brief, defendant presents many citations. However, over the course of the brief, the frequency of the citations steadily deteriorates. Indeed, by the time he reaches his ineffective assistance of appellate counsel argument, defendant does not even cite the standard by which such claims are measured and does not attempt to apply that standard to his claims. When asked at oral argument about this deficiency, Redmond responded that he was under a page constraint and wanted to focus on his most important arguments. We note that defendant’s brief was 20 pages under the 75-page limit and that the only way in which most of his arguments could be considered would be if they were argued as ineffective assistance, of appellate counsel claims.
Generally, the consequences for failure to comply with Rule 341(e)(7) are that the issues will be deemed waived. People v. Lantz, 186 Ill. 2d 243, 261-62 (1999). More specifically, the appellate court has held that the failure to include record citations when the argument requires an examination of the record results in waiver of the issue on appeal. People v. Loera, 250 Ill. App. 3d 31, 54 (1993); see also People v. Isbell, 177 Ill. App. 3d 854, 864 (1988). When the appellate court is faced with briefs that fail to comply with Rule 341(e)(6) or 341(e)(7), but the record is short and the issues are simple, the court ordinarily will admonish the attorney but address the issues anyway. See, e.g., First National Bank v. Loffelmacher, 236 Ill. App. 3d 690, 691-92 (1992); Ryan v. Katz, 234 Ill. App. 3d 536, 537 (1992). In these cases, the courts chose to reach the merits only because of the simplicity of record and the issues.
Here, defendant has not presented the issues in such a way that they can be considered without this court doing much of defendant’s work for him. Time after time, defendant refers to matters in the record without providing supporting record citations. The post-conviction record is over 4,500 pages long, and the direct appeal record, of which we take judicial notice, is over 3,500 pages long. Every time defendant refers to the record, he leaves to this court the task of combing through these 8,000-plus pages to find the material to which he refers. That is not the job of a reviewing court. Not only is the record lengthy, the issues arise from the dismissal of a capital post-conviction petition and are not simple.
Although we are loathe to delay further the proceedings in this cause, rather than hold that the issues are waived, we retain jurisdiction over the case and order that it be rebriefed. Supreme Court Rule 651 (134 Ill. 2d R. 651) governs appeals in post-conviction proceedings. Pursuant to Supreme Court Rule 651(a), defendant has an appeal to this court as a matter of right. Further, Supreme Court Rule 651(c) provides for the appointment of counsel on appeal to indigent defendants. Rule 651 guarantees defendant a reasonable level of assistance of counsel. See People v. Turner, 187 Ill. 2d 406, 410 (1999); People v. Flores, 153 Ill. 2d 264, 276 (1992). An attorney who files a brief that is so fundamentally deficient that it precludes review by the supreme court has not provided a reasonable level of assistance.
Because defendant has not received the reasonable level of assistance required by Rule 651, we order this case to be rebriefed. The Capital Litigation Division of the office of the State Appellate Defender is ordered to assign the case to a staff attorney in its office. The case may not be contracted to outside counsel. The appellant’s brief is due 35 days from the date that any petition for rehearing in this cause is disposed of or, if no petition for rehearing is filed, within 35 days of the expiration of the time period for filing such a petition. Further briefing will be in accordance with the supreme court rules.
Rebriefing ordered;
jurisdiction retained.
[OPINION BY JUSTICE FREEMAN, type=concurring-in-part-and-dissenting-in-part]
JUSTICE FREEMAN,
concurring in part and dissenting in part:
The court correctly holds that the brief filed by defendant in this case violates Supreme Court Rule 341 and, as such, does not constitute the reasonable level of assistance of counsel required by Rule 651. 192 Ill. 2d at 206-07.1, therefore, concur in that part of today’s opinion that orders the matter be rebriefed. As noted in the court’s opinion, the consequences for failing to comply with Rule 341 can vary. 192 Ill. 2d at 206. Our conclusion that this matter must be rebriefed evinces our concern that defendant’s right to appeal be protected and that his arguments be presented thoroughly and adequately in accordance with our rules. See Ill. Ann. Stat., ch. 110A, par. 341, Historical & Practice Notes, at 478 (Smith-Hurd 1985) (noting that what action a court of review will take when a party is in noncompliance with the appellate rules “is a matter entirely in its discretion, a discretion usually exercised by reference to the effect of the case on the public and on the parties” and collecting cases). Moreover, the court’s decision to preclude defendant’s attorneys of record from further participation in this case is justified in light of the fact that these attorneys have been given two chances to submit briefs that conformed to our rules, but have failed to do so. See Ill. Ann. Stat., ch. 110A, par. 341, Historical & Practice Notes, at 478 (Smith-Hurd 1985) (stating that when there is noncompliance with the appellate rules, the court of review “does not necessarily have to visit the consequences *** on the litigant”).
Notwithstanding my concurrence in the decision to rebrief this case, I part ways with the court with respect to the following directions imposed during the rebriefing period:
“The Capital Litigation Division of the office of the State Appellate Defender is ordered to assign the case to a staff attorney in its office. The case may not be contracted to outside counsel. The appellant’s brief is due 35 days from the date that any petition for rehearing in this cause is disposed of or, if no petition for rehearing is filed, within 35 days of the expiration of the time period for filing such a petition.” 192 Ill. 2d at 207-08.
In my opinion, it is unwise for this court to limit reassignment of this case to only “staff attorneys” without first ensuring that this action will not cause more problems than it attempts to cure. Unfortunately, we, as a court, have not done this. The members of this court, for example, have no knowledge of, nor have they sought to ascertain, the number of “staff attorneys” currently employed in the Office of the State Appellate Defender (hereinafter OSAD) or the status of their workloads. Further, the members of this court have no knowledge of, nor have they sought to assess, the OSAD’s legitimate need for utilizing “outside counsel” in light of its present workload. Thus, precluding the case from being reassigned to anyone but a staff attorney has the potential to create an unmanageable burden for the OSAD, an agency that has long suffered from understaffing and underfunding. See, e.g., Annual Report of the Illinois Courts, Administrative Summary — 1995, 1995 Annual Report to the Eighty-Ninth Ulinois General Assembly, at 2-3; Annual Report of the Illinois Courts, Administrative Summary — 1996, 1996 Annual Report to Ninetieth Illinois General Assembly, at 2; Annual Report of the Illinois Courts, Administrative Summary — 1993, 1993 Annual Report of the Supreme Court to the Eighty-Eighth General Assembly, at 29-30 (all noting that budget cuts and staff reductions in the OSAD have caused inordinate delay in processing capital appeals). More important, such a burden can be harmful to defendant — if defendant’s new attorney is to be a staff attorney, as the court today orders, that attorney will assuredly have other capital cases for which he or she is also responsible. I, therefore, am hesitant to forbid this matter from being contracted to outside counsel without facts that would indicate that such a course of action would inure to the defendant’s benefit and not to his detriment. For these reasons, I believe that the better approach to this situation is for this court to leave the decision as to whom this appeal should be reassigned to the discretion of the State Appellate Defender, who, as head of the state agency involved (see 725 ILCS 105/3, 10 (West 1992)), is in the best position to make the appropriate reassignment.
In addition, unlike my colleagues, I do not feel that the 35-day rebriefing period ordered by the court constitutes a reasonable amount of time in which to expect the new attorney to complete an appellant’s brief in this case. Presumably, the new staff attorney will enter the case without any working knowledge of it or of the issues it presents. The justices in the majority today point to the length of the record in this appeal — the “post-conviction record is over 4,500 pages long” and the “direct appeal record *** is over 3,500 pages long” — and state that the issues raised “are not simple.” 192 Ill. 2d at 207. Elsewhere my colleagues refer to “the task of combing through these 8,000-plus pages.” 192 Ill. 2d at 207. I do not believe that we can expect new appellate counsel to familiarize himself or herself with this same 8,000-plus page record, identify the colorable issues for appeal, and write an adequate brief in a 35-day time span. Given the lengthy record in this matter in addition to the fact that the issues “are not simple,” I must disagree with the court’s decision to allow the new attorney only 35 days to submit a new brief.
In light of the above, I believe the court’s directions in this matter are ill-advised. I, therefore, dissent from that portion of the court’s opinion. I would order, instead, that the State Appellate Defender reassign the case in the manner he deems appropriate and in the best interests of defendant. I would further order that the appellant’s brief be due 90 days from the date that this court’s decision becomes final.
New counsel will actually have less than 35 days to prepare the brief because of the time it takes to process the record in this case from our clerk’s office in Springfield to the Capital Litigation Division of the OSAD.
(No. 85134.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILTON JOHNSON, Appellant.
Opinion filed April 18, 2002.
Modified on denial of rehearing May 29, 2002.
HARRISON, C.J., specially concurring.
KILBRIDE, J., concurring in part and dissenting in part.
Marshall J. Hartman, Deputy Defender, and Kim Robert Fawcett, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
James E. Ryan, Attorney General, of Springfield, and Jeff Tomczak, State’s Attorney, of Joliet (Joel D. Bertocchi, Solicitor General, and William L. Browers and Jay Paul Hoffmann, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE FITZGERALD type=majority]
JUSTICE FITZGERALD
delivered the opinion of the court:
The defendant, Milton Johnson, appeals a Will County circuit court order dismissing his first amended post-conviction petition without an evidentiary hearing. Because the defendant was sentenced to death, his appeal lies directly to this court. See 134 Ill. 2d R. 651(a). We now affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
On July 16, 1983, P.P. and her boyfriend, Anthony Hackett, drove from their hometown of Emden, Illinois, and spent the day at Great America Amusement Park in Gurnee, Illinois. That day, Hackett bought a stuffed doll depicting the popular Tasmanian Devil character; he placed the receipt for the doll in his wallet. Around 10 p.m., P. and Hackett left the park and, on the way home, they stopped Hackett’s car along Interstate 55 in Will County to sleep. Hackett slept in the front seat; P. slept in the back.
Around 1:30 a.m. on July 17, P. awoke to tapping on the passenger-side window followed by gunshots which struck and killed Hackett. The assailant opened the passenger-side door and ordered P. to give him Hackett’s wallet and her purse. He then ordered P. to crawl from the car and into a pickup truck parked nearby. The assailant climbed into the truck and drove down the interstate. While driving, the assailant sexually assaulted P.; after exiting the interstate and stopping the truck, he raped her. The assailant again started to drive, but pulled the truck onto the shoulder of the road 10 minutes later. The assailant then stabbed P. in the chest and dumped her from the truck. P. was found on the grassy median an hour later at 5:30 a.m. by a passing motorist. She had no pulse or blood pressure, and she was rushed to a Joliet hospital, where doctors performed emergency surgery. P. survived.
Later that morning, Special Agent John Meduga of the Illinois Department of Law Enforcement (now known as the Illinois State Police) spoke with P.. P. indicated to Meduga that her assailant was an African American man with no observable facial hair. Eight days later, P. looked through approximately 1,500 mug shots and selected 42 photographs of persons with facial characteristics similar to her assailant, 34 of whom had facial hair. The record does not reveal whether the defendant’s photograph was chosen by P.. More than a month later, P. looked through 137 mug shots, including one of the defendant, and selected four photographs of persons with facial hair and facial characteristics .similar to her assailant. P. did not choose the defendant’s photograph.
The police investigation into these crimes stalled until A.S. telephoned the Will County sheriffs office in February 1984. S. described an incident in which a dark pickup truck had passed her several times while she was driving one night in July 1983. She and a friend followed the truck and recorded its license plate number. On March 6, 1984, she gave this number to the police, who traced it to a truck owned by S.M., the defendant’s stepfather. After M. signed a consent form, the police searched the truck and found Caucasian head hairs similar to P.’s hair, bloodstains, a steak knife, reddish brown fibers, and a sales receipt for a Tasmanian Devil stuffed doll. Based on these items, the police obtained a search warrant for M.’ residence, where the defendant lived. The police seized three .357 Magnum cartridges from a dresser in M.’ bedroom.
Also on March 6, 1984, P. looked at five mug shots. The defendant’s photograph was the only one among the five which P. had seen on September 6, 1983. After several minutes, P. tentatively identified the defendant as her assailant. On March 9, P. viewed a six-person lineup. After each person in the lineup repeated commands that the assailant had given P. on the night of her ordeal, P. unmistakably identified the defendant as her assailant.
Initially, the Will County public defender was appointed to represent the defendant. On June 1, 1984, the day before the scheduled trial date, William Swano entered his appearance as the defendant’s retained attorney. The trial court granted Swano three continuances, totaling 55 days, and set the trial date for July 26, 1984. The defendant moved for a change of venue, citing negative pretrial publicity in Will County, and the trial court transferred the case to Iroquois County. Following a jury trial, the defendant was convicted of the first degree murder of Hackett, as well as the aggravated kidnapping, deviate sexual assault, rape, and attempted murder of P.. The defendant waived his right to a sentencing jury, and the trial court found the defendant eligible for the death penalty. The trial court further found no mitigating circumstances sufficient to preclude the death penalty and sentenced the defendant to death for Hackett’s murder and to concurrent terms of 40 years’ imprisonment for deviate sexual assault, rape, and attempted murder. On direct appeal, this court affirmed the defendant’s convictions and sentences. See People v. Johnson, 114 Ill. 2d 170 (1986).
The defendant then filed a pro se post-conviction petition in the Will County circuit court, alleging that he received ineffective assistance of counsel on direct appeal and in post-conviction proceedings. The trial court granted the State’s motion to dismiss the petition. On appeal, we affirmed in part, reversed in part, and remanded. We held that the trial court properly dismissed the defendant’s claim of ineffective assistance of appellate counsel, but that the trial court improperly dismissed the defendant’s claim relating to his post-conviction attorney’s performance. See People v. Johnson, 154 Ill. 2d 227 (1993).
On remand, the defendant filed a nine-count first amended post-conviction petition, which is the subject of this appeal. The State filed a motion to dismiss, and, in a written order, the trial court dismissed the defendant’s amended petition without an evidentiary hearing. This appeal followed.
ANALYSIS
On appeal, the defendant has shuffled and refashioned the claims raised in his amended petition. He essentially raises seven issues: (1) whether his pending execution is unconstitutional because the State possesses forensic evidence which would help establish his innocence through DNA testing; (2) whether he was denied due process because the trial court refused to grant Swano sufficient time to prepare the defendant’s case for trial and sentencing; (3) whether he was denied effective assistance of trial counsel because of several alleged shortcomings by Swano before trial, during trial and sentencing, and after trial; (4) whether he was denied effective assistance of trial counsel because of several alleged shortcomings by the public defender; (5) whether he was denied effective assistance of appellate counsel because appellate counsel failed to raise several issues on his direct appeal; (6) whether he was denied due process by the State’s concealment of a hypnotic interview session with P.; and (7) whether he was denied due process because the trial court refused to grant discovery on his post-conviction claims.
The Illinois Post-Conviction Hearing Act provides a procedural mechanism through which a criminal defendant can assert “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.” 725 ILCS 5/122 — 1 (West 1998); see People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). In a post-conviction proceeding, the trial court does not redetermine a defendant’s innocence or guilt, but instead examines constitutional issues which escaped earlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). A post-conviction petition is a collateral attack upon a prior conviction and sentence, not a substitute for or an addendum to a direct appeal. People v. West, 187 Ill. 2d 418, 425 (1999). Consequently, any issues which were decided on direct appeal are barred by the doctrine of res judicata-, any issues which could have been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.
Once a capital defendant files a post-conviction petition, the trial court examines the petition and appoints an attorney for the defendant, if necessary. 725 ILCS 5/122 — 2.1(a)(1) (West 1998). The State then must answer or move to dismiss the petition. 725 ILCS 5/122 — 5 (West 1998). If the State files a motion to dismiss, the trial court must rule on the legal sufficiency of the defendant’s allegations, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). A defendant is not entitled to an evidentiary hearing unless the allegations of the petition, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation. People v. Enis, 194 Ill. 2d 361, 376 (2000). Because a trial court’s ruling on the sufficiency of the defendant’s allegations is a legal determination, our review is de novo. Coleman, 183 Ill. 2d at 388-89.
Initially, we note that the trial court correctly dismissed several of the defendant’s claims.
The defendant contends that his petition makes a substantial showing his due process rights were violated because the trial court refused to grant Swano sufficient time to prepare for trial and sentencing. This issue could have been raised on direct appeal and is forfeited.
The defendant also contends that his petition made a substantial showing that he received ineffective assistance of counsel from the public defender. The defendant charges that assistant public defenders failed to preserve his right to substitute trial judges and failed to file a continuance motion. These issues could have been raised on direct appeal and are forfeited. The defendant further charges that assistant public defenders failed to investigate trial and mitigation evidence and failed to prepare for trial and sentencing. These claims, states the defendant, are revealed by the record. Accordingly, they also could have been raised on direct appeal and are forfeited.
The defendant further contends that his petition made a substantial showing his due process rights were violated because the State failed to notify Swano that P. had undergone hypnosis. The defendant cites People v. Gibson, 117 Ill. App. 3d 270, 278 (1983), in which the appellate court held that the State must provide notice to the defense if it intends to introduce testimony of a previously hypnotized witness.
Here, the State notes that it informed the public defenders about P.’s hypnosis session. Assistant public defenders even informed the trial court that they discussed filing a motion to suppress P.’s identification. Though, in answers to the defendant’s post-conviction interrogatories, Swano asserted, “I received no information regarding hypnosis of the victim P.P.,” Swano also stated, “To my knowledge, [the public defenders] turned over everything they had” when he entered his appearance. The State also correctly notes that P.’s hypnosis session focused only on the identification of her assailant’s truck, not on the identification of her assailant. At trial, the State did not inquire into her identification of the truck, and P.’s testimony was admissible. See People v. Zayas, 131 Ill. 2d 284, 295 (1989) (“a witness’ hypnotically induced testimony *** is not admissible in Illinois courts” (emphasis added)). The defendant failed to make a substantial showing his due process rights were violated, and the trial court correctly dismissed this claim.
We now turn to the defendant’s remaining claims.
DNA Testing
The defendant contends that his pending execution is unconstitutional because the State possesses forensic evidence which would establish his innocence. He asserts that DNA testing of a Vitullo rape kit completed at the hospital where P. was treated would cast doubt on whether he raped P. and, accordingly, whether he murdered Hackett.
In his petition, the defendant alleged that a vaginal swab taken during P.’s July 17, 1983, hospital examination was delivered to and retained by the State Police Crime Lab; this swab purportedly was never tested. The defendant claimed,
“[This swab] will have been maintained by the lab or evidence section in an acceptably preserved and uncontaminated state for DNA testing. Said swab would never be stored in a manner that would allow it to come into contact with foreign DNA. The swab has been subject to a chain of custody sufficient to estabbsh that it has not been substituted, tampered with, replaced, or altered in any material respect.”
The defendant further alleged that the only direct evidence in this case was P.’s identification testimony; thus, the central issue in this case was identification. The defendant then cited section 116 — 3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116 — 3 (West 1998)), which, he claimed, provides for such testing upon the allegations in his amended petition.
The defendant filed an appendix of exhibits supporting his petition, which included a form dated July 17, 1983, and entitled “AUTHORIZATION FOR RELEASE OF INFORMATION AND EVIDENCE TO LAW ENFORCEMENT AGENCY,” in which P. authorized St. Joseph Hospital in Joliet, Illinois, to release “One sealed evidence kit,” “Medical records,” “Slides/Smears/ Specimens,” and “Sealed clothing bag(s)” to Special Agent Meduga. The appendix also contained a form signed by Illinois Department of Law Enforcement crime scene technician Melvin Trojanowski entitled “EVIDENCE RECEIPT,” which lists a “Vitullo Evidence Kit, marked P.P., Received from S/A John Meduga” as agency exhibit 37. At trial, the State stipulated that defense exhibit 14 was the kit, which was later admitted into evidence. On the record before us, however, we cannot discern the condition of the Vitullo kit, and we do not know whether the kit contains any testable genetic material.
A claim of actual innocence based on newly discovered evidence may be raised in a post-conviction petition. See People v. Washington, 171 Ill. 2d 475, 489 (1996); see also People v. Bull, 185 Ill. 2d 179, 212 (1998) (“An important goal of the criminal justice process is the protection of the innocent accused against an erroneous conviction”). The supporting evidence must be new, material, noncumulative, and so conclusive that it would probably change the result on retrial. See People v. Molstad, 101 Ill. 2d 128, 134 (1984), quoting People v. Baker, 16 Ill. 2d 364, 374 (1959). The defendant has not provided evidence of his actual innocence, instead asserting that DNA testing would provide such evidence. Accordingly, the defendant raises the issue of whether DNA testing can be granted as post-conviction relief when it was unavailable at the time of his trial. The defendant contends that under either the fourteenth amendment of the United States Constitution or section 116 — 3, he may obtain the Vitullo kit for testing. We need not reach the constitutional issue, however, because section 116 — 3 provides an answer to the defendant’s request. See People v. Dunn, 306 Ill. App. 3d 75, 80 (1999).
Although section 116 — 3 was not in effect at the time the defendant filed his amended petition, it was in effect when the trial court entered its order. Section 116 — 3 provides:
“(a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint or forensic DNA testing on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
(c) The trial court shall allow the testing under reasonable conditions designed to protect the State’s interests in the integrity of the evidence and the testing process upon a determination that:
(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence;
(2) the testing requested employs a scientific method generally accepted within the relevant scientific community.” 725 ILCS 5/116 — 3 (West 1998).
Thus, in order to present a prima facie case for forensic testing, the defendant must show that identity was the central issue at trial and that the evidence to be tested was subject to a sufficiently secure chain of custody. The trial court then must determine whether this testing will potentially produce new, noncumulative evidence that is materially relevant to the defendant’s actual-innocence claim.
We note that the State, by arguing before this court that the defendant is not entitled to DNA testing of the Vitullo kit under section 116 — 3, is attempting to argue an issue it conceded before the trial court. In a February 16, 1996, hearing on the defendant’s motions to produce the Vitullo kit and to obtain expert witness funds, the assistant State’s Attorney stated that the Vitullo kit was never tested at the time of the defendant’s trial because the State never found any evidence to test. The assistant State’s Attorney added, “If seminal fluid was there, we would be more than happy to say go ahead and test it because we are confident that it would prove that Mr. Johnson was the donor.” In the December 3, 1997, hearing on the State’s motion to dismiss the defendant’s petition, the assistant State’s Attorney, conceding that DNA testing was not available to the defendant at the time of his 1984 trial, advised the trial court:
“[I]f we want to set part of this case over till [sic] the 1st of the year in order for the State to do D.N.A. testing, I have no objection to that part of it. I would ask that we do it that way. We are close enough to the 1st of the year. I can’t see paying experts to do that when the State Police Crime Lab will do it for free January 1st.”
Even if the State did not waive its current argument, we conclude that the defendant’s petition made a prima facie case for DNA testing. The defendant has shown that identity was the central issue at trial. The defendant also has shown that the Vitullo kit was subject to a sufficiently secure chain of custody. Though the State contends that the defendant has presented no evidence of the kit’s location since his 1984 trial, such evidence would not be available to the defendant. The Vitullo kit, as a piece of real evidence admitted at trial, would have remained in the custody of the circuit court clerk after the defendant’s conviction.
The State further contends that a DNA test on the Vitullo kit does not have the potential to produce materially relevant evidence. We recently construed the term “materially relevant” in People v. Savory, 197 Ill. 2d 203 (2001). In Savory, the defendant was convicted of two murders in 1977. The appellate court held that the defendant’s confession was inadmissible, reversed the convictions, and remanded for a new trial. At the defendant’s second trial, the State presented significant evidence of the defendant’s guilt, including a pair of the defendant’s pants with a bloodstain whose type matched that of one of the victims. The defendant was again convicted of these murders in 1981. The appellate court affirmed the convictions. The defendant’s post-conviction and habeas corpus petitions were denied, and in 1998, the defendant filed a motion for forensic testing under section 116 — 3. The defendant alleged that he did not commit the murders and that DNA testing would reveal the blood on his pants did not match that of one of the victims. The trial court denied this motion, concluding that favorable test results would not materially advance the defendant’s actual-innocence claim. Even if the blood on the defendant’s pants did not belong to the victim, the State’s case would not be affected. The appellate court affirmed on different grounds, holding that the remedy under section 116 — 3 is available only in cases where a favorable test result would, by itself, completely vindicate the defendant.
After reviewing the language of section 116 — 3, we rejected the appellate court’s restrictive reading of the term “materially relevant.” Savory, 197 Ill. 2d at 213. Instead, we held that evidence which is “materially relevant” to a defendant’s actual-innocence claim need not, standing alone, exonerate the defendant; rather, it must tend to “significantly advance” his claim of actual innocence. Savory, 197 Ill. 2d at 213. We stated, “if the legislature had intended to limit application of the statute to the instances in which a test result favorable to the defendant would, standing alone, lead to his complete vindication, it would have chosen a different way of expressing the statutory requirements.” Savory, 197 Ill. 2d at 213; accord People v. Hockenberry, 316 Ill. App. 3d 752, 758-59 (2000) (“the application of the statute is not limited to those situations where additional scientific testing would result in total vindication”); People v. Ro kita, 316 Ill. App. 3d 292, 301-02 (2000) (“the plain and unambiguous language [of section 116 — 3] evinces no legislative intent to limit the use of scientific testing only to situations where the testing will result in total vindication or has the potential to exonerate the defendant”).
We held that the determination of whether the forensic evidence is “materially relevant” to the defendant’s actual-innocence claim requires an evaluation of the evidence introduced at trial, as well as the evidence the defendant seeks to test. Savory, 197 Ill. 2d at 214. After reviewing the record, we found that testimony about the source of the bloodstain, which the State did not present until rebuttal argument, was only a minor part of its strong evidence against the defendant. Savory, 197 Ill. 2d at 215. “Under these circumstances, a test result favorable to defendant would not significantly advance his claim of actual innocence, but would only exclude one relatively minor item from the evidence of guilt marshaled against him by the State.” Savory, 197 Ill. 2d at 215. See People v. Urioste, 316 Ill. App. 3d 307, 312 (2000) (“had the legislature intended the overwhelming nature of other evidence to be a factor in granting a motion filed pursuant to section 116 — 3, it would have said so”).
Unlike evidence about the source of the bloodstain in Savory, evidence about the source of genetic material in the Vitullo kit was never presented at trial. That is, the defendant here does not seek merely to impeach the State’s evidence. Instead, he seeks to present, for the first time, evidence about the genetic identity of P.’s assailant. Further, unlike the defendant in Savory, the defendant here never made damning admissions placing himself at the crime scene. The State presented a strong, but largely circumstantial, case; the only direct evidence of the defendant’s guilt came from P.’s identification. A favorable result on a DNA test of the Vitullo kit would significantly advance the defendant’s claim that he did not rape P., which, in turn, would significantly advance his claim that he did not murder Hackett. “If the available DNA evidence is capable of supporting such determination, there is no valid justification to withhold such relief if requested on postconviction review.” Dunn, 306 Ill. App. 3d at 81. The trial court erred in refusing to allow DNA testing of any testable genetic material in the Vitullo kit pursuant to section 116 — 3.
Ineffective Assistance of Trial Counsel William Swano
The defendant contends that his petition made a substantial showing that he received ineffective assistance of counsel from Swano. In the introduction to his petition, the defendant charged:
“Milton Johnson had the extreme misfortune of placing his trust in a drug-abusing, corrupt, unethical, and incompetent ‘attorney’ — a man who is now a convicted felon and who has repeatedly testified to bribing judges, witnesses, and otherwise fixing murder cases (as opposed to providing effective ethical assistance of counsel). The attorney, William Swano, *** took $15,000 from Milton Johnson’s family and promised them a proper defense for their son; he told them that he would use some of the money to retain experts to counter the State’s case. Swano, however, did no investigation into either trial evidence or mitigation, presented no expert rebuttal evidence, and based his defense primarily on material that was ultimately not allowed into evidence.”
The defendant’s petition provided specifics. First, the defendant asserted that Swano should not have entered his appearance because the trial court refused to grant him sufficient time to prepare for trial and sentencing and because he was operating under a conflict of interest due to personal and financial problems. Second, the defendant asserted that Swano was otherwise ineffective in numerous ways: (1) he lied to the trial court about his trial preparation while attempting to obtain continuanees on June 25 and July 16, 1984; (2) he failed to review the discovery material tendered by the State; (3) he failed to interview prosecution witness S. before trial and failed to introduce available evidence in support of a motion in limine to bar her testimony; (4) he failed to investigate the police discovery of the Great America receipt in the assailant’s truck; (5) he failed to interview parole officers who would have provided testimony in support of a motion to quash the defendant’s arrest; (6) he failed to engage expert forensic witnesses to examine the rape kit and the fiber evidence and to debunk the State’s Neutron Activation Analysis (NAA) evidence, and he failed to file a motion to bar NAA evidence; (7) he failed to present available evidence in support of a motion in limine to bar P.’s in-court identification; (8) he failed to file a motion to bar P.’s testimony based on hypnosis; and (9) he failed to litigate properly the defendant’s post-trial motion. Third, the defendant asserted that Swano failed to prepare or investigate aggravation and mitigation evidence.
The defendant’s ineffective-assistance claims against Swano can be distilled into a single contention. The defendant argues that Swano’s mounting personal problems led him to neglect the defendant’s case while attempting to keep the defendant’s fee. As the defendant states in his petition: “Once in the case, Swano’s concern became avoiding the ire of the court and any situation where his withdrawal (and refund of unearned money already deposited in his own account ***) might be ordered or demanded.” Swano’s lack of preparation infected the defendant’s entire trial and sentencing proceedings. The adversarial system broke down, and the defendant was denied effective assistance of trial counsel. Because the basis for this contention — Swano’s personal problems — is dehors the trial record, this claim is not forfeited. People v. Orange, 168 Ill. 2d 138, 149 (1995).
Initially, we note that the defendant characterizes Swano’s conduct as a conflict of interest, arguing that Swano’s pecuniary obligations outweighed his ethical obligations to the defendant. We reject this argument: such conflict-of-interest claims must be analyzed as claims of ineffective assistance of counsel. See People v. Titone, 151 Ill. 2d 19, 31-32 (1992). Claims of ineffective assistance of counsel are analyzed under the two-prong, performance-prejudice test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under Strickland, a defendant must prove that defense counsel’s performance fell below an objective standard of reasonableness and that this substandard performance prejudiced the defendant by creating a reasonable probability that, but for counsel’s errors, the trial result would have been different. People v. Advine, 173 Ill. 2d 273, 293 (1996). A reasonable probability is a probability sufficient to undermine confidence in the result of the trial — that is, to indicate that defense counsel’s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Enis, 194 Ill. 2d at 376. Unless the defendant makes both showings, we cannot conclude that his conviction or death sentence resulted from a breakdown of the adversarial process. See People v. Munson, 171 Ill. 2d 158, 184 (1996).
On June 19, 1991, almost seven years after the defendant’s conviction, Swano was indicted on federal racketeering charges relating to his representation of various gang members. The indictment specified that Swano repeatedly bribed judges, presented perjured evidence, and received cocaine in exchange for his legal services. Swano agreed to cooperate with federal authorities and was reindicted for explicit judicial corruption between 1980 and 1990. He pleaded guilty and is currently incarcerated.
The defendant’s post-conviction attorney summarized Swano’s testimony in the trial of former Cook County Circuit Judge Thomas Maloney. See generally United States v. Maloney, 71 F.3d 645, 650-52 (7th Cir. 1995). According to the defendant’s attorney, Swano’s testimony established that in 1984, while representing the defendant in this case, Swano was engaged in a demanding law practice, was using drugs, was defending foreclosure proceedings on various properties, and was forced to file personal bankruptcy. In his testimony, Swano stated, “I did illegal criminal activities [from 1975 though 1990]. I was an unethical lawyer. *** Part of the unethical part of what I did was lie.” Lies, according to the defendant, were a serious problem in this case.
In his first appearance before the trial court on June 1, 1984, Swano asked for a continuance. He indicated to the trial court that he would not be prepared for trial scheduled the next day because he had received no police reports and no discovery, and he had interviewed the defendant for only one hour. The trial court reluctantly reset the trial date to July 1, 1984. Swano vowed to prepare diligently the defendant’s case.
On June 25, 1984, Swano presented a motion for a continuance. Swano stated that he and co-counsel had made this case their priority, but had not completed their review of over 5,000 pages of discovery. Swano mentioned that he intended to hire a forensic fiber expert to review the report of the State’s fiber expert. He also asserted, “There are hundreds of other pages of scientific evidence, specific ballistics, fingerprints, hair, blood, other types of evidence that has [sic] to be digested by the Defense and has [sic] to explored to be retained by the Defense ***.” Denying a continuance, in Swano’s words, would subject the defendant to “an unfair, ill-prepared, ineffective assistance of counsel.” Swano also told the court that he had interviewed approximately 10 witnesses since he entered his appearance. When asked by the court whether he had hired his forensic scientist yet, Swano answered, “He apparently was out of town last week, and I have not even personally spoken with him. It’s not one forensic person, Judge. There are many experts to be retained. *** I’m not sure [how many] at this time. I have to interview the State forensic people to determine what their testimony will be.” When asked by the court what the defense had done in the last 30 days, Swano answered:
“[W]e have been collating, organizing, researching all the material received as well as the continued discovery that we receive in our office every day.
Every day I get another piece of discovery, another piece of police reports in my office, and what we have been doing is organizing the case and putting it together to see what we are up against.”
The trial court granted a continuance until July 23, 1984.
On July 16, 1984, Swano presented another motion for a continuance. In support of this motion, Swano stated:
“Two weeks ago, approximately two weeks ago, this Court on a similar motion granted us a two week continuance.
Since that time, myself, [co-counsel], [a student law clerk] and other persons associated with the defense of this trial, have worked diligently to go through the voluminous material that we had received from the Public Defender’s office, and also to digest documents that we have received during that time from the State’s Attorney’s office.
We have interviewed approximately forty to fifty witnesses in the last two weeks and have made every diligent effort [ ] [w]e feel necessary to defend Mr. Johnson and prepare.
At this point in time, it is — it is our contention that we need more time. And I can’t specifically point to the things that have to be done, because there’s a lot of things that have to be done.
There’s more witnesses to interview. There’s physical evidence that has yet to have been seen by the staff.
There is further discovery matters that have to be resolved between [State’s Attorney’s office representatives] and our staff here.
There is a lot more research to be done for issues that we have identified, that willcome [sic] up during the course of the trial.
Quite frankly, what we are asking for is some more time to — to more adequately prepare, more time to more adequately research the various legal issues involved in this case.”
The trial court denied this motion, and the defendant’s case proceeded to trial 10 days later.
According to the defendant, Swano lied when he told the court on June 25 that he had interviewed 10 witnesses because, at that time, he had not yet interviewed P., S., the defendant’s family, or police officers involved in the investigation of these crimes. Further, Swano admitted that he had not interviewed any forensic experts. According to the defendant, Swano also lied when he told the court on July 16 that he had interviewed 40 to 50 witnesses, because only a full investigation of trial and sentencing evidence would have uncovered this number of witnesses. Swano’s statement defies credibility in light of the fact that he presented no mitigation evidence at sentencing.
The defendant’s allegations concerning Swano’s lies about his lack of preparation are more troubling in light of his answers to the defendant’s post-conviction interrogatories. In response to the defendant’s interrogatory asking whether Swano hired an expert to evaluate the fiber evidence in this case, Swano answered, “Don’t remember.” In response to the defendant’s interrogatories asking whether Swano hired experts to evaluate the bullet composition, NAA, or ballistic evidence in this case, Swano answered no. Swano also admitted that he hired no mitigating or sentencing experts in this case. When asked whether he received any fiber, bullet composition, NAA, or ballistic evidence reports from the Will County public defender when he entered this case, Swano stated, “Don’t remember. I do remember that when I accepted this case the P.D.’s office had not prepared the matter for trial and the discovery process was just beginning.” When asked whether he received any investigation reports, witness interviews, or evidence evaluation from the public defender, Swano stated, “Don’t remember anything other than some discovery.” He added that, to his knowledge, the public defender “turned over everything they had.” According to Swano, the only mitigation witness whom he remembered interviewing was the defendant’s father. In an affidavit, the defendant’s post-conviction attorney described a November 22, 1997, meeting with Swano, in which Swano also stated that “he definitely did not hire or engage any experts in the instant case and also did not recall consulting any experts, and that he thought he intended to hire a NAA expert but did not have enough time.”
Swano’s conduct previously has come before this court in an unrelated case. In People v. Smith, 177 Ill. 2d 53 (1997), a capital defendant asserted that she received ineffective assistance of counsel because Swano’s knowledge of an impending federal indictment on racketeering charges prevented him from giving full attention to her trial. Relying upon People v. Williams, 93 Ill. 2d 309 (1982), the defendant asked for a new trial. In Williams, a capital defendant alleged that he received ineffective assistance of trial counsel because his attorney was defending himself against a disciplinary complaint at the same time he was representing the defendant. Considering the unique circumstances of this capital case, we declined to apply established tests for claims of ineffective assistance of trial counsel and, instead, ordered a new trial in “the interests of justice.” Williams, 93 Ill. 2d at 325.
Holding that the “unique circumstances” in Williams were not present in Smith, we rejected the defendant’s argument that Swano’s misconduct entitled her to a new trial. Smith, 177 Ill. 2d at 88-89 (citing People v. Franklin, 167 Ill. 2d 1, 18 (1995), and People v. Szabo, 144 Ill. 2d 525, 529 (1991)). Swano did not appear before the ARDC during the defendant’s trial, and he was not indicted until four months after his representation of the defendant ended. Smith, 177 Ill. 2d at 89. Further, Swano represented only the defendant in this case, and he was assisted by another attorney. Smith, 177 Ill. 2d at 90. Finally, the defendant pointed only to a single instance at trial — Swano’s failure to cross-examine a prosecution witness about inducements to testify — when she purportedly received ineffective assistance of counsel. Smith, 177 Ill. 2d at 90. Instead, we held that Strickland governed the defendant’s ineffective-assistance claims. Smith, 177 Ill. 2d at 90. Analyzing this claim under Strickland, we concluded that Swano’s decision not to cross-examine was a strategic decision, insulated from constitutional attack. Smith, 177 Ill. 2d at 93.
Unlike Swano’s failure to cross-examine a prosecution witness in Smith, Swano’s alleged failures in this case are much more pervasive. The defendant claims that Swano failed to interview witnesses, failed to review the discovery material which he received from the State, and failed to investigate and present crucial evidence at trial and sentencing. The defendant also claims, and Swano concedes, that he failed to hire any expert forensic witnesses. These allegations against Swano do not involve mere strategic decisions; they involve decisions which go to the core of the defendant’s constitutional guarantee of effective assistance at trial. The defendant’s allegations make a substantial showing that Swano’s performance was substandard.
Further, the defendant’s allegations make a substantial showing that this substandard performance caused prejudice. As we have noted, the State presented a strong, but largely circumstantial, case against the defendant. Swano’s defense was limited to attacking the identification evidence and to filing motions in limine to exclude portions of the State’s evidence. Because Swano was unprepared, he never subjected the State’s case to meaningful adversarial testing. Additional preparation by Swano, especially with regard to expert forensic testimony, may have yielded a different result.
We conclude that the defendant made a substantial showing that Swano’s representation so undermined the proper function of the adversarial system that the defendant’s trial cannot be relied upon to have produced a just result. Because the defendant’s allegations meet the benchmark for Strickland claims, these allegations are consequently subject to further investigation. See 725 ILCS 5/122 — 6 (West 1998). The trial court erred in dismissing the defendant’s ineffective-assistance claims against Swano without an evidentiary hearing.
Ineffective Assistance of Appellate Counsel
The defendant contends that his attorney in his direct appeal was ineffective for failing to raise several issues: (1) whether the defendant was denied due process because the trial court refused to grant sufficient time for Swano to prepare the defendant’s case for trial and sentencing; (2) whether the defendant’s appointed attorneys were ineffective for failing to remove Judge Orenic by automatic substitution and failing to prepare the defendant’s case for trial; and (3) whether Swano was ineffective for a variety of reasons, all related to his personal problems and lack of trial preparation.
The Strickland test applies to claims of ineffective appellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant who claims that appellate counsel was ineffective must show that the failure to raise an issue on appeal was objectively unreasonable and this decision prejudiced the defendant. Enis, 194 Ill. 2d at 377; People v. Flores, 153 Ill. 2d 264, 283 (1992). Normally, appellate counsel’s choices concerning which issues to pursue are entitled to substantial deference. People v. Mack, 167 Ill. 2d 525, 532-33 (1995). Appellate counsel need not brief every conceivable issue and may refrain from developing nonmeritorious issues without violating Strickland (People v. Simms, 192 Ill. 2d 348, 362 (2000)), because the defendant suffered no prejudice unless the underlying issue is meritorious (People v. Easley, 192 Ill. 2d 307, 329 (2000)). Consequently, the prejudice inquiry requires us to examine the merits of the claims not raised by appellate counsel.
The defendant’s first claim is nonmeritorious. Granting a continuance lies within the sound discretion of the trial court. People v. Williams, 173 Ill. 2d 48, 92 (1996); People v. Sanchez, 115 Ill. 2d 238, 262 (1986). On a charge of capital murder, the defendant should be given every opportunity to investigate witnesses and prepare his defense. See People v. Crump, 5 Ill. 2d 251, 263 (1955) (denying a continuance was an abuse of discretion where the defense had a mere 10 to 11 days to interview 48 witnesses). However, “[jjudicial patience need not be infinite” (People v. Williams, 92 Ill. 2d 109, 116 (1982)), and the defendant’s right to counsel of his choice cannot be employed as a shield against an inevitable trial (People v. Solomon, 24 Ill. 2d 586, 590 (1962)). See People v. West, 137 Ill. 2d 558, 588 (1990).
Here, Swano entered his appearance on the eve of trial, and the trial court granted three continuances, giving Swano 55 days to prepare for trial. This amount of time is not exceedingly long; similarly, it is not exceedingly short, considering that, prior to Swano’s appearance, the public defender had more than three months to prepare the defendant’s case. The trial court did not abuse its discretion, and appellate counsel was not ineffective for failing to raise this issue.
The defendant’s second claim is also nonmeritorious. Strategic decisions, such as pretrial motion practice, are insulated from Strickland challenges. See People v. Pecoraro, 144 Ill. 2d 1, 13 (1991); People v. Bryant, 128 Ill. 2d 448, 459 (1989). Here, the defendant’s substitution of judge motion may have been handled differently, but we cannot say the public defender’s decisions constituted substandard representation. Additionally, after reviewing the record, we cannot say the public defender failed to prepare the defendant’s case. Appellate counsel was not ineffective for failing to raise the issue of appointed counsel’s effectiveness.
Finally, the issues related to Swano’s personal problems and lack of trial preparation were outside the record and not fully developed when the defendant’s case was on direct appeal. The defendant’s appellate counsel was not ineffective for failing to raise claims that did not yet exist.
Discovery
Finally, the defendant asserts that the trial court abused its discretion when it failed to allow discovery on the allegations in his post-conviction petition.
The defendant initially made numerous discovery requests. The trial court denied the majority of these requests, but entered an order to have Swano transported from federal prison in Greenville, Illinois, to the Will County courthouse, giving the defendant’s attorney an opportunity to speak with him. Once Swano arrived in Joliet, however, he refused to be deposed and insisted that his cooperation would be limited to answering written interrogatories. Swano’s interrogatory answers were summarily brief, and, on the final page of the defendant’s interrogatories, Swano added, “I refuse to answer any other questions relating to my personal case or conduct other than matters regarding Milton Johnson and my role as his attorney.”
A trial court has inherent discretionary authority to order discovery in post-conviction proceedings. See People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v. Rose, 48 Ill. 2d 300, 302 (1971). A court must exercise this authority with caution, however, because a defendant may attempt to divert attention away from constitutional issues which escaped earlier review by requesting discovery. People v. Hickey, 204 Ill. 2d 585 (2001); Enis, 194 Ill. 2d at 415. Accordingly, the trial court should allow discovery only if the defendant has shown “good cause,” considering the issues presented in the petition, the scope of the requested discovery, the length of time between the conviction and the post-conviction proceeding, the burden of discovery on the State and on any witnesses, and the availability of the evidence through other sources. Daley, 123 Ill. 2d at 183-84; see People v. Fair, 193 Ill. 2d 256, 264-65 (2000). We will reverse a trial court’s denial of a post-conviction discovery request only for an abuse of discretion. Fair, 193 Ill. 2d at 265. A trial court does not abuse its discretion in denying a discovery request which ranges beyond the limited scope of a post-conviction proceeding and amounts to a “fishing expedition.” Enis, 194 Ill. 2d at 415.
In People v. Fair, 193 Ill. 2d 256 (2000), the defendant was convicted of two murders and sentenced to death. Following his conviction, the defendant learned that the judge who presided over his trial had engaged in an extensive pattern of judicial corruption in the time before and after the trial. We held that the defendant was entitled to discovery of evidence obtained by the Cook County State’s Attorney’s office in its investigation of the judge in order to establish a nexus between the judge’s corruption and the defendant’s trial. Fair, 193 Ill. 2d at 267. Because the judge had pleaded guilty, all the evidence concerning his criminal conduct remained in the State’s control. Fair, 193 Ill. 2d at 266. We reasoned the defendant could not establish a nexus between this conduct and his conviction without access to that evidence. Fair, 193 Ill. 2d at 266. See also Bracy v. Gramley, 520 U.S. 899, 908, 138 L. Ed. 2d 97, 106, 117 S. Ct. 1793, 1799 (1997) (holding that allegations of judicial corruption against the judge who presided over the defendant’s trial established “good cause” for the defendant’s discovery request); cf. 188 Ill. 2d R. 416(e) (“Discovery Depositions in Capital Cases”).
Like the evidence in Fair, the evidence of Swano’s misconduct was unknown during the defendant’s trial. Because Swano refused to cooperate with the defendant, the trial court abused its discretion by refusing to order his evidence deposition.
CONCLUSION
The tried court erred in refusing to allow DNA testing of the Vitullo kit pursuant to section 116 — 3. The trial court also erred in dismissing without an evidentiary hearing the defendant’s post-conviction claim that he received ineffective assistance from retained trial counsel William Swano. Finally, the trial court abused its discretion in refusing to order Swano’s evidence deposition. The trial court properly dismissed the defendant’s other post-conviction claims. For these reasons, we affirm in part, reverse in part, and remand to the circuit court for further proceedings.
Affirmed in part and reversed in part; cause remanded.
[OPINION BY CHIEF JUSTICE HARRISON, JUSTICE KILBRIDE, type=concurrence]
CHIEF JUSTICE HARRISON,
specially concurring:
I agree with the majority’s analysis and its conclusion that the circuit court erred in refusing to allow DNA testing of the Vitullo kit. I also agree that the circuit court abused its discretion when it refused to order Swano’s evidence deposition and that the court should not have dismissed, without an evidentiary hearing, Johnson’s claim that Swano had provided ineffective assistance of counsel.
I write separately because I would go beyond the majority’s disposition and hold that Johnson is entitled to immediate post-conviction relief. Regardless of the outcome of any further proceedings on remand, Johnson’s convictions and sentences cannot stand. That is so because Johnson was tried, convicted and sentenced under a death penalty law that 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). People v. Bull, 185 Ill. 2d 179, 225-29 (1998) (Harrison, J., concurring in part and dissenting in part).
Our court has now adopted a comprehensive set of new rules governing the conduct of cases in which the State is seeking the death penalty. For the reasons set forth in my dissenting opinion in People v. Hickey, 204 Ill. 2d 585, 631-36 (2001) (Harrison, C.J., dissenting), the procedures contained in those rules are indispensable for achieving an accurate determination of innocence or guilt and are applicable to all capital cases now coming before us on review. Whether the new rules will be sufficient to place this state’s capital punishment system within the tolerances permitted by the state and federal constitutions is a question we cannot yet answer. It is clear, however, that no proceeding conducted without the benefit of those rules can be deemed reliable. I would therefore reverse the circuit court’s judgment in full, set aside Johnson’s convictions and sentences, and order that he be granted a new trial.
JUSTICE KILBRIDE,
concurring in part and dissenting in part:
I concur in part with the majority’s judgment concerning the lack of DNA testing of the Vitullo kit, the failure to allow Swano’s evidence deposition, and the improper dismissal of Johnson’s ineffective assistance of counsel claim. Nevertheless, I agree with Chief Justice Harrison that defendant’s convictions and sentence should be set aside because the trial proceedings were not conducted in accordance with the new supreme court rules governing capital cases. As I stated in my dissents in People v. Hickey, 204 Ill. 2d 585, 636-40 (2001) (Kilbride, J., dissenting), and People v. Simpson, 204 Ill. 2d 536, 581-85 (2001) (Kilbride, J., dissenting), I believe that the new rules should be applied retroactively. See People v. Caballero, 179 Ill. 2d 205, 220-21 (1997). Thus, this cause should be remanded for a new trial conducted in compliance with the new rules.