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Docket No. 80332-Agenda 1-March 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD BARROW, Appellant.

Opinion filed January 29, 2001.

JUSTICE MILLER delivered the opinion of the court:

The defendant, Ronald Barrow, appeals from an order of thecircuit court of La Salle County dismissing, without an evidentiaryhearing, his amended petition for post-conviction relief. Becausethe defendant was sentenced to death for the underlying murderconviction, the present appeal lies directly to this court. 134 Ill. 2dR. 651(a).

In May 1985, following a jury trial in the circuit court of LaSalle County, the defendant was convicted of murder, armedrobbery, residential burglary, and burglary. The same jury laterfound him eligible for the death penalty because of hiscommission of murder during the course of a felony. See Ill. Rev.Stat. 1983, ch. 38, par. 9-1(b)(6). The jury also found that therewere no mitigating factors sufficient to preclude a sentence ofdeath. Accordingly, the trial judge sentenced the defendant todeath for the murder conviction. The judge also sentenced him toa 30-year prison term for armed robbery and to a 15-year prisonterm for residential burglary, with the sentences to be servedconsecutively; no sentence was imposed on the conviction forburglary. On direct appeal, this court affirmed the convictions andsentences. People v. Barrow, 133 Ill. 2d 226 (1989). The UnitedStates Supreme Court denied the defendant's petition for a writ ofcertiorari. Barrow v. Illinois, 497 U.S. 1011, 111 L. Ed. 2d 767,110 S. Ct. 3257 (1990).

The defendant later instituted the present action by filing a prose petition for post-conviction relief in the circuit court of La SalleCounty. The court appointed counsel to assist the defendant, andcounsel filed an amended petition. The defendant subsequentlyrequested leave to file a "supplemental pro se post-convictionpetition," which the court denied. The State moved to dismiss theamended petition, and, after hearing arguments, the court grantedthe State's motion and dismissed the amended petition without anevidentiary hearing. The circuit judge concluded that thedefendant's post-conviction claims were barred by the doctrine ofres judicata, did not allege an issue of constitutional magnitude,or did not involve errors that would have affected the outcome ofdefendant's trial. The defendant brings this appeal from thedismissal of his amended post-conviction petition, and we nowaffirm the judgment of the circuit court.

The testimony introduced at the defendant's trial is set forthfully in this court's opinion on direct appeal. Barrow, 133 Ill. 2dat 238-45. Because much of this evidence is also relevant to thearguments raised in these post-conviction proceedings, however,we find it helpful to present a detailed summary of the trialtestimony here.

Darlene Brown, the victim's daughter, testified that onFebruary 18, 1984, she was with her father, Joseph O'Berto, at hishome from about 7 p.m. until 9 p.m. The next afternoon, onFebruary 19, Brown, her husband, and her father-in-law foundO'Berto lying in the basement of his home in a pool of blood; hehad been shot in the head. The front door of the house wasunlocked, and several rooms were in disarray. Brown determinedthat some of her father's possessions were missing, including hiswallet, which usually contained about $500 in hundred-dollar bills,a bankbook showing $20,000 on deposit, and a gold money clip.Hayden Baldwin, a crime scene technician, testified that several ofthe stairs leading to the victim's basement had been "torn up" and,in the basement, he observed an empty safe and three slotmachines. Baldwin examined the front and rear doors of thevictim's house and found no signs of forced entry.

Leroy Blum, the victim's next-door neighbor, testified that onFebruary 18, 1984, he observed the outside light at the victim'shome go off around 9 p.m. and then turn on again around 10:30p.m. Around 1:15 a.m., Blum noticed that the light was on; later,at 3 a.m., Blum awoke and saw that the light was off.

Harry Hockings, an Illinois state trooper, testified that onMarch 15, 1984, Judy Herron informed him that her boyfriend,Harold "Smokey" Wrona, who was then serving a sentence in aMaryland state prison, had information regarding the victim'sdeath and wanted to talk to Hockings about the case. OfficerHockings and La Salle County Sheriff Pete Wahl met with Wronain the Maryland prison where Wrona was incarcerated. OfficerHockings testified that, because of the information provided byWrona, arrangements were made with Maryland law enforcementauthorities to have Wrona released from prison so that he couldmeet with the defendant and provide an opportunity for thedefendant to incriminate himself in the matter. On April 6, 1984,Wrona met the defendant in Maryland in a hotel room speciallyequipped with hidden audiovisual equipment. After making anumber of incriminating statements to Wrona, the defendant wasarrested and charged with the offenses involved here.

At trial, Wrona explained that he first met the defendant inJuly 1983, while they were both incarcerated at a Maryland prison.Wrona testified that, while in prison, he told the defendant that, in1966, two of his friends had committed a burglary at a home inCedar Point, Illinois, stealing $64,000 that they had found undera basement stair. Wrona further related to the defendant that hisfriends told him that they had also found three "barrels of change"in the basement, which they did not take. Wrona told the defendantthat his friends later learned that an additional $175,000 washidden in a basement stair where they had not searched.

Wrona testified that the defendant visited him in the Marylandprison on February 2, 1984, following the defendant's release onbond pending appeal. According to Wrona, the defendant askedabout the Cedar Point robbery, sought directions to the town, andhad Wrona describe the house involved.

Wrona further testified that the defendant visited him again inprison several weeks later, on February 24, 1984. On thatoccasion, the defendant said that he had made "a pretty goodscore" in Cedar Point. According to Wrona's testimony, thedefendant recounted that he and his brother, Bruce Barrow, hadwatched the victim's home for about one week. Late one night, thedefendant knocked on the victim's front door and asked to use thetelephone because he was having car trouble. The defendant thenstuck his foot in the door, pushed the victim back into the housewith a gun, and handcuffed him. The defendant said that thevictim's wallet contained five one-hundred dollar bills and that healso found a bankbook showing a balance of $18,000. In thebasement, the defendant saw an empty safe and three slotmachines covered with plastic. The defendant stated that he andhis brother "tore a couple stairs up" but did not find any moneyhidden under them. The defendant also told Wrona that he askedthe victim where the money was; because the man could not hear,the defendant then "whipped him." While pointing a finger to hishead, the defendant said that he "had to take him out of it." Wronaalso testified that the defendant said that he and his brother woregloves the entire time they were in the victim's home. Thedefendant related that he disposed of the gun in a river in Indianalater that night, just before he was stopped by an Indiana statetrooper for speeding.

The tape recording of the defendant's conversation withWrona in the Maryland hotel room was also played for the jury,and a transcript of the recording was received into evidence. Asrecorded on the tape, the defendant told Wrona that "everythingwent just like *** we had planned it." The defendant said that,after watching the victim's home for a week, he forced his wayinto the residence one evening after midnight. The defendantstated that although he hit the victim "all over," the victim refusedto tell the defendant anything except "where he kept change." Thedefendant said that he then searched everywhere but could findonly an empty safe in the basement. The defendant also stated thathe "pulled up" the first two stairs leading to the basement but didnot find any money there. Wrona asked the defendant what kindof gun he used, and the defendant replied that it was a "hot, ninemil[limeter]" from Delaware. The defendant stated that he tossedthe gun off a bridge on his return trip east.

The State also presented evidence showing that the defendant,who lived in Maryland, was in the vicinity of Cedar Point aroundthe time of the victim's murder. Judy Herron, Wrona's girlfriend,testified that in February 1984 the defendant and his brother,Bruce, visited her home in Seatonville, which is about 20 milesfrom Cedar Point. Herron testified that the defendant was drivinga white car and that he told her that he was staying at the HolidayInn motel in Peru under an assumed name. According to Herron,the defendant and his brother returned several days later. At thattime, the defendant told Herron that his brother had been stoppedfor a traffic offense the previous evening, and that they had beenlucky because the police officer had not discovered a gun that wasin the car at the time.

Several other witnesses at trial also gave testimonyestablishing that the defendant was in the area at the time of theoffenses involved here. An employee of a car rental agency inDelaware testified that on February 11, 1984, the defendant renteda white Ford Thunderbird, with license plate number 744741. Aclerk at the Holiday Inn motel in Peru testified that defendant andanother man checked into room 123 on February 13, 1984, andchecked out on February 19, 1984. A police officer testified thaton February 16, 1984, she observed Bruce Barrow driving thewrong way down a one-way street in La Salle. The officer stoppedthe car, a white Ford Thunderbird with Delaware license platenumber 744741, and asked Bruce for his driver's license.According to the officer, Bruce identified himself as WilliamPayne and said that he had a Delaware driver's license but did nothave it with him at that moment. Bruce was then taken to thepolice station, where he called the Peru Holiday Inn and asked forroom 123. A second police officer testified that Bruce asked himto talk on the telephone to a person who identified himself asRonald Barrow. A short time later, a man who said he was RonaldBarrow called and asked to speak to William Payne. Anotherpolice officer also testified that he received a call that night at thepolice station from a man named Ronald Barrow, who asked tospeak with William Payne. Bruce Barrow was released fromcustody later that night.

Walter Hamlin testified that at approximately 10 p.m. onFebruary 18, 1984, the day of the murder, he saw a man whom heidentified as Bruce Barrow enter his parents' restaurant in CedarPoint and purchase cigarettes and candy. Curtis Barmes, an Illinoisstate trooper, testified that on February 19, 1984, at about 1:55a.m., he observed a white Ford Thunderbird, with Delawarelicense plate number 744741, traveling north on Route 51 at apoint south of the Illinois River bridge near Cedar Point. OfficerBarmes observed two white males in the car; Ronald and BruceBarrow are white. Officer Barmes also testified that the only waythe car could have reached Route 51 at that point near the IllinoisRiver bridge would have been by turning off a road that led fromCedar Point.

Dave Doll, an Indiana state trooper, testified that on February19, 1984, at around 5:07 a.m. Eastern Standard Time, he observedthe defendant driving a white Ford Thunderbird east on the IndianaToll Road. Officer Doll followed the car from the Michigan Citytoll plaza for 20 to 30 miles before stopping the vehicle andissuing the defendant a ticket for speeding. Officer Doll stated thatanother man was in the car, asleep. Evidence showed that thedistance from the Illinois River bridge outside Cedar Point to thelocation where Officer Doll stopped the defendant was about 160miles.

The prosecution also presented evidence to link a pair of thedefendant's shoes, which were found in a search of defendant'smother's home in Maryland, where the defendant lived, to theimpression of a shoe recovered from a piece of plywood found inthe victim's basement. Robert Hunton, a forensic scientist with theIllinois Department of Law Enforcement, stated that the shoes"could have made the footwear impressions," for the size andpattern of the soles matched those shown on the impression.

At the close of the State's case, the defendant moved for adirected verdict; the trial court denied the motion. The defense didnot present any evidence. As earlier noted, at the conclusion of thetrial the defendant was found guilty of murder, armed robbery,residential burglary, and burglary. A capital sentencing hearingwas then held, and the defendant was sentenced to death for themurder conviction. Because the defendant does not raise, in thispost-conviction proceeding, any contentions concerning thesentencing hearing, we do not find it necessary to summarize theevidence presented at sentencing.

In this appeal from the dismissal of the amended post-conviction petition, the defendant is represented by counsel, whohas filed an appellate brief. The defendant has also filed a pro se"supplemental brief." After defense counsel filed the appellatebrief, counsel filed a motion for a limited remand to the circuitcourt for purposes of discovery in light of People v. Olinger, 176Ill. 2d 326 (1997), which we allowed. Upon remand, the circuitcourt permitted the defendant to take the depositions of threepersons. The circuit court then returned the cause to this court.

During the course of these proceedings, this court granted theState numerous extensions of time in which to file its brief. OnOctober 29, 1998, this court granted the State's sixth request,extending the filing date until December 17, 1998. That order read,"Final extension. This case will be submitted without the brief ofappellee if it is not timely filed." On December 23, 1998, the Statesought leave to file its brief instanter. This court denied themotion and later denied the State's motions for reconsideration.Thus, we address the defendant's appeal without a brief from theState.

I

At the outset, we note the scope and purpose of post-conviction proceedings. The Post-Conviction Hearing Act (725ILCS 5/122-1 through 122-7 (West 1998)) provides a remedy bywhich defendants may challenge their convictions or sentences forviolations of federal or state constitutional law. People v. Towns,182 Ill. 2d 491, 502 (1998); People v. Tenner, 175 Ill. 2d 372, 377(1997). A post-conviction action is a collateral proceeding, and notan appeal from the underlying judgment. People v. Williams, 186Ill. 2d 55, 62 (1999); Towns, 182 Ill. 2d at 502. The purpose of theproceeding is to allow inquiry into constitutional issues relating tothe conviction or sentence that were not, and could not have been,determined on direct appeal. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). Thus,res judicata bars consideration of issues that were raised anddecided on direct appeal, and issues that could have beenpresented on direct appeal, but were not, are considered waived.Towns, 182 Ill. 2d at 502-03; Griffin, 178 Ill. 2d at 73.

A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill.2d 404, 427-28 (1998). Rather, an evidentiary hearing is warrantedonly when the allegations of the post-conviction petition,supported when necessary by the trial record or accompanyingaffidavits, make a substantial showing that the defendant'sconstitutional rights have been violated. Hobley, 182 Ill. 2d at 428;Towns, 182 Ill. 2d at 503. In determining whether to grant anevidentiary hearing, all well-pleaded facts in the petition and inany accompanying affidavits must be taken as true. Towns, 182 Ill.2d at 503. A circuit court's dismissal of a post-conviction petitionwithout a hearing will be reviewed de novo. People v. Coleman,183 Ill. 2d 366, 389 (1998).

The defendant first argues that he was denied the effectiveassistance of trial counsel. To prevail on a claim of ineffectiveassistance of counsel, a defendant must show both that counsel'srepresentation was deficient and that the asserted deficiency incounsel's performance prejudiced the defendant. Strickland v.Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.2052, 2064 (1984). Establishing prejudice under the Stricklandinquiry requires a defendant to "show that there is a reasonableprobability that, but for counsel's unprofessional errors, the resultof the proceeding would have been different. A reasonableprobability is a probability sufficient to undermine confidence inthe outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.

The defendant argues that his trial counsel, WayneMcFarland, was ineffective because he erroneously advised thedefendant not to testify. The defendant further asserts that trialcounsel was ineffective because he promised in his openingstatement to show that the defendant was not guilty but later restedwithout presenting a defense. This court rejected these argumentson direct appeal (People v. Barrow, 133 Ill. 2d 226, 246-50, 268(1989)), and therefore reconsideration of the same contentions isbarred here.

Specifically, the defendant argued on direct appeal that trialcounsel was ineffective because he erroneously advised thedefendant to forgo presenting any evidence so that the defendantcould preserve for review the argument that the trial court haderroneously denied the defense motion for a directed verdict. Afterthe trial court denied the motion for a directed verdict, defensecounsel stated:

" 'The law in Illinois, I believe, says that if we proceedto present evidence at this time, we may *** waive ourright to raise as error on appeal, if in fact, a conviction isentered, any error which may have been committed in thedenial of the motion for directed verdict. I would ask thatI be allowed to speak with Mr. Barrow for I'd like to havea few minutes in private to determine whether, in fact, hewants to proceed or not.' " Barrow, 133 Ill. 2d at 246.

After the requested recess, defense counsel informed the trialjudge that the defendant did not wish to present any evidence.

On direct appeal, the defendant argued that he had intendedto testify that he had obtained from the actual offender theinformation he told Wrona about the case, and that he was merelybragging during his recorded conversation with Wrona. Barrow,133 Ill. 2d at 246-47. The defendant also argued that he hadplanned to call two witnesses who would have discredited thetestimony of Walter Hamlin, the witness who placed thedefendant's brother in a Cedar Point restaurant the night of themurder. Barrow, 133 Ill. 2d at 247. Finally, the defendant arguedthat he had intended to call a witness to testify that the impressionof the shoe found at the murder scene could not have been madeby the pair of shoes taken from his Maryland home. Barrow, 133Ill. 2d at 247.

This court recognized on direct appeal that an election by adefendant to present evidence after the denial of a motion for adirected verdict does not waive any challenge to the ruling if themotion is renewed at the close of all the evidence. Barrow, 133 Ill.2d at 249. Nonetheless, we concluded that in this case there wasno reasonable probability that the outcome of the trial would havebeen different if the defendant had presented the evidence towhich he referred. We aptly characterized the evidence ofdefendant's guilt as "overwhelming." Barrow, 133 Ill. 2d at 249.Given the great strength of the State's evidence, which includedstatements by the defendant implicating himself in the commissionof these offenses, testimony by the defendant that he had learnedof the details of the crimes from the actual offender "might havebeen considered insulting by the jury and been harmful to thedefendant." Barrow, 133 Ill. 2d at 249. Moreover, if the defendanthad testified, the prosecution could have cross-examined him onhis previous convictions. Barrow, 133 Ill. 2d at 249-50. We thusconcluded that the defendant failed to demonstrate prejudice underthe Strickland test. Barrow, 133 Ill. 2d at 250.

In the present post-conviction proceeding, the defendantargues that trial counsel was ineffective because, in his openingstatement, counsel promised to show that the defendant was notguilty but later rested without presenting a defense, and becausetrial counsel advised the defendant not to testify. We believe thatthis argument merely rephrases defendant's argument on directappeal, which was that trial counsel erroneously advised defendantto forgo presenting evidence in defense. A mere change inphraseology does not warrant our reconsideration of the issues.See People v. Emerson, 153 Ill. 2d 100, 106-07 (1992); People v.Albanese, 125 Ill. 2d 100, 105 (1988). Consequently, the doctrineof res judicata bars our reconsideration of these claims. SeeTowns, 182 Ill. 2d at 502.

The defendant next argues that trial counsel was ineffectivebecause he failed to investigate whether Harold "Smokey"Wrona's agreement with the police included the dismissal ofpending Illinois charges against Wrona, and because counsel failedto impeach Wrona with his prior convictions. The defendant haswaived these issues by failing to raise them on direct appeal. SeeTowns, 182 Ill. 2d at 503. The defendant makes the furthercontention, however, that appellate counsel was ineffective forfailing to argue these questions on direct appeal. Allegations ofineffective assistance of appellate counsel are evaluated under thesame standard that governs the performance of trial counsel.People v. West, 187 Ill. 2d 418, 435 (1999). Thus, a defendant whoalleges that appellate counsel was ineffective must show both adeficiency in counsel's performance and prejudice resulting fromthe asserted deficiency. People v. Flores, 153 Ill. 2d 264, 283(1992). Appellate counsel is not obligated to brief everyconceivable issue on appeal, however, and it is not incompetencefor counsel to refrain from raising issues that counsel believes arewithout merit. People v. Johnson, 154 Ill. 2d 227, 236 (1993). Forthese reasons, unless the underlying issue is meritorious, adefendant cannot be said to have incurred any prejudice fromcounsel's failure to raise that issue on appeal. People v. Childress,191 Ill. 2d 168, 175 (2000).

In light of the overwhelming evidence of guilt in this case, wemust conclude that the defendant has failed to establish therequisite prejudice. Even if appellate counsel had raised this issueon direct appeal, there is no reasonable probability that the resultof the appeal would have been different. Even if this court hadfound on direct appeal that trial counsel was deficient in failing toimpeach Wrona with his prior convictions and with any allegedagreement with the police, there is no reasonable probability thatthe court would also have concluded that, but for this deficientperformance, the result of defendant's trial would have beendifferent.

A number of witnesses placed the defendant and his brotherin the vicinity of Cedar Point around the time of these offenses.Walter Hamlin testified that a person whom he identified as thedefendant's brother was in his parents' restaurant on the night ofthe victim's murder. Several hours later, two men were seendriving away from Cedar Point in the defendant's rental car.Illinois state trooper Curtis Barmes testified that, at 1:55 a.m. onFebruary 19, 1984, he saw two white males in the vehicle thatdefendant had rented, and that the only way the car could havebeen at the point where he saw it was by turning off a road that ledfrom Cedar Point. Other witnesses placed the two in the area forseveral days preceding the offenses. Finally, the prosecutionpresented to the jury Wrona's testimony as well as the recordingof the conversation between the defendant and Wrona in theMaryland hotel room. The defendant, in his own words, told of thedetails of robbing and murdering the victim in the victim'shome-details that only the offender would know, such as the"pulling up" of the basement stairs.

The defendant also alleges a number of other instances ofineffective assistance of trial counsel. The defendant argues thattrial counsel was ineffective because counsel told the jury that itshould judge Wrona's testimony in the same manner as thetestimony of other witnesses; said in his opening statement that theprosecutor was personally convinced of the defendant's guilt andacknowledged the existence of a great deal of circumstantialevidence against his client; did not object to the prosecution'sreferences during trial to the defendant's prior bad acts; failed topursue the discovery of the investigating police officers' "streetfiles" in this case; did not have the defendant's shoes and the pieceof plywood from the victim's home examined by experts who hadbeen appointed to do so; and failed to impeach Judy Herron'stestimony that the defendant showed her a map of Cedar Point.

These issues could have been raised on direct appeal, but thedefendant failed to argue them at that time. Accordingly, they mustbe considered waived. See Towns, 182 Ill. 2d at 503. Thedefendant presses the alternative argument, however, that appellatecounsel was ineffective for failing to present the issues on directappeal. Consistent with the preceding discussion, we believe thatdefendant has failed to establish the requisite prejudice. As notedabove, the evidence of the defendant's guilt for these offenses wasoverwhelming. The defendant also reiterates, verbatim, severalother challenges to trial counsel's performance that this courtrejected on direct appeal. Because the doctrine of res judicata barsour reconsideration of these issues, we decline to address themagain here.

We must also reject the defendant's argument that "the recordtaken as a whole" demonstrates that trial counsel was ineffective.Even if we were to find that counsel's performance was deficient,there is no reasonable probability that, but for counsel'sperformance, the result of the trial would have been different,given the substantial amount of evidence of the defendant's guilt.

II

The defendant next argues that his right to counsel and hisright to a public trial were violated when the trial court "removedthe attorney who had prepared the case [Daniel Bute]" and"excluded/barred" Bute from the courtroom. On November 1,1984, the trial court appointed Wayne McFarland, the part-timepublic defender of Grundy County, to represent the defendant attrial. The public defender of La Salle County was not able torepresent the defendant because he was already representing thedefendant's brother, Bruce Barrow, on perjury charges relating tothis case. On January 3, 1985, defense counsel filed a motion forthe appointment of a special assistant defense attorney on theground that the defendant's case was unduly burdensome. The trialcourt granted the motion and appointed Daniel Bute, an assistantLa Salle County public defender, as a special assistant toMcFarland.

On January 29, 1985, the State filed a motion to remove Butefrom the defendant's case, alleging the existence of a conflict ofinterest. According to the State, Bute and his law partner were thenrepresenting the sheriff of La Salle County in a civil matter, andBute had previously represented the sheriff in various othermatters. At the hearing on the State's motion, it was furtherrevealed that Bute had previously represented Illinois state trooperHarry Hockings, one of the prosecution witnesses, in a divorceproceeding, and that Bute's law firm had previously representedthe victim's son, another prosecution witness, in a real estatetransaction. The State argued that Bute would not be able to cross-examine these witnesses effectively. The trial court admonishedthe defendant of the possible conflict. The defendant stated that hewaived his right to complain of any possible conflict. After findingthat the defendant's waiver was voluntary, knowing, andintelligent, the trial judge denied the State's motion to removeBute from the case.

On April 30, 1985, one week before trial was scheduled tobegin, McFarland filed a motion to withdraw from the case and tohave Bute substituted as counsel. In support of the motion,McFarland stated that he had recently resigned as Grundy Countypublic defender and that the upcoming trial would interfere witha family matter. The trial judge denied the motion as untimely andfurther explained that Bute had been appointed only for pretrialpreparation. On May 2, 1985, McFarland filed a motion tocontinue Bute's representation through the trial. Consistent withthe earlier rulings, the trial court denied this motion. Jury selectionbegan on May 7, 1985. McFarland alone represented the defendantduring the trial.

The defendant now argues that his right to counsel and hisright to a public trial were violated when the trial court removedBute from the case and "barred" Bute from the courtroom. Webelieve that the present contention simply rephrases one that thiscourt considered and rejected on direct appeal: that the defendantwas denied his right to effective assistance of counsel by the trialcourt's denial of his pretrial motion for substitution of counsel.See Barrow, 133 Ill. 2d at 250-55. Accordingly, the doctrine of resjudicata bars the defendant from raising this argument here. SeeTowns, 182 Ill. 2d at 502.

This court rejected the defendant's argument on direct appeal.At that time, we held that the trial court did not abuse its discretionin denying the defendant's request to substitute Bute as counsel ofrecord. We reasoned that Bute might not have been able to cross-examine effectively some of the prosecution witnesses because ofa conflict of interest, that the substitution would have delayed thetrial, and that the defendant had offered no persuasive reasons forsubstituting counsel. Barrow, 133 Ill. 2d at 252. This court was notpersuaded by the defendant's arguments that he was willing towaive his right to conflict-free counsel and that Bute was alreadyfamiliar with the case. See Barrow, 133 Ill. 2d at 252-55. Weexplained that, although a defendant may waive his right toconflict-free counsel, a court is not required to accept such awaiver. Barrow, 133 Ill. 2d at 252-55, citing Wheat v. UnitedStates, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).We therefore concluded that, although the defendant waived hisright to conflict-free counsel, the trial court appointed Bute onlyfor pretrial purposes, presumably because the trial court believedthat the potential conflict would not affect Bute's representationof defendant in matters concerning pretrial preparation. Barrow,133 Ill. 2d at 254.

This court on direct appeal also rejected defendant's argumentthat the trial court's refusal to continue Bute's appointment intotrial was improperly based on the trial court's erroneousconclusion that the county would have to pay for two lawyers.Barrow, 133 Ill. 2d at 254-55. We found that the defendant failedto show that he was prejudiced by McFarland's representation.Barrow, 133 Ill. 2d at 255. Specifically, we stated that the recordrevealed that the defendant received effective assistance of counselthroughout his trial, noting that McFarland "vigorously cross-examined witnesses, made numerous motions and posedobjections when appropriate." Barrow, 133 Ill. 2d at 255.

The defendant argues that res judicata should not bar ourconsideration of this issue because he has since discovered newevidence to support the claim. This court will relax the doctrine ofres judicata when the evidence relating to the claim do not appearon the face of the original appellate record. See People v. Hobley,182 Ill. 2d 404, 428 (1998). The defendant cites, as new evidence,an affidavit from Bute. In the affidavit, Bute states that hissubstitution as lead trial counsel would not have delayeddefendant's trial. We do not agree with the defendant that thisqualifies as a new fact. Before the trial judge, at the hearing on themotion to substitute Bute as trial counsel, McFarland argued thatBute should represent the defendant because of his "ultimatepreparedness."

The defendant also contends that "it is now clear that Butewas not appointed merely for pretrial preparation." In support ofthat assertion, the defendant offers a number of documents. Theseinclude the State's January 29, 1985, motion to remove Bute fromthe case; the transcript of the hearing on the motion; a letter fromMcFarland to Bute, dated April 29, 1985, a week before thescheduled commencement of defendant's trial, regarding the needto discuss issues in the case; the defendant's letter to the trialjudge, dated May 1, 1985, requesting that Bute remain on the case;and Bute's affidavit in support of the present post-convictionpetition.

We do not consider any of this information to constitute newevidence that would warrant our relaxation of the doctrine of resjudicata. The defendant does not argue that any of this informationis newly discovered or was otherwise unavailable on direct appeal.Indeed, on direct appeal this court referred to the State's motion toremove Bute from the case and to the hearing on the motion.

The defendant further maintains that this court was mistakenon direct appeal when it reasoned that the trial court had refusedto accept the defendant's waiver of conflict-free counsel. SeeBarrow, 133 Ill. 2d at 252-55. Rather, the defendant asserts, thetrial court accepted defendant's waiver when it denied the State'smotion to remove Bute from the defendant's case. Again, thedefendant cites proceedings that were part of the record on directappeal, and he simply offers his interpretation of the originalproceedings in support of the argument that "new facts" warrantour reconsideration of this issue. As this court has previouslyobserved, "  '[t]he Post-Conviction Hearing Act was not intendedto be used as a device to obtain another hearing upon a claim ofdenial of constitutional rights where there has already been a fullreview of the issues raised ***. This is so, even though the presentpetition attempts to change the character of the questionspreviously advanced and decided, by describing them in differentconstitutional terms.' " Emerson, 153 Ill. 2d at 106, quotingPeople v. Cox, 34 Ill. 2d 66, 67-68 (1966).

On direct appeal, this court rejected the defendant's argumentthat he was denied his right to effective assistance of counsel bythe trial court's denial of his motion for substitution of counselprior to trial. See Barrow, 133 Ill. 2d at 250-55. The defendantnow raises the same issue in arguing that his right to counsel wasviolated when the trial court "removed the attorney who hadprepared the case [Daniel Bute]" and "excluded/barred" Bute fromthe courtroom. This issue is barred by res judicata. As a finalmatter, we reject the defendant's conclusory argument that"fundamental fairness" requires us to relax the doctrine of resjudicata in this case.

III

The defendant next argues that his constitutional right to dueprocess was violated at trial because the State elicited falsetestimony from Harold "Smokey" Wrona regarding what promiseswere made to him in exchange for his testimony against defendant.The State's knowing use of perjured testimony to obtain a criminalconviction violates due process. People v. Jimerson, 166 Ill. 2d211, 223 (1995). "A conviction obtained by the knowing use ofperjured testimony must be set aside if there is any reasonablelikelihood that the false testimony could have affected the jury'sverdict." People v. Olinger, 176 Ill. 2d 326, 345 (1997). The sameprinciples also apply when the State, although not soliciting thefalse testimony, permits it to go uncorrected when it occurs.Olinger, 176 Ill. 2d at 345. This is so even when the falsetestimony concerns only that witness' credibility. Olinger, 176 Ill.2d at 345.

On direct examination during the defendant's trial, Wronatestified that he did not make any agreements with Illinoisauthorities in exchange for his testimony. Wrona stated that theonly agreement he had with law enforcement authorities was onethat provided for his release from the Maryland prison. During thehearing on the defendant's motion for a new trial, the defendant'snew attorney, J.D. Flood, who was substituted for trial counselWayne McFarland, informed the trial court that two pendingfelony charges against Wrona in Bureau County, Illinois, had beendismissed by the State by means of nolle prosequi orders. Theseorders were entered about three weeks after the defendant wassentenced in this case. The State has consistently maintainedthroughout the proceedings in this case that these felony chargesagainst Wrona, one for theft, and the other for aggravated battery,filed in 1980, were dropped because witnesses were no longeravailable.

The defendant argues that the dismissal of the chargesresulted from an agreement between Wrona and Illinoisauthorities. In support of this contention, the defendant cites aletter, dated April 16, 1985, approximately two weeks before trial,from McFarland to Dan Bute, the attorney who was appointed toassist McFarland in the defendant's case. In the letter, McFarlandwrites that a Bureau County judge informed McFarland that, oneyear earlier, the Bureau County judge was "getting ready" to heara case against Wrona but the case "disappeared." McFarlandfurther wrote that the judge "advises me that he believes allpending causes against Mr. Wrona in La Salle County and BureauCounty were to be dropped in exchange for Mr. Wrona'stestimony in this case." The defendant also cites affidavits fromtwo witnesses for the theft charge. These witnesses state that theywere willing and available to testify against Wrona but that theBureau County prosecutor's office never contacted them.

During the course of these proceedings, defendant filed amotion in this court for a limited remand to the circuit court forpurposes of discovery in light of People v. Olinger, 176 Ill. 2d 326(1997). In Olinger, the court held that the capital defendant in thatcase was entitled to an evidentiary hearing on his post-convictionclaim that a critical prosecution witness had received anundisclosed multijurisdictional deal in exchange for the witness'testimony against the defendant. Olinger, 176 Ill. 2d at 342-52. Inthe present case, we allowed the defendant's motion for a limitedremand to the circuit court for purposes of discovery in light of ourdecision in Olinger.

On remand, the circuit court permitted the defendant to takethe depositions of three persons: the two La Salle Countyprosecutors from the defendant's trial in this case, and the BureauCounty prosecutor who, after the defendant's trial, had dismissedthe felony charges against Wrona. The circuit judge denied thedefendant's requests for additional discovery and for a hearing onthe question whether a multijurisdictional agreement existed. Thecircuit court then returned the cause to this court.

The defendant explains in a supplemental brief in this courtthat the three prosecutors stated during their depositions that theyknew of no deals with Wrona that involved dismissing Wrona'spending Bureau County charges. The defendant nonetheless pointsto what he calls "substantial inconsistencies" in the threedepositions. The defendant has not supplemented the record in thiscourt with the depositions. We hold that, in any event, thedefendant has failed to show a reasonable likelihood that theallegedly false testimony by Wrona could have affected the jury'sverdict. See Olinger, 176 Ill. 2d at 345.

Even if we assume that an agreement existed and that theState failed to disclose it, the substantial nature of the evidenceagainst the defendant establishes that there is no reasonablelikelihood that the allegedly false testimony could have affectedthe jury's verdict in this case. See Olinger, 176 Ill. 2d at 345. Aswe have already discussed in detail, the evidence of thedefendant's guilt was overwhelming. A great deal of evidenceplaced the defendant in the vicinity of Cedar Point during the weekpreceding the victim's murder. Moreover, the record contains thedefendant's own incriminating words describing his role in theseoffenses. The jury heard the recording of the defendant'sconversation with Wrona in the Maryland hotel room. Thedefendant gave Wrona a detailed account of the crimes, providinginformation that only the offender could have known. Thedefendant told Wrona that "everything went just like *** we hadplanned it." The defendant explained that he had watched thevictim's home for one week and that late one evening he forcedhis way into the residence. The defendant stated that although hehit the victim "all over," the victim would not tell defendantanything except "where he kept change." The defendant said thathe searched everywhere but found only an empty safe in thebasement. The basement was full of "garbage" and things like"sawhorses." The defendant also stated that he "pulled up" the firsttwo stairs leading to the basement but did not find any moneythere. The defendant said that the victim "kept saying, 'How doyou know all this?' " The defendant said that he did get "a fewfifty cent pieces I found on his bureau." Wrona asked thedefendant what kind of gun he used, and the defendant replied thatit was a "hot, nine mil[limeter]" from Delaware. When Wronaasked the defendant if the defendant had looked in the garage, thedefendant replied that he did not because "I was worried once, youknow, it happened, *** maybe the neighbors did hear something,you know. So we just *** rode out of there." The defendant toldWrona that when Bruce Barrow called the defendant from thepolice station after driving the wrong way down a one-way streetin La Salle, the defendant worried because the "piece" was in the"glovebox." The defendant also told Wrona that he received aspeeding ticket in Indiana, but that, at that point, he had already"tossed" the "piece" off a bridge into the water. In response toWrona's questions about disposing of the "piece," the defendantstated, "That's the one good thing about it, they-they could put meout there, I imagine. But, *** they could never prove nothing."

Accordingly, even if Wrona did have an agreement withIllinois authorities, reversal of the defendant's convictions on thatground would not be warranted. Under the particular facts of thiscase, in light of the overwhelming evidence of guilt, we believethat the defendant has failed to show a reasonable likelihood thatthe alleged false testimony could have affected the jury's verdict.See Olinger, 176 Ill. 2d at 345.

IV

The defendant next contends that the State violated his rightto due process by failing to disclose to the defense all exculpatoryevidence, as required by Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215, 83 S. Ct. 1194 (1963). The defendant argues that theState violated the Brady rule by failing to disclose informationrelating to the 1966 burglary of the victim's home, informationabout Wrona's criminal history, and the prior testimony of one ofthe States witnesses.

To establish a Brady violation, the undisclosed evidence mustbe both favorable to the accused and material. Favorable evidenceis material in this context " 'if there is a reasonable probabilitythat, had the evidence been disclosed to the defense, the result ofthe proceeding would have been different.' " Coleman, 183 Ill. 2dat 393, quoting United States v. Bagley, 473 U.S. 667, 682, 87 L.Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). The materialitydetermination "turns on whether the '[g]overnment's evidentiarysuppression "undermines confidence in the outcome of the trial," 'which *** 'is not a sufficiency of evidence test.' " Coleman, 183Ill. 2d at 393, quoting Kyles v. Whitley, 514 U.S. 419, 434, 131 L.Ed. 2d 490, 506, 115 S. Ct. 1555, 1566 (1995), quoting Bagley,473 U.S. at 678, 87 L. Ed. 2d at 491, 105 S. Ct. at 3381. Thecumulative effect of all the suppressed evidence informs themateriality determination. Kyles, 514 U.S. at 436-37, 131 L. Ed.2d at 507, 115 S. Ct. at 1567; Coleman, 183 Ill. 2d at 393.

The defendant first argues that the State failed to discloseinformation regarding the 1966 burglary of the victim's home. Thedefendant asserts that Wrona's credibility rested upon the fact thatWrona knew various details about the residence-details that thedefendant had related to him. According to the defendant, ifWrona had participated in the 1966 burglary, the probative valueof Wrona's testimony would have been correspondingly reduced.In testimony in this case before the grand jury and in pretrialmotions, Herbert Klein, a captain at the La Salle County sheriff'sdepartment, testified that his office had considered Wrona asuspect in the 1966 burglary. After trial counsel filed a motionrequesting the investigative files of the 1966 burglary, the trialcourt ordered the State "to check with the sheriff and in their ownfiles for what is or is not available concerning the prior O'Bertoburglary."

During a pretrial suppression hearing, defense counsel askedOfficer Klein whether his office maintained an investigative fileon Wrona's suspected involvement in the 1966 burglary. The trialcourt sustained the State's objection to this question. Nevertheless,according to the defendant, the State was in possession of such aninvestigative file; as proof, the defendant refers to the testimony ofthe victim's daughter, when the prosecution introduced intoevidence five crime scene photographs from the 1966 burglary.The defendant believes that the existence of those photographssuggests the existence of a file on the case. During these post-conviction proceedings, the defendant filed a motion forproduction of any investigative files from the 1966 burglary. Thecircuit court denied the motion.

The defendant further argues that the State violated Brady byfailing to provide information regarding Wrona's criminal record.Prior to trial, defense counsel asked the State to produce Wrona'scriminal record. At a pretrial hearing, the trial court asked theprosecutor if he had the "Illinois or FBI rap sheets" for Wrona.The prosecutor replied, "I don't have that right here." On thefourth day of trial, defense counsel again requested thisinformation from the State. The prosecutor replied that he hadmade the request but had not received the information, and statedthat he had "no control over the FBI." The defendant argues thatWrona's "rap sheets" were important because the defense had aright to investigate Wrona's alleged history as a police informant.

The defendant attaches to his amended post-convictionpetition a letter to the defendant from an investigator for theCapital Resource Center; the letter states that "a copy of Wrona'sFBI sheet" had been found. The defendant has submitted this "rapsheet," which reveals that Wrona had numerous burglary and theftconvictions. The defendant also attaches a summary of Wrona'scriminal history; it is unclear who prepared this summary. Thedefendant also cites People v. Wrona, 7 Ill. App. 3d 1, 7 (1972), inwhich the appellate court characterized Wrona as a "habitualoffender."

In this regard, the defendant also argues that trial counselrequested, in a motion for discovery, the reports of any policeinterviews with Wrona pertaining to this case. According to thetrial testimony, police officers met with Wrona on three occasionsfor several hours and apparently discussed the defendant's casewith him. The State reported to the trial court that no writtenreports regarding these meetings existed, and the defendant has notattached any reports like that to his post-conviction petition. Thedefendant further points out that, before trial began, the State toldthe judge that it had discovery available regarding telephoneconversations between Wrona and his girlfriend, Judy Herron. Thedefendant's post-conviction petition alleges that the State neverproduced this information. The defendant does not attach thetranscript of any such conversation to his post-conviction petition.

Finally, the defendant argues that the State failed to disclosethe prior testimony of Walter Hamlin, who testified that he saw thedefendant's brother, Bruce Barrow, at Hamlin's parents' restaurantin Cedar Point on the night of the murder. Trial counsel's motionfor discovery requested any prior testimony offered by Hamlin. Afew months before testifying at the defendant's trial, Hamlin hadtestified against defendant's brother in a case involving perjurycharges that stemmed from the investigation in the present case,and the defendant has attached to his post-conviction petition atranscript of Hamlin's testimony from the perjury trial. Thedefendant notes several differences between Hamlin's testimonyin the perjury case and at trial here. For example, in the earlierproceeding Hamlin testified that he was in the presence of hisbrother when he saw a man whom he later identified as Bruce inthe restaurant as early as 7 p.m., and he said that he did not knowwhether Bruce had a moustache. In the defendant's case, however,Hamlin testified that he was in the presence of a waitress when hesaw Bruce in the restaurant, at 10 p.m, and that Bruce had amoustache. The defendant also appears to argue in this regard thatthe State failed to produce unidentified statements that certainwitnesses made to a law enforcement officer.

The defendant contends that the State violated Brady byfailing to disclose to the defense all the evidence described above,and that a new trial is therefore warranted. We find no basis for anew trial on this claim. Assuming, without deciding, that theevidence exists, the prosecution's failure to disclose it would notwarrant a new trial, under the circumstances present here. Thesuppressed evidence must be material if it is to establish a Bradyviolation. In this context, evidence will be deemed material onlyif there exists a reasonable probability that the result of theproceeding would have been different if the evidence had beendisclosed to the defense. See People v. Hobley, 182 Ill. 2d 404,432 (1998). As discussed above, the evidence of defendant's guiltwas overwhelming. In light of the overwhelming evidence of guiltin this case, we conclude that there is no reasonable probabilitythat, even if all the allegedly suppressed evidence been disclosedto the defense, the result of the defendant's trial would have beendifferent.

V

The defendant next argues that he is entitled to a new trialbecause he was receiving a psychotropic medication during thetrial proceedings, and the trial judge never conducted a fitnesshearing. We note that the first time that defendant raised this issuewas in his motion for leave to file a "second pro se supplementalpetition to amended petition for post-conviction relief," which thepost-conviction court denied. The principle is well established thata defendant waives a post-conviction issue if the issue is not raisedin the original or amended post-conviction petition. People v.Johnson, 154 Ill. 2d 227, 233 (1993); see 725 ILCS 5/122-3 (West1998) ("[a]ny claim of substantial denial of constitutional rightsnot raised in the original or an amended petition is waived"). Thedefendant also failed to raise this issue on direct appeal. Althoughwe would generally conclude that this issue has been procedurallydefaulted, we will address it in this appeal, in light of the absenceof a brief-and an argument for waiver-by the State.

The defendant argues that the absence of a fitness hearingdeprived him of due process, and that his trial counsel wasineffective for failing to request a fitness hearing. The statute ineffect at the time of defendant's trial, section 104-21(a) of theCode of Criminal Procedure of 1963, provided that "[a] defendantwho is receiving psychotropic drugs or other medications undermedical direction is entitled to a hearing on the issue of his fitnesswhile under medication." Ill. Rev. Stat. 1985, ch. 38, par.104-21(a). The defendant's medical records from the La SalleCounty Correctional Center show that he was ingesting Adapinduring the trial proceedings. Adapin, also known as Sinequan anddoxepin, is considered a psychotropic drug. See 405 ILCS5/1-121.1 (West 1996); Physicians' Desk Reference 112, 2407(53d ed. 1999); AMA Drug Evaluations 144 (6th ed. 1986).

In the wake of this court's recent decision in People v.Mitchell, 189 Ill. 2d 312 (2000), we must reject the defendant'sargument that the failure to hold a fitness hearing under section104-21(a) denied him due process and may serve as a basis forpost-conviction relief. In Mitchell, an appeal in a post-convictioncase, this court held that a defendant's right to a hearing undersection 104-21(a) is purely statutory. Because post-convictionproceedings are limited to allegations of constitutionaldeprivations, the Mitchell court concluded that the denial of ahearing under that provision cannot serve as a basis for post-conviction relief. Mitchell, 189 Ill. 2d at 329. For these reasons,we must hold in the present case that the defendant's contentionthat he was entitled to a fitness hearing under section 104-21(a)cannot provide a basis for post-conviction relief.

The defendant makes the further argument, however, that hewas denied the constitutional right to the effective assistance ofcounsel by his trial lawyer's failure to invoke the provisions ofsection 104-21(a). This contention has a constitutional basis andtherefore is cognizable in a post-conviction proceeding. SeeMitchell, 189 Ill. 2d at 337-38. As we discussed earlier in thisopinion, a defendant raising a claim of ineffective assistance ofcounsel must show both that counsel's performance was deficientand that the defendant was prejudiced by the asserted deficiency.Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,693, 104 S. Ct. 2052, 2064 (1984). Applying the Strickland test forprejudice in the context of a claim of ineffective assistance ofcounsel for failure to seek a hearing under section 104-21(a),Mitchell held that a defendant in those circumstances must showthat there is a reasonable probability that he would have beenfound unfit if counsel had requested a fitness hearing. Mitchell,189 Ill. 2d at 334. We do not believe that the defendant hassatisfied that standard. A defendant is considered unfit for trial "if,because of his mental or physical condition, he is unable tounderstand the nature and purpose of the proceedings against himor to assist in his defense." 725 ILCS 5/104-10 (West 1998). Themedication log sheet for the defendant from the La Salle CountyCorrectional Center shows that he was receiving Adapin dailyfrom November 6, 1984, until June 10, 1985. The defendant hasfailed, however, to present any evidence to show a reasonableprobability that he would have been found unfit for trial if counselhad requested a fitness hearing under the statute. It appears that thedefendant was taking the drug for anxiety, headaches, andstomachaches. The defendant has not provided any furtherinformation in support of this contention. We therefore concludethat he has failed to establish a reasonable probability that hewould have been found unfit if counsel had requested a hearing.

VI

As noted above, this court allowed the defendant to file a prose "supplemental" appellate brief. Although a defendant does nothave the right to both self-representation and the assistance ofcounsel (People v. McDonald, 168 Ill. 2d 420, 435 (1995)), wewill in this case, as we have in other capital cases, consider thearguments raised in the defendant's pro se brief. See People v.Emerson, 189 Ill. 2d 436, 516-17 (2000); McDonald, 168 Ill. 2dat 435; People v. Gacy, 125 Ill. 2d 117, 133-34 (1988). Althoughmost of the issues raised by the defendant in his pro se briefduplicate issues raised by counsel, we will address the defendant'sdistinct contention that he is actually innocent of the crimes forwhich he was convicted in this case.

In People v. Washington, 171 Ill. 2d 475, 489 (1996), thiscourt held that a post-conviction petitioner may pursue a free-standing claim of actual innocence based on newly discoveredevidence. To win relief under that theory, the supporting evidencemust be new, material, and noncumulative, and it must be of suchconclusive character that it would probably change the result onretrial. Washington, 171 Ill. 2d at 489. Newly discovered evidencemust be evidence that was not available at defendant's trial andthat the defendant could not have discovered sooner throughdiligence. People v. Burrows, 172 Ill. 2d 169, 180 (1996).

In support of the present argument, the defendant has attachedaffidavits from David and Cheryl Stevenson, who identifythemselves as friends of Harold "Smokey" Wrona. DavidStevenson states in his affidavit that Wrona told him, in April1988, that Wrona lied at the defendant's trial to get out of prisonand that the person who actually committed the crimes involvedhere was Wrona's friend. Cheryl Stevenson, in her affidavit, statesthat she overheard Wrona tell David this information.

We hold that the Stevensons' affidavits are not of suchconclusive character that the testimony would likely change theresult of the defendant's trial. Again, the evidence against thedefendant was "overwhelming," as this court noted on directreview (Barrow, 133 Ill. 2d at 249-50), and as we have previouslystated in this opinion. The testimony at trial conclusively placeddefendant near the scene of the crime at the time of itscommission. In addition, the evidence included a tape-recordedconversation between defendant and Wrona in which thedefendant implicated himself in these crimes. Regardless ofWrona's testimony, the jury heard defendant, in his own words,describe the commission of the offenses. We therefore hold thatthe Stevensons' affidavits are not of such conclusive character thatthey would likely change the outcome of defendant's trial.

* * *

For the reasons stated, the judgment of the circuit court ofLa Salle County is affirmed. The clerk of this court is directed toenter an order setting Tuesday, May 15, 2001, as the date on whichthe sentence of death, entered in the circuit court of La SalleCounty, is to be carried out. The defendant shall be executed in themanner provided by law. 725 ILCS 5/119-5 (West 1998). Theclerk of this court shall send a certified copy of the mandate in thiscase to the Director of Corrections, to the warden of TammsCorrectional Center, and to the warden of the institution where thedefendant is now confined.

Judgment affirmed.

JUSTICE FREEMAN, concurring:

I concur in the court's decision. I write separately only toexpress my reason for no longer adhering to the rationale of thedissent which I authored in People v. Mitchell, 189 Ill. 2d 312, 362(2000) (Freeman, J., dissenting, joined by Harrison, C.J., andMcMorrow, J.).

In the wake of Mitchell, this court issued a series of opinionsin which the law as set forth in Mitchell was applied. See Peoplev. Moore, 189 Ill. 2d 521 (2000); People v. Jones, 191 Ill. 2d 194(2000); People v. Holman, 191 Ill. 2d 204 (2000); People v. Jones,191 Ill. 2d 354 (2000). I dissented in these cases, not only becauseI disagreed with Mitchell, but because I believed that the courtunfairly denied those defendants the opportunity to rebrief thematter in light of the new principles set forth in Mitchell.Notwithstanding my dissents, our psychotropic drug jurisprudenceremains the same today as it was on the day Mitchell wasannounced.

The present case necessitates this court to once again revisitthe area of psychotropic drugs. The conclusion reached today isconsistent with Mitchell and all of the aforementioned decisionswhich post-dated Mitchell. Those of us who, in the past, havedisagreed with that conclusion have voiced our dissent. I, havingdone so, now believe that it is my obligation to accept the law aspronounced by the court.

In my dissent in Mitchell, I emphasized the need for theconsistent application of legal principles and rules in similar cases:"The law of this court cannot be seen by the bar and the public tobe one that is constantly 'in flux,' changing from opinion toopinion, particularly in capital cases." Mitchell, 189 Ill. 2d at 395(Freeman, dissenting, joined by Harrison, C.J., and McMorrow,J.). A year has passed since the announcement of Mitchell. Duringthat time, the law announced in Mitchell has not changed. Theonly change that has occurred is that three members of the courtwho joined in the majority have left, and three new justices havetaken their place. In light of this fact, I believe that my continuedopposition in this area does little good and goes against the veryprinciples of stare decisis that I cited in my original dissent. Notone circumstance has changed in our psychotropic drugjurisprudence since the court announced Mitchell, except for thefact the above-noted change in court personnel. As I noted in mydissent in Mitchell, " this type of 'circumstance' does not rise tothe level necessary to overturn the doctrine of stare decisis."Mitchell, 189 Ill. 2d at 398 (Freeman, J., dissenting, joined byHarrison, C.J., and McMorrow, J.). In this situation, I believe thatthe words of Justice Ryan, quoted in my dissent in Mitchell, areparticularly apt: " '[i]f the law were to change with each change inthe makeup of the court, then the concept that ours is agovernment of law and not of men would be nothing more than apious cliche.' " Mitchell, 189 Ill. 2d at 366 (Freeman, J.,dissenting, joined by Harrison, C.J., and McMorrow J.), quotingPeople v. Lewis, 88 Ill. 2d 129, 167 (1981) (Ryan, J, concurring).

For this reason, although I authored the dissent in Mitchell, Iconcur in the opinion and judgment of the court in this case.

CHIEF JUSTICE HARRISON, concurring in part anddissenting in part:

I agree that Barrow's convictions should not be disturbed. Inmy view, however, his sentence of death cannot be allowed tostand. For the reasons set forth in my partial concurrence andpartial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinoisdeath penalty law violates the eighth and fourteenth amendmentsto the United States Constitution (U.S. Const., amends. VIII, XIV)and article I, section 2, of the Illinois Constitution (Ill. Const.1970, art. I,