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Docket No. 86898-Agenda 2-March 2001.

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

Opinion filed October 18, 2001.

JUSTICE McMORROW delivered the opinion of the court:

Defendant, Ronald Burt, appeals from an order of the circuitcourt of Stephenson County dismissing his amended petition forpost-conviction relief without an evidentiary hearing. Becausedefendant was sentenced to death for the underlying murderconvictions, the present appeal lies directly to this court. 134 Ill.2d R. 651(a).

BACKGROUND

This court has previously set forth the evidence presented atdefendant's trial in our opinion on defendant's direct appeal. SeePeople v. Burt, 168 Ill. 2d 49 (1995). Therefore, we discuss onlythose facts and evidence necessary to the disposition of thisappeal.

On January 16, 1992, the bodies of H. Steven Roy, age 48,and Kevin Muto, age 18, were found in two separate bedrooms ofthe farm house that Roy rented. Roy and Muto, who had beenemployed by Roy as a farmhand, had been shot to death.

Defendant was arrested in connection with the deaths onJanuary 17, 1992. Initially, defendant stated that he knew nothingabout the crimes. However, after a detective informed defendantthat the authorities had gathered information about defendant'sinvolvement in the crimes from Dannie Booth and David Craig,defendant provided a statement.

In his first statement, defendant said that he, Booth and Craigwent to Roy's farm to collect a debt allegedly owed to Booth.While inside Roy's house, defendant pointed a .22-caliber rifle atRoy, demanded his wallet and then ordered Roy to walk to abedroom. Defendant and Booth followed Roy to the bedroom,while Craig remained in the hallway. Defendant pushed Roy ontoa bed. According to defendant, when Roy made a movement,defendant shot him because he was afraid Roy might try to "pullsomething." Booth then took the rifle and shot Roy several times.

Defendant stated that, after the shooting, he, Booth and Craigtook a VCR and meat from Roy's home. While they were takingthese items, Muto knocked on the door. When Muto refused toleave, Booth took the gun from defendant and walked Muto to adifferent bedroom. Booth took Muto's wallet, ordered him to lieon the floor, and shot him in the back of the head and back.Defendant then took the rifle from Booth and shot Muto in theback. Subsequently, the three men left the house with the meat, theVCR, a gun, and some of Roy's personal checks.

On January 18, 1992, defendant provided another statement.This statement was tape-recorded and was similar to defendant'sfirst statement. In this statement, defendant added that, after heshot Roy, he and Craig discussed shooting Booth for fear thatBooth would disclose the events surrounding Roy's murder. Uponhearing this, Booth took the rifle from defendant and shot Royseveral times. Defendant repeated his assertion that he shot Mutoin the back only after Booth had shot him in both the head andback.

On January 24, 1992, six days later, defendant asked to speakto authorities. He then provided a third statement. In this thirdstatement, defendant said that he did not shoot Muto, but ratherthat Booth was the only person who had shot Muto. Defendantstated that he had admitted to shooting Muto to protect Booth,because Booth was only 14 years old.

On February 5, 1992, defendant was charged with, inter alia,two counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2),(a)(3) (West 1998)) and armed robbery (720 ILCS 5/18-2(a) (West1998)) relating to the murders of Roy and Muto. A jury wasempaneled to hear the charges in the circuit court of StephensonCounty. Prior to defendant's jury trial, the State moved to excludedefendant's third statement, given on January 24, 1992, because,the State argued, it was self-serving hearsay. The trial courtgranted the State's motion in limine. However, both defensecounsel and the trial court clarified on the record that the court'sdecision to exclude the January 24 statement applied only to thetrial and not to the potential sentencing stage of the proceeding.Defense counsel did not attempt to introduce the January 24statement at defendant's sentencing hearing.

Also prior to trial, on July 13, 1992, defense counselrequested that defendant undergo a fitness evaluation. Pursuant toan order of the circuit court, Dr. Donald Pearson, a psychologist,examined defendant and, after administering 14 tests, concludedthat defendant was fit to stand trial. Dr. Pearson noted in his reportthat defendant stated that he was taking the medications Empirin(imipramine), Sinequan and Valium. Defense counsel stipulatedto Dr. Pearson's report, and the trial court found defendant fit tostand trial. No other inquiry into fitness was ordered or conducted.

Defendant's case then proceeded to a jury trial on March 23,1993. On March 26, 1993, just prior to the time that the Stateindicated it would rest its case and before the presentation of anydefense, defendant's attorneys informed the court that, againsttheir advice, defendant wished to change his plea from not guiltyto guilty on all charges. The court admonished defendantconcerning the consequences of pleading guilty. When defendantpersisted in his guilty pleas, the court determined that, based onthe evidence that had been admitted in the proceedings, there wasa factual basis to accept the pleas. On March 26, 1993, the courtentered judgments of guilty on the counts of first degree murder ofKevin Muto, first degree murder of Steven Roy, and armedrobbery.

At a separate sentencing hearing on March 26, 1993, the Statesought to prove defendant eligible for the death penalty. The Stateargued that defendant was eligible for the death penalty becausedefendant was convicted of murdering two or more individuals(see 720 ILCS 5/9-1(b)(3) (West 1998)) and because defendantkilled an individual in the course of another felony (see 720 ILCS5/9-1(b)(6) (West 1998)), in this case, armed robbery. The juryfound defendant eligible for the death penalty only under section9-1(b)(3), the multiple-murder aggravating factor. 720 ILCS5/9-1(b)(3) (West 1998).

Subsequently, at defendant's death penalty hearing, the Statepresented two witnesses in aggravation. The defendant presentedseven witnesses in mitigation. Six of those witnesses were familymembers or friends of defendant, and testified as to his troubledchildhood, exposure to family violence, alcohol and drug use andhis capacity for kindness. Defendant also presented experttestimony from a clinical psychologist, who concluded thatdefendant committed the murders while under the influence of anextreme mental or emotional disturbance.

The jury determined that there were no mitigating factorssufficient to preclude imposition of the death penalty. 720 ILCS5/9-1(g) (West 1998). Defendant moved for a new trial andsentencing hearing, which the trial court denied. On April 1, 1993,defendant was sentenced to death.

On direct appeal, this court affirmed defendant's convictionsand sentence. People v. Burt, 168 Ill. 2d 49 (1995). Rehearing wasdenied on December 4, 1994. Subsequently, the United StatesSupreme Court denied defendant's petition for certiorari. Burt v.Illinois, 517 U.S. 1211, 134 L. Ed. 2d 936, 116 S. Ct. 1832 (1996).On January 2, 1996, defendant filed a pro se post-convictionpetition in the circuit court of Stephenson County. Following theappointment of counsel, defendant filed an amended petition forpost-conviction relief on December 29, 1997. The circuit courtdismissed defendant's petition for post-conviction relief withoutan evidentiary hearing.

ANALYSIS

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.(West 1998)) provides a remedy for criminal defendants who havesuffered a substantial violation of their federal or stateconstitutional rights during their original trial or sentencinghearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). An actionfor post-conviction relief is not an appeal from the underlyingjudgment, but rather a collateral attack on trial court proceedingsin which a defendant has the burden to establish substantialconstitutional violations that have not been and could not havebeen previously adjudicated. People v. Johnson, 191 Ill. 2d 257,268 (2000). Issues that were decided on direct appeal are barred bythe doctrine of res judicata, and issues that could have been raisedon direct appeal, but were not, are waived. Johnson, 191 Ill. 2d at268.

An evidentiary hearing on a post-conviction petition is not amatter of right, but rather is warranted only where the defendant'sallegations make a substantial showing that his constitutionalrights were violated. People v. Hobley, 182 Ill. 2d 404, 427-28(1998). In determining whether to grant an evidentiary hearing ona post-conviction petition, all well-pled facts in the defendant'spetition and any accompanying affidavits are taken as true. Towns,182 Ill. 2d at 503. However, nonfactual and nonspecific assertionswhich merely amount to conclusions are insufficient to require ahearing under the Post-Conviction Hearing Act. People v.Coleman, 183 Ill. 2d 366, 381 (1998).

We review de novo a trial court's dismissal of a post-conviction petition without an evidentiary hearing. Coleman, 183Ill. 2d at 389.

I. Defendant's Fitness

Defendant raises three issues relating to his fitness to standtrial. In his amended post-conviction petition, defendant contendedthat: (1) he was denied due process of law because throughout theproceedings he was taking psychotropic medications and yet failedto receive a fitness hearing under section 104-21(a) of the Code ofCriminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par.104-21(a)); (2) he was denied effective assistance of counsel whenhis attorneys failed to request a fitness hearing when they becameaware of reasons to doubt his fitness and failed to invoke hismandatory right to a section 104-21(a) fitness hearing; and (3) hewas denied due process of law when the circuit court failed toreopen an inquiry into his fitness and conduct a fitness hearingwhere information known to the court created a bona fide doubt asto his fitness.

We will address each of defendant's contentions individually.

A. Statutory Right to a Fitness Hearing

In his opening brief, defendant argues that he was entitled toa mandatory fitness hearing pursuant to section 104-21(a) of theCode of Criminal Procedure (Ill. Rev. Stat. 1991, ch. 38, par.104-21(a)) because he was taking psychotropic medications fromthe time of his arrest through sentencing.

At the time of defendant's trial and sentencing, section104-21(a) of the Code of Criminal Procedure stated:

"A defendant who is receiving psychotropic drugs orother medications under medical direction is entitled to ahearing on the issue of his fitness while undermedication." Ill. Rev. Stat. 1991, ch. 38, par. 104-21(a).

In People v. Nitz, 173 Ill. 2d 151, 160 (1996), this court heldthat a defendant may raise in a post-conviction petition that thedenial of a section 104-21(a) fitness hearing constitutes a denialof due process. Nitz, 173 Ill. 2d at 160. Relying on People v.Gevas, 166 Ill. 2d 461 (1995), we determined that the legislatureequated a defendant's ingestion of psychotropic drugs with a bonafide doubt of his fitness to stand trial. Nitz, 173 Ill. 2d at 159,citing Gevas, 166 Ill. 2d 461; People v. Kinkead, 168 Ill. 2d 394(1995). Therefore, a defendant could properly claim a due processviolation from his failure to receive a section 104-21(a) fitnesshearing.

Subsequent to the filing of defendant's initial brief, this courtoverruled Nitz and Gevas and held that the court had erred "whenit implied[ ] that the legislature equated the administering ofpsychotropic medication to a defendant with a bona fide doubt asto his fitness to stand trial." People v. Mitchell, 189 Ill. 2d 312,331 (2000). Mitchell concluded that, because a defendant's rightto a section 104-21(a) fitness hearing is statutory, and notconstitutional, a defendant has no due process right to a section104-21(a) fitness hearing. Mitchell, 189 Ill. 2d at 337. The failureto receive a section 104-21(a) fitness hearing, therefore, is not aconstitutional deprivation and not cognizable in a petition for post-conviction relief unless it is framed in the context of an ineffectiveassistance of counsel claim. Mitchell, 189 Ill. 2d at 337-38.

In his reply brief defendant concedes that, in light of Mitchell,he was not denied due process of law for failure to receive a section 104-21(a) fitness hearing merely because he ingestedpsychotropic drugs. We therefore do not consider that claim.

B. Ineffective Assistance of Counsel

While defendant concedes that he cannot claim a due processof law violation for his failure to receive a section 104-21(a)fitness hearing based solely on his ingestion of psychotropic drugs,he argues that the totality of the circumstances during his trialproceedings established a bona fide doubt of his fitness and,therefore, his attorneys were ineffective for failing to request afitness hearing. As stated, prior to trial, defense counsel requestedthat defendant be evaluated for fitness and receive a hearing todetermine if he was fit to stand trial. Defendant underwent afitness evaluation by Dr. Donald Pearson, a psychologist, whoconcluded that defendant was fit. A copy of Dr. Pearson's reportwas given to the trial court, and defendant's attorneys stipulated toit. When no other evidence regarding defendant's fitness wasoffered to the trial court, the court determined that defendant wasfit to stand trial and that no fitness hearing was necessary.

According to defendant, after the trial court's determinationthat no fitness hearing was necessary, facts arose which suggesteda bona fide doubt of his fitness. Defendant offers no evidence toestablish that a bona fide doubt of his fitness arose prior to thecircuit court's determination that a fitness hearing was notnecessary. Rather, defendant's argument focuses on circumstanceswhich arose subsequent to that determination.

A defendant is guaranteed the effective assistance of counselat trial and at a death sentencing hearing. Strickland v.Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 692-93, 104S. Ct. 2052, 2064 (1984). To establish a claim of ineffectiveassistance of counsel, a defendant must prove both deficientperformance and prejudice. Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693, 104 S. Ct. at 2064.

In order to satisfy the deficient performance prong ofStrickland, a defendant must show that counsel's performance wasso seriously deficient as to fall below an objective standard ofreasonableness under prevailing professional norms. Strickland v.Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693-94, 104 S.Ct. 2052, 2064-65 (1984). Indeed, a defendant must show that"counsel made errors so serious that counsel was not functioningas the 'counsel' guaranteed the defendant by the SixthAmendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,104 S. Ct. at 2064. Further, in order for a defendant to establishthat he suffered prejudice, he must show a reasonable probabilitythat, but for counsel's deficient performance, the result of theproceedings would have been different. Strickland, 466 U.S. at694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonableprobability is a probability sufficient to undermine confidence inthe outcome. People v. Evans, 186 Ill. 2d 83, 93 (1999).

"[T]o establish that his trial counsel's alleged incompetencyprejudiced him within the meaning of Strickland, defendant mustshow that facts existed at the time of his trial that would haveraised a bona fide doubt of his ability to understand the nature andpurpose of the proceedings and to assist in his defense. Defendantis entitled to relief on this post-conviction claim only if he showsthat the trial court would have found a bona fide doubt of hisfitness and ordered a fitness hearing if it had been apprised of theevidence now offered." People v. Easley, 192 Ill. 2d 307, 318-19(2000), citing People v. Johnson, 183 Ill. 2d 176, 193 (1998);People v. Eddmonds, 143 Ill. 2d 501, 512-13 (1991). Indetermining whether a bona fide doubt exists as to a defendant'sfitness, relevant factors for a court to consider include thedefendant's irrational behavior, the defendant's demeanor at trial,and any prior medical opinion on the defendant's competence tostand trial. Easley, 192 Ill. 2d at 319.

Defendant offers several arguments in support of hiscontention that a bona fide doubt of his fitness arose during theproceedings. First, defendant contends that his decision to changehis pleas to guilty midway through trial was irrational andillustrated that his "will had become flattened" and "his desire forself-preservation disappeared." See Kinkead, 182 Ill. 2d at 322.Thus, according to defendant, a bona fide doubt existed as to hisfitness.

As we have discussed, defendant changed his plea to guilty onthe fourth day of his jury trial, just prior to the State's resting itscase. At this point in the trial, the jury had heard two confessionsgiven by defendant, as well as extensive evidence of his guilt. Inlight of this, defendant's decision to plead guilty does not appearto be irrational.

Further, defendant's suggestion that his will had become"flattened" and "his desire for self-preservation disappeared" iscontradicted by the record. First, it is apparent from the record thatdefendant disregarded his attorneys' strong advice against a pleaof guilty. Before accepting defendant's pleas, the trial judgeadmonished defendant to carefully consider his attorneys'recommendation against a guilty plea, stating, "I want you toweigh what they advise you very heavily, because they do have theexperience of dealing with cases and some knowledge of the lawthat's related to this, and that's why you have attorneys and that'swhy the Constitution requires that you be furnished with attorneys***. Even without their agreement are you still desiring to enterpleas of guilty?" Defendant responded that he did, in fact, wish toenter guilty pleas, despite disagreement on the part of hisattorneys. Defendant's decision to plead guilty despite hiscounsel's recommendation to the contrary shows that his will wasnot "flattened."

Moreover, the record establishes that defendant did not losehis "desire for self-preservation." Throughout the proceedings,defendant was frequently examined by Dr. Edward H. Navakas,M.D., a psychiatrist at the Illinois Department of Corrections. Inhis reports, Dr. Navakas stated that defendant did "appear to feelsome grief, but this is quickly shouldered aside in favor of his ownneeds," that "though [defendant] has not slept recently, he isdetermined to fight his court battles," that defendant "seems toavoid pain and suffering for himself at almost any cost," and thatdefendant "appears to be invested in any legal maneuvers that willensure his survival." Defendant advances no arguments contestingthe validity of Dr. Navakas' reports.

In addition, defendant clearly understood the consequences ofhis guilty pleas. At the time that he pled guilty, the court provideddefendant with a detailed explanation as to the proceedings thatwould follow, both if defendant persisted in his pleas of not guiltyand if defendant entered pleas of guilty. Defendant stated that he"underst[ood] fully" that if he plead guilty there would be aconviction on each count and the jury determination would belimited to whether defendant would receive the death penalty orlife imprisonment without the possibility of parole. Defendantexplained that he was receiving his medication, that he haddiscussed his guilty pleas with his attorneys and that he understoodthat his attorneys disagreed with his decision to plead guilty.Finally, defendant stated that he understood the proceedings untilthat point. Therefore, we conclude that defendant's decision toplead guilty did not illustrate a bona fide doubt as to his fitness.

Next, defendant contends that his difficulty concentratingduring court proceedings provided reason to doubt his fitness.Defendant provides one example of this alleged difficulty inconcentrating in court. During voir dire, defense counsel requesteda one-day continuance. Counsel stated that defendant felt that,because of his medication and because he was having difficultysleeping, he could not participate in jury selection that day.Defendant had indicated to counsel that he was "burned out."After confirming that defendant was taking his medications asprescribed and had not required the attention of a doctor, the trialjudge denied the request for a continuance. However, the judgenoted that he would order a recess if it appeared that defendantwas having trouble staying awake. The judge also informeddefendant that he could renew his request for a continuance ifnecessary.

Subsequently, during post-trial proceedings on defendant'smotion to withdraw his guilty pleas, the trial judge stated:

"I do recall once and I think it was during jury selectionI inquired as to whether the defendant was feeling well,inquired in the proceedings so I did observe him entirelythroughout this because there were problems I understoodwhen he was not in the courtroom. There was oneoutburst at one time in the courtroom and there was onetime that he sat for a few moments with his head downand I was concerned that he wasn't feeling well or wasnot awake even but he indicated he was all right and wecould go on.

Other than that I thought he conducted himself verywell and very normally throughout the proceedings andcertainly felt that he was attentive and if you can beattentive through five days of jury selection I think if youcan be attentive to just about anything because that is notthe most exciting event in any of our lives but it is animportant one and the point of it is also that at all times hewas here conferring with counsel, counsel were advisinghim and conferring with him throughout the proceedings.I observed that on a number of occasions and I can'tbelieve that there was any inability on his part tocommunicate with counsel and understand theircommunication with him."

We accept the trial court's observation that defendantappeared to be alert in court and participated in his defense.Defendant communicated with his counsel and the court at varioustimes throughout the proceedings and indicated on severaloccasions that he understood the proceedings. Defendant's desireto postpone jury selection for one day because he was tired did notraise a bona fide doubt as to his fitness.

In support of his argument that a bona fide doubt of his fitnessexisted, defendant also points to an affidavit from one of his trialattorneys. In this affidavit, which is attached to defendant's post-conviction petition, the attorney states that defendant had frequentmood swings, that he demonstrated belligerent or explosivebehavior and that he threatened to become violent in thecourtroom. Defendant argues that this provides evidence that abona fide doubt as to his fitness arose and that his attorneys shouldhave inquired into his fitness at that time. Again, fitness refers toa defendant's ability to understand the nature of the proceedingsand participate in his defense. Our review of the record persuadesus that defendant's "mood swings" did not affect hisunderstanding of the proceedings or his ability to participate in hisdefense. At various times, defendant stated on the record that hewas able to follow the proceedings and that he understood thenature of the charges alleged in his indictment. The record is alsoreplete with instances of discussions between defendant's counseland the court indicating that counsel was communicating withdefendant. For example, on one occasion, defendant clarified aconfusion between his counsel and the court as to thecircumstances surrounding his confessions. Specifically, during apretrial motion to suppress the statements in which he confessedto shooting Roy and Muto, defendant provided the title and thepolice department of the law enforcement officer who took thosestatements. Accordingly, even accepting that defendant's behaviorwas at times "belligerent," this does not suggest any impairmentin his ability to understand the nature of the proceedings orparticipate in his defense.

In support of his petition for post-conviction relief, defendanthas attached a report from Dr. Lyle Rossiter, a forensicpsychiatrist. Dr. Rossiter offers no new evidence. Rather, hisreport is based on a review of the record in this case. He statesthat, in his view, a fitness determination was indicated due todefendant's psychiatric history and use of psychotropicmedications. Defendant argues that Dr. Rossiter's conclusionstands "unrebutted."

It is for this court, and not Dr. Rossiter, to determine whetherthere existed a bona fide doubt of defendant's fitness. We havereviewed the proceedings in this case and conclude that defendanthas not demonstrated that, at the time of his trial, a bona fide doubtexisted as to his ability to understand the nature and purpose of theproceedings and to assist in his defense. Therefore, we hold thatdefendant has failed to establish that he suffered prejudice underStrickland for his attorneys' failure to reopen an inquiry into hisfitness.

Defendant additionally contends that he received ineffectiveassistance of counsel because his attorneys failed to invoke hismandatory right to a fitness hearing under section 104-21(a). Inorder to show that his attorneys were ineffective for failing torequest a section 104-21(a) fitness hearing, defendant must showthat there is a reasonable probability that, had he received a fitnesshearing, he would have been found unfit to stand trial. Mitchell,189 Ill. 2d at 338. We have held that no bona fide doubt existed asto defendant's fitness at any time during the proceedings. Becausethere was no bona fide doubt of defendant's fitness, defendantcannot establish a reasonable probability that he would have beenfound unfit to stand trial had he received a fitness hearing.Defendant has failed to meet the prejudice prong required byStrickland. We therefore reject defendant's ineffective assistanceof counsel claim on this issue.

C. Circuit Court's Failure to Reopen Fitness Inquiry

In a related argument, defendant claims that his due processrights were violated because the circuit court failed to reopen aninquiry into his fitness after its initial determination that no fitnesshearing was necessary. Defendant claims that information came tothe court's attention during subsequent proceedings which createda bona fide doubt as to defendant's fitness and which obligated thecourt to, sua sponte, reopen the issue of his fitness. Defendantoffers the same facts and arguments in support of this claim thathe offered in support of his ineffective assistance of counsel claim.

Because we have held that there was no bona fide doubt ofdefendant's fitness to stand trial, the trial court did not err infailing to reopen a fitness inquiry. Nothing arose during the courseof the proceedings that suggested a bona fide doubt of defendant'sfitness. Therefore, we hold that the circuit court did not err indismissing defendant's petition for post-conviction relief withrespect to this claim.

II. Brady Claim

Defendant next contends that his due process rights wereviolated when the State failed to disclose material evidence inmitigation. Defendant argues that the State's failure to disclosetestimony by Craig, one of the codefendants involved in themurders, constituted a violation under Brady v. Maryland, 373U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

Defendant was sentenced to death on April 1, 1993. On May5, 1993, at Booth's sentencing hearing, Craig testified for the Statethat:

"We did indeed go down to the basement, began takingmeat out of the freezer. There was a knock on the door,which was Mr. Muto. Dannie was the one who answeredthe door, invited Mr. Muto in, and he said Steve issleeping, does not want to be bothered. Burt wentupstairs, said something. 'Hi. You're just in time for apicnic. What's your name? Did you say your prayers?' Iwas in the basement. I heard a gun fire. I heard anotherone. I go to the bottom of the basement steps. I see Burtlooking down at me, Mr. Ron Burt, looking down at me.I hear another gun fire. I get to the middle of the stairs. Ihear another gun fire. Get to the top of the stairs, Burt isturning the corner going towards the bedroom whereDannie and Mr. Muto were. Dannie had handed Ron Burta .22 rifle, and Mr. Burt ran across the front of the livingroom and approached me at the front door as I was tryingto leave. He had gave [sic] Dannie the gun. He picked upa double-barrel and told me he would blow my brainsout."

On cross-examination, Craig admitted that he had pled guilty tomurder and armed robbery, that the State had recommended asentence of 30 years' imprisonment, and that he was arguing fora lesser sentence. Craig stated that his sentencing hearing wasscheduled for the following week. He also admitted that he hearddefendant state, "Did you say your prayers this morning? I hopeso. You're going to need them." Moreover, Craig was impeachedwith a prior statement he had given to law enforcement officialswhich stated that, after defendant spoke to Muto, "it sounded likethey went to the back bedroom, and I heard five or six shotsspaced apart. I went upstairs and saw Ronny and Dannie walkingtoward me."

Defendant argues that Craig's testimony was Brady evidencethat should have been disclosed. According to defendant, becausethe testimony was consistent with his final custodial statement tothe police, it should have been disclosed to the defense and knownto the jury that imposed defendant's sentence.

Defendant concedes that Craig's testimony would not haveaffected his eligibility for a death sentence, because defendant stillwould have been accountable for the murders of both Roy andMuto. However, according to defendant, Craig's testimony wouldhave "carried great weight in mitigation and might well led [sic]the jury to return a sentence other than death."

The State has a constitutional obligation to disclose evidencethat is both favorable to the accused and "material either to guiltor to punishment." Brady v. Maryland, 373 U.S. at 87, 10 L. Ed.2d at 218, 83 S. Ct. at 1196-97; People v. Sanchez, 169 Ill. 2d 472,485-86 (1996). Evidence is material "if there is a reasonableprobability that, had the evidence been disclosed to the defense,the result of the proceeding would have been different." UnitedStates v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S.Ct. 3375, 3383 (1985); Sanchez, 169 Ill. 2d at 486. Therefore, inorder to succeed in a Brady claim, the defendant must show that:(1) the evidence is favorable to the defendant because it is eitherexculpatory or impeaching; (2) the evidence was either wilfully orinadvertently suppressed by the State; and (3) prejudice ensued tothe defendant. Strickler v. Greene, 527 U.S. 263, 281-82, 144 L.Ed. 2d 286, 302, 119 S. Ct. 1936, 1948 (1999). Becausedefendant's Brady claim does not satisfy the first of theseelements, we reject it.

Even if we assume that Craig's testimony was both known tothe State and wilfully or inadvertently suppressed by the State, thetestimony is not exculpatory. Craig testified that he, defendant, andapparently Booth were in the basement of Roy's home when Mutoarrived at the door. After Muto's arrival, both Booth, and laterdefendant, went upstairs and spoke to Muto. Next, Craig claimedhe heard a gun fire two times. Craig stated that after he heard thesegun shots, he went to the bottom of the basement stairs and sawdefendant at the top of the stairs. At that point, Craig heard twomore gun shots.

Craig's testimony does not disprove the State's claim thatdefendant shot Muto. According to Craig's testimony, he did notsee defendant until after he heard two shots fired. In fact, thetestimony was more detrimental than helpful to defendant, asCraig stated that defendant threatened Muto immediately prior tohis murder.

Because Craig's testimony was not exculpatory to defendant,we hold that no Brady violation occurred in the case at bar.Accordingly, defendant is not entitled to post-conviction reliefwith respect to this claim.

III. Failure to Introduce Mitigation Evidence

In his final argument, defendant contends that his trial counselwas ineffective for failing to attempt to introduce in mitigation atdefendant's sentencing hearing the statement given by defendantto police on January 24, 1992. As discussed earlier in this opinion,in the January 24, 1992, statement, defendant claimed that he didnot shoot Muto. The State successfully argued the inadmissabilityof that statement at the guilt phase of defendant's trial. However,the trial court advised defense counsel that any objection to thatruling could be renewed at the sentencing hearing. Defendantargues that his counsel's failure to attempt to introduce thisstatement at the sentencing hearing constituted ineffectiveassistance of counsel.

We have considered and rejected this argument ondefendant's direct appeal. Burt, 168 Ill. 2d at 75-77. As such,principles of res judicata bar reconsideration of this issue, and wetherefore decline to address it.

CONCLUSION

In light of the foregoing, we affirm the circuit court'sjudgment dismissing without an evidentiary hearing defendant'samended petition for post-conviction relief. We direct the clerk ofthis court to enter an order setting Thursday, January 17, 2002, asthe date on which the sentence of death entered by the circuit courtof Stephenson County shall be carried out. Defendant shall beexecuted in the manner provided by law. 725 ILCS 5/119-5 (West1998). The clerk of this court shall send a certified copy of themandate in this case to the Director of Corrections, the warden ofTamms Correctional Center, and the warden of the institutionwhere defendant is now confined.

Affirmed.

The majority's attempt to find sanity in Burt's insistence onpleading guilty illustrates why our system of capital punishmenthas fallen into such disrepute. Demanding to enter an open guiltyplea in the middle of a trial, over counsel's objections, where theState is seeking the death penalty and the nature of the underlyingcharges is such that death eligibility is certain, is an inherentlyirrational act. It is tantamount to requesting an immediate deathwarrant. It is something no clear thinking person would ever do.Once trial was underway, a clear thinking person would heed hislawyer's advice, recognize that he had nothing to lose, and take hischances with the jury. At a minimum, he would attempt to extractsome kind of concessions from the prosecution in exchange for hisplea, including an agreement to forgo the death penalty.

Burt did none of that. It is interesting that the majority'sdisposition leaves out why. This is not a situation where thedefendant searched his soul and abandoned his defense because heknew he was guilty and wanted to make a swift peace with hismaker. Apparently, Burt just wanted to take a smoke. This is noexaggeration. According to one of Burt's attorneys, Burt's abruptdecision to change his plea from not guilty to guilty was motivatedby his desire to leave the county jail, where smoking was banned,and return to the Department of Corrections, where smoking waspermitted.

Considering Burt's psychiatric history, low IQ, brainimpairment and drug addiction, there is a real question as towhether he ever possessed the ability to think rationally. There canbe no real doubt, however, that whatever decisionmaking sense hepossessed abandoned him during trial. Burt suffered from frequentmood swings, he complained of feeling "burned out," he fearedsnakes in his cell and reported hearing voices in his head. Hebecame belligerent, and he ingested large doses of psychotropicmedication throughout the period between his arrest andsentencing. Something was clearly wrong. Under the law in effectat the time, the trial court had a duty to determine what it was (725ILCS 5/l04-11(a), 104-21(a) (West 1992); People v. Brandon,162 Ill. 2d 450, 456 (1994)), but no fitness hearing was ever held.

The majority's efforts to justify that result ring hollow. Nomatter how artfully the legal precedent is strung together, the factremains that the capital punishment system failed here as we haveseen it fail so often in recent years. It is time to abandon thepretense. History has moved on. The failure of our present systemof capital punishment is documented and indisputable. That is whyour court is no longer entrusted to have the final say on when menare put to death. It is why the Governor has declared a moratoriumon executions.

The issue our court should consider now is what to do next.The court has enacted a comprehensive set of new rules governingthe conduct of cases in which the State is seeking the deathpenalty. For the reasons set forth in my dissenting opinion inPeople v. Hickey, No. 87286, slip op. at 35-39 (September 27,2001) (Harrison, C.J., dissenting), I believe that the procedurescontained in those rules are indispensable for achieving anaccurate determination of innocence or guilt and should be appliedto all capital cases now coming before us. Because Burt was tried,convicted and sentenced without the benefit of the new rules, hisconvictions and death sentence should be vacated, and the causeshould be remanded to the circuit court for a new trial.

Even if Burt were not entitled to the benefit of the new rules,his sentence of death could not stand. For the reasons set forth inmy partial concurrence and partial dissent in People v. Bull, 185Ill. 2d 179 (1998), the Illinois death penalty law is void andunenforceable because it violates the eighth and fourteenthamendments to the United States Constitution (U.S. Const.,amends. VIII, XIV) and article I, section 2, of the IllinoisConstitution (Ill. Const. 1970, art. I,