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Docket No. 85215-Agenda 3-March 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. REGINALD MAHAFFEY, Appellant.

Opinion filed October 13, 2000.

JUSTICE McMORROW delivered the opinion of the court:

Pursuant to the Post-Conviction Hearing Act (725 ILCS5/122-1 et seq. (West 1994)), defendant, Reginald Mahaffey,petitioned the circuit court of Cook County for post-convictionrelief. The trial court dismissed defendant's amended post-conviction petition without conducting an evidentiary hearing.Defendant also filed a motion to vacate his convictions andsentences pursuant to section 2-1401 of the Code of CivilProcedure (735 ILCS 5/2-1401 (West 1996)) alleging that newevidence, outside the record, supported defendant's previousassertions that his confession was a result of torture at the handsof Chicago police officers assigned to Area 2 police headquarters.The circuit court also dismissed this motion without an evidentiaryhearing. Because defendant was sentenced to death for theunderlying murder convictions, he appeals directly to this court.134 Ill. 2d R. 651(a). For the reasons that follow, we affirm thejudgment of the circuit court.

BACKGROUND

This court has previously detailed the evidence presented atdefendant's trial in our opinion on direct appeal. People v.Mahaffey, 166 Ill. 2d 1 (1995). Therefore, we state here only thosefacts which are necessary to the disposition of this appeal. OnSeptember 2, 1983, defendant and his brother, Jerry Mahaffey,were arrested by Chicago police officers for the August 29, 1983,murders of Dean and Jo Ellen Pueschel and the attempted murderof their 11-year-old son, Richard. On December 29, 1983, defensecounsel filed a "motion to suppress statements," claiming thatdefendant's post-arrest statements and admissions to police were"the direct result of either physical or mental coercion."

Specifically, the motion alleged that at the time of defendant'sarrest, several police officers assigned to Area 2, includingSergeant John Byrne and Detective John Yucaitis, induceddefendant into making a statement by telling him that "his brotherhad already flipped on him, and if he didn't give a statement to thepolice, he would go to the electric chair alone" and lose anychance for leniency. In addition, the motion stated that thearresting officers "did beat the defendant, causing injuries to thedefendant's ribs, and this beating was done to induce a statement."

A hearing on defendant's suppression motion was conductedin February 1984. The sole witness called by the State in its casein chief was Irving Miller. Miller testified that, in his then capacityas a felony review supervisor with the Cook County State'sAttorney's office, he met with defendant at Area 2 policeheadquarters on the morning of September 2, 1983. According toMiller, he spoke to defendant in an interview room atapproximately 9:30 a.m. and advised defendant of his Mirandarights. After defendant indicated that he understood his rights,defendant gave a statement implicating himself in the crimeswhich occurred at the Pueschels' apartment. Miller testified thatthis statement lasted approximately 20 minutes, and that DetectiveYucaitis was also present in the room during the time defendantgave this statement. Miller then left the room, returned one-halfhour later, and again spoke with defendant for a short time.According to Miller, Detective Yucaitis was present during thisconversation as well. Miller testified that he next saw defendant atapproximately 11:30 a.m. in a different, larger interview room atArea 2, at which time defendant agreed to give a court-reportedstatement with respect to his involvement in the crimes at thePueschel home. Miller stated that he initially spoke alone withdefendant for 15 minutes concerning the procedures for making acourt-reported statement, and also informed defendant of thequestions which Miller would ask defendant during the interview.Miller testified that he also inquired of defendant concerning histreatment by police, and that defendant made no statement to himthat he was beaten or threatened. Miller testified that, at theconclusion of this brief meeting, Detective Yucaitis, AssistantState's Attorney George Velich, and a court reporter arrived at theinterview room, and defendant gave his confession. Defendantsigned this court-reported statement between 3 and 4 p.m. thesame day. Miller testified that no one struck defendant in hispresence, used mental coercion, or threatened defendant with theelectric chair.

Defendant testified on his own behalf. He stated that he wasarrested at his apartment at approximately 4:15 a.m. on themorning of September 2, 1983. Defendant stated that when thepolice arrived, he was lying on the floor of his bedroom. Theofficers instructed him to get up and he was taken into the kitchen,where he was asked his name. Defendant testified that when heresponded, one of the officers kicked him in his groin. Defendantthen fell to the floor and was kicked in his ribs and in the side ofhis head. Defendant stated that he was struck three times by thepolice in his apartment before he was taken outside. According todefendant, the beating was administered by two plain-clothesofficers, one whom defendant described as having curly dark-brown hair, who was heavier in weight than defendant, and whowas between 5 feet 11 inches and 6 feet 2 inches in height.Defendant testified that he did not clearly see the second officerbecause when he was struck by the first officer, he fell face down.However, defendant stated that the second officer was shorter thanthe officer with curly brown hair, and weighed somewhat over 200pounds.

Defendant further testified that the officers tried to trip him ashe was going up the stairs from his basement apartment to thesidewalk, and that the officers decided among themselves thatdefendant would be transported to Area 2 by the detective withcurly brown hair who had beaten him in the apartment. Defendanttestified that he was placed in the back seat of the car, and twodetectives sat in the front seats, with the curly brown-haireddetective sitting on the passenger side. According to defendant,during the ride to Area 2, this detective turned around and struckhim once in the forehead.

Upon his arrival at Area 2 police headquarters, defendanttestified, he was placed in a small interview room, where he washandcuffed to a ring in the wall. Defendant stated that, while hewas in that room, he was repeatedly hit by the same detective withcurly brown hair who had beaten him at his apartment and struckhim in the car. According to defendant, when the detective did notlike defendant's reply to his questions, he would strike defendantin his mid-section with a flashlight, and hit defendant in his backand across his shoulder blades. Defendant stated that a plastic bagwas also placed over his head and that the same detective "startedbumping the back of [defendant's] head against the concrete wall."According to defendant, the detective with the curly brown hairwas the only officer who actually hit him at Area 2, although therewere other officers in the interview room at various times.

Defendant testified that the only reason he made statementsto the police was because he was in fear for his safety. Defendantstated that he was told by police that unless he confessed to themurders, he would die. According to defendant, the officers alsotold him what to say during his confession. Defendant stated thathe informed Assistant State's Attorney Miller about the beatingsduring their first meeting, but that Miller left the room after tellingdefendant that he was only there to take defendant's statement.According to defendant, after Miller exited, the beatings beganonce again.

Defendant testified that he stated during his court-reportedconfession that he was not beaten by police because he wanted toavoid any further abuse. In addition, defendant testified that hewas in fear for his safety because the same detective with curlydark-brown hair who had previously beaten him was also presentin the room, and that this same detective had previously tolddefendant that Miller, in his role as a State's Attorney, could notassure defendant's safety. According to defendant, after he gavehis court-reported statement, Miller requested that defendant readit, and defendant replied that he was unable to read. Defendanttestified that Miller read him portions of the statement andinstructed defendant on how to correct misspellings in the text.Thereafter, according to defendant, Miller told defendant to initialand sign the statement. Defendant testified that the beatings ceasedonce he gave the court-reported statement.

Defendant further testified that after he gave his court-reported statement, a paramedic was called because he beganvomiting. Defendant stated that he told the paramedic that he hada headache and pain in his ribs, but admitted that he did not tell theparamedic that he had been kicked in the head or in the ribs.

The next witness to testify on behalf of defendant wasMorriell Redmond. He stated that he had rented defendant a roomin his basement apartment and that he had opened the door to thepolice on September 2, 1983. He testified that he did not see thepolice hitting defendant because he was facing away from thekitchen area, but he heard defendant "hollering" and "screaming."He stated that defendant repeatedly said, "Don't hit me no more."However, Redmond admitted that he never informed anyone aboutwhat he overheard.

The State called several witnesses in rebuttal. DetectiveCharles Grunhard testified that he was one of several officers whowent to defendant's apartment on the morning of September 2.Although Grunhard remained in the apartment's living-room areawith Morriell Redmond, he testified that he observed SergeantByrne and Detective Yucaitis immediately proceed towards therear bedroom area of the apartment. Grunhard then observedYucaitis and Byrne bring defendant out of the bedroom and intothe apartment's kitchen area. Grunhard testified that he neverheard defendant yell or scream while in the apartment.

Detective John Yucaitis testified that he and Sergeant Byrnewere the first of many police officers to enter defendant'sapartment on the morning of September 2. Yucaitis stated that heand Sergeant Byrne were also the first two officers to enterdefendant's bedroom. Defendant was lying on the floor, and aloaded .357 Magnum revolver was on a night stand near wheredefendant was lying. According to Yucaitis, he gave defendant aquick pat-down search, picked him up, and took defendant into theapartment's kitchen area, where defendant was advised of hisMiranda rights. Yucaitis testified that defendant then began togive a statement, implicating himself in the crimes at the Pueschelresidence. However, Yucaitis admitted that the report he filed inconnection with this case did not reflect that defendant made sucha statement at the apartment. Yucaitis testified that he remainedwith defendant from the time defendant was brought into thekitchen, and denied that he struck or kicked defendant in theapartment.

According to Detective Yucaitis, after exiting the apartment,he placed defendant in the back seat of a police vehicle and wasalone in the car with defendant until he picked up his partner,Detective Edmond Leracz, at another location. Thereafter, they allproceeded to Area 2. Yucaitis testified that defendant confessed inthe car, but Yucaitis stated that he did not record this confessionin his report. Detective Yucaitis denied striking defendant whilehe was in the vehicle.

Detective Yucaitis further testified that when they arrived atArea 2, he took defendant into interview room No. 1, and shackleddefendant's left wrist to the wall. Yucaitis testified that when hewas alone with defendant in this room, defendant again confessedto the crimes. Yucaitis stated that Assistant State's Attorney Millerthen arrived. Yucaitis denied that he struck, kicked or hitdefendant at any time while defendant was at Area 2. Yucaitis alsodenied placing a plastic bag over defendant's head, or instructingdefendant what to say in his confession. Yucaitis testified that hewas defendant's "baby-sitter" from the time defendant arrived atArea 2 until defendant gave his court-reported statement. Yucaitisstated that "[t]he majority of the time I was with him. If I wasn'twith him, he was alone." Detective Edmond Leracz also testifiedon behalf of the State. Leracz initially observed defendant in theback seat of a police vehicle when Leracz's partner, DetectiveYucaitis, picked him up from a location on Chicago's west side.Leracz testified that at that time, defendant's hands were cuffedbehind him, and that Leracz changed the handcuffs to the front.Leracz then sat in the vehicle's passenger seat, and stated that atno time did he strike defendant. Leracz testified that he had noknowledge of whether defendant was struck prior to the time heentered the vehicle. Leracz also testified that, during the ride toArea 2, defendant confessed to the Pueschel murders, althoughLeracz admitted that he did not record this confession in any of hisreports.

The State recalled Irving Miller, who testified that a Polaroidphotograph was taken of defendant on September 2, 1983 atapproximately 6:35 to 6:40 p.m. by a Chicago police departmentevidence technician. Miller described the photograph as showingdefendant seated behind a table, fully dressed, and that no injuryto defendant was apparent. Also testifying with respect todefendant's lack of injuries was Robert Muralles, an emergencymedical technician at Cook County jail. A medical history andphysical examination sheet prepared by Muralles on September 3,1982, indicated that defendant exhibited no bruises, cuts, swellingor abrasions.

The State next called Sergeant John Byrne, and DetectivesWilliam Kurschner, Raymond Benkowski, and Charles Grunhard,who all testified that defendant was not physically abused in hisapartment on the morning of September 2.

At the conclusion of the testimony, the circuit court denieddefendant's suppression motion. Specifically, the circuit judgestated that his decision "boil[ed] down to a question ofcredibility." The circuit court found that the testimony of thepolice officers and former Assistant State's Attorney Miller wasfar more credible than that of defendant and Morriell Redmond.The court noted that all of the officers in the apartment testifiedthat at no time did they observe, or become aware of, any beatingsof defendant. The court also noted that Detectives Yucaitis andLeracz testified that they did not strike defendant in the car on theway to the police station.

As to the alleged beatings at Area 2, the circuit court observedthat defendant testified that the officer who hit him in the kitchenof his apartment and in the police car was the same officer who hithim with a flashlight, put a bag over his head, and beat his headagainst the wall in an interview room at Area 2 policeheadquarters. The circuit court concluded that the evidenceshowed that the only officer who had custody of defendant at Area2 was Detective Yucaitis, and, therefore, the only person whocould have struck defendant was Yucaitis. Noting that Yucaitisvehemently denied defendant's allegations, the circuit court judgeconcluded that "Detective Yucaitis' testimony is far more crediblethan the self-serving statements of the defendant in this regard,"and found that "Detective Yucaitis did not beat the defendant atany time while he was in the police station, did not hit him with aflashlight, did not put a bag over his head and did not hit his headagainst the wall." In support of this conclusion, the circuit courtalso found it significant that former Assistant State's AttorneyMiller asked defendant outside the presence of officers, as well asduring defendant's court-reported statement, whether he had beenabused by the police and defendant replied that he had not. Finally,the circuit court also noted in the course of its ruling thatdefendant had never complained to anyone at the police stationabout the torture, and that there was no physical evidence ofinjury. The circuit court then ruled that the post-arrest statementsmade by defendant were admissible during his trial.

Defendant was tried by a jury in 1985 and was convicted ofthe murders of Jo Ellen and Dean Pueschel, and of the attemptedmurder of their son, Richard. Defendant was also found guilty ofseveral other felonies relating to the break-in at the Pueschel'sapartment. At a separate sentencing hearing, the jury determinedthat defendant was eligible for the death penalty, and found that nofactors in mitigation were sufficient to preclude imposition of thedeath sentence. Defendant was sentenced to death on the capitaloffenses, and received terms of imprisonment for his noncapitalconvictions. On direct appeal, this court reversed defendant'sconvictions and sentences, and remanded the cause to the circuitcourt for a new trial and sentencing hearing. People v. Mahaffey,128 Ill. 2d 388, 409-12 (1989). This court determined that thecircuit court' failure to sever defendant's trial from that of hiscodefendant brother, Jerry Mahaffey, constituted reversible error.

On remand, defendant expressed his desire to representhimself during all subsequent proceedings. The circuit courtconducted a fitness hearing, and found that defendant was fit tostand trial. Thereafter, defendant formally waived his right to theassistance of counsel for purposes of both the trial and the capitalsentencing hearing. The circuit court, however, appointed twopublic defenders to act as defendant's "legal advisors" during theproceedings to answer defendant's legal questions. Defendant'ssecond trial occurred in 1991, and, at the conclusion of theproceedings, a jury again found defendant guilty of the murders ofJo Ellen and Dean Pueschel, and of the attempted murder ofRichard Pueschel. The jury also convicted defendant of homeinvasion, rape, armed robbery, aggravated battery to a child,residential burglary, and theft (over $300). After a separatesentencing hearing, the jury found that defendant was eligible forthe death penalty, and that there were no mitigating circumstancessufficient to preclude imposition of the death sentence. Defendantwas sentenced to death for the murder convictions, and receivedan extended term of 60 years' imprisonment for the attemptedmurder conviction of Richard Pueschel. The judge also imposedconsecutive 30-year sentences for home invasion, armed robbery,and rape. Defendant's convictions and sentences were affirmed ondirect appeal by this court. People v. Mahaffey, 166 Ill. 2d 1(1995). Thereafter, the United States Supreme Court denieddefendant's petition for a writ of certiorari. Mahaffey v. Illinois,516 U.S. 1002, 133 L. Ed. 2d 450, 116 S. Ct. 547 (1995).

On June 30, 1995, post-conviction counsel filed a petition forpost-conviction relief, alleging that defendant's constitutionalrights were violated during his trial and on direct appeal. In 1996,different post-conviction counsel filed a first, second, and thirdsupplemental petition for post-conviction relief. On September 17,1997, the circuit court conducted a hearing to determine whetherdefendant was fit for post-conviction proceedings. At theconclusion of the proceedings, the court found defendant to be fit.On that date, leave was granted to allow post-conviction counselto file an amended post-conviction petition.

An amended petition for post-conviction relief was filed onOctober 27, 1997. In this amended petition defendant, for the firsttime during post-conviction proceedings, raised the claim that newevidence supported his allegations that he had been subjected tobrutality by Chicago police officers, and that his confession hadbeen coerced. The petition stated that "[o]n May 9, 1997,documents were made available for the first time that are criticallyimportant to this case because they show nearly identical acts ofabuse, brutality, and falsification of evidence by the same officerswho investigated [defendant's] case." The petition references aMay 9, 1997, order entered by the United States district court inthe federal civil rights action of Wiggins v. Burge, 173 F.R.D. 226(N.D. Ill. 1997), wherein the court struck the confidentialdesignation of several documents produced by the City of Chicagoduring discovery. Among the documents released from aprotective order was a report prepared by the Chicago policedepartment's Office of Professional Standards (OPS), whichsurveyed alleged systematic abuse of suspects in custody at Area2 police headquarters and which named several police officersinvolved in cases of abuse, some of whom participated indefendant's arrest and interrogation.

Among other claims, defendant's amended post-convictionpetition alleged that the State violated defendant's rights to dueprocess and a fair trial by concealing evidence favorable to himand material to his motion to suppress, in violation of Brady v.Maryland, 373 U.S. 83, 10 L. Ed 2d 215, 83 S. Ct. 1194 (1963).According to the amended petition, the prosecution withheldinformation about prior allegations of police torture at Area 2made by other suspects between 1982 and 1983. The petition alsoalleged that "newly discovered evidence made available for thefirst time in May, 1997, is critically important to this case becauseit documents nearly identical acts of abuse, brutality, andfalsification of evidence by the same officers who investigated[defendant's] case." Defendant contends that the evidenceallegedly withheld by the State in 1984, as well as the newlydiscovered evidence, "would have been admissible as showing themodus operandi" of officers assigned to Area 2, and would haveprobably changed the outcome of the suppression hearing and trial.

The amended petition also raised a related claim thatdefendant was denied effective assistance of trial counsel at the1984 suppression hearing because trial counsel "failed toinvestigate and present evidence of complaints filed with theOffice of Professional Standards by other victims of ChicagoPolice Officers involved in the arrest, search, and interrogation of[defendant]." According to defendant, the evidence revealed bysuch investigation, as well as the newly discovered evidencedescribed above, would have been admissible to establish a patternof abuse at Area 2 and to impeach the credibility of the testifyingofficers, and would have changed the outcome of the suppressionmotion and the trial.

Defendant also contended in his amended petition that thecircuit court violated defendant's right to represent himself at thesentencing stage of his second trial by appointing an assistantpublic defender to serve as standby counsel. In addition, defendantclaimed that a court-ordered fitness examination prior tosentencing deprived him of his right to remain silent.

Post-conviction counsel also filed a petition to vacatedefendant's convictions and death sentence pursuant to section2-1401 of the Code of Civil procedure (735 ILCS 5/2-1401 (West1996)). Relying totally upon exhibits attached to, or incorporatedby reference in, defendant's amended petition for post-convictionrelief, the motion alleged that newly discovered evidence, madeavailable for the first time on May 9, 1997, "documents nearlyidentical acts of abuse, brutality, and falsification of evidence bythe same officers who investigated [defendant's] case *** [and]would have been admissible as showing modus operandi."Defendant contends that, had this evidence been available, theoutcome of the proceedings would have been different.

On February 27, 1998, the circuit court granted the State'smotion to dismiss defendant's amended post-conviction petitionwithout an evidentiary hearing, finding that defendant's claims hadbeen waived. The circuit court also dismissed defendant's section2-1401 motion without an evidentiary hearing on the basis that itwas untimely. Defendant now appeals from the circuit court'sjudgment. As part of this appeal, the Campaign to End the DeathPenalty was granted leave to file a brief, as amicus curiae, insupport of defendant. 155 Ill. 2d R. 345.

ANALYSIS

The Illinois Post-Conviction Hearing Act provides amechanism by which criminal defendants can assert that theirconvictions were the result of a substantial denial of their rightsunder the United States Constitution, the Illinois Constitution, orboth. See 725 ILCS 5/122-1 (West 1994). An action for post-conviction relief is a collateral proceeding and not an appeal fromthe underlying judgment. People v. Morgan, 187 Ill. 2d 500, 528(1999). In order to be entitled to post-conviction relief, a defendantbears the burden of establishing a substantial deprivation of federalor state constitutional rights in the proceedings that produced thejudgment being challenged. People v. Franklin, 167 Ill. 2d 1(1995).

Because a proceeding brought under the Act is a collateralattack on a judgment of conviction, all issues actually decided ondirect appeal are res judicata, and all issues which could havebeen raised in the original proceeding, but were not, are waived.People v. Whitehead, 169 Ill. 2d 355, 371 (1996). The doctrines ofres judicata and waiver, however, will be relaxed in threesituations: where fundamental fairness so requires; where thealleged waiver stems from the incompetence of appellate counsel;or where the facts relating to the claim do not appear on the faceof the original appellate record. Whitehead, 169 Ill. 2d at 371-72.

A defendant is not entitled to an evidentiary hearing as ofright on a post-conviction petition. Whitehead, 169 Ill. 2d at 370-71. An evidentiary hearing is warranted only where the allegationsof the post-conviction petition, supported where appropriate by thetrial record or accompanying affidavits, make a substantialshowing that a defendant's constitutional rights have beenviolated. Morgan, 187 Ill. 2d at 528. For the purpose ofdetermining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and any accompanying affidavits aretaken as true. People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995). Acircuit court's determination regarding the sufficiency of theallegations contained in a post-conviction petition are reviewed denovo. Morgan, 187 Ill. 2d at 528; People v. Coleman, 183 Ill. 2d366, 388-89 (1998).

Defendant first contends that his constitutional right to dueprocess of law and his right to a fair trial were violated when,during the 1984 hearing on his motion to suppress, the State failedto disclose to the defense all exculpatory evidence as required byBrady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194(1963). In Brady, the United States Supreme Court held that theprosecution must disclose evidence that is both favorable to theaccused and "material either to guilt or to punishment." Brady,373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1197; People v.Sanchez, 169 Ill. 2d 472, 485-86 (1996). Evidence is considered"material" if there is "a reasonable probability that, had theevidence been disclosed to the defense, the result of theproceeding would have been different." United States 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.

According to defendant's amended post-conviction petition,in February 1984 the "State knew that several of the ChicagoPolice Officers intimately involved in this case" were "beinginvestigated by the FBI, Amnesty International, and the ChicagoPolice Department Office of Professional Standards for their useof abusive police tactics." In addition, defendant claims that, at thetime of his suppression hearing, the State withheld evidenceconcerning a series of other prior alleged instances in whichofficers assigned to Area 2 employed torture as a means ofeliciting confessions from other suspects.

In support of his Brady claim, defendant specifically reliesupon three documents attached to his amended post-convictionpetition. First, defendant cites to a document filed in the federalcivil rights action of Wilson v. City of Chicago. This document,entitled "plaintiff's proffer of other acts of beating torture andelectroshock by defendant Burge and other detectives," was filedin mid-1989 and chronicles alleged acts of beatings and torture ofsuspects by officers at Area 2, including some of the officersinvolved in the arrest and interrogation of defendant. Second,defendant relies upon the February 1993 complaint filed in thefederal civil rights action of Wiggins v. Burge. Similar to theinformation contained in the "plaintiff's proffer" cited above, thiscomplaint details allegations of brutality and torture by suspectsagainst officers at Area 2, both before and after defendant's arrestand interrogation. Finally, defendant relies upon the December 28,1989, appellate court opinion in People v. Banks, 192 Ill. App. 3d986 (1989) , wherein the court detailed allegations made byseveral suspects that they had been tortured by Area 2 officers.Defendant contends that, had the State disclosed the informationcontained within the above documents, it would have beenadmissible in establishing torture as the modus operandi ofofficers assigned to Area 2, and also in undermining the credibilityof the testifying officers. Defendant concludes that the result of theproceedings would have been different had this evidence beenadmitted.

In response, the State accurately contends that this argumentis procedurally defaulted because defendant failed to raise thisissue on direct appeal. See Whitehead, 169 Ill. 2d at 371 However,this court may review a post-conviction claim which has not beenproperly preserved where fundamental fairness so requires.Whitehead, 169 Ill. 2d at 371-72; People v. Franklin, 167 Ill. 2d 1,20 (1995). Although "[t]he concept of fundamental fairnessescapes precise definition" (People v. Porter, 164 Ill. 2d 400, 408(1995)), it is "generally defined in terms of a 'cause and prejudice'test." Franklin, 167 Ill. 2d at 15. "Cause" has been defined as "anobjective factor that impeded defense counsel's efforts to raise theclaim on direct review." Franklin, 167 Ill. 2d at 20. "Prejudice"has been defined as "an error which so infected the entire trial thatthe defendant's conviction violates due process." Franklin, 167 Ill.2d at 20. Because we determine that no error occurred, defendantis unable to satisfy the prejudice prong of this test, and, thereforecannot invoke the fundamental fairness exception.

A review of the exhibits relied upon by defendant in hisamended post-conviction petition to support his claim that theState violated the Brady rule reveals that these documents werenot in existence at the time of the 1984 suppression proceedings,and therefore could not have been disclosed to defendant. Inaddition, defendant has made no showing that the informationcontained within the documents was available to the State at thetime of the suppression hearing. Defendant has failed to presentany evidence to support his claim that there was an "investigation"of Area 2 officers by OPS or outside agencies prior to the February1984 suppression hearing. Accordingly, defendant's argument isunavailing that the State "knew" in early 1984 that Area 2 officerswere being "investigated" and failed to disclose this information.Further, defendant has provided no evidence to support his claimthat in February 1984 the State was aware that there was a seriesof prior alleged instances in which officers assigned to Area 2employed torture as a means of eliciting confessions from othersuspects. To the contrary, the evidence presented by defendant insupport of his claims indicates that any apparent nexus betweenalleged incidents of abuse of other suspects by Area 2 officers anddefendant's claims did not arise until several years afterdefendant's suppression motion, and it was only at that later timethat investigations were initiated into interrogation practices atArea 2. Therefore, defendant cannot properly claim that the Stateviolated the Brady rule by failing to disclose information that wasunavailable at the time of the suppression proceedings. See Peoplev. Haynes, Nos. 85180, 85181 cons., slip op. at 23 (July 6, 2000);People v. Hinton, 302 Ill. App. 3d 614, 623 (1998). Under thefacts presented, we find that no Brady violation occurred and,consequently, defendant suffered no prejudice. The circuit courtproperly dismissed this claim.

In his amended petition, defendant also makes the relatedargument that he was denied effective assistance of trial counselduring the 1984 suppression hearing. To prevail on a claimasserting that trial counsel was not effective, a defendant must firstestablish that "counsel's representation fell below an objectivestandard of reasonableness." Strickland v. Washington, 466 U.S.668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984);Morgan, 187 Ill. 2d at 529. If a defendant establishes that defensecounsel's representation fell below an objective standard ofreasonableness, a defendant must then demonstrate that "there isa reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermineconfidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed.2d at 698, 194 S. Ct. at 2068; Morgan, 187 Ill. 2d at 529-30. Adefendant must satisfy both prongs of the Strickland test before heor she can prevail on a claim of ineffective assistance of counsel.However, if the ineffective assistance claim can be disposed of onthe ground that the defendant did not suffer prejudice, a court neednot determine whether counsel's performance was constitutionallydeficient. People v. Griffin, 178 Ill. 2d 65, 74 (1997).

In his amended post-conviction petition, defendant allegesthat his trial counsel "failed to investigate and present evidence ofcomplaints filed with the Office of Professional Standards by othervictims of Chicago Police Officers involved in the arrest, search,and interrogation of [defendant]." Defendant also contends in hisamended petition that defense counsel "failed to gather and presentreadily available evidence of systemic police abuse in other widelyreported cases involving the officers who handled the instantinvestigation." In support of his claim of ineffective assistance ofcounsel, defendant relies upon the same three documents cited insupport of his claims that the State violated the Brady rule.According to defendant, had defense counsel discovered andpresented this evidence of "systemic police torture and abuse," itnot only would have been admissible in establishing that torturewas routinely employed by Area 2 officers to elicit confessions,but also would have served to impeach the credibility of thetestifying officers. Defendant concludes that the introduction ofthis evidence would have changed the outcome of the suppressionmotion and the trial.

In response, the State argues that this claim is procedurallydefaulted because defendant failed to present it on direct appeal.However, as noted, the strict application of the waiver doctrinemay be relaxed where required by fundamental fairness, which isanalyzed in terms of "cause and prejudice." Franklin, 167 Ill. 2dat 20. Because defendant has failed to present evidence that histrial counsel was ineffective, he is unable to satisfy the prejudiceprong of the fundamental fairness exception.

As stated, the documents relied upon by defendant in supportof his claim that his trial counsel was ineffective during theFebruary 1984 suppression proceedings are the same documentsdefendant cited in support of his claim that the State violated theBrady rule. As we held above with respect to defendant'sBrady claim, the documents relied upon by defendant were not inexistence at the time of the suppression hearing and, therefore,could have been neither discovered nor presented by defensecounsel. In addition, defendant has provided no support for hisclaim that counsel failed to investigate and present evidence ofcomplaints filed with OPS against the officers who arrested andinterrogated defendant. No evidence has been presented bydefendant that, prior to February 1984, complaints had been filedwith OPS against the officers involved in his case by othersuspects alleging abuse similar to that alleged by defendant.Finally, defendant has failed to provide any support for hisassertion that, in February 1984, there was "readily availableevidence of systemic police abuse in other widely reported cases"involving some of the officers who arrested and interrogateddefendant. Rather than supporting defendant's position,defendant's own exhibits establish that such information was not"readily available" until years after defendant's suppressionhearing, and it was only at that time that "systemic" abuse at Area2 became "widely reported." Accordingly, under the factspresented, we find that defendant has presented no evidence tosupport his claim that his trial counsel was ineffective.Consequently, defendant suffered no prejudice, and he cannotinvoke the fundamental fairness exception. The circuit courtproperly dismissed this claim.

Defendant's amended petition also presents the broader claimthat new evidence supports his assertion that his confession wascoerced and involuntary, making its introduction at trial a violationof his constitutional rights. See People v. King, No. 84261 (August10, 2000). In his amended post-conviction petition, defendantrelies on material outside the trial record to argue that, had thisnow-available information been before the circuit court at the timeof his suppression hearing, the circuit court would have suppressedhis confession. Defendant further asserts that, had his confessionbeen suppressed at trial, he "would probably have been acquitted."Defendant contends that the circuit court erred in denying him anevidentiary hearing on this post-conviction claim.

According to defendant's amended post-conviction petition,"newly discovered evidence made available for the first time inMay, 1997, is critically important to this case because itdocuments nearly identical acts of abuse, brutality, andfalsification of evidence by the same officers who investigated[defendant's] case." The amended petition makes reference to aMay 9, 1997, order entered by the United States district court inWiggins v. Burge, 173 F.R.D. 226 (N.D. Ill. 1997). TheWiggins order followed the settlement of a federal civil rightsaction against the Chicago police department alleging torture ofsuspects by police officers at Area 2. The order also struck theconfidential designation of several documents produced by theCity of Chicago during discovery. Citing the public interest in thedisclosure of these documents, the district court removed aprotective order from OPS investigative files, administrativereviews, recommendations and findings in 11 alleged Area 2police torture cases. The court also disclosed a report prepared bythe Chicago police department's office of professional standards(OPS), which surveyed alleged systematic abuse of suspects incustody at Area 2 police headquarters and which named severalpolice officers allegedly involved in cases of abuse, some of whomparticipated in defendant's arrest and interrogation.

Included among the documents attached as exhibits todefendant's amended post-conviction petition are the OPS report,as well as the findings and decision of the police board of the Cityof Chicago with respect to Area 2. Specifically, the boarddischarged Commander Jon Burge from the Chicago police forceafter finding him guilty of physically abusing Andrew Wilson. Weparenthetically note that there is no evidence of record that Burgewas involved in any aspect of the arrest and questioning ofdefendant at bar. We also note that Detective Yucaitis, the onlyofficer specifically implicated by defendant as abusing him, wasgiven a 15-month suspension for failing to stop or report the abuseof Wilson by Burge, but was not found by the board to haveparticipated in any abuse. Also attached to the amended petition isan unpublished state appellate court opinion in which the courtaffirmed the police board's findings and decision. O'Hara v.Police Board, Nos. 1-94-0999, 1-94-2462, 1-94-2475 cons.(1995) (unpublished order under Supreme Court Rule 23).

The State counters that defendant's claim is barred by waiver,as defendant failed to raise this issue on direct appeal. Wedisagree. Defendant's claim rests upon post-conviction disclosuresby the City of Chicago and the Chicago Police Department whichoccurred after defendant's trial. As such, the information uponwhich defendant relies is clearly outside the trial record uponwhich this court's ruling on direct appeal was based. Because therules of procedural default are relaxed where the facts relating todefendant's claim do not appear on the face of the record, themerits of defendant's claim is properly considered. Haynes, slipop. at 21; People v. Hobley, 182 Ill. 2d 404, 437-38 (1998); Peoplev. Orange, 168 Ill. 2d 138, 167 (1995).

We find that the trial court properly dismissed defendant'sclaim without an evidentiary hearing. In order for newlydiscovered evidence to warrant a new trial, the evidence must be"of such conclusive character that it will probably change theresult on retrial." People v. Patterson, No. 82711, slip op. at 20(August 10, 2000); Hobley, 182 Ill. 2d at 449. We disagree withdefendant's assertion that the now-available evidence of otheralleged incidents of abuse and torture at Area 2 would alter theresult on retrial because it would corroborate his claim that hisconfession was the result of police abuse. To the contrary, ourreview of the record in this matter reveals that, in light of theoverwhelming evidence of defendant's guilt, there is no reasonableprobability that the outcome of defendant's trial would have beendifferent had defendant's confession not been admitted intoevidence. Therefore, we conclude that defendant suffered noprejudice as a result of the claimed error.

Apart from defendant's confession, the State presentedevidence at trial to prove defendant guilty beyond a reasonabledoubt. Richard Pueschel, who was 11 years old at the time of theoffenses and was 18 at the time of trial, provided an in-courtidentification of defendant as one of two men he saw in theapartment the night of the crimes, testifying that he was "99%sure" that defendant was there. "99% sure" may not be sufficientidentification of defendant as the perpetrator of the crime,particularly in a capital case. However, Richard Pueschel'sidentification of defendant is corroborated by evidence that at thetime of his arrest, shortly after the murders were committed,defendant was in possession of jewelry and weapons taken fromthe Pueschel home at the time of the commission of the crimes.Specifically, the jury heard evidence that numerous items ofpersonal property which were stolen from the Pueschel's residencewere found in defendant's apartment, including two dozen piecesof jewelry identified as belonging to either Jo Ellen, Dean orRichard Pueschel. The jury also heard evidence that, at the policestation following defendant's arrest, defendant removed a man'sring from his hand and a watch from his back pocket, stating thatthese items belonged with the other pieces of property that hadbeen seized from his apartment. The ring and watch wereidentified at trial as also belonging to Dean Pueschel. In addition,the loaded .357 Magnum revolver recovered from defendant'snight stand, as well as a shotgun recovered from defendant'scloset, were identified as belonging to the Pueschels. Under thetotality of the evidence, our review of this record convinces us thatin light of the overwhelming evidence establishing defendant'sguilt, confidence in the outcome of defendant's trial is notundermined, even assuming the claimed error.

We find the instant cause factually distinguishable from ourrecent decision in People v. Patterson, No. 82711 (August 10,2000), wherein the defendant presented a similar argument thatnewly discovered evidence supported the theory that hisconfession was the product of coercion by police officers assignedto Area 2. In Patterson, the new evidence relied upon by thedefendant consisted of many of the same documents which areattached to the amended post-conviction petition filed bydefendant in the instant cause. We concluded in Patterson that, inlight of this now-available evidence, an evidentiary hearing waswarranted on Patterson's allegations of police misconduct.However, in Patterson, we noted that the evidence identifying thedefendant as the perpetrator of a double murder "consisted of (1)the oft-changing testimony of a teenager whose cousin had beena suspect in the crime; and (2) the testimony from the policeofficers and assistant State's Attorneys concerning defendant'sconfession." Patterson, slip op. at 18. Unlike in Patterson, wherethe defendant's confession was the principal piece of evidencesupporting his convictions, in the matter at bar there is sufficientevidence of defendant's guilt, apart from his confession.

We also reject defendant's related argument that his petitionto vacate defendant's convictions and death sentence pursuant tosection 2-1401 of the Code of Civil Procedure (735 ILCS5/2-1401 (West 1996)) was improperly dismissed by the circuitcourt without an evidentiary hearing. Defendant's section 2-1401motion relies totally upon exhibits attached to, or incorporated byreference in, defendant's amended post-conviction petition, andraises the virtually identical "new evidence" claim as presented indefendant's amended petition.

A section 2-1401 petition for relief from a final judgment isthe forum in a criminal case in which to correct all errors of factoccurring in the prosecution of a cause, unknown to petitioner andthe court at the time judgment was entered, which, if then known,would have prevented its rendition. Haynes, slip op. at 16; Peoplev. Berland, 74 Ill. 2d 286, 313-14 (1978). However, where asection 2-1401 petition is filed more than two years after thejudgment was entered, it cannot be considered. 735 ILCS5/2-1401(c) (West 1996); People v. Caballero, 179 Ill. 2d 205(1997). It is well established that the two-year limitation periodmandated by section 2-1401 must be adhered to in the absence ofa clear showing that the person seeking relief is under legaldisability or duress or the grounds for relief are fraudulentlyconcealed. Caballero, 179 Ill. 2d at 210-11.

Defendant's section 2-1401 petition was filed in October1997, more than six years after he was tried and convicted in 1991.In his brief to this court, defendant merely makes passing referenceto this motion, and does not specifically argue that any of thegrounds for tolling the limitations period exist. Therefore, section2-1401 is not available as a remedy. Caballero, 179 Ill. 2d at 211.In addition, even if defendant's section 2-1401 motion had beentimely presented, as stated above with respect to the identicalclaim made in defendant's amended post-conviction petition,defendant has failed to establish that the new evidence would havechanged the outcome of the proceedings. The circuit courtappropriately dismissed this motion.

Defendant's final argument in respect to his post-convictionpetition is that the circuit court erred in dismissing, without anevidentiary hearing, defendant's claims that his constitutionalrights were violated during the sentencing phase of his trial. Afterdefendant was convicted, but before the start of the sentencingphase of the proceedings, the circuit court readmonished defendantconcerning his right to be represented by counsel. The circuit courtreminded defendant that attorneys from the public defendant'sofficer had been appointed as his "legal advisors," and thatdefendant had the option of allowing them to represent him duringsentencing. Defendant initially indicated that he wished tocontinue to represent himself during the sentencing proceedings.However, defendant, in open court, then inquired of one of his"legal advisors" whether counsel could "come up with someevidence I can't come up with." Counsel replied: "[b]ecause thedefendant has asked me a question in open court, it is my feeling,having a conversation with [defendant] in the lockupapproximately 20 minutes ago, that he does not comprehend whatis going on at this time. He's not fit for sentencing." The circuitcourt then ordered that defendant be examined for fitness. Apsychiatric examination of defendant was performed by Dr. RobertReifman, who concluded that defendant was fit for sentencing.Thereafter, the circuit court allowed defendant to waive his rightto counsel and to represent himself during the sentencingproceedings. The State then presented Dr. Reifman at the secondstage of the sentencing hearing as a witness in aggravation. Dr.Reifman testified that defendant had an antisocial personalitydisorder, but that defendant was not suffering from a mentaldisease.

On direct appeal to this court, defendant argued that, pursuantto Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct.1866 (1981), he was entitled to receive Miranda warnings at theoutset of the psychiatric examination. Defendant contended that,because no warnings were given, the State improperly introducedevidence from Dr. Reifman's examination of defendant. We heldthat defendant had waived this issue, and also determined that theissue did not rise to the level of plain error. Mahaffey, 166 Ill. 2dat 27. The evidence at the second stage of the defendant'ssentencing hearing was not closely balanced, as defendantintroduced no evidence in mitigation while the State, in contrast,presented extensive evidence in aggravation. Mahaffey, 166 Ill. 2dat 27. We also determined that the alleged error was notsubstantial. We noted that Estelle had only limited application tothe facts presented here, and that the jury could have as likelyconsidered the content of Dr. Reifman's testimony in mitigationas in aggravation. Mahaffey, 166 Ill. 2d at 27-28.

Defendant, urging us to "revisit the issue," now raises thesame argument in his post-conviction petition that he raised ondirect appeal that the court-ordered fitness examination prior tosentencing deprived him of his right to remain silent because hewas examined by Dr. Reifman without first being given Mirandawarnings. The State contends that this issue is barred by thedoctrine of res judicata as a result of this court's decision on directappeal. We agree. In a post-conviction proceeding, determinationsof the reviewing court on the prior direct appeal are res judicataas to all issues actually decided. Whitehead, 169 Ill. 2d at 371.Defendant contends, however, that considerations of fundamentalfairness require that we relax the res judicata bar. We disagree. Asstated, fundamental fairness is usually analyzed in terms of "causeand prejudice." See Franklin, 167 Ill. 2d at 20-21. Defendant hasfailed to provide argument or facts sufficient to support the causeand prejudice requirements of the fundamental fairness exception.Defendant simply offers the bald assertion that fundamentalfairness overrides the res judicata doctrine. Accordingly, wedetermine that defendant's claim is barred. See Franklin, 167 Ill.2d at 15.

In his amended post-conviction petition, defendant also raisesthe related argument that he was denied his right to representhimself at the sentencing stage of his trial, as guaranteed byFaretta v. California, 422 U.S. 806, 807, 45 L. Ed. 2d 562, 566,95 S. Ct. 2525, 2527 (1975). According to defendant's brief, theassistant public defendant who was acting as his "legal advisor"and who requested that defendant be evaluated for fitness, wasactually representing "the trial court, not [defendant], who wasrepresenting himself." Defendant argues that "in allowing standbycounsel to initiated [sic] an examination that boomeranged on[defendant], the trial court violated [defendant's] right to representhimself."

The State responds that consideration of this claim is barredby both res judicata and waiver. We agree. That portion ofdefendant's claim which asserts that the examination"boomeranged" on defendant is simply a recasting of the argumentrejected on direct appeal concerning the introduction of Dr.Reifman's testimony at sentencing. A defendant cannotcircumvent the doctrine of res judicata and obtain post-convictionrelief simply by rephrasing issues previously addressed on directappeal. People v. Emerson, 153 Ill. 2d 100, 107-08 (1992). TheState also correctly contends that the remainder of the claim iswaived because defendant never argued on direct appeal that hisright to self-representation was violated during the sentencingproceedings. See Whitehead, 169 Ill. 2d at 371. Defendant alsourges that we should ignore the procedural bar as to this portion ofhis claim on the basis of fundamental fairness. See Franklin, 167Ill. 2d at 20-21. Defendant, however, simply asserts thatfundamental fairness overrides waiver. We conclude thatdefendant has failed to satisfy the cause and prejudicerequirements of the fundamental fairness exception. Therefore, wedetermine that defendant's claim is barred. Franklin, 167 Ill. 2d at15.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thecircuit court of Cook County dismissing defendant's amendedpetition for post-conviction relief. We hereby direct the clerk ofthis court to enter an order setting Thursday, January 11, 2001, asthe date on which the sentence of death entered by the circuit courtof Cook County is to be carried out. The defendant shall beexecuted in the manner provided by law (725 ILCS 5/119-5 (West1994)). The clerk of this court shall send a certified copy of themandate in this case to the Director of Corrections, to the wardenof Tamms Correctional Center, and to the warden of the institutionwhere defendant is now confined.

Affirmed.

CHIEF JUSTICE HARRISON, concurring in part anddissenting in part:

I agree that Mahaffey's convictions should not be disturbed.In my 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,