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Docket No. 88799-Agenda 4-November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES MUNSON, Appellant.

Opinion filed June 20, 2002.

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County,defendant, James Munson, was convicted of the first degreemurder of Marvin Cheeks, armed robbery, aggravated kidnapping,and arson of the property of Cheeks. Defendant waived a jury forsentencing and, following a bifurcated sentencing hearing, wassentenced to death by the trial court on the first degree murderconviction and to concurrent prison terms on the other convictions.The trial court denied defendant's post-trial motions. This courtaffirmed defendant's convictions and death sentence on directappeal (People v. Munson, 171 Ill. 2d 158 (1996)), and the UnitedStates Supreme Court denied certiorari (Munson v. Illinois, 519U.S. 880, 136 L. Ed. 2d 141, 117 S. Ct. 205 (1996)). Defendantfiled a post-conviction petition, which was dismissed by the trialcourt on the State's motion. Defendant's appeal lies directly to thiscourt. 134 Ill. 2d R. 651(a).

BACKGROUND

The facts of this case are set forth in this court's opinion ondirect review and will be repeated here only as necessary toaddress defendant's arguments in this appeal. In December 1995,defendant filed a pro se petition for post-conviction relief andrequested appointment of counsel. Post-conviction counsel filedan amended post-conviction petition and a supplement to thepetition. Defendant filed a pro se supplemental petition. Thevarious petitions made many allegations, some of which have beenabandoned in this appeal. The amended post-conviction petitionadvanced five claims for relief: (1) trial counsel was ineffective infailing to properly investigate and present mitigating evidence atthe capital sentencing hearing; (2) defendant was denied equalprotection or, in the alternative, effective assistance of appellatecounsel, regarding a failure to raise a challenge pursuant to Batsonv. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986),to the State's use of a peremptory challenge to venirepersonSandra McElwee; (3) appellate counsel was ineffective for failingto raise the issue of prosecutorial misconduct; (4) defendant wasdenied due process when the trial court erroneously founddefendant's possession of a handgun when he was arrested to bean aggravating factor at sentencing, or in the alternative, trialcounsel was ineffective for failing to produce police reports thatwould have corroborated defendant's claim as to his intent inpossessing the gun; and (5) defendant's sentence isunconstitutionally disparate to that of his codefendant, DarrylClemons.

Post-conviction counsel further alleged in the supplement tothe post-conviction petition that (1) defendant's arrest was illegal;(2) trial counsel was ineffective for (a) failing to investigate andpresent independent ballistics testing and forensic analysis of thealleged murder weapon, (b) failing to file motions to quashdefendant's arrest and adequately prepare for the suppressionmotion counsel did file, (c) failing to present any defense evidenceor a coherent theory of defense at trial, and (d) presenting a"rambling, incoherent, offensive" closing argument that concededdefendant's guilt and attacked the victim; (3) appellate counselwas ineffective for (a) not obtaining portions of the record relatingto Batson discussions concerning juror McElwee and theavailability of Kenneth Burks as a witness, (b) failing to raise theadmissibility of the recovered weapon, (c) failing to raise the trialcourt's improper restriction of cross-examination regarding awitness' expectation of a reward, and (c) failing to raise the issueof disproportionality of defendant's sentence; (4) the Statewithheld exculpatory evidence in violation of Brady v. Maryland,373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) in failing todisclose criminal records of certain witnesses and the existence ofa reward offered by the victim's family for information leading tothe victim's killer; (5) the State presented perjured testimony orfailed to correct testimony it knew to be false of two witnesses; (6)defendant's constitutional rights were violated where theprosecutor (a) repeatedly commented in closing argument ondefendant's failure to testify at trial, and (b) made repeatedimproper statements in closing argument; and (7) defendant'sconstitutional rights were violated where he did not knowingly andintelligently waive his right to a sentencing jury due to trialcounsel's misinforming and actively misleading him.

The trial court granted the State's motion to dismiss, findingdefendant's claims to be barred by waiver and res judicata.

ANALYSIS

I. Standard of Review

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.(West 2000)) provides a remedy by which defendants maychallenge their convictions or sentences for violations of federalor state constitutional law. People v. Towns, 182 Ill. 2d 491, 502(1998); People v. Tenner, 175 Ill. 2d 372, 377 (1997). Apost-conviction action is a collateral proceeding, and not an appealfrom the underlying judgment. People v. Williams, 186 Ill. 2d 55,62 (1999), quoting People v. Ruiz, 132 Ill. 2d 1, 9 (1989). Thepurpose of the proceeding is to allow inquiry into constitutionalissues relating to the conviction or sentence that were not, andcould not have been, determined on direct appeal. People v.Griffin, 178 Ill. 2d 65, 72-73 (1997); People v. Mahaffey, 165 Ill.2d 445, 452 (1995). Thus, res judicata bars consideration of issuesthat were raised and decided on direct appeal, and issues that couldhave been presented on direct appeal, but were not, are consideredwaived. Towns, 182 Ill. 2d at 502-03. A defendant is not entitledto an evidentiary hearing on a post-conviction petition as a matterof right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Rather,an evidentiary hearing is warranted only when the allegations ofthe post-conviction petition, supported when necessary by the trialrecord or accompanying affidavits, make a substantial showingthat the defendant's constitutional rights have been violated.Hobley, 182 Ill. 2d at 428; Towns, 182 Ill. 2d at 503. Indetermining whether to grant an evidentiary hearing, allwell-pleaded facts in the petition and in any accompanyingaffidavits must be taken as true. Towns, 182 Ill. 2d at 503. Acircuit court's dismissal of a post-conviction petition without ahearing will be reviewed de novo. People v. Coleman, 183 Ill. 2d366, 388-89 (1998).

II. Batson Claim

On appeal, defendant alleges that appellate counsel wasineffective for failing to raise a Batson claim as to the prosecutor'suse of a peremptory challenge to venireperson Sandra McElwee.At trial, the State used peremptory challenges to exclude from thejury McElwee and two other venirepersons, Robert Canady andOla Love. At the close of jury selection, trial counsel moved for amistrial, arguing that the prosecution had improperly used three ofits four peremptory challenges to exclude Canady, Love andMcElwee, in violation of Batson. The trial court found a primafacie case of racial discrimination as to the exclusion of Canadyand Love. As to McElwee, although trial counsel argued that shewas clearly black, the trial court expressed doubt, noting her lightcomplexion and her name. In response to questioning from thetrial court, the prosecutor stated that her notes reflected thatMcElwee was a Caucasian female. The trial court found thisperception to be reasonable and concluded that the prosecutor hadadvanced a race-neutral explanation for excluding McElwee. Thetrial court denied trial counsel's motion to subpoena McElwee totestify concerning her race. On direct appeal, appellate counselraised a Batson issue as to venirepersons Canady and Love, but notas to McElwee.

Batson established a three-step analysis to determine whetheror not the State used its peremptory challenges to removevenirepersons on the basis of race. First, the defendant must makea prima facie showing that the prosecutor has exercisedperemptory challenges on the basis of race. Munson, 171 Ill. 2d at174; People v. Hudson, 157 Ill. 2d 401, 425 (1993). Second, if thedefendant has made a prima facie showing, the burden then shiftsto the State to provide a race-neutral explanation for excludingeach venireperson in question. A race-neutral explanation is onebased upon something other than the race of the venireperson. Inassessing an explanation, the trial court focuses on the facialvalidity of the prosecutor's explanation. The explanation need notbe persuasive, or even plausible. A legitimate reason is not areason that makes sense, but rather is a reason that does not denyequal protection. Absent an inherent discriminatory intent in theprosecutor's explanation, the reason offered will be deemedrace-neutral. Munson, 171 Ill. 2d at 174-75. Defense counsel thenmay rebut the prosecutor's reasons as being pretextual. People v.Mitchell, 152 Ill. 2d 274, 288 (1992). Third, the trial court thenweighs the evidence in light of the prima facie case, theprosecutor's reasons for challenging the venireperson, and anyrebuttal by defense counsel. Mitchell, 152 Ill. 2d at 288. The courtmust determine whether the defendant has met his or her burdenof proving purposeful discrimination. Munson, 171 Ill. 2d at 174.

Defendant attached to his post-conviction petition an affidavitof McElwee, in which she stated that she is an African-Americanwoman whose race has been mistaken for Hispanic, but never forCaucasian. At the conclusion of the hearing on the State's motionto dismiss defendant's post-conviction petition, the trial courtfound that the prosecutor's perception of McElwee's race asCaucasian at the time the peremptory challenge was exercised wassignificant and that this perception was reasonable, based upon thetrial court's observation of McElwee. The court also noted thatbecause the victim was black and the State's principal witnesseswere black, the prosecutor would have no motive to exclude blackpeople from the jury.

Defendant now argues that the trial court's finding as to theprosecutor's perception of McElwee's race as Caucasian iserroneous, and that it was the trial court who supplied the race-neutral explanation for McElwee's exclusion from the jury, not theprosecutor. He argues that the prosecutor did not state that shethought McElwee was Caucasian and that it was improper for thetrial court to rely on its own impression of McElwee, where thoseimpressions were stated prior to inquiry of the prosecutor as to arace-neutral explanation for the peremptory challenge. Accordingto defendant, the prosecutor did not give a race-neutralexplanation, but merely expressed uncertainty about McElwee'srace.

The State argues that defendant has waived this claim,because he did not raise it in his direct appeal. As stated,determinations made by a reviewing court on direct appeal are resjudicata as to issues actually decided. Issues that could have beenpresented on direct appeal, but which were not, are deemedwaived for purposes of post-conviction review. People v. Johnson,183 Ill. 2d 176, 186 (1998); Towns, 182 Ill. 2d at 502-03.Procedural default, however, will be excused where (1)fundamental fairness so requires; (2) the alleged waiver stemsfrom the incompetence of appellate counsel; or (3) the factsrelating to the claim do not appear on the face of the originalappellate record. People v. Mahaffey, 194 Ill. 2d 154, 171 (2000);People v. Whitehead, 169 Ill. 2d 355, 371-72 (1996). Ineffectiveassistance of appellate counsel is judged under the standard setforth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052 (1984). People v. Richardson, 189 Ill. 2d 401, 412(2000). Defendant must show that the failure to raise the Batsonissue regarding McElwee was objectively unreasonable and that,absent this failure, defendant's conviction or sentence would havebeen reversed. Richardson, 189 Ill. 2d at 412. We note thatappellate counsel is not required to argue every conceivable issueon appeal. People v. Tenner, 175 Ill. 2d 372, 387 (1997).Counsel's decision as to what issues to raise and argue will not bequestioned unless that decision is patently wrong. People v.Madej, 177 Ill. 2d 116, 159 (1997).

The record reveals that when the trial court asked theprosecutor her opinion of McElwee's race, she replied, "In myopinion, female white, lab technician, attended the University ofIllinois." In a subsequent colloquy, the trial court again asked theprosecutor her opinion as to whether McElwee was Caucasian,Hispanic, or black. The prosecutor replied, "I-I-I'm not sure,Judge. I wrote female white. I really didn't think that hard. I haveF.W. Looking back, I don't know, Judge."

Defendant argues that the trial court erred in ruling thatdefendant had not made a prima facie case of racial discriminationas to McElwee on the grounds that the prosecutor's belief thatMcElwee was Caucasian was reasonable, when the prosecutor didnot state that she believed McElwee was in fact Caucasian. Thetrial record, however, belies this claim. Batson requires that adefendant make a prima facie showing that the prosecutor hasexercised peremptory challenges on the basis of race. If thatburden is satisfied, the burden shifts to the prosecutor to providea race-neutral explanation for excluding the particular juror. Thetrial court must then determine whether the defendant has met hisburden of proving purposeful discrimination. Munson, 171 Ill. 2dat 174. In the instant case, we conclude that the prosecutor'sstatements indicate that, at the time she exercised the peremptorychallenge to McElwee, she believed that McElwee was Caucasian.Her later statements of uncertainty at the hearing on defendant'sBatson motion do not detract from this conclusion. The gravamenof a Batson claim is purposeful discrimination in excludingvenirepersons from the jury on the basis of their race. SeeHernandez v. New York, 500 U.S. 352, 359-60, 114 L. Ed. 2d 395,406, 111 S. Ct. 1859, 1866 (1991).

Defendant argues that the prosecutor did not give a race-neutral explanation for excusing McElwee, because the trial courtfailed to ask for an explanation. However, no such explanation isrequired unless the defendant makes a prima facie showing ofracial discrimination. The trial court's questioning of theprosecutor was designed to assist it in determining whetherdefendant had carried his burden. Once the trial court found thatthe prosecutor's perception of McElwee as Caucasian wasobjectively reasonable, no further inquiry was required. The trialcourt did not, as defendant suggests, blindly accept theprosecutor's statements concerning her belief that McElwee wasCaucasian. The court set forth its own observations on the recordand, based upon those observations, found the prosecutor's beliefto be reasonable. Defendant submits that a good-faith questionexisted with respect to McElwee's race and that the question hasnow been answered by McElwee's affidavit stating that she isblack. However, the prosecutor was not required to establish theempirical truth of her stated belief concerning McElwee's race. Itis sufficient that the prosecutor reasonably believed that McElweewas Caucasian at the time the peremptory challenge was exercised.See People v. Harris, 164 Ill. 2d 322, 338 (1994).

Accordingly, we conclude that trial counsel's Batsonchallenge as to McElwee had no merit and appellate counsel wasnot ineffective in failing to raise that issue on direct appeal.

III. Probable Cause for Arrest

Defendant argues that trial counsel was ineffective for failingto file a motion to quash defendant's arrest on the ground of lackof probable cause. He further argues that the trial court erred indenying an evidentiary hearing on this issue.

At trial, Kenny Curry testified that the day after the murder,he was working on his car at the home of his friend, KennethBurks. Defendant came over to Burks' home and began conversingwith Burks. Curry noticed that defendant's face had burn marksand was covered with grease. Defendant told Curry that his "thing[was] taking [people] out of their cars." Defendant elaborated,telling Curry that on the prior evening he set fire to an Amigotruck because "the guy tried [him.]" He shot the man once andthen shot him a second time after the man "broke and ran" awayfrom him. Defendant then purchased some gasoline and returnedto the area to burn the victim's truck. In the process of burning thetruck, defendant's face was burned.

Curry further testified that he later learned that the victim wasMarvin Cheeks, the brother of Maurice Cheeks, a professionalbasketball player. Although Curry did not know Marvin Cheeks,he and a friend (Burks) attended the funeral in anticipation ofMaurice Cheeks' presence there. Neither Curry nor Burksimmediately reported to the police what defendant had said aboutthe killing.

Detectives Mike Miller and James Hanrahan were assigned toinvestigate the Cheeks murder. Hanrahan testified that on October8, 1991, he received a telephone call from a member of the Cheeksfamily. He and Miller subsequently met with the Cheeks familymember, Kenneth Burks and Ricky Vivurette. After speaking withthose individuals, Hanrahan and Miller made arrangements withBurks to conduct a mobile surveillance of Burks' car. Miller andHanrahan followed Burks, with whom Vivurette was riding, for aperiod of time. Burks eventually parked on West Monroe Street.A person, later identified as defendant, approached Burks' car andbegan to talk to Burks. After a brief conversation, defendantturned and ran into the building at 2020 West Monroe Street andBurks drove off. Hanrahan and Miller stopped Burks, at whichtime Burks explained that defendant had seen the detectivesparked nearby and believed them to be vice detectives. Defendanttold Burks to drive away and to come back. The surveillancecontinued. Burks drove off, returned to 2020 West Monroe Streetand parked. The detectives observed defendant run out of the 2020West Monroe Street building and enter the rear of Burks' car.Burks then drove off with both defendant and Vivurette. Thedetectives followed, eventually stopping Burks' car at NorthLeavitt Street. Hanrahan first ordered Burks and Vivurette out ofthe car and then defendant. While Hanrahan searched defendant,Miller searched the backseat of the car, where he found a weapon.At that time, Hanrahan handcuffed defendant and advised him ofhis Miranda warnings. Miller drove the vehicle to a police garageand Hanrahan transported defendant to Area 4 Violent Crimes.

The basis for defendant's claim that his trial counsel wasineffective for failing to file a motion to quash his arrest is thatBurks was not a reliable informant. Defendant notes that at thetime he came forward, Burks had an expectation of a reward fromthe Cheeks family. Defendant also notes that Burks did not godirectly to the police, but initially contacted the Cheeks family atthe victim's funeral. The State argues that defendant has waivedreview of this claim because it could have been raised on directreview and was not. However, defendant relies on his affidavitattached to his post-conviction petition to support his argument onthis issue. As this affidavit is dehors the record, a finding ofwaiver is not appropriate. See Mahaffey, 194 Ill. 2d at 171.

Probable cause for a warrantless arrest exists where policehave knowledge of facts that would lead a reasonable person tobelieve that a crime has been committed and that the person to bearrested committed it. People v. Chapman, 194 Ill. 2d 186, 216-17(2000). Where police are acting on an informant's tip, the totalityof the circumstances known to the officers must support theirreliance on the information provided by the informant. People v.Kidd, 175 Ill. 2d 1, 23-24 (1996). The existence of probable causeis not governed by technical legal rules, but by commonsenseconsiderations that are factual and practical. People v. Williams,147 Ill. 2d 173, 209 (1991).

Defendant argues that Burks' credibility was undermined bythe fact that he did not come forward immediately after the allegedconversation with defendant and that he and Curry contacted thevictim's family after a reward had been publicized. Defendant alsoargues that Burks knew he could ensure that defendant would havea gun when he was arrested. Defendant alleges that Burks hadgiven him a gun several days earlier. During the policesurveillance of Burks' car, when Burks pulled his car over to pickup defendant, Burks told defendant to go back in the house and getthe gun. This last allegation is made in defendant's affidavitattached to his post-conviction petition. Defendant seeks to drawa distinction between Burks and the ordinary citizen informant.However, whether an informant is classified as a citizen informantor a paid informant is unimportant; rather, courts look to thereliability of the informant as only one factor in assessing whetherthe totality of the circumstances establishes the existence ofprobable cause. People v. Adams, 131 Ill. 2d 387, 397 (1989).

Burks related to police the conversation with defendant twodays after the murder in which defendant admitted that he hadkilled the victim and set fire to his car. Defendant also stated thathe had burned his face while burning the victim's car. Burksprovided a physical description of defendant and stated that thegun used in the shooting could be found on defendant or in hishome. When police arrested defendant, it was immediatelyapparent to them that defendant had recent, serious burns on hisface. Further, the police reports appended to defendant's petitionstate that Burks related to officers that defendant had appeared atBurks' home hours before the murder looking for a gun and thatBurks sold defendant a gun on credit. Although defendant nowcontends that Burks set him up by telling him to go inside thehouse and get the gun, there is no support in the record for thistheory. Burks told police that defendant ran into the house becausehe saw the officers' car and thought they were "vice cops." Wenote that the record contains no evidence that Burks sought orreceived a reward from the Cheeks family. Defendant's affidavitattached to his post-conviction petition alleges that on May 10,1993, he had a telephone conversation with Burks in which Burksdenied receiving any reward money. Burks allegedly tolddefendant that Curry received the reward. This fact, even if true,does not support defendant's argument concerning Burks'reliability.

We conclude that probable cause existed for defendant'swarrantless arrest and, thus, he has failed to establish that his trialcounsel was ineffective for failing to file a motion to quash thearrest.

IV. Mitigation Evidence

Defendant next argues that his trial counsel was ineffectivefor failing to properly investigate and present mitigating evidenceat the sentencing hearing. In making this argument, defendantrelies on matters dehors the record. In such cases, waiver does notoperate to foreclose the defendant from raising this claim in hispost-conviction petition. See People v. Holman, 164 Ill. 2d 356,362 (1995).

In the context of a second-stage capital sentencing hearing,the Strickland standard for proving ineffective assistance ofcounsel requires a defendant to show that (1) his attorney'sperformance at the sentencing hearing was deficient, judged byprevailing professional norms and (2) there is a reasonableprobability that, absent the errors, the sentencer would haveconcluded that the balance of aggravating and mitigating factorsdid not warrant death. People v. Johnson, 183 Ill. 2d 176, 195-96(1998).

Evidence at the sentencing hearing demonstrated thatdefendant had one prior conviction for armed robbery in 1989,committed when he was 16 years old. The State presented thetestimony of the victim of that offense, Paul Babian. He testifiedthat he was accosted by defendant and two other men as he sat inhis car waiting to make a right turn. Defendant pressed the barrelof a gun to Babian's head and ordered him out of the car. Anotherman got in on the passenger side with a gun drawn and a third manstood in front of the car. Defendant demanded that Babian handover his wallet and a signet ring Babian was wearing. One of theother men ripped Babian's gold chain off his neck. Babian gavedefendant his wallet, but would not take off his ring, arguing thatthe ring had no value to defendant, as it had Babian's initials on it.Defendant then placed his gun closer to Babian and said, "[D]on'tmake me kill you, mother fucker, give me the ring." After Babiangave defendant the ring, the men got into Babian's car and droveaway.

Defense counsel called 11 witnesses in mitigation. MarleneWolter, one of defendant's elementary school teachers, testifiedthat defendant was respectful in her class and that he came to herand expressed concern about his younger brother. Defendant knewright from wrong. She recalled investigators coming to the schoolto investigate defendant's complaint that his mother wasneglecting him and his siblings, with no food in the house and therefrigerator locked. Wolter felt that defendant had potential thatwas not developed and that he was a victim. Defendant had amoderate learning disorder.

Mary Munson, defendant's aunt, testified that at the time ofdefendant's birth, his mother was living in a four-bedroomapartment with nine other family members. When defendant wasapproximately five years old, he and his mother moved out. Whendefendant was 16 years old, he went to live with his uncle,Roosevelt Munson. Prior to that time, defendant complained toMary that his mother had beaten him. Mary observed a mark ondefendant's thigh. When asked whether defendant was well caredfor by his mother, Mary replied that defendant's mother "alwayskept food, shelter and clothing." Defendant had a job and used themoney to buy food. Mary was unaware of whether defendant'smother used illegal drugs.

According to testimony from Stephanie Munson, RooseveltMunson's daughter, defendant came to live with her familybecause her mother believed that defendant needed a "real mother"and a "father figure" in his life. Defendant's mother abused drugsand was "never there" for her children. Defendant lived with themfor six months to a year and had to go back to his mother whenStephanie's mother became ill and was hospitalized for a longperiod of time. Defendant was very close to her mother while helived with them.

Melvin Wilson, defendant's father, testified that he has beencontinuously incarcerated since 1985 for two murder convictionsand has never contributed to defendant's support. Wilson statedthat he had neglected defendant, as had defendant's mother.

Janie Munson, defendant's aunt, testified that defendant andhis mother lived with her family for a time in 1979 or 1980, whenhis mother was evicted from "the projects." Defendant cooked andcleaned for his siblings.

Jamesetta Dixon testified that she lived with defendant andhis mother from 1983 to 1988. Dixon was engaged in prostitutionand defendant's mother sometimes went with her when she left thehouse. Defendant cared for Dixon's children and his own siblingswhile they were gone. Both she and defendant's mother used drugsduring this time.

Renard Munson, defendant's brother, testified that defendantwas the father he never had. During the time they lived together,defendant offered Renard advice and encouraged him in school.Defendant sometimes talked to Renard's teachers on his behalf.Defendant purchased Renard's school supplies and clothes.

Frances Munson, defendant's mother, testified that she has sixchildren. She was never married to any of their fathers. She useddrugs while living with Jamesetta Dixon.

Lintreatha Munson, defendant's aunt, testified that defendantworked at a shop making leather belts and he took care of hisbrother and sisters. He fed and clothed them, bought them things,gave them a bath, put them to bed, and took them to school in themornings.

James Jones testified that he formerly employed defendant athis leather craft shop from 1981 to 1984. Defendant most oftenspent his paycheck on his family. Defendant's mother would oftenact as if she were using drugs. Two days prior to his arrest in thiscase, defendant asked Jones to help him find a job. Jones statedthat he felt defendant was a "good kid" and that he had gone"astray." Defendant is a "smart kid" and always liked going toschool.

Defendant complains that the trial court was not properlyinformed by this testimony about defendant's life and the effectsthat his troubled childhood had on his development. Trial counseldid not present any evidence of defendant's learning disability orany psychological or developmental evaluations. Thus, accordingto defendant, his trial counsel should have presented the testimonyof a mitigation specialist. In support of this claim, defendant hasattached to his post-conviction petition an affidavit of Caryn PlattTatelli, a licensed clinical forensic social worker. Tatelli stated inher affidavit that she was formerly employed as a mitigationspecialist by the Illinois Capital Resource Center (now the CapitalLitigation Division of the Illinois State Appellate Defender'sOffice). Her duties consisted of investigating, compiling, andanalyzing developmentally related materials for capital defendants.Tatelli had completed mitigation investigations and interviews forapproximately 30 capital cases. In the preparation of her report,Tatelli interviewed defendant and 15 relatives, friends, and otherswho had significant knowledge of defendant. She also reviewed1,000 pages of documents.

Tatelli noted defendant's lack of a positive male role modeland indicated that a fatherless child may become parentified andturn to gangs and other counter-culture groups. They may also, asin defendant's case, turn to other men in the community such asdrug dealers. Tatelli concluded that defendant was a parentifiedchild with an abusive, neglectful, drug-addicted mother and nofather. He was forced to earn money to support his siblings andstruggled academically. When he could not earn enough money atthe leather craft shop, he delivered drugs for older men. In hisadolescence, he turned to dealing drugs to support his family.

In addition to the lack of a father, Tatelli concluded, defendant was not bonded to his mother. A school psychologist'sreport completed when defendant was eight years old concludedthat defendant's innate intellectual development was at least at theaverage level, but he had a short attention span, shallowconcentration, and an overactive nature. Due to the widediscrepancy between defendant's ability and his achievement, hewas placed in a severe disabled learning classroom. He wasevaluated again at age 12 and was found to have improved in hisacademic subjects. Defendant was placed in a regular classroomat age 14 and, despite exhibiting failing grades, was promoted toninth grade.

In summarizing her findings, Tatelli stated that defendant'sdevelopmental life experiences were so far out of the range of thenorm that they impacted him profoundly and "quite probably"altered the course of his life. During a time when defendant shouldhave been developing close friendships and mastering many of thebasic skills of life, he was saddled with adult responsibilities inproviding and caring for his younger siblings. He was providingfor his family by dealing illegal drugs and, "as one might expect,"spent much of his early adulthood in prison.

In addressing the mitigation issue at the hearing on the State'smotion to dismiss defendant's petition, the trial court expressed itsdoubts about whether there is such a thing as a "mitigationexpert." The court also commented at length on the question ofwhether Tatelli could be qualified as an expert witness. We neednot address these questions, however, because the basis for thetrial court's ruling on the mitigation issue was that much of thematerial contained in the affidavits attached to defendant's petitionwas cumulative of the evidence that was presented at thesentencing hearing. The court noted that defendant's trial counselinvestigated and presented evidence in mitigation and that counselconsulted with mitigation specialist Jeffrey Eno. The court alsoconcluded that defendant had failed to establish that theinformation sought to be presented is beyond the knowledge of theordinary person. In this context, the court noted that the fact ahostile environment may adversely affect people is within theknowledge of laypersons generally. The court noted thatdefendant's background had been fully explored at the sentencinghearing and that defendant had not demonstrated that presentationof Tatelli's testimony or further testimony from other witnesseswould have prompted the court to impose a sentence ofimprisonment, rather than the death penalty.

Counsel at a capital sentencing hearing has a duty to conducta reasonable investigation into potential sources of mitigatingevidence to present at the sentencing hearing, or must have alegitimate reason for failing to do so. People v. Jackson, No.88474, slip op. at 7 (December 21, 2001). A mitigation specialistis not crucial to a defendant's ability to marshal evidence inmitigation. People v. Burt, 168 Ill. 2d 49, 78 (1995). This court hasheld that a trial court is not constitutionally required to appoint amitigation specialist, as defense counsel is capable of obtainingand presenting such evidence. People v. Lear, 143 Ill. 2d 138, 148(1991).

In the instant case, defendant's trial counsel presented thetestimony of 11 witnesses in mitigation. Counsel also secured theservices of mitigation specialist Jeffrey Eno. Eno's affidavit,attached to defendant's petition, stated that he did not prepare awritten report due to counsel's cancellation of meetings with him.However, we note that, although Eno did not testify, he wasavailable to consult with counsel. The witnesses who testifiedinformed the trial court about defendant's troubled childhood,including his drug-addicted, neglectful mother, the absence of hisfather, and the responsibility for his family placed upon defendantat a young age. That the abuse and neglect of a child, the absenceof a parent in the household, and the parentification of a child mayhave adverse effects on that child is not within the exclusiveknowledge of a mitigation specialist. Defendant has not allegedthat he suffered from any recognized psychological impairment ormental disability that might have required the testimony of anexpert. Accordingly, we conclude that trial counsel was notprofessionally deficient in failing to secure the testimony of amitigation specialist. Defendant attached to his petition severalaffidavits of potential witnesses. However, much of the content ofthese affidavits is cumulative of evidence already heard by the trialcourt at sentencing or adds little to the testimony heard by thecourt. For example, the affidavit of Diane Faubl, one ofdefendant's teachers, stated that defendant was an average studentwho never got into trouble and tried to help other students and hissiblings. Marlene Wolter, one of defendant's teachers, testified atthe sentencing hearing that defendant was respectful in her classand demonstrated concern for his siblings. Faubl's testimonywould have added nothing new to this evidence. Loretta Kindhart,defendant's teacher in his learning disabled class, stated in heraffidavit that defendant tried to keep her from understanding howbad things were at home and that she had several conversationswith defendant's mother, who appeared to be "high" on drugs. Thetrial court heard extensive evidence at sentencing concerningFrances Munson's drug use. Roosevelt Munson, defendant'suncle, who testified at the sentencing hearing, provided anaffidavit that contained additional detail about defendant's life,such as his mother's drug addiction, his lack of a father, his effortsto support his siblings, and the family's attempts to helpdefendant. The trial court heard this information from Rooseveltand others at the sentencing hearing. Roosevelt's affidavit ismerely cumulative of that evidence. Similarly, the affidavit ofJulie Munson, defendant's cousin, is cumulative of evidence heardat the sentencing hearing regarding defendant's difficultchildhood. We note also that many of the affidavits of potentialwitnesses attached to defendant's petition stated not only facts, butalso the affiants' speculation, analyses, and opinions of the effectdefendant's difficulties had on him as he was growing up.

Evidence of a difficult childhood or developmental problems,we note, is not inherently mitigating. People v. Emerson, 189 Ill.2d 436, 495 (2000). The sentencer may regard the evidence asaggravating, especially if the evidence suggests that defendantmight pose a danger in the future. People v. Montgomery, 192 Ill.2d 642, 673 (2000).

We conclude that trial counsel was not professionallydeficient for failing to call additional witnesses to testify or forfailing to elicit additional details from the witnesses who didtestify. Further, counsel was not deficient for failing to have amitigation specialist testify, as such testimony was unnecessary.Since much of the proffered evidence was cumulative and mayhave been viewed as aggravating, we also conclude that defendanthas failed to establish that a reasonable probability exists that thetrial court would not have imposed the death penalty had thisevidence been presented at sentencing.

V. Disparate Sentence

Defendant argues that his death sentence is unreasonablydisparate to the 60-year prison term imposed on his codefendant,Darryl Clemons. He contends that Clemons played an equallyactive role in the crime, had a more extensive criminal history thandefendant, and had negligible rehabilitative potential.

The State argues that this issue is foreclosed by defendant'sfailure to include it in his post-sentencing motion. However, sincedefendant was sentenced on June 10, 1993, and the record onappeal shows that Clemons was sentenced on February 18, 1994,this issue could not have been preserved for review. Appellatecounsel did not raise this issue in the direct appeal. However,where a defendant relies on matters outside the record in supportof a post-conviction claim, we will not find waiver. Holman, 164Ill. 2d at 362.

Comparative proportionality review in death penalty cases isnot required by the United States Constitution and is not a featureof the Illinois death penalty statute. People v. Jimerson, 127 Ill. 2d12, 54 (1989). Nonetheless, this court has the constitutional dutyto determine whether a death sentence has been imposedarbitrarily or capriciously, or is unduly severe, considering thecircumstances of the offense and the character and rehabilitativeprospects of the defendant. To guarantee the individualizedsentencing that the eighth amendment (U.S. Const., amend. VIII)requires, this court has compared a defendant's death sentence tothe sentence of a codefendant or an accomplice. This court hasfocused on the nature of the offense, each individual's relativeinvolvement in the offense, his character, background, criminalrecord, and his potential for rehabilitation. See, e.g., People v.Kitchen, 159 Ill. 2d 1, 44 (1994); People v. Bean, 137 Ill. 2d 65,134 (1990).

Defendant had one prior conviction for armed robbery in1989, committed when he was 16 years old. The trial court hearddetails of that offense at defendant's sentencing hearing.Following his arrest for the Babian armed robbery, defendant gavea statement to an assistant State's Attorney in which he namedClemons as one of the men with him during the robbery.Defendant was sentenced to a prison term of six years. He hadbeen released on parole three months before the Cheeks murder.We have allowed defendant to supplement the record on appealwith the transcript of Clemons' sentencing hearing in the Cheeksmurder. It shows that Clemons had four prior arrests for burglary,theft, and armed robbery. He was on home monitoring at the timeof the Cheeks murder.

Defendant gave a series of statements to the police followinghis arrest for Cheeks' murder. In his final statement given toDetective Gene Harris and Assistant State's Attorney CharlesBurns, defendant stated that he and Clemons had staked out somepublic telephones waiting for someone to rob. Cheeks pulled up tothe telephones in a black Jeep-type vehicle. He got out and usedthe telephone. Defendant told Clemons that they were going to robCheeks. At the time, defendant was armed with a Colt Python .357Magnum. Defendant and Clemons approached the vehicle. Cheeksappeared to have fallen asleep. Defendant pointed his gun atCheeks and told him to move over to the passenger's side of thevehicle. Defendant got in the driver's side while Clemons enteredthe backseat. They took Cheeks' coat, gold chain, watch and cash.Eventually, defendant, Clemons, and Cheeks switched seats.Cheeks ended up back in the driver's seat with defendant in thebackseat. While defendant held the gun on Cheeks, Clemonsinstructed Cheeks to drive west on the Eisenhower Expressway.Because the vehicle was low on gasoline, Cheeks exited theexpressway at Ashland Avenue and pulled into a gasoline station.Clemons pumped the gasoline. Cheeks told defendant his nameand that he was a fireman. Defendant stated that at this point, hewanted to get away, but he was afraid that Cheeks would reportthe incident to police. After purchasing the gas, Clemons orderedCheeks to continue driving west on the expressway. Cheekscontinued on the Eisenhower, exited north onto Kostner Avenue,and ultimately proceeded west on Van Buren Street. After passingunder a viaduct, Clemons told Cheeks to pull into a vacant lot.Cheeks panicked and attempted to grab the gun. The gundischarged twice. Defendant jumped into the front passenger seat,accidently releasing Cheeks' safety belt, and Cheeks jumped fromthe vehicle and ran. Defendant did not admit killing Cheeks.Instead, defendant stated that he did not chase Cheeks and he andClemons started to walk away. Defendant then realized that hemight have left fingerprints inside the vehicle by which he couldbe identified. Defendant then told Clemons that they had todestroy the vehicle. The two purchased gasoline, poured it on thedashboard of the vehicle and tried, unsuccessfully, to ignite it witha cigarette lighter. On the second attempt, there was an explosionthat burned defendant's face.

At Clemons' sentencing hearing, his parents testified inmitigation. In arguing for the death penalty for Clemons, theprosecutor noted a statement given to Harris and Burns byClemons in which he stated that when Cheeks ran from the car,Clemons chased and tackled him three times. After that, defendantshot Cheeks twice.

In declining to impose the death penalty on Clemons, the trialjudge, who also presided over defendant's trial, found thatClemons' situation differed from that of defendant. The courtconcluded that the nature of defendant's one armed robberyconviction was more serious than Clemons' multiple arrests. Thecourt found particularly aggravating the fact that defendant placeda gun to Babian's head and threatened to kill him if he did notcooperate. The court expressed its opinion that this act"substantially dwarfs" Clemons' prior record of criminality. Whileacknowledging that Clemons was actively involved in the Cheeksmurder, the court noted that defendant was the one who actuallyshot Cheeks multiple times.

Following defendant's sentencing hearing, the trial courtfound the existence of several aggravating factors and furtherexplained its decision to impose the death penalty. Whileacknowledging the mitigating evidence presented by trial counsel,the court noted contradictions in the evidence. For instance, thecourt found it contradictory that the evidence showed defendant'sconcern for his family, while he apparently has no feelings ofbrotherhood with people outside his family. The court noted thatdefendant's immediate family was in considerable disarray, butthat his extended family was caring and supportive. The court alsofound it contradictory that testimony showed defendant's motherwas a prostitute and drug abuser, yet one of defendant's auntstestified that defendant's mother provided him with food andshelter. The court also noted that, while defendant's own fatherwas absent from the home, defendant had male role models in hisemployer, Jones, and his uncle Roosevelt. The court found itsignificant that defendant committed the Cheeks murder shortlyafter being released from prison for the armed robbery of PaulBabian. The court also noted that defendant possessed a loadedhandgun several days after the murder, demonstrating a lack ofremorse. The court referred to the murder as a "cold-bloodedplanned killing." The court found that defendant's actions did notspeak well for his rehabilitative potential.

We conclude that defendant's death sentence is notunreasonably disparate to Clemons' 60-year prison term. AlthoughClemons actively participated in the murder, defendant had thegun and shot Cheeks four times. In addition, although Clemonsprevented Cheeks from running away, defendant had the lastchance to save Cheeks' life and, instead, chose to shoot him twicemore. See People v. Kliner, 185 Ill. 2d 81, 176 (1998)(codefendant not equally culpable where defendant shot the victimrepeatedly and had final opportunity to preserve victim's life whenhis gun jammed); People v. St. Pierre, 146 Ill. 2d 494, 514 (1992)(defendant's death sentence not unreasonably disparate to prisonsentence of accomplices where, although accomplices conceivedthe plan to kill the victims, defendant was the one who struck onevictim in the head with a hammer repeatedly, waited for thesecond victim to arrive home and did the same thing to her);People v. Ashford, 121 Ill. 2d 55, 88-89 (1988) (death sentence notunreasonably disparate where defendant shot all or almost all ofthe victims, despite accomplice's more serious criminalbackground).

In regard to defendant's lack of remorse, we also note theevidence at trial from Kenny Curry, to whom defendant braggedabout the murder, stating that his "thing [was] taking [people] outof their cars." Defendant was the principal actor in the armedrobbery of Babian, for which he served prison time. The instantoffense was committed within a few months of defendant's releasefrom prison in which defendant again was the principal actor andthe sole shooter. In light of this evidence, we do not findsignificant the fact that defendant had only one conviction, whileClemons had four arrests and was on home monitoring at the timeof the offense. While defendant may have had a less desirablefamily life than did Clemons, with the absence of one parent andthe drug addiction of the other, the trial court found the evidenceto be inconsistent in some respects. In addition, we note again thatevidence of a turbulent childhood is not inherently mitigating.Defendant turned to drug-running and selling drugs at a young ageand, regardless of the stated reason for this, such conduct may beviewed as indicating a propensity to commit crimes.

VI. Failure of Post-conviction Counsel to Comply With Rule651(c)

Defendant alleges that his post-conviction counsel failed tocomply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)),which requires the record on appeal to show that post-convictioncounsel consulted with the defendant by mail or in person toascertain the defendant's contentions of deprivation ofconstitutional rights, examined the record of proceedings at trial,and made any amendments to the pro se petition that werenecessary for the adequate presentation of the defendant'scontentions. Compliance with the duties set forth in this rule ismandatory. People v. Szabo, 144 Ill. 2d 525, 532 (1991).Defendants in post-conviction proceedings are entitled to a"reasonable" level of assistance. Because post-convictionproceedings derive from statute, rather than from the federal orstate constitutions, a defendant may not claim sixth amendmentineffective assistance of post-conviction counsel. People v.Wright, 149 Ill. 2d 36, 64 (1992).

Defendant's first argument involves ballistics testing of theColt revolver found in his possession when he was arrested. Policerecovered a bullet jacket from Cheeks' vehicle. At trial, the State'sballistics expert testified that he had examined the gun and therecovered bullet jacket and determined that the jacket could havebeen fired by the gun, but he was unable to form an opinion thatthe jacket was in fact fired from that particular gun. In an amendedpost-conviction petition, defendant argued that trial counsel wasineffective for failing to obtain further forensic testing of the gunin an attempt to rule out the gun as the source of the jacket foundin the Cheeks vehicle. Post-conviction counsel filed a motion fordiscovery, asking the court to order the State to produce the gunand jacket for further testing. The trial court denied the motion.Defendant does not now claim error in the trial court's ruling.Instead, recognizing that discovery is granted in post-convictionproceedings only upon a showing of "good cause" (People v. Fair,193 Ill. 2d 256, 264-65 (2000)), defendant argues that his post-conviction counsel should have supplemented the motion fordiscovery with an affidavit from a ballistics expert. We alloweddefendant's motion to supplement the record on appeal with theaffidavit of Larry Hood. Hood states that he is a retired policeofficer who has been qualified numerous times as an expert in theareas of firearms and arson investigation. Hood stated that hecould not tell from the bullet jacket whether it came from a .357Magnum or a .38 Special weapon and, without an opportunity toexamine the weapon, he could not say with certainty whether thegun recovered from defendant was capable of firing bullets of bothcalibers or only one of them. Hood also stated that furtherexamination of the jacket and comparison to the weapon foundduring defendant's arrest "could eliminate" the possibility that thejacket came from that weapon.

At the trial, Robert Smith, qualified by the trial court as anexpert in firearms examination, testified that he examined thebullet jacket found in Cheeks' vehicle and examined and test-firedthe gun taken at the time of defendant's arrest. Because the jacketwas in a mutilated condition, Smith was unable to form an opinionthat it was fired from one particular gun. The class characteristicsof the jacket would be consistent with the class characteristics ofthe Colt revolver. Thus, the bullet could have been fired from thatgun. On cross-examination, defense counsel elicited testimonyfrom Smith that weapons of this caliber are very common and thatthe jacket could have been fired from tens of thousands of othersuch weapons.

Contrary to defendant's contention, Hood's affidavit does notestablish that further analysis would have demonstrated that thejacket was not fired from the gun found in defendant's possession.Hood merely stated that such analysis "could" eliminate the gunas the source of the spent jacket. It is, of course, theoreticallypossible that further testing might have determined that the jacketwas not fired from the gun. On the other hand, it is equallypossible, theoretically, that such testing might determine that thejacket was in fact fired from the gun defendant possessed. Inreality, however, with the jacket in the mutilated condition asdescribed by Smith, it is doubtful that further testing would havebeen useful. Instead of having the gun and jacket further tested, itis likely that trial counsel made a strategic decision to emphasizeto the jury through cross-examination of the State's expert witnessthat the bullet jacket could not be tied to the gun recovered fromdefendant and that the jacket could potentially have been fired byliterally thousands of other such guns. Decisions concerning whatwitnesses to call and what evidence to present on a defendant'sbehalf are viewed as matters of trial strategy. Such decisions aregenerally immune from claims of ineffective assistance of counsel.People v. West, 187 Ill. 2d 418, 432 (1999). Under thesecircumstances, post-conviction counsel did not fail to renderreasonably effective assistance with regard to defendant'sdiscovery motion.

Defendant next argues that post-conviction counsel erred infailing to properly support with documentation defendant's claimthat his death sentence was unreasonably disparate to Clemons'prison sentence. Defendant alleges that counsel attached only theunpublished order of the appellate court (No. 1-94-2850(unpublished order under Supreme Court Rule 23)) in Clemons'case to the petition and, 29 days after the petition was dismissed,filed a motion for reconsideration that included an "utterlyindecipherable" numerical printout of Clemons' criminal history,and cover sheets for Clemons' presentence report and thetranscript of his sentencing hearing, which were asserted to becurrently unavailable.

We need not address defendant's contention here, in light ofour determination that defendant's sentence is not unreasonablydisparate to Clemons' sentence.

Defendant next argues that post-conviction counsel erred infailing to raise a claim that Kenny Curry expected and received areward for his trial testimony. Defendant alleges that he submittedan affidavit to his attorney stating that Kenneth Burks told him thatCurry had received the reward, but counsel failed to append theaffidavit to the petition.

We have allowed defendant to supplement the record onappeal with his affidavit. He states therein that on May 10, 1993,he called his aunt, Julie Munson, gave her Burks' telephonenumber and asked her to initiate a three-way call. Julie did so anddefendant then spoke to Burks. Defendant asked Burks why helied and cooperated with police in arresting defendant. Burksreplied that he "didn't do nothing." He said, "The other Kenny didit. He's the one who got paid for [testifying]. He got the rewardmoney. I didn't do nothing."

There is no evidence in the record on appeal showing or evensuggesting that the Cheeks family offered a reward. Nor is thereany evidence that Curry received a reward from the Cheeks family.Defendant has filed a newspaper article which indicates thatCheeks' father had offered a $2,500 reward. Trial counsel did notquestion Curry at trial about a reward. However, on cross-examination, counsel elicited testimony that Curry knew Cheekshad a brother who was a National Basketball Association (NBA)player and, presumably, made a lot of money. Counsel alsoquestioned Curry about why he did not go to police immediatelyafter his conversation with defendant, when he first learned of thevictim's identity, and why he had gone to Cheeks' funeral. Inaddition, counsel attempted to cross-examine a police detectiveabout whether Mark Cheeks told him that a reward was beingoffered, but the State's objection was sustained on hearsaygrounds. Although trial counsel could have called the victim'sbrother, Mark Cheeks, as a witness and questioned him concerningwhether a reward had been offered and paid, the potential resultsof such an examination were unknown. By getting the issue of thereward in front of the jury, counsel attempted to convey theimpression that a reward had been offered and that Curry expectedto be paid that reward. In his closing argument, counsel arguedthat Curry had an agenda, that he knew the victim was related toa well-paid NBA player and that he went to the Cheeks familywith the intention of collecting a reward. Post-conviction counseldid not fail to render reasonably effective assistance by not raisinga claim that Curry received a reward for his testimony.

VII. Pro Se Arguments

With leave of this court, defendant has filed a pro se brief inwhich he raises four additional issues for our consideration.

A. Ineffectiveness of Trial Counsel at Closing Argument

Defendant argues that his trial counsel presented a"rambling[,] incoherent[,] offensive" closing argument at the guilt-innocence phase of the trial that conceded defendant's guilt andattacked the victim and other witnesses. This led to a "vitriolic"rebuttal argument by the State, which, according to defendant,implied that counsel's tactics were further evidence of defendant'sguilt.

We first note that defendant has waived this argument. Aftertrial counsel filed post-trial and post-sentencing motions,defendant alleged ineffectiveness of counsel and asked the trialcourt to appoint another attorney to argue the motions. When thecourt asked defendant to specify his complaints about counsel,defendant pointed to his waiver of a jury for sentencing and thenumber of peremptory challenges that were given him, and askedthat certain impounded exhibits be returned to him. Defendant didnot voice any complaints about trial counsel's closing argument.Further, defendant has waived this argument because his appellatecounsel could have, but did not, raise any issue about trialcounsel's closing argument in defendant's direct appeal. Toprevail on this issue, therefore, defendant must demonstrateineffectiveness of appellate counsel under the Strickland standard.

In statements given to police and an assistant State's Attorney,defendant confessed to robbing and shooting Cheeks, although hedid not admit killing him. The jury heard testimony from Curry,describing his conversation with defendant, wherein defendantadmitted killing a man and burning his vehicle. The Statepresented evidence of burns on defendant's face at the time he wasarrested. The jury heard evidence that the gun found in defendant'spossession when he was arrested could have fired the bullet jacketfound in the Cheeks vehicle. In addition, the State presentedtestimony that defendant confessed to the murder to his motherand a paramedic. Defendant did not testify at the trial and defensecounsel offered no evidence.

Trial counsel then was presented with a difficult task inconstructing his closing argument. Contrary to defendant'scontention, counsel did not concede defendant's guilt of themurder. Although counsel did concede that defendant was foundin possession of a gun at the time of his arrest, he could not havecredibly claimed otherwise. Counsel emphasized, however, thatthe State's firearm expert could not connect the gun to the bulletjacket found in Cheeks' vehicle and that thousands of such gunscould have fired the shots. Counsel further argued that, eventhough defendant's fingerprints were found on the gun, his printswere not found on the trigger. Counsel argued that unidentifiedfingerprints on the gun may have belonged to Clemons and that itwas possible that Clemons fired the fatal shots. Counsel arguedthat Curry had an "agenda" in testifying, because he expected toreceive a reward from the Cheeks family. Attempting to explainwhy defendant would refuse to name Clemons as his accomplicein his statements to police, counsel suggested that defendant hada high regard or affection for Clemons. Counsel noted that theevidence showed that two of Cheeks' wounds were superficial,thus corroborating defendant's statement that the gun went offaccidentally in the vehicle when Cheeks grabbed it. Counselreferred to Cheeks' intoxication as suggesting that Cheeks mayhave acted rashly that night, precipitating the struggle over thegun. Throughout his closing argument, trial counsel reminded thejury that the State had the burden of proving defendant guiltybeyond a reasonable doubt.

We conclude that trial counsel was not ineffective in hisclosing argument. In fact, given the evidence against defendant,counsel did an admirable job in attempting to create reasonabledoubt in the minds of the jurors. We also necessarily conclude thatappellate counsel was not ineffective for failing to raise this issuein the direct appeal.

B. Prosecutor's Closing Argument

Defendant argues that the prosecutor repeatedly commentedon defendant's failure to testify at the trial. He argues that thesecomments deprived him of his constitutional right to a fair trial.He also argues that his appellate counsel was ineffective for failingto raise this issue in the direct appeal. During his closingargument, trial counsel told the jury that the State had produced noeyewitnesses to the crime and that the State bore the burden ofestablishing how the offense occurred. In rebuttal, the prosecutorstated that defendant was an eyewitness to the crime, as well asClemons, and that defendant did not mention Clemons' name inhis statements to police, because he did not want Clemons to talkto the police.

Defense counsel did not object to these comments or includethe issue in a post-trial motion, thus waiving the issue for appellatereview. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Appellatecounsel did not raise this issue in the direct appeal, resulting inwaiver for post-conviction review. People v. Coleman, 168 Ill. 2d509, 522 (1995).

We conclude that appellate counsel was not ineffective forfailing to raise this issue. In telling the jury that defendant was aneyewitness to the crime, the prosecutor was responding to thecomments of defendant's trial counsel when he asserted that theState had produced no eyewitnesses. A prosecutor may respond tocomments made by defense counsel in closing argument thatclearly invite a response. Kliner, 185 Ill. 2d at 154. That defendantwas an eyewitness was established by his own statements topolice. In making the complained-of comments to the jury, theprosecutor merely reminded the jury that defendant had, by hisown words, placed himself at the scene of the crime. Theprosecutor did not, by doing so, comment on defendant's failureto testify. Defendant also complains that the prosecutoremphasized that its own witnesses had testified, specifically Curryand Detective Harris. The prosecutor stated that Curry "came inhere, he took that witness stand and he told you what his buddytold him." She also reminded the jury that Detective Harristestified that, in Harris' presence, defendant told his mother that he"killed a man and torched his truck." These statements did notrefer to defendant's failure to testify, but instead suggested to thejury that, given the evidence, it was not necessary for the State toproduce eyewitnesses to the crime.

Defendant also argues that the State made improper commentsregarding Clemons and asked the jury to infer that Clemons hadimplicated defendant. Specifically, defendant challenges theprosecutor's comments during her rebuttal argument that the Statecould not, under the law, bring the jury the statement of Clemonsand that the jury was not to consider the involvement of Clemonsin determining defendant's guilt. Defendant claims this was aviolation of Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106,85 S. Ct. 1229 (1965), and Bruton v. United States, 391 U.S. 123,20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). In Bruton, the SupremeCourt held that the admission at a joint trial of a statement by anontestifying codefendant that expressly implicated defendant inthe crime violates the defendant's right to confront witnessesagainst him. Bruton, 391 U.S. at 137, 20 L. Ed. 2d at 485-86, 88S. Ct. at 1628. As defendant was not tried with Clemons at a jointtrial and the State did not attempt to introduce any statement ofClemons against defendant, Bruton does not apply here. Griffinheld that it is a violation of a defendant's constitutional rightagainst self-incrimination (U.S. Const., amends. V, XIV) when theprosecution comments on the defendant's failure to testify. Griffin,380 U.S. at 615, 14 L. Ed. 2d at 110, 85 S. Ct. at 1233.

The prosecutor's comment to the jury that she could notproduce any statement of Clemons was simply an accuratestatement of the law. Moreover, this comment was invited bydefense counsel's comments in his closing argument regarding thefact that there were no eyewitnesses to the murder of Cheeks.Defendant further argues that the prosecutor erred in stating thatthe reason defendant did not want to mention Clemons' name inhis statements was because Clemons was the other eyewitness. Wefail to see how this constitutes improper comment on defendant'sfailure to testify. In his closing argument, defense counsel told thejury that defendant refused to name Clemons because he had ahigh regard or affection for Clemons. The prosecutor's commentsimply suggested another reason why defendant would not namehis accomplice. This is not improper argument. Accordingly,defendant's appellate counsel was not ineffective for failing toraise this issue in the direct appeal. The issue was waived and, inany event, lacked merit.

C. Brady Violation

Defendant argues that the prosecution committed a violationunder Brady v. Maryland when it failed to disclose the criminalrecords of Burks, Curry and Vivurette. He claims such informationwould have been useful for impeachment and would havesupported his claim that the three men were working asinformants. He notes that this information was requested by thedefense in a discovery motion. This issue was not included in anypost-trial motion filed by defense counsel nor was it raised indefendant's direct appeal.

Defendant's argument is misplaced as to Burks and Vivurette,as neither man testified at defendant's trial. Defendant hasappended to his pro se brief an abstract of Curry's criminal record.A review of that record shows that Curry had no convictions thatcould have been used to impeach his credibility under the rule ofPeople v. Montgomery, 47 Ill. 2d 510, 516-17 (1971).Accordingly, we conclude that appellate counsel was notineffective for failing to raise a nonmeritorious issue on directappeal.

VIII. Use of Perjured Testimony

Defendant argues that the State used false testimony or failedto correct false testimony. Specifically, he argues that the Statefailed to correct the false impression left by Curry that he did notexpect a reward for his testimony. Defendant also argues that theState failed to correct false testimony from paramedic TerryMerriweather that she examined defendant and he madeincriminating statements to her.

A prosecutor's knowing use of perjured testimony in acriminal prosecution violates due process and entitles thedefendant to a new trial. People v. Jimerson, 166 Ill. 2d 211, 223-24 (1995), quoting People v. McKinney, 31 Ill. 2d 246, 247 (1964).This principle applies both where the prosecutor procures falsetestimony and where the witness testifies falsely of his or her ownaccord and the prosecutor knowingly fails to correct the falsity.Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79S. Ct. 1173, 1177 (1959).

We note that neither Burks nor Vivurette testified atdefendant's trial. As to Curry, although defense counsel cross-examined him about his motives for revealing his conversationwith defendant, Curry did not testify regarding any expectation orreceipt of a reward. Thus, his testimony could not have directlyconveyed any impression to the jury on that issue.

Defendant's last argument is that the State failed to correct theperjured testimony of paramedic Terry Merriweather. At trial,Merriweather testified that in October 1991, she was responsiblefor the intake of inmates at the Cook County jail. She processedthem, performed physical examinations and drew blood. Whileprocessing defendant, he told her that his face had been burnedfive days before. Merriweather also testified that there had beensome confusion in the receiving area about defendant being theman who killed Cheeks. She asked him if he was that man anddefendant said yes. When she asked defendant how his facebecame burned, he told her that after he killed Cheeks, he tried totorch the car and he was caught in the flames. On cross-examination, Merriweather testified that she examined defendant'sbody and they discussed an old gunshot wound he had sustainedseveral years before. While processing defendant, Merriweatherused a form called a "bruise sheet" to write down defendant'smedical information.

Defendant now argues that this testimony was false, because"jail procedures and policy" prohibit examinations of prisoners bymembers of the opposite sex. He submits affidavits of jail inmatesverifying this allegation. These affidavits, however, only relate theinmates' own experiences or state that they have never seen afemale paramedic conduct a physical examination, or containhearsay as to what they were told by others in regard to notundressing in front of a woman. These affidavits do not adequatelysupport defendant's contention that Merriweather perjured herself.We conclude, therefore, that defendant has not made the requisiteshowing that the State knowingly failed to correct perjuredtestimony.

CONCLUSION

Accordingly, we affirm the circuit court's judgmentdismissing defendant's post-conviction petition without anevidentiary hearing. The clerk of this court is directed to enter anorder setting Tuesday, November 26, 2002, as the date on whichthe sentence of death entered in the circuit court of Cook County,shall be carried out. Defendant shall be executed in the mannerprovided by law (725 ILCS 5/119-5 (West 2000)). The clerk ofthis court shall send a certified copy of the mandate to the Directorof Corrections, to the warden of Tamms Correctional Center, andto the warden of the institution where defendant is now confined.

Affirmed.

The proceedings which culminated in Munson's convictionsand sentence of death were fatally flawed because they did notcomport with the new rules enacted by our court governing theconduct of cases in which the State is seeking the death penalty.For the reasons set forth in my dissenting opinion in People v.Hickey, No. 87286, slip op. at 34-39 (September 27, 2001)(Harrison, C.J., dissenting), the procedures contained in thoserules are indispensable for achieving an accurate determination ofinnocence or guilt and are applicable to all capital cases nowcoming before us. Because Munson was tried, convicted andsentenced without the benefit of the new rules, his convictions anddeath sentence should be vacated, and the cause should beremanded to the circuit court for a new trial.

Even if Munson were not entitled to the benefit of the newrules, his sentence of death could not stand. For the reasons setforth in my partial concurrence and partial dissent in People v.Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is voidand unenforceable 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,