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Docket No. 83783-Agenda 1-September 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLIAM PEEPLES, Appellant.

Opinion filed June 20, 2002.

JUSTICE McMORROW delivered the opinion of the court: Pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)), defendant, William Peeples, petitioned the circuit court of Cook County for post-conviction relief. The circuit court dismissed defendant's amended post-conviction petition without conducting an evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, he appeals directly to this court. 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

This court has previously detailed the evidence presented at defendant's trial in our opinion on direct appeal. People v. Peeples, 155 Ill. 2d 422 (1993). Therefore, we state here only those facts which are necessary to the disposition of this appeal.

On May 18, 1988, defendant was arrested for the murder of Dawn Dudovic, who was discovered stabbed to death in her Schaumburg apartment earlier that day. Defendant and his fiancee, Vanessa Allen, lived in an apartment next door to the victim's apartment.

During the early evening hours of May 18, Pamela Killeen, the victim's roommate, returned home and observed the victim's car in the parking lot. Upon arriving at the front door of unit 102, the apartment she shared with the victim, Killeen discovered a red-stained piece of paper towel wedged in the door which prevented the door from locking. Killeen removed the paper towel and entered the apartment. She then noticed red stains on the walls and carpeting leading to the kitchen, and discovered the victim lying on her back on the kitchen floor. In an immediate attempt to seek help, Killeen pounded on the front door of unit 101, defendant's apartment. Killeen testified that she continued to knock and scream at the door of unit 101 for about a minute because she had heard sounds inside that apartment. However, when there was no response, she sought and received help from another neighbor, Kenneth Evensen. Evensen accompanied Killeen to her apartment, observed the victim lying in a pool of blood on the kitchen floor, and returned to his apartment to call the paramedics. Shortly thereafter, the paramedics arrived and pronounced the victim dead.

At approximately 6 p.m., members of the Schaumburg police department began arriving at the apartment complex and initiated a canvas of the building. When the officers knocked on the door of unit 101, they received no response. However, the officers noticed that shadows appeared and disappeared through the apartment's peephole, indicating that an individual was present inside. The officers contacted the building's manager and were told that Vanessa Allen was the tenant of record for unit 101. When the officers telephoned Allen at work, she informed police that she lived in the apartment alone. Based on this information, the officers concluded that no one should have been in the apartment.

At approximately 7:40 p.m., the police had not yet gained entry into unit 101. At that time, the officers observed smoke coming from underneath unit 101's front door. When an officer went to the rear of the apartment and tried to look into the bedroom through a separation in the window curtains, the curtains suddenly went up in flames. The officer, who then had an unobstructed view of the bedroom, observed two fires burning in that room. In addition, it appeared that at least three other fires were burning in the living room. Shortly thereafter, Schaumburg firefighters arrived at the scene and broke out the bedroom window of unit 101. The firefighters then extended a fire hose into the apartment and attempted to extinguish the blaze. At that point, defendant appeared inside the apartment and exited through the shattered bedroom window. Defendant was arrested and transported by police to a local hospital, where medical personnel tended to a deep laceration on his left hand that had cut through the tendons of three fingers and which was bleeding profusely. Defendant also had a second cut at the web part of his left hand.

Pursuant to a search warrant, police officers searched defendant's apartment and discovered evidence of six separate fires in the living room and six separate fires in the bedroom. Each fire had been started by igniting small piles of items. Recovered from one of these piles was a wallet that contained defendant's driver's license, as well as a large kitchen knife with a bloodstained wooden handle. Investigators also discovered a satchel in the living room, which contained a coffee cup. Examination of this cup revealed that it contained sugar and was spattered with blood.

During this time, the police also continued their investigation at the victim's apartment. An evidence technician collected blood samples from the kitchen and other areas of the victim's apartment. At trial, an expert in serology testified that the blood samples taken from several locations in the victim's apartment were of type A, which was defendant's blood type. The serologist further testified at trial that blood discovered on defendant's wristwatch and on the knife recovered from his apartment was determined to be type AB, the blood type of the victim. Testimony was also adduced that two piles of a white substance were discovered on the floor of the victim's apartment, one near the front door and one near the kitchen doorway. This substance was later confirmed to be sugar.

An autopsy performed on the victim revealed that she had suffered 23 stab wounds and 16 incised wounds. The victim also exhibited several defense wounds to her hands and arms. According to the medical examiner, the victim died as a result of multiple stab wounds, three of which pierced her lung, liver and heart. The medical examiner further testified that the wounds inflicted upon the victim could have been made by the knife recovered from defendant's apartment, although they could not be tied with certainty to any particular weapon.

Defendant testified on his own behalf. According to defendant, on the morning of May 18, 1988, he did not go to work because he was ill, took over-the-counter medication, and slept most of the day. Defendant stated that at approximately 4 p.m. he removed a package of frozen pork chops from the freezer and attempted to pry the pork chops apart with a sharp kitchen knife. Defendant, who is left handed, held the package of pork chops in his left hand and held the knife in his right hand as he tried to pry the meat apart. Defendant stated that the knife slipped, and he suffered a minor cut to his left hand. Defendant testified that when he made a second attempt to separate the pork chops, the knife slipped again and caused a deep bloody wound to his left hand. According to defendant, he wrapped his hand to control the bleeding, took pain relievers, lay down, and fell asleep.

Defendant testified that he was awakened from his sleep by his telephone ringing and by pounding on his front door. Defendant stated that he looked through the peephole, saw police, and did not respond because he did not want the building management to discover that he had been living in the apartment, which was registered only in Allen's name. Defendant denied that he had set the fires in his apartment, and asserted that the police broke into his apartment and set the fires in an effort to force him out. Defendant also denied placing the knife in one of the piles of burning clothes, and contended that police placed the knife and wallet in the pile because he was the most convenient suspect and also because of "the prejudice in the northwest suburbs."

During cross-examination, the State confronted defendant with a photograph of an unopened package of pork chops lying on the kitchen counter in defendant's apartment. The State then introduced the unopened package into evidence. In addition, defendant had no explanation for the fact that the kitchen knife handle appeared to be covered with blood when, according to his testimony, only the blade of the knife had cut his hand.

On March 7, 1990, at the close of evidence and after argument, the jury returned verdicts finding defendant guilty of first degree murder, aggravated arson, home invasion and armed violence. On April 9, 1990, pursuant to defendant's pre-trial waiver of a sentencing jury, the first phase of defendant's sentencing hearing was conducted. The trial judge found that defendant was eligible for the death penalty under section 9-1 of the Criminal Code of 1961 (720 ILCS 5/9-1(b)(6) (West 1994)) in that he was over 18 years of age at the time of the offenses and that he had committed first degree murder in the course of a home invasion.

Immediately following the circuit court's finding of eligibility, the State indicated that it was prepared to proceed to the second phase of the death penalty hearing. Defense counsel requested a continuance, stating that "there are certain aspects of the mitigation we were [sic] still working on," and that there were some mitigation witnesses that their "investigator was trying to locate." Defense counsel's request for a continuance, however, was principally based upon their discovery that defendant had suffered from spinal meningitis as a youth, which "may have affected his brain," and that shortly before the offenses defendant was in a car accident where he lost consciousness. Counsel therefore requested additional time to "do a complete neurological workup on [defendant] for the brain to see if, just how his brain is." Counsel stated that they had engaged in discussions with Dr. Rosenwald, a psychologist, who believed that "it might be appropriate to do the testing."

When the court commented that defense counsel had four weeks since the time of defendant's conviction to prepare a mitigation case, counsel responded that they had been diligent and that they "resist[ed] any suggestion that we have not been preparing for this." Counsel stated that they had engaged in conversations with defendant, and that they had interviewed several mitigation witnesses, and that these interviews had provided additional names of potential witnesses with whom they had been in contact. Counsel stated that they had "already talked to and interviewed" several witnesses who were present in court. However, although they had been "working very hard at this," counsel stated that "there are some matters that inevitably arise in the last few days before such a hearing, and those are what you are hearing about now." The court denied defense counsel's motion for a continuance, and the second phase of defendant's sentencing hearing began.

In aggravation, the State presented evidence of three prior convictions of defendant. First, the State introduced a certified statement of conviction showing that on July 12, 1983, defendant had entered a guilty plea to attempted rape and residential burglary and had been sentenced to four years' imprisonment. In connection with this conviction, the State presented the testimony of the victim, Lisa Mowery, who was 13 years old and had been baby-sitting for her three-year-old sister at the time of the offenses. Mowery testified that defendant had knocked at the front door of their home in Schaumburg, stated that his car had broken down, and asked if he could use the telephone to summon help. Mowery let defendant into the house, defendant made a telephone call, and asked Mowery if he could wait in the house until his ride arrived. Mowery testified that defendant then grabbed her around the neck, held a knife to her ribs, forced her upstairs to the bedroom, and instructed her to remove her clothing. When Mowery refused, defendant threatened to kill her and began to cut off articles of her clothing with his knife. Defendant became angry, started hitting her with his fists, and broke her nose. Defendant then ran out of the house.

Second, the State introduced a certified copy of conviction showing that in February 1985, defendant pled guilty to the charge of misdemeanor battery and was sentenced to 90 days' incarceration. Des Plaines police officer Carol Daugherty testified that on November 13, 1984, she observed defendant running down the street carrying a knife while an unarmed man was chasing him. Officer Daugherty stated that the unarmed man had sustained a deep laceration to his back. The State also presented evidence that, at the time of this incident, defendant was on mandatory supervised release. As a result of this incident, defendant's release was revoked, and he was returned to the penitentiary.

Finally, the State introduced a certified copy of conviction showing that defendant had been convicted of misdemeanor theft in March 1988.

Counsel for defendant presented an opening statement in which counsel requested that the court "exercise mercy," and that "defendant's love of family, his caring for his family" and his "good character" would be presented in mitigation. Counsel explained that the evidence in mitigation would show that while defendant was growing up, he "had no father figure, no role model to look up to, but despite that fact, despite the fact that he had no role model, he had the strength and inner goodness to become what we consider a good son, a good brother, a good uncle, and a father figure to his sister."

Defendant's case in mitigation consisted of the testimony of six witnesses on his behalf. In addition, two letters in support of defendant were admitted into evidence. The first witness to testify for defendant was Rev. William Frestoe, the pastor of a Chicago church, a former police officer, and the chaplin at the Cook County Department of Corrections. Rev. Frestoe testified that defendant and his family had been long-time members of his church and that he had known defendant since defendant was a very small child. According to Rev. Frestoe, defendant regularly attended church services and Sunday school and was active in the youth work of the church. Rev. Frestoe stated that, in his view, defendant was a "young man that seem[ed] to be very concerned about his education." Rev. Frestoe also related that defendant provided a great amount of help and support to defendant's ill mother, with whom defendant was very close. Defendant cooked and cleaned for his mother and cared for her needs. Rev. Frestoe testified that defendant was very concerned about his mother's well-being.

Defendant's grandmother, Helen Shannon, was the next witness to testify on defendant's behalf. Shannon stated that because defendant's mother worked, defendant had lived with Shannon on and off from 1964 until 1978. According to Shannon, defendant "was a very obedient child," and he "never got in any trouble in school *** [or] around the neighborhood." When Shannon became ill, defendant helped her by preparing her meals, going to the store for her medicine, cleaning her house, and staying overnight to assure her well-being. Shannon testified that defendant never complained about doing these things for her. When asked on cross-examination whether she was aware that defendant had been expelled from high school for being in trouble, she replied in the negative.

The next witness to testify in mitigation for defendant was Robin McMath. McMath stated that she met defendant in 1984 at the National Education Center for Paramedics and that she and defendant had become good friends. McMath testified that when both of her parents were diagnosed with severe and disabling health problems, defendant gave her support and counseled her in an effort to help her handle the stress. McMath also stated that when she informed defendant that she missed her brother who was away in the Air Force, defendant told her not to worry because defendant would act as her "big brother." McMath stated that she would talk with defendant every day about "everything" and that they were very close. According to McMath, she conferred with defendant before she got married, and after she was married defendant baby-sat for her child and was always there for her when she needed help.

Defendant's cousin, Wayne Greer, was the next witness called to testify on defendant's behalf. Greer stated that defendant was like a "brother" to him, and described defendant as an "all-around good person." When asked what defendant's life meant to him, Greer responded "pretty much everything." Greer recounted incidents from his childhood when he and defendant would do things together and when defendant would break up fights. Greer also stated that defendant counseled him on handling a situation with Greer's brother, even though defendant was in jail at the time. Greer testified that he did not want defendant to die and that defendant was "not worthy of death."

The next witness to testify on defendant's behalf was defendant's mother, Charlyne McCallister. She testified that she was 16 years old at the time of defendant's birth and that defendant's father, her first husband, was "very immature" and "wasn't ready to be a husband, let alone a father." McCallister stated that, over time, her relationship with defendant's father changed for the worse, as "he became involved with smoking marijuana, drinking, just running the streets *** he was in all kinds of trouble." She left defendant's father when defendant was six months old, and she was forced to go to work. However, she had difficulty remaining employed because she had severe asthma and other health problems. When defendant was three years old, she married Thomas McCallister, who was a recovering alcoholic. However, when she became pregnant with defendant's half-sister Kimberly, her health problems worsened and her husband began drinking.

McCallister testified that when defendant was four years of age, he contracted spinal meningitis and was hospitalized for about six months. She visited him every day in the hospital, and when he was released from the hospital they became "much closer." As a child, defendant was "very small for his age," and he was "picked on because he was so small." McCallister recalled one incident when she was telephoned by defendant's school because defendant was "clowning around" in his class. Her husband went to the school and beat defendant in front of his classmates as punishment for his misbehavior.

When defendant was six or seven years old, defendant's father came back into his life, and defendant stayed with him on weekends, during spring break, and for a few weeks in the summer. McCallister testified that during these stays defendant would call her, crying, stating that his father had left him with whichever lady friend his father was seeing at the time and that defendant did not know where his father was. McCallister stated that defendant's father physically abused women in defendant's presence, and that defendant's father drank heavily. McCallister also testified that on one occasion defendant was in a hit-and-run accident with his father and defendant hit his head on the car's dashboard.

McCallister stated that when defendant was 11, she married her third husband, James Green. According to McCallister, Green physically abused her and sexually abused her daughter Kimberly when Kimberly was four. Kimberly confided to defendant that she had been molested, and defendant made Kimberly sleep in his room, barricading the door so that no one could gain entry. McCallister stated that her marriage to Green was annulled because he was still married to his previous wife.

In 1980, McCallister moved her family into a Chicago housing project, where the conditions were "horrendous." McCallister explained that the "gang and violence situation was just horrible." The family lived there about eight months before moving to Schaumburg. At the time the family moved, McCallister was confined to a wheelchair and suffered from numerous serious health problems, including multiple sclerosis. Defendant, who was then 17 years old, took care of McCallister and the family by cleaning the house, washing clothes, preparing meals, and taking her to the hospital when she was ill. McCallister stated that defendant went to a part-time job every day, contributed his paycheck to the household expenses, and spent all of his time with the family. According to McCallister, defendant also acted as a father figure to his sister Kimberly, in that he watched over her, took her to different places, and spent time helping her with her homework and cleaning her room. McCallister further stated that in December 1987, defendant was hit by a car in front of her house and was knocked into the air. As a result, defendant suffered a broken leg and was rendered unconscious. McCallister concluded her testimony by relating that even though defendant was in jail, he called her every day, and has helped to mediate arguments between herself and Kimberly.

Defendant's sister, Kimberly McCallister, was the final witness to testify on defendant's behalf. Kimberly stated that when the family moved to Schaumburg, she had great difficulty with her schoolwork, and that defendant spent several hours with her every day to help her understand her studies and to inspire her when she became frustrated. Kimberly stated that defendant taught her how to swim, that they listened to music together, and that he often took her and her friends to the movies. Kimberly testified that defendant took care of their mother when she became severely ill, and that defendant "basically finished raising me." Defendant took care of the family by going grocery shopping, paying the bills, doing the laundry, and cooking the meals. According to Kimberly, defendant taught her to "love everybody and everything."

Kimberly further testified that when she was a teenager, she became pregnant and was frightened to tell her mother. Kimberly confided in defendant, who gave her comfort and support. Defendant advised Kimberly both against obtaining an abortion and giving the child away for adoption, and told her that he would take the baby if she did not want it. When Kimberly's daughter was born, defendant loved the baby and bought her clothes, toys, and candy. As the child grew older, defendant took the child to different places and baby-sat for her while Kimberly went to college.

According to Kimberly, even after defendant moved out of the family home, he visited her and her mother every day and spent time with Kimberly's daughter. Kimberly recounted that on one occasion when her daughter became very sick, defendant immediately drove them to the hospital. Kimberly stated that defendant is her daughter's "world" and that "[h]e's everything to her." Kimberly testified that defendant is "everything to me" and that "[w]hen I needed him, he was always there, no matter what."

Also received in evidence during the mitigation portion of the hearing was a letter written by defendant's fiancee, Vanessa Allen. Allen stated that she had known defendant for 20 months and that he was "kind, loving, generous, and would go out of his way to help people." A second letter received in evidence was submitted by Vanessa's mother, Bernice Allen, who stated that defendant was a respectable young man.

After the evidence in aggravation and mitigation was presented, both sides gave closing arguments. In their closing argument, defense counsel again asked that the court show mercy to defendant. Counsel suggested that defendant's criminal history was "not significant" and "borderline at best." Counsel argued that the evidence showed that "[t]here are forces that helped shape [defendant], slow, persistent, continuous powerful forces." Counsel noted that the evidence established that defendant "had no father figure" and that the men in his life "were alcoholics." Counsel argued that although "[e]very child, everyone needs a role model," defendant felt "abandoned" and that this "sense of abandonment" was a "force creating and controlling [defendant]."

Counsel argued that "another force" forming defendant was the sexual abuse suffered by his sister Kimberly. Counsel noted that defendant was still a child himself when he tried to protect his sister, and that he resorted to "building up a barricade." Counsel also noted that due to defendant's small stature when he was young, he was constantly picked on, and this was "another force working on him." Counsel also noted that defendant was demeaned in school and that his stepfather had once beat him in front of the whole class. Counsel described these incidents as more "slow, persistent powerful forces that are forming him."

Defense counsel argued that they brought these "forces" to the attention of the court to show that "there are two William Peeples," the "William Peeples that family and friends knew and the William Peeples that the jury convicted him of," and "maybe these forces had something to do with it, *** can explain the differences." Defense counsel then stated: "Because what you heard in mitigation, this is not the person who would do something like this, your Honor. The jury found him guilty, but there's no question of that, but that's not the same person you heard his mother testify about, that's not the same person his sister testified about or his friends. It's a different person. He was convicted of a terrible crime, but he is not an evil person deserving to die." Counsel then asked the court "to consider the totality of William Peeples, not just the crime that he was convicted of." After recounting the testimony in mitigation, counsel asked, "Are these the actions of an evil man needing to be put to death? No, your honor, I suggest these are mitigating factors, not reasons to put him to death."

Defendant then spoke in allocution. Defendant informed the court that "I will not beg you for mercy for a crime that I did not commit," and stated that "I have nothing to feel remorseful about." Defendant also stated that "I love my family and my friends and I tried to love my fellow human beings."

At the conclusion of evidence and argument, the trial court sentenced defendant. With respect to defendant's three prior convictions, two of which involved the use of a knife, the court concluded that "[c]ontrary to what the defense says, I believe that these crimes are significant, and it is a significant history of prior criminal activity." The trial court judge then noted the evidence presented in mitigation, including "the good that defendant did in his lifetime," the "charitable acts that he performed," and the "love that was exhibited between him and his family members to each other." The trial court judge stated that although he had no doubt that defendant had committed the crimes of which he was convicted, "the doubt that exists in my mind right now is whether the William Peeples that we heard about from the testimony of the witnesses today ever existed. The doubt that I have in my mind today is not whether William Peeples was a good boy while he attended church *** but what became of him in the meantime, because the William Peeples who committed the crime that I heard testimony to throughout three weeks of trial is not the William Peeples that was testified about today." The trial court judge concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the circuit court sentenced defendant to death on the first degree murder conviction. The court also sentenced defendant to concurrent 30-year prison terms on the aggravated arson and home invasion convictions. Defendant's convictions and sentences were affirmed on direct appeal by this court. People v. Peeples, 155 Ill. 2d 422 (1993).

On July 18, 1994, defendant, through post-conviction counsel, filed a petition for post-conviction relief, alleging that defendant's constitutional rights were violated during his trial and on direct appeal. On August 24, 1994, the State filed a motion to dismiss defendant's post-conviction petition. Thereafter, post-conviction counsel was granted leave to file an amended petition for post-conviction relief. The amended post-conviction petition, which was filed on October 31, 1994, raised eight claims for post-conviction relief. We set forth only those claims which are raised by defendant in this appeal.

First, the amended post-conviction petition alleged that defendant's due process right to be present at all critical stages of trial under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) was violated when, during the selection of his jury, defendant was excluded from the in-chambers voir dire of 15 prospective jurors, three of whom ultimately served on the jury which convicted him. Within the context of this claim, the amended petition further alleged a subclaim that defendant's right to effective assistance of appellate counsel under the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV) was violated when his appellate counsel failed to raise on direct appeal the issue of defendant's absence from the in-chambers questioning of prospective jurors.

Second, the amended post-conviction petition alleged that defendant's right to a fundamentally fair trial guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) was violated as a result of the "extraordinary security measures" employed during those portions of defendant's trial when the jury was present. According to the amended petition, throughout defendant's trial, two uniformed deputy sheriffs were stationed behind him. In addition, the amended petition alleged that when defendant testified in his own behalf, another uniformed deputy sheriff escorted defendant to the witness stand, stood behind defendant as he testified, and then escorted him back to the defense table in the presence of the jury. The amended petition further alleged that trial counsel's failure to object to these "prejudicial security measures" deprived defendant of his sixth and fourteenth amendment rights to effective assistance of counsel. U.S. Const., amends. VI, XIV.

In addition, the amended post-conviction petition set forth a claim that defendant was "denied his right to effective assistance of trial counsel" under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) and listed specific instances of these alleged violations in several subparagraphs. In the first subparagraph, the amended petition alleged that defendant's trial counsel were ineffective because they failed to make a timely motion for the preservation and independent testing of blood samples in the possession of the State, and that such testing had the "potential to exonerate [defendant] completely." Another subparagraph of this claim alleged that trial counsel had ineffectively failed to present evidence that latent fingerprints found at the murder scene could not be identified as belonging to any known individual, including defendant. According to the amended petition, had the jury been presented with this information, the jurors "could have reasonably concluded that the unidentified fingerprints found at the crime scene were left there by the offender and that the offender was therefore not [defendant]."

Finally, another subparagraph of the ineffective assistance of counsel claim incorporated by reference the allegations previously made in the amended petition that the security measures employed during the jury portion of defendant's trial violated his right to a fundamentally fair trial under the sixth and fourteenth amendments (U.S. Const., amends. VI, XIV). The amended petition alleged that trial counsel was ineffective in failing to object to having a deputy sheriff escort defendant to and from the witness stand in the presence of the jury and stand behind defendant during his testimony. According to the amended petition, defendant suffered prejudice because "[t]his unwarranted security measure conveyed to the jury that the court believed [defendant] posed a danger, thereby undermining his credibility before he testified and denying him the presumption of innocence."

The amended post-conviction petition also raised the claim that defendant was denied his constitutional right to effective assistance of counsel during the aggravation-mitigation phase of the sentencing hearing. The petition alleged that trial counsel was ineffective because counsel failed to investigate and present readily available mitigating evidence with respect to defendant's turbulent family background, his longstanding cognitive impairments, and the possibility of neurological disturbances.

In support of the allegations in his petition, defendant attached his own affidavits, in which he recounted the security measures taken during his trial, his absence from the in camera voir dire sessions, and that he had been fingerprinted on three occasions after his arrest. With respect to the security measures employed at his trial, defendant stated that, during jury selection and throughout the trial, "whenever I was seated at the defense table there were always two uniformed deputy sheriffs behind me *** seated in chairs about an arm's length away from me, and sometimes they stood behind me." Defendant further stated that when he was called as a witness on his own behalf, another deputy sheriff "came over to the defense table and walked behind me as I went over to the witness box." According to defendant, "this deputy then stood behind and to the left of the witness box during my testimony, and at the conclusion of my testimony he walked behind me as I returned to my seat at the defense table *** while the jury was in the courtroom." With respect to his absence from the in-chambers voir dire, defendant recounted in his affidavit that "[d]uring the selection of the jury, on several occasions that I was aware of, the judge and all the attorneys left the courtroom and went into the judge's chambers to talk to a juror." According to defendant, "[o]n all of these occasions I remained in the courtroom, and I was never told by the judge or my attorneys that I could be present when a juror was being questioned in chambers."

Defendant's amended post-conviction petition was also supported by several affidavits submitted by his relatives and friends. Affidavits submitted by defendant's grandmother, sister, uncle, two aunts, and former girlfriend related defendant's unstable family background, which was hallmarked by a pattern of abuse and violence. The affiants stated that during defendant's youth, defendant's mother engaged in a series of abusive relationships, was beset by various physical and mental-health disorders, and had inflicted harsh punishment on defendant bordering on abuse. The affiants revealed that due to the unstable personal relationships of defendant's mother, defendant's family moved often, and that defendant was routinely in trouble at school, "missing classes frequently" and "fighting, physically and verbally, with the teachers." Defendant was also in trouble at home, where he set fires and cut up furniture with a knife. The affiants further stated that defendant had contracted spinal meningitis at age four and was hospitalized for an extended period of time, and that shortly before the offenses in the case at bar he had been hit by a car and suffered a head injury. The affiants also averred that defendant had a quick and violent temper and that he was violent in his relationships with his family and friends.

Those affiants who testified on behalf of defendant during his sentencing hearing stated that defendant's attorneys offered no preparation to them before they took the witness stand, other than instructing them to tell the judge "something that [defendant] had done that meant a lot" to them. The remainder of the affiants stated that they were not contacted by defense counsel and, if they had been contacted, would have testified on defendant's behalf during the second phase of the sentencing hearing.

Defendant's amended post-conviction petition was also supported by affidavits and reports submitted by professionals. Dr. Michael Gelbort, a clinical psychologist, submitted to the circuit court a "neuropsychological evaluation" of defendant based upon a July 11, 1994, examination. In his report, Dr. Gelbort stated that defendant had a full scale IQ of 88, with his reading and spelling skills testing at the high school level, and his math skills testing at the sixth-grade level.

According to Dr. Gelbort's report, defendant suffers from "cognitive dysfunction most affecting non-dominant cerebral hemisphere functions and frontal lobe abilities." Dr. Gelbort explained in the report that the frontal lobe is "the part of the brain which initiates and inhibits behavior, thus allowing people to have control over their actions." Dr. Gelbort also stated that the frontal lobe is "the portion of the brain where complex decisions are believed to be made." According to Dr. Gelbort, individuals with an impairment in the frontal lobe "will often make poor decisions, will fail to 'think ahead' or anticipate the outcome of their behavior, will have an inability to consistently have their behavior meet the expectations of others and society, and may be unpredictable or odd in their behavior."

Based upon his examination of defendant, Dr. Gelbort concluded that defendant suffers from "minimal brain dysfunction" which "has an effect on [defendant's] ability to think in a logical, goal directed manner." Due to this impairment, Dr. Gelbort opined, defendant's "[j]udgement, problem solving, and reasoning are affected and impaired" and defendant's "everyday activities and ability to plan ahead" is adversely affected. Dr. Gelbort stated that this impairment "would almost certainly have been present at the time of the offense." As a final note, Dr. Gelbort also found that defendant's "recollection of past events tends to 'normalize' his experience" to the extent that defendant "minimized or denied" many of the problems he experienced during his lifetime.

An affidavit and report prepared by mitigation specialist Caryn Platt Tatelli was also attached in support of defendant's amended post-conviction petition. According to Tatelli, the information contained within her mitigation report was gathered by speaking with defendant on five occasions in 1994, by interviewing approximately 20 of defendant's relatives and friends, and by reviewing defendant's school, hospital and employment records, as well as public records pertaining to defendant's immediate family.

In her report, Tatelli stated that defendant's family "has a pervasive history of child abuse and maltreatment which can be traced through at least three generational cycles." Tatelli wrote that within defendant's family, there exists a "generational pattern, and acceptance of, violence, temper expressed in rage, and aggression." Tatelli determined that defendant's family has "utilized violence and force as a means of solving and reconciling their differences with others."

Tatelli's report focused in large part on defendant's mother, who "was abused by her own mother," and, as a victim of this abuse, "she, in turn, was taught that abusive behavior was an acceptable method through which to discipline children." Tatelli stated that as a result of a series of transient and abusive relationships entered into by defendant's mother, defendant, during his early years, had "a turbulent life in which he lived in an abusive setting." Defendant's family life was unstable, and defendant's family moved often. In her mitigation report, Tatelli concluded that defendant was raised in a "dysfunctional system" wherein he "was exposed to a great deal of violence through his mother and her relationships," that the discipline he received at home was "extreme" and "could be considered child abuse," and that defendant "did not have any man who could serve as a positive role model."

Tatelli's report further related that at the age of four, defendant contracted spinal meningitis and was hospitalized for 10 days. After this illness, family members noticed a change in defendant's behavior, cognitive abilities, and social skills. As a result, defendant received behavioral therapy. When defendant was eight years of age, he started a fire in the basement of the family home. Tatelli reported that family members believed that this was an example of defendant "constantly doing what he had been told not to do, almost as if he did not understand the behavioral boundaries which had been set for him."

As defendant grew older, he began "running away, setting fires, and having school difficulties." Tatelli stated that defendant's school records indicated that defendant attended school sporadically, and that he had been a student at 13 different schools before dropping out in the tenth grade. During his school years, defendant was diagnosed as having a learning disability, as well as having behavioral, visual and motor problems.

In her report, Tatelli stated that during defendant's teenage years, he and his sister Kimberly fought "passionately" with each other, and "[v]arious sources give clear examples of indiscriminate violence during [their] physical fights." In addition, it was during defendant's teenage years that defendant's family moved into a Chicago housing project, and defendant became involved with gangs and started experimenting with drugs. Shortly thereafter, defendant's family moved from Chicago to the suburbs. However, even after defendant's family moved to the suburbs, the family remained unstable, and, according to Tatelli's report, lived in four different residences during six years.

After the move, Tatelli reports, defendant became involved in a series of romantic relationships, "all of which [had] underpinnings of violence." Tatelli stated that the "reports of inter-relationship violence corroborate other reports made of [defendant's] temper" and that "[m]any, if not all of the sources indicated that [defendant] has an extremely hot and volatile temper." According to Tatelli, defendant "rapidly reached a boiling point, or a level of explosiveness which could not be controlled." Tatelli related that defendant's family members "freely admit that they are a family which has trouble dealing with its temper."

At the age of 18, defendant was arrested for attempted rape and pled guilty to the charges. Although defendant maintained his innocence, he agreed to plead guilty because he would be eligible for parole. Defendant was paroled at age 20. Shortly thereafter, while riding a bus, defendant and another man had an argument, which resulted in defendant and the man running down the street. When a police officer stopped the men, defendant was found in possession of a knife, and his parole was revoked. Defendant was released one year later. Tatelli stated that defendant's employment records indicated that defendant had a number of different jobs, worked at each for only a brief period of time, and often had been dismissed due to "excessive absenteeism or tardiness."

In 1986, defendant was struck by a car and suffered injuries to his knee and head. According to Tatelli, sources indicated that defendant's temper, "which was always strong, seemed even more easily ignited than before, with little things triggering intense anger." When defendant had a difficult break-up with a woman he had been dating, defendant attempted suicide by taking a number of over-the-counter medications. According to Tatelli, defendant's suicide attempt was consistent with his history of "reckless driving, drug usage, and other potentially self-harming activities." Even defendant's relationship with his fiancee, Vanessa Allen, was marked by frequent fights, which were "usually verbal, but sometimes accelerated to the degree that they became physical." In her mitigation report, Tatelli concluded that "[a]s a result of the forces acting upon [defendant], he began to turn the naturally-occurring anger, frustration and hatred for his life situation inward, upon himself, allowing it to build into a horrible temper, as was the method of his family. In turning the anger inward, rather than expressing it in positive, natural ways, he began to harbor a deep-seated rage." Attached to Tatelli's report were defendant's school and medical records.

On December 8, 1994, the State filed an amended motion to dismiss defendant's amended post-conviction petition. Oral argument on the State's dismissal motion was held on April 15, 1995; on January 30, 1996, the same circuit court judge who presided at defendant's trial granted the State's motion to dismiss defendant's amended post-conviction petition without an evidentiary hearing.

The circuit court rejected the allegation in defendant's amended post-conviction petition that his due process rights were violated by the in-chambers voir dire of prospective jurors, finding the issue waived because it could have been raised on direct appeal. Similarly, the circuit court found that defendant had waived any claim that his trial counsel were ineffective for failing to present blood and fingerprint evidence at trial.

The circuit court also rejected defendant's contention that the security measures employed in the courtroom during the jury portion of defendant's trial violated his right to a fair trial. The court found that "no extraordinary measures were adopted by this court," that at all times during the trial "the defendant appeared in street clothes *** and civilian garb," and that the security measures were "reasonable under the circumstances." The court concluded that, under the facts presented, defendant "would not be able to substantiate his claim that he was prejudiced and that a different result might obtain."

Finally, the circuit court also rejected defendant's contention that defense counsel were ineffective at sentencing for failing to investigate and present additional mitigating evidence. The circuit court agreed with the State's assertion that the proffered additional mitigation evidence regarding defendant's family background and psychological condition "would tend to show the court that [defendant] is, in fact, dangerous," as well as "his capacity for future conduct." The circuit court concluded that "the argument in and of itself is not inherently mitigating."

On February 27, 1996, defendant filed with the circuit court a motion to reconsider its ruling. The circuit court denied this motion on June 25, 1997. Defendant then filed his notice of appeal to this court on July 23, 1997. In September 1998, while the instant appeal was pending before this court, defendant filed in the circuit court a motion, pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 1998)), requesting forensic DNA testing on blood evidence recovered from the victim's apartment regarding his claim of actual innocence. On October 15, 1998, both the State and defendant entered into an agreed order for blood evidence to be subjected to DNA analysis. On November 3, 1998, this court granted the parties' agreed motion to stay the briefing schedule in this matter until completion of the DNA testing. On July 18, 2000, the Illinois State Forensic Science Center issued a report stating that a bloodstain found in the kitchen sink of the victim's apartment matched defendant's DNA profile and could not have come from the victim. At defendant's request, the blood evidence was then sent to an independent laboratory, Cellmark Diagnostics, for further review. On May 2, 2001, Cellmark issued a letter concluding that neither the processing of the case by the Forensic Science Center nor the results and conclusions reached by the Center were in error.

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1996)) provides a mechanism by which criminal defendants can assert that their convictions and sentences were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122-1 (West 1996). An action for post-conviction relief is a collateral proceeding, and is not an appeal from the underlying conviction and sentence. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000); People v. Haynes, 192 Ill. 2d 437, 464 (2000). In order to be entitled to post-conviction relief, a defendant bears the burden of establishing a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999); People v. Tenner, 175 Ill. 2d 372, 378 (1997).

The purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, nor could have been, adjudicated previously upon direct appeal. Haynes, 192 Ill. 2d at 464; Morgan, 187 Ill. 2d at 528. Because a proceeding brought under the Act is a collateral attack on defendant's conviction and/or sentence, the doctrine of res judicata bars consideration of issues that were raised and decided on direct appeal. People v. Towns, 182 Ill. 2d 491, 502 (1998); People v. Whitehead, 169 Ill. 2d 355, 371 (1996). Further, issues that could have been presented on direct appeal, but were not, are waived for purposes of post-conviction review. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. However, the doctrines of res judicata and waiver will be relaxed in three situations: where fundamental fairness so requires; where the alleged waiver is attributable to the incompetence of appellate counsel; or where the facts relating to the post-conviction claim do not appear on the face of the original record. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 371-72.

A defendant is not entitled to an evidentiary hearing as of right on post-conviction claims. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 370-71. An evidentiary hearing is warranted on a post-conviction claim only where the allegations in the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the constitutional rights of the defendant have been violated. Haynes, 192 Ill. 2d at 465; Morgan, 187 Ill. 2d at 528. For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the post-conviction petition and any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503; People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995). A circuit court's ruling on the sufficiency of the allegations contained in a post-conviction petition is a legal determination. People v. Coleman, 183 Ill. 2d 366, 388 (1998). Therefore, we review de novo a post-conviction petition that has been dismissed without an evidentiary hearing. Morgan, 187 Ill. 2d at 528; Coleman, 183 Ill. 2d at 389.

With these principles in mind, we consider whether the circuit court erred in dismissing defendant's post-conviction petition without an evidentiary hearing. Before this court, defendant raises four claims for review. We address each of these claims seriatim.

Defendant contends that on direct appeal, appellate counsel was deficient because counsel failed to argue that defendant's exclusion from the in camera portion of the voir dire violated his right to be present under the due process clause of the fourteenth amendment of the United States Constitution. U.S. Const., amend. XIV. When determining whether a defendant has made a substantial showing that his constitutional rights have been violated by the incompetence of appellate counsel, we employ the familiar standards for claims alleging ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Coleman, 183 Ill. 2d at 397.

In Strickland, the Court held that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. Pursuant to Strickland, in order to succeed on a claim asserting that the assistance of counsel was so defective as to require reversal of a conviction or death sentence, a defendant must satisfy two components. First, a defendant must establish that his defense counsel's performance was deficient. This requires a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. A defendant meets this burden by establishing that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. In ruling on a claim that counsel was ineffective, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. Accordingly, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164 (1955). Coleman, 183 Ill. 2d at 397.

In order to prevail on an ineffective assistance of counsel claim, Strickland requires that in addition to establishing that counsel was deficient, a defendant must also establish that counsel's deficiencies resulted in prejudice. The Strickland Court explained that "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution" (Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067), and that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 696, 104 S. Ct. at 2066. Under Strickland, a defendant establishes prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. When a defendant challenges a death sentence, the specific question is "whether there is a reasonable probability that, absent the errors, the sentencer *** would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069. "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury *** [and] must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2069. The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530.

As stated, claims of ineffective assistance of appellate counsel are evaluated under the two-prong standard set forth in Strickland. Haynes, 192 Ill. 2d at 476; People v. Childress, 191 Ill. 2d 168, 175 (2000). However, to succeed on a claim that appellate counsel rendered ineffective assistance by failing to argue an issue on appeal, a defendant must specifically establish that appellate counsel's failure to raise that issue was objectively unreasonable and that appellate counsel's decision not to raise the issue prejudiced defendant. Haynes, 192 Ill. 2d at 476; Childress, 191 Ill. 2d at 175. "Appellate counsel is not obligated to brief every issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." People v. Easley, 192 Ill. 2d 307, 329 (2000). Thus, if the underlying issue is not meritorious, defendant has suffered no prejudice from counsel's failure to raise that issue on appeal. Easley, 192 Ill. 2d at 329; Childress, 191 Ill. 2d at 175.

The State initially argues that defendant has failed to allege a cognizable claim for ineffective assistance of appellate counsel because defendant's underlying due process claim is grounded in facts which are outside the record on direct appeal. In its brief to this court, the State contends that "there is nothing in the report of proceedings from [defendant's] direct appeal that would indicate that [defendant] was absent during the out-of-court hearings that occurred during the selection of the jury, including the questioning of the three potential jurors who ultimately served on the jury." Therefore, the State concludes, "this matter concerns the total lack of a factual basis in the record upon which the claim could have been presented to this court on direct appeal."

We disagree. Our thorough examination of the record reveals that defendant was not present during the in camera questioning of prospective jurors. This conclusion is supported by the position taken by the State before the circuit court in the post-conviction proceedings below. In the matter at bar, the State argued below that because defendant failed to raise on direct appeal his exclusion from the in camera voir dire, defendant thereby waived his post-conviction claim that his absence from the in-chambers questioning of several venire members violated his right to due process. In addition, the State argued below that defendant failed to show that his appellate counsel was ineffective for not raising this issue on direct appeal. According to the State in its amended motion to dismiss defendant's amended post-conviction petition, defendant made "no showing that [counsel's] assessment of the issues was deficient" or that "there is a reasonable probability that the Illinois Supreme Court would have reversed his conviction." Thus, the State's position before the circuit court during the post-conviction proceedings was that the appellate record presented the due process issue, that appellate counsel could have raised this issue on direct appeal if counsel believed it was meritorious, that appellate counsel's failure to do so constituted waiver, and that defendant failed to show that appellate counsel's actions were ineffective. Indeed, it was on the basis of defendant's waiver of this issue on direct appeal that the circuit court granted the State's motion to dismiss this specific post-conviction claim.

Because defendant's absence from the in camera voir dire is apparent from the record, any constitutional issues flowing from this absence could have been raised on direct appeal. The waiver doctrine, however, is inapplicable where, as here, a defendant asserts that the alleged waiver stems from the ineffective assistance of appellate counsel. Haynes, 192 Ill. 2d at 476. We therefore turn to the merits of defendant's argument.

In the matter at bar, defendant's appellate counsel filed defendant's brief on direct appeal on December 24, 1991, over 1