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Docket No. 86200-Agenda 6-November 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
DARRYL SIMMS, Appellant.

Opinion filed August 10, 2000.

JUSTICE FREEMAN delivered the opinion of the court:

On November 14, 1995, defendant, Darryl Simms, filed a post-conviction petition in the circuit court of Du Page County pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1994)). With leave of court, on May 21, 1997, defendant filed an amended petition in which he sought relief pursuant to the Post-Conviction Hearing Act and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)). On August 12, 1998, the circuit court dismissed the amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). We affirm in part, reverse in part and remand for an evidentiary hearing on certain claims raised by defendant.

BACKGROUND

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)), aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)), criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)) and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)). At a separate hearing, the trial court sentenced defendant to death. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6). On direct appeal, this court affirmed defendant's convictions, but reversed and remanded for a new death sentencing hearing because of error during the aggravation-mitigation stage of the hearing. People v. Simms, 121 Ill. 2d 259 (1988) (Simms I).

On remand, a jury determined that defendant was eligible for the death penalty and there were no mitigating factors sufficient to preclude the imposition of a death sentence. Accordingly, the trial court sentenced defendant to death. Again, on appeal, this court reversed and remanded for a new death sentencing hearing because of error during the aggravation-mitigation stage of the hearing. People v. Simms, 143 Ill. 2d 154 (1991) (Simms II).

At the third death sentencing hearing, a jury once more found defendant eligible for the death penalty and concluded that there were no mitigating factors sufficient to preclude the imposition of a death sentence. Consequently, the trial court sentenced defendant to death. On appeal, this court affirmed defendant's death sentence. People v. Simms, 168 Ill. 2d 176 (1995) (Simms III). Subsequently, the United States Supreme Court denied defendant's petition for a writ of certiorari. Simms v. Illinois, 518 U.S. 1021, 135 L. Ed. 2d 1074, 116 S. Ct. 2556 (1996).

In Simms I, Simms II, and Simms III, we set forth in detail the facts supporting defendant's convictions and death sentence. To the extent that facts contained in these opinions pertain to the issues defendant raises in his amended petition, we will repeat them as we consider each issue.

DISCUSSION

A proceeding brought under the Post-Conviction Hearing Act is not a direct appeal but a collateral attack on the judgment of conviction. People v. Hawkins, 181 Ill. 2d 41, 50 (1998). The purpose of the proceeding is to determine whether in the proceedings which resulted in the judgment of conviction there was a substantial denial of the petitioner's rights under either the state or federal constitution. 725 ILCS 5/122-1 (West 1994). The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as a matter of right (People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Coleman, 183 Ill. 2d 366, 381 (1998); People v. Guest, 166 Ill. 2d 381, 389 (1995)), and the petition cannot consist of nonfactual and nonspecific assertions which merely amount to conclusions that errors occurred at trial (People v. Kitchen, 189 Ill. 2d 424, 433 (1999); Coleman, 183 Ill. 2d at 381; Guest, 166 Ill. 2d at 389). Rather, the allegations in the petition must be supported by the record in the original trial proceedings or by the affidavits filed with the petition, and the petition is subject to dismissal when the allegations are contradicted by the record. Coleman, 183 Ill. 2d at 381-82. For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. Evans, 186 Ill. 2d at 89; Coleman, 183 Ill. 2d at 380-82.

In a post-conviction proceeding, issues that could have been presented on the direct appeal of the conviction but were not are deemed waived. People v. Richardson, 189 Ill. 2d 401, 407-08 (2000); Evans, 186 Ill. 2d at 89. Further, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided. People v. Williams, 186 Ill. 2d 55, 62 (1999); People v. Griffin, 178 Ill. 2d 65, 73 (1997); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). The petitioner may not avoid the bar of res judicata simply by rephrasing issues previously addressed on direct appeal. Williams, 186 Ill. 2d at 62. On the other hand, when a petitioner's claims are based upon matters outside the record, this court has emphasized that it is not the intent of the Act that such claims be adjudicated on the pleadings. Kitchen, 189 Ill. 2d at 433; Coleman, 183 Ill. 2d at 382. Rather, the function of the pleadings in a proceeding under the Act is to determine whether the petitioner is entitled to a hearing. Coleman, 183 Ill. 2d at 382. The circuit court's dismissal of the post-conviction petition without an evidentiary hearing is reviewed de novo. Coleman, 183 Ill. 2d at 387-89.

As noted above, the circuit court dismissed defendant's amended petition without an evidentiary hearing. The amended petition contains allegations of numerous constitutional violations at defendant's third death sentencing hearing. For the most part, defense counsel did not object to the alleged errors at trial nor include them in a written post-trial motion. Furthermore, on direct appeal, appellate counsel did not include the alleged errors amongst the issues raised. In anticipation of a claim by the State that the alleged errors have been waived, defendant argues that his trial counsel was ineffective in failing to preserve the alleged errors for review, and his appellate counsel was ineffective in failing to bring the alleged errors to this court's attention on direct appeal or to argue that trial counsel was ineffective.

A defendant is guaranteed the effective assistance of counsel at trial and at a death sentencing hearing. Strickland v. Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984). A defendant is also guaranteed the effective assistance of counsel on direct appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985)), and a claim of ineffective assistance of appellate counsel is cognizable under the Post-Conviction Hearing Act (People v. Mack, 167 Ill. 2d 525, 531 (1995)). Accordingly, this court has held that the doctrine of waiver should not bar consideration of an issue where the alleged waiver stems from incompetency of appellate counsel in failing to raise the issue on appeal. Mack, 167 Ill. 2d at 531-32; Guest, 166 Ill. 2d at 390; People v. Caballero, 126 Ill. 2d 248, 269-70 (1989).

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The test is composed of two prongs: deficiency and prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

First, the defendant must prove that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. A court measures counsel's performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93; Griffin, 178 Ill. 2d at 73-74.

Second, the defendant must establish prejudice. The defendant must prove 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. The prejudice prong of Strickland entails more than an "outcome-determinative" test. The defendant must show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Evans, 186 Ill. 2d at 93; Griffin, 178 Ill. 2d at 74.

A defendant must satisfy both prongs of the Strickland test. Therefore, "failure to establish either proposition will be fatal to the claim." People v. Sanchez, 169 Ill. 2d 472, 487 (1996); accord Guest, 166 Ill. 2d at 390.

A court uses the Strickland analysis also to test the adequacy of appellate counsel. Mahaffey, 165 Ill. 2d at 458; Caballero, 126 Ill. 2d at 269-70. A defendant who contends that appellate counsel rendered ineffective assistance, e.g., by failing to argue a particular issue, must show that appellate counsel's failure to raise the issue was objectively unreasonable and prejudiced the defendant. People v. West, 187 Ill. 2d 418, 435 (1999) (and cases cited therein). Appellate counsel is not obligated to brief every conceivable 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, No. 84418, slip op. at 13 (May 25, 2000); West, 187 Ill. 2d at 435. Thus, the inquiry as to prejudice requires that the reviewing court examine the merits of the underlying issue (Mack, 167 Ill. 2d at 534), for a defendant does not suffer prejudice from appellate counsel's failure to raise a nonmeritorious claim on appeal (Easley, slip op. at 13; West, 187 Ill. 2d at 435; Guest, 166 Ill. 2d at 390).

With these principles in mind, we turn to the specific allegations in defendant's amended petition.

I. Peremptory Challenges

Defendant contends that he was denied a fair sentencing hearing because the State used its peremptory challenges to remove six prospective jurors who expressed reservations about the death penalty, but were not excusable for cause under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and its progeny. Under Witherspoon, prospective jurors may not be excused for cause merely because they voice general objections to the death penalty or express conscientious or religious scruples against the imposition of the death penalty. Witherspoon, 391 U.S. at 522, 20 L. Ed. 2d at 784-85, 88 S. Ct. at 1776-77. Defendant complains that, through the use of its peremptory challenges, the State was able to do what it could not do under Witherspoon: obtain a jury inclined to return a verdict imposing the death sentence. Defendant concludes that the trial court erred in allowing the State to exercise its peremptory challenges to excuse the prospective jurors.

Defendant concedes that trial counsel failed to preserve the issue for review because counsel neither objected to the removal of the prospective jurors during voir dire nor raised the issue in a post-trial motion. See People v. Gilliam, 172 Ill. 2d 484, 510 (1996); People v. Pasch, 152 Ill. 2d 133, 168 (1992). Defendant also concedes that, on direct appeal, appellate counsel did not question the State's use of the peremptory challenges or argue that trial counsel was ineffective in failing to preserve the issue for review. All of the facts needed to raise this issue were present in the record and available on direct appeal. As stated above, any claim that could have been, but was not, presented to the reviewing court on direct appeal is, thereafter, barred under the doctrine of waiver. Evans, 186 Ill. 2d at 92.

Defendant contends, however, that trial counsel was ineffective in failing to preserve this issue for review, and appellate counsel was ineffective in failing to argue on direct appeal that trial counsel was ineffective. We disagree. This court has repeatedly held that Witherspoon and its progeny do not limit the State's use of peremptory challenges at voir dire. People v. Coleman, 168 Ill. 2d 509, 549 (1995); People v. Williams, 161 Ill. 2d 1, 55-56 (1994); People v. Howard, 147 Ill. 2d 103, 136-38 (1991); People v. Lear, 143 Ill. 2d 138, 150 (1991); People v. Stewart, 104 Ill. 2d 463, 481-82 (1984). Thus, contrary to defendant's assertion, trial counsel was not ineffective for failing to object to the use of the peremptory challenges at voir dire or to include the issue in a post-trial motion. Moreover, given our repeated rejection of this claim, appellate counsel cannot be deemed ineffective for failing to raise this issue on appeal or argue that trial counsel was ineffective.

II. Caldwell Violations

Citing Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), defendant maintains that the jury was misinformed by the trial court and the State that the jury's role was to "recommend" whether defendant should be sentenced to death. Defendant contends his death sentence must, therefore, be vacated.

At the death sentencing hearing, the trial court conducted individual, sequestered voir dire. The trial court used the word "recommend" once in its examination of jurors Peterson, Henning, Brunke, Stephen, and Slager, and twice in its examination of juror Chick. Defendant notes that the trial court also told juror Slager that she had "kind of a limited role." The State used the word "recommend" once in its examination of juror Bozec.

Trial counsel did not object during voir dire to the use of the word "recommend." Nor did trial counsel include this issue in a post-trial motion. Appellate counsel neither raised this issue on direct appeal nor argued that trial counsel was ineffective in failing to preserve the issue for review. All of the facts supporting this claim were present in the record and available on direct appeal. The issue is thus waived. Evans, 186 Ill. 2d at 92; People v. Lear, 175 Ill. 2d 262, 278 (1997). However, as with his challenge to the State's use of the peremptory challenges, defendant argues ineffectiveness of trial counsel in failing to preserve the issue for review and appellate counsel in failing to argue that trial counsel was ineffective. Consequently, we consider the merits of this issue. Lear, 175 Ill. 2d at 278.

In Caldwell, the Supreme Court held "that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 86 L. Ed. 2d at 239, 105 S. Ct. at 2639. In evaluating an alleged Caldwell violation, this court considers the challenged remarks in the context of the entire sentencing proceeding. People v. Flores, 153 Ill. 2d 264, 287 (1992); People v. Fields, 135 Ill. 2d 18, 57 (1990). This court also considers whether the jury instructions and the verdict forms accurately set forth the law regarding the jury's role in imposing the death penalty (Flores, 153 Ill. 2d at 287; Fields, 135 Ill. 2d at 57; People v. Perez, 108 Ill. 2d 70, 91 (1985)) and the balance between aggravation and mitigation at sentencing (Flores, 153 Ill. 2d at 287; Howard, 147 Ill. 2d at 164). No single factor is necessarily dispositive. Flores, 153 Ill. 2d at 287. The relevant inquiry, considering all the facts and circumstances, is whether the trial court and/or the State misled the jury regarding its sentencing role. Flores, 153 Ill. 2d at 287; Perez, 108 Ill. 2d at 90-91.

We consider, then, whether the remarks defendant challenges misled the jury. As noted above, use of the word "recommend" at voir dire was limited to one comment to each of six jurors, and two comments to the seventh juror. The trial court conducted individual, sequestered voir dire, hence a comment made to one juror would not have been heard by another. Moreover, the jury was repeatedly informed of its responsibility in imposing the death sentence by the trial court, the State, and the defense. In opening remarks at voir dire, the trial court informed the prospective jurors that the jury's role was to decide whether defendant was eligible for the death penalty. During questioning of the individual venire members, the trial court repeatedly informed the prospective jurors they would decide whether defendant should be sentenced to death, and the trial court would be bound by that decision. The State and the defense also informed the prospective jurors of the important role they played in the sentencing process. Each of the prospective jurors in question expressed understanding of the jury's role in imposing the death sentence. Lastly, both the jury instructions and the verdict forms accurately set forth the law.

The trial court's remark to juror Slager that she had "kind of a limited role" is taken entirely out of context, as the following questions by the trial court and answers by the juror demonstrate:

"Q. Then if you determine that he is eligible, then we go to the heart of the case, which would be does he receive the death penalty or not?

A. Yes.

Q. Those are two separate hearings, two separate stages. You understand that?

A. Yes.

Q. Even though you may find him eligible, you don't have to impose the death penalty. On the other hand, if you feel that that's called for under the evidence and the law?

A. Yes.

Q. Should your decision be something other than recommending the death sentence, the matter would be turned over back to the Court and the Court would impose a sentence other than death. You understand that?

A. Yes.

Q. Are you comfortable with that aspect?

A. Yes.

Q. It is kind of a limited role. You are not deciding guilt or innocence, you are really deciding the penalty aspect and only as it relates to whether he should receive the death penalty or not.

A. Yes."

Viewed in the context of the entire sentencing proceeding, we conclude that the challenged remarks did not mislead the jury regarding its sentencing role. Accordingly, trial counsel and appellate counsel were not ineffective with respect to this claim.

In a related argument, defendant maintains that three statements the State made to the jury served to diminish the jury's sense of responsibility in imposing the death penalty. During closing argument, the following colloquies took place between prosecutor Telander, defense counsel Brucar, and the trial court:

"MR. TELANDER: The law in this case is what controls your decision and what is going to happen.

Mr. Brucar's argument wants you to feel guilty for following the law. He wants you to think that you are killing Darryl Simms, that you are with premeditation murdering Darryl Simms.

That's just not what is occurring here-

MR. BRUCAR: Objection, I didn't use the term murder.

THE COURT: All right.

MR. TELANDER: Killing Darryl Simms. That's not what is happening here. That is not the purpose of the hearing. It is not why every one of us is in this courtroom.

We are in this courtroom for one reason. The law.

* * *

MR. TELANDER: [The judge] is going to tell you if you find that there's not a sufficient mitigating factor, the defendant is to be sentenced to death.

That's your job. Not to think about is the death penalty right or wrong. Is the death penalty final. Should we consider mercy to Darryl Simms.

MR. BRUCAR: Objection, they can consider mercy for Darryl Simms.

THE COURT: That's true. But it is argument. I will allow him to argue.

* * *

MR. TELANDER: You have to judge your verdict on the evidence.

And don't let Mr. Brucar make you feel guilty for fulfilling your oath as jurors. You are not killing anyone. You are following the law that you swore to do." (Emphasis added.)

Defendant complains of the italicized statements.⁽¹⁾

Once more, we note trial counsel's failure to object to the remarks at the sentencing hearing, and appellate counsel's failure to argue on direct appeal that trial counsel was ineffective. Waiver applies. Evans, 186 Ill. 2d at 92. However, we consider the merits of the issue because defendant maintains that trial and appellate counsel were ineffective. Lear, 175 Ill. 2d at 278.

Throughout closing argument, the State argued that the jury's role was to determine whether defendant should be sentenced to death. The State informed the jury that its decision to impose the death penalty would be binding on the trial court. The State also argued that it was not the province of the jury to determine the validity of the death penalty. Rather, the jury should impose the death penalty, if appropriate, without feeling guilty for following the law. See Pasch, 152 Ill. 2d at 206. The State's argument addressed defense counsel's arguments that the State was asking the jury to kill defendant; that the death penalty is final; and the jury's decision to impose the death penalty would stay with it forever.

Defense counsel made an emotional plea for defendant's life. Repeatedly, counsel told the jury that it would decide whether defendant should live or die, and it had the power to take defendant's life or to spare defendant's life. Thus, counsel nurtured and reinforced the jury's sense of responsibility. We note again that both the jury instructions and the verdict forms accurately set forth the law regarding the jury's role in imposing the death penalty. Having reviewed the challenged remarks in the context of the entire sentencing proceeding, we conclude that the remarks did not lead the jury to feel less responsible for its sentencing decision. See People v. Burgess, 176 Ill. 2d 289, 318-19 (1997); Lear, 175 Ill. 2d at 279; People v. Moore, 171 Ill. 2d 74, 120 (1996). Consequently, trial counsel and appellate counsel were not ineffective with respect to this claim.

In a final Caldwell challenge, defendant maintains that juror Jekkals was misled regarding her role in imposing the death penalty. During voir dire, the State asked juror Jekkals whether she would "sign a verdict recommending the death sentence" if she felt the sentence was appropriate. In an affidavit attached to defendant's post-conviction petition, a defense investigator states that juror Jekkals told the investigator she believed she was making a recommendation to the trial judge whether or not to impose the death penalty.

We note that defendant's challenge to the State's remark at voir dire has been waived. Evans, 186 Ill. 2d at 92. However, the affidavit attached to the petition is evidence, unavailable to defendant on direct appeal. Further, defendant maintains that he received ineffective assistance of trial and appellate counsel. We therefore address the issue on the merits. See Evans, 186 Ill. 2d at 94.

In People v. Holmes, 69 Ill. 2d 507 (1978), this court held that testimony or an affidavit of a juror cannot be used to impeach the verdict reached by a jury, where the testimony or affidavit is offered in an attempt to prove the motive, method or process by which the jury reached its verdict. The court reasoned that " 'being personal to each juror, the working of the mind of any of them cannot be subjected to the test of other testimony, and therefore *** such testimony should not be received to overthrow the verdict to which all assented.' " Holmes, 69 Ill. 2d at 512-13, quoting State v. Kociolek, 20 N.J. 92, 99, 118 A.2d 812, 816 (1955).

In the present case, the jury was polled in open court. Each juror, Jekkals included, affirmed that the verdict read in court was his or her verdict. The statement attributed to juror Jekkals in the affidavit is offered to show that she believed she was making a recommendation to the trial court regarding the death penalty; the judge would actually decide whether to impose the death penalty. Such a statement calls into question the "motive, method or process by which the jury reached its verdict." Consequently, the affidavit may not be used to impeach the verdict reached by the jury. See People v. Hobley, 182 Ill. 2d 404, 457 (1998); People v. McDonald, 168 Ill. 2d 420, 457 (1995); People v. Towns, 157 Ill. 2d 90, 112 (1993).

In reviewing each of the alleged Caldwell violations, we conclude that the jury was not misled regarding its role in imposing the death penalty. Thus, trial counsel was not ineffective in failing to preserve the issues for review, and appellate counsel was not ineffective in failing to raise the issues on direct appeal or argue that trial counsel was ineffective. Defendant is not entitled to an evidentiary hearing on these claims.

III. Jury's Failure to Consider All Elements in Determining Eligibility

Defendant notes that, in order to find him eligible for the death penalty, the jury was first required to find he murdered Lillian LaCrosse in the course of another felony. Defendant maintains that certain remarks made by prosecutor Telander during closing argument, led the jury to believe it did not have to make a separate finding regarding eligibility but could simply rely on the certified copies of convictions:

"[MR. TELANDER]: And the last thing we have to show is that the other felony was either aggravated criminal sexual assault or home invasion or armed robbery. *** If you find that any one of those three felonies existed, he is eligible. But in this case I believe and assert from the evidence that all three existed. And again, how do you know that? Not because I told you. Not even really because the evidence has told you, but it has. But you have certified copies of convictions saying that Mr. Simms was convicted of aggravated criminal sexual assault. Mr. Simms was convicted of home invasion, and he was convicted of armed robbery.

* * *

I don't mean to make light of your decision, because it is not a light decision. But the decision under the law, you really have no choice to make. Beyond a reasonable doubt, every single element has been proven, frankly beyond all doubt.

* * *

In addition to the certified copies of convictions, you also have certain facts. A small piece of the trial is brought in to show you what the case was about. To show you how you know he invaded her home, how you know in addition to the convictions that he raped her, how you know he murdered her and how you know he robbed her." (Emphasis added.)

Defense counsel did not object to the italicized remarks at the death sentencing hearing. Further, counsel did not complain of the remarks in a post-trial motion. Appellate counsel did not raise this issue on direct appeal although the facts needed to present the claim were present in the record and available to defendant. Once again, defendant maintains that waiver should not apply because trial counsel was ineffective in failing to preserve the issue for review, and appellate counsel was ineffective in failing to raise the issue on direct appeal. Thus, we must examine the claim on its merits.

Initially, we observe that the State produced extensive evidence at the death sentencing hearing regarding the commission of the murder, home invasion, aggravated criminal sexual assault and armed robbery. Fourteen witnesses testified at the hearing regarding the circumstances of the crimes. The State also introduced testimony of several witnesses by stipulation. Lastly, the State introduced numerous exhibits relevant to the crimes into evidence.

Next, we note that the trial court instructed the jury it was the jury's duty to determine the facts from the evidence; to apply the law to the facts and in this way decide whether defendant was eligible for a death sentence. The jury was told to presume that defendant was not eligible for the death sentence, a presumption which could not be overcome unless, from all the evidence, the jury was convinced beyond a reasonable doubt that defendant was eligible for a death sentence. The trial court also instructed the jury that the State was required to prove that defendant killed Lillian LaCrosse in the course of an armed robbery, aggravated criminal sexual assault or home invasion. The jury was given two verdict forms: the first declared that the jury could not unanimously find that defendant was eligible for the death sentence because it could not determine that the statutory aggravating factor existed; the second declared that the jury unanimously found that the statutory aggravating factor existed and defendant was eligible for the death penalty. The jurors signed the second verdict form, thereby indicating they had found unanimously that defendant killed Lillian LaCrosse during the course of another felony. The jury instructions and the verdict forms were proper statements of the law. We must presume, absent a showing to the contrary, that the jury followed the trial judge's instructions in reaching a verdict. Simms II, 143 Ill. 2d at 174.

Lastly, the remarks assigned as error were juxtaposed to other statements informing the jury that in order to find defendant eligible for the death penalty, it had to determine defendant killed Lillian LaCrosse in the course of an armed robbery, aggravated criminal sexual assault or home invasion. The State also detailed to the jury the evidence supporting a determination that defendant had committed armed robbery, aggravated criminal sexual assault and home invasion, and asked that the jury find the statutory aggravating factors existed.

In turn, defense counsel informed the jury:

"You have got a duty here to scrutinize every scintilla [of] evidence in this case. You have to be satisfied beyond a reasonable doubt that these felonies occurred in the course of a murder. Now, you have to ask yourself another question. The evidence that they put in front of you, is it enough to find that person eligible to be killed?"

Defense counsel reviewed the evidence for the jury, arguing the evidence failed to show a forced entry into Lillian LaCrosse's apartment or the use of a weapon or threats to take her property. Trial counsel also highlighted the evidence supporting defendant's claim of an affair and consensual sex with Lillian LaCrosse. In conclusion, counsel told the jury:

"And you have got a duty to do. You can't put it off on some other Court, saying conviction[s] got to enter, that's it. You can't do that. You are good people, you can't do that. You took an oath, you can't do that. You have to ask yourself, is there enough evidence here for someone to be eligible to be killed?"

In light of the above, we conclude that the jury was not misled regarding the scope of its duties. See Fields, 135 Ill. 2d at 57; Perez, 108 Ill. 2d at 91. The jury was well aware that it had to determine the existence of a statutory aggravating factor, and the signed verdict form evinces such a determination. For this reason, we reject defendant's claim that trial counsel was ineffective for failing to preserve the issue for review and that appellate counsel was ineffective for failing to raise the issue on direct appeal.

IV. Multiple Convictions

Defendant argues that he was improperly prejudiced by the admission, during the aggravation-mitigation phase of the death sentencing hearing, of four certificates of conviction for residential burglary, all related to defendant's entry into Lillian LaCrosse's apartment on the date of the murder. Defendant notes he could only be guilty of one count of residential burglary. He contends the jury may have believed the three additional convictions for residential burglary were relevant to a determination of his sentence.

Defendant raised this issue on direct appeal. See Simms III, 168 Ill. 2d at 198. The court's determination in Simms III is res judicata. Griffin, 178 Ill. 2d at 73.

Defendant maintains, however, that he challenged his convictions in Simms I, but the court failed to address the issue. Hence, defendant argues that the court should not have held in Simms III that defendant could not challenge his convictions. We decline defendant's invitation to revisit this issue.

V. Jury Instruction-Underlying Felonies

Defendant maintains that the trial court erred in failing to instruct the jury regarding the mental state necessary to sustain a conviction for aggravated criminal sexual assault or armed robbery. Although the jury was instructed regarding the mental state necessary to sustain a conviction for home invasion, the jury returned a general verdict, finding that the aggravating factor existed, without specifying that its verdict was based on the underlying offense of home invasion. Defendant argues his death sentence must be vacated because the jury may have determined that he was eligible for the death sentence based on the underlying offense of aggravated criminal sexual assault or the underlying offense of armed robbery.

Defendant acknowledges that trial counsel failed to object to the instructions the trial court gave the jury and failed to offer alternate instructions. Also, appellate counsel failed to raise this issue on direct appeal. Defendant maintains, however, that trial counsel was ineffective because trial counsel failed to object to the instructions or offer alternate instructions, and appellate counsel was ineffective because appellate counsel failed to argue that trial counsel was ineffective. We disagree.

In People v. Terrell, 132 Ill. 2d 178, 209 (1989), this court held that the legislature did not intend the aggravated criminal sexual assault statute (Ill. Rev. Stat. 1985, ch. 38, par. 12-14) to define a strict liability or public welfare offense. Since the aggravated criminal sexual assault statute does not prescribe a mental state applicable to the offense, a mental state of intent, knowledge or recklessness must be implied. Terrell, 132 Ill. 2d at 209, citing Ill. Rev. Stat. 1985, ch. 38, pars. 4-3 through 4-6, 4-9. This court, however, did not consider the additional issue presented here, namely, what, if any, jury instructions are required for the offense of aggravated criminal sexual assault.

In People v. Burton, 201 Ill. App. 3d 116 (1990), our appellate court considered this issue and rejected the defendant's contention that he was entitled to instructions setting forth the required mental states the State had to prove to convict him of aggravated criminal sexual assault. The Burton court explained that the mental states implied by section 4-3 of the Criminal Code are in the nature of general criminal mental states, distinguished from specific mental states about which the jury must be advised in instructions defining an offense or describing the elements the State must prove. Further, the Burton court noted that the mental states implied by section 4-3 of the Criminal Code are mental states which almost always accompany the acts alleged. The Burton court concluded:

"[S]ome mental states involved in offenses, although not specifically mentioned in the statute defining the offense, may be implied in the offense and be specific enough to require instruction to the jury. Under some circumstances, the mental state implied by section 4-3 of the Code may possibly be so specific as to require instruction. [Citation.]

Here, the implied mental states were not specific, and the circuit court did not err in giving the pattern instructions, which did not set forth those mental states." Burton, 201 Ill. App. 3d at 122.

Accord People v. Giles, 261 Ill. App. 3d 833, 845 (1994); People v. Franzen, 251 Ill. App. 3d 813, 830 (1993); People v. Fryer, 247 Ill. App. 3d 1051, 1060 (1993); People v. Bock, 242 Ill. App. 3d 1056, 1075-76 (1993). See also People v. Bofman, 283 Ill. App. 3d 546, 550-51 (1996); People v. Robinson, 265 Ill. App. 3d 882, 888-89 (1994); People v. Adams, 265 Ill. App. 3d 181, 187 (1994); People v. Calva, 256 Ill. App. 3d 865, 870 (1993).

We agree with the Burton court that jury instructions on a specific mental state are not required for the offense of aggravated criminal sexual assault. Consequently, we reject defendant's argument that trial counsel was ineffective for failing to object to the instructions or to offer alternate instructions. We also reject defendant's argument that appellate counsel was ineffective for failing to argue that trial counsel was ineffective.

Next, we consider whether the trial court should have instructed the jury on a specific mental state for the offense of armed robbery. Initially, we note that the statutory provision for the offense of armed robbery, like the statutory provision for the offense of aggravated criminal sexual assault, does not prescribe a particular mental state applicable to the elements of the offense. However, in People v. Jones, 149 Ill. 2d 288, 297 (1992), this court held that, pursuant to section 4-3 of the Criminal Code, "either intent, knowledge or recklessness is an element of robbery."

In People v. Lewis, 165 Ill. 2d 305 (1995), this court stated that robbery is a general intent crime, and, unlike specific intent crimes, proof that the prohibited harm was intended is not necessary to proof of a general intent crime. Lewis, 165 Ill. 2d at 337. The court concluded that "proof that robbery was intended is not required to sustain a conviction for armed robbery. The gist of armed robbery is simply the taking of another's property by force or threat of force." Lewis, 165 Ill. 2d at 338.

In the present case, evidence was presented that defendant stabbed Lillian LaCrosse and took her purse, her jeans, and a movie camera her parents owned. This evidence supported defendant's conviction for armed robbery. In a statement he gave to the police, defendant admitted killing Lillian LaCrosse but claimed that he took her purse and the movie camera because he feared he had left fingerprints on them the previous afternoon. However, defendant's subjective intent in taking the property, i.e., to dispose of items containing incriminating evidence, was of no import. The jury was instructed that a person commits the offense of armed robbery when he, while carrying on or about his person or while otherwise armed with a dangerous weapon, takes property from the person or presence of another by the use of force or by threatening the imminent use of force. This instruction was appropriate since the mental state of intent, knowledge or recklessness could be inferred from the circumstances of the crime. Pursuant to this court's holding in Lewis, the State was not required to prove that defendant acted with the subjective intent to rob Lillian LaCrosse, nor was the trial court required to instruct that the jury must find defendant acted with the subjective intent to rob. See also People v. Garland, 254 Ill. App. 3d 827 (1993); People v. Childrous, 196 Ill. App. 3d 38, 54 (1990) (listing cases holding mental state is not an essential element for jury instructions on armed robbery). Thus, trial counsel was not ineffective in failing to object to the jury instructions on armed robbery or offer alternate instructions, and appellate counsel was not ineffective in failing to raise the issue on direct appeal or argue that trial counsel was ineffective.

VI. Disclosure of Aggravating Evidence

Defendant filed a bill of particulars as well as a motion to compel the prosecution to disclose nonstatutory aggravating factors. The trial court denied the motion. Defendant maintains that the death sentencing hearing is a critical stage of trial, and he needed notice and time to prepare a response to the nonstatutory aggravating factors the State intended to introduce. He assigns error to the trial court's denial of his motion to compel.

Trial counsel did not raise this issue in a post-trial motion. Appellate counsel did not raise this issue on direct appeal or argue that trial counsel was ineffective. In his amended petition, defendant has not alleged that appellate counsel was ineffective in this respect. As noted above, issues that could have been presented on direct appeal but were not are waived in subsequent proceedings. Evans, 186 Ill. 2d at 89. Thus, we conclude that this issue is procedurally barred.

VII. Testimony of Attorney

In his amended petition, defendant argues that the State should not have had attorney Katherine Zellner testify at the second stage of the death sentencing hearing regarding an incident she observed in 1991. Defendant contends that the information Zellner possessed regarding the incident was subject to the attorney-client privilege and should not have been disclosed absent a waiver of the attorney-client privilege. In a related argument, defendant maintains that Zellner should not have agreed to represent him in 1992 because she knew she might be a witness against him regarding the 1991 incident, and because prosecutor Telander was her partner. The basis for Zellner and Telander's partnership was their joint representation, pursuant to court appointment, of a criminal defendant in Du Page County over a six-month period in 1992. Defendant asserts he was denied the effective assistance of counsel because Zellner's representation of defendant was subject to a per se conflict of interest.

At the death sentencing hearing, Zellner testified that in the fall of 1991, while interviewing a client in the visiting room at Pontiac Correctional Center, she observed defendant strike his wife, Christine Simms, in the face. Defendant then unzipped his pants, and his wife performed oral sex on him. Although there are television cameras in the visiting room, they do not record activities at some of the tables in the visiting room. Zellner did not report the incident to the guard seated at a desk by the door. She had reported a sex act she observed on another visit to this very guard, and he failed to take action. Zellner also testified that when she learned that Birkett was prosecuting defendant's case, she told Birkett about the oral sex incident.

At the conclusion of the death sentencing hearing, defendant motioned that the trial court appoint new counsel to review specific allegations of ineffectiveness of trial counsel. Defendant alleged, inter alia, that trial counsel was ineffective because he did not have defendant testify to rebut Zellner's testimony. At a post-trial hearing on defendant's motion, Zellner testified as follows. In the spring of 1992, while she and her associate, Daniel DeLay, were interviewing Larry Eiler, a prisoner at Pontiac she had been appointed to represent, defendant asked Eiler if defendant could talk to Zellner for a moment. Defendant and his wife, Christine Simms, then spoke with Zellner and DeLay. Defendant asked Zellner what she thought of Telander; whether it was ethically appropriate for Telander to become close to the LaCrosse family. She answered that she and Telander were both representing a criminal defendant in Du Page County and, in her opinion, Telander is an ethical attorney. Defendant then asked her if she would see Telander sometime soon. She replied she would see him within the next two weeks. Defendant requested that she ask Telander whether some kind of a deal could be worked out if defendant pled guilty. She said, "I don't know anything about your case, but I will convey the message." Subsequently, she spoke with Telander, with Birkett present. When she told Telander that defendant wanted to plead guilty, Telander and Birkett laughed, explaining that guilt was not at issue; defendant's case had been remanded for a new sentencing hearing.

Zellner also testified that she told Telander and Birkett about the 1991 oral sex incident. She could not recall whether she told them about the incident at the time she relayed defendant's plea-bargaining request or during another conversation. However, she believes they only had one conversation about defendant. Zellner stated that she did not tell defendant and his wife that Telander was a close friend. The first time she met Telander was when they were appointed to jointly represent a criminal defendant in Du Page County. Telander withdrew from the case after six months. Zellner also stated that she has never accepted a defendant facing the death penalty as a private client. She has only represented such defendants when she has been appointed by the court.

We consider first whether Zellner should have been allowed to testify at the death sentencing hearing regarding the 1991 incident. We note that trial counsel did not object to Zellner's testimony at the death sentencing hearing. Furthermore, appellate counsel did not argue on direct appeal that trial counsel was ineffective for failing to object to Zellner's testimony. Defendant maintains, however, that trial counsel was ineffective for failing to object to Zellner's testimony and appellate counsel was ineffective for failing to raise this issue on appeal.

The purpose of the attorney-client privilege is to secure for the client the ability to confide freely and fully in his or her attorney, without fear that confidential information will be disseminated to others. People v. Knuckles, 165 Ill. 2d 125, 130 (1995). In People v. Adam, 51 Ill. 2d 46 (1972), this court restated the essential elements for the creation and application of the attorney-client privilege:

" '(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.' " Adam, 51 Ill. 2d at 48, quoting 8 J. Wigmore, Evidence