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Docket No. 86557-Agenda 1-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HOWARD WILEY, Appellant.

Opinion filed October 25, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Following a trial in the circuit court of Cook County, a juryconvicted defendant, Howard Wiley, of three counts of murder andarmed robbery. Defendant waived his right to a jury for theensuing capital sentencing hearing, and the circuit court sentencedhim to death on the murder counts. The circuit court alsosentenced defendant to consecutive 30-year sentences for thearmed robbery convictions. Defendant appealed, and this courtremanded the cause with directions to conduct further proceedingsunder Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.1712 (1986). People v. Wiley, 156 Ill. 2d 464 (1993) (Wiley I).After the circuit court concluded that the State had not violated theprinciples enunciated in Batson, the cause returned to this court forfurther review, and this court affirmed the convictions and deathsentence. People v. Wiley, 165 Ill. 2d 259 (1995) (Wiley II). TheUnited States Supreme Court subsequently denied defendant'spetition for writ of certiorari. Wiley v. Illinois, 516 U.S. 923, 133L. Ed. 2d 223, 116 S. Ct. 322 (1995).

Defendant thereafter filed a petition, which was later amendedand supplemented, for relief pursuant to the Post-ConvictionHearing Act (725 ILCS 5/122-1 (West 1994)). The circuit courtdismissed the petition without an evidentiary hearing, and thisappeal followed. 134 Ill. 2d R. 651. On November 16, 2000, thiscourt issued an opinion affirming the circuit court's order ofdismissal. Defendant filed a petition for rehearing (155 Ill. 2d R.367), which this court allowed on January 29, 2001. Both partieshave submitted further briefing materials in accordance with theorder of this court. For the reasons that follow, we affirm in part,reverse in part, and remand the matter for an evidentiary hearing.

BACKGROUND

The testimony presented at trial was recounted by this courtin Wiley II, 165 Ill. 2d at 267-71, and we will detail here onlythose facts relevant to our resolution of this appeal. Onapproximately December 2, 1985,⁽¹⁾ Donna Rucks, Carla Williams,and Adrienne Parham were murdered in Rucks' apartment. Theirbodies were discovered on the morning of December 3 byemployees of the building where the apartment was located, andthe police were summoned. All three deaths were the result ofgunshot wounds to the head. The subsequent police investigationled to defendant's arrest. Defendant was ultimately tried,convicted, and sentenced to death for the crimes.

After the completion of the direct appeal proceedings,defendant filed a petition for post-conviction relief. The petitionwas improperly denied, and this court reinstated defendant'spetition. Defendant filed an amended post-conviction petition andlater filed a supplement to that petition. The State then moved todismiss.

The trial court dismissed defendant's post-conviction petitionwithout a hearing, stating both that the petition was untimely andthat the petition did not necessitate an evidentiary hearing.Additional facts will be supplied, where necessary, in our analysis.

ANALYSIS

On appeal, defendant maintains that the circuit court's ordermust be reversed because the circuit court erred in finding that thepetition was time-barred. Defendant also maintains that the circuitcourt's alternative ruling-that the issues raised did not warrant anevidentiary hearing-was improper.

We begin by noting that a post-conviction action is acollateral attack on a prior conviction and sentence. People v.Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d367, 377 (1988). As such, the remedy "is not a substitute for, or anaddendum to, direct appeal." People v. Kokoraleis, 159 Ill. 2d 325,328 (1994). The scope of the proceeding is limited toconstitutional matters that neither have been, nor could not havebeen, previously adjudicated. Any issues which could have raisedon direct appeal, but were not, are procedurally defaulted (Peoplev. Ruiz, 132 Ill. 2d 1, 9 (1989)) and any issues which havepreviously been decided by a reviewing court are barred by thedoctrine of res judicata (People v. Silagy, 116 Ill. 2d 357, 365(1987)).

In addition to these procedural bars, a defendant is not entitledto an evidentiary hearing unless the allegations set forth in thepetition, as supported by the trial record or accompanyingaffidavits, make a substantial showing of a constitutionalviolation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Inmaking that determination, all well-pleaded facts in the petitionand affidavits are to be taken as true, but nonfactual andnonspecific assertions which merely amount to conclusions are notsufficient to require a hearing under the Act. Coleman, 183 Ill. 2dat 381. The dismissal of a post-conviction petition is warrantedonly when the petition's allegations of fact-liberally construed infavor of the petitioner and in light of the original trial record-failto make a substantial showing of a constitutional violation.Coleman, 183 Ill. 2d at 382. On appeal, the circuit court's decisionto dismiss the petition without an evidentiary hearing is subject toplenary review. Coleman, 183 Ill. 2d at 388.

Timeliness of the Petition

We note the State concedes that the circuit court improperlydismissed, as untimely, defendant's post-conviction action. Afterreviewing the record, we agree and accept the State's concession.Therefore, we turn to defendant's other assertions of error.

Sufficiency of the Death Eligibility Verdict

Defendant maintains that his appellate counsel was ineffectivefor failing to argue that the evidence was insufficient to prove himeligible for the death penalty beyond a reasonable doubt. Thiscourt has held that this type of claim is cognizable under the Post-Conviction Hearing Act. See People v. West, 187 Ill. 2d 418, 434-35 (1999). Such a claim is measured against the same standard asthose dealing with ineffective assistance of trial counsel. See West,187 Ill. 2d at 435 (and cases cited therein). A defendant whocontends that appellate counsel rendered ineffective assistancemust show that the failure to raise the issue was objectivelyunreasonable and that the decision prejudiced the defendant. West,187 Ill. 2d at 435. In other words, we must determine whetherappellate counsel would have presented a successful challenge tothe sufficiency of the evidence with respect to defendant's deatheligibility on direct review, had he raised the claim at that time.

A defendant can be found eligible for the death penalty onlyif the finder of fact finds that the State has proven beyond areasonable doubt that defendant was at least 18 years of age at thetime of the commission of the offense and that at least onestatutory aggravating factor exists. Ill. Rev. Stat. 1985, ch. 38,pars. 9-1(f), (g). In this case, defendant's death eligibility waspredicated upon the statutory aggravating factor set out in section9-1(b)(6) of the Criminal Code of 1961.

At the time of defendant's trial, section 9-1(b)(6) authorizedthe imposition of the death penalty when the murdered individualwas killed in the course of another felony "if: (a) the murderedindividual: (1) was actually killed by the defendant, or (ii) receivedphysical injuries personally inflicted by the defendant substantiallycontemporaneously with physical injuries caused by one or morepersons for whose conduct the defendant is legally accountable*** and the physical injuries inflicted by either the defendant orthe other person or persons for whose conduct he is legallyaccountable caused the death of the murdered individual." Ill. Rev.Stat. 1985, ch. 38, par. 9-1(b)(6)(a). The section also required thatthe defendant acted with the intent to kill the murdered individualor with knowledge that his acts created a strong probability ofdeath or great bodily harm to the murdered individual or another.Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(b). During the eligibilityphase of the death sentencing hearing, the State must prove all ofthe elements of the aggravating factor beyond a reasonable doubt.Ill. Rev. Stat. 1985, ch. 38, par. 9-1(f).

Defendant waived his right to a jury for sentencing. At theeligibility phase of the hearing, the State presented a certified copyof defendant's birth certificate as proof that defendant was overthe age of 18, and the parties stipulated that defendant was born onJune 7, 1946. The parties also stipulated to the trial testimony, thetrial exhibits, and the special verdicts of the jury, which found thatdefendant was guilty of murder and of armed robbery and thatdefendant "performed the acts which caused the death" of eachvictim. No other evidence was introduced. The court founddefendant eligible for the death penalty under section 9-1(b)(6) ofthe Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par.9-1(b)(6), now 720 ILCS 5/9-1(b)(6) (West 2000)) because hehad committed the murders knowingly or intentionally and in thecourse of another felony. The court declined to find defendanteligible under any other factor.

According to defendant, the eligibility finding in this case isconstitutionally deficient because the State never proved thatdefendant's conduct fell within the class of culpable conductwhich would warrant the imposition of the death penalty.Defendant contends that there is simply no proof that his conductwas within the ambit of section 9-1(b)(6) because the evidencedoes not reflect that he actually murdered the victims or that heinflicted physical injuries upon the victims in the manner requiredby the statute. Defendant points out that his confession, reliedupon by the State during the guilt phase of the trial, coupled withthe rest of the evidence presented by the State, proves only guilt offelony murder or guilt on the basis of accountability. Stateddifferently, defendant argues that there is no evidence of recordwhich supports the inference that he actually killed the victims orthat he inflicted injuries substantially contemporaneously withphysical injuries caused by one or more persons for whose conductdefendant is legally accountable, as is required under the felony-murder aggravating factor. Thus, the crux of defendant'sineffective assistance of counsel claim is that the evidence wasinsufficient to support the circuit court's finding of deatheligibility.

In light of defendant's contentions, the State argues that theevidence presented at trial was sufficient to find that defendantcommitted the murders. The State points out that the trier of factwas entitled to reject the self-serving portions of defendant'sconfession on the basis of the circumstantial evidence whichsupported the inference that defendant acted alone in committingthe murders.

In addressing this claim, we must necessarily review theevidence adduced at trial because both the State and defendant, atthe eligibility phase of the hearing, stipulated to that evidence. Inaddition, the trial judge, sitting as the trier of fact at sentencing,referred specifically to the evidence at trial when he founddefendant eligible for the death penalty under section 9-1(b)(6).

The evidence presented at the guilt phase of defendant's trialrevealed the following. One of the victims, Donna Rucks,normally worked a morning shift at a hotel near the murder scene.A coworker became concerned when Rucks failed to report forwork on the morning of December 3, 1985. The coworker went toRucks apartment and asked the building manager to enter theapartment. The building manager went to get the passkey to theapartment, but the key would not work. Police eventually werecalled to the scene, and it was decided that a window would bebroken by the building maintenance man in order to gain access toRucks' apartment.

The maintenance man broke the window and entered into theapartment's living room. There he saw two bodies and smelledsomething burning. Police instructed him to open the front door.The front door had two types of locks on it-one attached to thedoorknob and a dead-bolt. The door was both locked and dead-bolted. The door could be locked from the inside of the apartmentby throwing the deadbolt. The door could be dead-bolted from theoutside only by the use of a key.

While police were investigating the crime scene, the phone inthe apartment rang. After receiving the phone call, police went tothe home of defendant's father. There, they spoke with defendant,who told them that he knew the victims, was concerned aboutthem, and would be happy to help with the police investigation.Defendant agreed to accompany them to the police station.

At the station, defendant acknowledged to Detective Ptak thathe had been at Rucks' apartment on December 2, and that he hadbecome concerned when no one answered his knocks on the door.Defendant said that he had called the police, but that the officerswho had responded to his call refused to break into the apartmentbecause it looked secure from the outside.

Defendant further revealed to Ptak that he had spoken to hisparole officer. Ptak then consulted with the parole officer. Ptaksubsequently resumed his interview with defendant and advisedhim of his Miranda rights. After having waived his rights,defendant changed his story. Defendant admitted that he had beenat Rucks' apartment around 10 a.m. on the morning of December2. He knocked on the door, and it suddenly swung open. Heentered the apartment and saw the bodies of Rucks and Parham onthe living room floor. He then went upstairs and found CarlaWilliams' body. All of the victims were dead. Defendant then leftthe apartment and closed the door, realizing that the door wouldlock behind him. He did not call police because he was afraid thathe would be blamed for the murders because he was on parole. Atthat point, Detective Ptak informed defendant that one of thevictims, Carla Williams, had been raped. Defendant told Ptak thathe "kn[e]w" that Williams had not been raped, and the detectiveasked defendant how he could have known that. Police arresteddefendant at that point for the murder of the three victims.

Subsequent to the arrest, Detective Ptak learned thatdefendant might have fired a weapon, a few days earlier, at agrocery store located in the vicinity of the murder scene. Ptak wentto the store and recovered a bullet that was embedded in a cooler.Ptak was told that defendant had fired the shot into the cooler. Therecovered bullet was submitted for ballistics study and was laterdiscovered to match those recovered from the bodies of thevictims. Chicago police detectives Rochowicz and Vallandinghamlater spoke with defendant, after advising him again of hisMiranda rights. When confronted with the ballistics evidence,defendant stated that he "needed time to think." He later agreed togive an account of what had occurred at Rucks' apartment.

Defendant told Detective Rochowicz that on December 2, hetelephoned Carla Williams, who was "holding" $5,000 for him.Defendant told her that he needed the money because he wasbroke, but Williams responded that he would have to wait for it.Defendant become angry and then went to a pool hall, where hemet a man he knew by the names of Eddie Jones and CharlesBattles (hereafter Battles). Defendant told Battles about the moneyand offered to pay him $1,500 if Battles would help him recoverthe money. Battles agreed, and the men drove to the victims'apartment. Defendant gave Battles a .38 revolver that defendanthad with him.

Defendant maintained that he and Battles planned to stage aphony "stickup." To that end, defendant knocked on the door andwas let in by one of the victims. Defendant left the door slightlyajar so that Battles could enter behind him. According todefendant's confession, Battles came into the apartment andannounced a "stickup." Battles, however, became startled whenone of the victims, Rucks, jumped up from a couch, and he shother. At this time, the second victim, Parham, started to run away,and Battles shot her, too. The third victim, Williams, then camedown the stairs from an upper-floor bedroom. When she saw whathad happened, she ran back up the stairs. Battles ran after her, andshot her. Defendant stated that he heard a shot, but did not knowwhat happened because he did not follow Battles up the stairs.After the shooting stopped, Battles told defendant that he "betterbe with" Battles, and defendant agreed. Defendant stated that heleft the apartment at that time, but that Battles stayed behind.

After giving this verbal account to detectives, defendant gaveboth oral and written statements to assistant State's AttorneyMichael Gerber. These later statements were substantially similarto the account defendant gave Detective Rochowicz.

Apart from defendant's statement, the State also presentedexpert testimony regarding the specific characteristics of thebullets found in the bodies of the victims. Two eyewitnesses alsotestified that they saw defendant, on November 26, 1985, shoot aweapon in a store and that the bullet fired from the gun struck andbecame embedded in a cooler. Forensic evidence revealed that thebullets from the victims' bodies shared the same characteristics asthat found in the store. The State also presented detailed testimonyfrom the medical examiner who performed the autopsies of thevictims. Each victim was killed by a gunshot wound to the head.

Defendant did not present any evidence on his behalf. Thejury found defendant guilty of three counts of first degree murderand three counts of armed robbery.

As noted previously, the crux of defendant's ineffective-assistance claim is that the evidence of death eligibility isinsufficient to support the trial judge's finding. The standard ofreview to be applied is whether, after viewing all of the evidencein the light most favorable to the prosecution, any rational trier offact could have found the elements necessary to establishdefendant's eligibility for the death penalty beyond a reasonabledoubt. People v. Pasch, 152 Ill. 2d 133, 213-14 (1992). In sodoing, a reviewing court must consider that the circuit court heardand saw the witnesses and, thus, was in a better position to judgetheir credibility, to determine the weight to be accorded theirtestimony, to decide the inferences to be drawn from the evidence,and to resolve any conflicts in it. People v. Batchelor, 171 Ill. 2d367, 376 (1996). The credibility of a defendant's confession is tobe weighed by the trier of fact, which may accept all, parts, ornone of the confession. People v. Pecoraro, 144 Ill. 2d 1, 11(1991); People v. DiGerlando, 30 Ill. 2d 544, 551 (1964). Wherea defendant's statement is contradicted by the facts andcircumstantial evidence, the trier of fact need not believe it, eventhough other witnesses do not contradict the statement directly.Batchelor, 171 Ill. 2d at 376-77; People v. Warren, 33 Ill. 2d 168,174 (1965).

We have thoroughly reviewed the evidence presented at trialand the arguments made by the parties in these proceedings. Aftercareful consideration, we must conclude that the State proveddefendant's death eligibility under section 9-1(b)(6) beyond areasonable doubt. Although we agree with defendant that, in hisconfession, he denied actually killing the victims or inflictinginjuries on the victims in the manner required by section9-1(b)(6), the trier of fact, as noted above, is not bound to accepta confession in its entirety. Indeed, the trier of fact may accept thedamaging admissions and discredit the exculpatory assertions inthe confession. Any discrepancy between defendant's confessionand the evidence is for the trier of fact to consider in assessing thedegree of credibility to afford the confession. People v. Hester, 39Ill. 2d 489, 511 (1968) overruled on other grounds, People v.Anderson, 113 Ill. 2d 1 (1986). Thus, in this case, the sentencingjudge, sitting as the trier of fact, had the right to discarddefendant's assertion that it was Battles who had fired all of thefatal shots. After reviewing the evidence in its entirety, we believethat this finding was supported by the evidence, as we detailbelow.

Although we acknowledge the closeness of the evidence, wefocus on several facts which we feel a trier of fact may have foundcompelling. Critically, the evidence revealed that defendantcontinually changed his story to the police investigators.Defendant told several stories to the police regarding hisknowledge of the events which transpired at Rucks' apartment.His version of the events changed each time police confronted himwith independent evidence indicating that defendant was lying tothem. As a result, the trier of fact may have believed the centralfeature of defendant's confession, that the killings took placeduring the course of a felony, but disbelieved the self-servingportions in which defendant placed blame for the actual killings onBattles. We note that defendant's confession was corroborated insome respects by his detailed knowledge of the scene of the crime.Moreover, the physical and forensic evidence also contradictedsome of the more self-serving portions of that confession. Forexample, the circuit judge at sentencing aptly described themurders as "executions," and our review of the forensic andphysical evidence supports that conclusion much more than itsupports the frenzied, spur-of-the-moment description of theshootings that defendant attributes to Battles. The medicalexaminer testified that Rucks's body bore traces of stippling,which indicated that she was shot at very close range. Thistestimony tends to contradict defendant's statement that Battlesshot Rucks when she was startled by his entrance into theapartment. The medical examiner's testimony established thatWilliams' body not only bore gunshot wounds, but wounds aroundher neck. Defendant initially told police that he had seen Williams'body in the upstairs bedroom and had touched her neck in order tosee if she had a pulse. In defendant's confession, he stated that hedid not go upstairs at all and did not see Battles shoot Williams.This tends to support the inference that defendant knew facts aboutthe condition of Williams' body that only her killer would haveknown. In our view, the inculpatory parts of defendant'sconfession were corroborated by sufficient evidence to support thejudge's finding that defendant was death eligible under section9-1(b)(6). Further, we believe that the judge's sub silentiodetermination to reject the self-serving portions of the confessionis not so manifestly unreasonable as to be subject to reversal uponreview.

In view of the foregoing, had appellate counsel challenged thesufficiency of the evidence with respect to the court's finding ofdeath eligibility on direct appeal, the challenge would not havebeen successful; accordingly, defendant's ineffective assistance ofappellate counsel claim must fail. See West, 187 Ill. 2d at 435. Thecircuit court, therefore, did not err in dismissing this claim.

Ineffective Assistance of Trial Counsel

Defendant next contends that his trial counsel was ineffectivefor failing to buttress his contention that the evidence wasinsufficient to prove defendant eligible for the death penalty.Defendant maintains that trial counsel should have used two policereports to corroborate defendant's contention that he was not thelast person to leave Rucks' apartment.

In determining whether a defendant has been denied effectiveassistance of trial counsel, Illinois courts adhere to the testenunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed.2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d504, 525-27 (1984). In order to establish ineffective assistance ofcounsel, a defendant must first demonstrate that his defensecounsel's performance was deficient in that "counsel made errorsso 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. In sodoing, a defendant must overcome the strong presumption that thechallenged action or inaction of counsel was the product of soundtrial strategy and not of incompetence. People v. Barrow, 133 Ill.2d 226, 247 (1989). Secondly, a defendant must demonstrate that,but for defense counsel's deficient performance, there is areasonable probability that the result of the proceeding would havebeen different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068. Both prongs of the Strickland test must besatisfied before a defendant can prevail on a claim of ineffectiveassistance of counsel. Courts, however, may resolveineffectiveness claims under the two-part Strickland test byreaching only the prejudice component, for lack of prejudicerenders irrelevant the issue of counsel's performance. See Peoplev. Erickson, 161 Ill. 2d 82, 90 (1994); Albanese, 104 Ill. 2d at 525-27.

Even if this court were to assume that counsel's decision notto use the police reports was incompetent, we do not believe thatdefendant could establish the requisite prejudice. The policereports reveal that an acquaintance of one of the victims called theapartment on December 2 between the hours of 10 and 11:45 a.m. The caller spoke with Rucks at 10 a.m., but could not get throughlater. Taking the affidavit as true, as we must, we still do notbelieve that this evidence, if presented to the trier of fact, wouldhave been sufficient to instill reasonable doubt as to defendant'sdeath eligibility. The evidence, in and of itself, does not tend toprove or disprove the central fact in contention, whether defendantwas the actual killer of the three victims.

Defendant also points to another police report that containsobservations that, at the time the police entered the apartment, theyfound food smoldering in a pot on the stove and the televisionturned on. We fail to see how this evidence would have supporteda finding that Battles killed the victims and not defendant. Atmost, the police report corroborates the evidence that waspresented at trial, i.e., that the victims were in the middle of aroutine day when they were set upon by their killer. Again, theevidence, in and of itself, does not tend to prove or disprove thecentral fact in contention, whether defendant was the actual killerof the three victims. Accordingly, we cannot say that the circuitcourt erred in dismissing this claim.

Ineffective Assistance of Counsel During Aggravation-Mitigation

Defendant next asserts that he was denied the effectiveassistance of counsel at sentencing because trial counsel failed toinvestigate potential sources of mitigation and failed to present theevidence that such an investigation would have uncovered.Specifically, defendant claims that trial counsel failed to discussany mitigation strategy with him and that counsel knew thatdefendant suffered from extreme emotional and mental distress atthe time of the offense. Defendant also claims that his trial counselfailed to contact several family members who would haveprovided testimony more favorable than that of the witnesscounsel did subpoena.

We begin our review of this issue by recounting the evidenceadduced during the aggravation/mitigation phase of the capitalsentencing hearing. The State introduced evidence of defendant'scriminal history, which dated back to 1964, when defendant wasconvicted of aggravated battery. Defendant was subsequentlyconvicted of attempted robbery, burglary, unlawful use ofweapons, robbery, aggravated battery/armed violence, andunlawful use of weapons. The State also presented evidence thatwhile defendant was in the county jail, awaiting trial on thecharges at issue in this case, he received four disciplinaryviolations.

In mitigation, defendant presented the stipulated testimony ofLt. Robert Kelly, a Cook County department of corrections officer.Kelly would have testified, if called, that he was employed byCook County as a correctional officer at the county jail, the facilitywhere defendant had been jailed for the past year. Defendantmanned the food wagon, delivering food to the other inmates.Defendant also mopped the floors. Defendant performed theseduties well and did not pose a threat to jail staff or inmates.

The defense also presented the stipulated testimony of CherylWinke, a psychologist with the department of corrections. Winke,if called to testify, would have stated that she examined defendantand found that defendant had a "beta I.Q. of 103." Moreover, itwas Winke's opinion that defendant appeared "spontaneouslyaggressive" rather than "criminally oriented." Defendant did notexhibit any psychopathology and appeared to function within thenormal range of intelligence.

A report by another correctional officer, L.A. Jones, was alsosubmitted to the circuit court as evidence in mitigation. Thesummary, dated in 1981, revealed that defendant wasrecommended for meritorious good time by the food servicedirector for satisfactory work performed. A memorandum, datedJune 26, 1981, also noted that defendant had returned keys thatanother inmate had given to him. Defendant told prison officialsthat he did not want to become involved. Defendant also won atrophy for weight-lifting.

Harold Anderson testified on defendant's behalf. Andersonstated that he knew defendant personally for 11 years and hadworked with him at a shoe store for four years. Anderson first metdefendant at the state penitentiary, while they were bothincarcerated. He knew defendant to be a "happy-go-lucky" personwho "always kept things alive." Anderson did not believe thatdefendant had drug or alcohol problems.

Defense counsel also called defendant's step-brother, Jerry, asa witness. Jerry was a reluctant witness whose testimony wascompelled by subpoena. Jerry stated that their mother took care ofboth Jerry and defendant as "best she could" and was a "goodmom." Jerry admitted that defendant was a "good" brother, butstated that defendant was "not his role model." Jerry did notapprove of defendant's friends. Jerry also stated that he knew thatdefendant took drugs, but that he never personally saw defendantingest drugs. When defendant was sober, Jerry felt that he coulddiscuss things with him, but when defendant "was other thansober," defendant would "get upset" and would be "pretty wild."In one instance, defendant pulled a knife on him. Jerry knew ofdefendant's past criminal history and stated that there "come[s] atime when you just blanked out because you don't want tocontinue hearing about it."

The circuit court, in sentencing defendant to death, noted that"the best that can be said" for the defendant was that defendant (i)helped a fellow convict find a job, (ii) earned statutory good timewhile incarcerated, and (iii) won a weight-lifting contest while inprison. The circuit court also observed that, although defendanthad family living in the Chicago area, the only family memberwho testified was his brother, Jerry. Moreover, with respect toJerry's testimony, the court stated that "the State could not havefound a better witness than Jerry Wiley if they wrote the scriptthemselves." Specifically, the court noted the following:

"This defendant has turned on everyone. He pulls a knifeon his family, he shoots, beats and mauls the public,establishing a criminal record of repeated violent conduct,he robs and kills his friends ***.

I believe the defendant Wiley is possessed of anabandoned and malignant heart and spirit and this Courtfinds no redeeming mitigating factor in this case."

The circuit court thereafter sentenced defendant to death.

As with alleged claims of ineffectiveness occurring during theguilt phase of the trial, the standard for determining whether adefendant has received constitutionally deficient representation ata capital sentencing hearing is governed by the standardenunciated in Strickland. As such, a defendant must show thatcounsel's performance fell below an objective standard ofreasonableness and that, absent the errors, the judge " 'would haveconcluded that the balance of aggravating and mitigatingcircumstances did not warrant death.' " People v. Henderson, 171Ill. 2d 124, 145 (1996), quoting Strickland, 466 U.S. at 695, 80 L.Ed. 2d at 698, 104 S. Ct. at 2069.

As noted, defendant claims that his attorney failed to discussmitigation strategy with him and that, as a result, counsel did notcall witnesses who were available and willing to testify on hisbehalf. These witnesses include defendant's daughter, GwenJones; his stepsister, Rosie Rhodes; and his sister, Juanita Jones.The affidavits of each of these women indicate that they wouldhave testified that defendant was a good person, who had anexemplary employment history. They would have stated thatdefendant was a good relation, but that he had a strainedrelationship with his stepfather. Defendant also points out thatcounsel should have adduced evidence of the history of mentalillness that runs through defendant's family. Further, counselknew, or should have known, that defendant was psychologicallyimpaired, and, as a result, should have had defendant examined byexperts. In support of these allegations, defendant attached to hispetition various documents that he claims to have recovered fromhis case file with the Cook County public defender's office. Thesedocuments indicate that defendant may have been suffering frompsychological disorders at the time of the murders. Defendant alsosupported his petition with the evaluations of mental healthexperts, secured by post-conviction counsel, which wouldcorroborate the prior diagnoses of head trauma and neurologicaldisorders.

It is well settled that counsel has a duty to make reasonableinvestigations for potential sources of mitigating evidence topresent at the capital sentencing hearing, or must have a legitimatereason for failing to make a particular investigation. SeeStrickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at2066; People v. Howery, 178 Ill. 2d 1, 55 (1997); People v.Orange, 168 Ill. 2d 138, 170 (1995); People v. Ruiz, 132 Ill. 2d 1,27 (1989). If mitigating evidence exists, counsel then has a duty tointroduce it in support of the defense. See Kubat v. Thieret, 867F.2d 351, 369 (7th Cir. 1989). However, where counsel hasconducted an adequate investigation, the failure to presentmitigating evidence does not by itself demonstrate deficientperformance. See Howery, 178 Ill. 2d at 55; People v. Ruiz, 177Ill. 2d 368, 385 (1997); Orange, 168 Ill. 2d at 167-68.

Generally, courts are highly deferential in reviewing counsel'sstrategic decisions regarding the presentation of mitigatingevidence. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95,104 S. Ct. at 2065; Orange, 168 Ill. 2d at 170. In fact, strategicchoices made after a thorough investigation of the law and factsrelevant to plausible options are virtually unchallengeable. SeeStrickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at2066. An informed decision by counsel not to present certainmitigating evidence may represent a valid strategic choice and isentitled to judicial deference, where the evidence is potentiallydamaging to the defendant. See Burger v. Kemp, 483 U.S. 776,793-95, 97 L. Ed. 2d 638, 656-57, 107 S. Ct. 3114, 3125-26(1987); Ruiz, 177 Ill. 2d at 385. Such deference is not warranted,however, where the lack of mitigating evidence presented is notattributable to strategy, but rather is the result of counsel's failureto properly investigate mitigation and prepare a defense. SeeHowery, 178 Ill. 2d at 56; Orange, 168 Ill. 2d at 170.Consequently, counsel's presentation of mitigation is not deemedto be a legitimate strategy without a reasonable investigation intomitigating circumstances. See Ruiz, 177 Ill. 2d at 385; see alsoHall v. Washington, 106 F.3d 743, 749-50 (7th Cir. 1997).

In our view, defendant's petition and supporting affidavitsmake a substantial showing that defense counsel's limitedpresentation of mitigating evidence at the sentencing hearing wasnot the result of a strategic decision preceded by a reasonableinvestigation. The record before this court contains no evidencethat allows us to conclude that counsel's decision not to presentadditional mitigating evidence was a strategic decision. Weacknowledge that when the drawbacks of potential mitigatingevidence appear obvious from the record, it can be assumed thatcounsel decided not to present evidence for such reasons. SeeRuiz, 132 Ill. 2d at 26. Here, however, there appears to be noobvious disadvantage in the additional mitigating evidence. Onthis record, we reject the State's claim that trial counsel's failureto present the additional mitigating evidence was a strategicdecision.

The mitigating evidence offered by trial counsel at thesentencing hearing portrayed defendant as someone who had goodparents, but who fell in with a bad crowd and got entangled indrugs and alcohol abuse. Information regarding defendant's needfor psychiatric counseling and history of mental illness might haveprovided the sentencing judge with additional information thatcould have influenced the choice of sentence. See People v. Perez,148 Ill. 2d 168, 188-89 (1992) (the State's theory that counselreasonably declined to introduce school reports at the sentencinghearing because they contained aggravating evidence that thedefendant was a "troublemaker" was not reasonable strategy wherecounsel did introduce a psychological report at sentencing whichportrayed the defendant as much worse than a "troublemaker").Moreover, the record before us reveals no attempt by counsel tosecure the testimony of any member of defendant's family otherthan his step-brother, Jerry. The affidavits of the family membershere reveal that they were willing to come and provide mitigatingevidence on defendant's behalf. Given the record before us, wedecline to assume that defense counsel's alleged failure to presentthe additional mitigating evidence represented a legitimatestrategic decision.

Having considered the performance prong of the Stricklandstandard, we must further examine whether defendant has made asubstantial showing that he was prejudiced by counsel's allegeddeficient performance. In establishing prejudice, defendant mustshow that there is a reasonable probability that, absent counsel'sdeficient performance, the sentencer would have concluded thatthe balance of aggravating and mitigating factors did not warrantdeath. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S.Ct. at 2068-69. We note that, in the past, this court has held thatdespite the violent nature of the offenses and the fact that adefendant had been convicted of multiple murders, counsel'sfailure to investigate and present mitigating evidence so prejudicedthe defendant as to warrant an evidentiary hearing. See Orange,168 Ill. 2d at 173; People v. Thompkins, 161 Ill. 2d 148, 167-68(1994). While we view some of the mitigation now beingproffered as cumulative to what was presented by counsel at thehearing, some of it was not. The only type of psychiatric testimonyadduced on defendant's behalf was the stipulated testimony ofCheryl Winke, who stated that defendant was average inintelligence and was aggressive. The evidence regardingdefendant's mental history that he contends was available tocounsel and should have been offered in mitigation paints a picturethat is at odds with that stipulated testimony.

We also note that the circuit court, in sentencing defendant todeath, specifically pointed out that with the exception of Jerry,members of defendant's family had not testified at sentencingdespite the fact that the trial took place in Chicago, where theylived. The implication was that defendant's family did not thinkenough of defendant to testify on his behalf. The affidavits heretend to show that other members of defendant's family wereavailable to testify such that Jerry Wiley, an unwilling witness,need not have provided the only mitigation voice from the family.We also cannot ignore the fact that Jerry, the only family memberwhom counsel did compel to testify in mitigation, was found bythe court to have been a perfect witness for the State.

In light of these circumstances, we cannot say, as a matter oflaw, that the outcome of the sentencing hearing would have beenthe same had the additional pieces of evidence been discoveredand presented by trial counsel. We hold that defendant's post-conviction allegations, liberally construed in his favor and takenas true in light of the original trial record, establish a substantialshowing of a violation of defendant's right to effective assistanceof counsel at the sentencing hearing. The circuit court improperlydismissed this claim without an evidentiary hearing.

CONCLUSION

The circuit court improperly dismissed defendant's claim ofineffective assistance of trial counsel with respect to counsel'sfailure to investigate and present evidence in mitigation at thecapital sentencing hearing. The circuit court properly dismissedthe remaining portions of defendant's petition. Accordingly, thecause is remanded to the circuit court for further proceedingsconsonant with this opinion.

Affirmed in part;

reversed in part;

cause remanded with directions.

The majority correctly reverses and remands this cause for ahearing on the issue of the effective assistance of counsel. Iconcur, therefore, in that narrow portion of the majority'sjudgment. However, for the reasons set forth in my dissents inPeople v. Hickey, No. 87286, slip op. at 39-43 (September 27,2001) (Kilbride, J., dissenting), and People v. Simpson, No. 85084,slip op. at 35-38 (September 27, 2001) (Kilbride, J., dissenting),I believe defendant's convictions and sentence should also be setaside because the trial proceedings were conducted without theminimum constitutional assurances established by the newsupreme court rules governing capital cases. As a result, this causeshould be remanded for a new trial conducted in compliance withthe new rules.

Additionally, I share Chief Justice Harrison's belief that thedeath sentence should not stand for at least one other reason.Specifically, the State initially failed to prove beyond a reasonabledoubt that Wiley was guilty of armed robbery. People v. Wiley,165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part anddissenting in part). Thus, even if defendant were not entitled to theconstitutional guarantees established by the new rules, his deathsentence should still be vacated because it was solely predicatedupon the armed robbery convictions.

Whether Wiley's attorney provided effective assistance at thesentencing hearing is not the dispositive issue on this appeal.Regardless of the effectiveness of the lawyer's representation, theproceedings which culminated in Wiley's sentence of death werefatally flawed because they did not comport with the new rulesenacted by our court governing the conduct of cases in which theState is seeking the death penalty. For the reasons set forth in mydissenting opinion in People v. Hickey, No. 87286, slip op. at 35-39 (September 27, 2001) (Harrison, C.J., dissenting), theprocedures contained in those rules are indispensable for achievingan accurate determination of innocence or guilt and are applicableto all capital cases now coming before us. Because Wiley wastried, convicted and sentenced without the benefit of the new rules,his convictions and death sentence should be vacated, and thecause should be remanded to the circuit court for a new trial.

Even if Wiley were not entitled to the benefit of the new rules,his sentence of death could not stand no matter what anevidentiary hearing on his post-conviction petition might reveal.That is so for two reasons. First, as I noted when this case wasbefore us on direct review (People v. Wiley, 165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part & dissenting in part))and as I reiterated in my dissent when we initially considered theappeal from the circuit court's order dismissing Wiley's post-conviction petition, the State failed to prove beyond a reasonabledoubt that Wiley was guilty of armed robbery. Because the armedrobbery convictions were the sole predicate for Wiley's deathsentence, the death sentence is invalid as a matter of law.

Second, for the reasons set forth in my partial concurrence andpartial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinoisdeath penalty law is void and unenforceable because it violates theeighth and fourteenth amendments to the United StatesConstitution (U.S. Const., amends. VIII, XIV) and article I, section2, of the Illinois Constitution (Ill. Const. 1970, art. I,