People v. Madej

Annotate this Case

People v. Madej, No. 77167

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to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 77167--Agenda 3--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GREGORY MADEJ,
Appellant.
Opinion filed June 19, 1997.

JUSTICE McMORROW delivered the opinion of the court:
Following a bench trial in the circuit court of Cook County,
defendant, Gregory Madej, was convicted of murder (Ill. Rev. Stat.
1979, ch. 38, par. 9--1(a)(1)), felony murder (Ill. Rev. Stat.
1979, ch. 38, par. 9--1(a)(3)), rape (Ill. Rev. Stat. 1979, ch. 38,
par. 11--1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38,
par. 11--3), and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par.
18--2). The circuit court sentenced defendant to death on the
murder and felony murder convictions. On direct appeal, this court
affirmed defendant's convictions and sentences. People v. Madej,
(1985). The United States Supreme Court
subsequently denied defendant's petition for writ of certiorari.
Madej v. Illinois, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 268
(1985), reh'g denied, 474 U.S. 1038, 88 L. Ed. 2d 586, 106 S. Ct. 608 (1985).
Defendant thereafter filed a pro se petition for relief
pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985,
ch. 38, par. 122--1 et seq.). His attorney filed an amended
petition several years later. The circuit court dismissed the
amended petition without an evidentiary hearing, and this appeal
followed. 134 Ill. 2d R. 651. We now affirm the order of the
circuit court.

BACKGROUND
Barbara Doyle's naked body was found in an alley on the north
side of Chicago in the early morning hours of August 23, 1981. She
had been stabbed and slashed approximately 34 times. A post-mortem
examination revealed the presence of numerous abrasions over
various parts of her body. Semen was found in her vagina and
rectum.
At approximately 5 a.m. on the day in question, two Chicago
police officers observed defendant drive through a posted stop sign
on Wilson Avenue in Chicago. The officers signalled for defendant
to pull over. Instead of stopping, defendant accelerated and
proceeded to lead the officers on a high-speed chase. Several other
police cars joined in the chase as defendant sped through red
lights in excess of 80 miles per hour. Defendant eventually drove
into an alley, where he tried unsuccessfully to escape on foot.
When the officers arrested defendant, his hands, head, shirt, pants
and undershorts were covered with blood. The automobile, which was
later determined to be Barbara's, was likewise stained with blood,
mostly in the area of the passenger's seat. Upon searching the
vehicle, police officers recovered a large knife as well as
Barbara's jeans and blouse, both of which were saturated with
blood.
At the police station, defendant explained to the officers
that he had been drinking at the Garage Inn tavern until 2:20 a.m.,
at which time he was thrown out for disorderly conduct. He then met
a friend named "Hojamoto," who was driving Barbara's car. When
defendant got into the vehicle to go "cruising," he noticed that
Hojamoto was wearing a bloody shirt. Hojamoto told defendant that
he had been in a gang fight. Defendant then switched seats with
Hojamoto, who jumped from the vehicle during the high-speed chase
with the police.
Police subsequently charged defendant with the murder of
Barbara Doyle and other felonies. Prior to trial, defendant waived
his right to have a jury determine his guilt or innocence.
At trial, Barbara's estranged husband, David Doyle, testified
that he and Barbara were drinking at the Garage Inn tavern until
2:15 a.m. The two left the bar and fell asleep in Barbara's car.
When he woke up, David noticed that defendant was in the driver's
seat, and it appeared to him that Barbara and defendant knew each
other. Defendant drove to the Golden Flame restaurant, where he and
Barbara went inside. David, meanwhile, walked home alone.
A waitress from the Golden Flame restaurant testified that she
served coffee to Barbara and defendant around 3:15 a.m. Another
witness testified that he saw defendant "tinkering" with Barbara's
car in an alley approximately 25 minutes later.
James Bunker, who knew defendant socially, also testified on
behalf of the State. Bunker told the court that he was at a party
with defendant on the night before Barbara's murder. According to
Bunker, defendant had taken a "Buck-type knife" from another person
at the party. In court, Bunker identified the knife which police
recovered from Barbara's car as the knife defendant had taken the
night before. Bunker further testified that "Hojamoto" was a
fictitious name commonly used by defendant and friends as a form of
greeting. In fact, defendant had in the past referred to Bunker as
"Hojamoto," and vice versa. When asked why the group used the name,
Bunker responded, "[It was] just like a greeting, you know ***. How
are you doing? Moto."
Defendant testified on his own behalf. In contrast to his
original statement to the police, at trial defendant claimed that
he had killed Barbara only after she drew a knife on him during a
drug deal that had gone awry. Defendant explained to the court that
he had been drinking alcohol and ingesting drugs throughout the
day. When he arrived at the Garage Inn tavern, he noticed Barbara,
whom he had previously known, sitting at the bar with her husband.
Barbara and her husband later left the tavern. Defendant,
meanwhile, continued to drink until he was thrown out for
disorderly behavior. He then approached Barbara's vehicle, and she
asked him if he would like to smoke some marijuana. The two of them
proceeded to get "high," and they later drove to the Golden Flame
restaurant. Upon leaving the restaurant, they smoked more marijuana
and stopped three times to purchase liquor. According to defendant,
he had by that time consumed at least two cases of beer, drank some
whiskey, smoked one ounce of marijuana, ingested 10 quaaludes, and
injected Talwin.
Defendant further testified that he and Barbara stopped twice
to engage in consensual sexual relations. Afterwards, Barbara asked
defendant if he would sell her some marijuana. He agreed, and
placed seven one-ounce bags of marijuana on the vehicle's console.
After paying for one of the bags, Barbara attempted to steal two
more. A struggle ensued, and she eventually brandished a knife and
began attacking him. At some point in the struggle, defendant
gained control of the knife and began stabbing Barbara, realizing
what he was doing only after he saw that she was bleeding from her
chest. He then removed Barbara's body from the car and sounded the
car's horn (apparently in an attempt to summon help). He drove to
a friend's house, but left when no one answered the door. Defendant
next recalled being chased by the police, but could not remember
anything else other than being taken into custody.
At the close of the evidence, the circuit court found
defendant guilty of all charges. On the following day, the court
ruled that defendant was eligible for the death penalty (720 ILCS
5/9--1(b)(6)(c) (West 1994) (commission of first degree murder in
the course of another felony)) and that the evidence in mitigation
did not outweigh the aggravating factors. Accordingly, the court
imposed a sentence of death. This court affirmed that decision on
direct appeal. People v. Madej, (1985).

ANALYSIS
The matter is now before this court on dismissal of
defendant's amended petition for relief under the Post-Conviction
Hearing Act (725 ILCS 5/122--1 et seq. (West 1992)). A post-
conviction action is a collateral attack on a prior conviction and
sentence. People v. Mahaffey, , 452 (1995). The
scope of the proceeding is limited to constitutional matters which
have not been, nor could have been, previously adjudicated. People
v. Whitehead, 169 Ill. 2d 355, 370 (1996). Any issues which could
have been raised on direct appeal, but were not, are waived (People
v. Ruiz, , 9 (1989)) and any issues which have already
been decided by a reviewing court are barred by the doctrine of res
judicata (People v. Silagy, , 365 (1987)). In
addition, a defendant is not entitled to an evidentiary hearing
unless the allegations set forth in the petition, as supported by
the trial record or accompanying affidavits, show that a
constitutional right has been violated. People v. Caballero, , 259 (1989). In making that determination, all well-
pleaded facts in the petition and affidavits are to be taken as
true. Caballero, 126 Ill. 2d at 259. Upon review of a dismissal of
a petition without an evidentiary hearing, the trial court's
decision will not be disturbed absent an abuse of discretion.
People v. Whitehead, 169 Ill. 2d 355, 370-71 (1996).

Ineffective Assistance of Counsel During Sentencing
A. Failure to Present Mitigating Evidence
Defendant first argues that he was denied effective assistance
of counsel during the aggravation/mitigation phase of the
sentencing hearing due to his attorney's failure to investigate
potential mitigating evidence prior to trial. According to
defendant, counsel decided to forgo such an investigation under the
mistaken belief that there would be sufficient time to prepare a
mitigation defense if defendant were found guilty. Once the court
reached its verdict, however, the State requested an immediate
hearing on the death penalty in order to accommodate out-of-state
members of the victim's family. Although the court denied the
State's request for a hearing instanter, the court nevertheless
scheduled the hearing for the following day. Defendant claims that
such a short continuance, coupled with his attorney's lack of
pretrial preparation, prejudiced his ability to put on an adequate
mitigation defense. In support of this contention, defendant points
out that his entire defense consisted of a brief statement to the
court. In the statement, defendant merely noted that he had the
opportunity to use drugs and alcohol while in jail, but had
declined to do so. He further stated that if he were ever released
from prison he would never use drugs or alcohol again. He also
acknowledged that he had been using drugs since his teenage years,
and that drugs "had the greatest part to do with the case." When
counsel asked him whether there were "any events occurring in [his]
life or ... in [his] home situation that may have been a
contributing factor in [his] being heavily involved in drugs," and
hence a contributing factor in Barbara's murder, defendant
explained, "Well, it was hard to cope with my parents [because
they] always did have something against the drugs." Defendant then
expressed remorse for his crimes. No other evidence was offered in
mitigation.
Defendant now argues that had his trial counsel undertaken a
proper investigation prior to trial, he would have discovered "a
wealth of available mitigating evidence" which could have been
presented to the trial court. That evidence, appended to
defendant's amended petition for post-conviction relief, can be
summarized as follows.
Defendant was born in Poland and came to the United States
while still an infant. His parents, Helena and Kazamier Madej, were
strict disciplinarians who physically punished their children's
disobedience. Helena Madej acknowledges that her husband would
often beat defendant, and that her husband was a violent person
with a drinking problem. Jill Miller, a forensic social worker who
submitted a report on defendant's behalf, believes that "Kazamier
Madej's chronic abuse of alcohol during [defendant's] childhood,
and into his adult years, had a significant impact on the
development of [his] personality, and on his behavior." She further
maintains that defendant exhibits "many of the characteristics of
adult children of alcoholics, including: low self-esteem;
difficulty trusting others; difficulty establishing or maintaining
intimate relationships; denial and repression of feelings; poor
problem solving skills; impulsiveness; and increased incidence of
alcohol or drug abuse." According to Miller, defendant continues to
show "some of the characteristics of an adult chid [sic] of an
alcoholic."
The evidence further shows that defendant began using drugs
and alcohol during his early teenage years. He soon dropped out of
high school and entered the military. Despite his continued use of
drugs and alcohol while in the army, defendant eventually earned
his GED certificate and was later honorably discharged. Upon
returning to Chicago, defendant attended Triton College for two
semesters before withdrawing due to his first arrest in November
1977. Defendant later obtained employment at an automobile service
station. That employment ended, however, following his second
arrest in July 1978. Defendant spent the next seven months
travelling around the country, eventually finding part-time work in
California "doing odd jobs." He returned to Chicago in February
1979 and was soon arrested again. He remained in jail until October
1980. After his release, defendant worked for a short time at
Methode Electronics. He was laid off in April 1981 due to a "phase
down" of Methode's Chicago plant. He worked briefly for three more
employers before his final arrest for the instant offense.
The petition further alleges that defendant suffers from both
psychological and neurological impairments. Dr. James O'Donnell, an
assistant professor of pharmacology, believes that defendant is a
drug addict and an alcoholic whose "atrophy of brain tissue [has
led] to an impairment in his neuropsychological function; in other
words, his ability to think and reason." Dr. Linda Wetzel, the
director of Neuropsychological Assessment at the West Side V.A.
Hospital, also believes that defendant suffers from "mild to
moderate" atrophy of the brain tissue. In her affidavit, she
explains that defendant shows signs of attention deficit and
impaired verbal learning ability, and that he has experienced
headaches and depression during his incarceration. Dr. Dan L.
Zimbroff, a board certified psychiatrist and neurologist, opines
that defendant has been in need of psychiatric treatment since he
was 14 years old. He further postulates that defendant was
"physically and verbally abused by his sadistic and alcoholic
father who show[ed] no signs at all of being a competent and
empathic parent in any way."
Finally, defendant claims that he has had an excellent
incarceration record. For example, he notes that he had been both
compliant and responsible during his confinement at Cook County
jail while awaiting trial for the instant offense. During that
time, he developed "some insight" into his behavior and recognized
the negative effects of drugs and alcohol. In addition, he has,
since his conviction for Barbara's murder, adjusted well to his
incarceration at Menard State Penitentiary.
According to defendant, his attorney's failure to investigate
his background and present the foregoing evidence "amounted in
every respect to no representation at all." Blake v. Kemp, 758 F.2d 523, 534 (11th Cir. 1985). He describes his attorney's effort in
this regard as a "mere sham," adding that counsel simply "[gave] up
and abandon[ed] any attempt to present mitigating evidence." He
concludes that his counsel was incompetent, and that as a result he
was denied his constitutional right to effective assistance of
counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,
8.
In response, the State points our that this court previously
rejected defendant's claim of ineffective assistance of counsel
based on his counsel's failure to present sufficient mitigating
evidence. People v. Madej, (1985). On direct
appeal, this court held that defendant did not meet his burden of
demonstrating that the result of the sentencing hearing would have
been different. Madej, 106 Ill. 2d at 215-16. The State insists,
therefore, that the defendant is now barred from relitigating that
issue under the doctrine of res judicata. People v. Silagy, , 365 (1987). We disagree.
As defendant points out, most of the evidence submitted in
support of the amended petition for post-conviction relief did not
appear in the original trial record and was not available to
appellate counsel on direct appeal. For example, the affidavits of
Drs. O'Donnell, Wetzel and Zimbroff, all of which offer expert
opinions on defendant's psychological and neurological impairments,
were presented for the first time in defendant's amended petition
for post-conviction relief. Thus, when the court held on direct
appeal that defendant failed to demonstrate that the result of the
sentencing proceeding would have been different, it did so solely
on the basis of the record as it then existed. The record now
contains substantial mitigation evidence which, defendant claims,
should have been presented at the original trial, but was not.
Under these circumstances, we have repeatedly held that procedural
fairness dictates that the rules of res judicata be relaxed, and
that the merits of defendant's claim be considered. See People v.
Henderson, 171 Ill. 2d 124, 150-51 (1996); People v. Eddmonds, , 528 (1991); People v. Orange, , 166-67
(1995); People v. Thompkins, , 166 (1994).
Consequently, we decline to utilize the doctrine of res judicata to
bar defendant's claim of ineffective assistance of counsel.
Res judicata notwithstanding, the State alternatively argues
that defendant knowingly waived his right to present additional
mitigating evidence when he told his counsel and the trial court
that he did not want any other witnesses to testify on his behalf.
The record here discloses that after defendant testified, the court
asked defense counsel whether any other witnesses would be called
to the stand. Counsel replied, "No, your Honor. I have been
instructed by my client that he wishes to have no one else called
in his defense ***." The court then asked defendant whether he
wished to present any other witnesses or testimony "in any form."
Defendant replied, "No, sir."
Relying on People v. Emerson, (1987), the
State maintains that defendant should not be allowed to complain of
his counsel's failure to present additional mitigating evidence
because defendant himself was the reason for the lack of the
evidence in the first place. In Emerson, the defendant claimed that
he was denied effective assistance of counsel because his attorney
did not present any evidence in mitigation. The court rejected that
argument, in part, on the ground that Emerson had specifically
instructed his attorney not to do so. Noting that "counsel's
conduct at the sentencing hearing was consistent with the
defendant's stated wishes," this court held that Emerson could no
longer complain of his counsel's failure to present evidence at the
sentencing hearing. Emerson, 122 Ill. 2d at 440.
We note, however, that during the pendency of this appeal, the
federal courts granted Emerson's request for habeas corpus relief
on the basis that his counsel's performance at sentencing was
constitutionally deficient. United States ex rel. Emerson v.
Gramley, (N.D. Ill. 1995), aff'd, 91 F.3d 898 (7th
Cir. 1996). Contrary to the position taken by this court, the
Seventh Circuit Court of Appeals held that "Emerson's waiver of his
procedural rights at the sentencing hearing [could not] be
considered a knowing waiver to which he should be held." Emerson,
91 F.3d at 906. The court reached this conclusion by noting that
Emerson's counsel had not undertaken any investigation into the
possible existence of mitigating evidence. Without such an
investigation, the court stressed, defense counsel could not
adequately advise Emerson on whether he should present evidence in
mitigation. Emerson, 91 F.3d at 906. The Seventh Circuit further
emphasized that neither counsel nor the trial court warned Emerson
of "the fell consequences of failing to establish some mitigating
circumstances without which (because the evidence of aggravating
circumstances was overwhelming) a sentence of death was certain
unless the jury disobeyed the judge's instructions." Emerson, 91 F.3d at 906. As a result, the decision to forgo the presentation of
mitigating evidence could not be considered a "knowing" waiver;
therefore, Emerson was entitled to a new sentencing hearing.
In light of the recent developments in Emerson, defendant
submits that he, too, could not have knowingly waived his right to
present additional mitigating evidence. Defendant points out that
his attorney, like Emerson's, did not conduct an investigation into
possible sources of mitigation. He further states that the
constitutional right to effective assistance of counsel would be
meaningless if courts were to condone an attorney's failure to
investigate and prepare for a capital sentencing hearing. We agree.
The record in the instant case reveals that although defendant
understood the concept of mitigation, he was never advised of the
considerable quantity of mitigating evidence available for
presentation to the court, including the opinions of several expert
witnesses who now believe that defendant suffers from various
psychological and neurological impairments. The reason defendant
was not informed of this evidence was because his attorney never
conducted an investigation into possible sources of mitigation.
Without such an investigation, defense counsel was not in a
position to provide defendant with a realistic assessment of all
available options. Thus, when defendant indicated to the trial
court that he did not wish to present any other testimony at the
sentencing hearing, he did so without a full appreciation of the
nature and extent of the mitigating evidence that could be
presented on his behalf. See Emerson, 91 F.3d 898. Indeed, that it
is questionable whether defendant fully understood the potential
consequences of his decision to forgo the presentation of
additional mitigating evidence can be readily seen from the paucity
of evidence that he did present. Defendant's entire mitigation
defense consisted of his own statement to the court as well as a
few answers to questions posed by counsel, all of which now
comprise approximately eight pages of transcript. Such meager
testimony at a capital sentencing hearing can hardly be deemed the
equivalent of a fully presented mitigation defense, one that is
complete with the testimony of relatives, colleagues and
psychological experts. In fact, defendant's brief, self-serving and
at times rambling account of his drug usage, which in this case is
tantamount to the presentation of no evidence at all, clearly
demonstrates that defendant failed to appreciate the gravity of his
decision to limit his mitigation defense. This failure is critical,
for as this court stated in People v. Perez, , 194
(1992), "[m]itigating evidence is extremely important under the
Illinois capital sentencing scheme." Accordingly, we reject the
State's argument that defendant "knowingly" waived the right to
present additional evidence at the sentencing hearing under the
circumstances of this case.
Having found waiver inapplicable, we now turn to the merits of
defendant's claim of ineffective assistance of counsel. The
standard for determining whether a defendant has been deprived of
his or her right to effective assistance of counsel at a capital
sentencing hearing is governed by Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under
Strickland, a defendant must show that counsel's performance fell
below an objective standard of reasonableness and that, absent the
errors, the judge " `would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.' "
People v. Henderson, 171 Ill. 2d 124, 144 (1996), quoting
Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at
2069. Applying this standard to the case at bar, we initially
determine whether counsel's decision to forgo an investigation into
defendant's background, including the possibility that defendant
may have suffered from psychological and neurological impairments,
was supported by reasonable professional judgment.
In People v. Orange, 168 Ill. 2d, 138, 149 (1995), we held
that an attorney "has only a duty to make reasonable investigations
or to make a reasonable decision which makes particular
investigations unnecessary, and the reasonableness of a decision to
investigate is assessed applying a heavy measure of deference to
counsel's judgment." People v. Orange, , 149 (1995),
citing People v. Harris, , 158 (1989). We recognized
in that case that an attorney's decision not to pursue an endless
investigation into defendant's background could, under some
circumstances, be deemed tactical. Orange, 168 Ill. 2d at 149. For
instance, where the facts and circumstances do not reveal a sound
basis for further inquiry into a particular area, an attorney's
decision to limit the scope of the investigation will not be deemed
ineffective representation. Orange, 168 Ill. 2d at 150, citing
People v. Holman, , 371 (1995). On the other hand,
" `case law rejects the notion that a "strategic" decision can be
reasonable when the attorney has failed to investigate his options
and make a reasonable choice between them.' " Baxter v. Thomas, 45 F.3d 1501, 1514 (11th Cir. 1995), quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991). In other words, the decision not to
investigate must be the product of an informed judgment. See
generally Orange, 168 Ill. 2d at 149.
Our review of the record in the instant case reveals that
counsel's decision to forgo an investigation was neither the
product of an informed judgment nor a strategic decision reached
after weighing all available options. Rather, as counsel explained
in his affidavit, the sole reason he had not made an investigation
prior to trial was because he "expected to get sufficient time to
investigate, prepare and present mitigation" in the event defendant
would be found guilty. He then had less than 24 hours to prepare
his mitigation evidence after the court found defendant guilty of
all charges. Courts from other jurisdictions have, under similar
circumstances, proclaimed that "[i]t should be beyond cavil that an
attorney who fails altogether to make any preparations for the
penalty phase of a capital murder trial deprives his client of
reasonably effective assistance of counsel by any objective
standard of reasonableness." Blake v. Kemp, 758 F.2d 523, 533 (11th
Cir. 1985); see also Blanco v. Singletary, 943 F.2d 1477, 1501
(11th Cir. 1991); Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.
1989). We agree with the Blake court and hold that counsel's
failure in this case to conduct an investigation into potential
sources of mitigation fell below the minimum level of competent
representation. We emphasize, however, that our decision on this
issue is limited solely to the unique facts of this case. We
further caution that if a " `decision not to mount an all-out
investigation ... [is] supported by reasonable professional
judgment,' it is not ineffective assistance of counsel." Stewart v.
Gramley, 74 F.3d 132, 135 (7th Cir. 1996), quoting Burger v. Kemp,
, 794, 97 L. Ed. 2d 638, 657, 107 S. Ct. 3114, 3126
(1987).
We next determine whether defendant suffered any prejudice as
a result of his attorney's failure to conduct an adequate
investigation, and hence his failure to present a full mitigation
defense. We note that defendant's amended post-conviction petition
was ruled upon by the same judge who presided over the trial in
this matter. He was also the same judge who sentenced defendant to
death. After thoroughly reviewing all of the mitigation material
submitted in support of the amended petition, the trial judge
denied relief without an evidentiary hearing. The judge ruled that
had such evidence been presented at the original hearing, the
sentencing outcome would not have been different. Having undertaken
our own review of the record, we do not believe that the trial
judge abused his discretion in this regard.
At the time of sentencing, defendant stood convicted of the
brutal rape and murder of Barbara Doyle. Medical evidence presented
at trial revealed the presence of semen in Barbara's vagina and
rectum. The report of the post-mortem examination further indicated
that defendant had stabbed and slashed Barbara 34 times over
various parts of her body. Most of the more serious wounds were
located on her head, face and chest. The medical examiner also
found several abrasions at the bridge of her nose and on her chin.
In addition to the rape, sodomy and repeated stabbing of the
victim, the State also introduced defendant's criminal record into
evidence. Defendant had been convicted of robbery, possession of a
stolen motor vehicle, and two separate incidents of criminal
trespass to a vehicle. Based on the foregoing evidence, the circuit
court determined that the only appropriate sentence was death. As
the court noted at the original sentencing hearing, "[t]he repeated
acts of savagery perpetrated on the middle-aged woman requires a
sentence to meet the severity of the crime against her. Any less,
or term of years in the penitentiary[,] would encourage other
criminals to repeat this kind of behavior on innocent victims in
our society."
In contrast to the State's evidence, defendant, in his amended
post-conviction petition, submitted expert testimony relating to
his chronic use of drugs and alcohol. Defendant further sought to
show the negative effects that such abuse had on his psychological
and neurological health. However, this court, like others, has
recognized that a history of substance abuse is a double-edged
sword at the aggravation/mitigation phase of the penalty hearing.
For example, in People v. Shatner, 174 Ill. 2d 133, 159 (1996), we
stated that "[s]imply because the defendant views his drug abuse
history as mitigating does not require the sentencer to do so." In
Shatner, as in the instant case, defendant claimed that the
sentencing judge should have found that defendant's history of drug
abuse was a factor relating to his criminal behavior. We rejected
that argument on the following grounds:
"Underlying this premise is that since drugs are partly
to blame for his actions, the defendant is somehow less
culpable and should not suffer the ultimate penalty for
his criminal behavior. Simply stated, the sentencing
judge was under no legal obligation to subscribe to this
suggestion. To the contrary, the sentencing judge was
free to conclude, under the circumstances, that
defendant's drug history simply had no mitigating value
but was, in fact, aggravating." Shatner, 174 Ill. 2d at
160.
Consistent with our opinion in Shatner, we do not believe that
the trial judge in this case was required to view the purported
negative effects of defendant's chronic abuse of drugs and alcohol
as a mitigating factor.
Furthermore, with respect to the impairment of defendant's
neurological functions, this court has repeatedly held that
"information about a defendant's mental or psychological
impairments is not inherently mitigating." People v. Tenner, 175 Ill. 2d 372, 382 (1997), citing People v. Sanchez, 169 Ill. 2d 472,
491-92 (1996). As we explained in Tenner, "[a]t sentencing, a judge
or jury considering evidence of this nature might view the
information as either mitigating or aggravating, depending, of
course, on whether the individual hearing the evidence finds that
it evokes compassion or demonstrates possible future
dangerousness." Tenner, 175 Ill. 2d at 382 (citing People v.
Foster, 168 Ill. 2d 465, 491 (1995), People v. Mahaffey, , 467-68 (1995), and People v. Jones, , 272-73
(1991)). Even if we were to consider defendant's alleged
psychological and neurological impairments as mitigating factors,
"[m]itigation evidence of a defendant's cognitive abilities and
mental health does not preclude imposition of a death sentence when
that evidence is outweighed by aggravating evidence." People v.
Pulliam, No. 78406, slip op. at 16 (April 17, 1997), citing People
v. Wilson, , 460 (1994).
Similarly, the remainder of the evidence offered by defendant
carries little, if any, weight in terms of mitigation. For example,
defendant's employment history was erratic at best. We note that
defendant never held a job for very long, often being fired as a
result of his arrests for various crimes. As to defendant's
somewhat troubled childhood, the trial court in this case was free
to conclude "that it simply had no mitigating value but may have
been, in fact, actually aggravating." People v. Ward, , 337 (1992). Moreover, "evidence that a defendant has been
physically or sexually abused *** does not invalidate a death
sentence when outweighed by aggravating evidence." People v.
Pulliam, slip op. at 16, citing People v. Taylor,
(1995). Finally, although defendant's good behavior during
incarceration may be viewed as a mitigating circumstance, we do not
consider that evidence sufficiently offsetting in light of the
aggravating circumstances in this case.
In view of the foregoing, we hold that defendant has not
established that the outcome of his sentencing hearing would have
been different if his attorney had investigated and prepared more
adequately for the aggravation/mitigation phase of the trial.
Therefore, the trial court did not abuse its discretion in denying
defendant's amended petition for post-conviction relief on the
grounds that defendant's attorney provided ineffective assistance
of counsel at the sentencing hearing.

B. Failure to Inform Defendant of Nonunanimity Rule
Defendant next argues that his counsel was ineffective in
failing to advise him, prior to waiving a jury for sentencing, that
the jury's decision to impose the death penalty had to be
unanimous. This contention is similar to an argument defendant
raised on direct appeal. There, defendant claimed that the trial
court erred by accepting his waiver of the jury without first
informing him of the "nonunanimity" rule, as it is sometimes
referred to. We rejected that argument in toto, noting that this
court had already "declined *** to adopt a requirement that trial
courts must inform a defendant of the jury unanimity requirement
before accepting jury waivers at capital sentencing hearings."
People v. Madej, , 220 (1985), citing People v.
Albanese, (1984).
Now, in a slightly different argument, defendant maintains
that his attorney, as opposed to the trial court, should have
informed him of the nonunanimity rule. Defendant claims that his
attorney's failure to do so constituted ineffective assistance of
counsel. As the State correctly points out, however, this court
rejected a similar contention in People v. Ruiz,
(1989). In that case, this court stated in pertinent part:
"[W]e do not consider that trial counsel was
ineffective for failing to advise the defendant of the
nonunanimity rule, assuming that allegation to be true.
The defendant knew of his right to have a jury during the
sentencing phase of the proceedings, and the record
reveals that he waived the right knowingly and
voluntarily. The defendant does not allege that he would
not have waived his right to a jury had he known of the
nonunanimity rule." Ruiz, 132 Ill. 2d at 21.
Defendant attempts to circumvent the holding in Ruiz by focusing
solely on the last sentence quoted above. Defendant here claims
that, unlike the defendant in Ruiz, he would not have waived his
right to be sentenced by a jury had his attorney informed him of
the nonunanimity rule.
In our view, defendant places too much emphasis on the
isolated comment in Ruiz concerning defendant's failure to allege
that he would have waived a jury at the sentencing hearing. The
court's holding in Ruiz, that counsel was not ineffective for
failing to inform his client that a jury had to reach a unanimous
decision, was based primarily on this court's rejection of "a
requirement that a defendant be expressly advised of the
nonunanimity rule *** as a condition of a valid jury waiver at a
capital sentencing hearing." Ruiz, 132 Ill. 2d at 20-21 (citing
People v. Erickson, (1987), and People v. Madej,
(1985)). The holding in Ruiz was not limited solely
to defendants who failed to allege that they would have opted for
a jury. Thus, the fact that defendant here claims he would have
requested a jury had he known of the nonunanimity rule does not
compel a different result from that of Ruiz. Therefore, we reject
defendant's contention that he was denied effective assistance of
counsel because his attorney failed to advise him that a sentencing
jury had to reach a unanimous decision. Ruiz, 132 Ill. 2d at 21.

C. Error in Stipulating to Death Eligibility
Defendant further claims that his counsel rendered ineffective
representation at the sentencing hearing when counsel stipulated
that defendant knew, at the time he killed Barbara, that his
conduct created a strong probability of death. The record reflects
that during the eligibility phase of the sentencing hearing,
defense counsel specifically told the court that "[i]t is our
position that [defendant] did not murder the individual
intentionally as the act created--that he did create a strong
probability of death, that was his testimony at trial." Defendant
points out that, in order for him to be death eligible, the State
had the burden of proving beyond a reasonable doubt that defendant
acted either "intentionally or with the knowledge that the acts
which caused the death created a strong probability of death or
great bodily harm." See Ill. Rev. Stat. 1985, ch. 38, par. 9--
1(b)(6)(b). Defendant now argues that his counsel erred by
conceding that defendant knew that his acts created a strong
probability of death when in fact defendant had proceeded at trial
under the theory of diminished mental capacity.
Initially, we reject this argument as being waived due to
defendant's failure to raise the issue on direct appeal. See People
v. Ruiz, , 9 (1989). Defendant, however, argues in his
brief that his appellate counsel was ineffective for omitting this
argument when the matter previously came before this court. Thus,
we will address the merits of the claim in the context of
ineffective assistance of appellate counsel. People v. Foster, 168 Ill. 2d 465, 474 (1995).
Because claims of ineffective appellate counsel are reviewed
under the Strickland standard (see People v. Coleman, , 523 (1995)), we need not determine whether counsel's
performance fell below an objective standard of reasonableness if
defendant cannot show prejudice resulting from the actions of his
counsel. People v. Smith, No. 77695, slip op. at 6-7 (March 20,
1997) (noting that counsel's concession of death eligibility is
subject to the analysis employed in Strickland rather than United
States v. Cronic, , 80 L. Ed. 2d 657, 104 S. Ct. 2039
(1984)). After reviewing the record in the instant case, we do not
believe that defendant has made the requisite showing of prejudice
to him caused by ineffective assistance of counsel. Significantly,
the trial judge in this case did not base his findings of death
eligibility on the basis of counsel's statement, but rather on the
evidence presented at trial. The trial judge noted: "I believe that
those factors [rendering defendant death eligible] have been
clearly established in overwhelming nature by the State's evidence
***." From these comments, it is clear that defendant's contention
that his eligibility hearing might have been different had his
attorney not conceded his state of mind is doubtful at best.
Because counsel's purported concession to the court had little, if
any, impact on the judgment in this case, defendant has not shown
that he suffered any prejudice. "An 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. Consequently, we do not find that defendant received
ineffective assistance of counsel in this regard.

Ineffective Assistance of Counsel at Trial
A. Failure to Advise Defendant of Right Not to Testify
We are next asked to consider whether defendant was denied
effective assistance of counsel when his trial attorney told him
that he had to testify during the guilt and innocence stage of the
proceedings. According to defendant, counsel never explained to him
that he had a right not to testify. See Rock v. Arkansas, , 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987). Nor did counsel
explain to him the implications of his decision to testify in his
case in chief. See United States v. Teague, 953 F.2d 1525 (11th
Cir. 1992). Instead, counsel merely told him that he "must testify
*** but gave no reasons." As a result, "not only was he denied his
constitutional rights, but his testimony provided the prosecution
with the only eyewitness in an otherwise circumstantial case."
In response, the State offers three arguments to counter
defendant's allegation that he had no input into counsel's decision
to put him on the stand. First, the State argues that defendant
testified voluntarily. In support of this argument, the State
points out that defendant never told the trial judge that he did
not want to testify, nor did he ever complain of coercion or
threats. In addition, the State directs our attention to closing
arguments, where defense counsel specifically told the court, "We
heard [defendant] testify, and he did so voluntarily and on his own
accord ***." The State concludes that "[a]lthough defense counsel
may have told defendant that he `must' testify, this simply meant
that it was in defendant's best interests to testify, given the
evidence at hand."
Although facially appealing, we do not believe that we can, at
this juncture in the litigation, decide this issue in the manner
suggested by the State. As noted at the outset, the matter is
before this court on dismissal of defendant's amended petition for
post-conviction relief without an evidentiary hearing. Given this
procedural posture of the case, all well-pleaded facts in the
petition and affidavits are to be taken as true. People v.
Caballero, , 259 (1989). Accordingly, we must accept
as true defendant's averment that he played no part in counsel's
decision to have him take the stand.
The State next responds that counsel's decision to have
defendant testify can be viewed merely as trial strategy. According
to the State, counsel knew that the evidence against defendant was
overwhelming and that the only potentially successful defense was
either (i) a claim of lack of intent due to the ingestion of drugs
and alcohol or (ii) a claim of self-defense. In either case,
defendant's testimony would be necessary since he was the only
eyewitness to the crime. The State further asserts that defendant's
attorney could later utilize that same testimony at sentencing in
order to show that defendant lacked the requisite mental state for
death eligibility. In the State's view, because the decision to
have defendant testify constituted a matter of trial strategy,
counsel cannot be deemed ineffective. We disagree with this
argument for the following reasons.
A defendant's right to testify at trial is a fundamental
constitutional right, as is his or her right to choose not to
testify. See Rock v. Arkansas, , 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987). It is now generally recognized that the decision
of whether to testify ultimately rests with the defendant. People
v. Brocksmith, , 227 (1994); People v. Thompkins,
, 177 (1994). Therefore, it "is not one of those
matters which is considered a strategic or tactical decision best
left to trial counsel." People v. Seaberg, 262 Ill. App. 3d 79, 83
(1994), citing Jones v. Barnes, , 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312 (1983); People v. Wilson, 146 Ill.
App. 3d 567, 580 (1986), rev'd in part on other grounds, 121 Ill. 2d 585 (1988); People v. Campbell, 129 Ill. App. 3d 819, 821
(1984). See also People v. Ramey, , 54 (1992); People
v. Anderson, 266 Ill. App. 3d 947, 956 (1994); People v. Daniels,
230 Ill. App. 3d 527, 535 (1992); People v. von Perbandt, 221 Ill.
App. 3d 951, 954-55 (1991); People v. Dredge, 148 Ill. App. 3d 911,
913 (1986). Consequently, even though counsel's decision requiring
defendant to testify in this case may be explained in terms of
trial strategy, it cannot be justified on those grounds. Only the
defendant may waive his right to testify. Seaberg, 262 Ill. App. 3d
at 83; see also Ramey, 152 Ill. 2d at 54.
Finally, the State argues that even if we were to hold that
counsel could not unilaterally require defendant to testify under
the guise of trial strategy, defendant has still failed to satisfy
the prejudice component of the Strickland analysis. We agree. We do
not believe that the absence of defendant's testimony would have
produced a different outcome in light of the overwhelming evidence
presented at trial. The voluminous and largely uncontroverted
evidence revealed that defendant was driving the victim's car over
80 miles an hour as he led police officers on a high-speed chase.
When the police finally apprehended defendant, he was covered with
blood. The murder weapon, which was later identified by a State's
witness as the knife defendant had previously taken from a party,
was found in the victim's car. The victim's bloody blouse and pants
were also found in the car. Defendant's own explanation to the
police as to how he came to be in the victim's car proved to be a
sham. James Bunker, testifying that "Hojamoto" was a fictitious
character, completely undermined defendant's fabricated explanation
to the police, as did the testimony of several other witnesses who
placed defendant with the victim prior to her death. The State
aptly points out that "[e]very bit of this evidence, save for the
impeachment evidence during defendant's cross-examination, would
have been introduced, regardless of whether defendant testified,
and, in fact, was introduced during the People's case-in-chief."
Collectively, this evidence leads to the one, inescapable
conclusion that defendant was the person who committed these
crimes.
In view of the compelling nature of the foregoing evidence,
defendant cannot demonstrate that he suffered prejudice from his
attorney's alleged coercion to testify. As a result, the circuit
court did not err in dismissing the claim of ineffective assistance
of counsel on this ground. See Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

B. Failure to Corroborate Diminished Capacity Defense
Defendant next maintains that even if this court were to
disagree with him concerning counsel's decision to have him
testify, the record nevertheless demonstrates that his attorney
provided ineffective representation throughout the remainder of the
trial. For example, defendant contends that once "the decision was
made to have [him] testify it was imperative that his testimony be
corroborated and that independent lay and expert testimony
supporting a defense of diminished capacity be presented." In
support of this argument, defendant suggests that his attorney
should have questioned a second waitress from the Golden Flame
restaurant, Jane Sparks, concerning a statement she made to the
police. In the statement, Sparks indicated that defendant and the
victim "appear[ed] to be high on something." Defendant further
argues that his attorney erred by not having his brother and three
acquaintances take the stand on defendant's behalf. According to
defendant, these witnesses could have testified as to defendant's
history of drug and alcohol abuse. Defendant also submits that his
attorney should have called Dr. O'Donnell as an expert witness.
Defendant believes that testimony from Dr. O'Donnell would have
confirmed that Barbara had ingested either heroin, morphine or
codeine shortly before her death. Finally, defendant points out
that a police inventory sheet disclosed that a "bag containing
crushed green plant" had been confiscated at the scene of the
crime, but was later misplaced by the police. Defendant believes
that his attorney should have offered the inventory sheet into
evidence to corroborate his story that drugs did indeed play a part
in Barbara's murder. According to defendant, his attorney's failure
to present the foregoing corroborative evidence resulted in the
denial of his constitutional right to effective assistance of
counsel. We find this argument unpersuasive.
It is well established that decisions concerning which
witnesses to call at trial and what evidence to present on
defendant's behalf ultimately rests with trial counsel. People v.
Ramey, , 53-55 (1992). Such decisions have long been
viewed as matters of trial strategy (People v. Haywood, , 543-44 (1980)), which are generally immune from claims of
ineffective assistance of counsel (People v. Guest, , 394 (1995); see also People v. Gosier, , 22
(1995) (noting that strategic choices are virtually
unchallengeable); People v. Palmer, , 476 (1994)
(same)). This general rule is predicated upon our recognition that
the right to effective assistance of counsel refers to "competent,
not perfect representation." People v. Stewart, ,
492 (1984). Hence, " `[m]istakes in trial strategy or tactics or in
judgment do not of themselves render the representation
incompetent.' " People v. Hillenbrand, , 548 (1988).
The only exception to this rule is when counsel's chosen trial
strategy is so unsound that "counsel entirely fails to conduct any
meaningful adversarial testing." Guest, 166 Ill. 2d at 394, citing
People v. Hattery, , 464 (1985), citing Unites
States v. Cronic, , 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045 (1984). In our view, the above principles have
particular resonance when applied to the case at bar.
Contrary to defendant's position, our review of the record
reveals that counsel's trial strategy cannot be viewed as so
unsound as to lead us to believe that he did not fulfill his
obligation to provide a meaningful adversarial testing of the
State's case. In fact, defendant's attorney presented ample
evidence in support of his theory that defendant suffered from a
diminished mental capacity. James Bunker testified that he and
defendant began drinking beer at approximately 9 o'clock on the
morning in question. He and defendant then went to a party at a
local forest preserve, where they continued to drink alcohol until
early afternoon. The two men eventually drove to a friend's house
later in the afternoon to have a few more beers. When asked by
defense counsel whether defendant was intoxicated, Bunker replied,
"Yes, more or less. He had a few." Defense counsel later utilized
Bunker's testimony during closing arguments when he reminded the
court that defendant had "starting drinking--starting doing drugs
as early as about 9:00 o'clock that Saturday morning."
The record also contains the testimony of Jacque Garceau, the
bartender at the Garage Inn tavern, and George Moraitis, one of its
patrons. Although both of these witnesses testified on behalf of
the State, defense counsel did, during cross-examination, elicit
evidence which was highly relevant to defendant's diminished
capacity defense. Garceau, for example, acknowledged that at one
point in the evening defendant had fallen asleep on his bar stool
while drinking. Moraitis, meanwhile, agreed with defense counsel
that defendant appeared to be high "on some kind of drug or
whatever." In fact, Moraitis described defendant as a "maniac":
"Well, the defendant was--he was walking around, was very
hypersensitive, spaced out or something, and he was going
by the telephone and was trying to call somebody up and
he put the telephone back up there, up on the dial, on
the hook and he was infuriated or something. He started
shaking the telephone off the wall. He was very
hypersensitive, he was very--like a maniac. It is
unbelievable."
Thus, the record amply demonstrates that counsel, in furtherance of
his theory of diminished capacity, elicited testimony from
witnesses who directly observed defendant's drinking and behavior
during the immediate hours preceding Barbara's murder.
In contrast to this evidence, defendant now insists that his
attorney should have questioned another waitress from the Golden
Flame restaurant concerning her statement to police, i.e., that
defendant and Barbara "appeared" to be "high." However, even if
this witness had been called to the stand, and further assuming
that she testified consistent with her prior out-of-court
statement, her testimony would have been merely cumulative of the
in-court testimony offered by Bunker, Garceau and Moraitis.
Moreover, the statement itself is equivocal on its face because it,
at most, indicates that defendant and the victim "appeared" to be
high. Consequently, counsel's decision not to question the waitress
about her prior statement to the police can hardly be viewed as a
grave error in trial strategy.
Similarly, having defendant's brother and his three friends
take the stand would not, in our view, have made a significant
impact on the diminished-capacity defense. Their testimony, the
substance of which has been presented to this court pursuant to an
offer of proof, pertains only to defendant's use of drugs and
alcohol on other occasions. Notably, none of these witnesses were
with defendant during the critical hours leading up to Barbara's
murder. As a result, they could not have testified as to
defendant's drug and alcohol consumption at that time. As noted
above, Bunker, Garceau and Moraitis all observed defendant on the
day in question. Their testimony, therefore, was far more probative
on the issue of whether defendant's mental capacity was diminished
at the time he killed Barbara than was the testimony of defendant's
brother and his friends.
As to defendant's assertion that his attorney erred by not
presenting any expert witnesses, we seriously doubt whether Dr.
O'Donnell's proffered testimony would have had an impact on the
outcome of this case. First, any testimony regarding Barbara's
consumption of drugs and alcohol would have had little, if any,
relevance in determining whether defendant himself suffered from a
diminished mental capacity. Second, even if Dr. O'Donnell had been
called as a witness, his testimony would have been limited to the
findings presented in the toxicologist's report. Although that
report itself has not been made a part of the record for this
appeal, it was admitted into evidence by way of stipulation. The
record reflects that the report included a specific finding of 14.6
micrograms per millimeter of morphine in Barbara's bile.
Consequently, defense counsel had no reason to call Dr. O'Donnell.
Indeed, the toxicology report itself already corroborated
defendant's claim regarding Barbara's consumption of drugs and
alcohol. Finally, we consider any alleged error on counsel's part
for failing to introduce the police inventory sheet referring to a
"bag containing crushed green plant" barred by the doctrine of res
judicata, that issue having been previously litigated on direct
appeal. See Madej, 106 Ill. 2d at 214.
For the foregoing reasons, we reject defendant's contention
that his attorney rendered ineffective assistance of counsel by
failing to present additional evidence supporting his claim of
diminished mental capacity.

C. Failure to Obtain Timely Ruling on Motion to Suppress
In a completely different vein, defendant faults his lawyer
for failing to obtain a ruling on a motion to suppress his
custodial statements prior to having him take the stand at trial.
In order to fully evaluate this claim, we must set forth some
additional background facts. Shortly before trial, defendant's
attorney filed a combined motion to suppress and motion to quash
arrest. In the motion, defendant sought to exclude certain tangible
evidence recovered by the police. That motion, however, was never
ruled on prior to the commencement of the trial. During the trial,
defendant took the stand on his own behalf and testified as to the
events leading up to his arrest. Specifically, defendant stated
that he had killed Barbara only after she attempted to steal his
drugs. This in-court testimony differed significantly from
defendant's original statement to the police, in which defendant
tried to shift responsibility for the crimes to his friend
"Hojamoto." Defendant further testified that certain police
officers had beaten him during questioning. At that point, the
circuit court converted the trial into a hearing on the combined
motion to suppress and motion to quash arrest. After hearing
further testimony, the court denied the motion and resumed the
trial.
Defendant now asserts that his trial counsel should have
obtained a ruling on the motion to suppress prior to advising
defendant to testify in his case in chief. By failing to do so,
defendant argues, the State was later able to impeach defendant's
trial testimony with his prior inconsistent statements to the
police. Defendant suggests that there are only two possible
explanations as to why counsel failed in this regard: (i) counsel
did not know the substance of defendant's in-custody statements, or
(ii) counsel did not consider their impeachment value very
important. Defendant submits that, regardless of which of the two
explanations this court accepts, his attorney rendered ineffective
assistance of counsel. Alternatively, defendant contends that, when
counsel finally did argue the motion to suppress, he did so
ineffectively because he failed to seek suppression of defendant's
"Hojamoto" statement on the ground that defendant was mistreated
while in police custody. Specifically, defendant argues that his
attorney erred by not presenting pathological evidence to
corroborate his claim that police officers struck him in the head
with a flashlight during his interrogation.
Initially, we note that defendant never sought the suppression
of any statements he made while in custody, nor did he raise such
a challenge on direct appeal. Therefore, the issue is waived. See
Ruiz, 132 Ill. 2d at 9. Even so, because defendant also challenges
the effectiveness of his appellate counsel for not preserving the
issue, we will proceed to the merits of his claim. See People v.
Foster, 168 Ill. 2d 465, 474 (1995).
Contrary to defendant's contention, we agree with the State
that counsel's decision not to seek a ruling on the motion to
suppress prior to calling defendant to the stand does not rise to
the level of ineffective assistance of counsel because defendant
cannot satisfy Strickland's prejudice requirement. As previously
noted, defendant's motion to suppress did not seek the suppression
of inculpatory statements made by defendant, but instead sought
only to suppress certain tangible evidence.[fn1] Because
defendant's in-custody statements were not the subject of the
motion, a ruling in favor of the defendant would not have made a
difference with respect to the State's ability to impeach him with
his prior inconsistent statements. Furthermore, even if counsel had
sought to suppress defendant's statements in the motion, the motion
itself was patently without merit. During the hearing on the
motion, defendant claimed that police physically abused him while
he was in custody. Specifically, defendant accused Detective James
Grant of hitting him on the head with a flashlight. On cross-
examination, however, defendant admitted that he had received a
head wound at a party approximately one week prior to killing
Barbara. In addition, defendant's accusations of police
mistreatment were also discredited by the testimony of the
interrogating officers. For example, Detective Grant, who testified
at the suppression hearing, was specifically asked whether "on
August 23, 1981, when you were in the interview room with the
Defendant, either with Detective Dolan or by yourself, did you
physically abuse the Defendant in any way?" Detective Grant
answered, "No, Sir." The State further asked Detective Grant
whether he had struck defendant in any manner, either with or
without a flashlight, on any part of his body, including his head.
Detective Grant again replied, "No, Sir."[fn2]
Based on this evidence, the court concluded that defendant
presented no "believable" or "credible" evidence in support of his
motion to suppress. Consequently, the court denied the motion on
its merits, a decision which we believe was not against the
manifest weight of the evidence. Under these circumstances,
defendant could not have suffered any prejudice as a result of his
attorney's failure to obtain an early ruling on the motion to
suppress. That motion, which did not even seek to suppress
defendant's statements, was destined to be denied.
In a related argument, defendant maintains that his trial
attorney should have cited a "significant line of authority [which]
holds that in determining whether a statement was voluntarily made
it is improper for a trial court to disregard a defendant's
uncontroverted testimony." See People v. Rhoads, 73 Ill. App. 3d
288, 309 (1979); People v. Peck, 18 Ill. App. 3d 112, 116 (1974);
Haynes v. Washington, , 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963). Defendant points out that (i) he testified during the
suppression hearing that police denied his requests for food,
medical attention, a visit and a telephone call, and (ii) the State
never rebutted this testimony. Defendant submits that his
attorney's failure to cite the aforementioned legal authority in
connection with his uncontroverted testimony resulted in the denial
of effective assistance of counsel. We find this argument
unpersuasive for two reasons.
First, even if we were to agree with defendant that the trial
court in this case could not disregard his testimony, there is
nothing in the record to suggest that the alleged denial of
defendant's request for food and medical attention had anything to
do with defendant's decision to speak with the police. In fact,
defendant's "Hojamoto" statement appears to be a deliberate attempt
on the part of the defendant to steer the police in the direction
of another suspect. Second, even if the "Hojamoto" statement had
been suppressed, it would not have changed the outcome in this case
in light of the overwhelming evidence presented at trial. Hence,
defendant cannot show prejudice. See Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

D. Failure to Introduce 911 Tape Recording
Defendant next contends that his trial counsel erred by not
presenting as a defense the possibility that another person may
have been involved in the crimes. In support of this contention,
defendant relies upon a 911 tape recording which contains the
conversation between the police officers who pursued defendant and
the police dispatcher who coordinated the pursuit. That recording
purportedly referred to "two male white suspects in the car."
Defendant believes that the "[i]ntroduction of the 911 tapes would
have raised a reasonable doubt about whether [he] was guilty of all
or some of [his] crimes."
Due to defendant's failure to raise this argument either on
direct appeal or in his amended petition for post-conviction
relief, this argument is waived. People v. Johnson, 154 Ill. 2d 227, 233 (1993), citing People v. Flores, (1992).
We further find no reason to excuse defendant's waiver under the
exception for plain error. See generally People v. Carlson, , 576 (1980).

E. Cumulative Error
Finally, defendant argues that his trial attorney committed a
plethora of errors due to his inexperience in trying criminal
matters. According to defendant, these errors include "attempts to
learn the basic facts of the case from the State's witnesses,
ineffective cross-examination, ignorance of the adverse witness
rule, ignorance on how to impeach a witness with a prior
conviction, and attempts to elicit testimony, sometimes successful,
that were harmful to the defense." Defendant submits that
commission of the errors, cumulatively, resulted in a denial of his
right to effective assistance of counsel throughout the trial
proceedings. We disagree.
After undertaking a thorough review of each of these errors,
both individually and collectively, we conclude that defendant's
contention regarding ineffective assistance of counsel is without
merit. In fact, we find nothing in the record to support
defendant's claim that the alleged errors in this case were the
product of an inexperienced trial counsel. We are mindful of the
fact that "[j]udicial scrutiny of counsel's performance must be
highly deferential" and that " `[a] fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.' " Guest, 166 Ill. 2d at 393,
quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. Having eliminated the distortion of hindsight in this
case, we conclude that defendant has failed to demonstrate that his
counsel's performance fell below an objective standard of
reasonableness on the basis of the foregoing trial errors.

Ineffective Assistance of Counsel on Appeal
In addition to challenging the preceding errors, all of which
concern counsel's performance at trial, defendant also challenges
numerous errors allegedly committed by his appellate counsel. We
shall, however, limit our present discussion to only those errors
which are adequately supported by citation to the record and
applicable legal precedent.

A. State's Failure to Preserve Exculpatory/Mitigating
Evidence
Defendant maintains that his appellate counsel should have
argued, on direct appeal, that defendant was denied due process of
law as a result of the State's failure to preserve two pieces of
evidence: (i) a prescription pill bottle bearing Barbara's name,
and (ii) a bag containing "crushed green plant". Defendant's
arguments concerning the bag of green plant were previously
rejected by this court on direct appeal and, therefore, are barred
by the doctrine of res judicata. See Madej, 106 Ill. 2d at 214.
With respect to the pill bottle, the record shows that although
several of the investigating officers had noticed a small plastic
bottle on the front seat of Barbara's car, they never included the
bottle in the police inventory. Defendant claims that had the
police properly inventoried the bottle, his counsel could have
offered the bottle into evidence and substantiated his claim that
he and Barbara were intoxicated at the time of the murder. We
disagree.
First, the record already contained substantial evidence of
Barbara's intoxication at the time of her death, not the least of
which was the toxicologist's report showing significant amounts of
morphine in Barbara's bile. Introduction of the pill bottle,
therefore, would have only provided an explanation as to the source
of Barbara's intoxication, a fact which was already accepted by the
trial court. Second, introduction of the pill bottle would not have
substantiated defendant's claim of his own diminished capacity.
Despite the fact that defendant himself took the stand, he never
testified that he had ingested any of the drugs purportedly
contained in the bottle. Thus, even if the State had preserved the
pill bottle, its introduction into evidence would not have changed
the outcome in this case.

B. Trial Court's Consideration of Matters De Hors
the Record
The next argument for our consideration centers around certain
comments made by the trial judge during the hearing on the motion
to suppress. The record in this case reveals that, after reviewing
photographs of defendant's head, the trial judge remarked that
defendant's wound did not appear consistent with his claim of being
struck by a flashlight. Specifically, the trial judge stated that
"a flashlight would normally leave a bruise, not a scratch." The
court also referred to the fact that defendant's wound was "heavily
laden with scab formation showing an old wound," thereby giving
credence to the State's theory that defendant's wound was inflicted
prior to his incarceration. Defendant believes that the trial
court, in making those comments, impermissibly relied on matters
"outside the record." See People v. White, 183 Ill. App. 3d 838,
841 (1989) (holding that the "ability to examine a cut and
determine the instrument that made it is beyond the province of
common knowledge").[fn3] Defendant further concludes that his
appellate counsel erred in not raising this argument on appeal.
Again, we disagree.
The sixth amendment right to effective assistance of counsel
does not mandate that appellate counsel " `raise every conceivable
argument which might be made, and counsel's assessment of what to
raise and argue will not be questioned unless it can be said that
his judgment in this regard was patently erroneous.' " Coleman, 168 Ill. 2d at 523, quoting People v. Collins, , 140
(1992). In this case, appellate counsel's decision not to raise an
argument with respect to the trial judge's speculation about
defendant's wound was not patently erroneous. As we have pointed
out elsewhere in this opinion, the evidence adduced at the
suppression hearing strongly supported the trial court's denial of
defendant's motion to suppress. Throughout this post-conviction
proceeding, defendant has repeatedly focused solely on his own
self-serving testimony of what transpired during the police
interrogation. Defendant, however, overlooks the fact that his
credibility was severely assailed by the State during cross-
examination. For example, after claiming that he had received a
head wound at the hands of the police, defendant acknowledged being
hit in the head with a bottle a few days earlier. In addition,
defendant originally told the court that the wound caused by the
bottle was so inconsequential that he never sought any medical
attention. Under the pressure of cross-examination, however,
defendant changed his story, admitting that he had in fact gone to
a local hospital. Needless to say, "[i]nconsistencies in
defendant's testimony reflect adversely upon his credibility."
People v. West, , 583 (1990).[fn4]
It is, of course, "the function of the trial judge to
determine the credibility of the witnesses at a suppression hearing
and to resolve any conflicts in their testimony." People v. Garcia,
, 422 (1995). We simply will not usurp the trial
judge's role in this case and ignore his express finding that
defendant presented no "believable" or "credible" evidence in
support of his motion to suppress. Because we do not believe that
the outcome of the suppression hearing would have been different
had the trial judge not speculated upon the age or origin of
defendant's head wound, we reject defendant's claims of ineffective
appellate representation.
In two related arguments, defendant accuses the trial court of
engaging in improper speculation when it (i) "determined that the
blemishes on the decedent's body shown in the autopsy photographs
were caused by decedent being run over by a tire" and (ii)
"determined in the absence of expert testimony that [defendant]
could not have consumed the amount of alcohol and drugs he
testified to having consumed on the date of the incident and to
have engaged in a high speed chase with the police, jumped over a
fence, and hid under a car." This latter argument was rejected on
direct appeal (Madej, 106 Ill. 2d at 216-17); further argument,
therefore, is barred by the doctrine of res judicata (People v.
Silagy, , 365 (1987)). As for the autopsy
photographs, we agree with the State that the trial court never
stated that it believed that defendant had run over Barbara's body.
Rather, the trial court merely asked counsel if he could explain
why there were "gray and black and blue markings" on the victim's
legs. We find no error in the trial court's asking this question.

C. Misstatement of the Evidence
Defendant next challenges a statement made by the prosecutor
regarding a tear in the victim's pants. During closing arguments,
the prosecutor stated the victim's jeans were "torn." Defendant
claims that the pants were cut, not "torn." We note, however, that
"prosecutors are afforded wide latitude in closing argument and
improper remarks will not merit reversal unless they result in
substantial prejudice to the accused." People v. Redd, 173 Ill. 2d 1, 30 (1996). We fail to see how the prosecutor's characterization
of defendant's pants constitutes reversible error in this case.

D. Errors During Sentencing
Defendant further argues that the State had an obligation to
inform the trial court of the fact that the State had offered
defendant an 80-year prison term in exchange for a guilty plea.
Defendant suggests that such an offer constitutes mitigating
evidence. Defendant has cited no legal authority for this
proposition; therefore, the argument is waived. 155 Ill. 2d R. 341;
People v. Felella, , 540 (1989).
Defendant also contends that the defendant's lack of any
significant criminal history is a mitigating factor which precludes
the imposition of the death penalty as a matter of law. We
previously rejected this argument on direct appeal (Madej, 106 Ill.
2d at 221); therefore, the argument is barred (People v. Silagy,
, 365 (1987)).

Miscellaneous Arguments
A. Reduction in Sentence
Based upon the mitigating evidence presented in the amended
petition for post-conviction relief, defendant requests this court
to reduce his sentence to a term of years. We decline to do so. The
determination of the propriety of a death sentence in any
particular case " `requires consideration of the character and
record of the individual offender and the circumstances of the
particular offense.' " People v. Pasch, , 201
(1992), quoting Woodson v. North Carolina, , 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (1976). Accordingly, although
we will conduct a thorough evaluation of the record when reviewing
a sentence of death, we will not lightly overturn the trier of
fact's findings where those findings are amply supported by the
record. People v. Pasch, 152 Ill. 2d at 201; People v. Odle, , 130-32 (1988). See also People v. Walker, , 506 (1985) (holding that supreme court's limited authority
upon review does not permit reversal where "there is no indication
that the [sentencer] imposed the penalty on other than a reasoned
basis"). In our view, the record in the case at bar demonstrates
that the trial court properly afforded defendant an individualized
assessment of all relevant circumstances, and further did not act
out of caprice or compassion in imposing the sentence of death. As
noted elsewhere in the opinion, the evidence in aggravation was
ample despite the mitigation now submitted by defendant. In sum, we
do not believe that the trial court abused its discretion in this
regard. See People v. Montgomery, , 533 (1986)
(holding death penalty appropriate even where mitigating evidence
consisted of a troubled youth, an alcoholic mother, an abusive and
drug-addicted father, heavy drinking and an extreme mental or
emotional disturbance).

B. Failure to Grant Motion Seeking Substitution of Judge
Defendant next maintains that the trial court erred in not
granting his motion for substitution of judge or, alternatively, in
not transferring the motion to another judge for ruling. Defendant
claims that the trial judge, who at one point admonished defense
counsel not to use the already delayed post-conviction proceedings
as a further "delay tactic to stop the imposition of what the
Illinois Supreme Court has said was a fair trial, a fair verdict,
a fair death sentence after a fair death hearing," had prejudged
the merits of defendant's amended petition for post-conviction
relief. We disagree. It is well settled that "[t]here is no
absolute right to a substitution of judge at a post-conviction
proceeding." People v. Hall, , 331 (1993), citing
People v. House, 202 Ill. App. 3d 893, 910 (1990), citing People v.
Wilson, (1967). "Rather, the same judge who presided
over the defendant's trial should hear his post-conviction
petition, unless it is shown that the defendant would be
substantially prejudiced." Hall, 157 Ill. 2d at 331 (citing People
v. Mamolella, , (1969), People v. Neal, 123 Ill.
App. 3d 148, 152 (1984), and People v. Day, 152 Ill. App. 3d 416,
421 (1987)).
The record here discloses that defendant filed his pro se
petition for post-conviction relief on April 9, 1986. The matter,
which was originally assigned to another judge, was continued for
various reasons over the course of the next five years. During that
time, post-conviction counsel repeatedly represented to the court
that an amended petition would be filed. Eventually, the matter was
reassigned to the current judge. Although counsel again reassured
the court that an amended petition would be forthcoming, nearly two
more years passed before the amendment was actually filed.
Consequently, when the trial judge warned counsel not to further
prolong the proceedings, the trial judge was not prejudging the
merits of defendant's amended petition for post-conviction relief,
as defendant suggests. Rather, the trial judge was merely
expressing his understandable frustration with the progress of the
case. Furthermore, we have carefully reviewed the transcript in
this respect, and can find no evidence of any bias on the part of
the circuit court in this matter. Under these circumstances, we
simply do not believe that the trial judge abused its discretion in
denying defendant's motion for substitution of judge.

C. Failure to Grant Request for Discovery
Defendant also argues that the trial court erred in denying
his request for discovery during the pendency of the post-
conviction proceedings. We note, however, that defendant fails to
specify, in his brief, the nature of alleged error. Consequently,
we are unable to review this claim.

D. Constitutionality of Death Penalty Statute
As a final matter, defendant raises seven separate challenges
to the constitutionality of the Illinois death penalty statute. We
have repeatedly rejected the same contentions in past decisions,
and defendant provides no new grounds which would warrant a
different result in this case. Defendant's first argument, that
various aspects of the death penalty statute invite an arbitrary
and capricious imposition of the sentence, was recently rejected in
People v. Burgess, No. 79162, slip op. at 25 (April 24, 1997). This
court has also held that the statute is not invalid due to the fact
that it fails to provide adequate pretrial notice of the State's
intention to seek the death penalty. People v. Silagy, , 161-62 (1984). Nor is our death penalty statute
unconstitutional for imposing a burden on defendant to establish
that some other penalty should be imposed (People v. Fields, , 76 (1990)), or for not requiring the sentencer to issue
a written memorial of its findings (People v. Stewart, , 499 (1984)). We further reject defendant's contention that the
statute improperly gives unequal consideration of aggravating and
mitigating factors (see People v. Burgess, slip op. at 24), and
that it improperly fails to limit the nonstatutory aggravating
factors which the sentencer may consider (People v. Collins, , 285 (1985)). Finally, we have never considered our
death penalty statute unconstitutional for excluding any sympathies
that may exist as mitigating evidence. People v. Phillips, , 543 (1989) .

CONCLUSION
For the reasons stated above, the judgment of the circuit
court of Cook County is affirmed. The clerk of this court is
directed to enter an order setting Tuesday, November 11, 1997, as
the date on which the sentence is to be carried out. Defendant
shall be executed in the manner provided by law. 725 ILCS 5/119--5
(West 1994). The clerk of this court shall send a certified copy of
the mandate in this case to the Director of Corrections, to the
warden of Stateville Correctional Center, and to the warden of the
institution where defendant is confined.

Affirmed.

[fn1] In his amended petition for post-conviction relief, defendant
states, "Defense counsel requested leave to file a motion to
suppress statements." (Emphasis added). This, however, is not an
accurate representation of the record. The motion reads in
pertinent part: "NOW COMES the Defendant and respectfully moves
this Honorable Court to suppress as evidence herein, certain
property seized in violation of Article II, Sections 6 and 10 of
the Constitution of the State of Illinois ***."

[fn2] Detective Dolan corroborated detective Grant's testimony. He
also testified that he neither struck nor physically abused
defendant in any way.

[fn3] Attached to defendant's amended petition for post-conviction
relief is an affidavit from a pathologist who contradicts the trial
court's conclusion regarding defendant's head wound.

[fn4] In contrast to defendant's testimony, which can be viewed as
untrustworthy, both Officer Grant and Officer Dolan unequivocally
denied abusing defendant in any way.

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