People v. Johnson

Annotate this Case
People v. Johnson, No. 80009 (6/18/98)


Docket No. 80009--Agenda 1--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANDREW
JOHNSON, Appellant.
Opinion filed June 18, 1998.

JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant,
Andrew Johnson, was found guilty of three counts each of murder and armed
robbery, and two counts of attempted murder. Defendant waived a jury for the
sentencing hearing. The trial court found defendant eligible for the death penalty
and sentenced defendant to death for the murder. In addition, the trial court
sentenced defendant to two consecutive 30-year terms of imprisonment for the
attempted murders. On direct appeal, this court affirmed defendant's convictions
and death sentence (People v. Johnson, 149 Ill. 2d 118 (1992)) and the United
States Supreme Court denied defendant's petition for a writ of certiorari (Johnson
v. Illinois, 506 U.S. 1056, 122 L. Ed. 2d 138, 113 S. Ct. 986 (1993)). Defendant,
with the assistance of counsel, then filed a petition for post-conviction relief in the
circuit court of Cook County (see 725 ILCS 5/122--1 (West 1994)). The trial court
dismissed defendant's post-conviction petition without an evidentiary hearing.
Defendant appeals the dismissal of the post-conviction petition (134 Ill. 2d R.
651(a)), seeking a reversal of his conviction or, in the alternative, remand for an
evidentiary hearing. For the reasons that follow, we affirm.

BACKGROUND
The evidence supporting the convictions and sentences was thoroughly
discussed on direct appeal (People v. Johnson, 149 Ill. 2d 118 (1992)), and only
a summary is necessary here. On January 20, 1985, defendant, Andrew Johnson,
and two companions, Terry Sanders and Mike Hill, arrived at the home of the
murder victim, William Feuling. Feuling invited the three men into his apartment
because Sanders was employed at Feuling's family-owned convenience store. At
the time, Feuling was being visited by two friends, Art Kozak and Brian
Walkowiak. Some time after settling into the apartment and accepting a beer,
defendant drew his gun and directed that Feuling and his friends be tied up and
gagged.
After the three men were bound, defendant pistol-whipped Feuling in the
face and demanded money. The intruders then removed money from the pockets
of the three men. Defendant then moved to Kozak, smashed an egg in his face and
began to laugh. Defendant demanded more money from Kozak, and when he
learned Kozak had none defendant stated Kozak would "have to die."
Nevertheless, defendant temporarily spared Kozak after taking Kozak's gold
watch. Defendant returned to Fueling and dragged him throughout the apartment
demanding the daily receipts from the convenience store. When Feuling could not
produce the money, defendant held Feuling up by the arm and stabbed and slashed
him repeatedly with a butcher knife about the neck and torso, laughing as he did
so. Feuling died as a result of the knife wounds.
Defendant then commanded his two companions to each kill one of
Feuling's friends. Defendant gave the butcher knife to Sanders, who first stabbed
Kozak in the stomach and then attempted to slit Kozak's throat. Sanders then
smashed Kozak in the head with a hammer. After the assault on Kozak,
Walkowiak lunged for the door in an attempt to escape. Defendant shot at
Walkowiak, striking him in the shoulder. Despite the gunshot wound, Walkowiak
continued to run. Believing that both Fueling and Kozak were dead, the three
intruders pursued Walkowiak out the door. However, Walkowiak was able to
escape with the assistance of a passing motorist. Subsequently, defendant and Hill
approached another individual, Oscar Smith, and attempted to take Smith's car at
gunpoint. Defendant and Smith struggled as defendant tried to force Smith into his
car. After losing his gun in the struggle with Smith, defendant fled the scene.
A blue nylon parka was discovered in the stairwell of Fueling's apartment
building. Defendant's identification card from Joliet Correctional Center was found
in the coat pocket. In addition, police recovered defendant's fingerprints from a
beer can located on a coffee table in Fueling's living room. On the day after the
incident, Kozak and Walkowiak independently identified defendant's picture from
a photo array. Before trial, Kozak, Walkowiak, and Oscar Smith all selected
defendant from a lineup. In addition, all three men identified defendant at trial.

POST-CONVICTION PETITION
A post-conviction proceeding is not an appeal of a defendant's underlying
judgment, but rather a collateral proceeding enabling the defendant to challenge
a conviction or sentence for violations of constitutional rights. People v. Tenner,
175 Ill. 2d 372, 377 (1997); People v. Ashford, 168 Ill. 2d 494, 500 (1995). To
be entitled to post-conviction relief, a defendant must establish a substantial
deprivation of federal or state constitutional rights. Tenner, 175 Ill. 2d at 378;
People v. Guest, 166 Ill. 2d 381, 389 (1995). In addition, determinations of the
reviewing court on direct appeal are res judicata as to issues actually decided and
issues that could have been raised in the earlier proceeding, but were not, are
deemed waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995).
In this case, the trial judge dismissed defendant's post-conviction petition
without an evidentiary hearing, concluding that all of the claims had been waived
or resolved on direct appeal. We observe that a defendant is not entitled to an
evidentiary hearing unless the allegations of his petition, supported by the trial
record or accompanying affidavits where appropriate, make a substantial showing
that defendant's constitutional rights have been violated. People v. Maxwell, 173 Ill. 2d 102, 107 (1996); People v. Gaines, 105 Ill. 2d 79, 91-92 (1984). In
addition, the trial court's ruling on a post-conviction petition will not be disturbed
unless manifestly erroneous. People v. Henderson, 171 Ill. 2d 124, 131 (1996);
People v. Griffin, 109 Ill. 2d 293, 303 (1985).
On appeal to this court, defendant raises numerous contentions in
opposition to the trial court's decision to dismiss his post-conviction petition
without an evidentiary hearing. Defendant's principal arguments are based
primarily on the alleged ineffective assistance of trial counsel. Although defendant
focuses on the performance of his trial counsel, he also claims that his attorney
on direct appeal was ineffective for failing to raise certain claims. We observe that
the same standards govern the evaluation of the performance of both trial and
appellate counsel. People v. Whitehead, 169 Ill. 2d 355, 381 (1996). Because these
two issues overlap, we will focus on trial counsel's performance. See Tenner, 175 Ill. 2d at 378; Guest, 166 Ill. 2d at 390. Obviously, if the underlying claim lacks
merit, defendant suffered no prejudice due to appellate counsel's failure to raise
the issue on direct appeal. Coleman, 168 Ill. 2d at 523.

ISSUES
In this appeal, defendant raises numerous issues that essentially claim that
his trial counsel was ineffective because he failed to: (1) request a Batson hearing;
(2) present testimony of an alibi witness; (3) request a fitness hearing; (4) argue
that defendant lacked the capacity to form the requisite intent to commit murder;
(5) argue that defendant lacked the capacity to waive his right to a jury at
sentencing; and (6) investigate and present available mitigating evidence.
Defendant also claims that his death sentence is (7) unconstitutional because he
was sentenced without the benefit of mitigating evidence his counsel failed to
discover. Finally, defendant claims (8) the Illinois death penalty statute is
unconstitutional.

Effectiveness of Counsel During Guilt Phase
Defendant raises a series of contentions which focus on his counsel's
performance before and during trial. These claims are based on a defendant's
constitutional guarantee to the assistance of counsel (U.S. Const., amends. VI,
XIV), which encompasses the right to the effective assistance of counsel (Cuyler
v. Sullivan, 446 U.S. 335, 343-44, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708,
1715-16 (1980)). To be successful on his claims, defendant must satisfy the two-
prong Strickland test. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland, a defendant must show that (1) his
counsel's performance fell below an objective standard of reasonableness; and (2)
counsel's deficient performance resulted in prejudice to defendant. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65; People v. Albanese,
104 Ill. 2d 504, 525-26 (1984). A strong presumption exists that defense counsel's
performance falls within the "wide range of reasonable professional assistance"
and, thus, is not deficient. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95,
104 S. Ct. at 2065. In addition, to demonstrate prejudice resulting from counsel's
asserted deficient performance, "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. With these principles in mind, we now turn to
defendant's claims regarding his counsel's performance during the guilt-innocence
phase.

1. Failure to Request a Batson Hearing
Defendant contends that his trial counsel was ineffective because he failed
to request a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69,
106 S. Ct. 1712 (1986) to explore the State's discriminatory use of preemptory
challenges against African-American venirepersons. The record reveals that
defendant's counsel did indeed object to the State's use of peremptory challenges.
Early in the jury selection process, the following colloquy occurred:
"MR. BROWNFIELD [defense attorney]: Judge, I believe in that
twenty-seven there has only been three blacks and the State has knocked
off all three blacks.
MR TRUTENKO [assistant State's Attorney]: That's not true.
That's not true.
MS. ROUSE [defense attorney]: Two.
MR. VELCICH [assistant State's Attorney]: Maurice Miller is
black, left on.
MR BROWNFIELD: What number is that?
MR. TRUTENKO: Number thirteen.
MR. VELCICH: Thirteen.
MR. BROWNFIELD: I'm sorry. I withdraw my objection."
The jury selection continued and defense counsel raised no additional objections
to the State's use of its peremptory challenges.
Defendant argues that trial counsel was deficient in failing to renew his
objection and subsequently request a Batson hearing. In support of his claim,
defendant attached two sets of handwritten notes allegedly taken by his defense
attorneys contemporaneously with voir dire. Defendant also attached copies of the
jury summons and corresponding juror information forms for six venirepersons
who were stricken by the State with peremptory challenges. Defendant contends
that this evidence establishes that the State exercised a discriminatory pattern of
strikes against African-Americans and also utilized a disproportionate number of
its peremptory challenges against African-Americans. See People v. Andrews, 146 Ill. 2d 413, 428-30 (1992). Defendant argues that this evidence, combined with the
interracial nature of the crimes, clearly establishes a prima facie case of racial
discrimination. See Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.
Notwithstanding defendant's arguments, based on the record before us, we find
that defendant failed to make a substantial showing of a Batson violation.
The defendant asserting a Batson violation bears the burden of preserving
the record. People v. Hudson, 157 Ill. 2d 401, 428 (1993). For a meaningful
appellate review of the issue, the record must disclose the race of the
venirepersons. People v. McDonald, 125 Ill. 2d 182, 194-95 (1988). Moreover,
any ambiguities in the record on the issue are construed against the defendant.
Hudson, 157 Ill. 2d at 428.
We initially observe that the notes defendant alleges his trial attorneys
recorded during voir dire are not supported by affidavit or authenticated in any
manner. The Post-Conviction Hearing Act requires the defendant's petition to
support his allegations of constitutional violations by "affidavits, records, or other
evidence." 725 ILCS 5/122--2 (West 1994). Evidence supporting defendant's post-
conviction allegations must be accompanied by an affidavit which identifies with
reasonable certainty the source, character, and availability of the alleged evidence.
People v. Johnson, 154 Ill. 2d 227, 239-40 (1993). Without supporting affidavits,
this court is unable to determine the source of the notes defendant offers or
whether they were written contemporaneously with voir dire.
Even if the voir dire notes were properly supported, their contents are too
ambiguous to substantiate defendant's claim. First, the race of all the
venirepersons was not recorded. See McDonald, 125 Ill. 2d at 194-95. Moreover,
the notes, apparently written by at least two persons, contain disparities in the race
recorded for several venirepersons. In addition, the juror information cards
defendant offers contain absolutely no information indicative of the race of the
stricken venirepersons.
Generally, a post-conviction petition which is not properly supported by
affidavits or other evidence is dismissed without an evidentiary hearing unless the
petitioner's allegation stands uncontradicted and is clearly supported by the record.
Johnson, 154 Ill. 2d at 240. Here, the trial record establishes that the State
exercised 12 of its 14 available peremptory challenges. The portion of voir dire
quoted above establishes that at least one African-American served on the jury and
that the State used two of its peremptory challenges to strike African-American
venirepersons (see People v. Andrews, 132 Ill. 2d 451, 460-61 (1989) (trial
counsel's statement on the record is adequate evidence to establish African-
American venirepersons were peremptorily challenged)). Nevertheless, an
inference of racial discrimination is not raised simply because African-American
venirepersons were peremptorily challenged. Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725 (White, J., concurring); People v. Coleman, 155 Ill. 2d 507, 513 (1993). Therefore, defendant's allegation of a Batson violation is not
supported by the record and, accordingly, the trial court's dismissal of this claim
without an evidentiary hearing was not against the manifest weight of the
evidence.

2. Failure to Present Testimony of an Alibi Witness
Defendant next argues that trial counsel was ineffective because he failed
to present the testimony of an alibi witness, Dennis Taylor. Defendant supports
this claim with the affidavit of Darlene Taylor, defendant's girlfriend and Dennis'
sister. In her affidavit, Darlene states that Dennis was at her apartment the day of
the murder and could have testified to essentially the same facts that she did at
trial. Darlene further avers that counsel never interviewed her brother, who has
since died.
In order to support a claim of failure to investigate and call a witness, a
defendant must tender an affidavit from the individual who would have testified.
Without such an affidavit, a reviewing court cannot determine whether the
proposed witness could have provided any information or testimony favorable to
defendant. Guest, 166 Ill. 2d at 402; People v. Ashford, 121 Ill. 2d 55, 77 (1988);
see also People v. Barr, 200 Ill. App. 3d 1077, 1080 (1990). Because defendant
has failed to provide an affidavit from Dennis Taylor, further consideration of his
purported testimony is unnecessary. Guest, 166 Ill. 2d at 402. Even assuming
defendant's allegation was sufficiently supported, Dennis's testimony was
apparently to be cumulative (see Henderson, 171 Ill. 2d at 155 (counsel cannot be
deficient for failing to present cumulative evidence)). We also conclude that
defendant would not meet the second prong of Strickland. The evidence of
defendant's guilt was overwhelming and defendant has failed to demonstrate on
this record that there is "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

3. Failure to Request a Fitness Hearing
Defendant next contends that his trial counsel was ineffective because he
failed to request a fitness hearing. Specifically, defendant cites to an opinion by
Dr. Michael Gelbort, a psychologist who evaluated defendant for his post-
conviction petition, that defendant was intellectually incapable of understanding
the admonitions of the trial court regarding his waiver of jury for sentencing.
Observing that "a person whose mental condition is such that he lacks the capacity
to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be subjected to a trial"
(Drope v. Missouri, 420 U.S. 162, 171, 43 L. Ed. 2d 103, 113, 95 S. Ct. 896, 903
(1975)), defendant reasons that he was, therefore, prejudiced by not receiving a
fitness hearing.
A defendant is presumed to be fit to stand trial. 725 ILCS 5/104--10 (West
1994). A defendant is entitled to a pretrial fitness hearing only when a bona fide
doubt of his fitness to stand trial or be sentenced is raised. People v. Eddmonds,
143 Ill. 2d 501, 512 (1991); see also Godinez v. Moran, 509 U.S. 389, 401 n.13,
125 L. Ed. 2d 321, 333 n.13, 113 S. Ct. 2680, 2688 n.13 (1993) ("As in any
criminal case, a competency determination is necessary only when a court has
reason to doubt the defendant's competence"). Therefore, in order to establish that
he was prejudiced by his trial counsel's alleged incompetency, defendant "must
demonstrate that facts existed at the time of his trial which raised a bona fide
doubt of his ability to understand the nature and purpose of the proceedings and
to assist in his defense." Eddmonds, 143 Ill. 2d at 512-13. Defendant is entitled
to relief on this post-conviction claim only if he demonstrates that the trial court
would have found a bona fide doubt of his fitness and ordered a fitness hearing
if it had been apprised of the evidence now offered. Eddmonds, 143 Ill. 2d at 513.
The critical inquiry is whether the facts presented in defendant's post-
conviction petition raised a bona fide doubt of his fitness to stand trial. The trial
court hearing defendant's post-conviction petition determined that they did not.
We do not consider this finding against the manifest weight of the evidence.
Defendant bears the burden of showing that, at the time of trial, there were
facts in existence which raised a substantial and legitimate doubt as to his mental
capacity to cooperate with counsel and meaningfully participate in his defense.
Eddmonds, 143 Ill. 2d at 518. Factors which are relevant to this consideration
include (1) a defendant's irrational behavior; (2) his demeanor at trial; and (3) any
prior medical opinion on competence to stand trial. Drope, 420 U.S. at 180, 43 L. Ed. 2d at 118, 95 S. Ct. at 908.
Defendant offers no evidence regarding his demeanor or that he acted
irrationally at trial. In addition, there was no prior medical opinion on defendant's
competence to stand trial. The only evidence defendant cites to show there was
a bona fide doubt of his fitness was Dr. Gelbort's opinion that defendant was
incapable of understanding the court's admonitions regarding his jury waiver. A
defendant's limited intellectual ability, without more, does not render him unfit to
stand trial. People v. Murphy, 72 Ill. 2d 421, 432-33 (1978). Notably, Dr. Gelbort
did not determine that defendant was unfit to stand trial or be sentenced. Rather,
Dr. Gelbort essentially determined that defendant, because of his inability to
comprehend complex sentences, would not understand the judge's explanations
regarding the jury waiver. The facts offered by defendant fall short of raising a
bona fide doubt of his fitness.
The cases on which defendant relies are inapposite. See People v. Murphy,
160 Ill. App. 3d 781 (1987); People v. Howard, 74 Ill. App. 3d 138 (1979). Both
those cases involved situations where the circumstances at the time of the trial
made it readily apparent that there was a question as to the competency of
defendant. See Murphy, 160 Ill. App. 3d at 783, 789 (counsel was aware
defendant attempted suicide during trial and was incarcerated in mental ward);
Howard, 74 Ill. App. 3d at 140 (counsel was aware defendant had been
institutionalized). Defendant has offered no facts which indicate there were
reasonable grounds at time of trial to question his competency. Accordingly,
defendant was not entitled to post-conviction relief on this claim.

4. Failure to Argue Defendant Lacked Requisite Intent
Defendant next contends that his trial counsel was ineffective for failing
to argue that, due to defendant's mental impairments, defendant was incapable of
forming the intent necessary to be found guilty of murder. Defendant concludes
that the absence of a finding of the requisite intent would necessarily preclude the
death sentence imposed for his conviction of felony-murder. See People v. Pugh,
157 Ill. 2d 1, 17 (1993).
The defense theory at trial was that defendant played no role in the
offenses for which he was charged. An argument such as the one defendant
proposes here would have directly contradicted that theory by admitting
defendant's involvement in the robbery and attributing to him the acts that caused
the victim's death. This court has previously held that, when the defense theory
is one of innocence, trial counsel is not ineffective for failing to make such an
argument. See People v. Todd, 178 Ill. 2d 297, 331-32 (1997).
Thus, we find no merit to defendant's claims concerning the effectiveness
of his trial counsel during the guilt-innocence phase.

Effectiveness of Counsel During Sentencing Phase
Defendant next contends that the trial court erred in dismissing his post-
conviction petition without an evidentiary hearing on his claim that he was denied
effective assistance of counsel at the sentencing phase of trial. We observe that
defendant's claims that he received ineffective assistance of counsel at his capital
sentencing hearing are also governed by the Strickland standard. People v.
Caballero, 126 Ill. 2d 248, 274 (1989). This standard requires the defendant to
show (1) that his attorney's performance at the sentencing hearing did not
constitute reasonably effective assistance, judged by prevailing professional norms
(Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), and (2)
there is reasonable probability that, absent the errors, the sentencer would have
concluded that the balance of aggravating and mitigating factors did not warrant
death (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069).
Defendant makes several assertions in support of ineffectiveness claim and
essentially argues that his trial counsel (1) failed to argue defendant lacked the
capacity to waive his right to a jury for sentencing; (2) was per se ineffective
because he represented defendant alone and developed no mitigation strategy; (3)
failed to investigate and present available mitigating evidence of defendant's
mental impairments; (4) failed to discover specific evidence that defendant
suffered from an extreme emotional disturbance; and (5) failed to discover other
key mitigating evidence.

1. Capacity to Waive Jury
In defendant's first claim regarding the sentencing phase of trial, defendant
contends that his counsel was ineffective for failing to argue that defendant lacked
the capacity to waive his right to a jury for sentencing. In support of this claim,
defendant cites to Dr. Gelbort's opinion that, based on defendant's low IQ and
inability to comprehend complex sentences, defendant's jury waiver "was not
based upon a clear or normal understanding of the judge's explanation." In
addition, defendant notes his paranoia, illiteracy, and general mental deficiencies
as other evidence demonstrating his inability to knowingly waive his jury rights.
A defendant's right to a jury at a capital sentencing hearing is statutory in
origin. 720 ILCS 5/9--1(d) (West 1994); Todd, 178 Ill. 2d at 312. The waiver of
the right to a jury must be knowing, intelligent, and voluntary. Maxwell, 173 Ill. 2d at 117. There exists no prescribed formula that must be used by a judge prior
to accepting a defendant's jury waiver for a death penalty hearing. Todd, 178 Ill. 2d at 312. Rather, each case turns on its own facts and circumstances. Maxwell,
173 Ill. 2d at 117.
Regarding defendant's waiver of jury for sentencing, the record includes
the following colloquy:
"MR. BROWNFIELD [defense attorney]: Yes, Judge. My client,
Andrew Johnson, is before the Court, Judge, and I have had a conversation
with my client while this case is pending and once again yesterday just to
go over it with him again and it's my client's desire that if, in fact, the
jury in this case does find my client guilty that he desires to waive his
right to a jury on the death phase of this trial now before trial. And, if fact,
if he is found guilty by the jury that we are about to select, I would ask
that your Honor make that determination.
I also advised him that if he waives it at this time that it's
irrevocable, that you will be the person that decides that no matter--no
matter, but if the jury doesn't find him guilty and he waives it now, we
will not get a jury on the death phase of this trial.
THE COURT: Mr. Johnson, do you understand that you have a
right under the law to have the jury decide, if this jury determines that you
are guilty of these crimes, to have a jury decide whether or not, one, you
are eligible for the death penalty and, two, whether under the facts and
circumstances in your record you should receive the death penalty?
Do you understand you have that right?
DEFENDANT JOHNSON: Yes.
THE COURT: Okay. What your attorney has said is that you want
to give up that right to the jury portion of the sentencing procedure at this
time.
Is that what you want to do?
DEFENDANT JOHNSON: Yes.
THE COURT: Do you understand that I will then be the one who
will have to determine whether or not, first, you are eligible to be
sentenced to death and then, number two, whether or not under the facts
and circumstances here whether you should or should not be sentenced to
death.
Do you understand that, sir?
DEFENDANT JOHNSON: Yes.
THE COURT: Do you understand that once you make this decision
and you waive at this time I will not let you out of that waiver. I will not
allow you later on to come back to me and say, Judge, I change my mind.
I want a jury to decide whether I should get the death penalty.
Do you understand that?
DEFENDANT JOHNSON: Yes.
THE COURT: Okay. Is there a jury waiver form? You can amend
it so it would appear that way.
Let the record indicate that I have talked to Andrew Johnson. I
have asked him specifically if he understands that he has a right to a jury
trial for the penalty stage and that if he gives up that right that I will be
the one to determine whether he's to receive the death penalty or not and
that I will not allow him to waive that death penalty--his election now at
some later date.
Also, you understand, Mr. Johnson, that I have made no promises
as to what my decision is going to be.
Do you understand that also?
DEFENDANT JOHNSON: Yes.
THE COURT: Okay. Let the record indicate that in open Court and
in my presence Andrew Johnson is signing the waiver of his right to a jury
to determine the penalty aspect at the conclusion of this case.
* * *
THE COURT: I'm going to ask you to sign it once more, Mr.
Johnson. This says here, I, Andrew Johnson, do hereby waive jury trial and
submit the above-entitled cause to the Court for a hearing as to the penalty
to be imposed in the event the jury who will determine guilt or innocence
determines that I am guilty.
I would like you to sign your name right below that if that is what
you want to have done.
(Document executed).
MR. BROWNFIELD: Tender that to the Court signed by my client.
THE COURT: I will accept the waiver.
The waiver has been made in open Court. I believe it's been made
knowingly and intelligently by Mr. Johnson in response to my questions."
We believe that this inquiry by the trial court was sufficient to insure that
defendant's jury waiver was knowing, intelligent, and voluntary.
Despite defendant's contention, evidence of a limited intellectual capacity,
by itself, does not indicate that a defendant is incapable of waiving his
constitutional rights. People v. Mahaffey, 165 Ill. 2d 445, 462 (1995). In addition,
the opinion of a psychologist does not mandate a similar finding from the court.
Pugh, 157 Ill. 2d at 24. Moreover, when assessing whether a defendant was aware
of his rights, the defendant's prior contacts with the criminal justice system is
relevant. See Mahaffey, 165 Ill. 2d at 463. Notably, defendant had an extensive
criminal history, beginning at age 13.
The trial court is in the best position to evaluate defendant's ability to
understand his rights. Mahaffey, 165 Ill. 2d at 463. The trial judge hearing the
defendant's post-conviction petition, the same judge who proceeded over
defendant's trial and sentencing, rejected defendant's allegation that he lacked the
capacity to waive his right to a jury. This finding is not against the manifest
weight of the evidence.

2. Mitigation Strategy
Defendant argues that defense counsel failed to develop a mitigation
strategy and was, in essence, per se ineffective because he alone represented
defendant during the capital sentencing hearing. In support of this contention,
defendant argues that his assigned public defender (1) presented scant evidence
in mitigation; (2) was not specifically trained in the area of mitigation; and (3)
was provided no mitigation assistance by the public defender's office. In addition,
defendant cites People v. Perez, 148 Ill. 2d 168 (1992) for the proposition that an
attorney should never defend a capital murder case alone.
First, we find that the record clearly shows that defense counsel did have
a mitigation strategy. Prior to the sentencing phase, defense counsel commissioned
the National Center on Institutions and Alternatives ("NCIA") to investigate
defendant's background and prepare a comprehensive report for consideration by
the sentencing court. At defendant's sentencing hearing, defense counsel presented
the testimony of several of defendant's siblings, who testified to defendant's good
nature and how defendant assisted with family responsibilities. In addition,
defendant's older brother testified of their mother's serious illness and the
hardship and stress she would suffer should defendant be put to death.
Counsel also moved for, and was granted, the right for defendant to speak
in allocution. In doing so, defendant spoke of his limited education, lack of
parental guidance, and pleaded for the court's mercy. In closing argument, defense
counsel observed defendant's remorse and spoke of defendant's poor and
neglected family life, specifically referring to the NCIA and pre-sentence
investigation reports and their contents. Thus, we find no merit to defendant's
argument that counsel failed to develop a theory in mitigation.
Defendant's other arguments do not demonstrate that his counsel's
performance fell below an objective standard of reasonableness. Although
defendant's trial counsel stated in his affidavit that he was not provided any
mitigation assistance and was not specifically trained in the area of mitigation, he
was an experienced public defender who had previously represented many capital
defendants. See People v. Sanchez, 169 Ill. 2d 472, 492 (1996) (even if defense
counsel's first capital case that alone does not establish incompetence); People v.
Thomas, 164 Ill. 2d 410, 434 (1995) (not per se ineffectiveness because counsel
had no capital experience).
We similarly reject defendant's reliance on Perez for the contention that
his counsel was per se ineffective because he alone represented defendant at the
sentencing hearing. Initially we note that the text of Perez to which defendant
refers is the opinion of a witness testifying in that case, who stated that "no
attorney should try a capital case alone." Perez, 148 Ill. 2d at 183. Although this
court subsequently determined that the Perez defense counsel was ineffective, our
finding was not grounded on the fact that counsel worked alone. See Perez, 148 Ill. 2d at 186-87. Moreover, the record in the present case reveals that defendant
was represented by two attorneys throughout his trial. Defendant has not
established ineffective assistance of counsel merely because only one attorney was
present at his sentencing hearing.

3. Evidence of Defendant's Mental Impairments
Defendant next argues that his counsel was ineffective because he failed
to investigate and present available mitigating evidence that defendant was
mentally impaired. In support of this contention, defendant offered affidavits from
two of his siblings, which stated that when defendant was a young boy he placed
a fork into an electrical outlet and received a shock. Defendant contends that, had
counsel investigated his family background, he would have learned of defendant's
purported electrocution, which would have indicated a need to further evaluate
defendant's mental abilities.
Defense counsel's failure to investigate mitigating evidence, under certain
circumstances, can be deemed deficient performance. See Perez, 148 Ill. 2d at
189-91. Nevertheless, we do not find counsel's performance deficient in the
instant case. The record indicates that defense counsel did indeed interview
defendant about his background and family life. In addition, defense counsel
commissioned the NCIA to investigate defendant's background and draft an
extensive report. However, the NCIA report indicates that defendant's family
rejected numerous requests to be interviewed about defendant. Furthermore, no
medical records exist on the incident where defendant was shocked and other
records state that defendant never suffered from any serious injury or illness. See
People v. Brisbon, 164 Ill. 2d 236, 250-51 (1995) (affidavits of family members
asserting defendant's brain damage, without supporting medical records, are
insufficient to establish counsel's deficiency). Therefore, the record does not
persuasively establish that counsel's failure to learn of the incident was due to his
negligence or incompetence. See Eddmonds, 143 Ill. 2d at 533.
Defendant also offered copies of his school records through the ninth
grade, the year he dropped out of school. These records consist of grade reports,
IQ testing results, and the report of a school psychologist written when defendant
was nine years of age. Defendant contends that counsel should have inquired into
defendant's education because defendant had informed counsel that he was "slow"
in school and did not reach the ninth grade until he was 18 years-old. Defendant
asserts that these records, if discovered by counsel, would have indicated that
defendant suffered severe mental disabilities.
Defendant's school records reveal that in elementary school it was
determined that defendant failed to achieve at expected levels and had a slow rate
of mental growth. The school psychologist determined defendant would benefit
from a special education program, which defendant was referred to at age nine.
For two years of defendant's elementary education, he received grades indicating
unsatisfactory progress. However, in all the other years, defendant received grades
indicating either acceptable or good progress. Results of IQ tests conducted when
defendant was nine years of age indicated an IQ between 73 and 76. In addition,
the records show that defendant was actually only 15 years-old when he dropped
out of school.
Defendant also offered the results of Dr. Gelbort's psychological evaluation
of defendant. Dr. Gelbort compiled this evaluation for defendant's post-conviction
petition after reviewing defendant's records, court files, the post-conviction
evidence, and conducting psychological tests and personal interviews with
defendant. Testing by Dr. Gelbort indicated defendant's IQ was between 71 and
82. In Dr. Gelbort's opinion, defendant suffered from mild mental retardation and
a schizotypal personality disorder.
Even if we assume that defendant's trial counsel was incompetent for
failing to learn of defendant's educational inadequacies and consequently
submitting defendant to psychological evaluation, defendant has failed to
demonstrate how these facts create a reasonable probability that the sentencing
judge "would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d
at 698, 104 S. Ct. at 2069. Initially, we note that there is information in the school
records that is potentially aggravating to defendant. Defendant's high school
records indicate that he was excessively truant. Moreover, defendant dropped out
of school after he was caught breaking into the school building. See Henderson,
171 Ill. 2d at 154 (truancy and lack of interest in education are aggravating);
People v. Jones, 144 Ill. 2d 242, 274 (1991) (same).
Furthermore, the type of psychological evidence defendant offers is not
inherently mitigating. Although evidence of defendant's psychological or
educational disabilities may have evoked compassion from the sentencer, it also
could have demonstrated defendant's continued dangerousness. See Coleman, 168 Ill. 2d at 537-38 (some characteristics of personality disorders are aggravating);
People v. Franklin, 167 Ill. 2d 1, 27 (1995) (psychological problems could show
a need to protect society from the defendant because he is not deterrable); Jones,
144 Ill. 2d at 274 (psychological report reveals information damaging to
defendant).
Defendant also relies on People v. Perez, 148 Ill. 2d 168 (1992), where this
court ordered a new sentencing hearing because defense counsel was deficient for
failing to investigate and present mitigating evidence. Nevertheless, that case is
inapposite. Perez dealt with a defendant who had little evidence in aggravation
and a great deal of evidence in mitigation which his attorney failed to introduce
in any manner. In the instant case, defense counsel presented mitigating testimony
and proffered a report from an in-depth investigation into defendant's background.
Moreover, unlike Perez, this defendant has a great deal of aggravating evidence
that was overwhelming compared to any evidence in mitigation. See Coleman, 168
Ill. 2d at 539-40; Ashford, 168 Ill. 2d at 506; Thomas, 164 Ill. 2d at 430.
The aggravating evidence in the instant case established that defendant
planned and directed the armed robbery of three individuals in a private home.
During this robbery, defendant taunted and humiliated the victims while they were
bound and gagged. Defendant then savagely killed William Fueling, laughing as
he did so. He then directed his accomplices to execute the other two robbery
victims. When one of the victims fled, defendant shot him in order to prevent the
escape. The evidence also showed that defendant participated in the armed assault
and attempted kidnapping of Oscar Smith shortly after the robbery. The State's
evidence also established that defendant had an extensive history of criminal
behavior, beginning at age 13 and continuing until his arrest for the Fueling
murders. Moreover, this murder occurred only one month after defendant was
released from the Department of Corrections. Furthermore, the State's evidence
showed that while defendant was incarcerated awaiting sentencing, he attempted
to escape from the Cook County jail.
Defendant does not dispute that his individual circumstances constitute
overwhelming evidence of aggravation. Rather, defendant cites several cases
involving similar heinous murders where the defendant was not sentenced to
death. See People v. Allen, 228 Ill. App. 3d 149 (1992); People v. Rodriguez, 227
Ill. App. 3d 397 (1991); People v. Hartzol, 222 Ill. App. 3d 631 (1991); People
v. Wilson, 133 Ill. App. 3d 265 (1985); People v. Wilson, 132 Ill. App. 3d 862
(1985). Defendant argument is essentially a request for proportionality review,
which was raised and rejected on direct appeal and is, thus barred by res judicata
(see Johnson, 149 Ill. 2d at 158).
We cannot conclude that defendant suffered prejudice as a result of this
alleged deficiency of his trial counsel. Accordingly, the trial court did not err in
dismissing defendant's claim without an evidentiary hearing.

4. Evidence of Extreme Emotional Disturbance
Defendant next argues that his counsel was ineffective for failing to present
evidence that he suffered from an extreme emotional disturbance at the time these
crimes were committed. Defendant observes that whether a defendant was acting
under the influence of an extreme emotional disturbance at the time of the murder
is one of the factors to be considered in mitigation, and may be a basis for
imposing a sentence other than death. See 720 ILCS 5/9--1(c)(2) (West 1994).
Defendant cites Dr. Gelbort's diagnosis that defendant suffers from a schizotypal
personality disorder as evidence that defendant was operating under the influence
of an extreme emotional disturbance at the time of these crimes.
We do not believe that defendant's counsel was ineffective for failing to
make this particular argument at sentencing. A defendant is under the influence
of an extreme emotional disturbance when his emotional state at the time of the
murder is at "such a fragile point as to leave him with little to no emotional
control." People v. Phillips, 127 Ill. 2d 499, 534 (1989). There was nothing about
defendant's personal history or these particular crimes which would have
prompted counsel to explore such a mitigation strategy.
Moreover, we find it unlikely that the additional evidence offered by
defendant would have caused the sentencing judge to conclude that defendant was
under the influence of an extreme emotional disturbance at the time of these
crimes. Defendant acted in a composed and rational manner at the time of the
murder. Defendant acted coherently, speaking to the victims and drinking a beer
with them. Subsequently, defendant directed the robbery and then ordered the
execution of all the victims. It is also apparent defendant appreciated the
criminality of his acts, as he concocted a story to protect himself and explain why
his coat would be found at the scene. Given all the evidence considered by the
sentencing court, including the brutal facts of the crime and defendant's extensive
criminal record, defendant has failed to demonstrate a reasonable probability that
the sentencing judge would not have imposed the death penalty if counsel had
presented Dr. Gelbort's testimony in an attempt to demonstrate that defendant
acted under an extreme emotional disturbance at the time of the murder. See
Henderson, 171 Ill. 2d at 152; Coleman, 168 Ill. 2d at 538-39 (and cases cited
therein); People v. Foster, 168 Ill. 2d 465, 491-92 (1995).
Defendant's reliance on cases in which this court has vacated the death
sentence is misplaced. See People v. Leger, 149 Ill. 2d 355 (1992); People v.
Johnson, 128 Ill. 2d 253 (1989); People v. Carlson, 79 Ill. 2d 564 (1980).
Defendants in those cases, in addition to suffering from a severe emotional
disturbances at the time of their crimes, had no significant prior criminal records.
Here, defendant has failed to establish that he was operating under an extreme
emotional disturbance at the time of the crimes. Furthermore, the record
demonstrates that defendant had an extensive criminal background.

5. Other Evidence in Mitigation
Defendant also contends that defense counsel was ineffective because he
failed to investigate and present other key mitigating facts. In his post-conviction
proceedings, defendant offered the affidavits of his girlfriend and several siblings.
According to the affidavits, these witnesses would testify that defendant was a
quite and sweet-natured individual who was always helpful and obedient to his
parents. In addition, some of the witnesses would testify that defendant was
physically abused by his alcoholic father. Furthermore, defendant offered copies
of his juvenile court records, which included a family investigation by his
probation officer detailing defendant's dysfunctional family life.
Even if we assume that counsel was incompetent for failing to offer the
testimony of these witnesses, we find for several reasons that defendant was not
prejudiced as a result. First we find that the evidence now offered by defendant
was essentially cumulative of information presented at the sentencing hearing by
trial counsel or considered by the sentencing court from other sources. At the
sentencing hearing, defendant's siblings testified about defendant's good nature
and helpfulness. Additionally, the sentencing court considered much of this
information from other sources. Through the NCIA report, the sentencing judge
learned extensive information about the poverty of defendant's family and
defendant's dysfunctional upbringing. The additional testimony offered by
defendant on these points would have been cumulative. Defense counsel's
performance cannot be considered deficient because of a failure to present
cumulative evidence. Henderson, 171 Ill. 2d at 155.
Furthermore, portions of the proposed testimony are either untrue or not
helpful to defendant. For example, one proposed sibling would have testified that
defendant was always obedient to their parents. This point is refuted by the record,
which indicates defendant was a continual juvenile offender and was once arrested
for stealing from his parents. In addition, defendant's girlfriend's version of
defendant's family life included defendant being beaten with a police stick and
having his head rammed against a wall. In comparison, defendant's siblings
merely state that defendant "might have been" or was "maybe" physically abused.
Moreover, the juvenile records detail defendant's extensive criminal background,
which began in his early teen years and culminated in increasingly violent
offenses. Furthermore, the description of defendant as a peaceful, non-violent,
follower simply does not correspond to the accounts of the crimes, which
demonstrate defendant's nature as a domineering and ruthless killer.
As we previously noted, the evidence in aggravation against defendant was
overwhelming. Therefore, we find that, had this additional information been
admitted, there is no reasonable likelihood that the result of defendant's sentencing
proceeding would have been different. See Guest, 166 Ill. 2d at 409-10
(aggravating evidence presented at sentencing establishes defendant's character
much more persuasively than testimony of defendant's relatives and friends);
Mahaffey, 165 Ill. 2d at 466-67 (testimony of defendant's family and friends was
cumulative and would not have outweighed defendant's extensive criminal record).

Constitutionality of Death Sentence
Defendant next contends that the trial court erred in dismissing his post-
conviction petition without an evidentiary hearing on his claim that his death
sentence was unconstitutional. Defendant makes several assertions in support of
this claim, arguing that his death sentence is unconstitutional because (1) the
sentencing court did not consider defendant's mental impairments; (2) defendant
is mentally retarded; and (3) defendant has the mental age of a 13 year-old.
Defendant also argues (4) the Illinois death penalty statute is unconstitutional.

1. Consideration of Mental Impairments
Defendant argues that the evidence he presented with his post-conviction
petition demonstrated that he is mentally impaired, was under the influence of an
extreme emotional disturbance at the time of the murder, and lacked the capacity
to waive his jury for sentencing. Defendant contends that, because the sentencing
court did not consider the evidence of his mental condition, his death sentence
cannot be the result of the constitutionally-guaranteed individualized assessment
of mitigating factors. See Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989); Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954
(1978). We reject defendant's argument.
The cases defendant relies upon all involved situations where the sentencer
either refused or was prevented from considering mitigating evidence in
determining the defendant's sentence. See Penry, 492 U.S. at 319-20, 106 L. Ed. 2d at 278-79, 109 S. Ct. at 2947 (jury precluded from considering evidence and
giving it mitigating effect); Eddings, 455 U.S. at 113-14, 71 L. Ed. 2d at 10-11,
102 S. Ct. at 877-76 (sentencing judge refused to consider, as a matter of law,
relevant mitigating evidence); Lockett, 438 U.S. at 607-08, 57 L. Ed. 2d at 991-92,
98 S. Ct. at 2966 (consideration of mitigating evidence limited to three statutory
mitigating factors). The Eighth Amendment does not, as defendant's argument
implies, mandate that defendant or his counsel present every bit of potentially
mitigating information. Rather, the Eighth Amendment "prohibits a State from
precluding a sentencing body from considering any potential mitigating evidence
presented by the defendant." People v. Scott, 148 Ill. 2d 479, 560 (1992); see also
Eddings, 455 U.S. at 115 n.10, 71 L. Ed. 2d at 11 n.10, 102 S. Ct. at 877 n.10
("Lockett requires the sentencer to listen").
Defendant's contention is comparable to one made by the defendant in
People v. Wright, 149 Ill. 2d 36, 50-53 (1992). In Wright, the defendant, relying
upon Eddings, argued that his Eighth Amendment rights were violated because he
was sentenced without the benefit of undiscovered reports which would reveal
evidence of his troubled youth. This court determined that the proper analysis of
defendant's claim was to determine whether he had been prejudiced under the
Strickland standard. Wright, 149 Ill. 2d at 50-51. Because we have already
determined that defendant was not prejudiced by any alleged incompetence of his
defense counsel at sentencing, this related argument must also fail.

2. Defendant's Mental Retardation
Defendant next contends that his death sentence is unconstitutional because
he is mentally retarded. In support of this contention, defendant cites his IQ of 71
and Dr. Gelbort's diagnosis that defendant suffered from mild mental retardation.
Defendant acknowledges that the U.S. Supreme Court has previously determined
that the Eighth Amendment does not preclude the execution of a mentally retarded
defendant convicted of a capital crime (see Penry, 492 U.S. at 340, 106 L. Ed. 2d
at 292, 109 S. Ct. at 2958). Despite that decision, defendant argues that the
"standards of international morality" have now evolved to such a point that the
execution of the mentally retarded should now be constitutionally proscribed.
The State argues that defendant has failed to sufficiently establish that he
is mentally retarded, observing that even defendant's lowest measured IQ is higher
than the upper limit of 70 set for classifying individuals as mentally retarded. See
Penry, 492 U.S. at 308 n.1, 106 L. Ed. 2d at 271 n.1, 109 S. Ct. at 2941 n.1.
Nevertheless, we need not address the State's argument in order to reject
defendant's claim.
The Penry court, in 1989, determined that it is not unconstitutional to
execute a mentally retarded person who is convicted of a capital crime. In coming
to this conclusion, the Court rejected the defendant's claim that a there was a
national consensus against executing the mentally retarded, finding insufficient
objective evidence of such a consensus. Penry, 492 U.S. at 333-35, 106 L. Ed. 2d
at 288-89, 109 S. Ct. at 2955. The defendant here cites no significant objective
evidence beyond that which was found insufficient in Penry. Therefore, we do not
depart from that decision.

3. Defendant's Mental Age
Defendant next contends that his death sentence is unconstitutional because
he has the "mental age" of only a juvenile. In support, defendant cites Dr.
Gelbort's report, which opined that defendant " `thinks' like a thirteen or fourteen
year old." Observing that it has been determined to constitute cruel and unusual
punishment to execute a defendant who was under 16 years of age (Thompson v.
Oklahoma, 487 U.S. 815, 838, 101 L. Ed. 2d 702, 720, 108 S. Ct. 2687, 2700
(1988)), defendant reasons that executing a defendant with a mental age under 16
years of age is also prohibited. We disagree.
Despite defendant's contentions otherwise, the U.S. Supreme Court has
previously rejected the concept of mental age as a basis for exculpating a
defendant from criminal responsibility. See Penry, 492 U.S. at 339-40, 106 L. Ed. 2d at 291-92, 109 S. Ct. at 2958 ("mental age should not be adopted as a line-
drawing principle in our Eighth Amendment jurisprudence"). The Penry court
noted several limitations of the mental age concept, including that it
underestimates the life experiences of mentally retarded adults and that the mental
age of the average adult is only that of a 16 year-old. Penry, 492 U.S. at 339-40,
106 L. Ed. 2d at 291-92, 109 S. Ct. at 2958. In addition, the Penry court observed
that state courts, including this court, have long been reluctant to rely on the
mental age concept. Penry, 492 U.S. at 339-40, 106 L. Ed. 2d at 292, 109 S. Ct. at 2958, citing People v. Marquis, 344 Ill. 261, 267 (1931). Defendant has failed
to offer a sound basis why this court should not continue to follow Penry.

4. Constitutionality of Illinois Death Penalty Statute
Defendant's final two arguments challenge the constitutionality of the
Illinois death penalty statute (720 ILCS 5/9--1 (West 1994)). First, defendant
argues that, because prosecutors are given unfettered discretion to decide which
cases to seek the death penalty, the application of the death penalty leads to
irrational and arbitrary results. This particular challenge was also raised by
defendant on direct appeal and may not be again considered under the bar of res
judicata. See Johnson, 149 Ill. 2d at 162.
Lastly, defendant's argues that the Illinois death penalty statute is
unconstitutional because it results in a disproportionate number of death sentences
imposed upon African-American defendants who are convicted of murdering white
victims. We find this contention waived. Although defendant's direct appeal raised
eight challenges to the constitutionality of the death penalty statute, defendant did
not raise this particular challenge in that appeal. See Johnson, 149 Ill. 2d at 162-
64. Defendant may not raise an issue on collateral review which could have been
raised previously. People v. Hampton, 165 Ill. 2d 472, 480 (1995). Because this
question could have been raised on direct appeal, the issue is waived. Moreover,
we observe that this particular claim has been repeatedly rejected by this court.
See, e.g., People v. Williams, 147 Ill. 2d 173, 268-69 (1991); People v. Orange,
121 Ill. 2d 364, 392 (1988); People v. Davis, 119 Ill. 2d 61, 68 (1987).

CONCLUSION
For the reasons stated above, we affirm the judgment of the circuit court
of Cook County dismissing defendant's amended petition for post-conviction
relief. We hereby direct the clerk of this court to enter an order setting Tuesday,
November 10, 1998, as the date on which the sentence of death entered by the
circuit court of Cook County is to be carried out. The 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 now confined.

Affirmed.