People v. Coleman

Annotate this Case
People v. Coleman, No. 81441 (10/1/98)
Docket No. 81441--Agenda 3--May 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DEDRICK COLEMAN, Appellant.
Opinion filed October 1, 1998.

CHIEF JUSTICE FREEMAN delivered the opinion of the
court:
Following a trial in the circuit court of Cook County, a jury
convicted defendant, Dedrick Coleman, of two counts of first
degree murder, armed robbery, and home invasion. Defendant
waived his right to a jury for the ensuing capital sentence
hearing, and the circuit court sentenced him to death on the
murder convictions. The circuit court also sentenced defendant
to concurrent terms of 30 years for each of the home invasion
convictions and concurrent terms of 30 and 60 years for the
armed robbery convictions. The sentences for the armed robbery
convictions were to be served consecutively to the terms for
home invasion. On direct appeal, this court affirmed defendant's
convictions and sentences. People v. Coleman, 158 Ill. 2d 319
(1994). The United States Supreme Court subsequently denied
defendant's petition for writ of certiorari. Coleman v. Illinois,
513 U.S. 881, 130 L. Ed. 2d 143, 115 S. Ct. 215 (1994).
Defendant thereafter filed a petition, which was later
amended with leave of court, for relief pursuant to the Post-
Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West
1994)). The circuit court dismissed the amended petition without
an evidentiary hearing, and this appeal followed. 134 Ill. 2d R.
651. We now affirm in part and reverse in part the order of the
circuit court and remand the cause for an evidentiary hearing.

BACKGROUND
This court previously detailed the evidence adduced at
defendant's trial in our opinion on direct appeal. See People v.
Coleman, 158 Ill. 2d 319. Accordingly, we will reiterate here
only those facts which are germane to the issues raised in this
appeal. Defendant's convictions stemmed from the double
murders of Lance Hale and Avis Welch, which occurred in the
first-floor apartment of a two-flat home in Chicago on April 26,
1989. The first-floor apartment was a known "drug house"
owned and operated by Alex McCullough. Defendant knew
McCullough through his employment in McCullough's drug
operation. McCullough was also the boyfriend of defendant's
sister. About one month before the murders, defendant and
McCullough had argued about defendant's alleged theft of
cocaine and $2,000.
At trial, Aldene Lockett, who lived in the second-floor
apartment of the two-flat, testified that at around 5:30 a.m. on
April 26, 1989, she heard voices coming from the first-floor
apartment. A short while later, she heard a gunshot and
something fall. Two more shots later rang out, and Lockett
heard a door open. At this time, she looked out her window and
saw a dark-complected young man between 5 feet 6 inches and
5 feet 8 inches leave the apartment. The man was wearing all
black clothing and sunglasses. Lockett later related what she had
seen to police officers investigating the Hale/Welch murders.
Eventually, police connected defendant to the drug house
murders, in large part due to defendant's shooting of
McCullough five days later on May 1, 1989. Several people
were present at the time of the McCullough shooting, and
defendant told them that he wanted it said that he shot
McCullough in self-defense. Nevertheless, some of these
witnesses later turned themselves in to the police and informed
them of defendant's true role in McCullough's shooting, as well
as his involvement in the double homicide at the drug house. As
a result, defendant participated in a lineup which was viewed by
Aldene Lockett on May 2, 1989. At trial, Lockett testified that
one of the lineup participants "looked like he fit the height and
description" of the man she had seen leave the drug house.
Lockett further told police that the man had been wearing
sunglasses. The police then asked each of the lineup participants
to put on sunglasses. All but one of the participants complied.
According to Lockett, the participant who did not put on the
sunglasses was the same participant who had the weight and
height of the man she had seen leave the drug house. On cross-
examination, Lockett stated that she did not positively identify
anyone to police from the lineup, but merely told the police that
the man who did not put on the glasses "could have been" the
same man she had seen leave the murder scene because "he had
the same height, and build, and color."
Chicago police Detective Tony Maslanka testified that he
and his partner, Detective Carroll, conducted the lineup which
Lockett viewed. According to Maslanka, Lockett told him that
one of the men in the lineup, identified by Maslanka as
defendant, "looked like the individual she saw leave the first-
floor apartment *** in regard to height, complexion, and
physical build." Maslanka stated that because Lockett had seen
the suspect leave the building wearing sunglasses, each of the
lineup participants was asked to put on a pair of sunglasses. All
of the participants in the lineup complied, with the exception of
defendant. Lockett again stated to Maslanka that the man who
did not put on the sunglasses "was the individual whom she saw
that day in question with regard to height, physical build, and
complection [sic]." On cross-examination, Maslanka admitted
that Lockett did not positively identify defendant as the man she
had seen leave the scene of the murders. Rather, Maslanka
characterized her identification as "tentative" because Lockett
had told him that she had not been wearing her glasses when
she saw the suspect leave the building and that she was
nearsighted.
The only other aspect of defendant's original trial which is
at issue in this post-conviction proceeding is defendant's
sentencing hearing. As noted previously, defendant waived his
right to a jury at the capital sentence hearing. At the eligibility
phase of the hearing, the circuit court found that defendant was
over 18 years of age at the time of the murders and that the
murders were committed during the course of an armed robbery.
Accordingly, the court found defendant eligible for the death
penalty. The court then commenced the aggravation/mitigation
phase of the hearing. In aggravation, the State stressed the facts
of the double murders and also adduced evidence concerning
defendant's prior criminal record and disciplinary record while
incarcerated. At the close of the State's case in aggravation, the
circuit court granted defense counsel's request for additional
time to gather evidence in mitigation. The circuit court also
ordered that a presentencing investigation (PSI) report be
prepared on defendant. However, the court was informed, at the
next hearing, that the PSI report had not been prepared because
defendant refused to be interviewed.
After several more continuances, the proceedings
reconvened. The circuit court first denied defendant's previously
filed motion for a new trial, but granted defendant's motion for
allocution during the sentence hearing. The transcript of
proceedings then reveals the following colloquy between the
court, defense counsel, and defendant:
"THE COURT: *** Does defense have any evidence to
submit in mitigation?
MR. PANARESE [defense counsel]: No evidence. I
would like to make a record of some of the people that I
did talk to, your Honor, some of Dedrick Coleman's family:
specifically Laurence Coleman,[fn1] Erica Coleman who
are sisters and Bernice Coleman and Fred Coleman who are
the mother and father of Dedrick Coleman, Leaetta McGee,
Lorrine McGee, Carl and Jerry McGee who are relatives on
his mother's side.
Your Honor, I had spoke with them all and they
conveyed to me that it was through conversation with the
defendant that defendant did not want them to testify in that
matter. They were unwilling to testify and they are not here
obviously your Honor, and so we do not have any witnesses
to speak on behalf of the defendant at this time.
THE COURT: Mr. Coleman, Mr. Panarese had
discussed the fact that those people--he spoke to these
people and they did not wish to testify at this hearing.
DEFENDANT: Yes, I told them not to.
THE COURT: Do you have anybody that you wish to
call to testify before the Court in this hearing?
DEFENDANT: Yes, I do, but I don't want them here.
I just--you know.
THE COURT: Well, you have to tell me if you have
anybody you wish to call?
DEFENDANT: I don't have nobody I wish to call.
THE COURT: Pardon me.
DEFENDANT: No, sir. I don't have nobody I wish to
call.
THE COURT: You understand we will issue subpoenas
if you wish?
MR. PANARESE: Could I have one minute, Judge.
THE COURT: Yes."
After a short recess, defense counsel informed the court that
defendant did not "wish any subpoenas to be issued."
The court next asked counsel to present their arguments in
aggravation and mitigation. After hearing both arguments, the
court allowed defendant to address the court in allocution. In his
statement, defendant told the court that he did not commit the
murders and that his sister, Laurarence, testified against him
because "Mr. Hynes [the assistant State's Attorney] threatened
to take her kids as well as lock her up. *** Now my little sister
as well as the rest of them is willing to stand up in open court
and tell what was really going on because this case is not mine."
At the conclusion of these remarks, the court allowed defense
counsel another opportunity to confer with defendant before any
sentence was imposed. The following colloquy then occurred:
"MR. PANARESE: Judge, in light of the statement, we
are asking the Court to grant a continuance in this case for
defendant to reopen mitigation phase of the hearing and
also the possibility to file an amended motion for new trial.
I would ask for a continuance to talk to the people he spoke
about.
THE COURT: Who is that for the record.
MR. PANARESE: Specifically, Laurarence Coleman,
Sophia Coleman and the mother of the defendant, Bernice
Coleman and I will serve them with subpoenas, Judge and
get them into court.
THE COURT: Mr. Coleman, I previously asked you
when during mitigation hearing if you wish any witnesses
called to testify on your behalf. Mr. Panarese at that time
had read off a list witnesses [sic] I believe which included
these particular persons, is that correct, Mr. Panarese.
MR. PANARESE: Yes.
THE COURT: And I asked you Mr. Coleman if you
wish any of those persons called or if you wish any other
persons called to testify during mitigation hearing and you
at that time indicated that you did not want them called, is
that correct?
DEFENDANT: Yes, sir, your Honor, but I
misinterpreted on how mitigation -- I thought you would
just speak as far as if I wanted anybody to come in and you
know --
THE COURT: Well, you have had a misunderstanding
then with regards to that?
DEFENDANT: Yes.
THE COURT: You were asked that question and you
indicated you did not wish any of them to testify?
DEFENDANT: I did say that.
THE COURT: Now is it my understanding from the
motion of Mr. Panarese that he has asked that mitigation
hearing be reopened so you may call these witnesses?
DEFENDANT: Yes, sir, your Honor."
The court granted the motion and continued the cause for one
week so that the mitigating witnesses could be secured.
When court reconvened, defendant called Laurarence and
Sophia Coleman as mitigation witnesses. Both women denied
that anyone had threatened to take away Laurarence's children
in order to pressure her to testify against defendant. Defendant
also presented the stipulated testimony of two cousins, Edward
and Laura Davis, both of whom would have testified that Sophia
told defendant that she did not know of any threats by the
State's Attorney's office against Laurarence in order to compel
her testimony at trial. The defense then rested in mitigation.
After taking note of the aggravating evidence, the circuit
court individually listed the mitigating factors listed in the death
penalty statute. With respect to the first mitigating factor, i.e.,
the lack of a significant prior criminal activity, the court
specifically found that the factor was not met in this case, due
to defendant's three prior felony convictions. The court further
found that the murders were not committed while defendant was
under the influence of extreme mental or emotional disturbance,
the second listed factor in mitigation. The court then ruled that
the third, fourth, and fifth factors in mitigation were not
applicable to the case in view of the circumstances surrounding
the double homicide. Moreover, based on the evidence of
defendant's disciplinary record while previously incarcerated,
the court concluded that defendant could not be rehabilitated or
restored to useful citizenship, the sixth factor listed in the
statute. Finally, the court noted that the statute provides that any
other evidence in mitigation which was supported by the
evidence could be considered in deciding whether defendant
should not be sentenced to death. See Ill. Rev. Stat. 1987, ch.
38, par. 9--1. The court stated that it "can find no reasons why--
or no mitigating factors applicable to this defendant based upon
this record that would prevent him from receiving the death
penalty." The circuit court therefore sentenced defendant to
death.
As noted earlier, this court affirmed defendant's convictions
and sentences on direct appeal. Defendant subsequently filed an
amended post-conviction petition, which alleged that several
constitutional errors occurred during defendant's trial and
sentencing hearing. Attached to the petition were numerous
affidavits, a psychological evaluation, and a social history
investigation prepared by a mitigation specialist. We will only
discuss those claims that are raised by defendant in this appeal.
Defendant's petition initially alleged that the State violated
defendant's right to due process and a fair trial by concealing
material evidence which was favorable to the defense and by
using perjured testimony to obtain the convictions. In support of
this claim, defendant attached to his petition the affidavit of
Aldene Lockett. In the affidavit, Lockett states that she saw the
gunman's face as he was leaving the first-floor apartment and
that she remembers "recognizing it from the neighborhood."
According to the affidavit, while at the lineup, Lockett "felt that
the police were trying to get me to single out the male who
refused to put on the shades, because they went back to him in
the lineup and told me that this was the guy we picked up for
the murders. I told them that this guy was not dark enough to
be the guy who had come out of the downstairs apartment."
Lockett also states in her affidavit that she does not "remember
seeing the guy who refused to wear the shades during the police
lineup in the neighborhood before" and that she remembers
"telling the States Attorney, Michael Kelly, about how this guy
in the lineup didn't look like the guy I saw come out of the
downstairs apartment, but [Kelly] would always say something
to try and convince me that he was the right guy." Finally,
Lockett states that Assistant State's Attorney Kelly and his
investigators "would call her every two or three days to go over
[her] story to make sure it didn't change." In exchange for her
testimony, the investigators promised to move her to her home
state of Alabama or to find her a new place to live in Chicago.
After one year had passed and Lockett was ready to move, she
called the State's Attorney's office, but was told that Kelly no
longer worked there. Lockett further states that no one from the
defense team ever contacted her. Defendant's amended petition
also alleged ineffective assistance of counsel based on this
affidavit in addition to counsel's failure to interview certain
witnesses to the Alex McCullough shooting. Finally, defendant's
petition alleged that defendant was denied effective assistance
of counsel during his sentence hearing because counsel failed to
investigate and present certain mitigating evidence. The circuit
court dismissed the petition without an evidentiary hearing on
motion of the State. In ordering the dismissal, the court
specifically ruled that "[t]here's nothing remarkable about the
Defendant's argument in support of the petition for post-
conviction relief. This Court finds the allegations do not rise to
a significant deprivation of rights under the constitutions of the
United States and the State of Illinois." This appeal followed.

ANALYSIS
We begin our analysis with a discussion of the standard of
review to be employed in this case. Defendant argues that the
correct standard is one of de novo review. In support of his
position, defendant points out that a post-conviction petitioner
is entitled to an evidentiary hearing when the allegations in the
petition make a substantial showing of a deprivation of rights
under the United States and/or Illinois Constitutions. Moreover,
defendant notes that in determining whether an evidentiary
hearing is required, the circuit court must take all well-pleaded
facts in the petition and affidavits as true. See People v.
Caballero, 126 Ill. 2d 248 (1989). As such, defendant contends,
the issues raised in this case are purely legal and the decisions
of the circuit court in this regard are not entitled to any
deference by a court of review. The State, on the other hand,
maintains that the determinations of the circuit court in post-
conviction matters will not be disturbed on review unless they
are manifestly erroneous.
A proper standard of review cannot be articulated without
first examining the substantive and procedural backdrop against
which the appealed order or ruling arose. The Illinois Post-
Conviction Hearing Act provides a mechanism by which those
under criminal sentence in this state can assert that their
convictions were the result of a substantial denial of their rights
under the United States Constitution or the Illinois Constitution
or both. See 725 ILCS 5/122--1 (West 1994). Proceedings under
the Act are commenced by the filing of a petition in the circuit
court in which the original proceeding took place. The petition
must clearly set forth the respects in which the petitioner's
rights were violated. See 725 ILCS 5/122--2 (West 1994).
Section 122--2 of the Act requires that affidavits, records, or
other evidence supporting the petition's allegations be attached
to the petition. See 725 ILCS 5/122--2 (West 1994).
Section 122--2.1 of the Act directs the circuit court to
dismiss the petition if the petitioner is sentenced to
imprisonment and if the court determines that "the petition is
frivolous or is patently without merit." 725 ILCS 5/122--
2.1(a)(2) (West 1994); see also People v. Brisbon, 164 Ill. 2d 236, 242-43 (1995) (discussing the Act's differing procedures
for prisoners under sentence of death and those sentenced to
imprisonment). We note that section 122--2.1 does not
contemplate any type of responsive pleading by the State to be
filed at that time. If a petition is not dismissed under section
122--2.1, then it is to be docketed and considered in accordance
with sections 122--4 through 122--6 of the Act (725 ILCS
5/122--2.1(b) (West 1994)). In such cases and in the cases of
petitioners under sentence of death, section 122--5 directs that
the State shall either answer or move to dismiss the petition. In
the event that a motion to dismiss is filed and denied, the State
must file an answer within 20 days after such denial. See 725
ILCS 5/122--5 (West 1994). Under section 122--6, the court
may receive proof by affidavits, depositions, oral testimony or
other evidence. If the court finds in favor of the petitioner, it
shall enter an appropriate order. See 725 ILCS 5/122--6 (West
1994).
As the foregoing statutory scheme makes clear, post-
conviction relief is limited to constitutional deprivations which
occurred at the original trial. This court has construed the Act
to require
"that when a petition is filed invoking the act, the trial
court shall examine the petition with a view to determining
whether the allegations of fact, liberally construed in favor
of the petitioner, and taken as true, make a showing of
imprisonment in violation of the Federal or State
constitution, such as, for example, conviction upon a
coerced confession, conviction by the use of testimony
known by prosecuting officers to be perjured, coercion of
a plea of guilty, or that the accused was prevented by
public officials from summoning witnesses in his defense.
If the petition so charges, the trial court should ascertain
whether it is supported by accompanying affidavits and if
not, whether the absence of such affidavits is sufficiently
explained and excused by the petitioner's own sworn
statements. Where there are no supporting affidavits and
their absence is neither explained nor excused, the trial
court should either dismiss the petition or grant a further
time within which such affidavits may be obtained.
A petition meeting these requirements, both to
substantial allegations of the denial of a constitutional right
and as to affidavits, is sufficient to invoke the act. Such a
petition calls for an answer from the State's Attorney and
a hearing on the merits." People v. Jennings, 411 Ill. 21, 26
(1952).
Thus, at the dismissal stage of a post-conviction proceeding,
whether under section 122--2.1 or under section 122--5, the
circuit court is concerned merely with determining whether the
petition's allegations sufficiently demonstrate a constitutional
infirmity which would necessitate relief under the Act.[fn2]
Moreover, our past holdings have foreclosed the circuit court
from engaging in any fact-finding at a dismissal hearing because
all well-pleaded facts are to be taken as true at this point in the
proceeding. People v. Caballero, 126 Ill. 2d 248, 259 (1989);
see also People v. Wegner, 40 Ill. 2d 28, 31-32 (1968)
(recognizing that factual disputes raised by the pleadings require
a determination of the truth or falsity of the supporting affidavits
or exhibits, a determination which cannot be properly made at
a hearing on motion to dismiss, but rather can only be resolved
through an evidentiary hearing).
Although a post-conviction petitioner is not entitled to an
evidentiary hearing as a matter of right, this court has repeatedly
stressed that a hearing is required whenever the petitioner makes
a substantial showing of a violation of constitutional rights. See,
e.g., People v. Hobley, 182 Ill. 2d 404, 428 (1998); People v.
Gaines, 105 Ill. 2d 79, 91-92 (1984). To accomplish this, the
allegations in the petition must be supported by the record in the
case or by its accompanying affidavits. Gaines, 105 Ill. 2d at
91-92. Nonfactual and nonspecific assertions which merely
amount to conclusions are not sufficient to require a hearing
under the Act. People v. West, 43 Ill. 2d 219, 223 (1969);
People v. Smith, 40 Ill. 2d 562, 564 (1968). We note that if the
allegations contained in the petition are based upon matters of
record, no extrinsic evidence may be required. See People v.
Jones, 66 Ill. 2d 152, 157 (1977) (noting that a court may
properly dismiss a post-conviction petition if the record of
proceedings at trial shows the petition to be nonmeritorious);
People v. Morris, 43 Ill. 2d 124, 128 (1969) (holding that upon
a motion to dismiss, the circuit court may render its decision on
the basis of what is contained in the pleading, considered with
the transcript of the proceeding). In fact, this court has
consistently upheld the dismissal of a post-conviction petition
when the allegations are contradicted by the record from the
original trial proceedings. Gaines, 105 Ill. 2d at 91-92; People
v. Arbuckle, 42 Ill. 2d 177, 182 (1969). On the other hand, when
a petitioner's claims are based upon matters outside the record,
this court has emphasized that "it is not the intent of the [A]ct
that [such] claims be adjudicated on the pleadings." People v.
Airmers, 34 Ill. 2d 222, 226 (1966). See also People v.
Clements, 38 Ill. 2d 213, 216 (1967) (same). Rather, the
function of the pleadings in a proceeding under the Act "is to
determine whether the petitioner is entitled to a hearing."
Airmers, 34 Ill. 2d at 226. Therefore, the dismissal of a post-
conviction petition is warranted only when the petition's
allegations of fact--liberally construed in favor of the petitioner
and in light of the original trial record--fail to make a substantial
showing of imprisonment in violation of the state or federal
constitution.
Our analysis thus far has been limited to (i) what the Act
requires of a petitioner and (ii) how the circuit court should
evaluate the allegations contained in the petition when assessing
their sufficiency to invoke relief under the Act. We must now
determine, in light of the above discussion, what measure of
review should be afforded to the circuit court once it has
rendered its decision concerning the sufficiency question. We
acknowledge that this court, in the past, has not charted an
entirely clear course with respect to the standard of review to be
utilized upon the dismissal of a post-conviction petition--in fact,
our case law suggests that this relatively straightforward issue
is susceptible to multiple answers. For example, several of our
opinions have held that a dismissal of a petition without an
evidentiary hearing will not be disturbed absent an abuse of
discretion. See, e.g., People v. Madej, 177 Ill. 2d 116, 127
(1997); People v. Whitehead, 169 Ill. 2d 355, 370-71 (1996).
Other opinions have held that the same determination will not
be disturbed unless it is manifestly erroneous. See, e.g., People
v. Maxwell, 173 Ill. 2d 102, 107 (1996); People v. Silagy, 116 Ill. 2d 357, 365 (1987). The latter cases, of course, do not cite
the cases that employ the abuse of discretion standard for the
same question. However, one might argue that the two standards
are not truly that different. Both require an appellate court to
view the circuit court's actions deferentially. As the Seventh
Circuit has aptly noted, there exist "verbal distinctions within
the deferential category (clear error, substantial deference, abuse
of discretion) [that] have little consequence in practice." Johnson
v. Trigg, 28 F.3d 639, 643 (7th Cir. 1994). Our task is to
determine what amount of deference, if any, must a court of
review give to the circuit court's decision to dismiss a post-
conviction petition without an evidentiary hearing. In deciding
this question, we do not mean to express an opinion on the
correctness of any prior decision. In light of the arguments
presented in this appeal, however, we believe that it is
appropriate at this time to clarify this area of the law, not only
for the litigants in the instant case, but for those in future cases,
as well.
We initially turn to the manifestly erroneous standard,
which this court first applied to a dismissal of a post-conviction
petition without an evidentiary hearing in People v. Silagy, 116 Ill. 2d 357 (1987). In so doing, the court stated, without
analysis, that
"[a]t a hearing under the Post-Conviction Hearing Act, the
burden is on the defendant to establish a substantial
deprivation of rights under the United States Constitution or
the Constitution of Illinois [citations], and determinations by
the trial court will not be disturbed unless manifestly
erroneous (People v. Griffin (1985), 109 Ill. 2d 293, 303;
People v. Bracey (1972), 51 Ill. 2d 514)." Silagy, 116 Ill. 2d at 365.
However, neither Griffin nor Bracey, the two cases cited by the
Silagy court as authority for the manifestly erroneous standard,
concerned the dismissal of post-conviction petitions without an
evidentiary hearing. Rather, the question presented to this court
in each case was whether the circuit court properly denied post-
conviction relief after a full evidentiary hearing had been
conducted. See People v. Griffin, 109 Ill. 2d 293 (1985); People
v. Bracey, 51 Ill. 2d 514 (1972). A review of this court's precise
language in Bracey demonstrates that the "manifestly erroneous"
standard applied to credibility determinations made at the
evidentiary stage of the proceeding:
" 'The credibility of the testimony in a post-conviction
case, as in other cases tried by the court without a jury, is
a matter for the trial judge to determine, and unless
something appears to show that the determination by the
trial judge was manifestly erroneous, the trial judge, who
had an opportunity to see and hear each witness[,] will be
upheld." Bracey, 51 Ill. 2d at 517.
Implicit in the Bracey court's comments is the understanding
that the post-conviction trial judge is able to observe and hear
the witnesses at the evidentiary hearing and, therefore, occupies
a "position of advantage in a search for the truth" which "is
infinitely superior to that of a tribunal where the sole guide is
the printed record." Johnson v. Fulkerson, 12 Ill. 2d 69, 75
(1957). See also People v. Calhoun, 22 Ill. 2d 31, 34 (1961).
Nevertheless, the Silagy court offered no explanation for its
decision to utilize the same standard of review applicable to
rulings made by the circuit court after an evidentiary hearing to
decisions made by the circuit court at a dismissal hearing. Nor
did it explain why the dismissal decision was entitled to
deferential review.
The manifestly erroneous standard represents the typical
appellate standard of review for findings of fact made by a trial
judge. See M. Davis, A Basic Guide to Standards of Judicial
Review, 33 S.D.L. Rev. 469, 470-71 (1988). For this reason, we
question the continued use of this standard in cases where a
post-conviction petition has been dismissed without an
evidentiary hearing. At the dismissal stage of a post-conviction
proceeding, all well-pleaded facts that are not positively rebutted
by the original trial record are to be taken as true. The inquiry
into whether a post-conviction petition contains sufficient
allegations of constitutional deprivations does not require the
circuit court to engage in any fact-finding or credibility
determinations. The Act contemplates that such determinations
will be made at the evidentiary stage, not the dismissal stage, of
the litigation. Due to the elimination of all factual issues at the
dismissal stage of the post-conviction proceeding, a motion to
dismiss raises the sole issue of whether the petition being
attacked is proper as a matter of law. In such cases, the use of
a standard of review which has been historically tailored to the
review of factual and credibility determinations is difficult to
legally justify. Accordingly, we believe the manifestly erroneous
standard is only appropriate when reviewing the propriety of an
order of the circuit court granting or denying post-conviction
relief at the conclusion of the evidentiary stage of the
proceeding.
We next turn to those cases which hold that an order
dismissing a post-conviction petition without an evidentiary
hearing will be reviewed under an abuse of discretion standard.
This court's decisions in both Whitehead and Madej cite to an
appellate court case, People v. Hanrahan, 132 Ill. App. 3d 640
(1985), as authority for the abuse of discretion standard.
Hanrahan, in turn, cites to another decision of the appellate
court, People v. Reed, 84 Ill. App. 3d 1030 (1980), as authority
for the same proposition. In Reed, the appellate court reviewed
an order of the circuit court which denied an evidentiary hearing
on a post-conviction petition which contained allegations of
perjury. The court began its analysis by noting that "[i]t is
obvious that the initial question in such a proceeding is whether
sufficient allegations of perjury have been shown." Reed, 84 Ill.
App. 3d at 1039-40. The court further stated that "in
determining whether the trial court properly dismissed a petition,
all well-pleaded facts in the *** petition *** will be treated as
admitted." Reed, 84 Ill. App. 3d at 1040. The court then stated
that "[i]t is also clear that the denial of an evidentiary hearing
is discretionary and will not be reversed absent a manifest abuse
of discretion. People v. Stanley (1972), 50 Ill. 2d 320, ***;
People v. Dean [28 Ill. App. 3d 196 (1975)]." Reed, 84 Ill. App.
3d at 1040.
Interestingly enough, neither of the two cases cited by the
appellate court in Reed contain the phrase "abuse of discretion."
This court's opinion in Stanley did not even address the
dismissal of a post-conviction petition; rather, the court
reviewed the propriety of the circuit court's denial of post-
conviction relief after an evidentiary hearing. Indeed, this court
stated that "[t]he trial court heard evidence *** and ruled
adversely to the defendant. We will not disturb the findings of
the trial court unless the same are manifestly erroneous." People
v. Stanley, 50 Ill. 2d 320, 322 (1972). In Dean, the appellate
court reviewed an order of the circuit court which denied post-
conviction relief without an evidentiary hearing. The circuit
court did not conduct an evidentiary hearing because the
information needed to adjudicate the petitioner's claim was
contained in the record and in the affidavits supplied by the
parties. People v. Dean, 28 Ill. App. 3d 196, 201 (1975). On
appeal, the appellate court concluded that it would not disturb
the circuit court's decision "unless it was manifestly erroneous."
Dean, 28 Ill. App. 3d at 201. Dean, therefore, in no way holds
that the dismissal of a petition for post-conviction relief is
subject to an abuse of discretion standard of review.
Nevertheless, the Reed court did not explain its citation of either
Stanley or Dean for the abuse of discretion standard. Nor did the
court elaborate on why it deemed the decision to hold an
evidentiary hearing to be a matter of discretion.
We note that courts of review have traditionally reserved
the abuse of discretion standard for those decisions of the lower
court which deserve great deference on review, i.e., decisions
made by the trial judge in overseeing his or her courtroom or in
maintaining the progress of a trial. See 33 S.D.L. Rev. at 480.
The standard has been recognized as "the most deferential
standard of review available with the exception of no review at
all." 33 S.D.L. Rev. at 480. In our view, the use of so
deferential a standard to review the dismissal of a post-
conviction petition is questionable. The decision to dismiss a
post-conviction petition does not require a true exercise of
discretion by the circuit court. In fact, no discretion is to be
employed at this stage of the litigation--where the petitioner
alleges sufficient facts which demonstrate a constitutional
deprivation, this court has construed the Act to require the
circuit court to proceed to the evidentiary stage of the
proceeding so that a full evidentiary record can be made, replete
with findings of fact. All factual inquiries into the petition's
allegations are eliminated at this stage of the proceedings;
therefore, the circuit court's inquiry is limited solely to the
sufficiency of the allegations. Such a determination, in general,
encompasses a "uniquely legal dimension" (Miller v. Fenton,
474 U.S. 104, 116, 88 L. Ed. 2d 405, 414, 106 S. Ct. 445, 452
(1985)) which, historically, has never been subject to
discretionary review in this state.[fn3]
In light of the foregoing, we are of the opinion that the
ultimate question regarding the sufficiency of the allegations
contained in a post-conviction petition merits treatment as a
legal inquiry requiring plenary appellate review. Several reasons
compel our conclusion. The hallmark of deferential review is
that although the reviewing court might have viewed the matter
differently, it lacks the authority to change the result on appeal.
The question raised in an appeal from a order dismissing a post-
conviction petition is whether the allegations in the petition,
liberally construed and taken as true, are sufficient to invoke
relief under the Act. Due to the elimination of all factual issues
at the dismissal stage of a post-conviction proceeding, the
question is, essentially, a legal one, which requires the
reviewing court to make its own independent assessment of the
allegations. Thus, a court of review should be free to substitute
its own judgment for that of the circuit court in order to
formulate the legally correct answer. Under either of the
deferential standards of review discussed above, however, a
reviewing court does not have the power to so act. In our view,
an appellate court should enjoy the freedom to substitute its
judgment for that of the lower court upon review of a dismissal
of a post-conviction petition. We must point out that the circuit
court is not in an appreciably better position than the reviewing
court to determine whether the allegations contained in a post-
conviction petition demonstrate a constitutional deprivation so
as to invoke relief under the Act. A court of review has the
same capability as does the circuit court in the first instance to
look to the allegations and construe them liberally in favor of
the petitioner and as set forth in light of the trial record. As
such, there is little justification for deference to be given to the
circuit court's conclusions as to the sufficiency of a petition's
allegations. Accordingly, we hold that the appropriate standard
for this question is that of plenary review.
We acknowledge that our decision today on the standard of
review marks a departure from previous holdings of this court.
Therefore, we also hold that, in the interests of justice and
public policy (see, e.g., Deichmueller Construction Co. v.
Industrial Comm'n, 151 Ill. 2d 413, 416 (1992); Elg v.
Whittington, 119 Ill. 2d 344, 357 (1987)), the standard of review
announced in this opinion shall be applied to all future appeals
and those that are pending at the time this decision becomes
final in this court. With the above principles firmly in mind, we
now turn to the substantive issues raised in this appeal.

Perjury and Prosecutorial Nondisclosure Claims
Defendant initially claims that the State knowingly used
false testimony at trial and failed to disclose certain exculpatory
evidence to the defense in violation of the United States
Supreme Court's holding in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Specifically, defendant
contends that Aldene Lockett's affidavit, which was attached to
his petition, makes a substantial showing that the State obtained
his conviction through the knowing use of false testimony and
requires an evidentiary hearing. Defendant further asserts that
his post-conviction allegations substantially show that the State
failed to disclose to the defense the fact that (i) Lockett told
police that defendant did not have the same complexion as the
gunman she had seen leave the drug house and (ii) Lockett told
police that the gunman was someone she had recognized from
the neighborhood and that she had never seen defendant in her
neighborhood. Defendant argues that had these disclosures been
made, defense counsel could have more effectively undercut the
"tentative" trial identification made by Lockett, whom he
describes as the State's only disinterested witness.
The State, in contrast, maintains that defendant has
"misphrased" this issue, which the State views as concerning
only witness recantation. The State insists that recantation
testimony has historically been deemed "unreliable" and that
courts will usually deny a new trial in such cases where the
court is not satisfied that such testimony is true. In support of
this argument, the State relies on People v. Dotson, 163 Ill. App.
3d 419 (1987), People v. Ellison, 89 Ill. App. 3d 1 (1980), and
People v. Smith, 59 Ill. App. 3d 480 (1978). Each of these
cases, however, is factually inapposite to the instant case
because in each, the circuit court conducted a hearing at which
the credibility of the recanting witness was assessed by the trier
of fact. In our view, the State's reliability argument is premature
here, given the case's procedural posture. Defendant's
allegations, supported by Lockett's affidavit, have not been
refuted or denied. The original trial record, although regular on
its face, does not controvert the charges that perjured evidence
was used and that favorable evidence was suppressed with
knowledge by the State. In fact, there has been no determination
of the veracity of these allegations. By seeking to dismiss the
post-conviction petition, the State assumed the truth of the
factually supported allegations contained in that petition, at least
for purposes of the motion. Therefore, the State, as the movant,
has eliminated all factual issues from the inquiry. For this
reason, the State cannot now on appeal seek affirmance of the
dismissal order by arguing that Lockett's recantation is
incredible or untrustworthy. Had the State wished to test
Lockett's credibility, the State should have answered the
petition, rather than seeking to dismiss it, for the latter action
raises solely the question of the sufficiency of the pleadings, as
a matter of law, and admits the pleadings solely for purposes of
deciding the legal question. As we have discussed earlier in this
opinion, the Act contemplates that factual and credibility
determinations will be made at the evidentiary stage of the post-
conviction proceeding, and not at the dismissal stage. We will
therefore assume the truth of the allegations and review this
matter as a question of law in light of Brady and its progeny.
In 1963, the United States Supreme Court held that in
criminal prosecutions the State has an affirmative duty to
disclose evidence favorable to a defendant. Brady v. Maryland,
373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Thirteen
years later, in United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349, 96 S. Ct. 2392, 2397 (1976), the Court
described "three quite different situations" to which the general
rule of Brady applies and set forth varying tests of materiality
to determine whether a criminal conviction must be overturned.
In the first situation described by the Court, the undisclosed
evidence demonstrates that the prosecution's case includes
perjured testimony and that the prosecution knew, or should
have known, of the perjury. Agurs, 427 U.S. at 103, 49 L. Ed. 2d at 349, 96 S. Ct. at 2397. The fundamental unfairness of a
conviction obtained through the use of false evidence has long
been recognized by both this court and the Supreme Court as a
violation of due process. See Giglio v. United States, 405 U.S. 150, 153-54, 31 L. Ed. 2d 104, 108, 92 S. Ct. 763, 766 (1972);
Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177 (1959); Pyle v. Kansas, 317 U.S. 213, 215-16,
87 L. Ed. 214, 216, 63 S. Ct. 177, 178 (1942); Mooney v.
Holohan, 294 U.S. 103, 112, 79 L. Ed. 791, 794, 55 S. Ct. 340,
342 (1935); People v. Olinger, 176 Ill. 2d 326, 345 (1997);
People v. Brown, 169 Ill. 2d 94, 103 (1995); People v.
Jimerson, 166 Ill. 2d 211, 223 (1995): People v. McKinney, 31 Ill. 2d 246, 247 (1964). As the Court in Agurs noted, such
conduct not only violates constitutionally mandated disclosure
obligations, but "involve[s] prosecutorial misconduct" and
constitutes a "corruption of the truth-seeking function of the trial
process." Agurs, 427 U.S. at 104, 49 L. Ed. 2d at 350, 96 S. Ct. at 2397. For this reason, the Court has imposed a "strict
standard of materiality" in cases where the prosecution uses
evidence that it knew or should have known was false. In such
a case, the conviction must be set aside if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury. Agurs, 427 U.S. at 103, 49 L. Ed. 2d at 349-50, 96 S. Ct. at 2397. We note that this standard
of materiality is the most lenient to the defendant.
The second situation to which Brady applies "is
characterized by a pretrial request for specific evidence"
followed by the prosecution's noncompliance with the request.
Agurs, 427 U.S. at 104, 49 L. Ed. 2d at 350, 96 S. Ct. at 2397.
The Supreme Court did not define the standard of materiality
applicable in this situation, but suggested that it might be more
lenient to the defense than in a situation in which the defense
makes no request or even a general request. In this respect, the
Court noted that "[w]hen the prosecutor receives a specific and
relevant request, the failure to make any response is seldom, if
ever, excusable." Agurs, 427 U.S. at 106, 49 L. Ed. 2d at 351,
96 S. Ct. at 2399.
The final situation identified by the Court in Agurs occurs
when the defense makes either no discovery request or only a
general request for "Brady" material, and exculpatory matter is
withheld by the prosecution. In this third situation, the standard
of materiality is more favorable to the State. The defendant will
be entitled to a new trial only if the undisclosed evidence,
viewed in the context of the entire record, creates a reasonable
doubt that otherwise would not exist. Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402.
The Supreme Court abandoned the distinction between the
second and third Agurs categories, i.e., the "specific request"
and the "general or no request" situations, in United States v.
Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
There, the Court held that regardless of request, favorable
evidence is material, and constitutional error results from its
suppression by the government, "if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Bagley,
473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3383. The
Court clarified the Bagley definition of materiality in the recent
case of Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995). In determining materiality for either the
second or third categories, the Court in Kyles emphasized that
a showing of materiality does not require demonstration by a
preponderance that disclosure would have resulted ultimately in
defendant's acquittal. Kyles, 514 U.S. at 434, 131 L. Ed. 2d at
506, 115 S. Ct. at 1566. Rather, the inquiry turns on whether the
"[g]overnment's evidentiary suppression 'undermines confidence
in the outcome of the trial' ", which, the Court stressed, "is not
a sufficiency of evidence test." Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566, quoting Bagley, 473 U.S. at
678, 87 L. Ed. 2d at 491, 105 S. Ct. at 3381. Materiality is
demonstrated "by showing that the favorable evidence could
reasonably be taken to put the whole case is such a different
light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. Moreover,
once a reviewing court applying Bagley has found constitutional
error, that error "cannot subsequently be found harmless." Kyles,
514 U.S. at 436, 131 L. Ed. 2d at 507, 115 S. Ct. at 1567.
Finally, the cumulative effect of the suppressed evidence also
informs the materiality determination. Kyles, 514 U.S. at 436-
37, 131 L. Ed. 2d at 507, 115 S. Ct. at 1567.
We note that, in the instant case, the State's alleged conduct
would fall within both the first and third Brady categories. It is
within the first category because Lockett's testimony that the
lineup participant "could have been" the gunman was known by
the State to be false. The State's conduct falls within the third
category because Lockett's alleged statements made at the
lineup were exculpatory. In our opinion, where undisclosed
Brady material undermines the credibility of specific testimony
that the State otherwise knew to have been false, the standard
of materiality applicable to the first Agurs category applies. In
such circumstances, the failure to disclose is "part and parcel of
the presentation of false evidence to the jury and therefore
'corrupt[s] *** the truth-seeking function of the trial process,'
[citation] and is a far more serious act than a failure to disclose
generally exculpatory material." United States v. Vozzella, 124 F.3d 389, 392 (2d Cir. 1997). Therefore, the standard of
materiality in this case is whether there is any reasonable
likelihood that the false testimony could have affected the
judgment of the jury. Agurs, 427 U.S. at 103, 49 L. Ed. 2d at
349-50, 96 S. Ct. at 2397. Accordingly, we can affirm the
circuit court's decision to dismiss this claim without an
evidentiary hearing only if we can conclude, as a matter of law,
that the allegedly false testimony (which we must assume is true
for purposes of the motion to dismiss) does not fall within this
strict standard of materiality.
Our review of the trial record reveals that the State's case
against defendant was predicated upon several inculpatory
statements made by defendant to various acquaintances that he
had committed the murders at the drug house as a means of
obtaining revenge on Alex McCullough. Defendant's theory of
the case was that someone else had committed the drug house
murders and that it was McCullough who was the aggressor in
their relationship. At trial, Lockett could not positively identify
defendant as the man she saw leaving the drug house. However,
she testified that the lineup participant who refused to put on
sunglasses (later identified by police witnesses as defendant)
"could have been" the same man she had seen leave the murder
scene because "he had the same height, and build, and color."
(Emphasis added.) Furthermore, Chicago police Detective Tony
Maslanka testified that Lockett told him that defendant "was the
individual whom she saw that day in question with regard to
height, physical build, and complection [sic]." On cross-
examination, Maslanka qualified Lockett's identification as
"tentative" solely because Lockett had told him that she had not
been wearing her glasses when she saw the suspect leave the
building and that she was nearsighted. Lockett's trial testimony,
corroborated as it was by Maslanka, was damaging to the
defense because it suggested that defendant was the gunman
because he shared three physical characteristics with the
gunman. In her affidavit, however, Lockett now states that while
at the lineup, she "felt that the police were trying to get me to
single out the male who refused to put on the shades, because
they went back to him in the lineup and told me that this was
the guy we picked up for the murders. I told them that this guy
was not dark enough to be the guy who had come out of the
downstairs apartment." According to Lockett, she informed
Assistant State's Attorney Michael Kelly that the man in the
lineup "didn't look like the guy I saw come out of the
downstairs apartment." (Emphasis added.) This version of
Lockett's recollection of the lineup would have greatly enhanced
the defense's theory of the case because it suggests that
defendant was not the same man she had seen leave the drug
house. We further note that Lockett's affidavit not only calls
into question her own trial testimony, but the trial testimony of
Maslanka as well, for it offers a new explanation for her
"tentative" lineup identification--the police and the assistant
State's Attorney applied pressure on her to say that defendant
was the gunman.
After reviewing the entire transcript of the original trial, we
are unable to conclude that there exists no reasonable likelihood
that Lockett's allegedly false testimony would not have affected
the jury's deliberative process and judgment. In addition to
Lockett, four other witnesses provided evidence which tended to
establish defendant's participation in the double homicide. Each
testified that defendant told them, in great detail, of the killings.
We note, however, that two of these witnesses were men who
were under police suspicion themselves, a fact which defense
counsel brought to the jury's attention through cross-
examination. Another was the sister of one of the men, and the
fourth was a jail-house informer, whose credibility was severely
challenged both on cross-examination and in the defendant's
case in chief. We simply cannot speculate how the jury might
have assessed the credibility of these other witnesses' testimony
had the true nature of Lockett's lineup statements to police been
before it.
In light of the above, it is readily apparent that the
allegations contained in defendant's post-conviction petition
were sufficient to make a substantial showing of a constitutional
violation and to require an evidentiary hearing to determine if
the violation did in fact occur. See People v. Martin, 46 Ill. 2d 565, 568 (1970) (reversing order of dismissal and remanding for
an evidentiary hearing on allegations regarding alleged
perjurious testimony); see also Olinger, 176 Ill. 2d at 345
(same). The circuit court's dismissal of the Brady claim without
an evidentiary hearing was improper and therefore requires
reversal. On remand, the circuit court is instructed to proceed to
the evidentiary stage of the post-conviction proceeding with
respect to this claim.

Ineffective Assistance of Counsel at Trial
Defendant further alleges that he received ineffective
assistance of counsel during trial because his attorney did not
investigate and interview several witnesses. Had counsel done
so, defendant maintains, he would have learned (i) that Lockett
described the gunman as darker than defendant and (ii) that
defendant's sister, Laurarence, initially told police that defendant
shot at McCullough only after McCullough had fired at
defendant. Defendant contends that this latter evidence would
have damaged the motive for the double murder ascribed by the
State to defendant, i.e., revenge against McCullough, and would
have corroborated defendant's trial testimony.
Ineffective assistance of counsel claims are judged under the
now familiar standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In order to establish ineffective
assistance of counsel, a defendant must first demonstrate that his
defense counsel's performance was deficient in that "counsel
made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at
2063. In so doing, a defendant must overcome the strong
presumption that the challenged action or inaction of counsel
was the product of sound trial strategy and not of incompetence.
People v. Barrow, 133 Ill. 2d 226, 247 (1989). Secondly, a
defendant must demonstrate that, but for defense counsel's
deficient performance, 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. Both prongs of the Strickland test must be
satisfied before a defendant can prevail on a claim of ineffective
assistance of counsel. Courts, however, may resolve
ineffectiveness claims under the two-part Strickland test by
reaching only the prejudice component, for lack of prejudice
renders irrelevant the issue of counsel's performance. See
People v. Erickson, 161 Ill. 2d 82, 90 (1994); People v.
Albanese, 104 Ill. 2d 504, 525-27 (1984).

A. Failure to Interview Aldene Lockett
Defendant contends that his attorney was ineffective for his
failure to interview Lockett. Defendant claims that a competent
attorney would have interviewed Lockett before trial because
Lockett was the only witness in the State's case in chief who
could testify as to defendant's presence at the drug house at the
time of the murders. Given the defense theory of the case, i.e.,
that defendant did not commit the double murder, we agree. The
failure to interview witnesses may be indicative of deficient
representation, particularly when, as in this case, the witnesses
are known to trial counsel and their testimony may be
exonerating. People v. Greer, 79 Ill. 2d 103 (1980). As noted in
the above discussion concerning defendant's Brady claims, we
cannot deem Lockett's testimony immaterial to defendant's
conviction. We, therefore, are of the opinion that the allegations
of ineffective assistance of counsel with respect to Lockett were
sufficient to require an evidentiary hearing to determine if the
violation did, in fact, occur.

B. Failure to Investigate the Circumstances of the
McCullough Shooting
Defendant next contends that his attorney was ineffective
because he failed to investigate the circumstances surrounding
defendant's shooting of Alex McCullough. At trial, defendant's
sister, Laurarence, testified that McCullough forced his way into
her sister's apartment. He did not have a gun in his hand at the
time. Laurarence stated that as she began to run toward the rear
of the apartment, defendant "started to shoot and by that time
McCullough had his gun out." Defendant now claims that had
his attorney undertaken an investigation into McCullough's
shooting, he would have discovered that Laurarence told the
responding police officers that McCullough was armed with a
revolver when he forcibly entered the apartment. In support of
this claim, defendant attached to his petition the affidavit of
Chicago police officer Michael Keith. In the affidavit, Keith
states he and his partner were the responding officers at the
scene of the McCullough shooting. According to Keith,
defendant's sister, as well as two other witnesses at the scene,
related to him that McCullough forced his way into the
apartment with gun in hand. Defendant asserts that had counsel
been diligent in uncovering this evidence, his sister could have
been impeached at trial with her prior inconsistent statement by
a Chicago police officer. Defendant also contends that this
evidence would have negated the State's theory that defendant
committed the double homicide at the drug house as part of a
vendetta defendant had against McCullough.
We need not determine whether defendant has satisfied the
deficiency prong of Strickland because even if we were to
assume substandard representation on the part of defense
counsel, defendant cannot establish the requisite prejudice under
Strickland with respect to this claim. Our examination of the
original trial record reveals that the jury was well aware of the
possibility that McCullough might have been the aggressor in
the shootout. All of the witnesses to the shooting agreed that
McCullough had brought a gun with him to the apartment. One
of the witnesses, Victor Truell, acknowledged on cross-
examination that he told defense counsel and a defense
investigator that he had lied about who had fired the first shot
while testifying before the grand jury regarding the
circumstances of the McCullough shooting. During defendant's
case in chief, an investigator for the defense testified that Truell
admitted to him that McCullough had fired the first shot at
defendant. Defendant himself testified that McCullough shot at
him first, and defendant also testified about a previous incident
in March 1989 in which McCullough shot at him and his
girlfriend. This latter testimony was corroborated by one other
defense witness. Contrary to defendant's assertions, the possible
impeachment of Laurarence was not, in our view, strong enough
to negate the State's theory that defendant had committed the
drug house murders. Defendant's own testimony that
McCullough shot at him and his girlfriend could have, in and of
itself, provided a motive for revenge on the part of defendant.
For these reasons, we find the impeachment value of Officer
Keith's testimony to be limited, particularly in light of the fact
that defendant had instructed the witnesses to tell the responding
officers that the shooting was an act of self-defense. Officer
Keith's affidavit makes no mention of who fired the first shot,
but merely relates that Laurarence told him McCullough forced
his way into the apartment with a gun in his hand. Such an
initial statement to police would lay the groundwork for a case
of self-defense. Given all of the evidence that was before the
jury, we fail to see how counsel's failure to uncover this
evidence and his failure to use it to impeach Laurarence would
have changed the outcome of the trial. Therefore, because
defendant's allegations fail to make a substantial showing of a
violation of defendant's right to effective assistance with regard
to this claim, the dismissal of this portion of defendant's petition
without an evidentiary hearing was proper.

Cumulative Effect of Trial Errors
Defendant next asserts that even if any of the above alleged
errors are singularly insufficient to warrant an evidentiary
hearing, their "cumulative prejudicial effect" demands that an
evidentiary hearing be ordered. Having individually assessed the
merits of each of the alleged trial errors, we see no legal
justification for defendant's argument and thus summarily reject
it.

Ineffective Assistance of Counsel at Sentencing
Defendant next asserts that he was denied ineffective
assistance of counsel at sentencing because counsel failed to
investigate potential sources of mitigation and failed to present
the evidence that such an investigation would have uncovered.
As a result, defendant asserts that he was denied a meaningful
and individualized assessment of the appropriateness of the
death penalty at his sentencing hearing. In support of this claim,
defendant has attached to his petition seven affidavits of various
family members, including Carl McKee (defendant's first
cousin), Alma McKee Newsome (defendant's paternal aunt),
Reverend Walter McKee (defendant's paternal uncle), Jennie
Truell Davis (defendant's maternal aunt), Fredericka Coleman
(defendant's oldest sister), Bobbie Jean Truell (cousin of
defendant's mother), and Marvin Truell (defendant's brother).
Each of these affiants, in essence, state that defendant is the
product of an impoverished, chaotic household in which he was
subjected to chronic abuse and neglect. The affiants describe
defendant's parents as life-long drug abusers who frequently
moved their family from home to home and who involved each
of their children in illicit drug activities. According to these
family members, defendant began using drugs at the age of
thirteen and developed a long-term dependence on them.
Defendant also dropped out of school during the seventh grade
and began selling drugs at the age of 13. As a result of this
lifestyle, defendant did not receive adequate preparation for
gainful employment, but rather spent his youth and young
adulthood involved in "the culture of illicit drugs," culminating
in "multiple contacts" with law enforcement authorities. Each of
the affiants state that defense counsel never contacted them
about testifying on defendant's behalf.
Defendant's petition also contains a psychological
evaluation prepared by a clinical psychologist, who interviewed
defendant twice in 1995. The report states that as a result of his
abusive background and early use of drugs, defendant has "low
average" intelligence, suffers from extreme emotional
disturbance, and is prone to impulsive behavior. During April of
1989 defendant's "state of mind was extremely troubled and he
was suffering from extreme emotional disturbance." The
evaluation states that, if kept away from the negative influences
of his family and drugs, defendant is "a good candidate for
continued institutional adjustment" who "is not a risk for
violence toward prison staff or officers nor is he a risk toward
other inmates within [the] general population of a prison."
Defendant's petition was also supported by a social history
investigation and report prepared by a mitigation specialist for
the Capital Resource Center. This report reiterates the findings
made in the psychological report and the statements contained
in the affidavits submitted by defendant's relatives.
Relying on People v. Emerson, 122 Ill. 2d 411 (1987), the
State initially maintains that defendant has waived this claim
because the record affirmatively demonstrates that defendant
made a conscious decision to forgo the presentation of
mitigating evidence at the sentencing hearing. We acknowledge
that the original trial transcript contradicts several of defendant's
post-conviction allegations because defense counsel expressly
told the court that he had spoken with various members of
defendant's family and that defendant had prevented them from
testifying in mitigation. Moreover, the record reveals that when
the circuit court, sua sponte, ordered a PSI defendant refused to
cooperate with the probation officer assigned to compile the
report. Had defendant cooperated in the preparation of the
report, some of the evidence now presented in this post-
conviction proceeding would have been brought to the
sentencing judge's attention. Nevertheless, we are reluctant to
resolve this issue on either the basis of waiver or our holding in
Emerson, given the fact that the federal courts have criticized
Emerson's approach to this issue. See People v. Madej, 177 Ill. 2d 116, 133-35 (1997) (acknowledging that the Seventh Circuit
Court of Appeals has taken a position contrary to this court's
holding in Emerson on the issue of a knowing and intelligent
waiver of the right to present evidence in mitigation); Emerson
v. Gramley, 91 F.3d 898 (7th Cir. 1996) (affirming issuance of
writ of habeas corpus because evidence did not support a
finding of a constitutional knowing and intelligent waiver of the
right to present mitigating evidence). We, therefore, will
examine defendant's assertions on their merits. In so doing, we
will assume the truth of all defendant's well-pleaded allegations
in conformity with the procedural posture of this case. In other
words, we will presume that had defense counsel called these
witnesses, they would have testified in a manner consistent with
their affidavits and that the proffered evidence would have been
considered by the sentencing judge as required under our death
penalty statute.
As with alleged claims of ineffectiveness occurring during
the guilt phase of the trial, the standard for determining whether
a defendant has received constitutionally deficient representation
at a capital sentencing hearing is governed by the standard
enunciated in Strickland. As such, 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, 145 (1996), quoting Strickland, 466 U.S. at 695,
80 L. Ed. 2d at 698, 104 S. Ct. at 2069. In our view, even if
this court were to assume that defendant has satisfied the first
prong of Strickland, i.e., counsel was deficient for failing to
amass and present this evidence, we cannot say that defendant
has suffered prejudice from the deficiency.
We first address defendant's history of drug abuse. This
court, like others, has recognized that a history of substance
abuse is a double-edged sword at the aggravating/mitigating
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 this case,
defendant claimed 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 this conclusion, we do not believe that the
circuit judge in this case was required to view the purported
negative effects of defendant's drug abuse as a mitigation factor.
Notwithstanding the above, defendant cites People v. Perez,
148 Ill. 2d 168 (1992), to support his contention that counsel's
deficiency resulted in prejudice to him, particularly in light of
the fact that defendant Perez also came from an abusive family
situation. Perez, however, is distinguishable from the instant
case in several important aspects. Unlike defendant, Perez
suffered from a mental handicap, which resulted in his
abandonment by his entire family. In contrast, the affidavits of
several of defendant's family members in this case indicate that
defendant was not similarly abandoned, but had, from time to
time, stayed with them in drug-free environments. These
affidavits evince a degree of familial support that was utterly
lacking in Perez. We note that this evidence could have been
viewed as aggravating in that defendant had experienced living
in a home environment away from the drug culture and yet,
despite this exposure, still chose to immerse himself in that
culture as he became older. Additionally, unlike Perez, this
defendant has a great deal of aggravating evidence that is
overwhelming when compared to the proffered mitigation.
The aggravating evidence in the instant case established that
defendant methodically planned the armed robbery of the drug
house. Upon his arrival at the drug house window, defendant
pretended to purchase drugs. Once the victim, Lance Hale, had
turned to retrieve the drugs, defendant shot him once in the
head, firing the shot through the window. Defendant then
entered the apartment and turned his attention to the second
victim, Avis Welch. Welch begged defendant for her life, but
defendant nevertheless ordered her to get down on the floor and
then shot her in the back of the head at point blank range.
Defendant thereafter took $400 from Hale, as well as three rings
and a gold chain from the drug house. We note that defendant's
statements to his acquaintances about the murders, as established
in the trial record, reveal a chilling lack of remorse for these
crimes. The State's evidence also established that defendant had
a history of criminal behavior, beginning as a youth and
continuing until his arrest for the instant murders. Furthermore,
the State adduced extensive evidence of defendant's disciplinary
record while he had been previously incarcerated. This evidence
revealed, among other things, that defendant had assaulted a
correctional officer, caused a dangerous disturbance, threatened
and intimidated other prisoners and officers, participated in gang
activity, and threatened to burn the prison down. This latter
evidence, coupled with the fact that the instant murders occurred
only three months after defendant was released from the
Department of Corrections, lends substantial credence to the
circuit court's apt conclusion that defendant lacked rehabilitative
potential.
With respect to the proffered evidence of the impairment of
defendant's emotional development, this court has repeatedly
held that "information about a defendant's mental or
psychological impairment 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 (and
cases cited therein). In light of the aggravating evidence
adduced in this case, we believe that even if we were to deem
the alleged psychological evidence as mitigating, such evidence
would not "preclude imposition of a death sentence when that
evidence is outweighed by [the] aggravating evidence." People
v. Pulliam, 176 Ill. 2d 261, 286 (1997), citing People v. Wilson,
164 Ill. 2d 436, 460 (1994). Moreover, defendant's disciplinary
record while incarcerated, as established in the original record,
belies the psychological report's recommendation of defendant
as "a good candidate for continued institutional adjustment" who
"is not a risk for violence toward prison staff or officers nor is
he a risk toward other inmates within [the] general population
of a prison."
In view of the foregoing, we cannot say that, but for
counsel's failure to amass and present the proffered evidence,
the 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. We,
therefore, hold that defendant's post-conviction allegations,
liberally construed in his favor and taken as true in light of the
original trial record, fail to make a substantial showing of a
violation of defendant's right to effective assistance of counsel
at the sentencing hearing. The circuit court properly dismissed
this portion of the petition without an evidentiary hearing.

CONCLUSION
In summary, the circuit court improperly dismissed
defendant's post-conviction petition without an evidentiary
hearing with respect to the allegations concerning Aldene
Lockett's trial testimony and her statements made to police at
the lineup. Accordingly, we remand the matter to the circuit
court with instructions to hold an evidentiary hearing as to these
claims. We affirm the circuit court's order dismissing
defendant's petition in all other respects.

Affirmed in part and reversed in part;
cause remanded with instructions.

[fn1] The record contains numerous variations of defendant's
sister's name. Her trial testimony, however, reveals the correct
spelling to be Laurarence. For clarity and consistency, we will
utilize this spelling of the name throughout this opinion.

[fn2] In cases of pro se petitioners under sentence of
imprisonment for a term of years, this court has acknowledged
that only the "gist" of a constitutional claim need be asserted in
order to survive dismissal under section 122--2.1 and to require
the appointment of counsel under the Act. See People v. Porter,
122 Ill. 2d 64, 84 (1988).

[fn3] Examples of these principles in the civil arena abound.
See, e.g., Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); In re
Marriage of Siegel, 271 Ill. App. 3d 540, 542-43 (1995); T&S
Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084
(1994); Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583
(1993).