Appeal from the Circuit Court of Cook County; the Hon. Maurice
Pompey, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This appeal is from the dismissal of defendant's amended post-conviction petition without an evidentiary hearing. He contends that his constitutional rights were violated or denied where: (1) the trial court gave erroneous instructions on attempted murder and self-defense and improperly refused a defense instruction on provocation; (2) the prosecution (a) abused the grand jury process to coerce a key witness, Ursula Rumas, to change her testimony; (b) coerced another defense witness, Pamela Kubes, into disobeying her subpoena and refusing to testify; (c) used the perjured testimony of Ursula Rumas; and (d) failed to comply with the disclosure requirements of Supreme Court Rule 412; (3) there was a bona fide doubt regarding his fitness to be sentenced; (4) the prosecution improperly minimized the burden of proof and grossly misstated the evidence during closing argument, and improperly implied, during redirect examination of Ursula Rumas, that a connection existed between her drug supplier and defendants; (5) defendant was denied effective assistance of trial counsel by his attorney's failure to (a) make an offer of proof regarding the testimony of two material defense witnesses; (b) obtain and introduce certain physical evidence; and (c) object to the prosecution's incomplete instruction on the defense of another; (6) defendant was denied effective assistance of appellate counsel by the failure to raise certain instruction issues; and (7) the dismissal of the amended post-conviction petition without an evidentiary hearing constituted an abuse of discretion.
The facts in this case were set forth at length in the consolidated direct appeal (People v. Belvedere (1979), 72 Ill. App.3d 998, 390 N.E.2d 1239), and, although we will repeat them only when necessary to discuss the issues raised here, we initially note that the charges against defendant arose from a confrontation in the Hasty Grill parking lot between defendant, co-defendant Belvedere, and four other individuals. Defendants were also accompanied by Cynthia Saccomanno and Ursula Rumas. After a joint jury trial, defendant was convicted of murder, attempted murder and aggravated battery. His convictions and sentences as well as those of Belvedere were affirmed on direct appeal to this court, and their petition for leave to appeal to the Illinois Supreme Court was denied. Defendant then filed a pro se post-conviction petition and subsequently obtained counsel who amended that original petition. The trial court, without an evidentiary hearing, granted the State's motion to dismiss the amended petition and this appeal followed.
• 1 Defendant first contends that his constitutional right to present his theory of the case was abridged when the trial court gave two erroneous instructions and refused a third tendered by defendant. The Illinois Supreme Court, however, has held that alleged errors in jury instructions do not rise to the level of a substantial violation of a constitutional right for purposes of the Post-Conviction Hearing Act and thus do not present questions which would justify relief under that Act. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.) In addition, it is well established that an affirmance on direct appeal is res judicata as to all issues that were raised or that could have been raised on the direct appeal (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331), and since this court has previously affirmed defendant's convictions on direct appeal, consideration of the self-defense and the provocation voluntary manslaughter instructions is barred by the doctrine of res judicata.
While, as defendant points out, strict application of the doctrine has been relaxed where a defendant's claim is based upon case law which developed after his conviction was affirmed on direct appeal (People v. Cowherd (1983), 114 Ill. App.3d 894, 449 N.E.2d 589), the cases relied upon by defendant to support his argument with respect to the attempted murder instruction (People v. Trinkle (1977), 68 Ill.2d 198, 369 N.E.2d 888, and People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28), were decided prior to our decision on May 18, 1979, in defendant's direct appeal. Trinkle was decided in November 1977 and Harris in May 1978.
• 2 Moreover, fundamental fairness does not otherwise compel relaxation of the application of res judicata. The following instructions were given on attempted murder:
"STATE'S INSTRUCTION NO. 19
A person, or one for whose conduct he is responsible, commits the crime of attempt who, with intent to commit the crime of Murder; does any act which constitutes a substantial step toward the commission of the crime of Murder. The crime attempted need not have been committed."
"STATE'S INSTRUCTION NO. 21
To sustain the charge of attempt, the State must prove the following propositions,
First: That the defendant Robert Bailey, or one for whose conduct he is responsible performed an act which constituted a substantial step toward the commission of the crime of Murder of John Sigle; and
Second: That the defendant Robert Bailey, or one for whose conduct he is responsible did so with intent to commit the crime of murder of John Sigle.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt then you should find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been ...