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March 31, 1994



The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

This court, on direct appeal, affirmed defendant's conviction and death sentence for the aggravated kidnapping. and murder of Lorraine Borowski. ( People v. Kokoraleis (1989), 132 Ill. 2d 235.) Rehearing was denied, and the United States Supreme Court declined review ( Kokoraleis v. Illinois (1990), 497 U.S. 1032, 111 L. Ed. 2d 804, 110 S. Ct. 3296). On January 31, 1991, defendant filed a post-conviction petition (Ill. Rev. Stat. 1991, ch. 38, par. 122-1) in the circuit court of Du Page County challenging the conviction and sentence. The petition was dismissed without an evidentiary hearing. (See Ill. Rev. Stat. 1991, ch. 38, par. 122-5.) This appeal followed. 134 Ill. 2d R. 651(a).

We affirm.

Defendant's participation in a series of random abductions, rapes, and grisly murders of young women, including that of Lorraine Borowski, during 1981 and 1982, is amply recounted in this court's earlier opinion. We repeat, within the context of the issues now raised by defendant, only those few facts necessary to a Disposition of the instant appeal.


Defendant contends the representation he received from his appointed counsel during the sentencing phase of the trial was ineffective. The claim is grounded, presumably, on the sixth and fourteenth amendments of the United States Constitution. (See U.S. Const., amends. VI, XIV; Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) We note that defendant's appointed trial counsel did not represent him on direct appeal or in the post-conviction proceeding.

Defendant's claim is addressed to what counsel did as well as what counsel did not do in presenting mitigating factors to avoid a death sentence. The arguments are somewhat interrelated.

Defendant complains that what counsel did do was to "nitpick[]" at inconsistencies in the State's case and hopelessly implore the jury to consider defendant's rehabilitative potential. But, given the nature and particularities of the crimes, including the specter of bizarre cult activity, defendant asserts that arguing the existence of residual doubt and rehabilitative potential were "non-plausable" options. Instead, what counsel ought to have done was investigate whether defendant's culpability was rooted in a condition of "extreme emotional and/or mental disturbance."

We decline to consider whether what counsel did argue amounted to ineffective assistance.

A post-conviction petition offers but a collateral attack remedy. The attendant proceeding is not a substitute for, or an addendum to, direct appeal. Accordingly, principles of res judicata and procedural default have long been recognized to preclude consideration of claims that were or could have been earlier raised. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17.) An ineffective assistance of counsel claim permits no wholesale departure from those considerations. See Albanese, 125 Ill. 2d at 105 (precluding consideration of a "somewhat different" ineffective assistance claim from one earlier ruled upon).

The opportunity to take issue with what counsel did argue during the sentencing phase of the trial was on direct appeal. Defendant did not do so, although, it should be noted, he did assert an ineffective assistance claim with regard to other matters equally apparent from the record's face. (See Kokoraleis, 132 Ill. 2d at 275.) We find no recognized exception (see People v. Flores (1992), 153 Ill. 2d 264, 274, 180 Ill. Dec. 1, 606 N.E.2d 1078) applicable here to excuse the procedural default.

However, the issue of whether what counsel did not do amounts to ineffective assistance is given to different considerations. That aspect of the claim involves the duty to independently investigate possible defenses, a "subset" of defense counsel's overall obligation (see United States v. Decoster (D.C. Cir. 1979), 199 U.S. App. D.C. 359, 624 F.2d 196, 209-10).

The alleged substance of what counsel did not independently investigate is made clear in affidavits attached to the petition. Chief among them is that of Dr. Robert Miller, a psychiatrist, for that ...

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