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January 26, 1995


The Honorable Justice Freeman delivered the opinion of the court:

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

A Cook County jury convicted defendant of several crimes committed in Chicago's Washington Park on August 15, 1982, including the killing of Jerry Hillard and Marilyn Green. For the murders, the trial judge sentenced defendant to death. A majority of this court affirmed the convictions and sentence on direct appeal. ( People v. Porter (1986), 111 Ill. 2d 386, 95 Ill. Dec. 465, 489 N.E.2d 1329.) The United States Supreme Court declined further review. Porter v. Illinois (1986), 479 U.S. 898, 93 L. Ed. 2d 272, 107 S. Ct. 298.

Defendant thereafter sought, in a post-conviction action (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.), a new trial, but relief was denied without an evidentiary hearing. Defendant pursued this appeal, seeking a hearing on his petition's allegations. 134 Ill. 2d R. 651(a).

Finding no basis for an evidentiary hearing, we affirm the denial of post-conviction relief. What facts are pertinent to that disposition are explained in the course of addressing the issues here raised.

Ineffective Assistance of Trial Counsel

Defendant contends he is entitled to a new trial because his trial counsel purposefully did not generate certain allegedly exculpatory evidence. That evidence was not generated, defendant alleges, because he had not paid in full counsel's fee for legal services. Though not identified, the requisite constitutional foundation (Ill. Rev. Stat. 1987, ch. 38, par. 122-1) for defendant's claim is found in sixth and fourteenth amendment protections. See U.S. Const., amends. VI, XIV.

The evidence pointed to is the proposed testimony of several persons which could have suggested Alstory Simon, rather than defendant, killed Hillard and Green. The evidence, summarized below, is stated in affidavits and recorded sworn oral statements filed in support of defendant's post-conviction petition.

Joyce Haywood would have testified that the victims had walked to the park with Alstory Simon and his girlfriend, Inez Johnson. The victims' mothers and Christina Green, Marilyn Green's sister, would have corroborated the point. Ricky Young could have testified that Hillard had been selling drugs for Simon and that a dispute existed between Simon and Hillard over money. Roy Davis, Hillard's brother, would have stated, in contrast, that no animosity existed between defendant and Hillard, who were members of the same street gang. Finally, Joyce Haywood would have revealed further that Simon had threatened her when she had asked about what had happened in the park.

The State argues that the evidence should be ignored because defendant's appellate counsel did not raise an ineffective-assistance claim on that basis on direct appeal. Appellate counsel did not represent defendant during trial proceedings.

It is, of course, the general rule that post-conviction petitioners are barred from raising claims that either were or could have been raised on direct appeal. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17; but see People v. Thompkins (1994), 161 Ill. 2d 148, 158, 204 Ill. Dec. 147, 641 N.E.2d 371 (noting the exception for "fundamental fairness").) The trial record reveals what representation was afforded. Thus, a claim of ineffectiveness not raised in relation to the representation shown--for example, the vigorousness of cross-examination--cannot be resurrected in a post-conviction proceeding. (See People v. Erickson (1994), 161 Ill. 2d 82, 88, 204 Ill. Dec. 231, 641 N.E.2d 455.) The procedural bar forces acknowledgment of the finality of a conviction and sentence, a fundamental concept at work in a post-conviction action given that only collateral relief is offered. See Erickson, 161 Ill. 2d at 87.

But the bar cannot operate here. No foundation existed in the trial record to raise, on direct appeal, the particular ineffectiveness claim defendant now makes. Except for Davis, who testified only to identify his brother as one of the murdered victims, the witnesses who would have supplied the purportedly exculpatory evidence were not called at trial. The representation defendant complains of was the very reason their testimony was not given and so fixed in the trial record. Principles of res judicata and waiver, the mechanisms which operate to preclude post-conviction claims that were or could have been raised, cannot apply. See Erickson, 161 Ill. 2d at 93.

Nevertheless, defendant's claim falls on its merits. Even assuming counsel performed incompetently in not generating the proposed testimony, sufficient prejudice did not result to support the claim. (See People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 85 Ill. Dec. 441, 473 N.E.2d 1246, adopting Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (holding that ineffective assistance claims may be determined on examination of the prejudice prong of the two-part test alone).) And, parenthetically, the reason why the testimony was not generated is therefore immaterial.

Prejudice is measured by looking at findings unaffected by error and accounting for the error's effect on remaining findings to answer whether the decision would "reasonably likely" have been different. ( Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.) The assessment "must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like." ( Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The ...

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