The Honorable Justice Nickels delivered the opinion of the court:
The opinion of the court was delivered by: Nickels
JUSTICE NICKELS delivered the opinion of the court:
This matter comes before the court on defendant's appeal from the dismissal of his post-conviction petition. After a bench trial in Cook County, defendant was found guilty of one count each of intentional murder, knowing murder, felony murder, attempted murder, and aggravated battery, and two counts of unlawful use of a weapon. The trial judge found defendant eligible for the death penalty and sentenced defendant to death. On direct appeal, this court vacated the knowing and felony murder convictions because they arose from the same death as the intentional murder conviction. ( People v. Guest (1986), 115 Ill. 2d 72, 103-04, 104 Ill. Dec. 698, 503 N.E.2d 255.) This court affirmed the remainder of defendant's convictions and the death sentence, and the United States Supreme Court denied defendant's petition for a writ of certiorari ( Guest v. Illinois (1987), 483 U.S. 1010, 97 L. Ed. 2d 746, 107 S. Ct. 3241).
On January 29, 1988, defendant filed a pro se petition for post-conviction relief. (See Ill. Rev. Stat. 1987, ch. 38, par. 122-1.) The circuit court appointed counsel to aid defendant with the petition, and counsel filed a supplementary post-conviction petition. After the State filed a motion to dismiss, the circuit court dismissed the post-conviction petition without an evidentiary hearing. Defendant appeals dismissal of the post-conviction petition (134 Ill. 2d R. 651(a)), seeking alternatively a new trial, a new sentencing hearing, or remand for an evidentiary hearing on his post-conviction petition.
We first summarize the evidence introduced at trial which led to defendant's convictions and sentence. On February 5, 1981, defendant and a friend, John Marlow, entered a Jewel grocery store in Chicago. The security guard at the store, Ferrice King, saw defendant take some toothpaste and a toothbrush and put them in his pocket. King approached defendant, identified himself as a security guard, and told defendant to accompany him to King's office, which was located in the basement of the store. In the basement, King indicated that he was going to search defendant for the items that were taken. Defendant offered to return the items. Defendant reached into his pocket and pulled out a handgun.
In response, King told defendant he could keep the items and walked away from defendant. King walked into the employee's cafeteria, which is also located in the basement, with defendant following him. At that time, three employees -- Joanne Bailey, Marlean Washington, and Gary Henderson -- were present in the cafeteria. These three employees saw defendant with a gun, and some of them tried to flee. Defendant fired a shot but did not hit any of these employees. King then pulled out his own handgun, exchanged several shots with defendant, and was shot once in the shoulder by defendant and injured slightly. Defendant fled and escaped. A short time later, John Geever, another store employee, was found in the basement of the store with a gunshot wound and later died from this gunshot wound. None of the store employees had seen Geever during the shooting, and none had seen how he was shot.
After the shooting, King detained Marlow, the individual who accompanied defendant to the store. Marlow provided the police with information that established the identity of the gunman as defendant. On the day after the shooting, employees King, Bailey, Washington, and Henderson all identified defendant's picture from a photo array. Nearly a year later, defendant was located and charged with this murder. Defendant had been arrested on an unrelated charge in Missouri. King and Washington identified defendant from a lineup before trial, and King and Bailey identified defendant as the gunman at trial.
The purpose of a post-conviction proceeding is to determine if constitutional violations occurred at trial. A post-conviction proceeding is not an appeal of a defendant's convictions and sentence, and a defendant cannot merely allege that errors occurred at trial. Instead, a defendant bears the burden of establishing a substantial deprivation of his constitutional rights. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17.) In addition, the doctrines of res judicata and waiver limit the issues that may be raised in a post-conviction petition. People v. Thompkins (1994), 161 Ill. 2d 148, 157-58, 204 Ill. Dec. 147, 641 N.E.2d 371.
In this case, the trial judge dismissed the petition without an evidentiary hearing. We note that a defendant is not entitled to an evidentiary hearing as a matter of right. ( People v. James (1986), 111 Ill. 2d 283, 291, 95 Ill. Dec. 486, 489 N.E.2d 1350.) A defendant is entitled to an evidentiary hearing only if the defendant has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. ( People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 85 Ill. Dec. 269, 473 N.E.2d 868.) The trial court's determination on this matter will not be disturbed unless manifestly erroneous. People v. Griffin (1985), 109 Ill. 2d 293, 303, 93 Ill. Dec. 774, 487 N.E.2d 599.
On appeal to this court, defendant alleges that he is entitled to post-conviction relief based primarily on claims of ineffective assistance of trial counsel. These claims are based on defendant's sixth amendment right to counsel under the Federal Constitution. To be successful, defendant must satisfy the two prongs of the Strickland test. (See Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Under Strickland, a defendant must show (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance resulted in prejudice to defendant. If defendant fails to make a sufficient showing of either prong, this court need not consider the remaining prong. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
With respect to several of these claims of ineffective assistance of trial counsel, the State argues that defendant has waived these issues by failing to raise them on direct appeal. The State correctly notes that all of the facts needed to raise several of these claims were present in the record and available to defendant on direct appeal. Defendant has not introduced any new material in this proceeding to support these allegations of ineffective assistance of trial counsel.
Defendant acknowledges that he could have raised several of his contentions on direct appeal but argues that his appellate counsel was ineffective for failing to address the issue on direct appeal. This court has relaxed the waiver rule when the waiver arises from the ineffectiveness of appellate counsel. (See People v. Barnard (1984), 104 Ill. 2d 218, 229-31, 83 Ill. Dec. 585, 470 N.E.2d 1005.) We further note appellate counsel can decline to raise an issue if he believes it to be without merit. To determine if appellate counsel could reasonably have decided not to allege trial counsel's ineffectiveness, we will focus on trial counsel's performance. People v. Caballero (1989), 126 Ill. 2d 248, 271, 128 Ill. Dec. 1, 533 N.E.2d 1089.
In this appeal, defendant claims that his trial counsel was ineffective because trial counsel failed to: (1) present a viable theory of defense and, in effect, conceded defendant's guilt; (2) investigate and challenge identification evidence that established defendant as the perpetrator; (3) investigate prosecution witnesses and potential alibi witnesses; (4) investigate certain physical evidence; (5) object to leading questions; and (6) investigate mitigating witnesses and adequately prepare for the sentencing hearing. Defendant also raises an issue with respect to the performance of post-conviction counsel. Defendant claims that his post-conviction counsel's performance was inadequate because (7) post-conviction counsel failed to interview certain witnesses and provide affidavits needed to support the post-conviction petition.
I. Trial Counsel's Defense Strategy
Defendant first argues that his trial counsel based the entire theory of defense on a misunderstanding of the felony murder rule. According to defendant, counsel believed defendant could be found guilty of felony murder only if defendant fired the shot that killed the victim. Defendant argues that counsel's strategy had no chance of success because defendant could also be found guilty of felony murder if the security guard, and not defendant, fired the shot that killed the victim. See People v. Chandler (1989), 129 Ill. 2d 233, 135 Ill. Dec. 543, 543 N.E.2d 1290 (counsel was ineffective because counsel's theory of defense was based on a misunderstanding of the law of accountability and felony murder).
Defendant's allegation that his trial counsel misunderstood the felony murder rule is simply not supported by the record. At trial, counsel argued that the State failed to meet its burden of proving defendant guilty of murder or felony murder beyond a reasonable doubt. This strategy was based on the security guard's testimonythat he heard defendant fire three shots. One of these shots hit a garbage can in the cafeteria, another shot hit the security guard in the shoulder, and the final shot was fired at the security guard and in a direction opposite from where the victim was found. The security guard heard no further shooting as defendant was escaping. In closing argument, the State argued that defendant shot the victim while escaping, even though this was contrary to the security guard's testimony. At trial, the security guard's testimony was the only evidence of the number of shots fired by defendant and accounted for all the bullets fired by defendant.
In addition, the State introduced a ballistics test showing that the bullet that killed the victim did not come from the security guard's gun. Counsel used this ballistics test to account for all of the bullets fired by the security guard. Thus, counsel argued that the State itself had accounted for all of the bullets fired during the confrontation, and none of these bullets could have killed the victim. Counsel argued that the State had failed to prove the causal connection between the shooting confrontation and the victim's death. (See People v. Gacho (1988), 122 Ill. 2d 221, 243-45, 119 Ill. Dec. 287, 522 N.E.2d 1146; People v. Brackett (1987), 117 Ill. 2d 170, 176, 109 Ill. Dec. 809, 510 N.E.2d 877.) Accordingly, counsel argued, the State had failed to meet its burden of proof. At no time did counsel argue that defendant could be convicted of felony murder only if defendant himself fired the fatal gunshot. Defendant's argument that counsel misunderstood the felony murder rule is based on passages from the record that are taken out of context.
In a related argument, defendant contends that, even if trial counsel properly understood the felony murder rule, counsel's strategy was the "functional equivalent of a guilty plea" to murder and felony murder. (See People v. Hattery (1985), 109 Ill. 2d 449, 458, 94 Ill. Dec. 514, 488 N.E.2d 513.) Defendant argues that counsel should have challenged the State's evidence, which showed defendant's presence at the grocery store and defendant's armed confrontation with the security guard. According to defendant, once counsel pursued his defense theory, the trial judge had no alternative but to conclude that defendant was guilty of murder and felony murder. Essentially, defendant argues, counsel should have adopted a better theory of defense.
Defendant cites certain parts of the record in support of his argument that trial counsel's theory of defense was inadequate. In the opening statement, counsel conceded that defendant was present at the Jewel store and fired his gun at the security guard. Counsel acknowledged that defendant committed aggravated battery based on the shooting of the security guard. During trial, counsel entered into a number of stipulations with the State. Some of these stipulations included identification by the eyewitnesses at the Jewel store who, according to the police reports, had seen defendant. Counsel also stipulated to a firearms examiner's opinion that the bullet that killed the victim did not come from the security guard's gun.
Initially, we note that review of counsel's performance is deferential. As the Supreme Court stated:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" ( Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.)
We also note that the choice of defense theory is ordinarily a matter of trial strategy, and counsel has the ultimate authority to decide this trial strategy. (See People v. Ramey (1992), 152 Ill. 2d 41, 53-55, 178 Ill. Dec. 19, 604 N.E.2d 275.) This court will generally not review a claim of ineffectiveness of counsel based on inadequate trial strategy. People v. Palmer (1994), 162 Ill. 2d 465, 479-80, 205 Ill. Dec. 506, 643 N.E.2d 797.
This court, however, has recognized an exception where counsel entirely fails to conduct any meaningful adversarial testing. ( Hattery, 109 Ill. 2d at 464, citing United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045.) In Hattery, the defendant pleaded not guilty to the murders of a mother and her two children. In spite of these not-guilty pleas, counsel conceded that defendant committed the murders during opening argument and was eligible for the death penalty. Counsel stated that the only issue in the case was whether the defendant should receive the death penalty. In Hattery, counsel failed to present a theory of defense, failed to present evidence, failed to make closing argument, and did not hold the State to its burden of proof. In stead, counsel argued that the defendant's conduct in committing the crimes was the result of compulsion. Compulsion may be a mitigating circumstance when a defendant is eligible for the death penalty, but it is not a defense to murder. This court held that counsel's conduct was per se ineffective because counsel unequivocally conceded the defendant's guilt to the murder charges and eligibility for the death penalty.
In People v. Johnson (1989), 128 Ill. 2d 253, 131 Ill. Dec. 562, 538 N.E.2d 1118, this court stated that the holding of Hattery must be construed narrowly. In Johnson, counsel conceded the defendant's guilt for murder but contested the charge of felony murder which would make the defendant eligible for the death penalty. Counsel was not ineffective because counsel "asserted a theory of defense to a number of charges, not just a theory of mitigation, and this theory was pursued during opening and closing arguments and during cross-examination." ( Johnson, 128 Ill. 2d at 270.) Counsel did not abandon the defense of the defendant.
The court also stated that counsel's concession of guilt does not constitute "per se ineffectiveness whenever the defense attorney concedes his client's guilt to offenses in which there is overwhelming evidence of that guilt." ( Johnson, 128 Ill. 2d at 269.) Counsel would lose credibility by contesting all the charges. See also People v. Fair (1994), 159 Ill. 2d 51, 201 Ill. Dec. 23, 636 N.E.2d 455 (counsel argued that, although the defendant may be guilty of murder, the defendant did not have the intent required to support conviction for first degree murder); People v. Horton (1991), 143 Ill. 2d 11, 155 Ill. Dec. 807, 570 N.E.2d 320 (counsel's trial strategy was not ineffective in stipulated bench trial where counsel only contested those charges that were not supported by overwhelming evidence); Caballero, 126 Ill. 2d 248, 128 Ill. Dec. 1, 533 N.E.2d 1089; United States v. Simone (7th Cir. 1991), 931 F.2d 1186 (counsel conceded the defendant's guilt to lesser drug charges but contested charges which carried greater punishment).
In this case, counsel did conduct meaningful adversarial testing of the State's case. As noted, counsel presented a theory of defense that required the State to prove its case beyond a reasonable doubt. Counsel used the security guard's testimony and the ballistics test to argue that the State had failed to meet its burden of proof. Counsel pursued this theory during trial and during opening and closing arguments. Counsel also cross-examined the State's witnesses in a manner consistent with this theory. At no time did counsel concede that defendant was guilty of murder or felony murder or abandon defendant's defense. Contrary to the facts in Hattery, counsel pursued a theory of innocence.
In addition, before trial and during trial counsel repeatedly challenged the State's failure to produce the bullet that injured the security guard. At trial, the security guard testified that he was shot in the shoulder by defendant. While he was being treated at a hospital, the security guard saw a uniformed police officer take possession of the bullet. The State, however, was unable to produce this bullet at trial. Counsel made a motion to dismiss the murder counts, a motion for mistrial, and a motion for a new trial based on the State's failure to produce the bullet. Counsel argued that a ballistics test could be performed to see if the bullet that killed the victim ...