The opinion of the court was delivered by: Justice Nickels
Following a jury trial in the circuit court of Cook County, defendant, Andrew Johnson, was found guilty of three counts each of murder and armed robbery, and two counts of attempted murder. Defendant waived a jury for the sentencing hearing. The trial court found defendant eligible for the death penalty and sentenced defendant to death for the murder. In addition, the trial court sentenced defendant to two consecutive 30-year terms of imprisonment for the attempted murders. On direct appeal, this court affirmed defendant's convictions and death sentence (People v. Johnson, 149 Ill. 2d 118 (1992)) and the United States Supreme Court denied defendant's petition for a writ of certiorari (Johnson v. Illinois, 506 U.S. 1056, 122 L. Ed. 2d 138, 113 S. Ct. 986 (1993)). Defendant, with the assistance of counsel, then filed a petition for post-conviction relief in the circuit court of Cook County (see 725 ILCS 5/122-1 (West 1994)). The trial court dismissed defendant's post-conviction petition without an evidentiary hearing. Defendant appeals the dismissal of the post-conviction petition (134 Ill. 2d R. 651(a)), seeking a reversal of his conviction or, in the alternative, remand for an evidentiary hearing. For the reasons that follow, we affirm.
The evidence supporting the convictions and sentences was thoroughly discussed on direct appeal (People v. Johnson, 149 Ill. 2d 118 (1992)), and only a summary is necessary here. On January 20, 1985, defendant, Andrew Johnson, and two companions, Terry Sanders and Mike Hill, arrived at the home of the murder victim, William Feuling. Feuling invited the three men into his apartment because Sanders was employed at Feuling's family-owned convenience store. At the time, Feuling was being visited by two friends, Art Kozak and Brian Walkowiak. Some time after settling into the apartment and accepting a beer, defendant drew his gun and directed that Feuling and his friends be tied up and gagged.
After the three men were bound, defendant pistol-whipped Feuling in the face and demanded money. The intruders then removed money from the pockets of the three men. Defendant then moved to Kozak, smashed an egg in his face and began to laugh. Defendant demanded more money from Kozak, and when he learned Kozak had none defendant stated Kozak would "have to die." Nevertheless, defendant temporarily spared Kozak after taking Kozak's gold watch. Defendant returned to Fueling and dragged him throughout the apartment demanding the daily receipts from the convenience store. When Feuling could not produce the money, defendant held Feuling up by the arm and stabbed and slashed him repeatedly with a butcher knife about the neck and torso, laughing as he did so. Feuling died as a result of the knife wounds.
Defendant then commanded his two companions to each kill one of Feuling's friends. Defendant gave the butcher knife to Sanders, who first stabbed Kozak in the stomach and then attempted to slit Kozak's throat. Sanders then smashed Kozak in the head with a hammer. After the assault on Kozak, Walkowiak lunged for the door in an attempt to escape. Defendant shot at Walkowiak, striking him in the shoulder. Despite the gunshot wound, Walkowiak continued to run. Believing that both Fueling and Kozak were dead, the three intruders pursued Walkowiak out the door. However, Walkowiak was able to escape with the assistance of a passing motorist. Subsequently, defendant and Hill approached another individual, Oscar Smith, and attempted to take Smith's car at gunpoint. Defendant and Smith struggled as defendant tried to force Smith into his car. After losing his gun in the struggle with Smith, defendant fled the scene.
A blue nylon parka was discovered in the stairwell of Fueling's apartment building. Defendant's identification card from Joliet Correctional Center was found in the coat pocket. In addition, police recovered defendant's fingerprints from a beer can located on a coffee table in Fueling's living room. On the day after the incident, Kozak and Walkowiak independently identified defendant's picture from a photo array. Before trial, Kozak, Walkowiak, and Oscar Smith all selected defendant from a lineup. In addition, all three men identified defendant at trial.
A post-conviction proceeding is not an appeal of a defendant's underlying judgment, but rather a collateral proceeding enabling the defendant to challenge a conviction or sentence for violations of constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997); People v. Ashford, 168 Ill. 2d 494, 500 (1995). To be entitled to post- conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights. Tenner, 175 Ill. 2d at 378; People v. Guest, 166 Ill. 2d 381, 389 (1995). In addition, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised in the earlier proceeding, but were not, are deemed waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995).
In this case, the trial Judge dismissed defendant's post-conviction petition without an evidentiary hearing, concluding that all of the claims had been waived or resolved on direct appeal. We observe that a defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported by the trial record or accompanying affidavits where appropriate, make a substantial showing that defendant's constitutional rights have been violated. People v. Maxwell, 173 Ill. 2d 102, 107 (1996); People v. Gaines, 105 Ill. 2d 79, 91-92 (1984). In addition, the trial court's ruling on a post-conviction petition will not be disturbed unless manifestly erroneous. People v. Henderson, 171 Ill. 2d 124, 131 (1996); People v. Griffin, 109 Ill. 2d 293, 303 (1985).
On appeal to this court, defendant raises numerous contentions in opposition to the trial court's decision to dismiss his post-conviction petition without an evidentiary hearing. Defendant's principal arguments are based primarily on the alleged ineffective assistance of trial counsel. Although defendant focuses on the performance of his trial counsel, he also claims that his attorney on direct appeal was ineffective for failing to raise certain claims. We observe that the same standards govern the evaluation of the performance of both trial and appellate counsel. People v. Whitehead, 169 Ill. 2d 355, 381 (1996). Because these two issues overlap, we will focus on trial counsel's performance. See Tenner, 175 Ill. 2d at 378; Guest, 166 Ill. 2d at 390. Obviously, if the underlying claim lacks merit, defendant suffered no prejudice due to appellate counsel's failure to raise the issue on direct appeal. Coleman, 168 Ill. 2d at 523.
In this appeal, defendant raises numerous issues that essentially claim that his trial counsel was ineffective because he failed to: (1) request a Batson hearing; (2) present testimony of an alibi witness; (3) request a fitness hearing; (4) argue that defendant lacked the capacity to form the requisite intent to commit murder; (5) argue that defendant lacked the capacity to waive his right to a jury at sentencing; and (6) investigate and present available mitigating evidence. Defendant also claims that his death sentence is (7) unconstitutional because he was sentenced without the benefit of mitigating evidence his counsel failed to discover. Finally, defendant claims (8) the Illinois death penalty statute is unconstitutional.
Effectiveness of Counsel During Guilt Phase
Defendant raises a series of contentions which focus on his counsel's performance before and during trial. These claims are based on a defendant's constitutional guarantee to the assistance of counsel (U.S. Const., amends. VI, XIV), which encompasses the right to the effective assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 343-44, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1715-16 (1980)). To be successful on his claims, defendant must satisfy the two-prong Strickland test. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland, a defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient performance resulted in prejudice to defendant. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65; People v. Albanese, 104 Ill. 2d 504, 525- 26 (1984). A strong presumption exists that defense counsel's performance falls within the "wide range of reasonable professional assistance" and, thus, is not deficient. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. In addition, to demonstrate prejudice resulting from counsel's asserted deficient performance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, 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. With these principles in mind, we now turn to defendant's claims regarding his counsel's performance during the guilt- innocence phase.
1. Failure to Request a Batson Hearing
Defendant contends that his trial counsel was ineffective because he failed to request a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) to explore the State's discriminatory use of preemptory challenges against African-American venirepersons. The record reveals that defendant's counsel did indeed object to the State's use of peremptory challenges. Early in the jury selection process, the following colloquy occurred:
"MR. BROWNFIELD [defense attorney]: Judge, I believe in that twenty-seven there has only been three blacks and the State has knocked off all three blacks.
MR TRUTENKO [assistant State's Attorney]: That's not true. That's not true.
MS. ROUSE [defense attorney]: Two.
MR. VELCICH [assistant State's Attorney]: Maurice Miller is black, left on.
MR BROWNFIELD: What number is that?
MR. TRUTENKO: Number thirteen.
MR. BROWNFIELD: I'm sorry. I withdraw my objection."
The jury selection continued and defense counsel raised no additional objections to the State's use of its peremptory challenges.
Defendant argues that trial counsel was deficient in failing to renew his objection and subsequently request a Batson hearing. In support of his claim, defendant attached two sets of handwritten notes allegedly taken by his defense attorneys contemporaneously with voir dire. Defendant also attached copies of the jury summons and corresponding juror information forms for six venirepersons who were stricken by the State with peremptory challenges. Defendant contends that this evidence establishes that the State exercised a discriminatory pattern of strikes against African-Americans and also utilized a disproportionate number of its peremptory challenges against African-Americans. See People v. Andrews, 146 Ill. 2d 413, 428-30 (1992). Defendant argues that this evidence, combined with the interracial nature of the crimes, clearly establishes a prima facie case of racial discrimination. See Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723. Notwithstanding defendant's arguments, based on the record before us, we find that defendant failed to make a substantial showing of a Batson violation.
The defendant asserting a Batson violation bears the burden of preserving the record. People v. Hudson, 157 Ill. 2d 401, 428 (1993). For a meaningful appellate review of the issue, the record must disclose the race of the venirepersons. People v. McDonald, 125 Ill. 2d 182, 194- 95 (1988). Moreover, any ambiguities in the record on the issue are construed against the defendant. Hudson, 157 Ill. 2d at 428.
We initially observe that the notes defendant alleges his trial attorneys recorded during voir dire are not supported by affidavit or authenticated in any manner. The Post-Conviction Hearing Act requires the defendant's petition to support his allegations of constitutional violations by "affidavits, records, or other evidence." 725 ILCS 5/122-2 (West 1994). Evidence supporting defendant's post-conviction allegations must be accompanied by an affidavit which identifies with reasonable certainty the source, character, and availability of the alleged evidence. People v. Johnson, 154 Ill. 2d 227, 239-40 (1993). Without supporting affidavits, this court is unable to determine the source of the notes defendant offers or whether they were written contemporaneously with voir dire.
Even if the voir dire notes were properly supported, their contents are too ambiguous to substantiate defendant's claim. First, the race of all the venirepersons was not recorded. See McDonald, 125 Ill. 2d at 194-95. Moreover, the notes, apparently written by at least two persons, contain disparities in the race recorded for several venirepersons. In addition, the juror information cards defendant offers contain absolutely no information indicative of the race of the stricken venirepersons.
Generally, a post-conviction petition which is not properly supported by affidavits or other evidence is dismissed without an evidentiary hearing unless the petitioner's allegation stands uncontradicted and is clearly supported by the record. Johnson, 154 Ill. 2d at 240. Here, the trial record establishes that the State exercised 12 of its 14 available peremptory challenges. The portion of voir dire quoted above establishes that at least one African-American served on the jury and that the State used two of its peremptory challenges to strike African-American venirepersons (see People v. Andrews, 132 Ill. 2d 451, 460-61 (1989) (trial counsel's statement on the record is adequate evidence to establish African-American venirepersons were peremptorily challenged)). Nevertheless, an inference of racial discrimination is not raised simply because African-American venirepersons were peremptorily challenged. Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725 (White, J., Concurring); People v. Coleman, 155 Ill. 2d 507, 513 (1993). Therefore, defendant's allegation of a Batson violation is not supported by the record and, accordingly, the trial court's dismissal of this claim without an evidentiary hearing was not against the manifest weight of the evidence.
2. Failure to Present Testimony of an Alibi Witness
Defendant next argues that trial counsel was ineffective because he failed to present the testimony of an alibi witness, Dennis Taylor. Defendant supports this claim with the affidavit of Darlene Taylor, defendant's girlfriend and Dennis' sister. In her affidavit, Darlene states that Dennis was at her apartment the day of the murder and could have testified to essentially the same facts that she did at trial. Darlene further avers that counsel never interviewed her brother, who has since died.
In order to support a claim of failure to investigate and call a witness, a defendant must tender an affidavit from the individual who would have testified. Without such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided any information or testimony favorable to defendant. Guest, 166 Ill. 2d at 402; People v. Ashford, 121 Ill. 2d 55, 77 (1988); see also People v. Barr, 200 Ill. App. 3d 1077, 1080 (1990). Because defendant has failed to provide an affidavit from Dennis Taylor, further consideration of his purported testimony is unnecessary. Guest, 166 Ill. 2d at 402. Even assuming defendant's allegation was sufficiently supported, Dennis's testimony was apparently to be cumulative (see Henderson, 171 Ill. 2d at 155 (counsel cannot be deficient for failing to present cumulative evidence)). We also conclude that defendant would not meet the second prong of Strickland. The evidence of defendant's guilt was overwhelming and defendant has ...