The opinion of the court was delivered by: Justice Rathje
Following a jury trial in the circuit court of Cook County, defendant, Jerry Ward, was convicted of the murders of Bruce Herd and Herd's girlfriend, Pamela Williams; the armed robbery of Bruce Herd; and possession of a stolen motor vehicle. For the murder convictions, the circuit court sentenced defendant to death. The court also imposed a 30-year term of imprisonment for armed robbery and a 3-year term of imprisonment for possession of a stolen motor vehicle.
On direct appeal, this court affirmed defendant's convictions and sentences. People v. Ward, 154 Ill. 2d 272 (1992) (Ward I). The United States Supreme Court denied defendant's petition for a writ of certiorari. Ward v. Illinois, 510 U.S. 873, 126 L. Ed. 2d 161, 114 S. Ct. 204 (1993). Defendant then filed a petition seeking relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)). Defendant's petition, as amended, contains 27 counts. On the State's motion, the circuit court dismissed defendant's petition without an evidentiary hearing. The court held that counsel's performance was not ineffective, that the alleged trial errors did not deprive defendant of his constitutional rights, and that the Illinois death penalty law is constitutional. This appeal followed. Because the judgment challenged in defendant's petition imposed a sentence of death, the appeal was brought directly to this court. 134 Ill. 2d R. 651(a). Defendant contends that the circuit court erred in dismissing his post-conviction petition without an evidentiary hearing. In addressing this claim, we begin by noting that a defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of course. Rather, a hearing is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998).
Where, as here, the State seeks dismissal of a petition instead of filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed and questions only their legal sufficiency. People v. Wilson, 39 Ill. 2d 275, 277 (1968). All well-pleaded facts in the petition and in the supporting affidavits are to be taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989). If the circuit court determines that the petition should be dismissed without an evidentiary hearing, its judgment is subject to plenary review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
Ineffective Assistance of Counsel
Defendant organizes his arguments on the 27 dismissed counts into four main issues on appeal. He first argues that the court erred in dismissing his ineffective assistance of counsel claims because his petition demonstrates a violation of his constitutional rights during the guilt and sentencing phases of his trial. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced the defendant as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064-65 (1984). It is often easier to dispose of an ineffectiveness claim based on the second prong of the test, and counsel's performance need not be evaluated if it can be shown that the defendant suffered no prejudice. People v. Albanese, 104 Ill. 2d 504, 527 (1984). To meet the second prong of the test, a defendant must demonstrate "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.
On direct appeal, this court considered whether defendant received the ineffective assistance of counsel. Defendant argued in Ward I that his trial counsel erred in failing to (1) call witnesses at trial who were called at sentencing; (2) locate certain alleged alibi witnesses; (3) make a motion in limine to preclude the introduction of defendant's prior convictions; and (4) object to the admission of certain evidence, testimony, and improper remarks by the State. The court held that, assuming arguendo that the alleged errors cumulatively constituted substandard representation, defendant had not established a reasonable probability that the result of the case would have been different absent those errors. This was so because of the overwhelming evidence of defendant's guilt. Ward I, 154 Ill. 2d at 317-18. Earlier in Ward I, this court summarized the overwhelming evidence against defendant as follows:
"Defendant was arrested after a police chase, in the victim's car. This occurred very shortly after two gunshot sounds were heard and Herd's body was discovered. [Defendant] had white fleshy matter and blood on his face and clothing. The blood makeup was consistent with Williams' blood. The arresting officer saw defendant remove a .38 Smith and Wesson gun from his waistband, which had two spent cartridges and bullets which were `non-factory.' Gun residue tests proved that defendant had recently fired a gun. The bullet recovered from Herd was a `non-factory' bullet fired from a gun with characteristics consistent with the gun recovered from the defendant. Witnesses identified the car defendant was driving as the one that `dumped' Herd's body shortly before defendant's arrest." Ward I, 154 Ill. 2d at 301.
The State argues that defendant's ineffective assistance of counsel arguments are either waived or barred by res judicata. Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could not have been, previously adjudicated. People v. Tenner, 175 Ill. 2d 372, 378 (1997). Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995).
Defendant's first contention of ineffective assistance of counsel is that his trial counsel failed to uncover and present evidence that would have undermined the State's case and supported the defense. This court partially considered this claim on direct appeal. However, defendant supports this argument with affidavits that were not part of the original trial record. Rules of waiver and res judicata will be relaxed where the facts relating to the issue of counsel's incompetency do not appear on the face of the record. People v. Orange, 168 Ill. 2d 138, 167 (1995). In Orange, the court agreed to consider in a post-conviction appeal the issue of defense counsel's failure to present mitigating evidence at sentencing, even though it had considered that argument on direct appeal. The court considered the issue a second time because defendant attached witness affidavits to his post-conviction petition, and these affidavits were not part of the original trial record. See Orange, 168 Ill. 2d at 167.
After reviewing the affidavits attached to defendant's petition, we cannot say that defendant has shown a reasonable probability that the outcome of his trial would have been different if this testimony had been presented. Defendant argues that this evidence could have helped establish that he knew the victims, was drinking with them on the night of the murders, and that a second person, Steve Burtin, was involved in the crime. Nevertheless, this evidence neither exonerates defendant nor diminishes the strong evidence of defendant's active participation in this crime. Accordingly, defendant has not shown that he was prejudiced by his counsel's failure to investigate and present this evidence.
Defendant also argues that appellate counsel was ineffective for failing to argue trial counsel's incompetence in failing to request the court's assistance in compelling the appearance of these witnesses and in inadequately attempting to subpoena a critical witness. Claims of ineffective assistance of appellate counsel are evaluated under the Strickland standard, which requires the defendant to show both deficient performance by counsel and resultant prejudice. People v. Pecoraro, 175 Ill. 2d 294, 333 (1997). As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendant must show that the failure to raise the issue was objectively unreasonable and that, but for this failure, a reasonable probability exists that the sentence or conviction would have been reversed. People v. Mack, 167 Ill. 2d 525, 532 (1995).
This court held in Ward I that the trial court did not err in not granting defendant a continuance to locate these witnesses (Ward I, 154 Ill. 2d at 305-10), and the court held above that no reasonable probability exists that the result would have been different had these witnesses had been called. Accordingly, appellate counsel was not ineffective for failing to raise this issue.
Defendant raises four other contentions of ineffective assistance of counsel at trial. These claims are procedurally barred. Defendant claims that trial counsel was ineffective for failing to object to the court's questioning of two potential jurors outside his presence. This argument could have been raised on ...