CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Following a trial in the circuit court of Cook County, a jury convicted defendant, Ronald Kitchen, of five counts of murder. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1). The jury found defendant eligible for the death penalty under section 9-1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3)) and further concluded, after hearing the evidence in aggravation and mitigation, that there were no mitigating factors sufficient to preclude the imposition of the death penalty. This court affirmed defendant's convictions and death sentence on direct appeal, and the United States Supreme Court denied certiorari. People v. Kitchen, 159 Ill. 2d 1 (1994), cert. denied, 513 U.S. 1020, 130 L. Ed. 2d 500, 115 S. Ct. 586 (1994).
Defendant thereafter filed a timely petition for relief pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122-1 (West 1994). The circuit court denied relief, and this appeal followed. 134 Ill. 2d R. 651. We now vacate the circuit court's order denying relief and remand the matter for further proceedings.
Our opinion on direct appeal sets forth the details surrounding defendant's convictions, and we will not repeat them here. Defendant stands convicted of the July 27, 1988, murders of Deborah Sepulveda, Rose Marie Rodriguez, Sepulveda's two children, Peter Jr., and Rebecca, and Rodriguez's son, Daniel.
Following the completion of direct review proceedings, defendant filed a petition for post-conviction relief in the circuit court. The petition contained eight claims of ineffective assistance of trial counsel, two claims of ineffective assistance of appellate counsel, and one claim of cumulative error as a result of the alleged ineffectiveness of counsel. All but one of the claims asserted against trial counsel concerned what counsel did not do, but ought to have done, in the course of his representation of defendant. These claims consisted of allegations concerning counsel's failure to investigate, discover, and present certain evidence at both the pretrial and trial phases of the proceedings. The petition also alleged that trial counsel was ineffective by failing to object to alleged hearsay testimony. In conjunction with this claim, defendant asserted the ineffectiveness of his appellate counsel for failing to raise the issue on direct appeal. Defendant further claimed that appellate counsel was ineffective because counsel failed to argue on direct appeal the fact that defendant's right to counsel was not scrupulously honored by police during his interrogation. Attached to the petition were the affidavits of both members of defendant's trial counsel team and various documents obtained from the trial counsel's file, including police and medical reports. The gist of the contentions raised in defendant's petition is that trial counsel's decisions not to investigate the circumstances of defendant's arrest and interrogation fell below objective professional standards and that defendant suffered prejudice as a result. The petition's prayer for relief included a request that defendant be granted sufficient time and leave to amend and supplement the petition in order to include additional claims, supporting affidavits, and factual material "as [defendant's] investigation continues."
On September 7, 1995, the circuit court conducted a status hearing on the petition. The assistant State's Attorney informed the court that the State would "be filing [a] motion to dismiss" and would serve defendant's counsel with it. *fn1 Defendant's attorney then indicated to the court that defendant was under capital sentence and that defendant would be "asking for time to file an amended petition." Counsel explained that he still had "some extensive investigation to do in this matter" and that the assistant State's Attorney had indicated that he had no objection to this procedure. The circuit court, thereafter, continued the cause until December 7, 1995 at the agreement of the parties.
On November 7, 1995, defense counsel caused several subpoenas to be issued, including subpoenas for files from the Chicago Police Department's Office of Professional Standards and Internal Affairs Division. Specifically, defense counsel requested the disciplinary records and files of six of the officers who had been involved in defendant's arrest and interrogation. The State, along with the City of Chicago, moved to quash the subpoenas, arguing that the request was overly broad and that the information requested would prove arduous to amass and produce. At a status hearing on December 7, 1995, defendant's attorney tendered to the court an additional affidavit that counsel stated would support one of defendant's claims of ineffective assistance of trial counsel. Defense counsel also indicated that he would like time to respond to the State's motion to quash in writing. The circuit court continued the matter.
At a hearing on March 7, 1996, the parties agreed in open court that the defense subpoenas were overly broad. Defense counsel stated that he would be willing to narrow the request so that the State could more easily comply with it. Accordingly, the circuit court ruled that the subpoenas, as drafted, were too broad. The court further indicated that it would entertain future discovery requests on June 6, 1996, a date agreed upon by the parties. On May 30, 1996, defendant filed a motion for discovery seeking the issuance of subpoenas in five areas in order to support his claims of constitutionally ineffective assistance of trial counsel. According to counsel, these records would establish that trial counsel's decision not to investigate and discover the records constituted ineffectiveness because the material was readily available at the time of trial. At the June 6, hearing, the assistant State's Attorney indicated that the State was not ready to proceed, and the court granted a continuance to September 5, 1996, to hear defendant's motion for discovery. On that date, the assistant State's Attorney served defense counsel with the State's objections to the defendant's motion for discovery. The matter was then continued to November 7, 1996.
When the parties reconvened in court on November 7, both attorneys presented arguments on the motion for discovery and the objections thereto. The court indicated that it would be prepared to rule on the motion after it had conducted an in camera review of certain Department of Corrections records that defendant had requested. The case was continued by agreement of the parties to November 19, 1996 for a final ruling as to the discovery requests.
On November 19, the court inquired if either defense counsel or the assistant State's Attorney had additional arguments to make with respect to the discovery issue. Both parties indicated that they did not. The court then stated that it had reviewed defendant's petition, along with the supporting affidavits and documents attached to it and that "detailed oral arguments were heard *** on this post-conviction petition on November 7, 1996." The court then denied all of the discovery requests and further found that "defendant's post conviction petition for relief sets out no valid or just reasons why relief should be granted by this trial Judge. Therefore, defendant's petition is hereby denied."
At the Conclusion of the court's rulings, defense counsel immediately pointed out that the matter was before the court solely on a motion for discovery. Counsel explained that his arguments, up until that point in time, had only pertained to the discovery issue and had not been directed at the substantive claims made in the petition. Specifically, counsel noted that:
"[t]he arguments that we argued [last week] were not addressing [sic] actually the claims that we had made in the post conviction petition initially. The arguments were going to discovery concerning some of those issues and some other issues we have yet to raise.
And we're taken completely by surprise that the ruling today is on the merits of the post-conviction petition. We did not ...