The opinion of the court was delivered by: Justice Rathje
A jury convicted defendant, Anthony Mitchell, of two counts of first degree murder. The same jury also determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the circuit court of St. Clair County sentenced defendant to death.
On direct review, we affirmed defendant's conviction and sentence. People v. Mitchell, 152 Ill. 2d 274 (1992) (Mitchell I). The United States Supreme Court denied defendant's petition for a writ of certiorari. Mitchell v. Illinois, 508 U.S. 962, 124 L. Ed. 2d 685, 113 S. Ct. 2936 (1993). On December 7, 1993, defendant filed a petition for post-conviction for relief, and on May 16, 1996, defendant filed an amended petition. The State moved to dismiss the amended petition without an evidentiary hearing. Defendant then filed three additional claims for post-conviction relief, based on this court's decisions in People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Nitz, 173 Ill. 2d 151 (1996). The court allowed the State's motion to dismiss to stand against the additional counts. The court granted the State's motion to dismiss, and this appeal followed. Because the judgment challenged in defendant's petition imposed a sentence of death, the appeal was taken directly to this court. 134 Ill. 2d R. 651(a).
Defendant's convictions arose from the stabbing deaths of teenagers David and Dawn Lieneke in July 1989. The facts detailing the crime and the investigation leading to defendant's arrest are set out in our original opinion, and we provide only a brief summary here. Additional facts will be noted where necessary to address the particular arguments defendant raises.
David and Dawn lived with their grandparents. On the evening of July 4, 1989, their grandparents were out playing bingo. The grandparents returned home at approximately 10:30 p.m. and found David's and Dawn's dead bodies. Eighteen-year-old David was lying in a pool of blood in the hallway. He had been stabbed seven times. The wounds were large and deep, and David had died from blood loss caused by a stab wound to the liver and from the collapse of both lungs, due to a stab wound to his chest. Thirteen-year-old Dawn was lying in a pool of blood on her grandmother's bed. She also had seven stab wounds in her body, including one that went through the right temple and penetrated her brain. Dawn bled to death from knife wounds to the aorta and liver.
The police located defendant by tracing the license plate number of his sister's car. Defendant had been driving that car on the night of the murders. Witnesses had spotted the car at the scene. Defendant confessed to the crime, explaining that he had gone to the Lieneke's house looking for Viroon Williams, whom defendant claimed had tried to run him down with a car the day before and who had stolen a VCR, radio, and video game from defendant's mother's house. Williams sometimes stayed with the Lienekes. Defendant went into the house and stabbed David, and then killed Dawn when she screamed his name and ran into the bedroom. David was still alive and was threatening to tell Williams, so defendant stabbed him again.
In addition to defendant's confession, the State relied upon the testimony of Maurice Douglas, who was with defendant on the night of the murders. Defendant showed the bloody knife to Douglas and told him that he had just killed two persons. The police recovered the murder weapon-a survival knife-from defendant's basement. The knife had blood on it, and the blood was consistent with a mixture of David's and Dawn's blood. The police also recovered black clothes and a pair of two-toed shoes. Blood on a pair of pants recovered from defendant's basement was consistent with Dawn's blood. One of the two-toed shoes matched a shoe print that was left in the mud near where defendant's sister's car was seen parked in the victims' neighborhood.
Defendant testified and denied any involvement in the crime. Defendant's testimony suggested that Williams was the murderer. Defendant denied owning the clothes or the knife, but said that Williams had an outfit like the one recovered and that he had seen Williams with the knife. Defendant denied showing the knife to Douglas or saying that he killed two persons. Defendant testified that the police made him sign the confession by raising their voices.
Defendant was convicted of the murders and sentenced to death. After his convictions and sentence were affirmed by this court and his petition for a writ of certiorari to the United States Supreme Court was denied, defendant filed a post-conviction petition. As twice amended, defendant's post-conviction petition contained 28 counts. Eleven counts, however, restated constitutional arguments that were rejected on direct appeal. In dismissing the petition without an evidentiary hearing, the trial court ruled that the majority of defendant's claims were barred by waiver and res judicata. As to defendant's claims of ineffective assistance of counsel, the court ruled that defendant had not made a substantial showing that his constitutional rights had been violated.
The trial court found merit to one of defendant's claims based on Brandon and Nitz. Defendant argued that at the time of his trial and sentencing he was taking two medications to control his epilepsy-Depakote and Phenobarbital-and that these medications were psychotropic. Defendant contended he was denied due process when he did not receive a fitness hearing and that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to such a hearing. The trial court agreed that Depakote was psychotropic medication and that defendant therefore would have been entitled to a fitness hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a); Brandon, 162 Ill. 2d 450. However, the trial court ruled that defendant could not prevail on this claim because he was seeking to benefit from the retroactive application of a "new rule" announced in Brandon. *fn1 The court based its analysis on Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); and People v. Flowers, 138 Ill. 2d 218 (1990), which held that, except in certain limited situations, new constitutional rules of criminal procedure are not applied retroactively to cases pending on collateral review. Accordingly, the trial court dismissed defendant's petition without an evidentiary hearing. Defendant raises six issues on appeal.
A petition filed pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)) is a collateral attack on a prior conviction and sentence. People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). To obtain relief under the Act, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. 725 ILCS 5/122-1(a) (West 1998); People v. Tenner, 175 Ill. 2d 372, 378 (1997).
An evidentiary hearing on the petition 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, 428 (1998). For the purpose of determining whether to grant an evidentiary hearing, 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 de novo review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
Defendant argues that he was denied due process when he did not receive a hearing to determine his fitness for trial while under medication. The statute in effect at the time of his trial provided, in part, as follows:
"A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a).
Defendant further argues that he received the ineffective assistance of counsel when his trial attorney failed to invoke his right to a fitness hearing and when his counsel on direct appeal failed to raise the due process and ineffective assistance of counsel arguments as they related to his failure to receive a section 104-21(a) fitness hearing.
The factual basis for defendant's claim, as provided in his post-conviction petition and the accompanying affidavits, is as follows. Defendant has suffered from epilepsy since the age of six, when he suffered a head injury. To control his seizures, defendant has been taking medications for many years. During his trial and sentencing, defendant's epilepsy medications were Depakote and Phenobarbital. The trial court was aware that defendant was taking medication for epilepsy.
The Physicians' Desk Reference categorizes Depakote as an "antimanic agent," which is a subcategory of "psychotherapeutic agents." *fn2 Physicians' Desk Reference 215 (53d ed. 1999) (PDR). Defendant attached to his petition the affidavit of Dr. James O'Donnell, a pharmacology consultant. O'Donnell states in the affidavit that Depakote and Phenobarbital are both central nervous system depressants that are prescribed to prevent epileptic seizures. O'Donnell lists the probable side effects of the drugs as "sedation, hallucinations, dizziness, incoordination, depression, emotional changes and behavioral deterioration, psychosis and aggression." O'Donnell further states that "[t]he combination of the effects of both of these drugs can cloud the sensorium (alter the ability to think clearly) and thus effect [sic] any individual's ability to make certain decisions." O'Donnell concludes that "[t]he overall sedative effect may have caused Mr. Mitchell to appear too relaxed or too detached during court proceedings."
Before deciding the merits of defendant's arguments, we address the State's contention that Phenobarbital and Depakote are not psychotropic medications. In People v. Britz, 174 Ill. 2d 163, 198 (1996), we adopted the definition of "psychotropic medications" found in the Mental Health and Developmental Disabilities Code:
" `Psychotropic medication' means medication whose use for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavioral management purposes is listed in AMA Drug Evaluations, latest edition, or Physicians's Desk Reference, latest edition, or which are administered for any of these purposes." 405 ILCS 5/1-121.1 (West 1998).
We further relied on the definition given by the United States Supreme Court in Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990):
"[P]sychotropic drugs are `medications commonly used in treating mental disorders such as schizophrenia,' the effect of which is `to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational state of mind.' " Britz, 174 Ill. 2d at 198, quoting Washington, 494 U.S. at 214, 108 L. Ed. 2d at 193, 110 S. Ct. at 1032.
The trial court found that Depakote was a psychotropic drug, but that Phenobarbital was merely "an anticonvulsant barbiturate." We agree that Depakote falls within the purview of section 104-21(a)'s reference to "psychotropic drugs or other medications." Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a). Depakote is listed in the PDR as a psychotherapeutic antimanic agent and thus clearly falls within the Britz definition. Further, Dr. O'Donnell stated in his affidavit that the combination of Depakote and Phenobarbital could affect the individual's ability to think clearly and to make certain decisions. We thus agree with defendant that his ingestion of Depakote would have entitled him to a fitness hearing under section 104-21(a). This conclusion renders unnecessary a discussion of whether Phenobarbital fits the Britz definition.
Our decision is not in conflict with People v. Kidd, 175 Ill. 2d 1 (1996), another case in which a defendant argued that his epilepsy medication was a psychotropic drug. In Kidd, the defendant was taking Dilantin to control his seizures. We applied the Britz definition and held that Dilantin was not psychotropic medication because its use for psychotropic purposes was not listed in the PDR or the AMA Drug Evaluations. Further, it was not being administered to the defendant for psychotropic purposes. Kidd, 175 Ill. 2d at 17-19. By contrast, Depakote is listed in the PDR as a psychotherapeutic antimanic medication, and thus falls squarely within the Britz definition.
We turn now to the merits of defendant's arguments. Defendant argues that the trial court erred in finding that Brandon could not be applied retroactively to cases pending on collateral review, and points out that Nitz and People v. Neal, 179 Ill. 2d 541 (1997), were both cases in which this court applied Brandon in post-conviction cases. The State counters that it did not raise the Flowers/Teague retroactivity rule in those cases and therefore this court has not yet ruled on this issue. According to the State, the Flowers/Teague rule bars application of Brandon to petitioner's case. We need not address this issue, however, as we believe that the dismissal of defendant's psychotropic medication claims was proper for other reasons.
We first address defendant's argument that he was denied due process when he did not receive the fitness hearing to which he was entitled. Petitioner's claim-that denial of a section 104-21(a) fitness hearing is a denial of due process-has its genesis in Nitz. In Nitz, the defendant raised a Brandon issue for the first time in a post-conviction petition. The State argued that Brandon was not applicable because the defendant did not argue that he received the ineffective assistance of counsel. Thus, the defendant's claim was lacking a constitutional foundation. We rejected the State's argument and held that the court's failure to follow the relevant statutory procedures resulted in a due process violation to the defendant. Nitz, 173 Ill. 2d at 160-61.
The reasoning in Nitz was as follows. The due process clause of the fourteenth amendment prohibits the prosecution of a defendant who is unfit for trial. U.S. Const., amend. XIV; Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). Where information raises the possibility that an accused is incompetent, the failure to inquire concerning competency violates the accused's due process rights. Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966) (holding that the Illinois court's failure to invoke the relevant statutory procedures deprived the defendant of an inquiry concerning his fitness to stand trial, and defendant therefore suffered a due process violation). The relevant statute-section 104-21(a)-provides for a fitness hearing, and therefore the court's failure to invoke it denied defendant an inquiry into his fitness for trial and consequently denied him due process. Nitz, 173 Ill. 2d at 155-61.
Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fitness; it requires only that there be an adequate procedure to implement the right to an inquiry. Nitz, 173 Ill. 2d at 160, citing Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). Nitz further correctly recognized that the particular procedures to be invoked are purely by legislative design and that the right to a particular procedure is wholly statutory. Nitz, 173 Ill. 2d at 160.
Although we recognized in Nitz that defendant's right to section 104-21(a)'s procedure was wholly statutory, we reached the somewhat contradictory conclusion that the trial court's failure to invoke the statute denied defendant due process. The relevant passage in Nitz is our conclusion that, "Here, as in Pate, because no procedure was invoked, defendant was denied inquiry into the issue of his fitness. Due process was thereby denied." Nitz, 173 Ill. 2d at 161. This conclusion does not follow from the recognition that the particular procedure to be invoked is purely by legislative design and that defendant's right to that procedure is wholly statutory. Three members of the court dissented in Nitz, on the basis that a defendant's right to a section 104-21(a) fitness hearing was statutory and that the court was creating a constitutional deprivation where none existed. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissent concluded that defendant's petition (which did not argue ineffective assistance of counsel) should have been dismissed because it lacked a constitutional foundation. After careful consideration and reevaluation, we have determined that the dissent's position in Nitz was correct and that this court erred in holding that a denial of a section 104-21(a) fitness hearing was in and of itself a due process violation.
In Nitz, we failed to distinguish the United States Supreme Court's decision in Pate. In that case, the Supreme Court held that the defendant should have received a fitness hearing because the evidence introduced on his behalf established a bona fide doubt of his fitness. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The court's failure to inquire into the defendant's fitness in the face of evidence establishing a bona fide doubt of his fitness deprived the defendant of his constitutional right to a fair trial. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The Supreme Court later explained its Pate holding in Drope:
"In Pate v. Robinson, 383 U.S. 375[, 15 L. Ed. 2d 815, 86 S. Ct. 836] (1966), we held that the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois `jealously guard[ed] this right,' id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill. Rev. Stat., ch. 38, §104-2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. [Citations.] Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted that under the Illinois statute a hearing was required where the evidence raised a ` "bona fide doubt" ' as to a defendant's competence, and the Court concluded `that the evidence introduced on Robinson's behalf entitled him to a hearing on this issue.' " (Emphasis added.) Drope, 420 U.S. at 172-73, 43 L. Ed. 2d at 113-14, 95 S. Ct. at 904.
Thus, Drope clearly recognized that Illinois' statutory procedure-requiring a fitness hearing when there is a bona fide doubt of defendant's fitness-was constitutionally adequate to safeguard a defendant's due process right not to be tried or convicted while unfit to stand trial. The Supreme Court did not hold, as Nitz implies, that the failure to follow any statute concerning a defendant's fitness for trial deprives a defendant of due process. See Nitz, 173 Ill. 2d at 160-61. Under the Nitz rationale, if the legislature passed a statute entitling defendants who watch professional wrestling to a hearing on their mental fitness, the court's failure to follow the statute would be a denial of due process. This cannot be so. As Nitz correctly recognized, "due process does not mandate any particular procedure for the inquiry; it requires merely that there be an adequate procedure to implement the right to an inquiry." Nitz, 173 Ill. 2d at 160.
The United States Supreme Court has determined the constitutional adequacy of the Illinois statutory scheme of requiring a fitness hearing when there is a bona fide doubt of defendant's fitness. Thus, Illinois has in place procedures that are constitutionally adequate to protect a defendant's due process right not to be tried while unfit. *fn3 Due process does not require that everyone taking "psychotropic or other medication" under medical direction should be granted a fitness hearing. Section 104-21(a)'s provision is merely a statutory right granted by the legislature-a right that the legislature has now taken away. See 725 ILCS 5/104-21(a) (West 1998). Statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the Act. People v. Orndoff, 39 Ill. 2d 96, 99 (1968). The Illinois statutory scheme for determining fitness comports with due process with or without section 104-21(a) fitness hearings. Nitz's conclusion that a defendant may raise in a post-conviction petition a denial of a section 104-21(a) fitness hearing as a denial of due process was erroneous, and we hereby overrule Nitz.
Nitz's conclusion was largely based on this court's continued equating of a defendant's ingestion of psychotropic medication with a bona fide doubt of defendant's fitness. This position has its genesis in Brandon, although it was not specifically articulated until People v. Gevas, 166 Ill. 2d 461 (1995). In Brandon, we stated that section 104-21(a) "evinces a recognition by the General Assembly that psychotropic medication is an important signal that a defendant may not be competent to stand trial." Brandon, 162 Ill. 2d at 457. In Gevas, we specifically stated that, "The legislature has equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial." Gevas, 166 Ill. 2d at 469. Three members of this court have taken the position that the right to a fitness hearing in section 104-21(a) cannot be equated with a bona fide doubt of a defendant's fitness and is much broader than the constitutional right with which it is mistaken. People v. Birdsall, 172 Ill. 2d 464, 482 (1996) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). These justices have pointed out that, under section 104-21(a), a defendant taking psychotropic or other medication is entitled to a fitness hearing "even in the absence of evidence that might otherwise trigger an inquiry into the separate constitutional right." Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). As previously stated, section 104-21(a) merely contained a statutory right conferred by the legislature. The legislature has now rewritten the statute to remove that right. If the right was constitutional, the legislature could not have eliminated it.
This court's prior determination that the legislature equated the ingestion of psychotropic medication with a bona fide doubt of defendant's fitness was simply erroneous. Section 104-11(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104-11(a) (West 1998)) provides, in part, that "[w]hen a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." Section 104-21(a), at the relevant time, provided that "[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issues of his fitness while under medication." Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a). The wording of these provisions is significant. The first places a mandatory burden on the trial judge to order a determination of a defendant's fitness when a bona fide doubt of that fitness is raised. See People v. Reed, 177 Ill. 2d 389, 393 (1997) ("use of the word `shall' is generally considered to express a mandatory reading"); Black's Law Dictionary 1375 (6th ed. 1990) ("[a]s used in statutes, contracts, or the like, [shall] is generally imperative or mandatory"). The second provision merely provides that a defendant taking psychotropic or other medication under medical direction is entitled to a fitness hearing. The word " `entitled' " means " `to give a right or legal title to' " (Brandon, 162 Ill. 2d at 461, quoting Black's Law Dictionary 532 (6th ed. 1990)), or "[t]o qualify for; to furnish with proper grounds for seeking or claiming" (Black's Law Dictionary 532 (6th ed. 1990)). See also People v. Tilson, 108 Ill. App. 3d 973, 977 (1982) ("the word `entitled' signifies the granting of a right or privilege to be exercised at the option of parties for whose benefit it is used; it is directly opposed to the idea of imposing an obligation or limitation"). Section 104-21(a) does not, as does section 104-11, require the trial judge to make a further inquiry when certain facts are brought to his attention. Rather, it gives the defendant the "proper grounds for seeking or claiming" a fitness hearing. As Justice Miller has stated, "While section 104-21(a) declares that a defendant receiving psychotropic drugs is entitled to a fitness hearing, the statute does not establish a defendant's incompetency, say that a hearing must be held if the defendant refuses one, or excuse counsel's failure to request a hearing in a timely manner." Gevas, 166 Ill. 2d at 473 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); see also People v. Kinkead, 168 Ill. 2d 394, 419 (1995) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.) ("[t]o say that a defendant is `entitled' to a fitness hearing is much different from saying that a hearing is absolutely required in all circumstances, no matter how tardy the defendant's request might be"). We erred in Gevas when we stated, and in Brandon when it implied, that the legislature equated the administering of psychotropic medication to a defendant with a bona fide doubt as to his fitness to stand trial, and we no longer adhere to that conclusion.
Ineffective Assistance of Counsel
Defendant also argues that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to a section 104-21(a) fitness hearing. We first address whether defendant received the ineffective assistance of appellate counsel when his attorney failed to argue on direct appeal that he was denied due process when the trial court failed to hold a section 104-21(a) fitness hearing. 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, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). 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). Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues that in his judgment are without merit. People v. Whitehead, 169 Ill. 2d 355, 381 (1996).
Defendant cannot meet the first prong of the Strickland test in arguing that appellate counsel should have argued that he was denied due process when the court failed to hold sua sponte a fitness hearing when it found out that defendant was taking psychotropic medication. As thoroughly set out earlier in this opinion, defendant's right to a fitness hearing under section 104-21(a) is a statutory rather than a constitutional right. At the time of defendant's direct appeal, no Illinois court had held that a trial court's failure to order sua sponte a section 104-21(a) fitness hearing deprived a defendant of due process. Defendant's attorney therefore would have had no reason to believe that this court was about to reach that conclusion. Further, existing case law would have indicated that the argument was meritless. See Balfour v. Haws, 892 F.2d 556 (7th Cir. 1989); People v. Lopez, 216 Ill. App. 3d 83 (1991); People v. Balfour, 148 Ill. App. 3d 215 (1986); People v. Tilson, 108 Ill. App. 3d 973 (1982). Clearly defendant's attorney's decision not to raise this issue on direct appeal was not objectively unreasonable.
We next address whether trial counsel was ineffective for not requesting a fitness hearing and whether appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness in not requesting a fitness hearing. We must first consider the relevant standard for assessing claims of ineffective assistance of counsel for failing to request section 104-21(a) fitness hearings. In Brandon, we cited the Strickland standard, but then held that a defendant could meet the prejudice prong of Strickland merely by showing that, if his attorney would have requested a fitness hearing, he would have gotten one. Brandon, 162 Ill. 2d at 458-59. This was an unwarranted modification of the Strickland rule.
To establish prejudice under Strickland a defendant must show 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. As the Brandon dissent correctly noted, "the relevant inquiry in this case is not whether a fitness hearing would have been conducted if defense counsel had requested one under section 104-21(a), but whether the outcome of the hearing would have been favorable to the defendant, that is, whether the defendant would have been found unfit to stand trial. The majority, by considering only whether a fitness hearing would have been held (Brandon, 162 Ill. 2d at 457-59), simply presumes the existence of prejudice in certain circumstances in which such a presumption is not warranted." Brandon, 162 Ill. 2d at 462-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.)
Clearly, defining the test as whether a defendant would have received a fitness hearing cannot be correct. If a defendant would have been found fit to stand trial, he suffered no prejudice by not having a fitness hearing. The correct test for evaluating prejudice in these situations is whether a reasonable probability exists that, if defendant would have received the section 104-21(a) fitness hearing to which he was entitled, the result of the proceeding would have been that he was found unfit to stand trial. Brandon is overruled.
We now consider whether defendant's trial attorney was ineffective for failing to request a hearing. We will not find this claim waived for defendant's failure to raise it on direct appeal because it depends on facts outside the original trial record. See Whitehead, 169 Ill. 2d at 372. After carefully reviewing the record and the evidence attached to the post-conviction petition, we cannot say that there was a reasonable probability that defendant would have been found unfit to stand trial.
Under section 104-10 of the Code, a defendant is unfit for trial "if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." Here, the record belies any claim that defendant did not understand the nature of the proceedings or was unable to assist in his defense. Defendant's exchanges with the trial judge do not display any confusion about the nature of the proceedings, and defendant assisted in his defense by testifying in his own behalf. Defendant testified to his whereabouts at the relevant times, denied any involvement in the crime, and asserted that his confession to the police was coerced. Defendant's testimony covered over 50 pages of the report of proceedings and does not disclose any signs of confusion about the nature or purpose of the proceedings. Similarly, defendant gave extensive testimony in support of his motions to suppress statements and evidence, and there is no indication that defendant did not understand the nature or purpose of those proceedings.
In Kinkead, we downplayed the importance of a defendant's trial court demeanor in determining fitness, stating that it encouraged "unprincipled speculation into matters requiring medical expertise." Kinkead, 168 Ill. 2d at 411. This position fails to consider the fundamental purpose of a fitness hearing, which is solely to determine a person's ability to function within the context of a trial. People v. Murphy, 72 Ill. 2d 421, 432 (1978). By statute, evidence on the following matters is admissible at a fitness hearing:
"(1) The defendant's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;
(2) The defendant's ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel;
(3) The defendant's social behavior and abilities; orientation as to time and place; recognition of persons, places and things; and performance of motor processes." 725 ILCS 5/104-16(b) (West 1998).
Defendant's trial demeanor, as evidenced by the record, is clearly relevant to these factors. Nothing in the record indicates that defendant would be found unfit based on a consideration of these factors.
We recognize that a trial judge cannot rely on trial demeanor to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant's fitness (Pate, 383 U.S. at 385-86, 15 L. Ed. 2d at 822, 86 S. Ct. at 842), but that is not the issue here; there is no evidence in the record suggesting a bona fide doubt of defendant's fitness. The issue here is whether a reviewing court should ignore relevant and compelling evidence of a defendant's fitness for trial when determining whether the outcome of a statutory fitness hearing would have been favorable to defendant. The evidence that defendant attached to his post-conviction petition does not show a reasonable probability that defendant would have been found unfit. First, it must be remembered that defendant was not taking these medications for any underlying psychiatric problems. He was merely taking them to control seizures. Thus, the only real question is whether these medications in and of themselves rendered defendant unfit for trial. O'Donnell's affidavit established that the combination of defendant's medications might have affected defendant's ability to make certain decisions. O'Donnell also believed that the medication may have caused defendant to appear too relaxed or detached during court proceedings. O'Donnell's affidavit simply does not establish that defendant would not have been able to understand the nature and purpose of the proceedings or to assist in his defense.
Defendant also attached to his petition the affidavit of clinical psychologist Michael M. Gelbort. In the affidavit, Gelbort testifies to defendant's learning disability, difficulty in school, borderline mental retardation, seizure disorder, and difficulty in processing information. In light of the factors that a trial court considers in determining fitness for trial, there is no reasonable probability that defendant would have been found unfit based on Gelbort's testimony.
The facts of this case are similar to Murphy. The issue in Murphy was whether there was a bona fide doubt of the defendant's fitness such that the trial court should have ordered a fitness hearing. In that case, psychiatric evidence established that defendant was mentally retarded and could only " `understand simple procedures but not complicated ones or those having abstract meanings.' " Murphy, 72 Ill. 2d at 426-27. The defendant had a limited vocabulary and could not read above the first-grade level. However, the defendant testified in his own behalf, said that he knew what an attorney was and understood that his attorney was representing him, and read aloud from his signed statement and said that he could read the whole thing. Murphy, 72 Ill. 2d at 429. The defendant had previously told the police that he understood his Miranda rights. In holding that the record supported the trial court's conclusion that no bona fide doubt of defendant's fitness existed, we stated that the evidence showed "an educable mentally handicapped young man who comprehended his situation and recognized the nature and purpose of the proceedings against him and the function of an attorney to represent him. Defendant cooperated with [his attorney] in presenting his defense." Murphy, 72 Ill. 2d at 434-35.
The record and post-conviction affidavits show that defendant was functioning at a higher level than the defendant in Murphy, fully understood the nature of the proceeding against him, and was able to cooperate in his defense. There is no reasonable probability that defendant would have been found unfit, and therefore defendant's trial counsel was not ineffective for failing to request a fitness hearing. This conclusion also disposes of defendant's argument that appellate counsel was ineffective for failing to raise this issue on direct appeal.
In sum, the right to a fitness hearing that used to be provided for in section 104-21(a) was a statutory right. A defendant did not have a due process right to such a hearing, and trial courts had no obligation to order sua sponte a section 104-21(a) fitness hearing if a defendant did not request one. Thus, in a post-conviction case, the claim will be considered only if it is framed in the context of ineffective assistance of counsel. To prevail on such a claim, a defendant must show a reasonable probability that, if a section 104-21(a) fitness hearing would have been held, he would have been found unfit to stand trial.
We are not unmindful of the import of today's decision. Normally, because of stare decisis considerations, we would continue to adhere to our established precedent, even if certain members of this court disagreed with it. In this case, however, we deem it appropriate to depart from stare decisis. We stated in Chicago Bar Ass'n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994), that "stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." No reasonable observer of this court's jurisprudence could argue that the law in this area has been developing in a principled and intelligible fashion. As Justice Harrison stated in 1998, "This court decided People v. Brandon, 162 Ill. 2d 450 (1994), fewer than four years ago and has been running from it ever since." Kinkead, 182 Ill. 2d at 348 (Harrison, J., specially concurring).
In 1995, we held that after a period of two years had passed it would be impossible to conduct a meaningful hearing as to defendant's fitness at the time of trial and sentencing. Gevas, 166 Ill. 2d at 471. In 1996, we "rejected any notion that a nunc pro tunc determination of fitness can provide the necessary reliability." Nitz, 173 Ill. 2d at 164. In 1997, we saw no problem with a retrospective fitness hearing conducted 15 years after defendant's trial and sentencing. Neal, 179 Ill. 2d at 553-56. In 1998, we held that the automatic reversal rule of Brandon had been replaced by the "case-by-case" approach and that a defendant could no longer prevail on a request for a new trial simply by showing that he had been taking psychotropic medications at the relevant time. Kinkead, 182 Ill. 2d at 340. Although not clearly stated in Kinkead, it appears that retrospective fitness hearings are now the norm. What was constitutionally forbidden three years ago is now compelled. This is not a principled and intelligible development of the law. As Justice Heiple wrote when rejecting stare decisis in another situation, "explicitly overruling Brinkmann is not an `erratic' change in the law. In the eighteen years since Brinkmann, every case interpreting Brinkmann, including today's majority opinion, has eroded its holding. I would merely make explicit what this court has done implicitly for the last eighteen years." McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 518 (1998) (Heiple, J., specially concurring).
Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law. Our jurisprudence in this area has become erratic and confused, and it all stems from an erroneous statutory interpretation five years ago. Stare decisis should not preclude us from admitting our mistake, interpreting the statute correctly, and bringing some stability and reason to this area of the law. As Justice Frankfurter once observed, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, ...