The opinion of the court was delivered by: Justice Freeman
Defendant, Ike Easley, Jr., petitioned the circuit court of Livingston County for post-conviction relief pursuant to the Post- Conviction Hearing Act (725 ILCS 5/122-1 (West 1998)). The circuit court dismissed defendant's petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). We affirm.
Defendant was charged with conspiring to murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8-2(c), 9-1(a)) and with murdering (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1(a)(1), (a)(2)) the victim, Robert Taylor, who was a superintendent at the Pontiac Correctional Center (Pontiac). The State's theory of the case was as follows. Defendant was a member of a street gang. The gang blamed the prison administration for the death of Billy Jones, another gang member. Defendant murdered the victim to avenge Jones' death. People v. Easley, 148 Ill. 2d 281, 324-26 (1992). For a fuller understanding of the underlying facts, see also People v. Lucas, 151 Ill. 2d 461 (1992); People v. Johnson, 250 Ill. App. 3d 887 (1993).
Prior to defendant's trial, the State dismissed the conspiracy charges. At the close of the evidence, a jury found defendant guilty of first degree murder, in that he intended to kill the victim. See Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1). At the first stage of the death sentencing hearing, the same jury found that defendant was eligible for the death penalty because the victim was a correctional officer. See Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(2). At the close of the second stage of the death sentencing hearing, the jury concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the circuit court sentenced defendant to death.
Defendant's sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). This court affirmed defendant's conviction and sentence. People v. Easley, 148 Ill. 2d 281 (1992). The United States Supreme Court denied defendant's petition for a writ of certiorari. Easley v. Illinois, 506 U.S. 1082, 122 L. Ed. 2d 361, 113 S. Ct. 1055 (1993).
In July 1993 defendant filed in the circuit court a petition for post-conviction relief. In January 1997 defendant filed a second amended petition. On August 14, 1997, the circuit court, in the person of the same judge who presided at defendant's trial, granted the State's motion to dismiss the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.
A proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to post-conviction relief, the petitioner bears the burden of establishing a substantial deprivation of constitutional rights. Also, determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct appeal but were not are deemed waived. People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Tenner, 175 Ill. 2d 372, 377-78 (1997).
The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right. Rather, the Act permits summary dismissal of a non-meritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Evans, 186 Ill. 2d at 89; People v. Caballero, 126 Ill. 2d 248, 259 (1989). For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. Evans, 186 Ill. 2d at 89; People v. Coleman, 183 Ill. 2d 366, 380- 82 (1998). The circuit court's dismissal of a post-conviction petition is reviewed de novo. Coleman, 183 Ill. 2d at 387-89.
On appeal, defendant contends that he was denied his constitutional rights due to the: (1) ineffective assistance of counsel at trial and on direct review; and (2) unreasonable disparity between his death sentence and the sentences of others involved in the murder.
I. Ineffective Assistance of Counsel
Defendant claims that he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8. Defendant contends that his trial counsel was constitutionally ineffective because trial counsel: (A) failed to seek a fitness hearing; (B) failed to object to the prosecution's discriminatory use of a peremptory challenge to exclude an African- American venireperson from the jury; (C) failed to object to the State's introduction of evidence relating to street gangs and introduced such evidence as part of the defense; (D) failed to object to the State's introduction of other prejudicial evidence and improper cross- examination; and (E) failed to investigate and present evidence at the death sentencing hearing.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The test is composed of two prongs: deficiency and prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; see People v. Brisbon, 164 Ill. 2d 236, 245-46 (1995).
First, the defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by he sixth amendment. A court measures counsel's performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93; People v. Hampton, 149 Ill. 2d 71, 108-09 (1992).
Second, the defendant must establish prejudice. The defendant must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The prejudice prong of Strickland entails more than an "outcome-determinative" test. The defendant must show that counsel's deficient performance rendered the result of the proceeding unreliable or fundamentally unfair. Evans, 186 Ill. 2d at 93; People v. Mahaffey, 165 Ill. 2d 445, 458 (1995).
A defendant must satisfy both prongs of the Strickland test. Therefore, "failure to establish either proposition will be fatal to the claim." People v. Sanchez, 169 Ill. 2d 472, 487 (1996); accord People v. Guest, 166 Ill. 2d 381, 390 (1995).
Defendant claims that he did not receive effective assistance of counsel because his trial counsel failed to request a fitness hearing. The State initially responds that defendant waived this claim because he did not raise it on direct review. However, we defendant now presents evidence that did not appear on the face of the record and was not available to defense counsel on direct appeal. See People v. Owens, 129 Ill. 2d 303, 308-09 (1989).
The prosecution of a defendant who is not fit to stand trial violates due process. People v. Haynes, 174 Ill. 2d 204, 226 (1996); People v. Murphy, 72 Ill. 2d 421, 430 (1978). In Illinois, a defendant is presumed to be fit to stand trial, and will be considered unfit only if, because of the defendant's mental or physical condition, the defendant is unable to understand the nature and purpose of the proceedings against him or her, or to assist in his or her defense. Ill. Rev. Stat. 1989, ch. 38, par. 104-10, now codified at 725 ILCS 5/104-10 (West 1998). A defendant is entitled to a fitness hearing only when a bona fide doubt of the defendant's fitness is raised. Ill. Rev. Stat. 1989, ch. 38, par. 104-11(a), now codified at 725 ILCS 5/104-11(a) (West 1998); People v. Johnson, 183 Ill. 2d 176 (1998).
Therefore, to establish that his trial counsel's alleged incompetency prejudiced him within the meaning of Strickland, defendant must show that facts existed at the time of his trial that would have raised a bona fide doubt of his ability to understand the nature and purpose of the proceedings and to assist in his defense. Defendant is entitled to relief on this post-conviction claim only if he shows that the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing if it had been appraised of the evidence now offered. See Johnson, 183 Ill. 2d at 193, citing People v. Eddmonds, 143 Ill. 2d 501, 512-13 (1991); accord Eddmonds v. Peters, 93 F.3d 1307, 1316-17 (7th Cir. 1996). Since defendant's post-conviction petition was dismissed without an evidentiary hearing, "[t]he critical inquiry is whether the facts presented in defendant's post-conviction petition raised a bona fide doubt of his fitness to stand trial." Johnson, 183 Ill. 2d at 193.
Relevant factors that a trial court may consider in assessing whether a bona fide doubt of fitness exists include a defendant's irrational behavior, the defendant's demeanor at trial, and any prior medical opinion on the defendant's competence to stand trial. There are " `no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.' " Eddmonds, 143 Ill. 2d at 518, quoting Drope v. Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975).
In the present case, defendant contends that his trial counsel had ample evidence to have raised a bona fide doubt as to his fitness to stand trial. We disagree. None of defendant's evidence raise a bona fide doubt of his fitness.
Prior to trial, defendant's trial counsel arranged for a psychologist to evaluate defendant to develop possible mitigation evidence at the sentencing hearing. However, trial counsel failed to inform defendant of the evaluation. Defendant believed that the State had sent the psychologist and refused to cooperate. "Defendant's unwillingness to cooperate with counsel cannot be deemed equivalent with an inability to do so." People v. O'Neal, 62 Ill. App. 3d 146, 149 (1978).
In an affidavit attached to his post-conviction petition, defendant averred as follows. If he knew that his trial counsel, rather than the State, sent the psychologist to examine him, he would have cooperated. Indeed, he actually asked trial counsel for "a physical examination and a brain scan" because he believed that something was "wrong with [his] brain." He experienced "a lot of headaches." He stated: "Sometimes when I get angry or upset, I kind of blank out-my mind goes blank; my nerves jump and I can't think clearly." When defendant read or spoke, he forgot everything that he was reading or thinking.
This evidence does not help defendant. Fitness speaks only to a person's ability to function within the context of a trial. It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his or her mind may be otherwise unsound. Murphy, 72 Ill. 2d at 432-33; accord People v. Griffin, 178 Ill. 2d 65, 79 (1997).
Also, defendant made several irrational statements during the course of the trial. For example, at a pretrial hearing, defendant made an outburst in which he complained of his prison clothing and requested to be absent during voir dire. The following colloquy occurred:
"THE COURT: Mr. Easley, there is a difference between you and [trial counsel] at this time I [am] going to simply resolve by saying yes, you need to be present. You have not only a constitutional right to be present but you would, in my opinion, severely jeopardize or potentially jeopardize your case if you were not here when the jurors were here and being selected. You have a right to look over the people who decide your fate.
MR. EASLEY: What do you think I am?
THE COURT: You have a right to tell your lawyer I don't want that juror. I don't care what that juror's answers were, I have a certain number of challenges I can use and this ultimately-
MR. EASLEY: I understand all of that.
THE COURT: This is your case. This is your life hanging on the line.
MR. EASLEY: My life ain't worth a damn whether I am in the penitentiary, whether I get natural life or ending up with the death penalty. Anyway I lose my life. I have lost half of it already.
THE COURT: *** I understand Mr. Easley is very upset about the court procedure he is going through each day ***. I understand he doesn't want to have to go through those searches each time he comes into the courtroom and I understand he feels those are offensive and he shouldn't have to do that and I have thought seriously of his request not to have to go through that and for reasons that I am not prepared to talk about right now, I can't honor his request but I understand why he makes it and feels it is humiliating and undignified and why it upsets him but I am not prepared to say that isn't going to happen. I understand how Mr. Easley feels about it but it is critically important to him that he be here during his trial, that he help his lawyer in every way he can. He says [that his] life isn't worth anything and essentially [that he does not] care. I fundamentally don't believe that.
MR. EASLEY: I care about myself but some of you-I am no longer in control of my life. I am being catered to like a little kid. I am under the Department of Corrections. *** How in the hell is that in control of my life?"
This colloquy shows that defendant understood the nature of the proceeding. The record shows that this outburst, along with another at the beginning of the second stage of the sentencing hearing, was based not on defendant's unfitness, but rather on his belief that the criminal justice system demeaned him, particularly by the courthouse searches. See, e.g., People v. Chatman, 36 Ill. 2d 305, 310 (1967) (hostile conduct attributable to belief that defendant was not receiving a fair trial).
Defendant also notes that the warden of his prison put defendant essentially on a "suicide watch" after his conviction in the guilt phase of this trial. However, the record shows that this was a policy of this particular warden. Indeed, the warden's action angered defendant; prior to the start of the penalty phase of this trial, he expressly stated that he had no intention of killing himself. In any event, a suicide attempt "does not by itself demonstrate that a defendant is unfit." Sanchez, 169 Ill. 2d at 483.
Defendant points also to psychological examinations that post- conviction counsel procured six years subsequent to defendant's trial. These examinations indicate that defendant had long-standing mental problems at the time of trial that affected his ability to understand written and oral instructions. When under extreme stress, defendant suffered from thought and personality disorder, paranoia, and episodic breaks with reality. Affidavits from defendant's mitigation witnesses accord with this diagnosis.
Again, however, a defendant may be fit for trial although his or her mind may be otherwise unsound. The fact that a defendant suffers from mental disturbances or requires psychiatric treatment does not necessarily raise a bona fide doubt as to the defendant's ability to understand the proceedings and to assist counsel in the defense. Eddmonds, 143 Ill. 2d at 519; People v. Heral, 62 Ill. 2d 329, 336 (1976); People v. Bivins, 97 Ill. App. 3d 386, 389 (1981).
We take as true defendant's allegations that he suffers from mental impairments. See Coleman, 183 Ill. 2d at 380-82. However, that does not necessarily mean that he was unfit for trial. The issue is not mental illness, but whether defendant could understand the proceedings against him and cooperate with counsel in his defense. If so, then, regardless of mental illness, defendant will be deemed fit to stand trial. See Eddmonds, 93 F.3d at 1314. We conclude that defendant's post-conviction petition does not raise a bona fide doubt of his fitness to stand trial. Thus, defendant's claim of ineffective assistance of counsel necessarily fails. See Johnson, 183 Ill. 2d at 193; People v. Walker, 262 Ill. App. 3d 796, 803-04 (1994). We uphold the circuit court's dismissal of this claim.
Defendant next alleges that the State engaged in purposeful racial discrimination by using a peremptory challenge to exclude an African- American venireperson from the jury. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Defendant erroneously claims that he received ineffective assistance of his trial counsel because counsel failed to include this issue in his post-trial motion. Such a failure cannot be considered constitutionally ineffective because it was not necessary for trial counsel to preserve the issue for appellate review. See People v. Mitchell, 152 ...