The opinion of the court was delivered by: Justice Heiple
Petitioner, Robert Cloutier, appeals from a Cook County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). For the reasons which follow, we affirm.
A jury in the circuit court of Cook County convicted petitioner of the first degree murder and aggravated criminal sexual assault of Alice Cogler. Details regarding the evidence presented at petitioner's trial and sentencing are set forth in the opinions disposing of petitioner's direct appeal, and will be referred to herein only as necessary to dispose of petitioner's instant appeal. On direct appeal, this court affirmed petitioner's convictions, but vacated his death sentence and ordered a new sentencing hearing. People v. Cloutier, 156 Ill. 2d 483 (1993). On remand, a jury again found defendant eligible for the death penalty, this time based on two separate aggravating factors: (1) the murder of Cogler occurred during the course of another felony (720 ILCS 5/9-1(b)(6)(c) (West 1994)), and (2) defendant had been convicted of murdering two or more individuals, in that, since the time of his initial sentencing, defendant had pled guilty to the unrelated first degree murder and aggravated criminal sexual assault of Cynthia Cooney (720 ILCS 5/9-1(b)(3) (West 1994)). Defendant was again sentenced to death. This court affirmed petitioner's sentence on direct appeal. People v. Cloutier, 178 Ill. 2d 141 (1997).
Petitioner subsequently filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)). The circuit court appointed counsel, who amended and supplemented the post-conviction petition. The circuit court granted the State's motion to dismiss the amended post-conviction petition without an evidentiary hearing, and subsequently denied petitioner's motion to reconsider.
A proceeding brought under the Post-Conviction Hearing Act is a collateral attack on a judgment of conviction. The principles of waiver and res judicata limit the scope of post-conviction review. People v. Winsett, 153 Ill. 2d 335, 346 (1992). Consequently, the inquiry in a post-conviction petition is limited to allegations of constitutional violations that were not and could not have been raised previously. People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The petitioner is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. People v. Coleman, 168 Ill. 2d 509, 537 (1995). In making that determination, all well-pleaded facts in the petition and any accompanying affidavits are taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989). This court reviews the dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 387-89 (1998).
Failure to Present Testimony of Victim's Co-worker
Petitioner first claims that trial counsel was ineffective for failing to interview or present the testimony of Brenda Grubisch, a co-worker of Cogler and one of the last people to see her alive. At trial, Grubisch was called by the State and testified but was not called by the defense. Petitioner's theory at trial was that his sexual relations with Cogler just prior to her murder were consensual. Petitioner never denied murdering Cogler, but argued that he did not commit aggravated criminal sexual assault, and thus no such conviction could serve as the basis for his death penalty eligibility. The jury rejected this argument.
In an affidavit attached to the post-conviction petition, Grubisch states that on the night of Cogler's murder, she, Cogler and petitioner were at a bar where she and Cogler worked, and that she witnessed Cogler and petitioner acting like "a couple for the night." Grubisch further states that she saw petitioner and Cogler leave the bar together and return about an hour later, where they stayed until closing time. Petitioner argues that this information corroborates his version of the events that took place prior to Cogler's murder, namely, that the two engaged in consensual sex the first time they left the bar together, thereby supporting his defense that they engaged in consensual sex again after the bar closed, and that only after this consensual sex did petitioner murder Cogler. Petitioner claims that his trial counsel was ineffective for failing to interview Grubisch or to call her as a witness. According to petitioner, had the jury heard the evidence presented in Grubisch's affidavit, there is a reasonable probability its verdict would have been different and he would not have been sentenced to death.
In order for petitioner to succeed on a claim of ineffective assistance of counsel, he must show (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance so prejudiced him that there is a reasonable probability that the outcome would have been different without counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176 (1995). A reviewing court may reject a claim of ineffective assistance of counsel by finding that petitioner was not prejudiced by counsel's representation without determining whether counsel's performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90 (1994).
In the instant case, even if defense counsel had contacted Grubisch prior to trial and elicited the statements contained in her affidavit, there is no reasonable probability that the outcome of the trial and sentencing would have been different. Evidence presented at trial overwhelmingly indicated that Cogler was sexually assaulted before petitioner strangled her, a finding upheld by this court in petitioner's direct appeal. People v. Cloutier, 156 Ill. 2d 483, 506 (1993). Specifically, petitioner told police that he strangled Cogler with a fan belt while lying on top of her in the back seat of Cogler's car and that she did not put up a fight, facts supported by the gross disparity in size between petitioner and the victim. The fan belt was still around Cogler's neck when her body was found. Fresh bruises and abrasions, however, were found on Cogler's forehead, elbow, knees and thigh, suggesting the use of force. The headliner and visor in Cogler's car were torn, also indicating a struggle took place in the front seat of the car. Most damning, however, was the other-crimes evidence produced by the State at trial showing a common design or plan by petitioner to sexually assault and strangle several women in Cogler's car within the space of a few hours of Cogler's murder. The jury further heard evidence of petitioner's initial statement to police regarding the Cooney sexual assault and murder in which he also claimed to have engaged in consensual sexual intercourse before killing her. See Cloutier, 156 Ill. 2d at 500-06.
Furthermore, Grubisch's statements that petitioner and Cogler were acting like a couple for the night and that they left the bar together once earlier add nothing new to Grubisch's testimony for the State at trial that the two were on friendly terms before leaving the bar. Specifically, Grubisch testified that Cogler voluntarily left with petitioner at closing time and planned to drive him home. Nevertheless, the jury still found that petitioner sexually assaulted Cogler in her car. Thus, petitioner was not prejudiced by defense counsel's failure to bring forward Grubisch's additional testimony now contained in her affidavit.
Finally, petitioner suffered no prejudice during his sentencing hearing because he was found death-eligible on the independent basis of having murdered more than one person. 720 ILCS 5/9-1(b)(3) (West 1994). The outcome of petitioner's sentencing thus would have been no different even if the jury had found ...