The opinion of the court was delivered by: Justice Miller
The defendant, Ulece Montgomery, brings this appeal from an order of the circuit court of Cook County denying him post-conviction relief. Because the defendant received the death sentence for the underlying convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a). We now affirm the judgment of the circuit court.
The transcripts of the defendant's trial proceedings are included in the present record, and we will summarize here the evidence presented at the guilt and sentencing phases. The offenses for which the defendant was convicted and now seeks post-conviction relief occurred in Robbins on April 25, 1981. On that date two women, Pearl Briggs, 72 years old, and Betty Tyson, 68 years old, were raped and murdered. The defendant, who was 24 at the time, later confessed to committing these offenses. The defendant and his girlfriend rented an apartment from the two victims, who lived together in a separate building on the property. According to the defendant's statement, which was introduced into evidence at trial, Briggs had offered to give a couch to the defendant and his girlfriend. During the afternoon of April 25, the defendant went to obtain the couch from the two women. The couch was in the basement apartment of the building in which the victims lived, and Briggs got keys and a flashlight and led the defendant to the lower level. As Briggs helped the defendant move the couch, it fell on his foot, and the defendant became angry with her. The defendant then hit Briggs, and she fell to the floor. The defendant dragged her to the kitchen in the apartment. She did not seem to be conscious, and the defendant removed the woman's clothes and raped her.
The defendant then picked up the keys and flashlight and went upstairs to return those things to Tyson. Tyson opened the door, and the defendant handed the items to her. The defendant began to leave, but he then turned and pushed Tyson, who fell. The defendant removed the woman's hose and wrapped them tightly around her neck. The defendant said that he then applied baby oil to his penis and raped Tyson.
A member of the church attended by the two victims called the women's great niece when they failed to appear at a church function that day. The great niece went to their address and summoned the police when she believed she saw a shadow behind their door. Police officers found Briggs with her dress pulled up and her genital area exposed. Subsequent forensic testing disclosed the defendant's fingerprint was discovered on a lens of Briggs' eyeglasses. Blood spatters found on the defendant's jacket were consistent with Briggs' blood type but not with his own, and a head hair found under Briggs' fingernail was consistent with the defendant's hair. An autopsy revealed that the cause of death for Briggs was strangulation.
Like Briggs, Tyson was found partially clothed, with her genital area exposed. A bottle of baby oil was lying next to her on the floor. The defendant's palm print was later found on a camera case sitting on a couch near Tyson. Blood spatters found on the defendant's dress shirt were consistent with Tyson's blood type, but not with the defendant's own. Also, a head hair found on the defendant's undershirt was consistent with Tyson's hair. According to the autopsy evidence, Tyson's cause of death was ligature strangulation.
Police arrested the defendant that evening. At the time, the defendant had scrapes on his hands and spatters of blood on his pants. The defendant told police that he had injured himself while trying to repair his bicycle. Fingerprints and hair samples were taken from the defendant at this time. The defendant was released, but he was arrested again on April 27, after authorities learned that the defendant's fingerprint and palm print had been found on articles at the women's residence. The defendant then gave a statement in which he confessed his commission of the crimes described above.
The defendant originally chose to be tried by a jury. Shortly after jury selection began, however, a mistrial was declared when the defendant attempted to commit suicide one night in his cell; it appears that during the day's proceedings the defendant had overheard a prospective juror say that he could decide to convict the defendant simply by looking at him. The defendant later elected to submit the case to the trial judge alone, in a stipulated bench trial. At the conclusion of the trial, the judge found the defendant guilty of the two murders. The defendant also chose to waive a jury for purposes of a death penalty hearing, which was conducted before the same judge. In the first stage of the sentencing hearing, the parties stipulated to the introduction of the evidence presented at trial. The judge found the existence of two statutory aggravating circumstances that rendered the defendant eligible for the death penalty: the murder of more than one person, and the commission of murder during another felony, rape. Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(b)(3), (b)(6).
During the second stage of the sentencing hearing, the parties again stipulated to the introduction of the trial evidence, and they presented additional evidence in aggravation and mitigation. The State introduced evidence of the defendant's criminal history, which revealed one conviction for contributing to the sexual delinquency of a minor and two convictions for possession of stolen motor vehicle. The State also introduced testimony from Lynn Rosiejka, a social worker who had interviewed the defendant's mother, Carolyn Montgomery, in 1976, when he was charged with contributing to the sexual delinquency of a minor. Rosiejka testified that Carolyn said that the charge against the defendant was based on two acts of intercourse with his half sister, Jean, who was then 11 years old; the defendant was 19. According to Rosiejka, Carolyn also said that the defendant had raped his half brother Eugene six years earlier, and had attempted to rape his sister Rene a year before that. Carolyn told Rosiejka that the defendant routinely carried guns and knives. Rosiejka also stated that after the attack on Eugene, the defendant was sent to the Audy Home. After his release, the defendant went to live with an aunt in Evanston. The aunt could not control the defendant, however, so he then returned to his mother. When Carolyn was unable to control the defendant, he was sent again to the Audy Home, and he became a ward of the court. The defendant then lived in different foster homes for a period.
On cross-examination, defense counsel elicited from Rosiejka testimony about the defendant's background that the defense believed would be mitigating. According to this information, Carolyn was an alcoholic, and Carolyn acknowledged that she had been being hospitalized at least once for her alcoholism. The defendant's father was an alcoholic and a drug abuser, and he had left the family when the defendant was young. According to Rosiejka, Carolyn said that the defendant's older brother, Douglas, had been a bad influence on the defendant, and the defendant and Douglas had lived on the streets for some time.
Carolyn Montgomery testified in the defendant's behalf at the sentencing hearing. She said that she has six children; the defendant is the second oldest. She described in her testimony the defendant's turbulent childhood and the difficulties he had encountered while growing up. She said that her first husband, Douglas Montgomery, was an alcoholic and drug addict who would beat her. Carolyn said that she also had been an alcoholic, until seven years ago. She would drink every day and was often absent from the home, spending her time in taverns. Drinking caused her to be mean, and she would beat her children. On one occasion, she beat the children so severely that their grandmother had to take them from her and "heal them up." Because of her continual intoxication, she was often unable to care properly for her children. She would bring food home but would not cook for the family. As a result, the children were left to fend for themselves.
At the sentencing hearing, Carolyn also recounted the series of homes in which the defendant lived while growing up. She testified that the defendant was seven when the family moved to Harvey, in 1963. The defendant began to have problems after that age. When the defendant was 10, he began to stay out all night with his older brother, Douglas; they would sleep in abandoned cars or buildings. She later took the defendant to the Audy Home because she could not control him. Later, Carolyn's sister took the children to her home in Evanston, and at one point became their guardian. Carolyn testified that she lost custody of the children because she was not fit. When the defendant was 11, he returned to his mother's home, in Robbins. She testified that she knew the defendant needed help; he began drinking when he was in junior high school, and he was unable to control his behavior when he was drunk. When the defendant was 16, he was sent to a school in Wisconsin. After that, he was placed in foster care in Chicago, and then lived in a group home in Chicago. Also, Carolyn denied that the sexual incidents involving Eugene or Rene had occurred; she explained that if she did mention them to Rosiejka, she was simply trying to obtain help for her son.
Three of the defendant's siblings testified in his behalf at the capital sentencing hearing. Jean Hayes acknowledged that the defendant had raped her, but she otherwise provided favorable testimony. Both Eugene Hayes and Rene Littleton denied that the defendant had ever molested or assaulted them, and they, too, spoke favorably of their brother. The defense also called as a witness Douglas Meyer, a Lutheran pastor who regularly visited the defendant while he was facing trial on the charges involved here. Meyer described the defendant as being cooperative and respectful and said that he was never threatening or aggressive. Meyer believed that the defendant was becoming more religious while he was incarcerated.
The defendant also presented testimony from two relatives with whom he had lived while growing up. Melva Alexander, one of Carolyn Montgomery's sisters, testified that she would sometimes have to take care of Carolyn's children when Carolyn was drinking. Alexander said that the defendant first lived with her, in Evanston, when he was about four years old. Some years later, she acquired custody of the defendant and his older brother when the defendant was 10 or 11, and he then lived in her home for about three years. Carolyn was still drinking a lot at that time, and the children had to raise themselves. Alexander testified that she did not have any problems with the defendant at home, but that he was experiencing problems in school. A teacher and a school counselor told her that the defendant need psychiatric help, but he did not receive any treatment at that time.
Viola Lattimore, who is also a sister of Carolyn and Melva, similarly testified about Carolyn's drinking habits. Lattimore said that Carolyn would get mad and hit the children. Lattimore was also living with Alexander when the defendant came to live in Evanston at the age of 10, and she described the defendant as being quiet and well-mannered. She believed that the defendant had mental problems and said that he never received help when he was little.
Defense counsel presented expert psychiatric testimony regarding the defendant's mental condition. Dr. Stephen Porter, a psychiatrist, had examined the defendant and had reviewed records pertaining to the case. Dr. Porter learned that the defendant had an extensive history of alcohol and drug abuse. Dr. Porter found that the defendant had grown up in a chaotic home. Both parents drank heavily, and there was much physical violence. The defendant had little supervision, and by the time he was 9 or 10 years old he often wandered the streets with his older brother, spending the nights in abandoned cars or buildings. Dr. Porter also noted that the defendant had a number of different residences from the age of 10 on, living at the Audy Home, with relatives, in a state shelter, and in a group home. Dr. Porter concluded that the defendant was a chronic alcoholic and drug abuser and that he had an antisocial personality. Dr. Porter believed that the defendant committed the present offenses while under the influence of extreme mental or emotional disturbance, a statutory mitigating circumstance. Ill. Rev. Stat. 1983, ch. 38, par. 9-1(c)(2). In Dr. Porter's view, the consumption of alcohol and drugs by the defendant on the day of the offenses had impaired his judgment and self-control.
The defense presented further expert testimony through Dr. Albert Stipes, a psychiatrist at the Cook County Psychiatric Institute, who had also examined the defendant and reviewed records in the case. The defendant told Dr. Stipes about his history of alcohol and drug abuse. According to this information, during a five-year period the defendant consumed about a quart of wine a day, and also drank rum and beer. The defendant used drugs, too, taking as many as five amphetamines daily during a six-month period. The defendant had a history of alcoholic blackouts. Dr. Stipes diagnosed the defendant as having continuous alcoholic dependence and antisocial personality disorder with stimulant abuse. Dr. Stipes testified that he did not have any significant disagreement with Dr. Porter's assessment, though Dr. Stipes declined to say whether the defendant was acting under an extreme mental or emotional disturbance when he committed the offenses. Dr. Stipes explained that those are not medical terms.
After hearing the parties' evidence, the trial judge found that there were no mitigating circumstances sufficient to preclude a sentence of death, and the judge therefore sentenced the defendant to death for the two murder convictions. This court subsequently affirmed the defendant's convictions and death sentence (People v. Montgomery, 112 Ill. 2d 517 (1986)), and the United States Supreme Court denied the defendant's petition for a writ of certiorari (Montgomery v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1329 (1987)).
The defendant then commenced the present action in December 1987 by filing a post-conviction petition in the circuit court of Cook County. Following an evidentiary hearing on a portion of the defendant's petition, the circuit judge denied all post-conviction relief. In an appeal from that ruling, this court found that the circuit judge had improperly restricted certain avenues of inquiry in the defendant's cross-examination of two witnesses. Accordingly, this court remanded the cause for further proceedings. People v. Montgomery, 162 Ill. 2d 109 (1994). On remand, the case was assigned to a different circuit judge, and a fresh evidentiary hearing was then held on portions of the post-conviction petition. The evidence presented at the hearing focused on two discrete issues: first, whether the judge who presided at the defendant's trial and sentencing hearing had assured defense counsel that the defendant would receive a sentence other than death if the defendant waived a jury and pleaded guilty to the charges, and, second, whether trial counsel was ineffective for failing to investigate the defendant's background further and present the information at the sentencing hearing. At the conclusion of the evidentiary hearing, the judge denied all post-conviction relief sought by the defendant. Because the defendant received the death penalty for the underlying convictions, his appeal is to this court. See 134 Ill. 2d R. 651(a). We now affirm the judgment of the circuit court.
As a preliminary matter, we note the scope and purpose of post-conviction relief. The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1996)) affords a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). An action for post-conviction relief is a collateral proceeding, not an appeal from the prior judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that resulted in the conviction or sentence being challenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999). Considerations of res judicata and waiver narrow the scope of post-conviction relief "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, issues that were raised on appeal from the underlying judgment of conviction, or that could have been raised but were not, ordinarily will not be considered in a post-conviction proceeding. People v. West, 187 Ill. 2d 418, 425 (1999). Determinations made by the post-conviction court following an evidentiary hearing on the petition will not be disturbed on review unless they are manifestly erroneous. People v. Childress, No. 84566, at 3 (April 20, 2000); People v. Coleman, 183 Ill. 2d 366, 385 (1998); see also People v. Morgan, 187 Ill. 2d 500, 528 (1999); People v. Neal, 179 Ill. 2d 541, 554 (1997).
In this appeal, the defendant renews the two principal contentions that informed the evidentiary hearing conducted on our remand from the defendant's earlier post-conviction appeal. We first consider the defendant's argument that the judge who presided at the defendant's trial and sentencing hearing, in 1983, allegedly promised trial counsel that he would not sentence the defendant to death if the defendant pleaded guilty and selected a bench sentencing hearing. On remand following the earlier post-conviction appeal, the circuit judge conducted an extensive evidentiary hearing on the defendant's claim that trial counsel had received an assurance from the trial judge regarding the sentence in the case. At the new evidentiary hearing, post-conviction counsel was permitted to question the trial judge, Judge Samuels, and his court reporter, Shirley Thompson, on the subjects previously barred, as this court had instructed in reversing the circuit court's initial decision denying post-conviction relief. People v. Montgomery, 162 Ill. 2d 109, 113 (1994). On remand, the defendant introduced testimony from his two trial lawyers, John J. McNamara and Michael J. Morrissey, as well as from several other persons who, the defendant contends, are able to support trial counsel's testimony describing their ex parte meetings with Judge Samuels.
According to the defendant's evidence, three meetings occurred between defense counsel and Judge Samuels at which ex parte communications regarding the defendant's sentence were made. One meeting was between McNamara and the judge, another meeting was between Morrissey and the judge, and the third meeting was between both lawyers and the judge.
McNamara was lead counsel in the defendant's case. At the evidentiary hearing, he testified that prior to the initial trial date, which ended in a mistrial, he asked Judge Samuels to conduct a Rule 402 plea conference, but the judge declined to do so because the State would not take part. McNamara stated that he went to the Markham courthouse in April 1983 to inform Judge Samuels that there was no need to schedule a fitness hearing in the case because a psychiatric report made after the defendant's suicide attempt showed that the defendant was fit. According to McNamara, he entered Judge Samuels' chambers and sat down; no one else was present. He and the judge discussed the amount of time that would be needed for trial and sentencing. According to McNamara, after he told Judge Samuels what evidence the defense planned to present at trial and sentencing, the judge suggested that the defendant should probably plead guilty. McNamara replied that he could not advise a defendant to plead guilty without first obtaining a commitment from the sentencing judge that the death penalty would not be imposed. According to McNamara, Judge Samuels then urged him to " `look at my record.' " McNamara testified at the evidentiary hearing that he construed this comment to mean that the defendant would not receive the death penalty if he waived a jury for sentencing and chose instead to be sentenced in a bench proceeding. McNamara said that he told Morrissey about his conversation with Judge Samuels the next time he saw Morrissey, which he believed was later the same day. According to McNamara, Morrissey reported that he, too, had had a conversation with the judge, in which the judge suggested that he would sentence the defendant to life if the defendant pleaded guilty.
McNamara also testified that at some point he spoke to Judge Samuels' court clerk, Moses Cole, about the case. McNamara stated that he originally believed that the conversation with Cole occurred the same day that he spoke to the judge, but that he had since learned that Cole was not at work that day. According to McNamara's testimony, Cole approached the lawyer and said that the defendant should choose a bench sentencing proceeding because Cole did not believe that Judge Samuels would impose the death penalty in this case. McNamara also testified to a conversation he had had with Shirley Thompson, the court reporter assigned to Judge Samuels' courtroom. According to McNamara, Thompson said that she did not believe that the judge would sentence anyone to death. McNamara testified that he was not sure when the conversation with Thompson occurred.
Paul Foxgrover, a friend of McNamara, described in an affidavit conversations he had had with McNamara concerning Judge Samuels' alleged sentencing promise. In the affidavit, Foxgrover stated:
"4. In the spring of 1983, Mr. McNamara told me that he and Mr. Morrissey had spoken with Judge Samuels about the Ulece Montgomery case. Mr. McNamara said that Judge Samuels told them that if Mr. Montgomery did not contest the issue of guilt and submitted the sentencing decision to him, he would not consider the death penalty.
5. My discussion with Mr. McNamara revolved around possibly advising Mr. Montgomery to waive the jury and to proceed to the stipulated bench trial and sentencing on reliance on Judge Samuels' comments. I told Mr. McNamara, based on his description of what Judge Samuels said, that he could rely on Judge Samuels' comments and encourage a waiver."
The parties stipulated at the hearing that Foxgrover pleaded guilty in July 1992 to charges of felony theft contained in two separate Cook County indictments, and that he received concurrent prison terms of six years, three years, and nine months for those offenses.
Michael Morrissey also testified at the post-conviction hearing regarding the alleged ex parte conversations with Judge Samuels. Morrissey said that in April 1983, he met alone with the judge in his chambers to discuss scheduling. Morrissey referred to certain conflicts in his schedule. According to Morrissey, Judge Samuels said, " `Why don't you guys have Ulece plead guilty. I'll give him life. You know my record in these kinds of cases.' " Morrissey further testified that the judge then leaned back in his chair and said, " `Oh, the cat's out of the bag now.' " Morrissey further testified that he told both his office partner, Andrea Lyon, and McNamara ...