The opinion of the court was delivered by: Justice McMORROW
Defendant, David Smith, appeals from an order of the circuit court of Cook County dismissing his amended petition for post-conviction relief without an evidentiary hearing. Because defendant was sentenced to death for the underlying convictions, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the judgment of the circuit court.
This court has previously set forth the evidence presented at defendant's trial in our opinion on defendant's first direct appeal. See People v. Smith, 152 Ill. 2d 229 (1992). Therefore, we discuss only those facts and evidence necessary to the disposition of this appeal. Defendant's convictions arise from the murder of Lisa Ferguson. On the evening of March 17, 1987, defendant entered the home where the victim was staying, and beat, strangled and stabbed her multiple times, while her four-year-old cousin hid in a bedroom. In addition, defendant sexually penetrated the victim's anus. Defendant was subsequently arrested and provided a statement in which he admitted killing the victim. A jury found defendant guilty of first degree murder, aggravated criminal sexual assault, and home invasion. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty, and further found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Defendant was sentenced to death.
On direct appeal, this court affirmed defendant's convictions, but vacated defendant's sentence and remanded the cause for a new sentencing hearing, due to the circuit court's failure to "life-qualify" the jury, pursuant to Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). Smith, 152 Ill. 2d at 274. On remand, defendant waived a jury for sentencing and the same judge that presided over defendant's trial again imposed the death penalty for defendant's murder conviction. This court affirmed defendant's death sentence. People v. Smith, 176 Ill. 2d 217, 261 (1997). On December 21, 1995, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). Thereafter, on December 6, 1997, defendant filed an amended petition for post-conviction relief. After hearing arguments, the circuit court denied defendant's petition without an evidentiary hearing.
The Post-Conviction Hearing Act provides a remedy to criminal defendants who claim that substantial violations of their federal or state constitutional rights occurred in their original trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). An action for post-conviction relief is not an appeal from the underlying judgment, but rather a collateral proceeding. Towns, 182 Ill. 2d at 502. A post-conviction proceeding allows inquiry into constitutional issues involved in the conviction and sentence that have not been, and could not have been, adjudicated previously on direct appeal. Towns, 182 Ill. 2d at 502.
A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Rather, an evidentiary hearing is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. Hobley, 182 Ill. 2d at 428. In determining whether to grant an evidentiary hearing, all well-pled facts in the petition and any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503. A trial court's dismissal of a post-conviction petition without an evidentiary hearing is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998).
I. Timeliness of Post-Conviction Petition
The State contends in its brief that defendant did not file his petition within the time limitations prescribed by the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). At oral arguments, however, the State conceded that defendant did, in fact, file his petition in a timely manner. Therefore, we do not address this issue.
II. Ineffective Assistance of Counsel
Defendant raises a series of challenges to his trial counsel's performance. A defendant is guaranteed the effective assistance of counsel at trial and at a death sentencing hearing. Strickland v. Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984). To establish a claim of ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
In order to satisfy the deficient-performance prong of Strickland, a defendant must show that his counsel's performance was so inadequate that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. Counsel's performance is measured by an objective standard of competence under prevailing professional norms. Further, in order to establish deficient performance, the defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999); People v. Griffin, 178 Ill. 2d 65, 73-74 (1997). Matters of trial strategy are generally immune from claims of ineffective assistance of counsel. People v. West, 187 Ill. 2d 418, 432 (1999).
In order to establish prejudice, a defendant must prove that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is defined as a probability that is sufficient to undermine confidence in the outcome. Thus, the defendant must show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Evans, 186 Ill. 2d at 93; Griffin, 178 Ill. 2d at 74. A defendant must satisfy both prongs of the Strickland test. People v. Mahaffey, No. 85215, slip op. at 15 (October 13, 2000). If a defendant cannot establish that he suffered prejudice, a court need not determine whether counsel's performance was constitutionally deficient. Griffin, 178 Ill. 2d at 74.
Defendant maintains that his counsel was ineffective in presenting his motion to suppress a statement that defendant gave at police headquarters on the night of March 17, 1987, in which he confessed to the murder of Lisa Ferguson.
Defendant contends that his counsel failed to introduce corroborating testimony relating to the claim that his confession was coerced. Prior to trial, defense counsel moved to suppress defendant's statement, arguing that it was coerced. In support of this motion, defense counsel offered testimony from Josephine Palomino, defendant's girlfriend. She stated:
"I heard David Smith [at the police station]. He was yelling, screaming. He was swearing, telling the police officers-well, I would take it for granted it was the police officers-to leave him alone, not to touch him, to get away from him, and he was calling for me. I want to talk to Josie. I want to talk to Josie. I want to see Josie."
In denying the motion, the trial judge stated:
"There is absolutely no evidence indicating that there was any physical abuse in this case, and I think that the pictures [of defendant] bear this out, that there was no physical abuse seen in those photographs. *** Assuming arguendo that there were loud voices raised *** the Petitioner does not by this type of testimony meet his burden indicating that *** the statement was not freely and voluntarily given.
Where a defendant has made a statement and later has had an opportunity to reflect on that statement and consult with his advisors, be they attorneys or other people he comes into contact with, he shortly realizes that his mere denial is not going to be enough. He must show something else.
Well, I don't think that there is any evidence in this case that the statement was other than free and voluntary."
Defendant now argues that the trial judge's decision would have been different had defense counsel offered additional evidence from Rose Palomino, Josephine Palomino's mother. At trial, Rose Palomino testified: "I heard [defendant] yelling for Josie, calling her name, let me see Josie, let me see Josie, and he said, get your `F'ing hands off of me."
This argument is waived. Rose Palomino's testimony was part of the record on direct appeal. Accordingly, this claim could have been raised at that time. See Towns, 182 Ill. 2d at 502-03 (issues that could have been presented on direct appeal but were not, are waived). However, defendant contends that his appellate counsel was ineffective for failing to raise this issue on direct appeal.
Claims of ineffective assistance of appellate counsel are measured against the same standard as those dealing with ineffective assistance of trial counsel. West, 187 Ill. 2d at 435. "A defendant who contends that appellate counsel rendered ineffective assistance, e.g., by failing to argue an issue, must show that the failure to raise that issue was objectively unreasonable and that the decision prejudiced the defendant. Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong. Accordingly, unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel's failure to raise them on appeal. People v. Childress, 191 Ill. 2d 168, 175 (2000); People v. West, 187 Ill. 2d 418, 435 (1999) (and cases cited therein)." People v. Easley, 192 Ill. 2d 307, 328-29 (2000).
In examining the claim on the merits, however, we find that defendant's argument fails. The trial judge was clear in his finding that, even assuming that there were "loud voices raised," such evidence did not satisfy defendant's burden of proof to show that his statement was not freely and voluntarily given. Rose Palomino's testimony does not significantly differ from Josephine Palomino's testimony and is merely cumulative. Thus, based on the trial judge's statements, we do not believe that this additional testimony by Rose Palomino would have convinced the trial judge that defendant met his burden in showing that his statement was not voluntary. There was no reasonable probability that the outcome of defendant's motion to suppress would have been different. Defendant has therefore failed to establish that he suffered prejudice as required by Strickland, and his ineffective assistance of counsel claim fails.
With regard to the same suppression hearing, defendant next argues that his trial counsel was ineffective for failing to present testimony that defendant was under the influence of phencyclidine (PCP) at the time he gave his statement, and that counsel failed to present expert testimony relating to the effects of PCP. To support the argument that he was, in fact, under the influence of PCP when he made his statement at the police station, defendant attaches the affidavits of two friends who were with defendant on the day of the murder, Efren Ramirez and Manuel Ramirez. In addition, ...