Docket No. 86557–Agenda 1–May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								HOWARD WILEY, Appellant.

Opinion filed October 25, 2001.

	JUSTICE FREEMAN delivered the opinion of the court:

	Following a trial in the circuit court of Cook County, a jury

convicted defendant, Howard Wiley, of three counts of murder and

armed robbery. Defendant waived his right to a jury for the ensuing

capital sentencing hearing, and the circuit court sentenced him to

death on the murder counts. The circuit court also sentenced

defendant to consecutive 30-year sentences for the armed robbery

convictions. Defendant appealed, and this court remanded the

cause with directions to conduct further proceedings under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). People v. Wiley, 156 Ill. 2d 464 (1993) (Wiley I). After the circuit court concluded that the State had not violated the

principles enunciated in Batson, the cause returned to this court for further review, and this court affirmed the convictions and death

sentence. People v. Wiley, 165 Ill. 2d 259 (1995) (Wiley II). The United States Supreme Court subsequently denied defendant’s

petition for writ of certiorari. Wiley v. Illinois, 516 U.S. 923, 133 L. Ed. 2d 223, 116 S. Ct. 322 (1995).

	Defendant thereafter filed a petition, which was later amended

and supplemented, for relief pursuant to the Post-Conviction

Hearing Act (725 ILCS 5/122–1 (West 1994)). The circuit court

dismissed the petition without an evidentiary hearing, and this

appeal followed. 134 Ill. 2d R. 651. On November 16, 2000, this

court issued an opinion affirming the circuit court’s order of

dismissal. Defendant filed a petition for rehearing (155 Ill. 2d R.

367), which this court allowed on January 29, 2001. Both parties

have submitted further briefing materials in accordance with the

order of this court. For the reasons that follow, we affirm in part,

reverse in part, and remand the matter for an evidentiary hearing.

BACKGROUND

	The testimony presented at trial was recounted by this court

in Wiley II, 165 Ill. 2d at 267-71, and we will detail here only those facts relevant to our resolution of this appeal. On approximately

December 2, 1985,1 Donna Rucks, Carla Williams, and Adrienne Parham were murdered in Rucks’ apartment. Their bodies were

discovered on the morning of December 3 by employees of the

building where the apartment was located, and the police were

summoned. All three deaths were the result of gunshot wounds to

the head. The subsequent police investigation led to defendant’s

arrest. Defendant was ultimately tried, convicted, and sentenced to

death for the crimes.

	After the completion of the direct appeal proceedings,

defendant filed a petition for post-conviction relief. The petition

was improperly denied, and this court reinstated defendant’s

petition. Defendant filed an amended post-conviction petition and

later filed a supplement to that petition. The State then moved to

dismiss.

	The trial court dismissed defendant’s post-conviction petition

without a hearing, stating both that the petition was untimely and

that the petition did not necessitate an evidentiary hearing.

Additional facts will be supplied, where necessary, in our analysis.

ANALYSIS

	On appeal, defendant maintains that the circuit court’s order

must be reversed because the circuit court erred in finding that the

petition was time-barred. Defendant also maintains that the circuit

court’s alternative ruling–that the issues raised did not warrant an

evidentiary hearing–was improper.

	We begin by noting that a post-conviction action is a collateral

attack on a prior conviction and sentence. People v. Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). As such, the remedy “is not a substitute for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). The scope of the proceeding is limited to

constitutional matters that neither have been, nor could not have

been, previously adjudicated. Any issues which could have raised

on direct appeal, but were not, are procedurally defaulted (People v. Ruiz, 132 Ill. 2d 1, 9 (1989)) and any issues which have previously been decided by a reviewing court are barred by the

doctrine of res judicata (People v. Silagy, 116 Ill. 2d 357, 365 (1987)).

	In addition to these procedural bars, a defendant is not entitled

to an evidentiary hearing unless the allegations set forth in the

petition, as supported by the trial record or accompanying

affidavits, make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). In making that determination, all well-pleaded facts in the petition and affidavits

are to be taken as true, but nonfactual and nonspecific assertions

which merely amount to conclusions are not sufficient to require a

hearing under the Act. Coleman, 183 Ill. 2d at 381. The dismissal of a post-conviction petition is warranted only when the petition’s

allegations of fact–liberally construed in favor of the petitioner and

in light of the original trial record–fail to make a substantial

showing of a constitutional violation. Coleman, 183 Ill. 2d at 382. On appeal, the circuit court’s decision to dismiss the petition

without an evidentiary hearing is subject to plenary review.

Coleman, 183 Ill. 2d at 388.

Timeliness of the Petition

	We note the State concedes that the circuit court improperly

dismissed, as untimely, defendant’s post-conviction action. After

reviewing the record, we agree and accept the State’s concession.

Therefore, we turn to defendant’s other assertions of error.

Sufficiency of the Death Eligibility Verdict

	Defendant maintains that his appellate counsel was ineffective

for failing to argue that the evidence was insufficient to prove him

eligible for the death penalty beyond a reasonable doubt. This court

has held that this type of claim is cognizable under the Post- Conviction Hearing Act. See People v. West, 187 Ill. 2d 418, 434- 35 (1999). Such a claim is measured against the same standard as

those dealing with ineffective assistance of trial counsel. See West, 187 Ill. 2d at 435 (and cases cited therein). A defendant who

contends that appellate counsel rendered ineffective assistance

must show that the failure to raise the issue was objectively

unreasonable and that the decision prejudiced the defendant. West, 187 Ill. 2d at 435. In other words, we must determine whether

appellate counsel would have presented a successful challenge to

the sufficiency of the evidence with respect to defendant’s death

eligibility on direct review, had he raised the claim at that time.

	A defendant can be found eligible for the death penalty only if

the finder of fact finds that the State has proven beyond a

reasonable doubt that defendant was at least 18 years of age at the

time of the commission of the offense and that at least one

statutory aggravating factor exists. Ill. Rev. Stat. 1985, ch. 38,

pars. 9–1(f), (g). In this case, defendant’s death eligibility was

predicated upon the statutory aggravating factor set out in section

9–1(b)(6) of the Criminal Code of 1961.

	At the time of defendant’s trial, section 9–1(b)(6) authorized

the imposition of the death penalty when the murdered individual

was killed in the course of another felony “if: (a) the murdered

individual: (1) was actually killed by the defendant, or (ii) received

physical injuries personally inflicted by the defendant substantially

contemporaneously with physical injuries caused by one or more

persons for whose conduct the defendant is legally accountable ***

and the physical injuries inflicted by either the defendant or the

other person or persons for whose conduct he is legally

accountable caused the death of the murdered individual.” Ill. Rev.

Stat. 1985, ch. 38, par. 9–1(b)(6)(a). The section also required that

the defendant acted with the intent to kill the murdered individual

or with knowledge that his acts created a strong probability of

death or great bodily harm to the murdered individual or another.

Ill. Rev. Stat. 1985, ch. 38, par. 9–1(b)(6)(b). During the eligibility

phase of the death sentencing hearing, the State must prove all of

the elements of the aggravating factor beyond a reasonable doubt.

Ill. Rev. Stat. 1985, ch. 38, par. 9–1(f).

	Defendant waived his right to a jury for sentencing. At the

eligibility phase of the hearing, the State presented a certified copy

of defendant’s birth certificate as proof that defendant was over the

age of 18, and the parties stipulated that defendant was born on

June 7, 1946. The parties also stipulated to the trial testimony, the

trial exhibits, and the special verdicts of the jury, which found that

defendant was guilty of murder and of armed robbery and that

defendant “performed the acts which caused the death” of each

victim. No other evidence was introduced. The court found

defendant eligible for the death penalty under section 9–1(b)(6) of

the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par.

9–1(b)(6), now 720 ILCS 5/9–1(b)(6) (West 2000)) because he

had committed the murders knowingly or intentionally and in the

course of another felony. The court declined to find defendant

eligible under any other factor.

	According to defendant, the eligibility finding in this case is

constitutionally deficient because the State never proved that

defendant’s conduct fell within the class of culpable conduct which

would warrant the imposition of the death penalty. Defendant

contends that there is simply no proof that his conduct was within

the ambit of section 9–1(b)(6) because the evidence does not

reflect that he actually murdered the victims or that he inflicted

physical injuries upon the victims in the manner required by the

statute. Defendant points out that his confession, relied upon by the

State during the guilt phase of the trial, coupled with the rest of the

evidence presented by the State, proves only guilt of felony murder

or guilt on the basis of accountability. Stated differently, defendant

argues that there is no evidence of record which supports the

inference that he actually killed the victims or that he inflicted

injuries substantially contemporaneously with physical injuries

caused by one or more persons for whose conduct defendant is

legally accountable, as is required under the felony-murder

aggravating factor. Thus, the crux of defendant’s ineffective

assistance of counsel claim is that the evidence was insufficient to

support the circuit court’s finding of death eligibility.

	In light of defendant’s contentions, the State argues that the

evidence presented at trial was sufficient to find that defendant

committed the murders. The State points out that the trier of fact was entitled to reject the self-serving portions of defendant’s

confession on the basis of the circumstantial evidence which

supported the inference that defendant acted alone in committing

the murders.

	In addressing this claim, we must necessarily review the

evidence adduced at trial because both the State and defendant, at

the eligibility phase of the hearing, stipulated to that evidence. In

addition, the trial judge, sitting as the trier of fact at sentencing,

referred specifically to the evidence at trial when he found

defendant eligible for the death penalty under section 9–1(b)(6).

	The evidence presented at the guilt -phase of defendant’s trial

revealed the following.  One of the victims, Donna Rucks, normally

worked a morning shift at a hotel near the murder scene. A

co-worker became concerned when Rucks failed to report for work

on the morning of December 3, 1985. The co-worker went to

Rucks apartment and asked the building manager to enter the

apartment. The building manager went to get the passkey to the

apartment, but the key would not work. Police eventually were

called to the scene, and it was decided that a window would be

broken by the building maintenance man in order to gain access to

Rucks’ apartment.

	The maintenance man broke the window and entered into the

apartment’s living room. There he saw two bodies and smelled

something burning. Police instructed to him to open the front door.

The front door had two types of locks on it–one attached to the

doorknob and a dead-bolt. The door was both locked and dead-

bolted. The door could be locked from the inside of the apartment

by throwing the deadbolt. The door could be dead-bolted from the

outside only by the use of a key.

	While police were investigating the crime scene, the phone in

the apartment rang. After receiving the phone call, police went to

the home of defendant’s father. There, they spoke with defendant,

who told them that he knew the victims, was concerned about

them, and would be happy to help with the police investigation.

Defendant agreed to accompany them to the police station.

	At the station, defendant acknowledged to Detective Ptak that

he had been at Rucks’ apartment on December 2, and that he had become concerned when no one answered his knocks on the door.

Defendant said that he had called the police, but that the officers

who had responded to his call refused to break into the apartment

because it looked secure from the outside.

	Defendant further revealed to Ptak that he had spoken to his

parole officer. Ptak then consulted with the parole officer. Ptak

subsequently resumed his interview with defendant and advised him

of his Miranda rights. After having waived his rights, defendant changed his story. Defendant admitted that he had been at Rucks’

apartment around 10 a.m. on the morning of December 2nd.  He

knocked on the door, and it suddenly swung open. He entered the

apartment and saw the bodies of Rucks and Parham on the living

room floor. He then went upstairs and found Carla Williams’ body.

All of the victims were dead. Defendant then left the apartment and

closed the door, realizing that the door would lock behind him. He

did not call police because he was afraid that he would be blamed

for the murders because he was on parole. At that point, Detective

Ptak informed defendant that one of the victims, Carla Williams,

had been raped. Defendant told Ptak that he “kn[e]w” that

Williams had not been raped, and the detective asked defendant

how he could have known that.  Police arrested defendant at that

point for the murder of the three victims.

	Subsequent to the arrest, Detective Ptak learned that

defendant might have fired a weapon, a few days earlier, at a

grocery store located in the vicinity of the murder scene. Ptak went

to the store and recovered a bullet that was embedded in a cooler.

Ptak was told that defendant had fired the shot into the cooler. The

recovered bullet was submitted for ballistics study and was later

discovered to match those recovered from the bodies of the

victims. Chicago police detectives Rochowicz and Vallandingham

later spoke with defendant, after advising him again of his Miranda rights. When confronted with the ballistics evidence, defendant

stated that he “needed time to think.” He later agreed to give an

account of what had occurred at Rucks’ apartment.

	Defendant told Detective Rochowicz that on December 2, he

telephoned Carla Williams, who was “holding” $5,000 for him.

Defendant told her that he needed the money because he was

broke, but Williams responded that he would have to wait for it. Defendant become angry and then went to a pool hall, where he

met a man he knew by the names of Eddie Jones and Charles

Battles (hereafter Battles). Defendant told Battles about the money

and offered to pay him $1,500 if Battles would help him recover

the money. Battles agreed, and the men drove to the victims’

apartment. Defendant gave Battles a .38 revolver that defendant

had with him.

	Defendant maintained that he and Battles planned to stage a

phony “stickup.” To that end, defendant knocked on the door and

was let in by one of the victims. Defendant left the door slightly

ajar so that Battles could enter behind him. According to

defendant’s confession, Battles came into the apartment and

announced a “stickup.” Battles, however, became startled when

one of the victims, Rucks, jumped up from a couch, and he shot

her. At this time, the second victim, Parham, started to run away,

and Battles shot her, too. The third victim, Williams, then came

down the stairs from an upper-floor bedroom. When she saw what

had happened, she ran back up the stairs. Battles ran after her, and

shot her. Defendant stated that he heard a shot, but did not know

what happened because he did not follow Battles up the stairs.

After the shooting stopped, Battles told him that defendant that he “better

be with” Battles, and defendant agreed. Defendant stated that he

left the apartment at that time, but that Battles stayed behind.

	After giving this verbal account to detectives, defendant gave

both oral and written statements to assistant State’s Attorney

Michael Gerber. These later statements were substantially similar

to the account defendant gave Detective Rochowicz.

	Apart from defendant’s statement, the State also presented

expert testimony regarding the specific characteristics of the bullets

found in the bodies of the victims. Two eyewitnesses also testified

that they saw defendant, on November 26, 1985, shoot a weapon

in a store and that the bullet fired from the gun struck and became

embedded in a cooler. Forensic evidence revealed that the bullets

from the victims’ bodies shared the same characteristics as that

found in the store. The State also presented detailed testimony

from the medical examiner who performed the autopsies of the

victims. Each victim was killed by a gunshot wound to the head.

	Defendant did not present any evidence on his behalf. The jury

found defendant guilty of three counts of first degree murder and

three counts of armed robbery.

	As noted previously, the crux of defendant’s ineffective-

assistance claim is that the evidence of death eligibility is

insufficient to support the trial judge’s finding. The standard of

review to be applied is whether, after viewing all of the evidence in

the light most favorable to the prosecution, any rational trier of fact

could have found the elements necessary to establish defendant’s

eligibility for the death penalty beyond a reasonable doubt. People v. Pasch, 152 Ill. 2d 133, 213-14 (1992). In so doing, a reviewing court must consider that the circuit court heard and saw the

witnesses and, thus, was in a better position to judge their

credibility, to determine the weight to be accorded their testimony,

to decide the inferences to be drawn from the evidence, and to

resolve any conflicts in it. People v. Batchelor, 171 Ill. 2d 367, 376 (1996). The credibility of a defendant’s confession is to be weighed

by the trier of fact, which may accept all, parts, or none of the

confession. People v. Pecoraro, 144 Ill. 2d 1, 11 (1991); People v. DiGerlando, 30 Ill. 2d 544, 551 (1964). Where a defendant’s statement is contradicted by the facts and circumstantial evidence,

the trier of fact need not believe it, even though other witnesses do

not contradict the statement directly. Batchelor, 171 Ill. 2d at 376- 77; People v. Warren, 33 Ill. 2d 168, 174 (1965).

	We have thoroughly reviewed the evidence presented at trial

and the arguments made by the parties in these proceedings. After

careful consideration, we must conclude that the State proved

defendant’s death eligibility under section 9–1(b)(6) beyond a

reasonable doubt. Although we agree with defendant that, in his

confession, he denied actually killing the victims or inflicting

injuries on the victims in the manner required by section 9–1(b)(6),

the trier of fact, as noted above, is not bound to accept a

confession in its entirety. Indeed, the trier of fact may accept the

damaging admissions and discredit the exculpatory assertions in the

confession.  Any discrepancy between defendant’s confession and

the evidence is for the trier of fact to consider in assessing the

degree of credibility to afford the confession. People v. Hester, 39 Ill. 2d 489, 511 (1968) overruled on other grounds, People v. Anderson, 113 Ill. 2d 1, (1986). Thus, in this case, the sentencing judge, sitting as the trier of fact, had the right to discard

defendant’s assertion that it was Battles who had fired all of the

fatal shots. After reviewing the evidence in its entirety, we believe

that this finding was supported by the evidence, as we detail below.

	Although we acknowledge the closeness of the evidence, we

focus on several facts which we feel a trier of fact may have found

compelling. Critically, the evidence revealed that defendant

continually changed his story to the police investigators. Defendant

told several stories to the police regarding his knowledge of the

events which transpired at Rucks’ apartment. His version of the

events changed each time police confronted him with independent

evidence indicating that defendant was lying to them. As a result,

the trier of fact may have believed the central feature of

defendant’s confession, that the killings took place during the

course of a felony, but disbelieved the self-serving portions in

which defendant placed blame for the actual killings on Battles. We

note that defendant’s confession was corroborated in some

respects by his detailed knowledge of the scene of the crime.

Moreover, the physical and forensic evidence also contradicted

some of the more self-serving portions of that confession. For

example, the circuit judge at sentencing aptly described the

murders as “executions,” and our review of the forensic and

physical evidence supports that conclusion much more than it

supports the frenzied, spur-of-the-moment description of the

shootings that defendant attributes to Battles. The medical

examiner testified that Rucks’s body bore traces of stippling, which

indicated that she was shot at very close range. This testimony

tends to contradict defendant’s statement that Battles shot Rucks

when she was startled by his entrance into the apartment. The

medical examiner’s testimony established that Williams’ body not

only bore gunshot wounds, but wounds around her neck.

Defendant initially told police that he had seen Williams’ body in

the upstairs bedroom and had touched her neck in order to see if

she had a pulse. In defendant’s confession, he stated that he did not

go upstairs at all and did not see Battles shoot Williams. This tends

to support the inference that defendant knew facts about the

condition of Williams’s body that only her killer would have known. In our view, the inculpatory parts of defendant’s confession were

corroborated by sufficient evidence to support the judge’s finding

that defendant was death eligible under section 9–1(b)(6). Further,

we believe that the judge’s sub silentio determination to reject the self-serving portions of the confession is not so manifestly

unreasonable as to be subject to reversal upon review.

	In view of the foregoing, had appellate counsel challenged the

sufficiency of the evidence with respect to the court’s finding of

death eligibility on direct appeal, the challenge would not have

been successful; accordingly, defendant’s ineffective assistance of

appellate counsel claim must fail. See West, 187 Ill. 2d at 435.  The circuit court, therefore, did not err in dismissing this claim.

Ineffective Assistance of Trial Counsel

	Defendant next contends that his trial counsel was ineffective

for failing to buttress his contention that the evidence was

insufficient to prove defendant eligible for the death penalty.

Defendant maintains that trial counsel should have used two police

reports to corroborate defendant’s contention that he was not the

last person to leave Rucks’ apartment.

	In determining whether a defendant has been denied effective

assistance of trial counsel, Illinois courts adhere to the test

enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d 504, 525-27 (1984).  In order to establish ineffective assistance of

counsel, a defendant must first demonstrate that his defense

counsel’s performance was deficient in that “counsel made errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 20634. In so

doing, a defendant must overcome the strong presumption that the

challenged action or inaction of counsel was the product of sound

trial strategy and not of incompetence. People v. Barrow, 133 Ill. 2d 226, 247 (1989). Secondly, a defendant must demonstrate that,

but for defense counsel’s deficient performance, there is a

reasonable probability that 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. Both prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective

assistance of counsel. Courts, however, may resolve ineffectiveness

claims under the two-part Strickland test by reaching only the prejudice component, for lack of prejudice renders irrelevant the

issue of counsel’s performance. See People v. Erickson, 161 Ill. 2d 82, 90 (1994); People v. Albanese, 104 Ill. 2d at 525-27 (1984).

	Even if this court were to assume that counsel’s decision not

to use the police reports was incompetent, we do not believe that

defendant could establish the requisite prejudice. The police reports

reveal that an acquaintance of one of the victims called the

apartment on December 2 between the hours of 10:00 and 11:45 a.m. 

The caller spoke with Rucks at 10 a.m., but could not get through

later. Taking the affidavit as true, as we must, we still do not

believe that this evidence, if presented to the trier of fact, would

have been sufficient to instill reasonable doubt as to defendant’s

death eligibility. The evidence, in and of itself, does not tend to

prove or disprove the central fact in contention, whether defendant

was the actual killer of the three victims.

	 Defendant also points to another police report that contains

observations that, at the time the police entered the apartment, they

found food smoldering in a pot on the stove and the television

turned on. We fail to see how this evidence would have supported

a finding that Battles killed the victims and not defendant. At most,

the police report corroborates the evidence that was presented at

trial, i.e., that the victims were in the middle of a routine day when they were set upon by their killer. Again, the evidence, in and of

itself, does not tend to prove or disprove the central fact in

contention, whether defendant was the actual killer of the three

victims. Accordingly, we cannot say that the circuit court erred in

dismissing this claim.

Ineffective Assistance of Counsel During Aggravation-

Mitigation

	Defendant next asserts that he was denied the effective

assistance of counsel at sentencing because trial counsel failed to

investigate potential sources of mitigation and failed to present the evidence that such an investigation would have uncovered.

Specifically, defendant claims that trial counsel failed to discuss any

mitigation strategy with him and that counsel knew that defendant

suffered from extreme emotional and mental distress at the time of

the offense. Defendant also claims that his trial counsel failed to

contact several family members who would have provided

testimony more favorable than that of the witness counsel did

subpoena.

	We begin our review of this issue by recounting the evidence

adduced during the aggravation/mitigation phase of the capital

sentencing hearing. The State introduced evidence of defendant’s

criminal history, which dated back to 1964, when defendant was

convicted of aggravated battery. Defendant was subsequently

convicted of attempted robbery, burglary, unlawful use of

weapons, robbery, aggravated battery/armed violence, and

unlawful use of weapons. The State also presented evidence that

while defendant was in the county jail, awaiting trial on the charges

at issue in this case, he received four disciplinary violations.

	In mitigation, defendant presented the stipulated testimony of

Lt. Robert Kelly, a Cook County Ddepartment of Ccorrections Oofficer.

Kelly would have testified, if called, that he was employed by Cook

County as a correctional officer at the county jail, the facility where

defendant had been jailed for the past year. Defendant manned the

food wagon, delivering food to the other inmates. Defendant also

mopped the floors. Defendant performed these duties well and did

not pose a threat to jail staff or inmates.

	The defense also presented the stipulated testimony of Cheryl

Winke, a psychologist with the Ddepartment of Ccorrections. Winke,

if called to testify, would have stated that she examined defendant

and found that defendant had a “beta I.Q. of 103.” Moreover, it

was Winke’s opinion that defendant appeared “spontaneously

aggressive” rather than “criminally oriented.” Defendant did not

exhibit any psychopathology and appeared to function within the

normal range of intelligence.

	A report by another correctional officer, L.A. Jones, was also

submitted to the circuit court as evidence in mitigation. The

summary, dated in 1981, revealed that defendant was

recommended for meritorious good time by the food service director for satisfactory work performed. A memorandum, dated

June 26, 1981, also noted that defendant had returned keys that

another inmate had given to him. Defendant told prison officials

that he did not want to become involved. Defendant also won a

trophy for weight-lifting.

	Harold Anderson testified on defendant’s behalf. Anderson

stated that he knew defendant personally for 11 years and had

worked with him at a shoe store for four years. Anderson first met

defendant at the state penitentiary, while they were both

incarcerated. He knew defendant to be a “happy-go-lucky” person

who “always kept things alive.” Anderson did not believe that

defendant had drug or alcohol problems.

	Defense counsel also called defendant’s step-brother, Jerry, as

a witness. Jerry was a reluctant witness whose testimony was

compelled by subpoena. Jerry stated that their mother took care of

both Jerry and defendant as “best she could” and was a “good

mom.”  Jerry admitted that defendant was a “good” brother, but

stated that defendant was “not his role model.” Jerry did not

approve of defendant’s friends. Jerry also stated that he knew that

defendant took drugs, but that he never personally saw defendant

ingest drugs. When defendant was sober, Jerry felt that he could

discuss things with him, but when defendant “was other than

sober,” defendant would “get upset” and would be “pretty wild.”

In one instance, defendant pulled a knife on him. Jerry knew of

defendant’s past criminal history and stated that there “come[s] a

time when you just blanked out because you don’t want to

continue hearing about it.”

	The circuit court, in sentencing defendant to death, noted that

“the best that can be said” for the defendant was that defendant (i)

helped a fellow convict find a job, (ii) earned statutory good time

while incarcerated, and (iii) won a weight-lifting contest while in

prison. The circuit court also observed that, although defendant

had family living in the Chicago area, the only family member who

testified was his brother, Jerry. Moreover, with respect to Jerry’s

testimony, the court stated that “the State could not have found a

better witness than Jerry Wiley if they wrote the script themselves.”

Specifically, the court noted the following:

		“This defendant has turned on everyone. He pulls a knife

on his family, he shoots, beats and mauls the public,

establishing a criminal record of repeated violent conduct,

he robs and kills his friends ***.

 			I believe the defendant Wiley is possessed of an

abandoned and malignant heart and spirit and this Court

finds no redeeming mitigating factor in this case.”

The circuit court thereafter sentenced defendant to death.

	As with alleged claims of ineffectiveness occurring during the

guilt phase of the trial, the standard for determining whether a

defendant has received constitutionally deficient representation at

a capital sentencing hearing is governed by the standard enunciated

in Strickland. As such, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and

that, absent the errors, the judge “ ‘would have concluded that the

balance of aggravating and mitigating circumstances did not

warrant death.’ ” People v. Henderson,, 171 Ill. 2d 124, 145 (1996), quoting Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

	As noted, defendant claims that his attorney failed to discuss

mitigation strategy with him and that, as a result, counsel did not

call witnesses who were available and willing to testify on his

behalf. These witnesses include defendant’s daughter, Gwen Jones;

his stepsister, Rosie Rhodes; and his sister, Juanita Jones. The

affidavits of each of these women indicate that they would have

testified that defendant was a good person, who had an exemplary

employment history. They would have stated that defendant was a

good relation, but that he had a strained relationship with his

stepfather. Defendant also points out that counsel should have

adduced evidence of the history of mental illness that runs through

defendant’s family. Further, counsel knew, or should have known,

that defendant was psychologically impaired, and, as a result,

should have had defendant examined by experts. In support of

these allegations, defendant attached to his petition various

documents that he claims to have recovered from his case file with

the Cook County Ppublic Ddefender’s Ooffice. These documents

indicate that defendant may have been suffering from psychological

disorders at the time of the murders. Defendant also supported his petition with the evaluations of mental health experts, secured by

post-conviction counsel, which would corroborate the prior

diagnoses of head trauma and neurological disorders.

	It is well settled that counsel has a duty to make reasonable

investigations for potential sources of mitigating evidence to

present at the capital sentencing hearing, or must have a legitimate

reason for failing to make a particular investigation. See Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066;

People v. Howery, 178 Ill. 2d 1, 55 (1997); People v. Orange, 168 Ill. 2d 138, 170 (1995); People v. Ruiz, 132 Ill. 2d 1, 27 (1989). If mitigating evidence exists, counsel then has a duty to introduce it

in support of the defense. See Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). However, where counsel has conducted an

adequate investigation, the failure to present mitigating evidence

does not by itself demonstrate deficient performance. See Howery, 178 Ill. 2d at 55; People v. Ruiz, 177 Ill. 2d 368, 385 (1997); Orange, 168 Ill. 2d at 167-68.

	Generally, courts are highly deferential in reviewing counsel’s

strategic decisions regarding the presentation of mitigating

evidence. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065; Orange, 168 Ill. 2d at 170. In fact, strategic choices made after a thorough investigation of the law and facts

relevant to plausible options are virtually unchallengeable. See

Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. An informed decision by counsel not to present certain

mitigating evidence may represent a valid strategic choice and is

entitled to judicial deference, where the evidence is potentially

damaging to the defendant. See Burger v. Kemp, 483 U.S. 776, 793- 95, 97 L. Ed. 2d 638, 656-57, 107 S. Ct. 3114, 3125-26

(1987); Ruiz, 177 Ill. 2d at 385. Such deference is not warranted, however, where the lack of mitigating evidence presented is not

attributable to strategy, but rather is the result of counsel’s failure

to properly investigate mitigation and prepare a defense. See

Howery, 178 Ill. 2d at 56; Orange, 168 Ill. 2d at 170. Consequently, counsel’s presentation of mitigation is not deemed

to be a legitimate strategy without a reasonable investigation into

mitigating circumstances. See Ruiz, 177 Ill. 2d at 385; see also Hall v. Washington, 106 F.3d 743, 749-50 (7th Cir. 1997).

	In our view, defendant’s petition and supporting affidavits

make a substantial showing that defense counsel’s limited

presentation of mitigating evidence at the sentencing hearing was

not the result of a strategic decision preceded by a reasonable

investigation. The record before this court contains no evidence

that allows us to conclude that counsel’s decision not to present

additional mitigating evidence was a strategic decision. We

acknowledge that when the drawbacks of potential mitigating

evidence appear obvious from the record, it can be assumed that

counsel decided not to present evidence for such reasons. See Ruiz, 132 Ill. 2d at 26. Here, however, there appears to be no obvious

disadvantage in the additional mitigating evidence. On this record,

we reject the State’s claim that trial counsel’s failure to present the

additional mitigating evidence was a strategic decision.

	The mitigating evidence offered by trial counsel at the

sentencing hearing portrayed defendant as someone who had good

parents, but who fell in with a bad crowd and got entangled in

drugs and alcohol abuse. Information regarding defendant’s need

for psychiatric counseling and history of mental illness might have

provided the sentencing judge with additional information that

could have influenced the choice of sentence. See People v. Perez,, 148 Ill. 2d at168, 188-89 (1992) (the State’s theory that counsel

reasonably declined to introduce school reports at the sentencing

hearing because they contained aggravating evidence that the

defendant was a “troublemaker” was not reasonable strategy where

counsel did introduce a psychological report at sentencing which

portrayed the defendant as much worse than a “troublemaker”).

Moreover, the record before us reveals no attempt by counsel to

secure the testimony of any member of defendant’s family other

than his step-brother, Jerry. The affidavits of the family members

here reveal that they were willing to come and provide mitigating

evidence on defendant’s behalf. Given the record before us, we

decline to assume that defense counsel’s alleged failure to present

the additional mitigating evidence represented a legitimate strategic

decision.

	Having considered the performance prong of the Strickland standard, we must further examine whether defendant has made a

substantial showing that he was prejudiced by counsel’s alleged deficient performance. In establishing prejudice, defendant must

show that there is a reasonable probability that, absent counsel’s

deficient performance, the sentencer would have concluded that the

balance of aggravating and mitigating factors did not warrant

death. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. We note that, in the past, this court has held that

despite the violent nature of the offenses and the fact that a

defendant had been convicted of multiple murders, counsel’s failure

to investigate and present mitigating evidence so prejudiced the

defendant as to warrant an evidentiary hearing. See Orange, 168 Ill. 2d at 173; People v. Thompkins, 161 Ill. 2d 148, 167-68 (1994). While we view some of the mitigation now being proffered

as cumulative to what was presented by counsel at the hearing,

some of it was not. The only type of psychiatric testimony adduced

on defendant’s behalf was the stipulated testimony of Cheryl

Winke, who stated that defendant was average in intelligence and

was aggressive. The evidence regarding defendant’s mental history

that he contends was available to counsel and should have been

offered in mitigation paints a picture that is at odds with that

stipulated testimony.

	We also note that the circuit court, in sentencing defendant to

death, specifically pointed out that with the exception of Jerry,

members of defendant’s family had not testified at sentencing

despite the fact that the trial took place in Chicago, where they

lived. The implication was that defendant’s family did not think

enough of defendant to testify on his behalf. The affidavits here

tend to show that other members of defendant’s family were

available to testify such that Jerry Wiley, an unwilling witness, need

not have provided the only mitigation voice from the family. We

also cannot ignore the fact that Jerry, the only family member

whom counsel did compel to testify in mitigation, was found by the

court to have been a perfect witness for the State.

	In light of these circumstances, we cannot say, as a matter of

law, that the outcome of the sentencing hearing would have been

the same had the additional pieces of evidence been discovered and

presented by trial counsel. We hold that defendant’s post-

conviction allegations, liberally construed in his favor and taken as

true in light of the original trial record, establish a substantial showing of a violation of defendant’s right to effective assistance

of counsel at the sentencing hearing. The circuit court improperly

dismissed this claim without an evidentiary hearing.

ConclusionONCLUSION

	The circuit court improperly dismissed defendant’s claim of

ineffective assistance of trial counsel with respect to counsel’s

failure to investigate and present evidence in mitigation at the

capital sentencing hearing. The circuit court properly dismissed the

remaining portions of defendant’s petition. Accordingly, the cause

is remanded to the circuit court for further proceedings consonant

with this opinion.

Affirmed in part;

Rreversed in part;

Ccause remanded with directions.

	JUSTICE KILBRIDE, concurring in part and dissenting in

part:

	The majority correctly reverses and remands this cause for a

hearing on the issue of the effective assistance of counsel. I concur,

therefore, in that narrow portion of the majority's judgment.

However, for the reasons set forth in my dissents in People v. Hickey, No. 87286, slip op. at 39-43 (September 27, 2001) (Kilbride, J., dissenting), and People v. Simpson, No. 85084, slip op. at 35-38 (September 27, 2001) (Kilbride, J., dissenting), I

believe defendant’s convictions and sentence should also be set

aside because the trial proceedings were conducted without the

minimum constitutional assurances established by the new supreme

court rules governing capital cases. As a result, this cause should

be remanded for a new trial conducted in compliance with the new

rules.

	Additionally, I share Chief Justice Harrison's belief that the

death sentence should not stand for at least one other reason.

Specifically, the State initially failed to prove beyond a reasonable

doubt that Wiley was guilty of armed robbery. People v. Wiley, 165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part and

dissenting in part). Thus, even if defendant were not entitled to the

constitutional guarantees established by the new rules, his death

sentence should still be vacated because it was solely predicated

upon the armed robbery convictions.

	CHIEF JUSTICE HARRISON, dissenting:

	Whether Wiley’s attorney provided effective assistance at the

sentencing hearing is not the dispositive issue on this appeal.

Regardless of the effectiveness of the lawyer’s representation, the

proceedings which culminated in Wiley’s sentence of death were

fatally flawed because they did not comport with the new rules

enacted by our court governing the conduct of cases in which the

State is seeking the death penalty. For the reasons set forth in my

dissenting opinion in People v. Hickey, No. 87286, slip op. at 35- 39 (September 27, 2001) (Harrison, C.J., dissenting), the

procedures contained in those rules are indispensable for achieving

an accurate determination of innocence or guilt and are applicable

to all capital cases now coming before us. Because Wiley was tried,

convicted and sentenced without the benefit of the new rules, his

convictions and death sentence should be vacated, and the cause

should be remanded to the circuit court for a new trial.

	Even if Wiley were not entitled to the benefit of the new rules,

his sentence of death could not stand no matter what an evidentiary

hearing on his post-conviction petition might reveal. That is so for

two reasons. First, as I noted when this case was before us on

direct review (People v. Wiley, 165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part & dissenting in part)) and as I

reiterated in my dissent when we initially considered the appeal

from the circuit court’s order dismissing Wiley’s post-conviction

petition, the State failed to prove beyond a reasonable doubt that

Wiley was guilty of armed robbery. Because the armed robbery

convictions were the sole predicate for Wiley'’s death sentence, the

death sentence is invalid as a matter of law.

	Second, for the reasons set forth in my partial concurrence and

partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States

Constitution (U.S. Const., amends. VIII, XIV) and article I,

section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2).

Until defendants are permitted to avail themselves of our new rules

and until we see how those rules work in practice, there is no basis

for altering that conclusion. Wiley’s sentence of death should

therefore be vacated, and he should be sentenced to a term of

imprisonment. Ill. Rev. Stat. 1985, ch. 38, par. 9–1(j). Because he

was convicted of murdering more than one victim, the term of

imprisonment must be natural life. Ill. Rev. Stat. 1985, ch. 38, par.

1005–8–1(a)(1)(c).

	JUSTICE THOMAS, also dissenting:

	To prevail on a claim of ineffective assistance of counsel in the

context of a death sentencing hearing, a defendant must show

prejudice, i.e., that there is a reasonable probability that absent his counsel’s deficient conduct, the court or sentencing jury would

have concluded that the balance of aggravating and mitigating

evidence did not warrant death. People v. Hall, 157 Ill. 2d 324, 337 (1993). I disagree with the majority that defendant in this case

made a substantial showing that he was prejudiced by his counsel’s

deficient conduct at defendant’s sentencing hearing. I therefore

dissent.

	Defendant claimed that his trial counsel failed to discuss any

mitigation strategy with him. Defendant further alleged that his trial

counsel knew defendant suffered from extreme emotional and

mental distress at the time of the offense because defendant’s

mother was critically ill and his wife recently had left him, taking

their infant son with her. Defendant also asserted that his trial

counsel failed to contact several family members who would have

provided testimony more favorable than that of Jerry Wiley. The

evidence submitted by defendant in support of his claim included

an affidavit from his daughter, Gwen Brown, stating that Gwen’s

mother told Gwen that she and defendant got along well, but that

defendant often was in and out of jail. Gwen did not have much

contact with defendant when she was a baby because defendant

was in jail. When defendant was not in jail, he would visit Gwen.

Gwen never saw a violent side to defendant. Gwen stated that defendant always was happy, “sometimes too happy.” Gwen said

that defendant always had a job when he was not in jail. With

regard to the illness of defendant’s mother, Gwen said that “[w]hen

my grandmother got ill, my dad tried to handle it. We talked about

it.”

	Defendant also submitted the affidavits of his sisters, Rosie

Rhodes and Juanita Jones. Rhodes stated that she and defendant

had different fathers, and that defendant’s father used to drink

heavily. Rhodes did not know why defendant’s father “ended up in

an institution.” Defendant’s mother treated her children well,

especially the boys. Defendant got along with his stepfather.

Defendant was shot when he was 13 years old, and around that

time, his mother found out that he and his friends were breaking

into parking meters. Rhodes stated that defendant “pretty much”

kept a job, that defendant liked to drink and would get “high” off

of drinking, and that she never saw defendant violent. Rhodes said

that when their mother became sick with pancreatic cancer, “he

[defendant] was hurt ***. [Defendant] pretty much kept his

feelings in. Sometimes, he would lay on the bed with her and cry.”

	Jones testified that she and defendant had the same father and

were treated “different” in a small way from their other siblings by

their mother and step-father. Jones also testified that she had a

stroke and had difficulty remembering, and that defendant was

good to her when she was in the hospital.

	Defendant also attached notes from his case file with the Cook

County public defender in support of his claim of ineffective

assistance of counsel. Included were notes from an interview with

defendant’s ex-wife, who said that defendant needed psychiatric

help because he gets angry when he drinks and is like Jekyll and

Hyde. The notes also show that defendant’s mother told counsel

that defendant’s father died in a mental institution. Defendant also

submitted the report of Dr. Gunn stating that when defendant

“experiences losses (as with his wife and son) he loses control and

even conscious awareness of what is taking place. His rage bursts

out and his control system fails.” Dr. Gunn noted defendant’s

cocaine and alcohol use, and that defendant reported blackouts and

many head injuries, and should be screened for traumatic brain

injury.

	The evidence in aggravation revealed defendant’s criminal

history dating back to 1964. In 1964, defendant was convicted of

unlawful use of a weapon and aggravated battery when he was

caught shooting at a boy with a sawed-off shotgun. That same

year, he also was convicted of attempt robbery. In 1970, defendant

served five years’ probation for burglary. In 1973, defendant

received five years’ felony probation for unlawful use of a weapon.

In that incident, defendant raised a shotgun, rested it on the roof of

an automobile, fired in the direction of a man and shot out a store

window. When police officers ordered defendant to put the gun

down, defendant refused, but was apprehended when another man

crept up behind defendant and grabbed the shotgun.

	Defendant next served a sentence of one to four years’

imprisonment for a 1976 robbery conviction following his arrest for

the armed robbery of a grocery store. In 1978, defendant was

convicted of aggravated battery and armed violence and was

sentenced to concurrent terms of seven years and five years of

imprisonment. That conviction was based upon an incident where

defendant hit a 73-year-old woman numerous times on the face

with a gun, wrestled the woman to the floor when she tried to get

away from him, then put his knee to her chest and started choking

her.

	Defendant thereafter received a two-year sentence of

imprisonment in 1983 for unlawful use of a weapon, following an

incident where defendant was found crouched on a street corner

with a gun extended in his hand. The murders giving rise to the

instant charges occurred in 1985. In addition, while in Cook

County jail awaiting trial on the charges in this case, defendant

received four disciplinary violations.

	Given defendant’s extensive criminal history, I do not believe

that any of the mitigating evidence offered by defendant would

have outweighed the aggravating evidence. This court frequently

has refused to find prejudice due to ineffective assistance of

counsel in cases involving violent crimes where a defendant’s

extensive criminal history was so great that it would have been

highly improbable that proposed mitigation evidence would have

outweighed the aggravating evidence. See People v. Jones, 144 Ill. 2d 242 (1991); People v. Neal, 142 Ill. 2d 140 (1990); People v. Owens, 129 Ill. 2d 303 (1989).

	Here, the testimony of defendant’s daughter and sister that

they had never seen defendant violent would not have been

sufficient to counter defendant’s lengthy and violent criminal

history. In addition, although the testimony of defendant’s family

members would have shown that defendant was upset by his

mother’s illness, their testimony does not establish that defendant

suffered an extreme emotional or mental disturbance as a result of

her illness. Further, while the report of Dr. Gunn suggests a brain

injury, blackouts and a loss of conscious awareness of what is

taking place when defendant experiences losses, I note that

defendant did not claim that he had no memory of the murders in

this case, and in fact was in control of his mental faculties enough

to continually change his story to the police when confronted with

evidence that he was lying. I further note that defendant also had

presented stipulated evidence at his sentencing hearing that Cheryl

Winke, a psychologist with the Department of Corrections, would

have testified that defendant did not exhibit any psychopathology

and appeared to function within the normal range of intelligence.

Consequently, I do not believe that Dr. Gunn’s report would have

been sufficient to overcome the aggravating factors in this case.

	I also believe this case is distinguishable from People v. Orange, 168 Ill. 2d 138 (1995), and People v. Thompkins, 161 Ill. 2d 148 (1994), cited by the majority in support of their finding that

defendant was entitled to an evidentiary hearing. Slip op. at 16, 18.

In Orange, we noted that the defendant had a limited criminal history and his prior adjudications had occurred more than 15 years

earlier when the defendant was a juvenile. Orange, 168 Ill. 2d at 171. The defendant’s affiants would have provided testimony

concerning defendant’s ability to maintain employment over the

past 14 years, as well as testimony concerning defendant’s violent

upbringing, his ability to maintain caring relationships with family

members, and his trustworthiness in the eyes of his employers.

Orange, 168 Ill. 2d at 171. We concluded that it was not unreasonable that such mitigating evidence might have provided

the court “with a portrait of the defendant that may have influenced

the choice of sentence.” Orange, 168 Ill. 2d at 171.

	Similarly, in Thompkins, 161 Ill. 2d 148, 165, defense counsel argued at defendant’s death penalty hearing that defendant should

not be sentenced to death because he had not been clearly

identified as the gunman. In support of his post-conviction petition,

the defendant submitted affidavits from his parents, siblings,

children and friends stating that they would have testified on

defendant’s behalf had they been asked to do so. Thompkins, 161 Ill. 2d at 166. This court found that the defendant was entitled to

an evidentiary hearing on his claim of ineffective assistance of

counsel, noting that the mitigating evidence would have

complemented defense counsel’s strategy at the defendant’s

sentencing hearing, and that “[f]avorable testimony by the

defendant’s family members would have fortified counsel’s

contention that the evidence of the defendant’s role in the offenses

was subject to doubt.” Thompkins, 161 Ill. 2d at 167.

	Here, in contrast, there was evidence supporting a finding that

the defendant shot the victims, despite his denials. This fact,

coupled with defendant’s lengthy and violent criminal history,

likely would outweigh favorable testimony from defendant’s family

members. I also am not convinced that the materials submitted by

defendant in mitigation established a mental health history that

would have outweighed the aggravating factors. Therefore, I

would affirm the trial court’s order dismissing defendant’s post-

conviction petition without an evidentiary hearing.

	JUSTICE McMORROW joins in this dissent.