Docket No. 85982–Agenda 2–May 2000.

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

								CECIL SUTHERLAND, Appellant.

Opinion filed November 16, 2000.

	JUSTICE HEIPLE delivered the opinion of the court:

	Defendant, Cecil Sutherland, appeals from the denial of his

post-conviction petition after an evidentiary hearing in the circuit

court of Jefferson County. Because defendant has been sentenced

to death, his appeal lies directly to this court. 134 Ill. 2d R. 651(a).

We reverse defendant’s convictions and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

	Defendant was tried by a jury in 1989 for aggravated

kidnaping, aggravated criminal sexual assault, and three counts of

murder. The following evidence was presented at his trial. On July

2, 1987, an oil field worker discovered the nude body of 10-year-

old Amy Schulz near an oil lease access road in rural Jefferson

County. Amy’s body was lying on its stomach covered with dirt.

There were shoeprint impressions on her back. A large, open

wound on the right side of her neck exposed her spinal cord.

Several pubic hairs were found stuck in her rectal area. On the

ground near the body were automobile tire impressions and a shoe

impression similar to that on Amy’s back. Her clothes were found

strewn along the access road.

	An autopsy of Amy’s body revealed a wound to the neck

extending from her throat to her right ear. Her right eye was

hemorrhaged, the base of her ear was torn away from the skin, and

her lips were lacerated from compression against her teeth. There

were linear abrasions to the outer lips of the vagina and evidence

of tearing of the rectal mucosa. Her body also had a fractured rib,

torn liver, bruised esophagus, and hemorrhages in the vocal cords

and inside the skull. The medical examiner determined that Amy’s

attacker had anally penetrated her, strangled her to

unconsciousness, slit her throat, and stepped on her body to force

exsanguination. Based on her stomach’s gastric contents, the time

of death was fixed between 9:30 and 11 p.m. on July 1, 1987. Evidence at trial indicated that Amy was last seen walking alone on

a road in Kell, Illinois, at approximately 9:10 to 9:15 p.m. on July

1.

	Police determined that the tire prints found near the body were

consistent with only two types of tires manufactured in North

America: the Cooper “Falls Persuader” and the Cooper “Dean

Polaris.” Police also ascertained that the shoe prints found on and

near the body were made by a boot sold by K mart called the

“Texas Steer.”

	Several months after the crime, police were contacted by law

enforcement authorities at Glacier National Park in Montana,

where defendant had been arrested for shooting at park rangers.

Park authorities reported that defendant’s car had a single Cooper

Falls Persuader tire on the right front wheel, and that a pair of

Texas Steer boots was found in his possession. Police also

discovered that, at the time of Amy’s murder, defendant was living

in Dix, Illinois, a few miles from where the body was found.

	Expert witnesses testified for the State at trial that the tire

prints discovered near the body corresponded with the tread from

the tire found on defendant’s car in Montana. Expert testimony

also indicated that: (1) 34 dog hairs found on Amy’s clothing were

consistent with hairs from defendant’s black Labrador and

inconsistent with hairs from Amy’s family’s dogs and her

neighbors’ dogs; (2) 29 fibers found on Amy’s clothing could have

originated from the carpet or upholstery of defendant’s vehicle; and

(3) 19 fibers found in defendant’s vehicle could have originated

from Amy’s clothing. A forensic scientist also testified for the State

that the two pubic hairs recovered from Amy’s rectal area could

have originated from defendant, but did not originate from 24 other

suspects in the case or from any member of Amy’s family.

	Defendant’s sister-in-law testified that on the night of the

crime, defendant was at her house near Kell until 8 or 8:30 p.m. An

expert for the defense testified that most of the clothing fibers

recovered from defendant’s vehicle were inconsistent with fibers

from Amy’s clothing.

	The jury convicted defendant on all charges, found him eligible

for the death penalty, and determined that there were no mitigating factors sufficient to preclude a sentence of death. The trial court

accordingly sentenced defendant to death.

	On direct appeal, this court held that the prosecution at trial

improperly argued before the jury that the hair and fiber evidence

conclusively established that Amy Schultz had been in defendant’s

car. People v. Sutherland, 155 Ill. 2d 1, 25 (1992). We noted that expert testimony at trial instead indicated merely that hair and

fibers from the crime scene were “consistent with” those from

defendant’s car. Nevertheless, we held this error to be immaterial

because the evidence at trial was not closely balanced. Sutherland, 155 Ill. 2d at 25-26. We thus declined to order a new trial, and

affirmed defendant’s convictions and death sentence in all respects.

Sutherland, 155 Ill. 2d at 31.

	Defendant subsequently filed a post-conviction petition in the

circuit court raising a variety of claims. The court dismissed most

of the claims in the petition, but granted an evidentiary hearing on

the following allegations: (1) that defendant’s trial counsel was

ineffective in failing to discover and present evidence that

defendant’s purchase of  “Texas Steer” boots and installation of the

Cooper “Falls Persuader” tire on his car both occurred after the date of the crime; (2) that the conviction of Amy’s step-grandfather

for sexual abuse subsequent to her death constituted evidence of

defendant’s actual innocence; and (3) that the verdict form signed

by the jury at sentencing was defective.

	At the evidentiary hearing, defendant’s mother testified that at

the time of Amy Schulz’s murder, defendant wore black lace-up

boots that were nearly knee-high. In contrast, she testified, the

Texas Steer boots recovered from defendant after his arrest in

Montana were tan in color and “above-ankle.” She stated that

defendant bought the Texas Steer boots sometime in July after

Amy Schulz’s murder, and that she had offered the receipt for this

purchase to defendant’s counsel prior to defendant’s original trial.

She also testified that defendant changed the two front tires on his

car before he left for Montana and after the date of Amy’s murder.

	The defense called a retired Chicago police officer who

testified that at least 75% of homicide victims and child sexual

assault victims know their attackers. He testified that in his career

as a police investigator, he would typically look for suspects in murder and child sexual assault cases among the victim’s family

and friends and among the last persons to have seen the victim

alive. He stated that his review of the evidence and the wounds in

the instant case had led him to the conclusion that the victim

probably knew her attacker.

	William Willis, Amy Schulz’s step-grandfather, testified that

at the time of Amy’s death, he and his wife lived in a house

approximately 100 yards from Amy’s house. Because Amy’s

parents worked and attended school, he and his wife often took

care of Amy and her brothers. On the evening of July 1, 1987, Amy

went to Willis’ house to eat blackberries. She was around Willis’

dog that evening. About 8:30 p.m., Amy asked Willis for a ride

into Kell, approximately three-fourths of a mile from the house.

Willis told her no because he had to go to work and had to do

some shopping first. Amy then left, walking on foot toward Kell.

A few minutes later, Willis drove over the same road toward Kell,

and he waved to Amy as he passed her walking in the same

direction he was driving. That was the last time he saw Amy alive.

	Willis acknowledged that he pled guilty in 1994 to aggravated

criminal sexual abuse of a boy in the Boy Scout troop for which he

volunteered as a leader. Willis also acknowledged that the

presentence investigation report for that crime contained

statements from several other minor victims, including Amy’s two

brothers, that he had sexually abused them. Willis acknowledged

that at his sentencing hearing for the 1994 guilty plea, one of these

alleged victims testified that Willis had forced him to have oral and

anal sex and that Willis threatened to kill him. Willis testified,

however, that there were no allegations that he had ever used

weapons or engaged in kidnapping in any of these cases.

	A mental health counselor and sex offender treatment provider

then testified that, based on her research, pedophiles attracted to

prepubescent females show a 22% crossover in also molesting

males, and those attracted to males show a 62% crossover in also

molesting females. She testified that she had reviewed William

Willis’ medical and psychological evaluations and had spoken with

him briefly. In her opinion, there was a high probability that Willis

would cross over from sexually abusing young boys to abusing

young girls. She also testified that Willis was prone to outbursts of anger and that when a victim resisted, he used more violent

physical force, escalating from fondling to anal rape.

	Ronald Lawrence, a friend of defendant, testified that he had

changed all of the tires on defendant’s car two separate times after

Amy Schulz’s death and before defendant left for Montana.

Lawrence explained that he and defendant had to change tires

frequently because the rock road leading to Lawrence’s house

contained metal particles and railroad spikes. Lawrence testified

that he told police and the public defender after defendant’s arrest

that he had changed the tires on defendant’s car after the date of

Amy Schulz’s murder. Lawrence stated that although he was called

and did testify as a mitigation witness at defendant’s sentencing

hearing, he was not called to testify at the guilt-innocence phase of

the trial.

	Michael Anthis, who investigated the murder of Amy Schulz

as captain of detectives for the Jefferson County sheriff’s

department, testified that he interviewed Ronald Lawrence on July

12, 1988. Anthis testified that, according to his own notes of that

interview, Lawrence told him that defendant had been at

Lawrence’s house near Iuka, Illinois, from 4 p.m. until 10:30 p.m.

the night of July 1, 1987. Anthis testified that he did not provide

these notes to either the prosecution or defense attorneys prior to

defendant’s trial and that he did not reduce his notes to a typed

report because he was aware that defendant had “offered up a

different alibi than what Mr. Lawrence was stating.”

	James Henson testified that he was defendant’s public

defender for his trial. Henson testified that although he was aware

that authorities in Montana had returned defendant’s Texas Steer

boots to defendant’s mother, Henson did not ask for or examine

the boots. Henson also testified that although defendant informed

him prior to trial that defendant had purchased the boots

approximately two months after Amy Schulz’s murder, Henson did

not emphasize the boots at trial because he did not think they were

important to the case. Henson further testified that before

defendant’s trial, he was aware of information, including a

statement by defendant’s mother, that the tires on defendant’s car

were changed after Amy Schulz’s death, but Henson did not

investigate these reports and did not make any arguments at trial concerning the timing of the tires’ installation. Henson also testified

that he did not pursue a trial strategy of casting suspicion on

William Willis, Amy’s step-grandfather, because he had received

a report from the State indicating that the hair and fiber specimens

found at the crime scene were inconsistent with samples obtained

from Willis.

	Defendant testified that between July and October 1987, he

bought approximately 14 different used tires. He stated that his

family lived on a farm and frequently bought used tires for a variety

of purposes. In August 1987, he replaced all four of his tires at

Ronald Lawrence’s house, and used these tires when he drove to

Montana. Defendant also testified that in July of 1987, he typically

wore either tennis shoes or over-the-calf engineer boots. In August

1987, before he drove to Montana, he purchased a pair of Texas

Steer boots at K mart. Defendant stated that he provided all of this

information to his public defender before his trial and offered to

provide corroboration of it, such as his receipt for the boots, but

the information was not used at trial.

	The parties agreed to forgo testimony or oral argument on the

sufficiency of the verdict form at sentencing and instead submit

only written briefs on that issue. The circuit court subsequently

denied the post-conviction petition in all respects, ruling that

defendant had failed to establish a substantial deprivation of his

constitutional rights.

ANALYSIS

Ineffective Assistance of Counsel

	Defendant also contends that the circuit court erred in dismissing

the post-conviction petition because his trial counsel was

ineffective in failing to present evidence concerning the boot and

tire impressions found at the crime scene. Defendant argues that

trial counsel should have procured and presented evidence that

defendant did not come into possession of the relevant boots and

tire until after the crime was committed.

	Findings entered by a trial court after an evidentiary hearing on

a post-conviction petition will be reversed on appeal only if

manifestly erroneous. People v. Coleman, 183 Ill. 2d 366, 386 (1998). In order to establish a constitutional claim of ineffective assistance of counsel, a defendant must first show that counsel

made errors so serious that counsel was not functioning as the

counsel guaranteed by the Constitution. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064

(1984). Second, defendant must demonstrate a reasonable

probability that, but for counsel’s unprofessional errors, 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.

	Testimony presented at the post-conviction hearing indicated

that, prior to defendant’s trial, defense counsel was aware of

evidence that defendant did not own a pair of Texas Steer boots at

the time of Amy Schulz’s murder. Specifically, trial counsel

testified at the evidentiary hearing that defendant informed him

prior to trial that defendant had purchased his Texas Steer boots

two months after the crime occurred. Counsel also testified that he

was aware that defendant’s mother had the boots in her possession

at the time of trial, but that he did not request to examine them.

Additionally, defendant’s mother testified that at the time of the

murder, defendant typically wore a different kind of boots.

	The testimony at the post-conviction hearing also indicated

that defendant’s trial counsel was aware prior to trial of evidence

that defendant had changed the tires on his car after the time of

Amy Schulz’s death but before defendant drove to Montana.

Specifically, there was substantial testimony presented at the

hearing that counsel learned of this information from three different

sources: defendant, defendant’s mother, and Ronald Lawrence.

Counsel himself acknowledged at the hearing that he was aware of

such evidence, but failed to investigate it or present it at trial.

	We hold that trial counsel was ineffective in failing to

investigate and present evidence concerning the boots and tire.

Because the State’s evidence at trial consisted primarily of a variety

of items introduced to associate defendant with the crime scene, an

attack on the suggested links between defendant and the boots and

tire could have played a prominent role in the defense. Trial

counsel testified at the evidentiary hearing that his main trial

strategy was to discredit the expert testimony purportedly tying

defendant to the crime. In light of this strategy, it was incumbent

on counsel to utilize available means of casting doubt on the physical evidence which the State relied upon. Although counsel

sought to convince the jury that the hair and fiber evidence

introduced by the State was not conclusive proof of defendant’s

guilt, he failed to present the jury with evidence discrediting two of

the most salient and significant items in the State’s case. Counsel’s

performance thus fell below a reasonable level of assistance.

	We also find that counsel’s ineffective performance caused

substantial prejudice to defendant. Although the State presented

numerous items of evidence associating defendant with the crime,

none of them was singularly compelling. If counsel had succeeded

in raising questions as to whether the boots and tires owned by

defendant played any role in the crime committed against Amy

Schulz, there is a reasonable probability that the jury also would

have doubted at least some of the other physical evidence which

the State attempted to link to the crime, and hence quite possibly

may have acquitted defendant.

CONCLUSION

	For the above reasons, we conclude that defendant’s

convictions must be reversed. In making this determination, we are

particularly mindful of our decision in the direct appeal of this case.

In that opinion, we held that the prosecution at trial improperly

overstated the strength of the fiber-comparison evidence in its

arguments to the jury. Sutherland, 155 Ill. 2d at 25. Nevertheless, we held that this error did not warrant reversal because of the

substantial evidence linking defendant to the crime. Sutherland, 155 Ill. 2d at 25. The combination, however, of this improper

prosecutorial argument, the State’s violation of its duty to disclose exculpatory evidence, and trial counsel’s ineffective assistance

now lead us to conclude that the original trial was sufficiently

compromised by error as to vitiate our confidence in its fairness.

Because we find the evidence at defendant’s original trial sufficient

to support conviction, a second trial will not be barred by

constitutional principles of double jeopardy. In so holding,

however, we make no conclusion as to defendant’s guilt that will

be binding on retrial. See People v. Placek, 184 Ill. 2d 370, 390 (1998). In light of our disposition, we need not address defendant’s

remaining contentions on appeal.

	The judgment of the circuit court is reversed, and the cause is

remanded to the circuit court for retrial.

Reversed and remanded.

	JUSTICE RATHJE, specially concurring:

	I agree with the majority that defendant’s convictions should

be reversed and his case should be remanded for a new trial. I

cannot agree, however, with the majority’s decision to address, on

the merits, the question of whether the State violated defendant’s

right to due process under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). See slip op. at 6-8.

	The majority concedes that defendant did not include this issue

in his post-conviction petition and that, therefore, the issue is

waived. The majority then disregards the waiver rule “in the

interests of fundamental fairness.” Slip op. at 7.

	Section 3 of the Post-Conviction Hearing Act provides that

“[a]ny claim of substantial denial of constitutional rights not raised

in the original or an amended petition is waived.” 725 ILCS

5/122–3 (West 1998). This waiver rule is not born from mere

administrative convenience. Rather, it ensures that the issue before

the court is limited to two questions: (1) whether the defendant’s

post-conviction petition demonstrates the gist of a meritorious

constitutional claim which requires the trial court to grant an

evidentiary hearing and (2) whether the trial court’s grant of relief

or failure to grant relief was manifestly erroneous. A review of how

courts evaluate post-conviction petitions readily demonstrates this.

	When a defendant files a post-conviction petition, “ ‘the trial

court shall examine the petition with a view to determining whether the allegations of fact, liberally construed in favor of the

petitioner, and taken as true, make a showing of imprisonment in

violation of the Federal or State constitution.’ ” (Emphasis added.) People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952). “[T]he function of the pleadings in a proceeding under the Act ‘is to determine whether the

petitioner is entitled to a hearing.’ ” (Emphasis added.) Coleman, 183 Ill. 2d at 382, quoting People v. Airmers, 34 Ill. 2d 222, 226 (1966). For a defendant to obtain a hearing on a post-conviction

petition, “the allegations in the petition must be supported by the record in the case or by its accompanying affidavits.” (Emphasis

added.) Coleman, 183 Ill. 2d at 381.

	When a trial court considers whether to dismiss a post-

conviction petition, it may employ no discretion. If the defendant

alleges sufficient facts to demonstrate a constitutional deprivation,

the trial court must conduct an evidentiary hearing. Coleman, 183 Ill. 2d at 387. When making this determination, however, “the circuit court’s inquiry is limited solely to the sufficiency of the

allegations.” (Emphasis added.) Coleman, 183 Ill. 2d at 387. Reviewing courts review such dismissals de novo. Coleman, 183 Ill. 2d at 388-89. If the trial court holds an evidentiary hearing on

the post-conviction petition, the reviewing court reviews whether

the findings were manifestly erroneous. Coleman, 183 Ill. 2d at 386.

	Regardless of whether the trial court grants an evidentiary

hearing, the Post-Conviction Hearing Act provides that “[a]ny final

judgment entered upon such petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.” (Emphasis added.)

725 ILCS 4/122–7 (West 1998). The Act makes no provision for

reviewing claims outside the petition, except to state that those

claims are waived.

	I recognize that here defendant’s waiver arises not because he

failed to assert his claim at the earliest opportunity, but rather

because defendant was not aware of the evidentiary basis of the

claim until Deputy Anthis testified at the evidentiary hearing as a

rebuttal witness. That, however, does not mean that defendant

should be permitted to raise this issue on appeal or that this court

should exceed the bounds of appellate review and address the issue

on its merits. Rather, it means that defendant should file a

successive post-conviction petition. This court has previously

explained that errors that could not have been presented in a

previous proceeding may be cognizable in a successive post-

conviction petition. People v. Flores, 153 Ill. 2d 264, 275 (1992). Here, defendant’s claim is based on the testimony of Deputy Anthis

at the evidentiary hearing. Defendant alleges that he did not have

that information until the evidentiary hearing was held. Given this, the proper remedy is to find the issue waived but to allow

defendant, if he wishes, to file a successive post-conviction petition

to raise this claim.

	Here, the claim is waived not because defendant failed to

present it in a prior proceeding but because he failed to present it in this proceeding. The fundamental fairness discussion is inapplicable. Fundamental fairness is not implicated because

defendant has a remedy available to him: he can file a successive

post-conviction petition raising this claim.

	Stated simply, defendant’s claim is waived, and the majority

has provided no reason to disregard this waiver. If defendant

wishes to assert the claim involving the alleged Brady violation, he should do so in a successive post-conviction petition.

	Like the majority, I would reverse defendant’s conviction and

remand the cause for retrial. I agree with the majority that

defendant received the ineffective assistance of counsel at trial. I

also agree that the combination of trial counsel’s ineffective

assistance and the improper prosecutorial argument discussed in

the direct appeal of this case constitutes sufficient error to “vitiate

[my] confidence in its fairness.” Slip op. at 24.

	JUSTICE MILLER, dissenting:

	The defendant raises a number of contentions in this post-

conviction appeal, but the majority considers only two matters,

which concern allegations that defense counsel was ineffective for

failing to present certain evidence at trial. The post-conviction

judge rejected these claims after an evidentiary hearing, and those

determinations should be upheld on review unless they are contrary

to the manifest weight of the evidence. People v. Coleman, 183 Ill. 2d 366, 385 (1998). On the record before us, I do not believe that

the defendant has met this standard, and therefore I would affirm

the denial of relief under these portions of the defendant’s post-

conviction petition.

	The defendant first argues that trial counsel was ineffective in

failing to challenge the State’s contention that he had a preference

for the brand of boots whose prints were discovered at the crime

scene. The trial evidence showed that the footprints were made by

a particular brand, called the “Texas Steer,” sold at K-mart stores.

The defendant, at the time of his arrest in Montana, was in

possession of a pair of Texas Steer boots. Although the latter pair

of boots did not make the prints found at the crime scene, the

prosecution argued that the defendant’s subsequent ownership of

a pair of Texas Steer boots evinced his preference for the brand.

The defendant argues, and the majority agrees, that trial counsel

should have presented evidence to show that the defendant was

wearing boots of a different style and brand around the time of the

commission of these offenses.

	Unlike the majority, I do not believe that counsel’s failure to

present the proposed evidence was prejudicial to the defendant

under the standard expressed in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant

complaining of ineffective assistance of counsel must show both

that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Establishing prejudice requires a

defendant to show “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Assuming, without deciding, that counsel was deficient in this

regard, I do not believe that the defendant has established that he

was prejudiced by the asserted error.

	The relative insignificance of the footprint evidence is apparent

from the brief notice it received in this court’s opinion on direct

appeal. The court’s opinion mentioned the footprint evidence only

once, during a summary of the testimony presented at trial.

According to the opinion, the evidence showed that footprints

were found on the victim’s back and on the ground nearby, and

that the two sets of prints were “similar in design.” People v. Sutherland, 155 Ill. 2d 1, 7 (1992). Notably, in summarizing the trial evidence the opinion did not also mention the defendant’s

subsequent possession of boots of the same brand that made the

prints, or the prosecution’s theory that the defendant had a

preference for boots of that brand. At no other time did the opinion

refer to the footprint evidence, and even omitted it from later

discussions of the strength of the evidence of guilt in this case.

Sutherland, 155 Ill. 2d at 17-18, 25.

	At trial the State presented strong evidence, apart from that

involving the footprints, connecting the defendant to the present

offenses. As this court noted on direct review, two pubic hairs

removed from the victim’s rectum were consistent in all respects

with those from the defendant, but were dissimilar to those of the

victim’s family members and 24 other suspects. Gold-colored fibers

found on various articles of the victim’s clothing were consistent

in all respects with the carpeting in the defendant’s vehicle, but

were dissimilar to the carpet samples from the child’s environment.

Also, a foreign fiber found in the victim’s shirt was consistent in

every respect with fibers from the seat of the defendant’s car, but

was dissimilar to sample fibers from the child’s environment. Other

evidence showed that fibers found on the front passenger side of the defendant’s vehicle were consistent with fibers from the

victim’s shirt and shorts. Dog hairs found on the victim’s clothing

were consistent in all characteristics with a standard from the

defendant’s dog, and other evidence showed that dog hairs could

be found throughout the defendant’s car. Finally, tire impressions

found at the crime scene could have been made by the defendant’s

car. Sutherland, 155 Ill. 2d at 17-18.

	The absence from this court’s prior opinion of any discussion

of thise footprint evidence, beyond an abbreviated reference to the

matching prints found at the crime scene, illustrates well its relative

lack of importance to the prosecution’s case at trial. Here, the

evidence showed only that footprints found at the scene could have

been made by a Texas Steer brand boot, and that the defendant was

later found to be in possession of a pair of boots of that particular

brand. Relying on this evidence, the prosecutor argued that the

defendant had a preference for the brand and could have been

wearing them when he committed the present offenses. Although

there existed evidence that defense counsel could have presented

to counter the State’s theory regarding the defendant’s preference

for Texas Steer boots, I do not believe that counsel’s failure to

introduce this testimony was prejudicial. Because the footprint

evidence played only a minor role in the defendant’s trial, and

because the remaining evidence provided strong proof of the

defendant’s guilt, I would conclude that the defendant was not

prejudiced by counsel’s failure to challenge more vigorously the

State’s theory about his preferred footwear.

	In a separate contention, the defendant argues that trial

counsel was ineffective for failing to present certain evidence about

the tires on his car. At trial, the State introduced testimony

showing that tire impressions found at the crime scene were made

by either a Cooper “Falls Persuader” or a Cooper “Dean Polaris”

tire, and that the tire found on the right front wheel of the

defendant’s car at the time of the defendant’s arrest several months

later was a Cooper Falls Persuader tire. Investigators were not able

to determine whether the defendant’s particular tire had made the

impressions.

	In the present appeal, the majority agrees with the defendant

that trial counsel was ineffective for failing to introduce evidence that the defendant changed the tires on his automobile perhaps

once, and possibly twice, in the period between the commission of

the present offenses and the defendant’s subsequent apprehension

in Montana. The evidence presented by the defendant at the post-

conviction hearing was contradicted in several important respects,

however, and I do not believe that counsel was ineffective for

failing to discover and introduce the testimony the defendant now

urges.

	The evidence in question was introduced at the post-

conviction hearing through the testimony of Ronald Lawrence, a

friend of the defendant. Lawrence testified that he changed a

number of tires on the defendant’s car during the period after the

commission of the offenses involved here and before the defendant

left Illinois for Montana. Lawrence also stated that he had

conveyed this same information to defense counsel and to the

police some time before trial. In the original proceedings in this

case, Lawrence had testified in behalf of the defendant only at the

capital sentencing hearing.

	Officer David Leigh of the Illinois State Police testified that he

questioned Ronald Lawrence in October 1987, four months after

the present offenses were committed. At that time, Lawrence did

not mention changing any tires for the defendant. Leigh questioned

Lawrence a number of years later, in 1996, after Lawrence had

provided an affidavit stating that he had changed the defendant’s

tires. On this occasion, Lawrence said that he had mentioned the

changing of the tires to defense counsel, a defense investigator, and

a captain with the Jefferson County sheriff’s department. Leigh

believed that Lawrence was being prompted by his wife during the

interview.

	The defendant’s trial lawyer, James Henson, testified at the

evidentiary hearing that he had one note suggesting that defendant

might have purchased tires from someone. Henson denied having

any specific evidence to support this, however. A defense

investigator, Sherry Gutzler, testified that she did not recall that

Lawrence had ever told her that he had changed tires for the

defendant. She stated that if he had, she would have attempted to

follow up on that lead, regarding it as important.

	At the conclusion of the evidentiary hearing, the post-

conviction judge rejected the defendant’s claims that counsel was

ineffective, including the allegation that counsel should have

introduced evidence–specifically, Lawrence’s testimony–to show

that the defendant had his tires changed at some point after the

commission of the present crimes and before his departure for

Montana. Lawrence’s testimony did not go unchallenged, and, on

this basis, the post-conviction judge could well have concluded that

there was reason to doubt the utility of the witness’s testimony at

the guilt stage of the proceedings. In addition, there remained

strong evidence of the defendant’s guilt. As noted earlier, a post-

conviction judge’s determinations made after an evidentiary

hearing will be reversed only if they are contrary to the manifest

weight of the evidence. People v. Coleman, 183 Ill. 2d 366, 385 (1998). I do not see any reason to disturb the post-conviction

court’s decision on this issue.

	Rather than grant the defendant relief on the two questions

discussed by the majority, I would uphold those portions of the

post-conviction court’s judgment and would consider in this appeal

the remaining contentions raised by the defendant but not discussed

in the present opinion.