Docket Nos. 85084, 86926 cons.–Agenda 1–March 2001. 

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

								ROBERT SIMPSON, Appellant.

Opinion filed September 27, 2001.

	JUSTICE FITZGERALD delivered the opinion of the court:

	Defendant, Robert Simpson, appeals the orders of the circuit

court of Cook County, dismissing his amended post-conviction

petition and his petition for post-judgment relief. Defendant was

sentenced to death for his underlying murder conviction; therefore,

his appeal lies directly with this court. See 134 Ill. 2d R. 651(a).

We affirm the circuit court’s orders.

BACKGROUND

	Defendant’s convictions arose from the armed robbery and

murder of Barbara Lindich at the Fairway Food store in Glenwood,

Illinois. This court has previously set forth the evidence presented

at defendant’s trial in our opinion on defendant’s direct appeal.

People v. Simpson, 172 Ill. 2d 117 (1996). For this reason, we will discuss only the facts that are necessary to the disposition of the

issues raised in this appeal.

	On May 22, 1992, at approximately 10 a.m., defendant and

Carolyn LaGrone entered the Fairway Food store and robbed it

while Lurlarn Young waited in the car. As defendant emptied the

cash register, Barbara Lindich, a store customer, walked up behind

LaGrone and peered over her shoulder. Defendant turned and shot

Lindich, who later died as a result of the gunshot wound.

Defendant then checked the safe, left the store with LaGrone and

went to the car where Young awaited.

	LaGrone was arrested three days later and gave a statement to

the police that detailed the offense as well as Young and

defendant’s involvement. Defendant was thereafter arrested and

placed in a lineup. He was identified by eyewitnesses, including

employees at the Fairway Food store, as the man they saw rob the

store and shoot Lindich.

	At trial, three store employees identified defendant as the man

who was behind the service desk with the gun. Forensic testing experts stated that the cartridge case recovered from the scene was

fired from one of the pistols recovered from defendant’s storage

locker after defendant was arrested.

	During all phases of the pretrial and trial proceedings,

defendant represented himself with the aid of a public defender

acting as standby counsel. Defendant called several witnesses who

were present in the store at the time of the robbery to testify on his

behalf. No defense witnesses contradicted the State’s witnesses’

accounts of what occurred in the store. Defendant also called

codefendant Young to testify but she invoked her fifth amendment

right and did not testify. At defendant’s request, and against the

trial court’s advice, custodial statements of LaGrone and Young

were published to the jury.

	At the close of the evidence, the jury returned a verdict finding

defendant guilty of armed robbery and first degree murder of

Lindich. The jury found defendant eligible for death on the basis of

the murder-in-the-course-of-felony aggravating factor (720 ILCS

5/9–1(b)(6) (West 1992)) and the matter proceeded to the second

stage of sentencing. Defendant continued to represent himself

during the sentencing phase.

	The trial court inquired whether defendant intended to call any

witnesses on his behalf in mitigation and defendant responded that

he wanted to call Judges James Bailey, Richard Fitzgerald and

Lloyd Van Duzen as character witnesses. The trial court instructed

defendant’s standby counsel to investigate the matter and find out

where the judges were currently located and if they could recollect

knowing defendant.

	At the next court date, the trial court provided defendant with

three transcripts defendant had previously requested. The trial

judge further informed defendant that he had contacted Judges

Fitzgerald and Bailey and that neither judge remembered

defendant. However, the trial court also informed defendant that

both judges would be willing to come to court.

	Defendant informed the trial court that since the judges could

not remember him, he wanted to go to the law library and prepare

certain motions. The trial court admonished defendant that he

should be more concerned because the jury had not made a final determination as to defendant’s sentence. In response, defendant

countered that if the worse case scenario occurred and he was

sentenced to death, that sentence would allow him to “bypass the

Illinois Appellate Court” and go “directly to the Illinois Supreme

Court.” The trial court stated, “[Y]ou have your own strategy and

I have told you this before, but I still wouldn’t give up on the jury.”

Defendant acknowledged the statement but again affirmed his

decision: “I understand, your Honor, but the law indicates if that

does occur, the matter goes directly to the Supreme Court.”

	As a last attempt to convince defendant to reconsider his

strategy, the trial judge informed defendant that if he were in

defendant’s position he would vigorously present mitigation

evidence to the jury so that it would be inclined not to sentence defendant to death. Defendant asked if he could have some time to

contact the judges himself. When court resumed, defendant

informed the trial court that after speaking to Judge Bailey, the

judge could not recall defendant. The judge again admonished

defendant that he should not hinge his strategy on post-trial

motions or on an appeal. He also explained to defendant that if one

person on the jury panel disagreed with the imposition of death,

defendant would not be sentenced to death. Despite the trial

court’s admonishments, however, defendant decided not to present

any mitigation evidence.

	At the conclusion of the second stage of the sentencing

hearing, the jury found no mitigating factors to preclude imposition

of the death penalty. The trial court appointed counsel to represent

defendant on his post-trial motion. In preparation for the post-trial

hearing, counsel requested defendant’s medical file from the

Pontiac Correctional Center, which showed that defendant suffered

from headaches, dizziness, fainting spells, and bad eyesight and had

survived a gunshot wound to the head from a prior incident. At the

post-trial hearing, counsel argued that defendant was not

competent to represent himself during either the trial or the

sentencing phase. The trial court denied the post-trial motion and

sentenced defendant to death for the murder and 30 years’

imprisonment for the armed robbery.

	On direct appeal, this court affirmed defendant’s conviction

and sentence. People v. Simpson, 172 Ill. 2d 117 (1996). The United States Supreme Court denied certiorari. Simpson v. Illinois, 519 U.S. 982, 136 L. Ed. 2d 334, 117 S. Ct. 436 (1996). Thereafter, defendant filed a pro se petition for post-conviction relief and a motion to appoint counsel. Counsel filed a motion to

produce handwritten statements from the Glenwood police

department. The trial court ordered the Glenwood police

department to produce the requested documents. After records

were produced, counsel filed a motion to compel complete

production of the documents and a motion to take depositions. The

trial court denied the motions.

	Prior to the initial court date on defendant’s post-conviction

petition, the State filed a motion for clarification of defendant’s

competence pursuant to People v. Owens, 139 Ill. 2d 351 (1990). The State requested that the trial court determine if defendant had

raised a bona fide issue as to his competence. The trial court determined that defendant’s condition had not deteriorated and that

he was coherent and able to understand the proceedings.

	Thereafter, the trial court dismissed defendant’s post-

conviction petition without an evidentiary hearing. Defendant then

filed a pro se petition for post-judgment relief. 735 ILCS 5/2–1401 (West 1998). The trial court dismissed the petition for post-

judgment relief and defendant appealed directly to this court. We

consolidated both matters for purposes of this appeal. We affirm

the trial court’s dismissal of defendant’s post-conviction and the

dismissal of defendant’s petition for post-judgment relief for the

following reasons.

ANALYSIS

	In a post-conviction proceeding, the trial court does not

redetermine a defendant’s innocence or guilt, but instead examines

constitutional issues which escaped earlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). To be entitled to post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122–1 through 122–7 (West 1998)), a defendant must

demonstrate a substantial deprivation of federal or state

constitutional rights in the proceedings that produced the challenged conviction or sentence. People v. Morgan, 187 Ill. 2d 500, 528 (1999).

	A basic tenet of the Act is that the scope of post-conviction

relief is limited by considerations of waiver and res judicata “to constitutional matters which have not been, and could not have

been, previously adjudicated.” People v. Winsett, 153 Ill. 2d 335, 346 (1992). Issues that could have been raised on direct appeal,

but were not, and any issues that were decided by a reviewing

court generally will not be considered in a post-conviction

proceeding. People v. West, 187 Ill. 2d 418, 425 (1999).

	At the second stage of a post-conviction proceeding, as in the

present case, the circuit court appoints counsel to represent an

indigent defendant and counsel may file an amended post-

conviction petition. See 725 ILCS 5/122–4 (West 1998); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The State may then file a motion to dismiss or answer the defendant’s post-conviction

petition. 725 ILCS 5/122–5 (West 1998). A defendant is not

entitled to an evidentiary hearing on his post-conviction petition as

a matter of right. People v. Whitehead, 169 Ill. 2d 355, 370-71 (1996).

	An evidentiary hearing on a post-conviction petition is

warranted only where the allegations of the petition, supported by

the trial record or accompanying affidavits where appropriate,

make a substantial showing that a defendant’s constitutional rights

have been violated. Morgan, 187 Ill. 2d at 528; People v. Towns, 182 Ill. 2d 491, 503 (1998). All well-pleaded facts in the petition

and accompanying affidavits, if any, are taken as true for the

purpose of determining whether to grant an evidentiary hearing.

People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995).

	This court reviews a trial court’s determination regarding the

sufficiency of allegations in a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). With these basic principles in mind, we turn to defendant’s first contention.

I. Errors at Post-Conviction Proceeding

	Before considering the allegations raised in defendant’s post-

conviction petition, we first consider defendant’s contention that the trial court erred during the post-conviction proceeding when it

failed to grant defendant’s discovery request, improperly made

certain factual and credibility determinations, and ruled that

defendant was competent to proceed with the post-conviction

process.

	Defendant maintains that the post-conviction court erred in

denying his request for the discovery depositions from four

witnesses who wrote out information after the incident at the

request of one of the police officers, Sergeant DiMare. Defendant

alleges that there exists a conflict between DiMare’s trial testimony

as to what he told the four witnesses to write down after the

incident, an affidavit that DiMare prepared for the post-conviction

proceeding, and the witnesses’ own testimony.

	 At trial, all four witnesses testified that DiMare gave them

pencil and paper and requested that they write out notes about the

incident. DiMare testified that he gave all of the witnesses pencils

and paper so that they could write out notes about the incident. In

an affidavit DiMare prepared for the post-conviction proceeding,

he stated that the statements he received contained general

information about the crime, which he incorporated into the police

report. He further stated that the notes were destroyed once the

police report was completed. Defendant argues the trial court

should have ordered discovery depositions from the four witnesses

in order to ascertain what their statements actually contained.

	Although neither the civil nor the criminal discovery rules

apply to post-conviction proceedings, a circuit court nonetheless

has inherent discretionary authority to order discovery in post-

conviction proceedings. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v. Fair, 193 Ill. 2d 256, 264 (2000). A circuit court should allow discovery only if the moving party has

demonstrated “good cause” for the discovery request. Fair, 193 Ill. 2d at 264-65. A discovery request will be denied where it amounts

to a “fishing expedition.” People v. Enis, 194 Ill. 2d 361, 415 (2000). A circuit court’s denial of a request for discovery in a post-

conviction proceeding will not be reversed absent an abuse of

discretion. Fair, 193 Ill. 2d at 265.

	Upon review, we find that the trial court did not abuse its

discretion in denying defendant’s discovery requests. Despite defendant’s contention to the contrary, the conflict between

DiMare’s testimony and his affidavit is not apparent from the

record. The witnesses testified that DiMare asked them to write

down information about the incident and that he provided pencils

and paper for them to do so. Similarly, DiMare testified that he

told the witnesses to write down their names and addresses “and

if they had anything that they want to keep a note of they could.”

In his affidavit, DiMare stated, “I asked the witnesses to write their

names, addresses, telephone number, where they were in the store

at the time of the shooting, and other such information, on a piece

of paper.” There is no inconsistency between these two statements,

nor has defendant demonstrated that there existed a good cause for

the trial court to order discovery depositions of the four witnesses.

As such, the trial court did not abuse its discretion in denying the

request.

	Defendant next maintains that the circuit court incorrectly

made findings of fact and determinations of credibility regarding

Brady material and the testimony of LaGrone. We find defendant’s argument as to both contentions unpersuasive.

	In his post-conviction petition, defendant argued that DiMare

deliberately withheld statements that were given to him by four

witnesses. Defendant argues that in reaching its determination to

dismiss defendant’s petition, the trial court made improper factual

and credibility findings. The record shows, however, that the trial

court simply restated the contents of DiMare’s affidavit.

	 We note that in restating the contents of the affidavit, the trial

court incorrectly used the term res judicata instead of waiver. This error, however, is de minimus. It is clear from the trial court’s order that the dismissal rested on the fact that the Brady violation could have been brought up on direct appeal and was, therefore, waived. In reaching this conclusion, the trial court did not make

any factual or credibility determinations.

	Defendant further contends that the trial court made factual

findings as to his allegation that LaGrone was instructed by the

State to lie about her drug usage on the day of the arrest. The trial

court noted that although defendant attached an affidavit from an

investigator stating that LaGrone told him she was instructed to lie,

defendant did not submit an affidavit from LaGrone herself. The trial court also noted that during the trial LaGrone was extensively

cross-examined about her drug use. She denied that she used drugs

on the day of her arrest but admitted that she was a drug user and

was receiving treatment for her drug addition. Thus, the trial court

properly concluded that defendant’s allegations lacked legal

sufficiency.

	Defendant’s final argument concerns his competency to

proceed with the post-conviction proceedings. The record shows

that upon the State’s request, the trial court made an initial

determination of whether a bona fide doubt existed as to defendant’s competency. See People v. Owens, 139 Ill. 2d 351 (1990). The trial judge decided the issue after hearing arguments

from the defendant, defendant’s post-conviction counsel and the

prosecutor. The trial court concluded,

		“This court listened to the petitioner at length and heard

the various legal arguments he advanced as to why a

psychiatric examination should not be ordered. This court

also listened to petitioner’s appointed counsel and

arguments advanced by the assistant state’s attorney. It is

clear to this court that petitioner’s condition had not

deteriorated and that he is coherent and able to understand

the proceedings.”

	A defendant is presumed to be fit to stand trial, to plead, and

to be sentenced. 725 ILCS 5/104–10 (West 1998). A defendant is

also presumed to be fit at the time of post-conviction proceedings. Owens, 139 Ill. 2d at 362. When a bona fide doubt of a defendant’s fitness to proceed with post-conviction proceedings is raised, the

court may order a psychological evaluation of the defendant and

consider the matter at an evidentiary hearing. Owens, 139 Ill. 2d at 365.

	Because the trial court is in the best position to observe a

defendant’s conduct, whether a bona fide doubt of fitness to proceed exists is a matter that lies within the discretion of that

court. People v. Johnson, 191 Ill. 2d 257, 269 (2000). A defendant is considered unfit to proceed with the post-conviction process

when, because of a mental condition, he cannot communicate his

allegations of constitutional deprivations to counsel, thus

frustrating his entitlement, under the Act, to a reasonable level of assistance. Johnson, 191 Ill. 2d at 269, citing Owens, 139 Ill. 2d at 359-65. If a defendant is competent to communicate allegations of

constitutional violations to counsel, that defendant is competent to

participate in post-conviction proceedings.

	Here, the circuit court found that no bona fide doubt of defendant’s fitness existed. In fact, the trial court noted that the

differences between defendant and his post-conviction counsel

centered around legal matters and procedures. This conflict about

legal strategy does not rise to the level of mental incompetency on

defendant’s part. The trial court further found that defendant’s

mental condition had not deteriorated since the last court date and

that defendant’s post-conviction counsel was able to incorporate

some of defendant’s pro se arguments into the amended petition. All of these factors together demonstrate that the trial court did not

abuse its discretion in ruling that defendant was competent to

proceed with the post-conviction proceedings.

II. Use of Perjured Testimony

	We now consider the allegations of defendant’s post-

conviction petition. Defendant first claims that Sergeant DiMare,

“in a calculated effort to convict” defendant, presented false

testimony to the grand jury, at hearing on defendant’s motion to

suppress and at trial. Before reaching the merits of defendant’s

perjury claims, however, we must address the State’s contention

that review of these claims was forfeited when defendant failed to

raise them on direct appeal. A post-conviction petition is a

collateral attack upon a prior conviction and sentence, not a

substitute for or an addendum to a direct appeal. People v. West, 187 Ill. 2d 418 (1999). Consequently, any issues which could have

been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.

	We agree with the State that defendant’s claim as to DiMare’s

grand jury testimony, his testimony at the suppression hearing and

his testimony at trial were all contained in the record on direct

appeal. As such, each of these claims could have and should have

been raised on direct appeal. See West, 187 Ill. 2d at 425. Thus, these claims are waived.

	The application of the waiver rule is not, however, a

jurisdictional or absolute bar to review of procedurally defaulted

claims, but is rather a rule of administrative convenience. People v. Whitehead, 169 Ill. 2d 355, 371 (1996); see also People v. Owens, 129 Ill. 2d 303, 317 (1989). Thus, the strict application of waiver will be relaxed “ ‘where fundamental fairness so requires.’ ”

Whitehead, 169 Ill. 2d at 371, quoting People v. Gaines, 105 Ill. 2d 79, 91 (1984). In order to satisfy the requirements of invoking

the fundamental fairness exception, the defendant must satisfy a

“cause and prejudice” test by objectively showing that defense

counsel’s efforts to raise the claim on direct review were impeded and that the error so infected the entire trial that the defendant’s conviction violates due process. People v. Franklin, 167 Ill. 2d 1, 20 (1995); see also People v. Mahaffey, 194 Ill. 2d 154, 173 (2000). We find that defendant has failed to satisfy either prong of

this “cause and prejudice” test and has failed, thus, to show that the

fundamental fairness exception should be invoked.

	 It is well established that the State’s knowing use of perjured testimony in order to obtain a criminal conviction constitutes a

violation of due process of law. People v. Olinger, 176 Ill. 2d 326, 345 (1997). A conviction obtained through the knowing use of

perjured testimony must be set aside. Olinger, 176 Ill. 2d at 345, citing United States v. Bagley, 473 U.S. 667, 678-80, 87 L. Ed. 2d 481, 492, 105 S. Ct. 3375, 3381-82 (1985). Where the State

allows false testimony to go uncorrected, the same principles apply.

Olinger, 176 Ill. 2d at 345. However, the State’s obligation to correct false testimony does not amount to an obligation to

impeach its witnesses with any and all evidence bearing upon their

credibility. People v. Pecoraro, 175 Ill. 2d 294, 312-14 (1997).

	Contrary to defendant’s claim, we find no evidence in the

record that DiMare committed perjury. Defendant first argues that

DiMare presented false testimony when he stated to the grand jury

that defendant used a gun to strike Katherine Koszut but that in his

report he stated that he was told that defendant hit her with his

other hand. The record, however, fails to support this claim.

DiMare’s report states,

			“Mrs. Koszut asked the black man if she could help him

at which time he held up what she thought to be a paper with a barrel of a gun sticking out, and said ‘this is a stick

up.’ *** [T]he suspect then grabbed Mrs. Koszut by the

back collar of her shirt and with his other hand struck her

in the rear of the head driving her to the floor of the

service booth.”

The statement that defendant hit Koszut “with his other hand” does

not distinguish whether that was the hand that held the gun or not.

Thus, this statement does not contradict DiMare’s testimony that

defendant hit Koszut with the gun. Moreover, as the State points

out, even if DiMare incorrectly testified that defendant hit Koszut

with the gun, the aggravated battery and armed violence counts

stemming from this action were dismissed by the State prior to jury

selection. Thus, because the jury never heard the allegedly false

testimony and did not know of the armed violence and aggravated

battery counts, its verdict would not have been affected.

	Defendant also claims that DiMare gave false testimony at the

hearing on the motion to suppress when he testified that one of the

witnesses, Helen Gair, identified defendant at a lineup. The State

counters that defendant fails to show the falsity of DiMare’s

statement at the suppression. However, Gair’s affidavit, attached

to the petition, states that she could not positively identify anyone

at the police lineup and that she informed the police of this fact.

	Nonetheless, defendant does not show that his conviction was

obtained through the knowing use of perjured testimony. The

record shows that at trial Gair did not testify. Instead, defendant

and the State agreed upon two stipulations concerning Gair’s

testimony. Notably, there is no mention of any pretrial

identification or lack of identification in either of these two

stipulations, nor is there any indication that DiMare testified at trial

regarding the pretrial identification. The jury was never made

aware of any pretrial identification as far as Gair was concerned.

Thus, assuming the falsity of DiMare’s testimony at the motion to

suppress hearing, this testimony did not impact the jury’s verdict

at trial.

	Defendant further claims that DiMare falsely testified as to

what he asked the four witnesses to write down at the time of the

incident. Defendant argues that DiMare’s testimony varies with his

statement in the affidavit. As stated earlier in this opinion, however, there is no significant variance between DiMare’s

testimony and his affidavit. The gist of DiMare’s statement to the

four witnesses was the same at both the trial and in his affidavit.

	Finally, defendant claims that DiMare committed perjury when

he “implied to the jury” that Kimberly Knight, an occurrence

witness, had described defendant as the offender. The record

shows that defendant called DiMare during his case in chief and

asked DiMare if he wrote down Knight’s description of the

offender in the supplemental report or in any report. DiMare

answered, “None that I recall.” Upon further questioning by

defendant, DiMare stated, “[W]e [the police] come up with a

physical description after talking to all of the witnesses.”

	Defendant’s argument that DiMare improperly “implied” that

Knight’s description of the offender matched defendant’s

description is not supported by the record. In fact, the nature of

defendant’s questions implied that DiMare did not conduct a full

and complete investigation and did not write down all of the

information that the various witnesses, including Knight, had given

him.

	 In sum, defendant’s allegations that the state knowingly used

perjured testimony are not supported by the record and his claim

of a due process violation fails.

III. Brady Violation

	Defendant further contends that the State committed

prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). We note that defendant

incorporates the same perjury claims previously discussed in

addition to raising new claims. Specifically, defendant claims Brady violations existed where (1) DiMare presented false testimony to the grand jury; (2) defendant was not advised that Gair had been

hypnotized in an effort to enhance her memory of the events she

alleged in her affidavit; (3) DiMare’s affidavit and his trial testimony differ as to what he asked the witnesses to write down

at the time of the incident; (4) DiMare’s testimony implied that

Knight had described an offender that was defendant; and (5) the State failed to tender interview notes and a tape of a witness

statement made to an investigator regarding the occurrence.

	The general rule, as set forth in Brady, provides that “the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to the guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. A defendant is not entitled to relief

under Brady, however, unless he can establish that the evidence improperly withheld was both favorable to the defense and

material.

	Evidence is “material” only if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). A reasonable probability that the result of the

proceeding would have been different is a “probability sufficient to

undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3383; People v. Page, 193 Ill. 2d 120 (2000).

	In the present case, defendant’s claims, together or separately,

do not establish a constitutional violation. We briefly review each

of the claims raised. With regards to defendant’s first claim that

DiMare committed perjury before the grand jury regarding

Koszut’s statement, as previously noted, we find no evidence in the

record to indicate that DiMare committed perjury. Nonetheless,

even if defendant’s allegations were supported by the record, the

record makes clear that the armed violence and aggravated battery

counts stemming from defendant’s act of striking Koszut with a

gun were dismissed by the State. Thus, there is no reasonable

likelihood that the allegedly false testimony could have affected the

jury’s verdict. See Olinger, 176 Ill. 2d 326.

	Next, defendant claims that he was not informed that Gair was

hypnotized to assist her memory of the events. Defendant fails,

however, to explain how this information would have been material

to the defense. Aside from simply stating that evidence of the

hypnosis was withheld from him, defendant fails to articulate any

reason as to how these factors establish Brady violations. Gair did not personally testify at the trial nor did she identify defendant. The

only evidence concerning Gair came in through two stipulations,

neither of which involves identification of defendant by her, with

hypnosis or without hypnosis. Defendant does not show how this

information, had it been disclosed to the defense prior to trial,

would have yielded a different result in the proceeding.

	Defendant’s next two assignments of error concern DiMare’s

request of four witnesses to write down information about the

incident. We will not revisit this argument, as we already found

that the record does not show there exists a discrepancy between

DiMare’s testimony and the information contained in his affidavit. 

	Defendant next argues that DiMare committed perjury when

he intimated to the jury that Kimberly Knight described an offender

that was the defendant. Contrary to defendant’s claim, however,

we find no evidence in the record that DiMare committed perjury

because, according to defendant, he “implied” that Knight

described an offender that was the defendant. Once again,

defendant has failed to articulate a legitimate Brady violation and has failed to show how this “implication,” even if true, affected the

jury’s verdict.

	Finally, defendant argues that the State committed a Brady violation when it failed to tender interview notes and a tape of a

witness statement from Kimberly Knight made to an insurance

investigator. With reference to the interview notes, it appears that

defendant is again raising the issue of the notes from the four

witnesses written at DiMare’s request. DiMare stated that he

combined the contents of the four witnesses’ notes in the police

report he generated before destroying the notes. DiMare was

further extensively cross-examined about the notes, their content

and the fact that they were later destroyed. Defendant has failed to

show that there is a reasonable probability that a different outcome

would have resulted had defendant had the notes from the four

witnesses.

	Defendant also argues that the State committed a Brady violation by failing to tender to defendant a tape of Knight’s

statement made to an insurance investigator regarding the incident. 

	Defendant maintains that with the statement he would have

been able to show the inconsistencies in the testimony of other witnesses and that, as a result, the proceedings would have been

different. Defendant’s argument, however, is unpersuasive.

	At trial, during cross-examination by defendant, defendant

questioned Knight as to the amount of money that was missing

after the robbery. Knight replied, “I don’t know the exact dollar

figure. You would have to meet with the insurance adjuster.” She

further stated that an insurance adjuster spoke to her and taped the

conversation of what happened in the store on the day of the

robbery for insurance purposes. At the hearing on defendant’s

post-trial motion, defendant argued the issue of the missing

insurance adjuster tape interview along with various other Brady claims. Defendant requested that the tape be located and

subpoenaed. The trial court directed the State to locate the tape if

it still existed. On February 15, 1994, the State tendered a

transcript of an interview of Kimberly Knight conducted on June

8, 1992, by an insurance investigator.

	Initially, we note that it is clear that the issue of the taped

interview is one that was raised both during trial and in the post-

trial motion. As such, this issue should have been raised on direct

appeal and is therefore waived. Although the objective of finality

must yield in circumstances where fundamental fairness so requires

(Whitehead, 169 Ill. 2d at 369), in this case, defendant has failed to satisfy the “cause and prejudice” test that will excuse a

defendant’s procedural default. See People v. Flores, 153 Ill. 2d 264 (1992).

	Defendant has failed to establish how the taped conversation,

by a person who was not an agent of the State, was both favorable

to the defense and material. Although defendant characterizes the

State’s failure to tender the tape as egregious, defendant

completely fails to articulate how the taped interview would have

helped his case. He does not state which witnesses, if any, would

have been impeached by this taped interview or how the result of

the proceedings would have been any different had this information

been known and made available to defendant during trial. Once the

existence of the tape was disclosed, the State made efforts to

locate it and tender it to defendant. There is no evidence in the

record to suggest that the State knew of, or should have known of,

the existence of the tape until Knight testified.

	In essence, defendant creates a laundry list of perceived errors

but fails to show how these alleged errors would have undermined

confidence in the outcome of the trial. As such, defendant has

failed to establish a Brady violation with regard to any of the above evidence.

IV. Waiver of Right to Counsel

	Defendant next maintains that he did not knowingly and

voluntarily waive his right to counsel at trial and sentencing and

argues that he was not competent to proceed pro se during trial or during post-conviction proceedings. In support of these arguments,

defendant attaches affidavits in his post-conviction petition from

three mitigation specialists and three psychologists who, in essence,

state that defendant’s demeanor and conduct is consistent with

some type of mental defect–most likely, attention deficit disorder

or attention deficit disorder with hyperactivity.

	On direct review, this court addressed defendant’s competency

to represent himself at trial. A post-conviction petitioner may not

avoid the bar of res judicata simply by rephrasing, as defendant has done in this case, issues previously addressed on direct appeal.

People v. Williams, 186 Ill. 2d 55, 62 (1999); People v. Franklin, 167 Ill. 2d 1, 23 (1995); People v. Emerson, 153 Ill. 2d 100, 106- 07 (1992).

	 Defendant concludes that the affidavits show that “the trial

court simply did not adequately address trial competency and

competency to waive the right to counsel.” This precise issue,

however, was raised before this court on direct appeal. This court

stated,

		“The record indicates the defendant was literate,

responsive and understanding. Defendant, age 39, had an

extensive criminal history. He had demonstrated a

familiarity with the judicial process and, according to the

trial judge, had waived counsel and represented himself on

a prior occasion. Further, defendant filed numerous

motions and actively presented his defense. He

demonstrated, in the words of the trial judge, that ‘[he]

knew what he was doing’ when he waived his right to counsel and chose to represent himself.” Simpson, 172 Ill. 2d at 134.

	This court carefully considered and rejected each of

defendant’s claims after a lengthy analysis. We concluded that

defendant was competent to represent himself at trial and

sentencing and that his decision to waive the right to counsel was

knowingly and voluntarily made. Simpson, 172 Ill. 2d at 134. Therefore, we hold that defendant’s claim that he was not

competent to waive the right to counsel is barred by res judicata.

	Nonetheless, defendant maintains that the affidavits from the

experts are new evidence that show there was a legitimate doubt

as to defendant’s mental capacity to participate in the proceedings.

As such, argues defendant, the limitation of res judicata does not apply.

	Guided by principles of fundamental fairness, a court will relax

the customary doctrine of res judicata when appropriate. People v. King, 192 Ill. 2d 189, 193 (2000); People v. Neal, 142 Ill. 2d 140, 146 (1990). However, the fundamental fairness exception will

not be applied where the defendant has failed to meet the

requirements of the “cause and prejudice” test. In this case,

defendant has failed to establish that the alleged error so prejudiced

him that his conviction violates due process. See Franklin, 167 Ill. 2d at 15; see also Mahaffey, 194 Ill. 2d at 173.

	For new evidence to be sufficient to warrant a new trial, it

must be of such conclusive character that it will probably change

the result upon retrial. People v. Patterson, 192 Ill. 2d 93, 124 (2000); People v. Hobley, 182 Ill. 2d 404, 449 (1998). Furthermore, evidence must be material and not merely cumulative.

People v. Molstad, 101 Ill. 2d 128, 134 (1984). It must also be discovered since the trial and be of such character that it could not

have been discovered prior to trial by the exercise of due diligence. Molstad, 101 Ill. 2d at 134.

	Assuming that the evidence from the experts is new evidence,

we conclude, nonetheless, that the affidavits are not of such

conclusive character that they would change the result upon retrial.

See Hobley, 182 Ill. 2d at 449. At most, the experts agree that defendant may suffer from an attention deficit disorder. Notably, only one of the experts stated that defendant’s decision to “waive”

his right to counsel resulted from a compulsion rather than an

intelligent decision and that his ability to defend himself was

impaired. The other experts stated that defendant’s mannerisms

and speech were consistent with attention deficit disorder,

impulsive decisionmaking and “poor judgment.”

	All of the experts also agreed that defendant was

uncooperative during the interviews, thus inhibiting a full

evaluation. In addition, none of the experts reviewed the transcripts

in this case in reaching a decision as to defendant’s competence. As

we stated in the direct appeal, defendant actively participated in his

defense from the time of jury selection all the way through to the

sentencing phase. These are factors that were not considered by the

experts in reaching their determination. We find that the

fundamental fairness exception to res judicata need not be applied, as defendant cannot establish that he suffered prejudice.

	Defendant also claims that he was not competent to proceed

during the post-conviction proceeding. Despite defendant’s

assertion, however, the record shows that upon the State’s request,

the trial court carefully determined whether there was a bona fide doubt of defendant’s competency to proceed with the post-

conviction proceedings at a hearing. For the reasons articulated

earlier in this discussion, the trial judge did not abuse his discretion

in finding defendant competent to proceed with the post-conviction

proceedings.

V. Ineffective Assistance of Counsel

	Defendant’s next contention reduces itself to a question of

whether standby counsel was ineffective in aiding defendant during

the trial. Specifically, defendant contends that counsel failed to

adequately investigate the existence of possible mitigation evidence

and that appellate counsel failed to raise an ineffectiveness claim on

appeal.

	At the outset, we note that the crux of defendant’s argument

is that an attorney acting as standby counsel for a capital defendant

has a higher duty to aid that defendant during the trial and

sentencing phase. Defendant urges this court to extend the duties of standby counsel to encompass preparation of a legal defense and

mitigation even when the defendant opts to assert his constitutional

right to self-representation. We decline to adopt such a position.

	The right of self-representation does not carry with it a

corresponding right to legal assistance; one choosing to represent

himself must be prepared to do just that. People v. Gibson, 136 Ill. 2d 362, 383 (1990). Standby counsel may assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the

completion of some specific tasks, such as introducing evidence or

objecting to testimony, that the defendant has clearly shown he

wishes to complete” and may also help “ensure the defendant’s

compliance with basic rules of courtroom protocol and procedure.”

McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984). The trial court has broad discretion to appoint counsel

for these advisory or other limited purposes and to determine the

extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill. 2d 1, 38 (1996).

	In the direct appeal of this case, we discussed the extent of

standby counsel’s role in this case as one in which counsel would

aid defendant during trial and assist him in investigating matters

defendant believed would be necessary to his defense. Standby

counsel’s role, however, was not one of active participation in

preparing or presenting defendant’s legal defense nor was

defendant under this belief. Simpson, 172 Ill. 2d at 136.

	The trial court described the role of standby counsel and

repeatedly admonished defendant that he could not proceed pro se and also be represented by counsel. The trial court further directed

standby counsel to proceed at defendant’s direction and perform

certain investigative tasks. Defendant understood that standby counsel’s role was to carry out an investigatory function as well as

his regular standby duties.

	Defendant claims that his standby counsel was ineffective for

failing to investigate certain mitigation evidence. Claims of

ineffective assistance of counsel are analyzed under the two-prong

test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland a defendant must prove that defense counsel’s performance fell below an

objective standard of reasonableness and that this substandard performance created a reasonable probability that, but for counsel’s

errors, the trial result would have been different. People v. Alvine, 173 Ill. 2d 273, 293 (1996). With regard to mitigating evidence,

defense counsel has a duty to make a reasonable investigation into

the mitigating evidence he will present at a defendant’s capital

sentencing hearing, or he must have a sound reason for failing to

make a particular investigation. People v. Morgan, 187 Ill. 2d 500, 541 (1999). Nonetheless, courts reviewing trial counsel’s decisions

regarding the presentation of mitigating evidence are highly

deferential. People v. Towns, 182 Ill. 2d 491, 513-14 (1998).

	An informed decision by defense counsel, however, not to

present certain mitigating evidence can be a valid strategic choice,

entitled to judicial deference, where the evidence is potentially

damaging to the defendant. Towns, 182 Ill. 2d at 514. Where the lack of mitigating evidence presented at a defendant’s trial is not

attributable to strategy, but instead to counsel’s failure to properly

investigate mitigating evidence and to prepare a defense, such

deference is not warranted. Towns, 182 Ill. 2d at 514.

	Here, as we pointed out in the direct appeal, counsel was not

under a duty to actively participate in preparing defendant’s legal

defense. Rather, counsel was there for a limited purpose: to aid

defendant in an investigatory capacity. Simpson, 172 Ill. 2d at 136- 37. The responsibility of preparing a legal defense and mitigation

remained on defendant throughout the trial and sentencing.

	Defendant was informed by the trial court that he should be

prepared to proceed with mitigation evidence at the sentencing

hearing if he was found guilty. When the time came for mitigation

evidence to be presented, defendant sought to call three judges to

testify on his behalf. However, the judges were unable to remember

defendant. The trial judge, at defendant’s request, contacted each

of the judges, on a few occasions. The trial court informed

defendant that at least two of the three judges would be willing to

come to court but that neither judge could remember defendant.

Defendant contacted one of the judges himself, in an effort to help

the judge remember him. Defendant also requested various

transcripts from witnesses, all which were provided for him.

	During this time, the trial judge repeatedly advised defendant

that he should present some other mitigation evidence in an effort to sway the jury not to impose death. Ultimately, defendant made

a strategic choice not to present any mitigation evidence because,

according to defendant, he wanted the case to be directly reviewed

by this court should he receive the death penalty. The trial judge

questioned defendant’s prudence in choosing such a strategy, but

the record shows that defendant was adamant in his decision. Thus,

defendant chose not to present any mitigation evidence.

	Defendant argues that standby counsel had received a medical

file while preparing defendant’s post-trial motion that disclosed

that defendant suffered from frequent and severe headaches,

dizziness, fainting spells, bad eyesight and an old gunshot wound

to the head. Defendant suggests that this information, had it been

presented during mitigation, would have yielded a different result.

Defendant cannot, however, avoid the principle that a person

proceeding pro se may not later complain that he received ineffective assistance of counsel. The duty to present mitigation

evidence remained with defendant throughout the sentencing

phase.

	The record shows that defendant was familiar with the judicial

process and that he actively sought information, such as transcripts,

subpoenas and documents from the trial court in an effort to

prepare for the aggravation/mitigation phase of sentencing.

Defendant himself made the final determination not to present any

mitigation evidence, despite the trial court’s admonishment to the

contrary. Nothing in either the record or defendant’s brief suggests

that defendant requested that standby counsel investigate additional

mitigation evidence, such as defendant’s medical file. Further,

nowhere does defendant explain in what way the conduct of his

standby counsel prevented him from introducing evidence in

mitigation.

	To succeed on a claim of this nature, defendant should be

required to establish that the actions of standby counsel prevented

defendant from accomplishing something he otherwise intended to

accomplish or would have been able to accomplish if standby

counsel had not prevented him from doing so, either through

unreasonable advice or direct action. In other words, to prevail on

an ineffectiveness claim, defendant should show how standby

counsel’s actions fell below an objective standard of reasonableness with respect to the level of guidance standby counsel was required

to offer. To suggest otherwise would mean that standby counsel

would have to do, in advance and without direction from the pro se defendant, additional preparation of the case in order to present this evidence to the defendant, who would then determine whether

or not he would use it. This level of preparation is beyond the

scope of a standby counsel’s duty.

	Here, defendant seeks to avoid the consequences of his

decision to represent himself during the second stage of the

sentencing hearing. As such, we decline to find that standby

counsel’s performance fell below an objective standard of

reasonableness with respect to providing mitigation evidence to

defendant.

	Defendant further argues that appellate counsel was ineffective

for failing to raise the ineffectiveness of standby counsel. Again, we

reject this argument on the basis that defendant acted as his own

counsel and standby counsel did not have an obligation to prepare

defendant’s case for him.

	The two-prong Strickland test applies to claims of ineffective appellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant who claims that appellate counsel was

ineffective for failing to raise an issue on appeal must allege facts

demonstrating such a failure was objectively unreasonable and that

counsel’s decision prejudiced defendant. Enis, 194 Ill. 2d at 377. If the underlying issue is nonmeritorious, the defendant has

suffered no prejudice. Enis, 194 Ill. 2d at 377; People v. Childress, 191 Ill. 2d 168, 175 (2000). Normally, appellate counsel’s choices

concerning which issues to pursue are entitled to substantial

deference. People v. Mack, 167 Ill. 2d 525, 532-33 (1995).

	In the present case, the underlying issue of the duty of standby

counsel to prepare mitigation evidence has no merit. Therefore,

defendant suffered no prejudice by the failure of his appellate

counsel to raise this issue on direct appeal.

VI. Constitutionality of Death Penalty Statute

	In his last assignment of error defendant argues that the Illinois

sentencing system is unconstitutionally applied. Defendant maintains that the Illinois statutory scheme impermissibly places a

burden on the defendant unauthorized by the legislature.

	In his direct appeal defendant raised a similar claim. Defendant

argued that the death penalty statute violates the eighth amendment

by providing for the death penalty where evidence in mitigation is

not sufficient to preclude it. As such, according to defendant, the

statute precludes a meaningful consideration of mitigating

evidence.

	Although defendant’s claim in the amended post-conviction

petition is framed slightly differently, the doctrine of res judicata still applies. As this court has emphasized, the Act was not

intended to be used as a tool to gain access to another hearing

upon a claim of denial of constitutional rights when there had

already been a full review of this issue raised. People v. Cox, 34 Ill. 2d 66, 67-68 (1996). Defendant in this case cannot circumvent the

purpose of the Act by framing the issue in different terms.

Therefore, defendant’s claim is barred by res judicata.

VII. New Supreme Court Rules

	In an effort to ensure the highest degree of legal competency

in capital cases, we have formulated a comprehensive set of rules

to govern death penalty cases. See 188 Ill. 2d Rs. 3.8, 43, 411,

412, 416, 417, 701, 714.

	In April 1999, this court appointed a 17-member special

committee on capital cases to assess the way the death penalty

system is administered in Illinois. This committee was created as a

forum for debate and the dissemination of constructive and critical

comment regarding our criminal justice process. In re Special Supreme Court Committee on Capital Cases, M.R. 15833 (April

6, 1999).

	The committee’s goal was to research and identify the best

procedures for enhancing the administration of justice in our capital

cases. In October 1999, the committee issued its first report on its

findings. It further conducted public hearings in Springfield and

Chicago. Following the public hearings, the committee issued a

new supplemental report containing its findings and recommendations. Central to its findings was a recommendation to

establish a Capital Litigation Trial Bar. 

	The recommendation to establish the Capital Litigation Trial

Bar was based on the committee members’ unanimous finding that

“reasonable, minimum standards for training and experience,

consistently applied as a condition of trial bar admission, are the

only way to ensure significant, systemwide improvement in the

quality of advocacy in capital trials.” 188 Ill. 2d R. 714, Committee

Comments, at cxiii. The Capital Litigation Trial Bar was created to

ensure that capital defendants receive fair and impartial trials and

sentencing hearings, to minimize the occurrence of error to the

maximum extent feasible, and to identify and correct with due

promptness any error that may occur. 188 Ill. 2d R. 416 &

Committee Comments, at lxxii.

	Under the new rules, all defense counsel and assistant

prosecutors appearing as lead or co-counsel in capital cases must

be members of the Capital Litigation Trial Bar. Attorneys who fail

to meet the specific requirements may not appear in capital cases

without receiving a waiver directly from our court. 188 Ill. 2d R.

714(d). Further, indigent defendants are entitled to be represented

by two attorneys with the requisite qualifications. 188 Ill. 2d R.

416(d). Finally, mandatory educational programs are required for

trial judges who may be called to preside over capital cases. 188 Ill.

2d R. 43.

	Additionally, the new rules extend criminal discovery rules to

capital sentencing hearings (188 Ill. 2d R. 411); impose on the

State the duty to make a good-faith effort to identify material or

information which tends to negate the guilt of the accused or

reduce his punishment (188 Ill. 2d R. 412(c)); require the State to

give notice of its intention to seek the death penalty (188 Ill. 2d R.

416(c)); authorize discovery depositions (188 Ill. 2d R. 416(e));

mandate case management conferences (188 Ill. 2d R. 416(f)); and

impose new pretrial disclosure rules with respect to DNA evidence

(188 Ill. 2d R. 417). The new rules also clarify the duty of

prosecuting attorneys. Specifically, they state that “the duty of a

public prosecutor or other government lawyer is to seek justice,

not merely to convict.” 188 Ill. 2d R. 3.8(a).

	Although the court unanimously adopted the new rules, the

dissents and majority disagree as to their effect on capital cases

which were pending before this court at the time of adoption.  The

Chief

Justice Harrison, hin his dissent, maintains that this court should

automatically vacate all capital convictions that were obtained

without the benefit of the new rules. To support this position, the

dissentChief Justice  makes two arguments. First, the dissent contends that without

the new rules, “no capital conviction or sentence can be deemed

reliable.” Slip op. at 314 (Harrison, C.J., dissenting); People v. Hickey, No. 87286, slip op. at 36 (September 27, 2001) (Harrison, C.J., dissenting). Further, because the new rules impose stringent

standards on attorneys and judges regarding their qualification to

participate in capital trials, the dissentChief Justice finds it untenable that

a defendant, such as the one in this case, should be allowed to

represent himself. Thus, the dissentChief Justice suggests (as does jJustice

Kilbride in his dissent) that in capital cases, pursuant to the new

rules, this court should reject a defendant’s right to self-

representation because a pro se defendant can never meet the rigid standards set out in the rules. We disagree as to both points.

	The dissentChief Justice would create a bright-line rule to vacate all

convictions and sentences decided without the benefit of the new

rules. Slip op. at 314 (Harrison, C.J., dissenting); People v. Hickey, No. 87286, slip op. at 36 (September 27, 2001) (Harrison, C.J.,

dissenting). Such a rule would ignore the multitude of cases that

were tried by competent attorneys, adjudicated by experienced

judges and carefully reviewed on the merits by this court.

	Further, the dissentChief Justice’s conclusion that death cases tried

prior to our adoption of the new rules isare per se unreliable presupposes that the new rules were intended to set a

constitutional standard rather than a procedure to enhance the

quality of justice in future capital cases. The new rules were

established to maximize fairness to the defendant, compliance with

ethical responsibilities and the proper administration of justice. 188

Ill. 2d R. 701, Committee Comments, at cvi. To accept the dissentChief

Justice’s conclusion, we would have to assume that in all previous

cases the performance of the trial attorneys was constitutionally

inadequate regardless of what the record might reveal. This

assumption would be inappropriate. Prior to the adoption of these rules, it was recognized that capital cases were frequently tried by

competent and professional attorneys. Findings and

Recommendations of the Special Supreme Court Committee on

Capital Cases 7, 9, 14, 20, 23 (October 28, 1999).

	In adopting the new rules we never intimated that all cases tried prior to the new rules were lacking in reliability. The new

rules emerged because we became cognizant of the fact that the

outcome of some, not all, cases was flawed. We assigned lack of experience and training as the cause of those flaws. Fair and

accurate results in a capital trial are the result of quality advocacy

by both the prosecution and the defense. 188 Ill. 2d R. 714,

Committee Comments, at cxiii. Thus, the new rules were designed

to minimize the possibility of inaccuracy or unfairness occurring in capital cases.

	Nevertheless, the committee recognized that capital cases tried

without the benefit of the new rules were frequently tried by

competent defense and prosecuting attorneys. Specifically, in

formulating the new rules, the committee members agreed that

assistant State’s Attorneys in Illinois perform in a fair and

professional manner in the “overwhelming majority” of capital

cases. Findings and Recommendations of the Special Supreme

Court Committee on Capital Cases 7 (October 28, 1999). The

committee members further noted that, on the whole, prosecutors

try capital cases “fairly and competently.” Findings and

Recommendations of the Special Supreme Court Committee on

Capital Cases 9 (October 28, 1999).

	In addition, the committee members found that the “vast

majority of private attorneys meet their obligation to provide

competent assistance of counsel.” Findings and Recommendations

of the Special Supreme Court Committee on Capital Cases 14

(October 28, 1999). Also, the consensus of the committee was that

the quality of representation provided by public defenders in capital

cases is “generally very good.” In fact, committee members agreed

that capital case representation provided by the larger public

defender offices is “excellent,” with Cook County and some other

jurisdictions having persons or units specifically assigned to capital

defense. Findings and Recommendations of the Special Supreme

Court Committee on Capital Cases 20 (October 28, 1999). Applying the Capital Litigation Trial Bar requirements to

prosecutors and defense attorneys will help to assure that these

standards are met in all capital cases.

	This court has always carefully evaluated capital cases on a

case-by-case basis with an overriding goal towards adherence to

the law, fairness and accuracy. Our responsibility to review cases

in this manner is unchanged by the new rules. It was never the

intent of this court that the new rules be applied retroactively.

Following the committee’s recommendations and findings, this

court announced that most of the new rules governing capital trials

would take immediate effect on March 1, 2001. See 188 Ill. 2d Rs.

3.8, 43, 714. These rules were to go into effect “except when ***

the application of the new rules in a particular case pending at the

time *** would not be feasible or would work an injustice.” 188

Ill. 2d R. 416; see also 188 Ill. 2d Rs. 411, 412, 417. The only rules

that did not immediately take effect were those that required all

attorneys in death penalty cases to be certified as a members of the

Capital Litigation Trial Bar and those that required judges to have

attended a Capital Litigation Seminar. We set an effective date of

March 1, 2002, for those rules. 188 Ill. 2d Rs. 43, 701. We note

that all of the new rules, and their respective effective dates, were

created in an effort to improve the quality of advocacy in capital cases (188 Ill. 2d R. 714, Committee Comments, at cxiii), not as a

basis to vacate all cases decided prior to their effective date.

	The dissents further argues that, pursuant to the rules,

defendant should not have been allowed to represent himself. The

dissentChief Justice writes: “[Defendant] did not have two competent

lawyers to represent him. He did not have even one competent

attorney to represent him.” Slip op. at 314 (Harrison, C.J.,

dissenting). The dissentChief Justice concludes that this court “must reject

the fiction that this defendant was competent to represent himself.”

Slip op. at 314 (Harrison, C.J., dissenting). Under the new rules,

according to the dissentChief Justice, a capital defendant “never will be”

competent to represent himself. Slip op. at 314 (Harrison C.J.,

dissenting). This assertion raises the important issue of whether the

new rules create a standard that overrules a defendant’s

constitutional right to self-representation. Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). Slip op. at

35 (Kilbride, J., dissenting).

	In Faretta, the Supreme Court held that the sixth amendment right to counsel (U.S. Const., amend. VI) implicitly provides for

the right to self-representation in criminal proceedings and that a

criminal defendant has a constitutional right to refuse state-

provided counsel and proceed without representation if he

voluntarily and intelligently elects to do so. Faretta, 422 U.S. at 820-21, 45 L. Ed. 2d at 573-74, 95 S. Ct. at 2533-34.

	The Court further explained:

		“The language and spirit of the Sixth Amendment

contemplate that counsel, like the other defense tools

guaranteed by the Amendment, shall be an aid to a willing

defendant–not an organ of the State interposed between

an unwilling defendant and his right to defend himself

personally. To thrust counsel upon the accused, against his

considered wish, thus violates the logic of the

Amendment.” Faretta, 422 U.S. at 820, 45 L. Ed. 2d at 573, 95 S. Ct. at 2533.

	The Illinois Constitution has a similar provision that

guarantees an accused the right to self-representation in criminal

proceedings. Ill. Const. 1970, art. I, §8. In People v. Coleman, 168 Ill. 2d 509 (1995), this court decided whether the demands of

increased reliability in capital trials required that the accused be

represented by counsel notwithstanding his own desire to proceed pro se. Citing to Faretta with approval, we expressly rejected the defendant’s argument and held that the heightened need for

reliability in capital cases does not justify forcing the accused to

accept representation by counsel. Coleman, 168 Ill. 2d at 545.

	The dissents would have us depart from this established

precedent in light of the new rules. We decline to do so. The new

rules are not intended to overrule well-established constitutional

guarantees. Instead, the new rules are intended to provide a

mechanism to achieve fair and accurate results in capital trials.

They are rules of procedure. They do not set a new constitutional

standard.

	Despite the degree to which a trial judge may question the

wisdom of a defendant who exercises his constitutional right to

represent himself during a capital trial, the new rules do not

eradicate that right once a defendant makes a voluntary and

intelligent decision to proceed without assistance of counsel. In this

case, defendant chose to represent himself at all stages of the the

trial proceedings. He made that decision voluntarily and

intelligently. We cannot ignore a defendant’s established

constitutional right to represent himself. Therefore, we decline to

hold that this right is overruled by the creation of the new rules.

	We share the dissents’s concern that innocent people may be

placed on death row when fairness and accuracy yields to poor

training and lack of experience. The new rules were established to

improve the overall reliability of capital trials and lessen the

possibility of the occurrence of errors. The most important

safeguard of the fairness and accuracy of capital trials is the

competence, professionalism, and integrity of the attorneys who try

those cases. 188 Ill. 2d R. 714, Committee Comments, at cxiii. We

emphasize, however, that the new rules create neither a

constitutional standard that overrules established constitutional

rights nor invalidate prior decisions upholding those rights.

	In affirming defendant’s conviction, we have found that

defendant did not suffer a deprivation of federal or state

constitutional rights despite the fact that he represented himself

during all phases of the trial. Other than noting that defendant

exerted his constitutional right to represent himself, the dissents does

not point to any deprivation of either federal or state constitutional

rights in defendant’s trial, conviction or sentence that would

mandate post-conviction relief. Thus, defendant is not entitled to

post-conviction relief.

CONCLUSION

	For the reasons stated, the judgment of the circuit court of

Cook County dismissing defendant’s post-conviction petition

without an evidentiary hearing is affirmed. Additionally, we affirm

the dismissal of defendant’s pro se petition for post-judgment relief (735 ILCS 5/2–1401 (West 1998)), as it raises the same issues as

defendant’s post-conviction petition, is also affirmed.

	We hereby direct the clerk of this court to enter an order

setting Wednesday, January 16, 2002, as the date on which the

sentence of death entered by the circuit court of Cook County is to

be carried out. The defendant shall be executed in a manner

provided by law (725 ILCS 5/119–5 (West 2000)). The clerk of

this court shall send a certified copy of the mandate in this case to

the Director of Corrections, to the warden of Tamms Correctional

Center, and to the warden of the institution where defendant is

now confined.

Affirmed.

	JUSTICE FREEMAN, specially concurring:

	I agree with the court in all respects and join fully in the

opinion affirming the orders of the circuit court. I write separately

only to express my views on a portion of Chief Justice Harrison’s

dissent to which the court today does not respond.

	I note that the Chief Justice takes the same position here that

he did in People v. Hickey, No. 87286 (September 27, 2001), i.e., that the new supreme court rules addressing capital litigation serve

to provide relief to a defendant even if no other basis exists to

reverse the case. Having set forth the legal reasoning for his

position, the Chief Justice states:

		“If our experience with capital cases over the past few

years has taught us anything, it is that we must view

everything that occurs at capital trials with heightened

skepticism. When we surrender that skepticism, disaster

follows. Just ask Ronald Jones, Joseph Burrows, or

Anthony Porter. We found ways to uphold each of their

convictions and sentences when their cases first came

before us, only to discover later that they were actually

innocent.” Slip op. at 314 (Harrison, C.J., dissenting).

In my view, these remarks need to be addressed because they

unfortunately call into question the integrity of the court.

	The names listed in the dissent are some, but not all, of the

men released from death row in Illinois when new evidence later

was uncovered which cast doubt on the guilty verdicts rendered in

each of their capital trials. I specifically take issue with the Chief

Justice’s comment that “we found ways” to uphold the convictions

in these cases. When a fellow justice states that his court, as a

body, has “found ways” to uphold convictions, that justice is saying

his colleagues in these cases intentionally overlooked, got around,

put to one side, ignored, or otherwise dismissed out of hand,

something important that should have caused a reversal, whether

that something was a legal argument or exculpatory evidence. The

Chief Justice’s remark, even if nothing more than rhetorical

flourish, reaches well beyond mere disagreement with the legal

reasoning of the other members of the court. Rather, it constitutes

a serious charge of unprofessional and unethical judicial conduct.

Because the Chief Justice’s statement is untrue and impugns the

integrity of the court, I wish to comment on the facts underlying

the cases of the men noted in the dissent.

	Although this court affirmed Ronald Jones’ convictions and

sentence on direct review, what occurred in this court after that

initial appeal deserves mention. After the completion of the direct

review proceedings, a vaginal swab containing DNA evidence was

discovered. This evidence was not presented at defendant’s initial

trial and was therefore not a part of the record on direct review.

During the ensuing post-conviction proceedings, Jones’ attorneys

unsuccessfully argued in the circuit court of Cook County that the

vaginal swab containing the newly discovered DNA evidence

should be tested. Jones’ lawyers, however, won a victory in this

court when we directed the circuit court to release the evidence to

Jones’ attorney for the purpose of conducting DNA testing. After

the testing was completed, it was revealed that Jones could not

have been the perpetrator. This court then issued the following

order:

			“The order of the Circuit Court of Cook County

denying the petition for post-conviction relief is vacated.

This cause is remanded to the circuit court with directions

to allow defendant’s petition for post-conviction relief, vacate defendant’s conviction and grant defendant a new

trial.”

At the subsequent proceedings on remand, the State dismissed the

charges against Jones in light of the DNA evidence. In view of

these facts, it seems incredible to me that any member of this court

could state that this court “found ways” to uphold the convictions

in this case.

	With respect to Joseph Burrows, this court affirmed his

convictions and death sentence on direct review in 1992. People v. Burrows, 148 Ill. 2d 196 (1992). After the completion of the direct review proceedings, Burrows filed a petition for post-conviction

relief in which he alleged that, subsequent to his trial, evidence had

come to light that the State’s two principal witnesses against him

had committed perjury, and that one of those witnesses had later

admitted to being the killer. The circuit court granted defendant’s

post-conviction petition by vacating the convictions and ordering

a new trial. The State appealed directly to this court, asking that

we reverse the order of the circuit court and reinstate the

convictions and death sentence. We rejected the State’s argument

and upheld the trial court’s grant of a new trial. See People v. Burrows, 172 Ill. 2d 169 (1996) (Burrows II). I note that the trial court’s decision to vacate the prior convictions was based largely

on this court’s opinion in People v. Washington, 171 Ill. 2d 475 (1996), in which we recognized that a claim of newly discovered

evidence of actual innocence presents a constitutional question

cognizable under the Post-Conviction Hearing Act. As in the Jones

case, the evidence that exonerated Burrows was not available

during the original trial. Nevertheless, this court did not hesitate to

affirm the circuit court’s order vacating the convictions when that

evidence was brought to light.

	Finally, with respect to the case of Anthony Porter, I

acknowledge that this court upheld Porter’s convictions and death

sentence both on direct and collateral review. Indeed, the Chief

Justice joined fully in the court’s opinion affirming the denial of

post-conviction relief. See People v. Porter, 164 Ill. 2d 400 (1995). This court did, however, later order Porter’s execution stayed in

order to review claims that Porter was mentally retarded and that,

as a result, he lacked the mental capacity to be executed. During the period of the stay, new evidence came to light which was later

used to exonerate him. Nothing in the opinions of the court or in

the court’s handling of the case supports the assertion raised by the

Chief Justice that this court, he included, somehow “found ways”

to uphold the Porter convictions.

	The Chief Justice’s deeply held position against the death

penalty does not give him the license to ignore the facts. The death

penalty is a highly charged, emotional area of the law that is very

much in the public consciousness. Honorable people can and do

disagree over whether the state should have a death penalty.

However, by misrepresenting the past actions of this court, the

Chief Justice does little more than fan the flames of sensationalism

and denigrate this court in the eyes of the public.

	JUSTICE McMORROW joins in this special concurrence.

	CHIEF JUSTICE HARRISON, dissenting:

	During the pendency of Simpson’s appeal, our court adopted

a comprehensive set of new rules governing the conduct of cases

in which the State is seeking the death penalty. One of the most

significant features of the new rules is their inclusion of rigorous

standards governing the qualifications of individuals eligible to try

capital cases.

	Recognizing the indispensable role of competent trial counsel

where the State is seeking the death penalty, our court has

determined that such cases may only be handled by those attorneys

who possess extensive experience and specialized training in the

field. With limited exceptions, only attorneys who have become

members of the Capital Litigation Trial Bar may appear as lead or

co-counsel in capital cases. That restriction applies to both counsel

for the State and counsel for the defense. 188 Ill. 2d Rs. 416(d),

701(b).

	The eligibility standards for membership in the Capital

Litigation Trial Bar are substantial. Lead counsel, for example,

must have at leave five years of criminal litigation experience; have

prior experience as lead or co-counsel in no fewer than eight felony

jury trials which were tried to completion, at least two of which were murder prosecutions; and have complete certain specified

training requirements. The qualifications for co-counsel are

comparable. 188 Ill. 2d R. 714(b). Attorneys who fail to meet the

specified requirements may not appear in capital cases without

receiving a waiver directly from our court (188 Ill. 2d R. 714(d)),

and indigent defendants are entitled to representation by not one

but two attorneys with the requisite qualifications (188 Ill. 2d R.

416(d).

	Now that our court has adopted these stringent new rules, I

fail to see how it can continue to sanction proceedings such as the

one before us today. This defendant certainly did not have two

competent lawyers to represent him. He did not have even one

competent attorney to represent him. The trial court permitted him

to proceeded pro se, despite serious questions as to the soundness of his judgment and his ability to reason.

	Promulgation of the new rules is equivalent to a determination

by this court that even a lawyer is not competent to handle a death

case unless he has special training and experience. To be consistent

with that determination, the court must reject the fiction that this

defendant was competent to represent himself. He was not. Under

the standards we have now imposed, he never will be. No

legitimate purpose will be served by pretending otherwise. If our

experience with capital cases over the past few years has taught us

anything, it is that we must view everything that occurs at capital

trials with heightened skepticism. When we surrender that

skepticism, disaster follows. Just ask Ronald Jones, Joseph

Burrows or Anthony Porter. We found ways to uphold each of

their convictions and sentences when their cases first came before

us, only to discover later that they were actually innocent.

	The procedures contained in the new rules we have adopted

may not be perfect. They may not eliminate all of the constitutional

defects in the present death penalty law. Without those rules,

however, no capital conviction or sentence can be deemed reliable. People v. Hickey, No. 87286 (September 1327, 2001), slip op. at 36 (September 27, 2001)  (Harrison, C.J., dissenting). Because Simpson was tried, convicted

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

and sentence should therefore be vacated, and the cause should be

remanded to the circuit court for a new trial.

	Even if Simpson were not entitled to avail himself of the new

rules, his sentence of death could not stand. 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). Absent the new rules,

there is no basis for altering that conclusion. At a minimum,

Simpson’s sentence of death should therefore be vacated, and the

cause should be remanded to the circuit court for imposition of a

sentence of imprisonment. 720 ILCS 5/9–1(j) (West 1992).

	JUSTICE KILBRIDE, also dissenting:

	For the reasons set forth in my dissent in People v. Hickey, No. 87286, slip op. at 39-43 (September 27, 2001), I agree with

Chief Justice Harrison’s conclusion that the new supreme court

rules governing capital cases should be applied retroactively. At a

minimum, I again state that the issue of retroactivity should have

been more fully addressed by this court following the submission

of supplemental briefs.

	The majority concludes in this case that Faretta conclusively settles the issue of self-representation in all criminal cases,

including capital cases. Slip op. at 28. I disagree and contend that Faretta remains an open question with respect to capital cases. Not only was Faretta decided at a time when the United States Supreme Court considered the death penalty unconstitutional, but

the Court has recognized that the right to self-representation is not

absolute. See Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 161, 145 L. Ed. 2d 597, 607, 120 S. Ct. 684, 691 (2000); see also see also United States v. Farhad, 190 F.3d 1097, 1101-09 (9th Cir. 1999) (Reinhardt, J., specially

concurring) (criticizing Faretta).

	In Martinez, the Court characterized the Faretta rationale as a balance between the right of self-representation and competing

governmental interests. Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. In considering those interests, Martinez stated that “[e]ven at the trial level, *** the government’s interest in ensuring the integrity and efficiency of the trial at times

outweighs the defendant’s interest in acting as his own lawyer.”

(Emphasis added.) Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691.

	Equally important, Faretta does not trump the mandatory minimum requirements of our capital rules because the “status of

the accused defendant, who retains a presumption of innocence

throughout the trial process, changes dramatically when a jury

returns a guilty verdict.” Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. In a capital case, the death penalty phase

is sought only after the return of a guilty verdict. Thus, Martinez recognizes that the Faretta right of self-representation may well yield to other governmental interests after a guilty verdict,

including the same interests espoused by our rules to ensure

reliability and fundamental fairness in capital cases. 188 Ill. 2d Rs.

3.8, 43, 411, 412, 416, 417, 701, 714. Accordingly, in view of

Martinez, we should examine carefully the right to self- representation during the aggravation-mitigation phase. See also E.

Rieder, Note, The Right of Self-Representation in the Capital Case, 85 Colum. L. Rev. 130, 152-54 (1985).

	In his concurring opinion in Martinez, Justice Breyer cites a Ninth Circuit judge’s observation that the right of self-

representation frequently conflicts squarely with the constitutional

right to a fair trial. Martinez, 528 U.S. at 164, 145 L. Ed. 2d at 608-09, 120 S. Ct. at 692 (Breyer, J., concurring), citing Farhad, 190 F.3d at 1101-09 (Reinhardt, J., specially concurring).

Specifically, Justice Breyer notes Judge Reinhardt’s observation

that “the Court has never directly addressed the argument of the

Faretta dissenters [Justice Blackmun, joined by Chief Justice Burger and Justice Rehnquist] that the Sixth Amendment right to

self-representation would lead to unfair trials and unjust

convictions.” Farhad, 190 F.3d at 1101 (Breyer, J., concurring).

	In Wheat v. United States, 486 U.S. 153, 160, 100 L. Ed. 2d 140, 149,  108 S. Ct. 1692, 1697-98, 100 L. Ed. 2d 140, 149 (1988), the Supreme Court

clarified that, under certain circumstances, individual sixth

amendment rights must yield to society’s interests in assuring fair

trials. The Supreme Court rejected a defendant’s attempt to waive a sixth amendment right because “the institutional interest in the

rendition of just verdicts in criminal cases may be jeopardized.”

Wheat, 486 U.S. at 160, 100 L. Ed. 2d at 149, 108 S. Ct. at 1698.

	Hence, Wheat raises the open question of the extent of the conditional nature of the right of self-representation. For example,

this court has an overriding obligation to protect a defendant’s

rights. That obligation almost certainly goes unfulfilled when, as is

often the case, a pro se defendant presents a lacking and inept defense. See, e.g., Powell v. Alabama, 287 U.S. 45, 69, 77 L. Ed. 158, 170-01, 53 S. Ct. 55, 64 (1932) (discussing the typical quality

of self-representation). Fundamental fairness prevents a court from

imposing the ultimate sentence of death when the court lacks the

ability to discern exculpatory or mitigating facts due to inadequate

self-representation. Without expressing an opinion on the propriety

of the death penalty, I believe that, at a bare minimum, justice

requires that we ensure that capital punishment is imposed only

under appropriate circumstances.

	This case represents the exact kind of capital defendant whom

we should not allow to represent himself. Defendant suffered from

frequent and severe headaches, dizziness, and fainting spells. After

his conviction, it came to light that defendant has a lodged bullet

in his head. It was similarly learned that defendant suffered long-

term psychological conditions and deficits.

	We need not conclude that defendant’s state of mind allowed

for a knowing, voluntary, and intelligent waiver of his

constitutional right to the effective assistance of counsel.

Defendant’s failure to present existing mitigating evidence during

the sentencing phase amply demonstrates the potential

destructiveness of self-representation. Despite strong admonitions

from the trial court, defendant capriciously effected his own

inevitable death sentence.

	Faretta allowed the waiver of counsel conditioned upon a trial court’s determination that a defendant’s waiver is made with

“

`

 ‘eyes open.'’ ” Faretta v. California, 422 U.S. at806, 835, 45 L. Ed. 2d 562, 582, 95 S S. Ct. 2545, 2541 (1975), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 274, 63 S. Ct. 236, 242 (19742). Toward that end, we must not

allow capital defendants to undertake self-representation in conflict with this court’s constitutional duties to assure a fair trial for every

defendant. See Farhad, 190 F.3d at 1102 (Reinhardt, J., specially concurring). In short, I again urge that our new mandatory rules

eliminate the right of self-representation in a capital case.

	For these reasons, I respectfully dissent. I express no opinion

regarding the propriety of the death penalty, nor do I express any

opinion in relation to the other issues raised by Chief Justice

Harrison’s dissent in People v. Bull, 185 Ill. 2d 179 (1998).