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 circuitcourt of Cook County, dismissing his amended post-convictionpetition and his petition for post-judgment relief. Defendant wassentenced 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 andmurder of Barbara Lindich at the Fairway Food store in Glenwood,Illinois. This court has previously set forth the evidence presentedat defendant's trial in our opinion on defendant's direct appeal.People v. Simpson, 172 Ill. 2d 117 (1996). For this reason, we willdiscuss only the facts that are necessary to the disposition of theissues raised in this appeal.

On May 22, 1992, at approximately 10 a.m., defendant andCarolyn LaGrone entered the Fairway Food store and robbed itwhile Lurlarn Young waited in the car. As defendant emptied thecash register, Barbara Lindich, a store customer, walked up behindLaGrone and peered over her shoulder. Defendant turned and shotLindich, who later died as a result of the gunshot wound.Defendant then checked the safe, left the store with LaGrone andwent to the car where Young awaited.

LaGrone was arrested three days later and gave a statement tothe police that detailed the offense as well as Young anddefendant's involvement. Defendant was thereafter arrested andplaced in a lineup. He was identified by eyewitnesses, includingemployees at the Fairway Food store, as the man they saw rob thestore and shoot Lindich.

At trial, three store employees identified defendant as the manwho was behind the service desk with the gun. Forensic testingexperts stated that the cartridge case recovered from the scene wasfired from one of the pistols recovered from defendant's storagelocker after defendant was arrested.

During all phases of the pretrial and trial proceedings,defendant represented himself with the aid of a public defenderacting as standby counsel. Defendant called several witnesses whowere present in the store at the time of the robbery to testify on hisbehalf. No defense witnesses contradicted the State's witnesses'accounts of what occurred in the store. Defendant also calledcodefendant Young to testify but she invoked her fifth amendmentright and did not testify. At defendant's request, and against thetrial court's advice, custodial statements of LaGrone and Youngwere published to the jury.

At the close of the evidence, the jury returned a verdictfinding defendant guilty of armed robbery and first degree murderof Lindich. The jury found defendant eligible for death on thebasis of the murder-in-the-course-of-felony aggravating factor(720 ILCS 5/9-1(b)(6) (West 1992)) and the matter proceeded tothe second stage of sentencing. Defendant continued to representhimself during the sentencing phase.

The trial court inquired whether defendant intended to call anywitnesses on his behalf in mitigation and defendant responded thathe wanted to call Judges James Bailey, Richard Fitzgerald andLloyd Van Duzen as character witnesses. The trial court instructeddefendant's standby counsel to investigate the matter and find outwhere the judges were currently located and if they could recollectknowing defendant.

At the next court date, the trial court provided defendant withthree transcripts defendant had previously requested. The trialjudge further informed defendant that he had contacted JudgesFitzgerald and Bailey and that neither judge remembereddefendant. However, the trial court also informed defendant thatboth judges would be willing to come to court.

Defendant informed the trial court that since the judges couldnot remember him, he wanted to go to the law library and preparecertain motions. The trial court admonished defendant that heshould be more concerned because the jury had not made a finaldetermination as to defendant's sentence. In response, defendantcountered that if the worse case scenario occurred and he wassentenced to death, that sentence would allow him to "bypass theIllinois Appellate Court" and go "directly to the Illinois SupremeCourt." The trial court stated, "[Y]ou have your own strategy andI have told you this before, but I still wouldn't give up on thejury." Defendant acknowledged the statement but again affirmedhis decision: "I understand, your Honor, but the law indicates ifthat does occur, the matter goes directly to the Supreme Court."

As a last attempt to convince defendant to reconsider hisstrategy, the trial judge informed defendant that if he were indefendant's position he would vigorously present mitigationevidence to the jury so that it would be inclined not to sentencedefendant to death. Defendant asked if he could have some timeto contact the judges himself. When court resumed, defendantinformed the trial court that after speaking to Judge Bailey, thejudge could not recall defendant. The judge again admonisheddefendant that he should not hinge his strategy on post-trialmotions or on an appeal. He also explained to defendant that if oneperson on the jury panel disagreed with the imposition of death,defendant would not be sentenced to death. Despite the trialcourt's admonishments, however, defendant decided not to presentany mitigation evidence.

At the conclusion of the second stage of the sentencinghearing, the jury found no mitigating factors to precludeimposition of the death penalty. The trial court appointed counselto represent defendant on his post-trial motion. In preparation forthe post-trial hearing, counsel requested defendant's medical filefrom the Pontiac Correctional Center, which showed thatdefendant suffered from headaches, dizziness, fainting spells, andbad eyesight and had survived a gunshot wound to the head froma prior incident. At the post-trial hearing, counsel argued thatdefendant was not competent to represent himself during either thetrial or the sentencing phase. The trial court denied the post-trialmotion and sentenced defendant to death for the murder and 30years' imprisonment for the armed robbery.

On direct appeal, this court affirmed defendant's convictionand sentence. People v. Simpson, 172 Ill. 2d 117 (1996). TheUnited 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-convictionrelief and a motion to appoint counsel. Counsel filed a motion toproduce handwritten statements from the Glenwood policedepartment. The trial court ordered the Glenwood policedepartment to produce the requested documents. After recordswere produced, counsel filed a motion to compel completeproduction of the documents and a motion to take depositions. Thetrial court denied the motions.

Prior to the initial court date on defendant's post-convictionpetition, the State filed a motion for clarification of defendant'scompetence pursuant to People v. Owens, 139 Ill. 2d 351 (1990).The State requested that the trial court determine if defendant hadraised a bona fide issue as to his competence. The trial courtdetermined that defendant's condition had not deteriorated andthat he was coherent and able to understand the proceedings.

Thereafter, the trial court dismissed defendant's post-conviction petition without an evidentiary hearing. Defendant thenfiled 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. Weconsolidated both matters for purposes of this appeal. We affirmthe trial court's dismissal of defendant's post-conviction and thedismissal of defendant's petition for post-judgment relief for thefollowing reasons.

ANALYSIS

In a post-conviction proceeding, the trial court does notredetermine a defendant's innocence or guilt, but instead examinesconstitutional issues which escaped earlier review. See People v.Evans, 186 Ill. 2d 83, 89 (1999). To be entitled to post-convictionrelief under the Post-Conviction Hearing Act (Act) (725 ILCS5/122-1 through 122-7 (West 1998)), a defendant mustdemonstrate a substantial deprivation of federal or stateconstitutional rights in the proceedings that produced thechallenged conviction or sentence. People v. Morgan, 187 Ill. 2d500, 528 (1999).

A basic tenet of the Act is that the scope of post-convictionrelief is limited by considerations of waiver and res judicata "toconstitutional matters which have not been, and could not havebeen, 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 reviewingcourt generally will not be considered in a post-convictionproceeding. People v. West, 187 Ill. 2d 418, 425 (1999).

At the second stage of a post-conviction proceeding, as in thepresent case, the circuit court appoints counsel to represent anindigent defendant and counsel may file an amended post-conviction petition. See 725 ILCS 5/122-4 (West 1998); Peoplev. Gaultney, 174 Ill. 2d 410, 418 (1996). The State may then filea motion to dismiss or answer the defendant's post-convictionpetition. 725 ILCS 5/122-5 (West 1998). A defendant is notentitled to an evidentiary hearing on his post-conviction petitionas a matter of right. People v. Whitehead, 169 Ill. 2d 355, 370-71(1996).

An evidentiary hearing on a post-conviction petition iswarranted only where the allegations of the petition, supported bythe trial record or accompanying affidavits where appropriate,make a substantial showing that a defendant's constitutional rightshave been violated. Morgan, 187 Ill. 2d at 528; People v. Towns,182 Ill. 2d 491, 503 (1998). All well-pleaded facts in the petitionand accompanying affidavits, if any, are taken as true for thepurpose 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 thesufficiency of allegations in a post-conviction petition de novo.People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). With thesebasic 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 thatthe trial court erred during the post-conviction proceeding when itfailed to grant defendant's discovery request, improperly madecertain factual and credibility determinations, and ruled thatdefendant was competent to proceed with the post-convictionprocess.

Defendant maintains that the post-conviction court erred indenying his request for the discovery depositions from fourwitnesses who wrote out information after the incident at therequest of one of the police officers, Sergeant DiMare. Defendantalleges that there exists a conflict between DiMare's trialtestimony as to what he told the four witnesses to write down afterthe 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 thempencil and paper and requested that they write out notes about theincident. DiMare testified that he gave all of the witnesses pencilsand paper so that they could write out notes about the incident. Inan affidavit DiMare prepared for the post-conviction proceeding,he stated that the statements he received contained generalinformation about the crime, which he incorporated into the policereport. He further stated that the notes were destroyed once thepolice report was completed. Defendant argues the trial courtshould have ordered discovery depositions from the four witnessesin order to ascertain what their statements actually contained.

Although neither the civil nor the criminal discovery rulesapply to post-conviction proceedings, a circuit court nonethelesshas 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). Acircuit court should allow discovery only if the moving party hasdemonstrated "good cause" for the discovery request. Fair, 193 Ill.2d at 264-65. A discovery request will be denied where it amountsto 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 ofdiscretion. Fair, 193 Ill. 2d at 265.

Upon review, we find that the trial court did not abuse itsdiscretion in denying defendant's discovery requests. Despitedefendant's contention to the contrary, the conflict betweenDiMare's testimony and his affidavit is not apparent from therecord. The witnesses testified that DiMare asked them to writedown information about the incident and that he provided pencilsand paper for them to do so. Similarly, DiMare testified that hetold the witnesses to write down their names and addresses "andif they had anything that they want to keep a note of they could."In his affidavit, DiMare stated, "I asked the witnesses to write theirnames, addresses, telephone number, where they were in the storeat the time of the shooting, and other such information, on a pieceof paper." There is no inconsistency between these two statements,nor has defendant demonstrated that there existed a good cause forthe trial court to order discovery depositions of the four witnesses.As such, the trial court did not abuse its discretion in denying therequest.

Defendant next maintains that the circuit court incorrectlymade findings of fact and determinations of credibility regardingBrady material and the testimony of LaGrone. We find defendant'sargument as to both contentions unpersuasive.

In his post-conviction petition, defendant argued that DiMaredeliberately withheld statements that were given to him by fourwitnesses. Defendant argues that in reaching its determination todismiss defendant's petition, the trial court made improper factualand credibility findings. The record shows, however, that the trialcourt simply restated the contents of DiMare's affidavit.

We note that in restating the contents of the affidavit, the trialcourt incorrectly used the term res judicata instead of waiver. Thiserror, however, is de minimus. It is clear from the trial court'sorder that the dismissal rested on the fact that the Brady violationcould have been brought up on direct appeal and was, therefore,waived. In reaching this conclusion, the trial court did not makeany factual or credibility determinations.

Defendant further contends that the trial court made factualfindings as to his allegation that LaGrone was instructed by theState to lie about her drug usage on the day of the arrest. The trialcourt noted that although defendant attached an affidavit from aninvestigator stating that LaGrone told him she was instructed tolie, defendant did not submit an affidavit from LaGrone herself.The trial court also noted that during the trial LaGrone wasextensively cross-examined about her drug use. She denied thatshe used drugs on the day of her arrest but admitted that she wasa drug user and was receiving treatment for her drug addition.Thus, the trial court properly concluded that defendant'sallegations lacked legal sufficiency.

Defendant's final argument concerns his competency toproceed with the post-conviction proceedings. The record showsthat upon the State's request, the trial court made an initialdetermination of whether a bona fide doubt existed as todefendant's competency. See People v. Owens, 139 Ill. 2d 351(1990). The trial judge decided the issue after hearing argumentsfrom the defendant, defendant's post-conviction counsel and theprosecutor. The trial court concluded,

"This court listened to the petitioner at length and heardthe various legal arguments he advanced as to why apsychiatric examination should not be ordered. This courtalso listened to petitioner's appointed counsel andarguments advanced by the assistant state's attorney. It isclear to this court that petitioner's condition had notdeteriorated and that he is coherent and able to understandthe proceedings."

A defendant is presumed to be fit to stand trial, to plead, andto be sentenced. 725 ILCS 5/104-10 (West 1998). A defendant isalso presumed to be fit at the time of post-conviction proceedings.Owens, 139 Ill. 2d at 362. When a bona fide doubt of adefendant's fitness to proceed with post-conviction proceedings israised, the court may order a psychological evaluation of thedefendant 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 adefendant's conduct, whether a bona fide doubt of fitness toproceed exists is a matter that lies within the discretion of thatcourt. People v. Johnson, 191 Ill. 2d 257, 269 (2000). A defendantis considered unfit to proceed with the post-conviction processwhen, because of a mental condition, he cannot communicate hisallegations of constitutional deprivations to counsel, thusfrustrating his entitlement, under the Act, to a reasonable level ofassistance. Johnson, 191 Ill. 2d at 269, citing Owens, 139 Ill. 2d at359-65. If a defendant is competent to communicate allegations ofconstitutional violations to counsel, that defendant is competent toparticipate in post-conviction proceedings.

Here, the circuit court found that no bona fide doubt ofdefendant's fitness existed. In fact, the trial court noted that thedifferences between defendant and his post-conviction counselcentered around legal matters and procedures. This conflict aboutlegal strategy does not rise to the level of mental incompetency ondefendant's part. The trial court further found that defendant'smental condition had not deteriorated since the last court date andthat defendant's post-conviction counsel was able to incorporatesome of defendant's pro se arguments into the amended petition.All of these factors together demonstrate that the trial court did notabuse its discretion in ruling that defendant was competent toproceed 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 falsetestimony to the grand jury, at hearing on defendant's motion tosuppress and at trial. Before reaching the merits of defendant'sperjury claims, however, we must address the State's contentionthat review of these claims was forfeited when defendant failed toraise them on direct appeal. A post-conviction petition is acollateral attack upon a prior conviction and sentence, not asubstitute for or an addendum to a direct appeal. People v. West,187 Ill. 2d 418 (1999). Consequently, any issues which could havebeen raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.

We agree with the State that defendant's claim as to DiMare'sgrand jury testimony, his testimony at the suppression hearing andhis testimony at trial were all contained in the record on directappeal. As such, each of these claims could have and should havebeen 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, ajurisdictional or absolute bar to review of procedurally defaultedclaims, but is rather a rule of administrative convenience. Peoplev. Whitehead, 169 Ill. 2d 355, 371 (1996); see also People v.Owens, 129 Ill. 2d 303, 317 (1989). Thus, the strict application ofwaiver will be relaxed " 'where fundamental fairness sorequires.' " Whitehead, 169 Ill. 2d at 371, quoting People v.Gaines, 105 Ill. 2d 79, 91 (1984). In order to satisfy therequirements of invoking the fundamental fairness exception, thedefendant must satisfy a "cause and prejudice" test by objectivelyshowing that defense counsel's efforts to raise the claim on directreview were impeded and that the error so infected the entire trialthat 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 tosatisfy either prong of this "cause and prejudice" test and hasfailed, thus, to show that the fundamental fairness exceptionshould be invoked.

It is well established that the State's knowing use of perjuredtestimony in order to obtain a criminal conviction constitutes aviolation of due process of law. People v. Olinger, 176 Ill. 2d 326,345 (1997). A conviction obtained through the knowing use ofperjured 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. 2d481, 492, 105 S. Ct. 3375, 3381-82 (1985). Where the State allowsfalse testimony to go uncorrected, the same principles apply.Olinger, 176 Ill. 2d at 345. However, the State's obligation tocorrect false testimony does not amount to an obligation toimpeach its witnesses with any and all evidence bearing upon theircredibility. People v. Pecoraro, 175 Ill. 2d 294, 312-14 (1997).

Contrary to defendant's claim, we find no evidence in therecord that DiMare committed perjury. Defendant first argues thatDiMare presented false testimony when he stated to the grand jurythat defendant used a gun to strike Katherine Koszut but that in hisreport he stated that he was told that defendant hit her with hisother hand. The record, however, fails to support this claim.DiMare's report states,

"Mrs. Koszut asked the black man if she could help himat which time he held up what she thought to be a paperwith a barrel of a gun sticking out, and said 'this is a stickup.' *** [T]he suspect then grabbed Mrs. Koszut by theback collar of her shirt and with his other hand struck herin the rear of the head driving her to the floor of theservice booth."

The statement that defendant hit Koszut "with his other hand"does not distinguish whether that was the hand that held the gunor not. Thus, this statement does not contradict DiMare'stestimony that defendant hit Koszut with the gun. Moreover, as theState points out, even if DiMare incorrectly testified that defendanthit Koszut with the gun, the aggravated battery and armed violencecounts stemming from this action were dismissed by the Stateprior to jury selection. Thus, because the jury never heard theallegedly false testimony and did not know of the armed violenceand aggravated battery counts, its verdict would not have beenaffected.

Defendant also claims that DiMare gave false testimony at thehearing on the motion to suppress when he testified that one of thewitnesses, Helen Gair, identified defendant at a lineup. The Statecounters that defendant fails to show the falsity of DiMare'sstatement at the suppression. However, Gair's affidavit, attachedto the petition, states that she could not positively identify anyoneat the police lineup and that she informed the police of this fact.

Nonetheless, defendant does not show that his conviction wasobtained through the knowing use of perjured testimony. Therecord shows that at trial Gair did not testify. Instead, defendantand the State agreed upon two stipulations concerning Gair'stestimony. Notably, there is no mention of any pretrialidentification or lack of identification in either of these twostipulations, nor is there any indication that DiMare testified attrial regarding the pretrial identification. The jury was never madeaware of any pretrial identification as far as Gair was concerned.Thus, assuming the falsity of DiMare's testimony at the motion tosuppress hearing, this testimony did not impact the jury's verdictat trial.

Defendant further claims that DiMare falsely testified as towhat he asked the four witnesses to write down at the time of theincident. Defendant argues that DiMare's testimony varies with hisstatement in the affidavit. As stated earlier in this opinion,however, there is no significant variance between DiMare'stestimony and his affidavit. The gist of DiMare's statement to thefour witnesses was the same at both the trial and in his affidavit.

Finally, defendant claims that DiMare committed perjurywhen he "implied to the jury" that Kimberly Knight, an occurrencewitness, had described defendant as the offender. The recordshows that defendant called DiMare during his case in chief andasked DiMare if he wrote down Knight's description of theoffender in the supplemental report or in any report. DiMareanswered, "None that I recall." Upon further questioning bydefendant, DiMare stated, "[W]e [the police] come up with aphysical description after talking to all of the witnesses."

Defendant's argument that DiMare improperly "implied" thatKnight's description of the offender matched defendant'sdescription is not supported by the record. In fact, the nature ofdefendant's questions implied that DiMare did not conduct a fulland complete investigation and did not write down all of theinformation that the various witnesses, including Knight, hadgiven him.

In sum, defendant's allegations that the state knowingly usedperjured testimony are not supported by the record and his claimof a due process violation fails.

III. Brady Violation

Defendant further contends that the State committedprosecutorial misconduct under Brady v. Maryland, 373 U.S. 83,10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). We note that defendantincorporates the same perjury claims previously discussed inaddition to raising new claims. Specifically, defendant claimsBrady violations existed where (1) DiMare presented falsetestimony to the grand jury; (2) defendant was not advised thatGair had been hypnotized in an effort to enhance her memory ofthe events she alleged in her affidavit; (3) DiMare's affidavit andhis trial testimony differ as to what he asked the witnesses to writedown at the time of the incident; (4) DiMare's testimony impliedthat Knight had described an offender that was defendant; and (5)the State failed to tender interview notes and a tape of a witnessstatement made to an investigator regarding the occurrence.

The general rule, as set forth in Brady, provides that "thesuppression by the prosecution of evidence favorable to anaccused upon request violates due process where the evidence ismaterial either to the guilt or to punishment, irrespective of thegood 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 notentitled to relief under Brady, however, unless he can establishthat the evidence improperly withheld was both favorable to thedefense and material.

Evidence is "material" only if "there is a reasonableprobability that, had the evidence been disclosed to the defense,the result of the proceeding would have been different." UnitedStates 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 ofthe proceeding would have been different is a "probabilitysufficient to undermine confidence in the outcome." Bagley, 473U.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 eachof the claims raised. With regards to defendant's first claim thatDiMare committed perjury before the grand jury regardingKoszut's statement, as previously noted, we find no evidence inthe record to indicate that DiMare committed perjury.Nonetheless, even if defendant's allegations were supported by therecord, the record makes clear that the armed violence andaggravated battery counts stemming from defendant's act ofstriking Koszut with a gun were dismissed by the State. Thus,there is no reasonable likelihood that the allegedly false testimonycould have affected the jury's verdict. See Olinger, 176 Ill. 2d 326.

Next, defendant claims that he was not informed that Gair washypnotized to assist her memory of the events. Defendant fails,however, to explain how this information would have beenmaterial to the defense. Aside from simply stating that evidence ofthe hypnosis was withheld from him, defendant fails to articulateany reason as to how these factors establish Brady violations. Gairdid not personally testify at the trial nor did she identify defendant.The only evidence concerning Gair came in through twostipulations, neither of which involves identification of defendantby her, with hypnosis or without hypnosis. Defendant does notshow how this information, had it been disclosed to the defenseprior to trial, would have yielded a different result in theproceeding.

Defendant's next two assignments of error concern DiMare'srequest of four witnesses to write down information about theincident. We will not revisit this argument, as we already foundthat the record does not show there exists a discrepancy betweenDiMare's testimony and the information contained in his affidavit. Defendant next argues that DiMare committed perjury whenhe intimated to the jury that Kimberly Knight described anoffender that was the defendant. Contrary to defendant's claim,however, we find no evidence in the record that DiMarecommitted perjury because, according to defendant, he "implied"that Knight described an offender that was the defendant. Onceagain, defendant has failed to articulate a legitimate Bradyviolation and has failed to show how this "implication," even iftrue, affected the jury's verdict.

Finally, defendant argues that the State committed a Bradyviolation when it failed to tender interview notes and a tape of awitness statement from Kimberly Knight made to an insuranceinvestigator. With reference to the interview notes, it appears thatdefendant is again raising the issue of the notes from the fourwitnesses written at DiMare's request. DiMare stated that hecombined the contents of the four witnesses' notes in the policereport he generated before destroying the notes. DiMare wasfurther extensively cross-examined about the notes, their contentand the fact that they were later destroyed. Defendant has failed toshow that there is a reasonable probability that a different outcomewould have resulted had defendant had the notes from the fourwitnesses.

Defendant also argues that the State committed a Bradyviolation by failing to tender to defendant a tape of Knight'sstatement made to an insurance investigator regarding the incident. Defendant maintains that with the statement he would havebeen able to show the inconsistencies in the testimony of otherwitnesses and that, as a result, the proceedings would have beendifferent. Defendant's argument, however, is unpersuasive.

At trial, during cross-examination by defendant, defendantquestioned Knight as to the amount of money that was missingafter the robbery. Knight replied, "I don't know the exact dollarfigure. You would have to meet with the insurance adjuster." Shefurther stated that an insurance adjuster spoke to her and taped theconversation of what happened in the store on the day of therobbery for insurance purposes. At the hearing on defendant'spost-trial motion, defendant argued the issue of the missinginsurance adjuster tape interview along with various other Bradyclaims. Defendant requested that the tape be located andsubpoenaed. The trial court directed the State to locate the tape ifit still existed. On February 15, 1994, the State tendered atranscript of an interview of Kimberly Knight conducted on June8, 1992, by an insurance investigator.

Initially, we note that it is clear that the issue of the tapedinterview is one that was raised both during trial and in the post-trial motion. As such, this issue should have been raised on directappeal and is therefore waived. Although the objective of finalitymust yield in circumstances where fundamental fairness sorequires (Whitehead, 169 Ill. 2d at 369), in this case, defendant hasfailed to satisfy the "cause and prejudice" test that will excuse adefendant's procedural default. See People v. Flores, 153 Ill. 2d264 (1992).

Defendant has failed to establish how the taped conversation,by a person who was not an agent of the State, was both favorableto the defense and material. Although defendant characterizes theState's failure to tender the tape as egregious, defendantcompletely fails to articulate how the taped interview would havehelped his case. He does not state which witnesses, if any, wouldhave been impeached by this taped interview or how the result ofthe proceedings would have been any different had thisinformation been known and made available to defendant duringtrial. Once the existence of the tape was disclosed, the State madeefforts to locate it and tender it to defendant. There is no evidencein the record to suggest that the State knew of, or should haveknown of, the existence of the tape until Knight testified.

In essence, defendant creates a laundry list of perceived errorsbut fails to show how these alleged errors would have underminedconfidence in the outcome of the trial. As such, defendant hasfailed to establish a Brady violation with regard to any of theabove evidence.

IV. Waiver of Right to Counsel

Defendant next maintains that he did not knowingly andvoluntarily waive his right to counsel at trial and sentencing andargues that he was not competent to proceed pro se during trial orduring post-conviction proceedings. In support of these arguments,defendant attaches affidavits in his post-conviction petition fromthree mitigation specialists and three psychologists who, inessence, state that defendant's demeanor and conduct is consistentwith some type of mental defect-most likely, attention deficitdisorder or attention deficit disorder with hyperactivity.

On direct review, this court addressed defendant'scompetency to represent himself at trial. A post-convictionpetitioner may not avoid the bar of res judicata simply byrephrasing, as defendant has done in this case, issues previouslyaddressed 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 trialcourt simply did not adequately address trial competency andcompetency to waive the right to counsel." This precise issue,however, was raised before this court on direct appeal. This courtstated,

"The record indicates the defendant was literate,responsive and understanding. Defendant, age 39, had anextensive criminal history. He had demonstrated afamiliarity with the judicial process and, according to thetrial judge, had waived counsel and represented himselfon a prior occasion. Further, defendant filed numerousmotions and actively presented his defense. Hedemonstrated, in the words of the trial judge, that '[he]knew what he was doing' when he waived his right tocounsel and chose to represent himself." Simpson, 172 Ill.2d at 134.

This court carefully considered and rejected each ofdefendant's claims after a lengthy analysis. We concluded thatdefendant was competent to represent himself at trial andsentencing and that his decision to waive the right to counsel wasknowingly and voluntarily made. Simpson, 172 Ill. 2d at 134.Therefore, we hold that defendant's claim that he was notcompetent to waive the right to counsel is barred by res judicata.

Nonetheless, defendant maintains that the affidavits from theexperts are new evidence that show there was a legitimate doubtas to defendant's mental capacity to participate in the proceedings.As such, argues defendant, the limitation of res judicata does notapply.

Guided by principles of fundamental fairness, a court willrelax the customary doctrine of res judicata when appropriate.People v. King, 192 Ill. 2d 189, 193 (2000); People v. Neal, 142Ill. 2d 140, 146 (1990). However, the fundamental fairnessexception will not be applied where the defendant has failed tomeet the requirements of the "cause and prejudice" test. In thiscase, defendant has failed to establish that the alleged error soprejudiced him that his conviction violates due process. SeeFranklin, 167 Ill. 2d at 15; see also Mahaffey, 194 Ill. 2d at 173.

For new evidence to be sufficient to warrant a new trial, itmust be of such conclusive character that it will probably changethe 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 merelycumulative. People v. Molstad, 101 Ill. 2d 128, 134 (1984). It mustalso be discovered since the trial and be of such character that itcould not have been discovered prior to trial by the exercise of duediligence. 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 suchconclusive character that they would change the result upon retrial.See Hobley, 182 Ill. 2d at 449. At most, the experts agree thatdefendant 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 anintelligent decision and that his ability to defend himself wasimpaired. The other experts stated that defendant's mannerismsand speech were consistent with attention deficit disorder,impulsive decisionmaking and "poor judgment."

All of the experts also agreed that defendant wasuncooperative during the interviews, thus inhibiting a fullevaluation. In addition, none of the experts reviewed thetranscripts in this case in reaching a decision as to defendant'scompetence. As we stated in the direct appeal, defendant activelyparticipated in his defense from the time of jury selection all theway through to the sentencing phase. These are factors that werenot considered by the experts in reaching their determination. Wefind that the fundamental fairness exception to res judicata neednot be applied, as defendant cannot establish that he sufferedprejudice.

Defendant also claims that he was not competent to proceedduring the post-conviction proceeding. Despite defendant'sassertion, however, the record shows that upon the State's request,the trial court carefully determined whether there was a bona fidedoubt of defendant's competency to proceed with the post-conviction proceedings at a hearing. For the reasons articulatedearlier in this discussion, the trial judge did not abuse hisdiscretion in finding defendant competent to proceed with thepost-conviction proceedings.

V. Ineffective Assistance of Counsel

Defendant's next contention reduces itself to a question ofwhether standby counsel was ineffective in aiding defendantduring the trial. Specifically, defendant contends that counselfailed to adequately investigate the existence of possiblemitigation evidence and that appellate counsel failed to raise anineffectiveness claim on appeal.

At the outset, we note that the crux of defendant's argumentis that an attorney acting as standby counsel for a capital defendanthas a higher duty to aid that defendant during the trial andsentencing phase. Defendant urges this court to extend the dutiesof standby counsel to encompass preparation of a legal defenseand mitigation even when the defendant opts to assert hisconstitutional right to self-representation. We decline to adoptsuch a position.

The right of self-representation does not carry with it acorresponding right to legal assistance; one choosing to representhimself 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 thecompletion of some specific tasks, such as introducing evidenceor objecting to testimony, that the defendant has clearly shown hewishes to complete" and may also help "ensure the defendant'scompliance 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 counselfor these advisory or other limited purposes and to determine theextent 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 ofstandby counsel's role in this case as one in which counsel wouldaid defendant during trial and assist him in investigating mattersdefendant believed would be necessary to his defense. Standbycounsel's role, however, was not one of active participation inpreparing or presenting defendant's legal defense nor wasdefendant under this belief. Simpson, 172 Ill. 2d at 136.

The trial court described the role of standby counsel andrepeatedly admonished defendant that he could not proceed pro seand also be represented by counsel. The trial court further directedstandby counsel to proceed at defendant's direction and performcertain investigative tasks. Defendant understood that standbycounsel's role was to carry out an investigatory function as well ashis regular standby duties.

Defendant claims that his standby counsel was ineffective forfailing to investigate certain mitigation evidence. Claims ofineffective assistance of counsel are analyzed under the two-prongtest established in Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland a defendantmust prove that defense counsel's performance fell below anobjective standard of reasonableness and that this substandardperformance created a reasonable probability that, but forcounsel's errors, the trial result would have been different. Peoplev. Alvine, 173 Ill. 2d 273, 293 (1996). With regard to mitigatingevidence, defense counsel has a duty to make a reasonableinvestigation into the mitigating evidence he will present at adefendant's capital sentencing hearing, or he must have a soundreason for failing to make a particular investigation. People v.Morgan, 187 Ill. 2d 500, 541 (1999). Nonetheless, courtsreviewing trial counsel's decisions regarding the presentation ofmitigating evidence are highly deferential. People v. Towns, 182Ill. 2d 491, 513-14 (1998).

An informed decision by defense counsel, however, not topresent certain mitigating evidence can be a valid strategic choice,entitled to judicial deference, where the evidence is potentiallydamaging to the defendant. Towns, 182 Ill. 2d at 514. Where thelack of mitigating evidence presented at a defendant's trial is notattributable to strategy, but instead to counsel's failure to properlyinvestigate mitigating evidence and to prepare a defense, suchdeference is not warranted. Towns, 182 Ill. 2d at 514.

Here, as we pointed out in the direct appeal, counsel was notunder a duty to actively participate in preparing defendant's legaldefense. Rather, counsel was there for a limited purpose: to aiddefendant in an investigatory capacity. Simpson, 172 Ill. 2d at 136-37. The responsibility of preparing a legal defense and mitigationremained on defendant throughout the trial and sentencing.

Defendant was informed by the trial court that he should beprepared to proceed with mitigation evidence at the sentencinghearing if he was found guilty. When the time came for mitigationevidence to be presented, defendant sought to call three judges totestify on his behalf. However, the judges were unable toremember defendant. The trial judge, at defendant's request,contacted each of the judges, on a few occasions. The trial courtinformed defendant that at least two of the three judges would bewilling to come to court but that neither judge could rememberdefendant. Defendant contacted one of the judges himself, in aneffort to help the judge remember him. Defendant also requestedvarious transcripts from witnesses, all which were provided forhim.

During this time, the trial judge repeatedly advised defendantthat he should present some other mitigation evidence in an effortto sway the jury not to impose death. Ultimately, defendant madea strategic choice not to present any mitigation evidence because,according to defendant, he wanted the case to be directly reviewedby this court should he receive the death penalty. The trial judgequestioned defendant's prudence in choosing such a strategy, butthe 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 medicalfile while preparing defendant's post-trial motion that disclosedthat defendant suffered from frequent and severe headaches,dizziness, fainting spells, bad eyesight and an old gunshot woundto the head. Defendant suggests that this information, had it beenpresented during mitigation, would have yielded a different result.Defendant cannot, however, avoid the principle that a personproceeding pro se may not later complain that he receivedineffective assistance of counsel. The duty to present mitigationevidence remained with defendant throughout the sentencingphase.

The record shows that defendant was familiar with the judicialprocess and that he actively sought information, such astranscripts, subpoenas and documents from the trial court in aneffort to prepare for the aggravation/mitigation phase ofsentencing. Defendant himself made the final determination not topresent any mitigation evidence, despite the trial court'sadmonishment to the contrary. Nothing in either the record ordefendant's brief suggests that defendant requested that standbycounsel investigate additional mitigation evidence, such asdefendant's medical file. Further, nowhere does defendant explainin what way the conduct of his standby counsel prevented himfrom introducing evidence in mitigation.

To succeed on a claim of this nature, defendant should berequired to establish that the actions of standby counsel preventeddefendant from accomplishing something he otherwise intendedto accomplish or would have been able to accomplish if standbycounsel had not prevented him from doing so, either throughunreasonable advice or direct action. In other words, to prevail onan ineffectiveness claim, defendant should show how standbycounsel's actions fell below an objective standard ofreasonableness with respect to the level of guidance standbycounsel was required to offer. To suggest otherwise would meanthat standby counsel would have to do, in advance and withoutdirection from the pro se defendant, additional preparation of thecase in order to present this evidence to the defendant, who wouldthen determine whether or not he would use it. This level ofpreparation is beyond the scope of a standby counsel's duty.

Here, defendant seeks to avoid the consequences of hisdecision to represent himself during the second stage of thesentencing hearing. As such, we decline to find that standbycounsel's performance fell below an objective standard ofreasonableness with respect to providing mitigation evidence todefendant.

Defendant further argues that appellate counsel wasineffective for failing to raise the ineffectiveness of standbycounsel. Again, we reject this argument on the basis that defendantacted as his own counsel and standby counsel did not have anobligation to prepare defendant's case for him.

The two-prong Strickland test applies to claims of ineffectiveappellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-70(1989). A defendant who claims that appellate counsel wasineffective for failing to raise an issue on appeal must allege factsdemonstrating such a failure was objectively unreasonable and thatcounsel's decision prejudiced defendant. Enis, 194 Ill. 2d at 377.If the underlying issue is nonmeritorious, the defendant hassuffered no prejudice. Enis, 194 Ill. 2d at 377; People v. Childress,191 Ill. 2d 168, 175 (2000). Normally, appellate counsel's choicesconcerning which issues to pursue are entitled to substantialdeference. People v. Mack, 167 Ill. 2d 525, 532-33 (1995).

In the present case, the underlying issue of the duty of standbycounsel to prepare mitigation evidence has no merit. Therefore, defendant suffered no prejudice by the failure of his appellatecounsel to raise this issue on direct appeal.

VI. Constitutionality of Death Penalty Statute

In his last assignment of error defendant argues that theIllinois sentencing system is unconstitutionally applied. Defendantmaintains that the Illinois statutory scheme impermissibly placesa 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 eighthamendment by providing for the death penalty where evidence inmitigation is not sufficient to preclude it. As such, according todefendant, the statute precludes a meaningful consideration ofmitigating evidence.

Although defendant's claim in the amended post-convictionpetition is framed slightly differently, the doctrine of res judicatastill applies. As this court has emphasized, the Act was notintended to be used as a tool to gain access to another hearingupon a claim of denial of constitutional rights when there hadalready been a full review of this issue raised. People v. Cox, 34Ill. 2d 66, 67-68 (1996). Defendant in this case cannot circumventthe 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 competencyin capital cases, we have formulated a comprehensive set of rulesto 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 specialcommittee on capital cases to assess the way the death penaltysystem is administered in Illinois. This committee was created asa forum for debate and the dissemination of constructive andcritical comment regarding our criminal justice process. In reSpecial Supreme Court Committee on Capital Cases, M.R. 15833(April 6, 1999).

The committee's goal was to research and identify the bestprocedures for enhancing the administration of justice in ourcapital cases. In October 1999, the committee issued its first reporton its findings. It further conducted public hearings in Springfieldand Chicago. Following the public hearings, the committee issueda new supplemental report containing its findings andrecommendations. Central to its findings was a recommendationto establish a Capital Litigation Trial Bar.

The recommendation to establish the Capital Litigation TrialBar 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 theonly way to ensure significant, systemwide improvement in thequality of advocacy in capital trials." 188 Ill. 2d R. 714,Committee Comments, at cxiii. The Capital Litigation Trial Barwas created to ensure that capital defendants receive fair andimpartial trials and sentencing hearings, to minimize theoccurrence of error to the maximum extent feasible, and to identifyand 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 assistantprosecutors appearing as lead or co-counsel in capital cases mustbe members of the Capital Litigation Trial Bar. Attorneys who failto meet the specific requirements may not appear in capital caseswithout receiving a waiver directly from our court. 188 Ill. 2d R.714(d). Further, indigent defendants are entitled to be representedby two attorneys with the requisite qualifications. 188 Ill. 2d R.416(d). Finally, mandatory educational programs are required fortrial judges who may be called to preside over capital cases. 188Ill. 2d R. 43.

Additionally, the new rules extend criminal discovery rules tocapital sentencing hearings (188 Ill. 2d R. 411); impose on theState the duty to make a good-faith effort to identify material orinformation which tends to negate the guilt of the accused orreduce his punishment (188 Ill. 2d R. 412(c)); require the State togive 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)); andimpose new pretrial disclosure rules with respect to DNA evidence(188 Ill. 2d R. 417). The new rules also clarify the duty ofprosecuting attorneys. Specifically, they state that "the duty of apublic 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, thedissents and majority disagree as to their effect on capital caseswhich were pending before this court at the time of adoption.Chief Justice Harrison, in his dissent, maintains that this courtshould automatically vacate all capital convictions that wereobtained without the benefit of the new rules. To support thisposition, the Chief Justice makes two arguments. First, hecontends that without the new rules, "no capital conviction orsentence can be deemed reliable." Slip op. at 34 (Harrison, C.J.,dissenting); People v. Hickey, No. 87286, slip op. at 36(September 27, 2001) (Harrison, C.J., dissenting). Further, becausethe new rules impose stringent standards on attorneys and judgesregarding their qualification to participate in capital trials, theChief Justice finds it untenable that a defendant, such as the onein this case, should be allowed to represent himself. Thus, theChief Justice suggests (as does Justice Kilbride in his dissent) thatin capital cases, pursuant to the new rules, this court should rejecta defendant's right to self-representation because a pro sedefendant can never meet the rigid standards set out in the rules.We disagree as to both points.

The Chief Justice would create a bright-line rule to vacate allconvictions and sentences decided without the benefit of the newrules. Slip op. at 34 (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 thatwere tried by competent attorneys, adjudicated by experiencedjudges and carefully reviewed on the merits by this court.

Further, the Chief Justice's conclusion that death cases triedprior to our adoption of the new rules are per se unreliablepresupposes that the new rules were intended to set aconstitutional standard rather than a procedure to enhance thequality of justice in future capital cases. The new rules wereestablished to maximize fairness to the defendant, compliancewith ethical responsibilities and the proper administration ofjustice. 188 Ill. 2d R. 701, Committee Comments, at cvi. To acceptthe Chief Justice's conclusion, we would have to assume that in allprevious cases the performance of the trial attorneys wasconstitutionally inadequate regardless of what the record mightreveal. This assumption would be inappropriate. Prior to theadoption of these rules, it was recognized that capital cases werefrequently tried by competent and professional attorneys. Findingsand Recommendations of the Special Supreme Court Committeeon Capital Cases 7, 9, 14, 20, 23 (October 28, 1999).

In adopting the new rules we never intimated that all casestried prior to the new rules were lacking in reliability. The newrules emerged because we became cognizant of the fact that theoutcome of some, not all, cases was flawed. We assigned lack ofexperience and training as the cause of those flaws. Fair andaccurate results in a capital trial are the result of quality advocacyby both the prosecution and the defense. 188 Ill. 2d R. 714,Committee Comments, at cxiii. Thus, the new rules were designedto minimize the possibility of inaccuracy or unfairness occurringin capital cases.

Nevertheless, the committee recognized that capital casestried without the benefit of the new rules were frequently tried bycompetent defense and prosecuting attorneys. Specifically, informulating the new rules, the committee members agreed thatassistant State's Attorneys in Illinois perform in a fair andprofessional manner in the "overwhelming majority" of capitalcases. Findings and Recommendations of the Special SupremeCourt Committee on Capital Cases 7 (October 28, 1999). Thecommittee members further noted that, on the whole, prosecutorstry capital cases "fairly and competently." Findings andRecommendations of the Special Supreme Court Committee onCapital Cases 9 (October 28, 1999).

In addition, the committee members found that the "vastmajority of private attorneys meet their obligation to providecompetent assistance of counsel." Findings and Recommendationsof the Special Supreme Court Committee on Capital Cases 14(October 28, 1999). Also, the consensus of the committee was thatthe quality of representation provided by public defenders incapital cases is "generally very good." In fact, committee membersagreed that capital case representation provided by the largerpublic defender offices is "excellent," with Cook County and someother jurisdictions having persons or units specifically assigned tocapital defense. Findings and Recommendations of the SpecialSupreme Court Committee on Capital Cases 20 (October 28,1999). Applying the Capital Litigation Trial Bar requirements toprosecutors and defense attorneys will help to assure that thesestandards are met in all capital cases.

This court has always carefully evaluated capital cases on acase-by-case basis with an overriding goal towards adherence tothe law, fairness and accuracy. Our responsibility to review casesin this manner is unchanged by the new rules. It was never theintent of this court that the new rules be applied retroactively.Following the committee's recommendations and findings, thiscourt announced that most of the new rules governing capital trialswould 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 thetime *** would not be feasible or would work an injustice." 188Ill. 2d R. 416; see also 188 Ill. 2d Rs. 411, 412, 417. The onlyrules that did not immediately take effect were those that requiredall attorneys in death penalty cases to be certified as a members ofthe Capital Litigation Trial Bar and those that required judges tohave attended a Capital Litigation Seminar. We set an effectivedate of March 1, 2002, for those rules. 188 Ill. 2d Rs. 43, 701. Wenote that all of the new rules, and their respective effective dates,were created in an effort to improve the quality of advocacy incapital cases (188 Ill. 2d R. 714, Committee Comments, at cxiii),not as a basis to vacate all cases decided prior to their effectivedate.

The dissents further argue that, pursuant to the rules,defendant should not have been allowed to represent himself. TheChief Justice writes: "[Defendant] did not have two competentlawyers to represent him. He did not have even one competentattorney to represent him." Slip op. at 34 (Harrison, C.J.,dissenting). The Chief Justice concludes that this court "mustreject the fiction that this defendant was competent to representhimself." Slip op. at 34 (Harrison, C.J., dissenting). Under the newrules, according to the Chief Justice, a capital defendant "neverwill be" competent to represent himself. Slip op. at 34 (HarrisonC.J., dissenting). This assertion raises the important issue ofwhether the new rules create a standard that overrules adefendant'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 amendmentright to counsel (U.S. Const., amend. VI) implicitly provides forthe right to self-representation in criminal proceedings and that acriminal defendant has a constitutional right to refuse state-provided counsel and proceed without representation if hevoluntarily and intelligently elects to do so. Faretta, 422 U.S. at820-21, 45 L. Ed. 2d at 573-74, 95 S. Ct. at 2533-34.

The Court further explained:

"The language and spirit of the Sixth Amendmentcontemplate that counsel, like the other defense toolsguaranteed by the Amendment, shall be an aid to a willingdefendant-not an organ of the State interposed betweenan unwilling defendant and his right to defend himselfpersonally. To thrust counsel upon the accused, againsthis considered wish, thus violates the logic of theAmendment." Faretta, 422 U.S. at 820, 45 L. Ed. 2d at573, 95 S. Ct. at 2533.

The Illinois Constitution has a similar provision thatguarantees an accused the right to self-representation in criminalproceedings. Ill. Const. 1970, art. I,