Docket No. 82106-Agenda 1-September 1998.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JERRY WARD, Appellant.

Opinion filed June 17, 1999.

JUSTICE RATHJE delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Jerry Ward, was convicted of the murders of BruceHerd and Herd's girlfriend, Pamela Williams; the armed robbery of Bruce Herd; and possession of a stolen motor vehicle.For the murder convictions, the circuit court sentenced defendant to death. The court also imposed a 30-year term ofimprisonment for armed robbery and a 3-year term of imprisonment for possession of a stolen motor vehicle.

On direct appeal, this court affirmed defendant's convictions and sentences. People v. Ward, 154 Ill. 2d 272 (1992) (WardI). The United States Supreme Court denied defendant's petition for a writ of certiorari. Ward v. Illinois, 510 U.S. 873, 126L. Ed. 2d 161, 114 S. Ct. 204 (1993). Defendant then filed a petition seeking relief pursuant to the Post-Conviction HearingAct (725 ILCS 5/122-1 et seq. (West 1994)). Defendant's petition, as amended, contains 27 counts.

On the State's motion, the circuit court dismissed defendant's petition without an evidentiary hearing. The court held thatcounsel's performance was not ineffective, that the alleged trial errors did not deprive defendant of his constitutional rights,and that the Illinois death penalty law is constitutional. This appeal followed. Because the judgment challenged indefendant's petition imposed a sentence of death, the appeal was brought directly to this court. 134 Ill. 2d R. 651(a).

Defendant contends that the circuit court erred in dismissing his post-conviction petition without an evidentiary hearing. Inaddressing this claim, we begin by noting that a defendant is not entitled to an evidentiary hearing on a post-convictionpetition as a matter of course. Rather, a hearing is required only when the allegations of the petition, supported by the trialrecord and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v.Hobley, 182 Ill. 2d 404, 427-28 (1998).

ANALYSIS

Standard of Review

Where, as here, the State seeks dismissal of a petition instead of filing an answer, its motion to dismiss assumes the truth ofthe allegations to which it is directed and questions only their legal sufficiency. People v. Wilson, 39 Ill. 2d 275, 277(1968). All well-pleaded facts in the petition and in the supporting affidavits are to be taken as true. People v. Caballero,126 Ill. 2d 248, 259 (1989). If the circuit court determines that the petition should be dismissed without an evidentiaryhearing, its judgment is subject to plenary review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

Ineffective Assistance of Counsel

Defendant organizes his arguments on the 27 dismissed counts into four main issues on appeal. He first argues that the courterred in dismissing his ineffective assistance of counsel claims because his petition demonstrates a violation of hisconstitutional rights during the guilt and sentencing phases of his trial. To prevail on a claim of ineffective assistance ofcounsel, the defendant must show that (1) counsel's performance was so seriously deficient as to fall below an objectivestandard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced thedefendant as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693-94, 104 S. Ct.2052, 2064-65 (1984). It is often easier to dispose of an ineffectiveness claim based on the second prong of the test, andcounsel's performance need not be evaluated if it can be shown that the defendant suffered no prejudice. People v.Albanese, 104 Ill. 2d 504, 527 (1984). To meet the second prong of the test, a defendant must demonstrate "that there is areasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

On direct appeal, this court considered whether defendant received the ineffective assistance of counsel. Defendant arguedin Ward I that his trial counsel erred in failing to (1) call witnesses at trial who were called at sentencing; (2) locate certainalleged alibi witnesses; (3) make a motion in limine to preclude the introduction of defendant's prior convictions; and (4)object to the admission of certain evidence, testimony, and improper remarks by the State. The court held that, assumingarguendo that the alleged errors cumulatively constituted substandard representation, defendant had not established areasonable probability that the result of the case would have been different absent those errors. This was so because of theoverwhelming evidence of defendant's guilt. Ward I, 154 Ill. 2d at 317-18. Earlier in Ward I, this court summarized theoverwhelming evidence against defendant as follows:

"Defendant was arrested after a police chase, in the victim's car. This occurred very shortly after two gunshot soundswere heard and Herd's body was discovered. [Defendant] had white fleshy matter and blood on his face and clothing.The blood makeup was consistent with Williams' blood. The arresting officer saw defendant remove a .38 Smith andWesson gun from his waistband, which had two spent cartridges and bullets which were 'non-factory.' Gun residuetests proved that defendant had recently fired a gun. The bullet recovered from Herd was a 'non-factory' bullet firedfrom a gun with characteristics consistent with the gun recovered from the defendant. Witnesses identified the cardefendant was driving as the one that 'dumped' Herd's body shortly before defendant's arrest." Ward I, 154 Ill. 2d at301.

The State argues that defendant's ineffective assistance of counsel arguments are either waived or barred by res judicata.Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutionalmatters that have not been, and could not have been, previously adjudicated. People v. Tenner, 175 Ill. 2d 372, 378 (1997).Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have beenraised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995).

Trial

Defendant's first contention of ineffective assistance of counsel is that his trial counsel failed to uncover and presentevidence that would have undermined the State's case and supported the defense. This court partially considered this claimon direct appeal. However, defendant supports this argument with affidavits that were not part of the original trial record.Rules of waiver and res judicata will be relaxed where the facts relating to the issue of counsel's incompetency do notappear on the face of the record. People v. Orange, 168 Ill. 2d 138, 167 (1995). In Orange, the court agreed to consider in apost-conviction appeal the issue of defense counsel's failure to present mitigating evidence at sentencing, even though ithad considered that argument on direct appeal. The court considered the issue a second time because defendant attachedwitness affidavits to his post-conviction petition, and these affidavits were not part of the original trial record. See Orange,168 Ill. 2d at 167.

After reviewing the affidavits attached to defendant's petition, we cannot say that defendant has shown a reasonableprobability that the outcome of his trial would have been different if this testimony had been presented. Defendant arguesthat this evidence could have helped establish that he knew the victims, was drinking with them on the night of the murders,and that a second person, Steve Burtin, was involved in the crime. Nevertheless, this evidence neither exonerates defendantnor diminishes the strong evidence of defendant's active participation in this crime. Accordingly, defendant has not shownthat he was prejudiced by his counsel's failure to investigate and present this evidence.

Defendant also argues that appellate counsel was ineffective for failing to argue trial counsel's incompetence in failing torequest the court's assistance in compelling the appearance of these witnesses and in inadequately attempting to subpoena acritical witness. Claims of ineffective assistance of appellate counsel are evaluated under the Strickland standard, whichrequires the defendant to show both deficient performance by counsel and resultant prejudice. People v. Pecoraro, 175 Ill.2d 294, 333 (1997). As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendantmust show that the failure to raise the issue was objectively unreasonable and that, but for this failure, a reasonableprobability exists that the sentence or conviction would have been reversed. People v. Mack, 167 Ill. 2d 525, 532 (1995).

This court held in Ward I that the trial court did not err in not granting defendant a continuance to locate these witnesses(Ward I, 154 Ill. 2d at 305-10), and the court held above that no reasonable probability exists that the result would havebeen different had these witnesses had been called. Accordingly, appellate counsel was not ineffective for failing to raisethis issue.

Defendant raises four other contentions of ineffective assistance of counsel at trial. These claims are procedurally barred.Defendant claims that trial counsel was ineffective for failing to object to the court's questioning of two potential jurorsoutside his presence. This argument could have been raised on direct appeal and was not. Consequently, it is waived.Coleman, 168 Ill. 2d at 522.

Defendant also argues that appellate counsel was ineffective for failing to raise this issue. Defendant does not demonstratehow he was prejudiced by the trial court's ex parte questioning of these potential jurors. A defendant cannot establishreversible error by arguing that he was absent from part of the voir dire unless he can establish that he was denied aconstitutional right. See People v. Bean, 137 Ill. 2d 65, 80-81 (1990). Defendant does not identify what constitutional rightwas violated. Neither of these potential jurors served on the jury, and defendant does not challenge the impartiality of thejurors who convicted him. Accordingly, he has not established prejudice. See Bean, 137 Ill. 2d at 81-82. Because in hisdirect appeal defendant could not have successfully argued that his trial counsel was ineffective for failing to object to thecourt's ex parte questioning of these two jurors, appellate counsel was not ineffective for failing to make this argument.

Defendant next contends that trial counsel was ineffective for failing to object to the introduction of repetitive, prejudicialtestimony about white fleshy material that two police officers identified as brain matter. This argument is meritless for tworeasons. First, in Ward I this court held that this evidence was proper. Ward I, 154 Ill. 2d at 296. This holding is resjudicata. Defendant argued in Ward I with respect to the testimony of only one of the officers. The court held that theevidence was proper and, in any event, defense counsel successfully objected to the identification of the evidence as brainmatter. Second, defendant's argument with respect to the other testimony and its cumulative effect is waived because it wasnot made on direct appeal and is not based on evidence outside of the original trial record.

Defendant contends that appellate counsel was ineffective for failing to argue that trial counsel was ineffective in failing toobject to the repeated testimony about Williams' brain matter on defendant. Because the court held in Ward I that this wasproper testimony (Ward I, 154 Ill. 2d at 296), defendant could not have prevailed on this issue. Accordingly, defendant hasnot shown that he was prejudiced by appellate counsel's failure to make this argument.

Defendant's next contention of ineffective assistance of counsel at trial is that trial counsel repeatedly failed to object to theprosecutor's improper comments in closing argument. This claim is waived because it was not raised on direct appeal.Further, defendant cannot establish prejudice because the court held in Ward I that none of the prosecutor's comments inclosing argument, individually or cumulatively, amounted to reversible error, and that "the evidence, which wassubstantially one-sided, and not the closing argument, was the cause of the verdict." Ward I, 154 Ill. 2d at 323. This holdingalso disposes of defendant's argument that appellate counsel was ineffective for failing to argue that trial counsel wasineffective for failing to object to these comments.

Defendant next contends that his trial counsel's cross-examinations of the State's scientific experts were insufficient. Thisargument is waived because it has a basis in the original trial record and was not raised on direct appeal.

Sentencing

Defendant also argues that he was prejudiced at his sentencing hearing by his counsel's failure to present sufficientmitigating evidence of his turbulent upbringing and his problems with drugs and alcohol. Claims of ineffective assistance ofcounsel at capital sentencing hearings are governed by the Strickland standard. A defendant must show that counsel'sperformance fell below an objective standard of reasonableness and that, absent counsel's errors, there is a reasonableprobability that the trier of fact would have concluded that the balance of aggravating and mitigating factors did not warrantthe death penalty. People v. Henderson, 171 Ill. 2d 124, 145 (1996).

The most significant aspects of defendant's troubled upbringing were introduced at his sentencing hearing. In Ward I, thiscourt held that the evidence of defendant's tragic family life was properly weighed by the trial court and that the court didnot err in finding that the evidence was not mitigating and may have been aggravating. Ward I, 154 Ill. 2d at 335-37.Defendant has not demonstrated a reasonable probability that any additional evidence on this matter would have changedthe trial judge's evaluation of this evidence.

With respect to the evidence of defendant's alcohol and drug abuse, we initially note that we have recognized that evidenceof a history of substance abuse is a double-edged sword because this evidence can be viewed as either aggravating ormitigating. Coleman, 183 Ill. 2d at 404; People v. Shatner, 174 Ill. 2d 133, 159-60 (1996). Because of this, a defenseattorney must always make a strategic decision whether to present this evidence. Decisions on what evidence to present andwhich witnesses to call on a defendant's behalf rest with trial counsel and, as matters of trial strategy, are generally immunefrom claims of ineffective assistance of counsel. People v. Reid, 179 Ill. 2d 297, 310 (1997). The only exception to this ruleis when counsel's chosen trial strategy is so unsound that counsel fails to conduct any meaningful adversarial testing. Reid,179 Ill. 2d at 310. Defendant's attorney introduced evidence in mitigation that defendant had a difficult and troubledupbringing and that a second person might have been involved in the crime. The decision not to supplement this evidencewith evidence that defendant is a drug and alcohol abuser was not, on its face, unsound.

Further, even assuming any deficient performance in failing to investigate and present evidence of defendant's alcohol anddrug abuse, defendant was not prejudiced because there is no reasonable probability that this evidence would have changedthe result of the sentencing hearing. In Ward I, the court listed the aggravating factors the judge took into consideration,including the violent, cold, calculated, and premeditated manner in which the victims were executed; defendant's extensivecriminal history and propensity to commit violent acts; defendant's disciplinary problems in the penitentiary; and hisinability to assimilate himself into society or to be rehabilitated. Ward I, 154 Ill. 2d at 341. In rejecting defendant'smitigating evidence, the trial judge stated the following:

"Well, I think it's obvious from his conduct that that is what he thinks, and whether he's striking out silently becauseof what he believes is injustice in society for what happened to his brother and his mother or whether that hasaberrated [sic] his conduct in some way, that, we as ordinary humans, cannot tell because we can't get in someone'shead to find out what motivates them. It doesn't matter. The result is the same and the result is violence and crueltyand assaults and death.

And that is what Mr. Ward has perpetrated on this community and for that reason, Mr. Ward, I believe that theappropriate sentence is that you be sentenced to death and that is the order of this court." (Emphasis added.)

Thus, the sentencing judge specifically found that, irrespective of defendant's motives, defendant needed to be sentenced todeath for these murders. Defendant has not demonstrated a reasonable probability that the judge's decision would have beendifferent if he also would have considered that defendant's actions might have been fueled by alcohol and drug abuse.

Defendant further contends that counsel was ineffective for failing to present mitigating evidence of defendant's tendencyto be led by others, specifically by Steve Burtin, and of Burtin's possible involvement in the crime. However, defensecounsel did present mitigating evidence of Burtin's possible involvement in the crime, and the judge specifically consideredthat evidence. Further, defendant was not prejudiced by the omission of evidence of defendant's tendency to follow others,given the judge's above quoted statement that death was the appropriate punishment for these crimes, irrespective of theinternal factors that motivated defendant. Defendant has not shown a reasonable probability that this evidence would havechanged the result of the sentencing hearing.

Cumulative Error

With respect to his ineffective assistance of counsel arguments, defendant also argues that the cumulative effect of trialcounsel's errors denied him the effective assistance of counsel. We reject this argument for the same reason the court did inWard I: "even assuming, arguendo, that the alleged errors, taken together, constituted substandard representation, it has notbeen established that but for them, there was a reasonable probability that the result of this case would have been altered, inview of the overwhelming evidence of defendant's guilt." Ward I, 154 Ill. 2d at 317-18.

Jury Instruction

Defendant argues that the trial court violated his rights by giving the jury a misleading and erroneous instruction thatcombined the State's burden of proof for the two murders into one instruction, thereby giving the jury the impression thatthe intent and knowing elements did not necessarily have to apply to the individual killed. In essence, defendant believesthat the jury could have convicted him of both murders on a finding of less than all the elements required for even oneguilty verdict. Defendant raises this claim in four different manners. First, he argues it substantively. Second, he argues thattrial counsel was ineffective for not objecting to the instruction. Third, he argues that appellate counsel was ineffective forfailing to argue the issue on direct appeal. Fourth, he argues that appellate counsel was ineffective for failing to argue thattrial counsel was ineffective for failing to object to the instruction.

Defendant has waived his right to challenge this instruction and also his right to argue that trial counsel was ineffective forfailing to object to the instruction. These issues had a basis in the trial record and could have been raised on direct appeal.We will consider, however, whether defendant received the ineffective assistance of appellate counsel.

As to the claim that appellate counsel was ineffective for not raising the jury instruction issue on direct appeal, defendanthas not shown that he was prejudiced by this omission. The likely reason that appellate counsel did not argue this issue ondirect appeal is that it was waived because trial counsel did not object to the instruction or offer an alternative instruction.Thus, on direct appeal, we would have found the issue waived. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).

Nevertheless, on direct appeal we probably would have relaxed the waiver rule because claims of substantial defects in juryinstructions in criminal cases may be considered, even where the defendant has failed to make timely objections. 177 Ill. 2dR. 451(c); People v. Reddick, 123 Ill. 2d 184, 198 (1988).

Even had we relaxed the waiver rule, however, we would have found any error in the instruction harmless. An error in ajury instruction is harmless if the result of the trial would not have been different if the proper instruction had been given.People v. Johnson, 146 Ill. 2d 109, 137 (1991). Defendant incorrectly states that the complained-of instruction, People'sInstruction No. 11, was "the only instruction that the trial court gave to the jury regarding the specific elements required toprove Mr. Ward's guilt of the murders of Bruce Herd and Pamela Williams." This is not the case. People's Instruction No.10, which tracks the language of the Illinois Pattern Jury Instruction applicable at the time (Illinois Pattern Jury Instructions,Criminal, No. 7.01 (2d ed. 1981) (hereinafter IPI Criminal 2d)), clearly sets out the elements of murder. It explains that, tofind a person guilty of murder, the jury must find that, in performing the acts that caused an individual's death, the personintended to "kill or do great bodily harm to that individual," or that the person knew that such acts would "cause death tothat individual," or that such acts created "a strong probability of death or great bodily harm to that individual." (Emphasisadded.) IPI Criminal 2d No. 7.01.

The jury was faced with two instructions, one of which defendant contends is ambiguous, one of which is crystal clear. Bynot mentioning People's Instruction No. 10, defendant essentially asks us to read People's Instruction No. 11 in isolation.Jury instructions are not to be read in isolation; they are to be construed as a whole. People v. Housby, 84 Ill. 2d 415, 433-34 (1981). People's Instruction No. 10 unambiguously states that the intent and knowing elements must apply to theindividual killed. The jury was additionally instructed that "[t]he law that applies to this case is stated in these instructionsand it is your duty to follow all of them. You must not single out certain instructions and disregard others." Thus, evenassuming that, when read in isolation, People's Instruction No. 11 is ambiguous, People's Instruction No. 10 immediatelydispels any confusion. Reading both instructions together, as the jury was instructed to do, the jury simply could not haveconvicted defendant of both murders on a finding of less than all of the elements required for each victim. Accordingly, wewould have found on direct appeal that any error in People's Instruction No. 11 was harmless.

Defendant has thus failed to show that he was prejudiced by counsel's failure to raise this issue on direct appeal. Thisholding also disposes of defendant's argument that appellate counsel was ineffective for failing to argue that trial counselwas ineffective for failing to object to the instruction.

Ex Parte Conversation

On the fifth day of trial, defense counsel requested a continuance to locate witnesses with the assistance of the onlysubpoenaed defense witness who appeared at the courthouse. Defendant contends that the trial judge had an improper exparte conversation with one of the State's witnesses, a police officer, and after this conversation denied defendant's requestfor a continuance to locate witnesses and instead gave defense counsel only the lunch hour to locate those witnesses.Defendant relies on the affidavit of his trial attorney, Kevin Smith, to support this claim. Defendant argues that the denial ofthe continuance deprived him of his constitutional rights to present a defense, to due process, and to a fair trial.

On direct appeal, this court considered defendant's argument that he was denied his right to present a defense when thecourt refused to grant him a continuance to locate these witnesses. Ward I, 154 Ill. 2d at 305-10. The court held that (1)defendant did not show to the trial court that the potential testimony was relevant in establishing defendant's whereabouts atthe time of the murders; and (2) defendant was not deprived of his constitutional right to present witnesses to establish adefense. It also noted that one of the witnesses was present in the courtroom, and defendant chose not to call him. Thus,defendant could not argue that he was prejudiced on this basis. All of these holdings are res judicata.

Defendant also argues that the conversation itself deprived him of his right to cross-examine witnesses, a right that isimplicit in the constitutional right of confrontation. However, this issue is relevant only to whether the court erred indenying the defense request for a continuance, and this court held in Ward I that the trial court did not err in this regard.Ward I, 154 Ill. 2d at 305-10. Further, any error in the communication was harmless. Defendant argues that he wasprejudiced in that these witnesses could have "testified that he was drinking in the neighborhood with Steve Burtin on thenight of the crimes, thus undermining the State's theory that Mr. Ward was a stranger to the neighborhood." As the courtnoted in Ward I, defendant could have called Davis to establish that he was drinking with defendant in the neighborhood,but chose not to do so. Ward I, 154 Ill. 2d at 309-10. Moreover, this evidence was not exonerating and would not haveundermined the overwhelming evidence of defendant's guilt.

Trial Court's Ruling Limiting Defense Counsel's Opportunity to Argue That Williams Had Been Shot

Defendant argues that the court denied him his constitutional right to present a defense when it ruled that, if the defenseargued that Williams had not been shot, then the State could show the jury a highly prejudicial close-up photograph of theback of Williams' head. This issue could have been raised on direct appeal but was not. Consequently, it has been waived.

Defendant argues that appellate counsel was ineffective for failing to raise this issue in Ward I. By reframing the aboveargument, defendant is effectively asking us to reconsider an argument this court disposed of in the direct appeal. In Ward I,the court considered whether the prosecutor violated a trial court ruling by arguing that Williams had been shot. It foundthat, although it was questionable whether defendant sufficiently opened the door on the issue to allow the State to makethat argument, the trial court was in a better position to determine the spirit and meaning of its own ruling and whether theprosecutor violated it. The trial court found that the prosecutor did not violate its ruling, and the court declined to disturbthe court's finding. Ward I, 154 Ill. 2d at 321. This result would not have been different if appellate counsel would haveframed the issue in the manner defendant now frames it.

Evidence of Defendant's Entire Prison Record

Defendant argues that the court erred in admitting at the sentencing hearing testimony and evidence of his entire prisonrecord. He contends that this violated his constitutional right to due process because the court focused too extensively ondefendant's prison record in sentencing defendant. In Ward I, this court held that the trial court did not err in admittingdefendant's prison record (Ward I, 154 Ill. 2d at 327-31) and that the record was only one of many factors the court reliedupon in reaching its sentence (Ward I, 154 Ill. 2d at 331-32). These holdings are binding, and defendant's current argumentis barred by res judicata. Defendant's claim that appellate counsel was ineffective for failing to raise this issue on directappeal is unavailing. Appellate counsel did raise this issue on direct appeal.

State's Argument on the Sufficiency of Mitigating Evidence

Defendant argues that the State repeatedly attempted to impermissibly shift its burden of showing "no mitigating factorssufficient to preclude the imposition of the death sentence" (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(h)) by arguing that thecourt must find the presence of mitigating factors in order to preclude the imposition of the death penalty. This issue iswaived because it was not raised on direct appeal.

Defendant further contends that appellate counsel should have argued that trial counsel should have objected to the State'sincorrect characterization of the legal standard to be applied in imposing the death penalty. This argument would not havesucceeded on direct appeal. Defendant was sentenced by the trial judge, not by a jury. The trial court's comments atsentencing show that he understood and applied the correct legal standard that there were no mitigating factors sufficient topreclude the imposition of the death penalty. Appellate counsel was not ineffective for failing to raise this issue.