People v. Mitchell

727 N.E.2d 254, 189 Ill. 2d 312, 245 Ill. Dec. 1

Opinions

JUSTICE RATHJE

delivered the opinion of the court:

A jury convicted defendant, Anthony Mitchell, of two counts of first degree murder. The same jury also determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the circuit court of St. Clair County sentenced defendant to death.

On direct review, we affirmed defendant’s conviction and sentence. People v. Mitchell, 152 Ill. 2d 274 (1992) (Mitchell I). The United States Supreme Court denied defendant’s petition for a writ of certiorari. Mitchell v. Illinois, 508 U.S. 962, 124 L. Ed. 2d 685, 113 S. Ct. 2936 (1993). On December 7, 1993, defendant filed a petition for post-conviction relief, and on May 16, 1996, defendant filed an amended petition. The State moved to dismiss the amended petition without an evidentiary hearing. Defendant then filed three additional claims for post-conviction relief, based on this court’s decisions in People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Nitz, 173 Ill. 2d 151 (1996). The court allowed the State’s motion to dismiss to stand against the additional counts. The court granted the State’s motion to dismiss, and this appeal followed. Because the judgment challenged in defendant’s petition imposed a sentence of death, the appeal was taken directly to this court. 134 Ill. 2d R 651(a).

BACKGROUND

Defendant’s convictions arose from the stabbing deaths of teenagers David and Dawn Lieneke in July 1989. The facts detailing the crime and the investigation leading to defendant’s arrest are set out in our original opinion, and we provide only a brief summary here. Additional facts will be noted where necessary to address the particular arguments defendant raises.

David and Dawn lived with their grandparents. On the evening of July 4, 1989, their grandparents were out playing bingo. The grandparents returned home at approximately 10:30 p.m. and found David’s and Dawn’s dead bodies. Eighteen-year-old David was lying in a pool of blood in the hallway. He had been stabbed seven times. The wounds were large and deep, and David had died from blood loss caused by a stab wound to the liver and from the collapse of both lungs, due to a stab wound to his chest. Thirteen-year-old Dawn was lying in a pool of blood on her grandmother’s bed. She also had seven stab wounds in her body, including one that went through the right temple and penetrated her brain. Dawn bled to death from knife wounds to the aorta and liver.

The police located defendant by tracing the license plate number of his sister’s car. Defendant had been driving that car on the night of the murders. Witnesses had spotted the car at the scene. Defendant confessed to the crime, explaining that he had gone to the Lienekes’ house looking for Viroon Williams, who defendant claimed had tried to run him down with a car the day before and who had stolen a VCR, radio, and video game from defendant’s mother’s house. Williams sometimes stayed with the Lienekes. Defendant went into the house and stabbed David, and then killed Dawn when she screamed his name and ran into the bedroom. David was still alive and was threatening to tell Williams, so defendant stabbed him again.

In addition to defendant’s confession, the State relied upon the testimony of Maurice Douglas, who was with defendant on the night of the murders. Defendant showed the bloody knife to Douglas and told him that he had just killed two persons. The police recovered the murder weapon — a survival knife — from defendant’s basement. The knife had blood on it, and the blood was consistent with a mixture of David’s and Dawn’s blood. The police also recovered black clothes and a pair of two-toed shoes. Blood on a pair of pants recovered from defendant’s basement was consistent with Dawn’s blood. One of the two-toed shoes matched a shoe print that was left in the mud near where defendant’s sister’s car was seen parked in the victims’ neighborhood.

Defendant testified and denied any involvement in the crime. Defendant’s testimony suggested that Williams was the murderer. Defendant denied owning the clothes or the knife, but said that Williams had an outfit like the one recovered and that he had seen Williams with the knife. Defendant denied showing the knife to Douglas or saying that he killed two persons. Defendant testified that the police made him sign the confession by raising their voices.

Defendant was convicted of the murders and sentenced to death. After his convictions and sentence were affirmed by this court and his petition for a writ of certiorari to the United States Supreme Court was denied, defendant filed a post-conviction petition. As twice amended, defendant’s post-conviction petition contained 28 counts. Eleven counts, however, restated constitutional arguments that were rejected on direct appeal. In dismissing the petition without an evidentiary hearing, the trial court ruled that the majority of defendant’s claims were barred by waiver and res judicata. As to defendant’s claims of ineffective assistance of counsel, the court ruled that defendant had not made a substantial showing that his constitutional rights had been violated.

The trial court found merit to one of defendant’s claims based on Brandon and Nitz. Defendant argued that at the time of his trial and sentencing he was taking two medications to control his epilepsy — Depakote and phenobarbital — and that these medications were psychotropic. Defendant contended he was denied due process when he did not receive a fitness hearing and that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to such a hearing. The trial court agreed that Depakote was psychotropic medication and that defendant therefore would have been entitled to a fitness hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a); Brandon, 162 Ill. 2d 450. However, the trial court ruled that defendant could not prevail on this claim because he was seeking to benefit from the retroactive application of a “new rule” announced in Brandon.¹ The court based its analysis on Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); and People v. Flowers, 138 Ill. 2d 218 (1990), which held that, except in certain limited situations, new constitutional rules of criminal procedure are not applied retroactively to cases pending on collateral review. Accordingly, the trial court dismissed defendant’s petition without an evidentiary hearing. Defendant raises six issues on appeal.

ANALYSIS Standard of review

A petition filed pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 — 1 et seq. (West 1998)) is a collateral attack on a prior conviction and sentence. People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). To obtain relief under the Act, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. 725 ILCS 5/122 — 1(a) (West 1998); People v. Tenner, 175 Ill. 2d 372, 378 (1997).

An evidentiary hearing on the petition is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 428 (1998). For the purpose of determining whether to grant an evidentiary hearing, 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 evidentiary hearing, its judgment is subject to de nova review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

Psychotropic Medication

Defendant argues that he was denied due process when he did not receive a hearing to determine his fitness for trial while under medication. The statute in effect at the time of his trial provided, in part, as follows:

“A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a).

Defendant further argues that he received the ineffective assistance of counsel when his trial attorney failed to invoke his right to a fitness hearing and when his counsel on direct appeal failed to raise the due process and ineffective assistance of counsel arguments as they related to his failure to receive a section 104 — 21(a) fitness hearing.

The factual basis for defendant’s claim, as provided in his post-conviction petition and the accompanying affidavits, is as follows. Defendant has suffered from epilepsy since the age of six, when he suffered a head injury. To control his seizures, defendant has been taking medications for many years. During his trial and sentencing, defendant’s epilepsy medications were Depakote and phenobarbital. The trial court was aware that defendant was taking medication for epilepsy.

The Physicians’ Desk Reference categorizes Depakote as an “antimanic agent,” which is a subcategory of “psychotherapeutic agents.”² Physicians’ Desk Reference 215 (53d ed. 1999) (PDR). Defendant attached to his petition the affidavit of Dr. James O’Donnell, a pharmacology consultant. O’Donnell states in the affidavit that Depakote and phenobarbital are both central nervous system depressants that are prescribed to prevent epileptic seizures. O’Donnell lists the probable side effects of the drugs as “sedation, hallucinations, dizziness, incoordination, depression, emotional changes and behavioral deterioration, psychosis and aggression.” O’Donnell further states that “[t]he combination of the effects of both of these drugs can cloud the sensorium (alter the ability to think clearly) and thus effect [sic] any individual’s ability to make certain decisions.” O’Donnell concludes that “[t]he overall sedative effect may have caused Mr. Mitchell to appear too relaxed or too detached during court proceedings.”

Before deciding the merits of defendant’s arguments, we address the State’s contention that phenobarbital and Depakote are not psychotropic medications. In People v. Britz, 174 Ill. 2d 163, 198 (1996), we adopted the definition of “psychotropic medications” found in the Mental Health and Developmental Disabilities Code:

“ ‘Psychotropic medication’ means medication whose use for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavioral management purposes is listed in AMA Drug Evaluations, latest edition, or Physicians’s Desk Reference, latest edition, or which are administered for any of these purposes.” 405 ILCS 5/1— 121.1 (West 1998).

We further relied on the definition given by the United States Supreme Court in Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990):

“[Plsychotropic drugs are ‘medications commonly used in treating mental disorders such as schizophrenia,’ the effect of which is ‘to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational state of mind.’ ” Britz, 174 Ill. 2d at 198, quoting Washington, 494 U.S. at 214, 108 L. Ed., 2d at 193, 110 S. Ct. at 1032.

The trial court found that Depakote was a psychotropic drug, but that phenobarbital was merely “an anticonvulsant barbiturate.” We agree that Depakote falls within the purview of section 104 — 21(a)’s reference to “psychotropic drugs or other medications.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a). Depakote is listed in the PDR as a psychotherapeutic antimanic agent and thus clearly falls within the Britz definition. Further, Dr. O’Donnell stated in his affidavit that the combination of Depakote and phenobarbital could affect the individual’s ability to think clearly and to make certain decisions. We thus agree with defendant that his ingestion of Depakote would have entitled him to a fitness hearing under section 104 — 21(a). This conclusion renders unnecessary a discussion of whether phenobarbital fits the Britz definition.

Our decision is not in conflict with People v. Kidd, 175 Ill. 2d 1 (1996), another case in which a defendant argued that his epilepsy medication was a psychotropic drug. In Kidd, the defendant was taking Dilantin to control his seizures. We applied the Britz definition and held that Dilantin was not psychotropic medication because its use for psychotropic purposes was not listed in the PDR or the AMA Drug Evaluations. Further, it was not being administered to the defendant for psychotropic purposes. Kidd, 175 Ill. 2d at 17-19. By contrast, Depakote is listed in the PDR as a psychotherapeutic antimanic medication, and thus falls squarely within the Britz definition.

We turn now to the merits of defendant’s arguments. Defendant argues that the trial court erred in finding that Brandon could not be applied retroactively to cases pending on collateral review, and points out that Nitz and People v. Neal, 179 Ill. 2d 541 (1997), were both cases in which this court applied Brandon in post-conviction cases. The State counters that it did not raise the Flowers/ Teague retroactivity rule in those cases and therefore this court has not yet ruled on this issue. According to the State, the Flowers/Teague rule bars application of Brandon to petitioner’s case. We need not address this issue, however, as we believe that the dismissal of defendant’s psychotropic medication claims was proper for other reasons.

Due Process

We first address defendant’s argument that he was denied due process when he did not receive the fitness hearing to which he was entitled. Petitioner’s claim— that denial of a section 104 — 21(a) fitness hearing is a denial of due process — has its genesis in Nitz. In Nitz, the defendant raised a Brandon issue for the first time in a post-conviction petition. The State argued that Brandon was not applicable because the defendant did not argue that he received the ineffective assistance of counsel. Thus, the defendant's claim was lacking a constitutional foundation. We rejected the State’s argument and held that the court’s failure to follow the relevant statutory procedures resulted in a due process violation to the defendant. Nitz, 173 Ill. 2d at 160-61.

The reasoning in Nitz was as follows. The due process clause of the fourteenth amendment prohibits the prosecution of a defendant who is unfit for trial. U.S. Const., amend. XIV; Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). Where information raises the possibility that an accused is incompetent, the failure to inquire concerning competency violates the accused’s due process rights. Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966) (holding that the Illinois court’s failure to invoke the relevant statutory procedures deprived the defendant of an inquiry concerning his fitness to stand trial, and defendant therefore suffered a due process violation). The relevant statute — section 104 — 21(a)—provides for a fitness hearing, and therefore the court’s failure to invoke it denied defendant an inquiry into his fitness for trial and consequently denied him due process. Nitz, 173 Ill. 2d at 155-61.

Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fitness; it requires only that there be an adequate procedure to implement the right to an inquiry. Nitz, 173 Ill. 2d at 160, citing Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). Nitz further correctly recognized that the particular procedures to be invoked are purely by legislative design and that the right to a particular procedure is wholly statutory. Nitz, 173 Ill. 2d at 160.

Although we recognized in Nitz that defendant’s right to section 104 — 21(a)’s procedure was wholly statutory, we reached the somewhat contradictory conclusion that the trial court’s failure to invoke the statute denied defendant due process. The relevant passage in Nitz is our conclusion that, “Here, as in Pate, because no procedure was invoked, defendant was denied inquiry into the issue of his fitness. Due process was thereby denied.” Nitz, 173 Ill. 2d at 161. This conclusion does not follow from the recognition that the particular procedure to be invoked is purely by legislative design and that defendant’s right to that procedure is wholly statutory. Three members of the court dissented in Nitz, on the basis that a defendant’s right to a section 104 — 21(a) fitness hearing was statutory and that the court was creating a constitutional deprivation where none existed. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissent concluded that defendant’s petition (which did not argue ineffective assistance of counsel) should have been dismissed because it lacked a constitutional foundation. After careful consideration and reevaluation, we have determined that the dissent’s position in Nitz was correct and that this court erred in holding that a denial of a section 104 — 21(a) fitness hearing was in and of itself a due process violation.

In Nitz, we failed to distinguish the United States Supreme Court’s decision in Pate. In that case, the Supreme Court held that the defendant should have received a fitness hearing because the evidence introduced on his behalf established a bona fide doubt of his fitness. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The court’s failure to inquire into the defendant’s fitness in the face of evidence establishing a bona fide doubt of his fitness deprived the defendant of his constitutional right to a fair trial. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The Supreme Court later explained its Pate holding in Drope:

“In Pate v. Robinson, 383 U.S. 375[, 15 L. Ed. 2d 815, 86 S. Ct. 836] (1966), we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois ‘jealously guard[ed] this right,’ id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill. Rev. Stat., ch. 38, § 104 — 2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. [Citations.] Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted that under the Illinois statute a hearing was required where the evidence raised a ‘ “bona fide doubt” ’ as to a defendant’s competence, and the Court concluded ‘that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue.’ ” (Emphasis added.) Drope, 420 U.S. at 172-73, 43 L. Ed. 2d at 113-14, 95 S. Ct. at 904.

Thus, Drope clearly recognized that Illinois’ statutory procedure — requiring a fitness hearing when there is a bona fide doubt of defendant’s fitness — was constitutionally adequate to safeguard a defendant’s due process right not to be tried or convicted while unfit to stand trial. The Supreme Court did not hold, as Nitz implies, that the failure to follow any statute concerning a defendant’s fitness for trial deprives a defendant of due process. See Nitz, 173 Ill. 2d at 160-61. Under the Nitz rationale, if the legislature passed a statute entitling defendants who watch professional wrestling to a hearing on their mental fitness, the court’s failure to follow the statute would be a denial of due process. This cannot be so. As Nitz correctly recognized, “due process does not mandate any particular procedure for the inquiry; it requires merely that there be an adequate procedure to implement the right to an inquiry.” Nitz, 173 Ill. 2d at 160.

The United States Supreme Court has determined the constitutional adequacy of the Illinois statutory scheme of requiring a fitness hearing when there is a bona fide doubt of defendant’s fitness. Thus, Illinois has in place procedures that are constitutionally adequate to protect a defendant’s due process right not to be tried while unfit.³ Due process does not require that everyone taking “psychotropic or other medication” under medical direction should be granted a fitness hearing. Section 104 — 21(a)’s provision is merely a statutory right granted by the legislature — a right that the legislature has now taken away. See 725 ILCS 5/104 — 21(a) (West 1998). Statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the Act. People v. Orndoff, 39 Ill. 2d 96, 99 (1968). The Illinois statutory scheme for determining fitness comports with due process with or without section 104 — 21(a) fitness hearings. Nitz’s conclusion that a defendant may raise in a post-conviction petition a denial of a section 104 — 21(a) fitness hearing as a denial of due process was erroneous, and we hereby overrule Nitz.

Nitz’s conclusion was largely based on this court’s continued equating of a defendant’s ingestion of psychotropic medication with a bona fide doubt of defendant’s fitness. This position has its genesis in Brandon, although it was not specifically articulated until People v. Gevas, 166 Ill. 2d 461 (1995). In Brandon, we stated that section 104 — 21(a) “evinces a recognition by the General Assembly that psychotropic medication is an important signal that a defendant may not be competent to stand trial.” Brandon, 162 Ill. 2d at 457. In Gevas, we specifically stated that, “The legislature has equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial.” Gevas, 166 Ill. 2d at 469. Three members of this court have taken the position that the right to a fitness hearing in section 104 — 21(a) cannot be equated with a bona fide doubt of a defendant’s fitness and is much broader than the constitutional right with which it is mistaken. People v. Birdsall, 172 Ill. 2d 464, 482 (1996) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). These justices have pointed out that, under section 104 — 21(a), a defendant taking psychotropic or other medication is entitled to a fitness hearing “even in the absence of evidence that might otherwise trigger an inquiry into the separate constitutional right.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). As previously stated, section 104 — 21(a) merely contained a statutory right conferred by the legislature. The legislature has now rewritten the statute to remove that right. If the right was constitutional, the legislature could not have eliminated it.

This court’s prior determination that the legislature equated the ingestion of psychotropic medication with a bona fide doubt of defendant’s fitness was simply erroneous. Section 104 — 11(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104 — 11(a) (West 1998)) provides, in part, that “[w]hen a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.” Section 104 — 21(a), at the relevant time, provided that “[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issues of his fitness while under medication.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a).

The wording of these provisions is significant. The first places a mandatory burden on the trial judge to order a determination of a defendant’s fitness when a bona fide doubt of that fitness is raised. See People v. Reed, 177 Ill. 2d 389, 393 (1997) (“use of the word ‘shall’ is generally considered to express a mandatory reading”); Black’s Law Dictionary 1375 (6th ed. 1990) (“[a]s used in statutes, contracts, or the like, [shall] is generally imperative or mandatory”). The second provision merely provides that a defendant taking psychotropic or other medication under medical direction is entitled to a fitness hearing. The word “ ‘entitled’ ” means “ ‘to give a right or legal title to’ ” (Brandon, 162 Ill. 2d at 461, quoting Black’s Law Dictionary 532 (6th ed. 1990)), or “[t]o qualify for; to furnish with proper grounds for seeking or claiming” (Black’s Law Dictionary 532 (6th ed. 1990)). See also People v. Tilson, 108 Ill. App. 3d 973, 977 (1982) (“the word ‘entitled’ signifies the granting of a right or privilege to be exercised at the option of parties for whose benefit it is used; it is directly opposed to the idea of imposing an obligation or limitation”). Section 104 — 21(a) does not, as does section 104 — 11, require the trial judge to make a further inquiry when certain facts are brought to his attention. Rather, it gives the defendant the “proper grounds for seeking or claiming” a fitness hearing. As Justice Miller has stated, “While section 104 — 21(a) declares that a defendant receiving psychotropic drugs is entitled to a fitness hearing, the statute does not establish a defendant’s incompetency, say that a hearing must be held if the defendant refuses one, or excuse counsel’s failure to request a hearing in a timely manner.” Gevas, 166 Ill. 2d at 473 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); see also People v. Kinkead, 168 Ill. 2d 394, 419 (1995) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.) (“[t]o say that a defendant is ‘entitled’ to a fitness hearing is much different from saying that a hearing is absolutely required in all circumstances, no matter how tardy the defendant’s request might be”). We erred in Gevas when we stated, and in Brandon when it implied, that the legislature equated the administering of psychotropic medication to a defendant with a bona fide doubt as to his fitness to stand trial, and we no longer adhere to that conclusion.

Ineffective Assistance of Counsel

Defendant also argues that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to a section 104 — 21(a) fitness hearing. We first address whether defendant received the ineffective assistance of appellate counsel when his attorney failed to argue on direct appeal that he was denied due process when the trial court failed to hold a section 104 — 21(a) fitness hearing. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced the defendant as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendant must show that the failure to raise the issue was objectively unreasonable and that, but for this failure, a reasonable probability exists that the sentence or conviction would have been reversed. People v. Mack, 167 Ill. 2d 525, 532 (1995). Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues that in his judgment are without merit. People v. Whitehead, 169 Ill. 2d 355, 381 (1996).

Defendant cannot meet the first prong of the Strickland test in arguing that appellate counsel should have argued that he was denied due process when the court failed to hold sua sponte a fitness hearing when it found out that defendant was taking psychotropic medication. As thoroughly set out earlier in this opinion, defendant’s right to a fitness hearing under section 104 — 21(a) is a statutory rather than a constitutional right. At the time of defendant’s direct appeal, no Illinois court had held that a trial court’s failure to order sua sponte a section 104 — 21(a) fitness hearing deprived a defendant of due process. Defendant’s attorney therefore would have had no reason to believe that this court was about to reach that conclusion. Further, existing case law would have indicated that the argument was meritless. See Balfour v. Haws, 892 F.2d 556 (7th Cir. 1989); People v. Lopez, 216 Ill. App. 3d 83 (1991); People v. Balfour, 148 Ill. App. 3d 215 (1986); People v. Tilson, 108 Ill. App. 3d 973 (1982). Clearly defendant’s attorney’s decision not to raise this issue on direct appeal was not objectively unreasonable.

We next address whether trial counsel was ineffective for not requesting a fitness hearing and whether appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness in not requesting a fitness hearing. We must first consider the relevant standard for assessing claims of ineffective assistance of counsel for failing to request section 104 — 21(a) fitness hearings. In Brandon, we cited the Strickland standard, but then held that a defendant could meet the prejudice prong of Strickland merely by showing that, if his attorney would have requested a fitness hearing, he would have gotten one. Brandon, 162 Ill. 2d at 458-59. This was an unwarranted modification of the Strickland rule.

To establish prejudice under Strickland a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. As the Brandon dissent correctly noted, “the relevant inquiry in this case is not whether a fitness hearing would have been conducted if defense counsel had requested one under section 104— 21(a), but whether the outcome of the hearing would have been favorable to the defendant, that is, whether the defendant would have been found unfit to stand trial. The majority, by considering only whether a fitness hearing would have been held (Brandon, 162 Ill. 2d at 457-59), simply presumes the existence of prejudice in certain circumstances in which such a presumption is not warranted.” Brandon, 162 Ill. 2d at 462-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).

Clearly, defining the test as whether a defendant would have received a fitness hearing cannot be correct. If a defendant would have been found fit to stand trial, he suffered no prejudice by not having a fitness hearing. The correct test for evaluating prejudice in these situations is whether a reasonable probability exists that, if defendant would have received the section 104 — 21(a) fitness hearing to which he was entitled, the result of the proceeding would have been that he was found unfit to stand trial. Brandon is overruled.

We now consider whether defendant’s trial attorney was ineffective for failing to request a hearing. We will not find this claim waived for defendant’s failure to raise it on direct appeal because it depends on facts outside the original trial record. See Whitehead, 169 Ill. 2d at 372. After carefully reviewing the record and the evidence attached to the post-conviction petition, we cannot say that there was a reasonable probability that defendant would have been found unfit to stand trial.

Under section 104 — 10 of the Code, a defendant is unfit for trial “if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” Here, the record belies any claim that defendant did not understand the nature of the proceedings or was unable to assist in his defense. Defendant’s exchanges with the trial judge do not display any confusion about the nature of the proceedings, and defendant assisted in his defense by testifying in his own behalf. Defendant testified to his whereabouts at the relevant times, denied any involvement in the crime, and asserted that his confession to the police was coerced. Defendant’s testimony covered over 50 pages of the report of proceedings and does not disclose any signs of confusion about the nature or purpose of the proceedings. Similarly, defendant gave extensive testimony in support of his motions to suppress statements and evidence, and there is no indication that defendant did not understand the nature or purpose of those proceedings.

In Kinkead, we downplayed the importance of a defendant’s trial court demeanor in determining fitness, stating that it encouraged “unprincipled speculation into matters requiring medical expertise.” Kinkead, 168 Ill. 2d at 411. This position fails to consider the fundamental purpose of a fitness hearing, which is solely to determine a person’s ability to function within the context of a trial. People v. Murphy, 72 Ill. 2d 421, 432 (1978). By statute, evidence on the following matters is admissible at a fitness hearing:

“(1) The defendant’s knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;

(2) The defendant’s ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel;

(3) The defendant’s social behavior and abilities; orientation as to time and place; recognition of persons, places and things; and performance of motor processes.” 725 ILCS 5/104 — 16(b) (West 1998).

Defendant’s trial demeanor, as evidenced by the record, is clearly relevant to these factors. Nothing in the record indicates that defendant would be found unfit based on a consideration of these factors.

We recognize that a trial judge cannot rely on trial demeanor to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant’s fitness (Pate, 383 U.S. at 385-86, 15 L. Ed. 2d at 822, 86 S. Ct. at 842), but that is not the issue here; there is no evidence in the record suggesting a bona fide doubt of defendant’s fitness. The issue here is whether a reviewing court should ignore relevant and compelling evidence of a defendant’s fitness for trial when determining whether the outcome of a statutory fitness hearing would have been favorable to defendant.

The evidence that defendant attached to his post-conviction petition does not show a reasonable probability that defendant would have been found unfit. First, it must be remembered that defendant was not taking these medications for any underlying psychiatric problems. He was merely taking them to control seizures. Thus, the only real question is whether these medications in and of themselves rendered defendant unfit for trial. O’Donnell’s affidavit established that the combination of defendant’s medications might have affected defendant’s ability to make certain decisions. O’Donnell also believed that the medication may have caused defendant to appear too relaxed or detached during court proceedings. O’Donnell’s affidavit simply does not establish that defendant would not have been able to understand the nature and purpose of the proceedings or to assist in his defense.

Defendant also attached to his petition the affidavit of clinical psychologist Michael M. Gelbort. In the affidavit, Gelbort testifies to defendant’s learning disability, difficulty in school, borderline mental retardation, seizure disorder, and difficulty in processing information. In light of the factors that a trial court considers in determining fitness for trial, there is no reasonable probability that defendant would have been found unfit based on Gelbort’s testimony.

The facts of this case are similar to Murphy. The issue in Murphy was whether there was a bona fide doubt of the defendant’s fitness such that the trial court should have ordered a fitness hearing. In that case, psychiatric evidence established that defendant was mentally retarded and could only “ ‘understand simple procedures but not complicated ones or those having abstract meanings.’ ” Murphy, 72 Ill. 2d at 426-27. The defendant had a limited vocabulary and could not read above the first-grade level. However, the defendant testified in his own behalf, said that he knew what an attorney was and understood that his attorney was representing him, and read aloud from his signed statement and said that he could read the whole thing. Murphy, 72 Ill. 2d at 429. The defendant had previously told the police that he understood his Miranda rights. In holding that the record supported the trial court’s conclusion that no bona fide doubt of defendant’s fitness existed, we stated that the evidence showed “an educable mentally handicapped young man who comprehended his situation and recognized the nature and purpose of the proceedings against him and the function of an attorney to represent him. Defendant cooperated with [his attorney] in presenting his defense.” Murphy, 72 Ill. 2d at 434-35.

The record and post-conviction affidavits show that defendant was functioning at a higher level than the defendant in Murphy, fully understood the nature of the proceeding against him, and was able to cooperate in his defense. There is no reasonable probability that defendant would have been found unfit, and therefore defendant’s trial counsel was not ineffective for failing to request a fitness hearing. This conclusion also disposes of defendant’s argument that appellate counsel was ineffective for failing to raise this issue on direct appeal.

In sum, the right to a fitness hearing that used to be provided for in section 104 — 21(a) was a statutory right. A defendant did not have a due process right to such a hearing, and trial courts had no obligation to order sua sponte a section 104 — 21(a) fitness hearing if a defendant did not request one. Thus, in a post-conviction case, the claim will be considered only if it is framed in the context of ineffective assistance of counsel. To prevail on such a claim, a defendant must show a reasonable probability that, if a section 104 — 21(a) fitness hearing would have been held, he would have been found unfit to stand trial.

We are not unmindful of the import of today’s decision. Normally, because of stare decisis considerations, we would continue to adhere to our established precedent, even if certain members of this court disagreed with it. In this case, however, we deem it appropriate to depart from stare decisis. We stated in Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994), that “stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” No reasonable observer of this court’s jurisprudence could argue that the law in this area has been developing in a principled and intelligible fashion. As Justice Harrison stated in 1998, “This court decided People v. Brandon, 162 Ill. 2d 450 (1994), fewer than four years ago and has been running from it ever since.” Kinkead, 182 Ill. 2d at 348 (Harrison, J., specially concurring).

In 1995, we held that after a period of two years had passed it would be impossible to conduct a meaningful hearing as to defendant’s fitness at the time of trial and sentencing. Gevas, 166 Ill. 2d at 471. In 1996, we “rejected any notion that a nunc pro tune determination of fitness can provide the necessary reliability.” Nitz, 173 Ill. 2d at 164. In 1997, we saw no problem with a retrospective fitness hearing conducted 15 years after defendant’s trial and sentencing. Neal, 179 Ill. 2d at 553-56. In 1998, we held that the automatic reversal rule of Brandon had been replaced by the “case-by-case” approach and that a defendant could no longer prevail on a request for a new trial simply by showing that he had been taking psychotropic medications at the relevant time. Kinkead, 182 Ill. 2d at 340. Although not clearly stated in Kinkead, it appears that retrospective fitness hearings are now the norm. What was constitutionally forbidden three years ago is now compelled. This is not a principled and intelligible development of the law. As Justice Heiple wrote when rejecting stare decisis in another situation, “explicitly overruling Brinkmann is not an ‘erratic’change in the law. In the eighteen years since Brinkmann, every case interpreting Brinkmann, including today’s majority opinion, has eroded its holding. I would merely make explicit what this court has done implicitly for the last eighteen years.” McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 518 (1998) (Heiple, J., specially concurring).

Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law. Our jurisprudence in this area has become erratic and confused, and it all stems from an erroneous statutory interpretation five years ago. Stare decisis should not preclude us from admitting our mistake, interpreting the statute correctly, and bringing some stability and reason to this area of the law. As Justice Frankfurter once observed, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, 93 L. Ed. 259, 264, 69 S. Ct. 290, 293 (1949) (Frankfurter, J., dissenting). The trial court correctly dismissed defendant’s additional claims for post-conviction relief.

Ineffective Assistance of Counsel at the Suppression Hearing

Failure to Establish “Fruit of the Poisonous Tree”

Defendant next argues that his attorney was ineffective at the hearing on his motions to suppress evidence because he failed to establish that the physical evidence recovered from defendant’s basement was the fruit of his unlawful arrest. On direct appeal, we held that defendant’s due process rights were violated by the trial court’s failure to recall critical testimony by defendant that defendant did not believe he was free to leave police custody. However, we declined to remand the matter for a new suppression hearing because we concluded that, even if the trial court would find that defendant’s confession should have been suppressed, the other evidence of defendant’s guilt was so overwhelming that introduction of his confession was harmless error. Mitchell 1, 152 Ill. 2d at 326. We further held that defendant had not established that the physical evidence recovered from defendant’s basement was the “fruit of the poisonous tree.” Mitchell I, 152 Ill. 2d at 326-27.

Defendant argued on direct appeal that the physical evidence recovered from his basement was the fruit of his illegal detention. Defendant reasoned that he told the police that he was with Maurice Douglas on the night of the murders. The police questioned Douglas, and he told them where the murder weapon was probably hidden. We held that the record did not establish that Douglas told the police where the weapon was hidden and that defendant’s argument was based solely on conjecture. Without establishing that Douglas informed the police where defendant’s Ninja equipment and the murder weapon were hidden, defendant could not meet his initial burden of showing a connection between his detention and the police’s finding that evidence.

Defendant attached to his post-conviction petition the hearsay affidavit of Gilbert Roberts, an investigator with the office of the State Appellate Defender, who interviewed Douglas on November 19, 1993. In the affidavit, Roberts states that Douglas told him that Douglas told the police where the murder weapon was probably hidden. Defendant contends that he has now made the crucial connection showing that the physical evidence was the fruit of his unlawful detention and that his trial attorney was therefore ineffective for failing to make the connection at the suppression hearing.

Assuming, without deciding, that one can obtain an evidentiary hearing based upon inadmissable hearsay evidence, we find defendant’s argument to be meritless. Under the Strickland standard, counsel’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 prejudice prong of the Strickland test, a defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We find defendant’s argument to be without merit because we do not believe he has shown a reasonable probability that the outcome of the suppression hearing would have been different if his attorney had made and argued the Douglas connection.

We believe that if defendant would have argued the Douglas connection, the State would have prevailed under the inevitable discovery exception to the exclusionary rule. We recognize that, ordinarily, if the State does not raise the inevitable-discovery argument in the trial court, the argument will be considered waived. People v. Holveck, 141 Ill. 2d 84, 98-99 (1990). In this case, however, there was no reason for the State to make that argument at the suppression hearing because defendant did not argue that the evidence was found only because defendant told the police about Douglas. Defendant made that argument for the first time on direct appeal, and the State then argued in its response brief that the police would inevitably have discovered Douglas even without defendant’s statement. The defendant argued in his direct appeal reply brief that the State had waived this argument. Defendant cannot argue that the State waived its right to reply to an argument that defendant had not yet made. The State also made this argument at the hearing on the motion to dismiss the post-conviction petition, and hints at it, but does not develop it, in its current appellate brief.⁴ We believe we can properly consider this argument because we are only determining what the probable outcome of the suppression hearing would have been if defendant’s attorney would have made the argument that defendant contends he should have made. As the State raised inevitable discovery in response to the Douglas argument the first time it was made, we believe it is reasonably likely that the State would have made the argument if defendant had first made the Douglas argument at the suppression hearing.

Under the inevitable-discovery exception to the exclusionary" rule, evidence that otherwise would be inadmissible may be admitted if the prosecution can show that the evidence “ ‘would inevitably have been discovered without reference to the police error or misconduct.’ ” People v. Edwards, 144 Ill. 2d 108, 142 (1991), quoting Nix v. Williams, 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511 (1984). Professor LaFave has stated that, “Circumstances justifying application of the ‘inevitable discovery’ rule are most likely to be present if *** investigative procedures were already in progress prior to the discovery via illegal means.” 5 W. LaFave, Search & Seizure § 11.4(a), at 249 (3d ed. 1996).

Here, before defendant was taken to the police statian, the police were looking for a car that had been seen near where the murders occurred. The police had the car’s license plate number and knew that two black males were seen in the car. The police traced the car to defendant’s sister and learned that defendant had been" driving the car the night before. The police also spoke to defendant’s mother, who knew that defendant and Douglas were together the night of the murders. Defendant and Douglas had been friends since they were five years old. Douglas’ father also knew that defendant and Douglas were together on the night of the murders. Considering the above evidence, we simply cannot accept defendant’s contention that the police would not have found out that Douglas was with him the night of the crime if they had not illegally detained him. Before the police detained defendant, they knew he had been in the car and that there was another black male in the car. Given that a thorough investigation into the violent murder of two teenagers was underway, that defendant and Douglas were friends, and that the police were speaking to people who knew that Douglas and defendant had been together that night, we believe that it was inevitable that the police would have found Douglas even if defendant had not told them that Douglas was the person who was with him.

Defendant has not shown that the trial court erred in failing to suppress the physical evidence recovered from his basement. Assuming that the trial court would have ruled that defendant’s confession should have been suppressed, there is no reasonable probability that the court would have also ordered the physical evidence suppressed. If defendant’s attorney would have argued that the police only learned of that evidence through Douglas, and the police only learned about Douglas through defendant’s confession, there is a reasonable probability that the State would have argued the inevitable-discovery rule. We believe the State would have prevailed in showing that the physical evidence should not have been suppressed, even if the confession would have been. Accordingly, defendant has not established that his trial attorney was ineffective at the suppression hearing for failing to argue the Douglas connection. The court correctly dismissed this count of defendant’s post-conviction petition.

Failure to Establish that Defendant Would Not Have Been Able to Make a Valid Miranda Waiver

Defendant next argues that his trial counsel was ineffective at the hearing on the motion to suppress when he failed to introduce evidence that would have helped to establish that defendant was incapable of making a valid waiver of his Miranda rights. Defendant similarly raised a Miranda argument on direct appeal, but we declined to address it because we had already determined that, assuming defendant’s confession should have been suppressed, its admission into evidence was harmless error. Mitchell I, 152 Ill. 2d at 330.

Defendant tries to revive the Miranda argument by relying on post-conviction affidavits that he believes help to establish that he would have been unable to make a knowing, voluntary, and intelligent waiver of his Miranda rights. Just as we held on direct appeal, however, the Miranda issue is irrelevant given our determination that any error in the admission of defendant’s confession was harmless. Defendant suggests that the jurors would have given less weight to his confession if they had been apprised of the degree of his intellectual defects. We fail to see how this contention affects our conclusion on direct appeal that all of the remaining evidence, absent defendant’s confession to the police, so overwhelmingly established his guilt that any error in the admission of his confession was harmless. Our holding on this issue in the prior appeal is res judicata, and the trial court did not err in dismissing this count of defendant’s post-conviction petition.

Trial Court’s Refusal to Provide Funds for a Mitigation Expert

Defendant next argues that he was denied due process when the trial court denied his pretrial request for funds to hire a mitigation expert to assist with the capital sentencing hearing. We agree with the State that this claim is waived because it could have been raised on direct appeal. Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could not have been, previously adjudicated. Tenner, 175 Ill. 2d at 378. Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995). Defendant argues that this claim is not waived because it is based on evidence outside the original trial record. We disagree. This exception to the waiver rule in post-conviction appeals refers to those claims that could not have been considered by the reviewing court on direct appeal because the claim’s evidentiary basis was de hors the record. Whitehead, 169 Ill. 2d at 372. Defendant claims that, through the post-conviction affidavits of people critical of the presentence investigation report, he has now established that he was prejudiced by the trial court’s ruling. We are unsure why defendant is discussing prejudice. The question here is whether the trial court abused its discretion in denying defendant’s request for appointment of a mitigation specialist. See People v. Burt, 168 Ill. 2d 49, 79 (1995). The evidence necessary to resolve that question is what was presented to the trial court at the time the request was made.

In the motion, defendant’s attorney claimed that neither he nor the staff of the public defender’s office had the necessary skills to prepare a life history of defendant. At the hearing on the motion, defense counsel elaborated that the public defender’s office did not have adequate staff to prepare a mitigation report dealing with defendant’s schooling, his family and work histories, his medical records, and his school records. However, defense counsel told the court, “for the record, I’m aware of no— certainly there is no statute or basis for this request. I’m not aware of any, and I also am not aware of any case law in the circuit that allows the same, but, I believe that this request is very important.” Defense counsel also maintained that he did not believe that the probation department could do an adequate job.

The trial court denied the motion, and instead ordered the probation and court services department of St. Clair County to investigate defendant’s background and to prepare a report in the nature of a presentence investigation report. The court also ordered Cheryl Prost to conduct psychological examinations and tests on defendant and to make the results available to the State, defendant, and the court.. The question is, in light of what defense counsel represented to the trial court, did the court abuse its discretion in denying the request for a mitigation expert? Defendant preserved this issue in his post-trial motion, and argued it at the hearing on the post-trial motion. There is no reason he could not have made this argument on direct appeal. The argument does not depend on the fact that defendant now has attached to his petition what he considers to be better mitigating evidence. That was his argument all along: that he needed funds to have someone conduct an adequate investigation and that he would not be able on his own to muster evidence of this quality. This was a routine abuse of discretion argument that should have been presented on direct appeal, as it was in Burt and People v. Lear, 143 Ill. 2d 138 (1991). Defendant has waived this argument, and the trial court properly dismissed this count of the post-conviction petition.

Ineffective Assistance of Counsel: Failure to Investigate and Present Mitigating Evidence

Defendant next argues that he received the ineffective assistance of counsel when his attorney failed to conduct an adequate investigation of potential mitigating evidence and failed to present this evidence at his capital sentencing hearing. As this claim depends upon evidence outside the original trial record, it is not waived for counsel’s failure to raise it on direct appeal. See People v. Orange, 168 Ill. 2d 138, 149 (1995).

To prevail on a claim of ineffectiveness of counsel at sentencing, a defendant must show that his attorney’s performance fell below an objective standard of reasonableness and that, absent counsel’s errors, there is a reasonable probability that the trier of fact would have concluded that the balance of aggravating and mitigating factors did not warrant the death penalty. People v. Henderson, 171 Ill. 2d 124, 145 (1996). Counsel has a duty to make reasonable investigations of potential sources of mitigating evidence to present at a capital sentencing hearing. People v. Towns, 182 Ill. 2d 491, 510 (1998). When made after a thorough investigation of the law and facts relevant to plausible options, strategic choices of what evidence to present are virtually unchallengeable. Towns, 182 Ill. 2d at 514; Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. Choices made after less than complete investigation are reasonable to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Background

We begin by reviewing the evidence presented at the sentencing hearing. The State presented no evidence in aggravation. Defendant presented three witnesses in mitigation. The first person to testify was probation officer Michael Buettner, who prepared a presentence investigation report of defendant. Buettner testified that defendant was born on December 21, 1969. Buettner also testified about defendant’s family members, giving their ages and cities of residence. Defendant lived with his mother, who provided his room and board. Buettner testified that defendant attended school until the eighth grade and then dropped out. Defendant received average to below-average grades. For part of his education, defendant was enrolled in a home bound study program, but Buettner did not know what that was.

Buettner testified that defendant told him that he had worked at “Bob’s Liquor Store,” but Buettner could not verify that such a place existed. Defendant also claimed to have worked for a company selling cable boxes, but Buettner could not verify that. In the summer of 1986, defendant worked in a summer youth program.

Buettner learned that defendant had epilepsy and verified that defendant took phenobarbital and Depakote. Defendant said that in recent years he experienced seizures only twice a year while on that medication. Buettner did not discover any history of alcohol or drug abuse by defendant. Defendant told Buettner that there was no history of mental illness in his family. Defendant did not have an adult criminal record, and had one delinquency incident when he was 14 years old. At that time, defendant was charged with burglary and placed on two years’ probation. Defendant successfully completed the probation.

Cheryl Prost, a psychological consultant for the 20th Judicial Circuit, testified that she had been employed in that capacity for 19 years. Prost had a bachelor’s degree in psychology and a master’s degree in clinical psychology. She had also completed a year of doctoral work in psychology. She was ordered by the court to evaluate defendant. The evaluation took place at the St. Clair County jail and was conducted on days that defendant’s jury trial was underway. Prost testified that she gave defendant the Wechsler Adult Intelligence Scale tests, a short reading test, tests to determine eye motor coordination and visual memory problems, and a clinical analysis questionnaire.

Prost testified that the testing conditions were not good. She had to work around defendant’s trial, so the testing began as early as 6:15 a.m., there were interruptions from jail guards, and there was a lot of noise in the background. Defendant tried very hard to pay attention to what was going on and to shut out the noise. Prost believed that the test conditions might have caused defendant’s scores on the Wechsler test and the reading test to be slightly lower than they otherwise would have been. Prost discussed defendant’s educational background with him and learned that he had been in learning disability classes.

Prost explained that the results of the Wechsler test showed defendant’s verbal IQ to be 75, which is in the middle of the borderline range of mental retardation. Defendant’s performance IQ is 79, which is still in the borderline range of mental retardation, but is close to the dull-average range. Defendant’s full scale IQ score was 76, which is in the borderline range of mental retardation. The range of mild mental retardation is 60 to 69. Borderline mental retardation is 70 to 79, and dull average is 80 to 89.

Prost elaborated on defendant’s verbal IQ score, explaining that it is based on six subtests. An average score on any of these tests would be a 10, and anything below a 7 would indicate a serious problem area. Defendant’s scores were as follows: 3 on the information subtest, which tests academic information that one would pick up from being in class; 7 on the digit span, which is remembering a series of numbers forwards and backwards; 4 on vocabulary definitions; 6 on the arithmetic test; 8 on the comprehension section; and 5 on similarities, which compares two objects and asks how they are the same.

Prost further testified about defendant’s reading difficulties. She administered the Wide Range Achievement Test, and it showed that defendant’s reading level was fourth grade, first month. According to Prost, a fifth grade reading level is normally necessary to perform daily business. Defendant labored over the clinical analysis questionnaire questions, but he seemed able to comprehend them if given adequate time to do so. Defendant tested negative for any visual memory impairment or dyslexia.

Prost testified that the clinical analysis questionnaire, which she administered to defendant, asks 148 true/false questions about what a person is like or what types of experiences a person has. Defendant scored highly on five out of the six scales for depression. The tests showed that he felt anxiety and felt physically unwell at times. Prost reiterated that defendant was instructed to answer the questions based upon how he felt before he was arrested. Prost testified that defendant’s answers on the clinical analysis questionnaire showed that he was not having delusions, hallucinations, or strange experiences. Frost’s psychological report was admitted into evidence.

Defendant’s mother, Irene Mitchell, testified that defendant was 20 years old, the youngest of her six children. Defendant always minded her when he was growing up and never talked back. She had never had any discipline problems with defendant. Defendant’s father, Aber Mitchell, had worked at Olin Brass in East Alton, but the family was poor. Irene stayed home to raise the children. Aber was now deceased, as were all of defendant’s grandparents.

Irene testified that defendant suffered from epilepsy. Defendant suffered a head injury when he was around five years old and was playing Superman with his brother. Defendant’s foot slipped, and he hit his head on the rail of the bed. Defendant received stitches, and began having seizures seven months after the incident. The seizures are ongoing, and defendant has been treated for the seizures many times. Defendant initially took Dilantin for the seizures, but it did not control them sufficiently. Defendant’s medications were switched to “Depakene” and phenobarbital, and these worked better.

Irene testified that the children in the neighborhood loved defendant because he “trained them to do flips, acrobats and things like that, and they just love Anthony, all of them.” Defendant trained his dog, Poochie, very well, and appeared on a TV show, in which he demonstrated how he and his dog would do flips together.

Irene clarified that defendant’s juvenile conviction was for an incident in which defendant and five other kids broke into an empty house by going through a window. Defendant successfully completed probation and had no other encounters with the legal system.

Defendant did volunteer work with senior citizens in East St. Louis. He was going to school there for reading, and became good enough to help out some of the senior citizens. Irene testified that the senior citizens were crazy about defendant. Defendant attended church regularly at the New Bethlehem church.

Irene testified that defendant had learning difficulties and had a home tutor for two years. Defendant was having seizures, and Irene did not want him to miss too much school because his grades were already bad. A tutor came to defendant’s home every day, which was the home bound instruction to which Buettner referred. Irene testified that, during that period, defendant missed a lot of school because of his seizures.

Irene further testified that defendant got along well with his siblings and that he had close friends, some of whom testified on his behalf during the trial. Defendant had recently worked at Bob’s, which is a confectionary and variety store. The year before, defendant had worked at the Chrysler plant in St. Louis. Defendant was also taking courses at a police academy school in St. Louis; defendant had passed a course to become a security guard.

In the State’s closing argument, the assistant State’s Attorney argued that none of defendant’s mitigating evidence was sufficient to preclude the death penalty. The State pointed out that defendant had had contacts with the criminal justice system, had not worked, was borderline mentally retarded rather than mentally retarded, and was not suffering from mental illness.

The State acknowledged that it did not put on additional aggravating evidence, but rather focused on the violent nature of the crime. The assistant State’s Attorney noted that defendant armed himself with a knife, went into the Lienekes’ trailer and stabbed 18-year-old David, and then pursued 13-year-old Dawn into the bedroom and stabbed her seven times as she cowered under the covers with the telephone in her hand. He asked the jury to consider the terror that would have gone through the victims’ minds, and that defendant’s attack upon them was unprovoked and brutal.

Defendant’s attorney began by reminding the jurors that if even one of them felt there were mitigating factors sufficient to preclude the imposition of the death penalty, the defendant’s life could be spared and that he would be sentenced to a term of natural life imprisonment. Defense counsel reminded the jury that either sentence was very severe, and that at best the 20-year-old defendant would be spending the rest of his life in prison. He emphasized that the State had the opportunity to present additional aggravating evidence but had not produced any.

Defense counsel then asked the jury to consider that defendant was mildly mentally retarded or borderline mentally retarded. Defense counsel further argued that defendant was only 20 years old and had a family who loved him.

Defense counsel also pointed out that defendant’s one contact with the criminal justice system occurred when he was 14 years old and was not significant. Defense counsel went on to talk about defendant’s seizure disorder, that defendant had grown up poor, and had only a fourth-grade reading level. He emphasized that the cumulative nature of this evidence, and that the alternative to death was natural life imprisonment, showed that the death penalty was not appropriate in this case.

Analysis

Against this backdrop, we consider the additional mitigating evidence that defendant now contends should have been presented. Defendant first contends that the jury did not receive accurate and comprehensive information about his intellectual functioning. Defendant criticizes trial counsel’s reliance on Frost’s report. Defendant relies on an affidavit from Dr. Michael Gelbort, who is critical of Frost’s work in this case. Gelbort, a clinical psychologist, tested defendant at the Menard correctional center and determined that defendant’s verbal IQ was 73, his performance IQ was 75, and his full scale IQ was 73. Gelbort determined that defendant’s math skills were at a fourth-grade level and that his reading and spelling skills were below the third-grade level. Gelbort characterized defendant as having a severe language-based learning disability. Gelbort concluded that defendant’s cognitive abilities were limited and that, although defendant’s IQ scores showed that he was borderline mentally retarded, his inability to read and his slowed information-processing speed left him functioning more like someone in the mildly to mild/moderately impaired range.

We need not determine whether counsel’s performance was objectively unreasonable under the first prong of the Strickland test, because defendant clearly cannot meet the second prong. The jury was informed of defendant’s borderline retardation and his severe difficulties with reading and learning and did not find that those factors mitigated against imposition of the death penalty. There simply is no reasonable probability that, had the jury known that defendant’s IQ score might have been three points lower, that he actually read at below the third-grade level rather than at the fourth-grade level, and that a psychologist believed that the combination of his reading difficulties and low IQ left him functioning more in the mildly impaired range, it would have reached a different conclusion.

Defendant next argues that counsel minimized his seizure disorder to the point of insignificance and should have introduced more evidence on how it affected his day-to-day life. The jury learned that defendant had been suffering from epilepsy since he was a young child, that he initially took Dilantin, and then switched to Depakote and phenobarbital when that was ineffective. Even with the Depakote and phenobarbital, defendant was still suffering seizures twice a year. Defendant had been treated many times for his seizures, and they caused him to miss so much school that he had to get a home tutor. We do not agree that defense counsel’s evidence minimized defendant’s seizures to the point of insignificance.

Defendant claims that counsel should have introduced testimony from defendant’s sisters, who could have testified about what defendant’s seizures were like, how he had to be hospitalized for them many times, and how he missed school because of them. We believe this evidence would have been cumulative and there is no reasonable probability that additional testimony on this matter would have caused the jury to conclude that defendant’s epilepsy was a mitigating factor sufficient to preclude the death penalty.

Defendant also claims that defense counsel should have introduced evidence such as that found in Gelbort’s report that defendant sometimes had to go without his epilepsy medication as a child when the family could not afford it. Defendant points out that O’Donnell stated in his report that withholding medication in an epileptic patient can cause anxiety and apprehension. As there is no evidence that defendant was without his medication at or near the time of the murders, we do not believe defendant has shown there is a reasonable probability that the jury would have reached a different result based on this evidence.

Defendant next contends that defense counsel was ineffective for failing to introduce evidence that, because of his learning disabilities and illnesses, defendant was victimized throughout his youth. According to defendant’s brief, defendant was “continually degraded, humiliated, and subjected to the violence of bullies, in and out of school.” Defendant’s argument is based on the hearsay statements of defendant’s friend, Eric Nicholson, which are contained in a mitigation report prepared by social worker Jeffrey Eno. According to Eno’s report, Nicholson told him that defendant was laughed at by his peers and was picked on by other students. Nicholson recalled an incident in which another student put a choke hold on defendant. Nicholson also stated that defendant’s second-grade teacher, Ms. Davis, viciously ridiculed defendant for his inability to read up to grade level. Another childhood friend, Carlos Lumas, told Eno that other kids in the neighborhood picked on defendant and asked him to spell the word “tree.” Defendant told Eno that he was the target of gangs who would beat him up and try to recruit him, but that he successfully resisted their efforts.

On this issue we do not believe that defendant can meet the first prong of the Strickland test. Defendant has not shown that counsel’s decision not to present evidence of defendant’s turbulent childhood fell below an objective standard of reasonableness. As we noted in People v. Sanchez, 169 Ill. 2d 472, 491 (1996), evidence of a violent and abusive childhood is not inherently mitigating. Here, it appears that defense counsel’s strategy was to portray defendant as a pleasant person who was well-liked, who got along with other children in the neighborhood and taught them to do acrobatic tricks, who had close friends, and who volunteered his time to help others. It was not an objectively unreasonable strategy for defense counsel to emphasize this evidence rather than to portray defendant as an outcast and a loner who was picked on and beaten up. Defendant has not shown that his attorney’s performance in this regard fell below an objective standard of reasonableness.

Finally, defendant claims that the jury never received information about defendant’s history of depression and “other possible indicators of neurological/organic brain impairment.” Defendant points out that Gelbort observed that defendant’s mood was consistent with a reactive type of depression, and that, in 1983, defendant was diagnosed with childhood depression. Defendant also argues that several factors indicated that he had a neurological impairment, including a complicated birth, loss of consciousness after a head injury, another incident of blunt head trauma, possible lead intoxication, seizures, and a learning disability.

Again, defendant cannot meet the second prong of the Strickland test. Defendant’s claim that the jury received no information about his depression is untrue. Prost testified that defendant’s tests showed that he scored highly for depression on five out of six scales, and that he suffered from anxiety. The evidence also showed that defendant suffered from neurological impairment. It was established that defendant suffered from epilepsy following a head injury, that he had a learning disability, that he had difficulty reading, and that his IQ was in the borderline range for mental retardation. The jury rejected these factors as sufficiently mitigating to preclude the death penalty, and defendant has not established a reasonable probability that additional evidence on these matters would have changed that result.

We have carefully considered all of the evidence that defendant argues counsel was ineffective for not presenting in mitigation at his capital sentencing hearing. Defendant cannot meet both prongs of the Strickland test with any of this evidence. Accordingly, he has not made a substantial showing of the denial of the right to the effective assistance of counsel, and the trial court properly dismissed this count of the petition without an evidentiary hearing.

Adequacy of Post-Conviction Representation

Finally, defendant asks us to remand this cause to allow different attorneys to replead his petition. According to defendant, the petition’s shortcomings are such that it does not comply with either Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), or the right to a reasonable level of assistance (see People v. Flores, 153 Ill. 2d 264 (1992)). Defendant notes that his attorneys filed the original petition on December 7, 1993, but asked for an extension of time to complete additional investigation and discovery. Over the next 21k years, the circuit court allowed the attorneys several more extensions. They filed an amended petition on May 16, 1996, that raised three new claims, and attached the mitigation report of social worker Jeffrey Eno. However, the amended petition was largely the same as the original petition, and the three new claims covered barely more than two pages of the petition. De- • fendant argues that it is now apparent that his attorneys did nothing for 21h years but wait for a mitigation report, and then failed to incorporate adequately that report into the claims.

Defendant acknowledges that there is no sixth amendment right to the effective assistance of counsel in state post-conviction proceedings. Defendant’s right to counsel in post-conviction proceedings is statutory, and that right is the right to a reasonable level of assistance. Flores, 153 Ill. 2d at 276. Here, defendant’s attorneys clearly provided a reasonable level of assistance. They filed a lengthy post-conviction petition raising 17 new claims of deprivations of constitutional rights. The petition was supported by 47 exhibits. We do not believe that their representation was unreasonable merely because the only additional evidence they came up with in 21h years was a mitigation report.

Defendant contends that his attorneys did not meet their obligations under Rule 651(c). The State counters that Rule 651(c) applies only to defendants who file pro se petitions and does not apply when the original petition is filed by an attorney. Here, the provision of Rule 651(c) that defendant claims was not complied with was the one requiring the petitioner’s claims to be shaped into appropriate legal form. The clause defendant refers to is the one requiring counsel to affirm that he “has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c). As defendant did not file a pro se petition, his attorneys could not have violated that provision. Moreover, we find that petitioner’s claims are in appropriate legal form.

As a final matter, we note that defendant argues that counsel’s deficiencies prejudiced him particularly with respect to his second, third, and fourth appellate arguments. No additional evidence or pleading would have helped defendant on these arguments. As to the second appellate argument, even if it could have been conclusively established that Douglas was the only person who told the police where the items of physical evidence could be found, the police would have inevitably spoken to Douglas and found that evidence. Regarding the third argument, that argument is irrelevant in light of our holding that any error in the admission of defendant’s confession was harmless. Defendant waived the fourth argument by failing to raise it on direct appeal. We decline defendant’s invitation to remand this matter for repleading of the post-conviction petition.

CONCLUSION

Defendant’s post-conviction petition, supported by the accompanying exhibits and the trial record, does not make a substantial showing that defendant’s constitutional rights were violated. Accordingly, the court did not err in dismissing the petition without an evidentiary hearing. The judgment of the circuit court of St. Clair County is affirmed. The clerk of this court is directed to enter an order setting Wednesday, May 24, 2000, as the date on which the sentence of death entered in the circuit court is to be imposed. Defendant shall be executed in the manner provided by law (725 ILCS 5/119 — 5 (West 1996)). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the institution where defendant is now confined.

Judgment affirmed.

Footnotes

1

Brandon held that if a defendant is taking psychotropic medication at the time of trial or sentencing, and his attorney does not request a section 104 — 21(a) fitness hearing, the defendant has received the ineffective assistance of counsel and is entitled to a new trial. Brandon, 162 Ill. 2d at 458-61.

2

The PDR has a listing for “Psychotropics,” but the only listing under that heading says “see under Psychotherapeutic Agents.” Physicians’ Desk Reference 215 (53d ed. 1999).

3

Defendant does not argue that the Illinois Constitution affords him greater protection in this regard.

4

The State argues primarily that the evidence shows that it was just as likely that Viroon Williams told the police where the murder weapon was hidden. This assertion, however, does not defeat defendant’s argument. The police also learned about Williams from defendant.