People v. Morgan (187 Ill. 2d 500, 1999)

JUSTICE McMORROW

delivered the opinion of the court:

Defendant, Samuel Morgan, was charged with two counts of murder and with aggravated kidnaping and rape. Following a jury trial in the circuit court of Cook County, defendant was found guilty of all charges. Defendant waived his right to a jury for the sentencing phase of the proceedings, and the circuit court found defendant eligible for the death penalty on the basis that he was convicted of murdering two individuals. Ill. Rev. Stat. 1981, ch. 38, par. 9—1(b)(3). The court then determined that no factors in mitigation were presented to preclude imposition of the death penalty and sentenced defendant to death for the murders. The circuit court also imposed concurrent extended prison terms (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8-2(a)) of 60 years for the rape and 30 years for the aggravated kidnaping. On direct appeal, this court affirmed defendant’s convictions on all charges, and affirmed his sentence of death. This court also vacated the extended-term sentences imposed for rape and aggravated kidnaping and, pursuant to Supreme Court Rule 615, reduced defendant’s sentence for rape to 30 years and his aggravated kidnaping sentence to 15 years. People v. Morgan, 112 Ill. 2d 111 (1986). The United States Supreme Court subsequently denied defendant’s petition for writ of certiorari. Morgan v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329 (1987).

Defendant thereafter filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122—1 et seq. (West 1994)), challenging his convictions and death sentence. The circuit court dismissed all claims presented in defendant’s post-conviction petition without an evidentiary hearing, with one exception. The court granted an evidentiary hearing on defendant’s allegation that his trial counsel, Lawrence Levin, was ineffective because he failed to investigate and present certain mitigation evidence at sentencing. Following the evidentiary hearing, the circuit court denied defendant relief on this claim as well. This appeal followed.

BACKGROUND

This court previously detailed the evidence presented at defendant’s trial in our opinion on direct appeal. See People v. Morgan, 112 Ill. 2d 111 (1986). Therefore, we reiterate only those facts which are germane to the issues raised in this appeal. We set forth in some detail the facts relating to defendant’s sentencing hearing and the evidence presented in the post-conviction proceedings.

Defendant was charged with the murders of William Motley and Kenneth Merkson, and the aggravated kidnaping and rape of Phyllis Gregson. On the afternoon of January 27, 1982, defendant visited his longtime friend, Elijah Prater, at Prater’s apartment at 1627 West Lawrence Avenue in Chicago. Accompanying defendant to Prater’s apartment were Motley and Merkson, two friends of defendant. The evidence presented at trial showed that, after the trio arrived at Prater’s apartment, all four men used various drugs and alcohol. Another friend of Prater, Phyllis Gregson, arrived at Prater’s apartment sometime after 8 p.m.

The four men and Gregson spent the night at Prater’s apartment. At approximately 11:30 a.m. on January 28, Motley, Gregson and defendant were in the apartment’s front room. The evidence showed that Motley was sitting on a couch, talking on the telephone, and looking through a small, black telephone book. As he was making phone calls, Motley had a .357 Magnum handgun tucked under his leg. Defendant was sitting on a chair with a shotgun across his lap. Prater and Merkson were in the kitchen.

At that point, defendant instructed Gregson to remove her clothing and dance for him. Gregson refused, and Motley, who was still sitting on the couch, made an unknown comment to defendant. Defendant, who was between six and seven feet away from Motley, aimed the shotgun at him and fired. Motley landed on the floor with a fatal shotgun wound to the chest. Defendant then removed the handgun from Motley’s body and placed the gun in his own waistband.

Defendant thereafter went into the kitchen and told Prater and Merkson to come into the front room and clean up Motley’s body. Merkson removed money, marijuana, and the black telephone book from Motley and gave them to defendant. Defendant looked at the names in the book, asked if anyone knew the listed individuals, and then placed the book in his pocket. Defendant said that he wanted to get Motley’s body out of the apartment and told Prater and Merkson to pull the drawer out of a bedroom dresser to determine if the body would fit inside. Although Motley’s body was bent and tied with a rope, the dresser drawer would not accommodate the body. Prater and Merkson then stuffed Motley’s tied body into a laundry bag and wrapped it inside a mattress. Defendant then instructed Gregson to clean Motley’s blood from the floor, which she did.

At approximately 11:45 a.m., defendant sent Prater to a liquor store to buy something to drink, told Prater to put gas in Prater’s car, and instructed him to park the car at the rear of the apartment building. Prater ran the errands and returned to the apartment approximately 15 minutes later. Upon Prater’s return, Gregson was washing dishes in the kitchen, and defendant was sitting in the dining room with the shotgun in his lap and the handgun tucked into the waistband of his pants. Merkson was walking around the apartment making jokes. Prater gave defendant the liquor he purchased and the men took a few drinks. Merkson continued to make jokes until defendant told him to stop joking and to remove Motley’s body from the apartment. Merkson and Prater then moved Motley’s body, wrapped inside the mattress, to the center of the room. When Merkson made another remark, defendant chased Merkson into the front room, where they started to argue. After hitting Merkson in the head with the butt of the handgun, defendant again instructed Merkson and Prater to remove the body from the apartment. Merkson made another remark to defendant and defendant told Merkson to get down on his knees and face the floor. Prater testified that he saw defendant point the handgun at Merkson’s head from a distance of four to five feet. Prater then turned to face the wall. Prater heard a shot and turned back to see Merkson’s body on the floor and defendant, holding the handgun, standing beside it. Gregson also testified that as she emerged from the kitchen she saw the handgun in defendant’s hand as he stood near Merkson’s body. Defendant ordered Gregson to clean up Merkson’s blood, and instructed Prater to get the body out of the apartment. As Prater began to tie up Merkson’s body with his belt, defendant came up behind Prater and began shooting at him. Prater testified that he felt a bullet pass by his head. Prater then ran through the kitchen and out the back door of the apartment.

Defendant, who was now alone with Gregson in the apartment, ordered her into the bathroom. Gregson complied, and locked the bathroom door behind her. After the passage of between 5 and 10 minutes, defendant ordered her out of the bathroom. When she emerged, she saw defendant was still in possession of the handgun, although she did not observe the shotgun. Defendant took Gregson by the arm and they left the apartment together at approximately 1:30 p.m.

In the meantime, Prater’s downstairs neighbor, Frank Blume, had called the police. Blume, who had heard several loud shattering sounds coming from Prater’s apartment during the morning, testified that the last loud blast, which occurred at about 1:15 p.m., caused a hole in the ceiling in Blume’s front hallway. The police arrived shortly after 1:30 p.m., and, upon entering Prater’s apartment, discovered the bodies of Motley and Merkson. From the apartment the police recovered a loaded shotgun, a fingerprint from a dresser drawer later identified as defendant’s, and a bullet from the floor. The police also recovered a bullet from Blume’s apartment.

Gregson testified that after leaving Prater’s apartment, defendant, who was still armed with the handgun, ordered her into his car and drove her to the South Shore Motel, where he checked in under the alias of Joseph Thurston. Defendant, who had Gregson by the arm, then led her to a motel room, where he began to undress her. Although Gregson told defendant that she did not want to have sex with him, defendant completed removing her clothes, pushed her onto the bed, and had sexual intercourse with her. Thereafter, defendant, who was still armed with the handgun, escorted Gregson by the arm to his car. A motel employee testified that he observed defendant pointing a gun to Gregson’s head. Defendant, upon seeing the employee, aimed the gun at him and began chasing him. As the employee ran towards the motel lobby, defendant ceased the chase, again took Greg-son by the arm, and pushed her headfirst into his car. Soon thereafter, defendant stopped the car and told Greg-son to get out. After warning her not to tell anyone what had happened, defendant drove off at a rapid rate of speed. Defendant was arrested the next day, January 29, 1982. Later that same day, Prater contacted the police and informed them that defendant was responsible for the deaths of Merkson and Motley. Prater’s statements to the police were subsequently confirmed by Gregson.

At trial, expert testimony showed that the handgun recovered from defendant at the time of his arrest had fired the bullets recovered at the apartment building. A plastic bag defendant dropped prior to his arrest contained a black notebook, which Prater and Gregson described at trial as being the one Merkson gave defendant from Motley’s body.

A jury found defendant guilty of all charges on May 3, 1983. Defendant waived a sentencing jury, and the trial court judge conducted defendant’s capital sentencing hearing on June 14, 1983. At the eligibility phase of the sentencing hearing, the State introduced into evidence a certified copy of defendant’s birth certificate showing that he was over 18 years of age at the time of the murders, and argued that defendant was eligible for the death sentence on the basis that he had been convicted of murdering two individuals. Ill. Rev. Stat. 1981, ch. 38, par. 9—1(b)(3). Defense counsel presented no evidence regarding defendant’s eligibility, but argued that because the Illinois death penalty statute was unconstitutional, “the proceedings *** in terms of the death penalty hearing should not be held.” Based upon the evidence offered, the trial court judge concluded that defendant was eligible for the death penalty.

The trial court judge then heard evidence relevant to aggravation and mitigation. In his opening remarks, the prosecutor focused upon defendant’s “consistent history of unprovoked violence,” and argued that, for most of his adult life, defendant “has been involved in violent confrontations with people, most of them innocent people.”

Defense counsel, in his opening statement, engaged in a religious appeal to the judge. Counsel stated: “What I can bring forth before this court, at this time, is the knowledge and wisdom of Catholicism, the Pope, the archbishops.” Although counsel admitted that “there can be no question that [defendant] has been found guilty of a crime,” counsel argued that by seeking the death penalty, the State “is proposing to this court *** that this court shall act in the stead of a God, that this court, with its supervising powers, shall become the almighty and terminate a man’s life.” Concerning mitigation evidence, counsel stated that he would “let the evidence speak for itself, insofar as mitigation is concerned,” and he promised the trial court judge that “[y]ou will hear from [defendant]. You will hear from kin of [defendant]. You will hear regarding medical testimony as to the problems medically that the defendant has had and still suffers from.”

During the State’s case in aggravation, the State introduced defendant’s criminal history, which dated back to 1965, and presented the testimony of five witnesses. The State’s first witness was Earnest Powell, who testified that as he was walking to his car one evening in November 1965, he was approached by defendant, who had a gun. Defendant told Powell to get out of his car, whereupon Powell’s wallet and car were stolen. Defendant was convicted of armed robbery and sentenced to three months’ imprisonment and five years’ probation.

While defendant was on probation for the armed robbery of Powell, defendant was arrested in May 1967 for the aggravated battery of Joseph Smoot. Smoot testified that he was playing softball at Washington Park when defendant, whom Smoot had never met, hit Smoot in the back of his head with a baseball bat. Defendant pled guilty to aggravated battery and was sentenced to three to five years’ imprisonment. Defendant was also sentenced to a concurrent term of three to five years’ imprisonment for jumping bail in connection with this offense. Finally, defendant was sentenced to an additional concurrent term of three to eight years’ imprisonment for violating the provisions of his original probation for the previous armed robbery conviction.

In October 1967, defendant was convicted of aggravated battery, intimidation and mob action in connection with a race riot at Cook County jail. James Czernek, who had been incarcerated at Cook County jail, testified that defendant, who was an organizer of the race riot, had instructed all white prisoners to kneel on the floor in the middle of the jail’s day room. Defendant then struck Czernek in the throat with a stick. For these offenses, defendant was sentenced to a term of three to five years’ imprisonment, to run concurrently with the other sentences mentioned above.

Chicago Police Officer John Gallagher also testified in aggravation. He stated that in October 1976 he investigated an armed robbery at defendant’s apartment and learned that defendant had shot two females with a sawed-off shotgun. However, on cross-examination, Gallagher acknowledged that the State subsequently moved to strike, with leave to reinstate, the aggravated battery and unlawful use of weapons charges against defendant stemming from the incident.

The State’s final witness in aggravation was Chicago Police Officer Paul Zacharias. In November 1981, he stopped defendant’s car for failure to display a state vehicle registration sticker. When defendant failed to produce a valid driver’s license, he was placed under arrest. As Officer Zacharias attempted to handcuff defendant, Zacharias’ partner observed a scale and two bags containing a white powdered substance on the front seat of defendant’s car. Defendant punched Officer Zacharias in the face with his fist and also hit and shoved the officer’s partner. Defendant then returned to his car and sped off, with the officers in pursuit. Defendant thereafter left his vehicle, and the officers gave chase on foot. Ultimately, defendant was apprehended and placed under arrest for possession of a controlled substance, possession with intent to deliver, and battery. The case was still pending at the time of the hearing in aggravation in the case at bar.

The mitigation case presented by defense counsel consisted of two witnesses, whose testimony comprised 10 pages of transcript. Defendant’s girlfriend, Rosemary Thomas, related that she met defendant in 1972, and they lived together from 1974 until the time of defendant’s arrest in this matter. Thomas testified that defendant played with her two small children, baked cookies with them, helped them with their homework, and instructed them not to argue with one another. She also stated that defendant provided her with moral support when she experienced difficult times. Thomas testified that she benefitted from her time together with defendant, and that she and her children loved him.

Defense counsel next called defendant’s mother, Josephine Rogers, who testified that she loved defendant. Then, the following exchange, which were the only references developed by the defense relating to defendant’s brain damage, took place between Rogers and defense counsel Levin:

“Q. Now, Miss Rogers, when [defendant] was a young man, approximately eight years of age, did he get hurt or was he involved in an incident?

A. Yeah, he got hurt. He started having seizures at the age of eight years old. He’s got a spot on his brains now, and he should be receiving medical care now which [ sic] he’s grown, and I can’t make him go.

Q. When he doesn’t take medical care or when he doesn’t receive his medicine, does he sometimes do things that he’s not responsible for?

A. He — when he doesn’t take his medicine, he have these seizures, and he’s a complete blank. You know, he don’t know what he’s doing.

Q. Since eight years old until today’s date, has he had problems as a result of the spot on his brain?

A. I don’t understand what you mean, problems?

Q. Well, as his mother, you are aware or you know that unless he takes his medication, he does have problems functioning?

A. Right.

Q. You’ve heard, Mrs. Rogers, the fact that we’ve been here — every day during the jury trial — and you heard the things that the jury found [defendant] doing. Does that in ■anyway diminish the love for your son, Ma’am?

A. No way.”

After the completion of Rogers’ testimony, defense counsel requested that the court grant a continuance to the next day because there were “certain other witnesses” that counsel stated that he wanted to call. The trial court judge denied this request, noting that the date for the sentencing hearing had been agreed to by both sides and the hearing was taking place over one month after defendant had been found guilty by the jury. Defense counsel then stated that because the court had not allowed a continuance, defendant had asked him to bring specific matters to the attention of the judge. In connection with defendant’s request, counsel drew the court’s attention to the contents of a 1978 presentence investigation report regarding defendant, and elaborated that “defendant has been receiving medication and had prior instances involving a spot on the brain which was supposed to have been traceable to an injury which occurred when he was eight years old. There is information that the defendant was treated and had been utilizing particular medication while during his incarceration.”

In closing argument at the aggravation-mitigation stage of the sentencing proceedings, the prosecutor commented to the court that defendant presented “two angles” of mitigation: “that the defendant is a loved person, that his mother loves him, that his girlfriend loves him, children love him *** [and] [s]econdly that the defendant suffered some medical incident when he was eight years old that causes him to have blank spots.” The prosecutor, focusing upon defense counsel’s promise during opening arguments that medical evidence would be presented regarding defendant’s medical problems, observed that the court had “not heard any medical testimony” other than “certain referrals in the presentence investigation,” and that there was no evidence presented “as to whether this medical condition would, in any way, mitigate or take away from the defendant’s conscious behavior when he performed certain acts.”

Defense counsel, in his closing argument at the aggravation-mitigation stage of the sentencing proceedings, acknowledged the “heinous nature of the events which took place,” and then again engaged in a primarily religious appeal to the judge to spare defendant’s life, stating: “If human beings, such as yourself, feel it appropriate to rectify the wrong and [mete] out a punishment, which is an eventuality of punishment, which is meted out by somebody else who is far more knowledgeable than you or I, who is the person who decides. The giver of life then — then I would suggest that this court has taken a step towards immortality which should not be done.”

In speaking of the mitigation evidence presented in support of defendant, counsel stated: “I would submit to this court when somebody has suggested that there is no mitigation, there is no right, that there is no love, they’re wrong. Mothers love their children. Wives love their husbands. Fathers love their children. But love is espoused by somebody much bigger than somebody who is not here today.” Counsel then concluded that “[mitigation many times is not something that can be directly spelled out by the mouth, by the words. Mitigation is not something which individuals come before this Court and say, I apologize, I forgive, I have sinned. Mitigation is the process of individuals. Mitigation is the love that is shown by individuals. Mitigation, in fact, Judge, is the being of human beings.”

On June 14, 1983, the trial judge, finding no mitigating factors sufficient to preclude the imposition of the death penalty, sentenced defendant to death on the murder charges and to concurrent extended prison terms of 60 and 30 years for rape and aggravated kidnaping. As part of his sentencing decision, the trial court judge stated that he took into consideration the factors of defendant’s background, as well as the circumstances of the crime. Concerning defendant’s background, the judge stated that it was “one of all criminal conduct and activity,” except for the facts related by defendant’s girlfriend. As to the circumstances of the crime, the judge observed that “[tjhere wasn’t any rhyme, there wasn’t any reason” to the “senseless killings.” The trial court judge stated that “I might say that this could be the part that could be very distasteful to this court or to this judge,” and that “I’m not a great proponent of the death penalty,” but “I have a job to do, and I’m going to do my job. I see no other sentence.”

Subsequent to this court’s consideration of defendant’s direct appeal (People v. Morgan, 112 Ill. 2d 111 (1986)) and the United State’s Supreme Court’s denial of defendant’s petition for writ of certiorari (Morgan v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329 (1987)), defendant, through the Cook County public defender’s office, filed a petition for post-conviction relief in January 1988. The post-conviction petition alleged that defendant’s constitutional rights were violated during his trial, sentencing, and direct appeal. Between July 1988 and April 1993, defendant underwent a series of neurological, psychological, neuropsychological and social history evaluations. In March 1993, the State filed a motion to dismiss defendant’s post-conviction petition. Defendant, again through the public defender’s office, filed an amended petition for post-conviction relief in July 1993. The State filed an amended motion to dismiss in October 1993. In August 1994, the public defender’s office was granted leave to withdraw as defendant’s post-conviction counsel, and defendant’s present counsel was appointed. On July 3, 1995, present counsel filed a second amended petition for post-conviction relief. A supplement to the second amended petition for post-conviction relief, as well as a second amended motion to dismiss, were also filed.

Defendant’s second amended petition raises numerous claims of ineffective assistance of counsel at trial, sentencing, and on direct appeal, in violation of defendant’s rights under the fourth, fifth, sixth, eighth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, VI, VIII, XTV), as well as his rights under article I, sections 2 and 11, of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 11). We set forth only those claims which are raised by defendant in this appeal. First, the petition alleged that defendant was denied effective assistance of counsel during trial and at the eligibility phase of sentencing because counsel failed to investigate and present certain defenses; failed to competently present the defense relied upon; was distracted by outside obligations; improperly admonished defendant concerning his right to testify; and failed to request exculpatory statements from the State. Second, the petition alleged that defendant was denied effective assistance of counsel during the aggravation-mitigation stage of the sentencing hearing because counsel failed to investigate and present mitigating evidence concerning defendant’s organic brain damage and family background; failed to address mitigating circumstances in defendant’s life during arguments at sentencing; allowed defendant to waive a sentencing jury in a manner not knowing, intelligent and voluntary; and failed to object to a presentence investigation report. Third, the petition alleged that defendant was deprived of the effective assistance of appellate counsel during his direct appeal.

In support of the allegations in his petition, defendant attached affidavits from several professionals, as well as copies of his medical records, school records, and arrest reports. Joanne Glass-Watson, a licensed social worker retained to investigate defendant’s social history and background, submitted an affidavit detailing defendant’s history of epileptic seizures beginning in infancy, defendant’s “chaotic family system” that fostered both physical abuse and benign neglect of defendant’s emotional needs, defendant’s early exposure to alcohol and drags resulting in early addiction, and defendant’s special learning needs which were not addressed by the school system. Glass-Watson concluded that “the combination of defendant’s addiction and his entry into the adult world with extremely limited abilities renders his frequent contacts with the criminal justice system almost an inevitability. It also appears from the results of neurological testing that [defendant’s] aggressive behavior may be directly attributable to his neurological problems.”

Dr. Jonathan Pincus, former chairman of the neurology department at Georgetown University, also submitted an affidavit on defendant’s behalf, wherein he concluded that “[a]t the time of the offenses, as a result of the significant level of neurological impairment exacerbated by the effects of cocaine, PCI^ and alcohol, [defendant] was under extreme mental and emotional disturbance.” Dr. Pincus further concluded that “[a]t the time of the offenses and throughout his life, [defendant’s] aggressive and violent behavior was the direct result of brain damage. His aggressive impulses have also been engendered by abuse and his extreme paranoia is the result of abuse and brain damage. All of these factors are beyond his control.”

Dr. Daniel J. Rybicki, a clinical psychologist, also submitted an affidavit on defendant’s behalf, in which he stated that various tests indicate that defendant “is capable of displaying prosocial attitudes and behavior.” Dr. Rybicki opined that defendant’s brain deficits “have had profound effects on his daily fife since his early childhood,” leading to an “inability to perceive social situations correctly and act accordingly, [an] inability to control his behavior, and [an] inability to act rationally during stressful situations.” Dr. Rybicki concluded: “In my opinion, which I hold to a reasonable degree of medical certainty in my profession, at the time of the offenses, [defendant] was under extreme mental and emotional disturbance. At the time of the offenses, [defendant’s] deficits *** significantly interfered with his ability to think logically and strategically and to understand the long term consequences of his actions. In addition, his capacity to conform his conduct to the requirements of the law was substantially impaired.”

Also attached to defendant’s petition were numerous affidavits from relatives and friends, many detailing defendant’s history of seizures. The affidavits generally describe how, over the years, the affiants had noticed or heard from others that defendant stuttered, had seizures, had strange fainting or blacking-out episodes, was forgetful, used drugs on occasion, became violent for “no reason at all,” acted “crazy and weird” in the police lockup after his arrest, and on occasion acted “hostile and paranoic.” Further, the rape victim in this case, Phyllis Gregson, submitted an affidavit stating that at the time of the offenses, the four men were using drugs and drinking, and that immediately prior to the first shooting defendant “flipped out.” The other eyewitness to the murders, Elijah Prater, also submitted an affidavit in which he stated that before the murders, defendant appeared to be “threatened” by the victims and that defendant believed the victims intended to kill him.

In June 1996, the circuit court ruled upon defendant’s petition. We note that the post-conviction judge was not the same judge who presided over defendant’s trial and sentencing due to the latter’s retirement. Based upon the content of the affidavits attached to defendant’s petition, the post-conviction judge determined that defendant had made a substantial showing of ineffective assistance of counsel only as to the allegation that defense counsel failed to investigate and present mitigation evidence during the capital sentencing hearing concerning defendant’s organic brain damage and medical condition. The post-conviction judge granted the State’s motion to dismiss the remainder of defendant’s petition without an evidentiary hearing.

The evidentiary hearing took place in October 1996. The post-conviction judge heard testimony from three witnesses presented by defendant and one witness presented by the State. Defendant’s first witness was his sister, Ruby Roberts. Roberts related that their mother would often fly into rages, and would beat her children two or three times per week using items such as extension cords, ropes and sticks. Roberts testified that during the beatings their mother would be “out of control,” and would only stop when the children cried. Roberts stated that defendant was beaten from age 3 to 16, and was beaten for a longer period of time than the other children because defendant would not cry. According to Roberts, as a result of the beatings defendant ran away from home as a teenager, spending time on the streets.

Roberts also testified concerning defendant’s medical condition. She related that when he was young, defendant would often bang his head against the floor and walls. Defendant was often hospitalized during his youth, and he routinely suffered seizures involving thrashing and foaming at the mouth which lasted from 15 to 20 minutes per occurrence. Roberts testified that even after he left home, defendant continued to have seizures: he would be seen lying in the street, convulsing, and foaming at the mouth.

Roberts testified that her mother, who was deceased at the time of the post-conviction proceedings, hired Levin as defense counsel the same day defendant was arrested. According to Roberts, the first time Levin was informed of defendant’s seizures by their mother was shortly after he was hired, and at that time Levin stated to her mother that he “would get on it right away.” According to Roberts, midway through defendant’s trial, she attempted to speak with Levin in the hall of the courthouse, but he “brushed [her] off.” Roberts testified that she wanted to remind Levin that defendant suffered from seizures and needed medical treatment in prison. Roberts stated that her mother followed Levin down the hall and repeated the same information to him. Roberts testified that Levin responded that “he was on top of it.” Roberts further testified that neither Levin nor anyone from his office ever attempted to talk to her prior to the commencement of the trial. Furthermore, although she and her mother attended the trial on a daily basis, neither Levin nor anyone from his office attempted to speak to them at that time. Roberts stated that on the occasions she would try to speak with Levin during trial, Levin “would just dismiss me and wálk away.”

At the time of defendant’s sentencing hearing, Roberts testified, she did not know the purpose of the court date. It was only when the judge stated that it was a death penalty hearing that she learned the purpose of the hearing. Before that day, she was not aware that defendant could be sentenced to death. Roberts further testified that counsel never asked her or her mother for names of people that could testify on defendant’s behalf, never asked her or her mother about defendant’s seizures, and never asked anyone about defendant’s health.

Defendant’s next witness at the post-conviction evidentiary hearing was Dr. Jonathan Pincus, former chairman of neurology at Georgetown University and chief of neurology at Georgetown University Hospital. Dr. Pincus testified that he personally examined defendant in 1990 and 1996, and studied defendant’s medical and school records, as well as his social background. Dr. Pincus described defendant’s history as the “most important part” of a neurological assessment, and observed that within defendant’s history there were repeated mentions of seizures that started when defendant was 20 months old and continued throughout his childhood. Based upon defendant’s medical records, Dr. Pincus concluded that defendant’s bout of meningo encephalitis at 20 months of age was the likely cause of defendant’s brain damage, which led defendant to suffer seizures. Dr. Pincus testified that brain damage never goes away, and in defendant’s case there is a correlation between his history of brain damage, medical history of seizures, and his learning disability.

Dr. Pincus related that defendant failed 6 of the 30 tests he was administered to determine the extent of the damage to the frontal lobes of his brain. According to Dr. Pincus, less than one percent of the population would fail this number of tests. Dr. Pincus concluded from these tests that defendant suffered from severe bilateral dysfunction of his frontal lobes, as well as from more diffused damage involving deep subcortical involvement. Dr. Pincus explained that the most important function of the brain’s frontal lobes is to control judgment “so that a person can see the outcome of what they’re thinking or doing.” When the frontal lobes are damaged, the person has “extremely poor judgment” and his personality changes. When asked how the damage to the frontal lobes affects defendant’s behavior, Dr. Pincus responded that the damage “makes him short tempered and unable to check his impulses.”

Dr. Pincus testified that there was a definite link between the criminal conduct described during the aggravation portion of defendant’s sentencing hearing and defendant’s brain damage. Dr. Pincus stated that the “best example” of such a link was defendant’s battery of Joseph Smoot, a man defendant did not know. According to Pincus, defendant’s brain damage caused him to have a “paranoid thought concerning that person. [Defendant] felt that he was doing something that was justified and he then behaved in a way which is to the objective observer *** completely irrational.” Dr. Pincus explained that defendant’s brain damage may cause him not to understand the consequences of his actions.

Dr. Pincus then focused upon defendant’s behavior at the time of the murders. Based upon his review of the trial transcripts and the affidavits of people who saw defendant that night, Dr. Pincus was of the opinion that defendant was acting in a “paranoid or psychotic state where he was not in control of what he was doing, where he was not able to plan. He was not able to think clearly and *** [reacted to a stimulus] in an unthinking kind of a way. He was not deliberative. He was not being premeditative. *** He was not able to focus his judgment on the issues that were coming up at that time. He was *** excessively paranoid at the time. And he was excessively confused.”

Dr. Pincus stated that the abuse suffered by defendant as a child, defendant’s paranoia, and the drugs defendant was using at the time of the murders were all important factors in connection with his behavior. However, Dr. Pincus opined that defendant’s brain damage was the “determining factor” in his behavior. According to Pincus, defendant’s “brain damage gave these factors their significance,” and if defendant “had no brain damage he would have been able to check [his impulses].” Dr. Pincus testified that defendant would not have conducted himself the way that he did at the time of the offenses if he did not have brain damage.

The final witness to testify on defendant’s behalf during the post-conviction evidentiary hearing was Dr. Daniel J. Rybicki. Dr. Rybicki, a clinical psychologist, met defendant on three occasions, in 1988, 1989, and 1993, with each meeting lasting approximately three hours. Dr. Rybicki administered various psychological tests to defendant, which showed near-normal intellect, but also evidenced a learning disability and problems with social judgment. Based upon his testing and examination of defendant’s records, Rybicki concluded that defendant’s brain damage was caused by encephalitis during defendant’s infancy, and that the damage is permanent.

Dr. Rybicki diagnosed defendant with “frontal lobe impairments which are quite extreme.” In describing the severity of defendant’s brain damage, Dr. Rybicki testified that 98% of the general population has a more intact brain than defendant. Further, 85% of those individuals with brain damage have a brain which is more intact than defendant’s. Dr. Rybicki also stated that due to the deficits in defendant’s frontal lobes, defendant suffers from “paranoid ideation” and is impaired in his “ability to think in logical sequences.” When asked whether defendant’s behavior at the time of the offenses was affected by his brain damage and learning disabilities, Dr. Rybicki responded in the affirmative. Rybicki also noted that defendant’s use of drugs and alcohol at the time of the offenses magnified his brain deficiency.

The sole witness called by the State during the post-conviction evidentiary hearing was defendant’s trial counsel, Lawrence Levin. Levin testified that at the time he represented defendant, he had been a licensed attorney for 11 years and had previously tried two or three capital cases. Levin repeatedly testified that he had “no independent recollection based on the passage of time.” Levin testified that although it was his practice to maintain a client’s file for a period of time, he did not retain defendant’s case file and had no idea where it was.

Although Levin stated that he could not independently recall defendant’s case, he testified that under circumstances similar to those present in defendant’s case, it was his “methodology and action to seek all witnesses who have information germane to a litigation hearing.” Levin then responded in the negative to questioning by the State as to whether defendant gave Levin any indication that defendant was suffering from mental illness or mental difficulties. Levin stated that defendant was able to converse with Levin without difficulty, and during his course of dealings with defendant, he never observed defendant blank out, lose his train of thought, mumble, appear impulsive and angry, or suffer seizures. Levin testified that although the 1978 presentence investigation report alluded to an incident when defendant was eight years old, there was no other suggestion that defendant was brain damaged. Levin further pointed to a 1983 presentence investigation report where there is no indication that defendant suffered from a medical condition.

On cross-examination, Levin stated that during his representation of defendant, “[t]o the best of my knowledge we had not received from the mother or anybody else the names of any doctors or treating physicians.” Further, Levin could not recall when defendant’s mother made him aware that defendant had a “spot on the brain” and suffered from seizures. Levin also could not recall if he interviewed defendant’s sister, Ruby Roberts, but stated that “my practice has been to interview all available witnesses *** who can engender or give some degree of help relative to a defendant at a mitigation hearing.” Levin stated that he was unaware whether defendant was under any medication while in jail. Finally, because Levin was unable to consult defendant’s case file, he could not recall if during his representation of defendant he had reviewed defendant’s school records, hospital records, or police file.

Upon conclusion of the evidentiary hearing, the post-conviction judge found that defense counsel’s performance at trial and sentencing was not deficient because it did not fall below an objective standard of reasonableness as measured by reference to professional norms. The judge found that Levin “did an adequate job based upon the information he had,” and that there was not sufficient evidence in the record “to indicate that the attorney should have known about any prior or current mental conditions since, in fact, everything that I have heard indicates that this was a prior mental condition.” The post-conviction judge further determined that even if Levin’s performance had been deficient, defendant did not suffer any prejudice. In view of the nature of defendant’s crime and his prior criminal record, the judge concluded that the outcome of defendant’s capital sentencing hearing would .not have been any different if, in fact, testimony of defendant’s medical condition had been presented.

Defendant now appeals the dismissal of the claims in his post-conviction petition. With respect to the post-conviction claims dismissed without an evidentiary hearing, defendant requests alternatively a new trial, a new sentencing hearing, or remand for an evidentiary hearing on those claims. Defendant also appeals the post-conviction judge’s finding following the evidentiary hearing that defense counsel was not deficient in failing to investigate and present potential mitigation evidence during defendant’s capital sentencing hearing. Defendant also challenges the post-conviction judge’s finding that, even if defense counsel’s performance was deficient, defendant suffered no prejudice as a result of counsel’s failure to present the potential mitigation evidence. Defendant contends that the court’s findings are manifestly erroneous and a new sentencing hearing should be ordered. Alternatively, defendant asserts that this court should direct the trial court to reopen the hearing on count III to permit a full development of the facts.

ANALYSIS

The Illinois Post-Conviction Hearing Act provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122—1 (West 1994). An action for post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Brisbon, 164 Ill. 2d 236, 242 (1995). In order to be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. People v. Tenner, 175 Ill. 2d 372, 377 (1997).

The purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that have not been, and could not have been, adjudicated previously upon direct appeal. People v. Towns, 182 Ill. 2d 491, 502 (1998); People v. Griffin, 178 Ill. 2d 65, 72-73 (1997). The doctrine of res judicata bars consideration of issues that were raised and decided on direct appeal. Towns, 182 Ill. 2d at 502; Griffin, 178 Ill. 2d at 73. Issues that could have been presented on direct appeal, but were not, are waived. Towns, 182 Ill. 2d at 503; Griffin, 178 Ill. 2d at 73.

An evidentiary hearing is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that a defendant’s constitutional rights have been violated. Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503. A trial court’s determinations regarding the sufficiency of the allegations contained in a post-conviction petition are reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). Determinations made by the trial court subsequent to an evidentiary hearing will not be disturbed unless manifestly erroneous. Towns, 182 Ill. 2d at 503.

Before this court, defendant raises several claims of ineffective assistance of counsel at trial, sentencing, and upon direct review, in violation of his rights under both the United States Constitution and the Illinois Constitution. The constitutional guarantee of the assistance of counsel (U.S. Const., amends. VI, XIV) includes the right to effective assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at trial and on a defendant’s first appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985)). Claims alleging ineffective assistance of counsel are judged under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Coleman, 183 Ill. 2d at 397.

To prevail on a claim asserting that counsel was not effective, a defendant must first establish that his defense counsel’s performance was deficient in that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. A defendant must establish that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Because judicial scrutiny of a defense counsel’s performance is highly deferential, “a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence.” Coleman, 183 Ill. 2d at 397.

If a defendant establishes that defense counsel’s representation fell below an objective standard of reasonableness, then 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

A defendant must satisfy both prongs of the Strickland test before he or she can prevail on a claim of ineffective assistance of counsel. However, if the ineffective assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not determine whether counsel’s performance was constitutionally deficient. Griffin, 178 Ill. 2d at 74.

Guilt and Eligibility Phases of Trial

Defendant contends that his post-conviction petition makes a substantial showing that he was deprived of his constitutional right to effective assistance of counsel at the “guilt and eligibility phases” of his trial. According to defendant, because counsel was ineffective in failing to investigate and present evidence of defendant’s brain damage and neurological impairments, defendant’s sole “defense” was to imply that the State’s two witnesses to the murder, Phyllis Gregson and Elijah Prater, were not believable and were accomplices to the crimes. Defendant observes that no evidence was provided at trial which was probative of defendant’s mental state at the time of the murders, and contends that witnesses were available who could have provided testimony concerning what defendant describes in his brief as his “bizarre behavior in and around the time of the homicides,” defendant’s “intake of drugs and alcohol that night and morning,” and defendant’s “extreme fear of Kenneth Merkson and William Motley.” According to defendant, defense counsel “failed to competently present the defense *** relied upon,” and should have investigated and pursued a mental state defense based upon extreme mental and emotional disturbance, and/or intoxication. Defendant also contends that counsel could have raised self-defense, or could have pursued a voluntary manslaughter claim based upon an unreasonable belief in self-defense, and/or sudden and intense passion. According to defendant, absent these errors, he would not have been found eligible for the death penalty because his eligibility was based upon the statutory provision requiring a finding of intent to kill two or more individuals. Ill. Rev. Stat. 1981, ch. 38, par. 9—1(b)(3).

Defendant, in his brief to this court, primarily cites to various passages from the affidavits of Gregson and Prater, including that defendant “flipped out” the night before the shootings, that defendant “snapped in and out of periods of extreme paranoia,” that defendant believed “devils and demons” were after him, and that all four men in the apartment were “drinking whisky, smoking marijuana, *** snorting cocaine” and possibly taking POP during the time preceding the murders. Defendant also relies upon statements in Prater’s affidavit that during the time in the apartment, defendant “appeared extremely threatened by [the victims],” that Motley made “at least five telephone calls throughout the night” in which he “whispered privately” so that no one else could hear, and that defendant stayed awake all night “because he believed that Motley and Merkson were going to kill him.” Defendant additionally relies upon the affidavit of his girlfriend, Rosemary Thomas, that defendant called her several times from Prater’s apartment, that he “sounded very strange” and that he told her that “devils and demons were after him.” Finally, defendant cites to the affidavit of his longtime friend, Van J. Ross, who visited defendant at the police station shortly after his arrest for the murders and avers that a police officer in charge of the lockup stated that defendant had been acting “crazy” and “weird.”

After carefully reviewing the affidavits attached to defendant’s petition, and taking all well-pleaded facts as true, we cannot say that defendant has made a substantial showing that there is a reasonable probability that defendant would not have been convicted of first degree murder if this testimony had been presented.

We find that defendant has failed to make a substantial showing that there is a reasonable probability that the outcome of his trial at the guilt-innocence phase would have been different had defense counsel raised the defense of intoxication. While voluntary intoxication is normally not a defense to the commission of a crime, evidence that the intoxication was so extreme ás to suspend the power of reason may be used to negate the existence of the mental state which is an element of the crime. Ill. Rev. Stat. 1981, ch. 38, par. 6—3(a); People v. Lucas, 132 Ill. 2d 399, 435 (1989). In light of the facts of the case at bar, there is no reasonable likelihood that testimony that defendant was intoxicated at the time of the murders would have successfully established the defense of voluntary intoxication or reduced defendant’s culpability to provide a basis for a conviction of voluntary manslaughter. Indeed, nowhere in the affidavits relied upon by defendant is there evidence that defendant’s purported intoxication was so severe that he could not form the requisite intent to support a first degree murder conviction. Our conclusion is further supported by the fact that although evidence was in the record and presented to the jury that defendant had consúmed drugs and alcohol at and around the time of the crimes, this evidence did not alter the jury’s finding of culpability.

We also reject defendant’s contention that he made a substantial showing that there is a reasonable likelihood that the result of his trial at the guilt-innocence phase would have been different had counsel investigated and presented evidence that defendant acted in self-defense, in an unreasonable belief in the need for self-defense, or under a sudden and intense passion resulting from serious provocation.

Section 7 — 1 of the Criminal Code of 1961 states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another ***.” Ill. Rev. Stat. 1981, ch. 38, par. 7—1.

It is well established that in order to raise a claim of self-defense, a defendant must present evidence supporting each of the following elements which justify the use of force in defense of a person: (1) that force had been threatened against defendant; (2) that defendant was not the aggressor; (3) that the danger of harm was imminent; (4) that the force threatened was unlawful; (5) that defendant actually believed that a danger existed, that the use of force was necessary to avert the danger, and that the kind and amount of force actually used was necessary; and (6) that defendant’s beliefs were reasonable. See People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995).

Defendant, relying upon statements in Prater’s affidavit that defendant “appeared extremely threatened by [the victims]” and that defendant “believed that Motley and Merkson were going to kill him” based upon phone calls that Motley made in which he “whispered,” contends that he was prejudiced by defense counsel’s failure to seek an instruction on self-defense. We disagree. There is no evidence of record that, at the time of the shootings, either Merkson or Motley made any threats of use of unlawful force against defendant that would lead a person to reasonably believe that there was an imminent danger of death or great bodily harm that required the use of deadly force in self-defense. It is undisputed that Motley was shot as he was sitting on the couch making phone calls, and that Merkson was shot in the back of the head after he complied with defendant’s instructions to kneel on the floor. Although defendant emphasizes the fact that Motley was armed with a handgun, defendant overlooks the fact that at the time of Motley’s murder defendant was also armed with a shotgun. In addition, at the time of Merkson’s shooting, Merkson was unarmed and defendant was in possession of the shotgun as well as Motley’s handgun. Defendant’s argument regarding self-defense is therefore untenable.

We also reject defendant’s contention that he has made a substantial showing that he was prejudiced by defense counsel’s failure to pursue an instruction for voluntary manslaughter. At the time of defendant’s trial, the statute provided that an instruction on voluntary manslaughter was available if there was evidence that the person had an actual but unreasonable belief that the circumstances required the use of deadly force as a means of self-defense, or that the killing occurred while he was acting under sudden and intense passion resulting from serious provocation. Ill. Rev. Stat. 1983, ch. 38, pars. 9—2(a), (b). An instruction on voluntary manslaughter based upon an unreasonable belief in justification is permissible only if a defendant presents some evidence that unlawful force was used against defendant, and that defendant was not the aggressor. See People v. Tenner, 157 Ill. 2d 341, 373 (1993); People v. Sloan, 111 Ill. 2d 517, 521 (1986). As discussed above, there is no evidence of record that either victim used unlawful force against defendant. The evidence indicates that defendant was the aggressor. Therefore, we find that defendant suffered no prejudice.

We further determine that defendant has failed to make a substantial showing that he suffered prejudice at the guilt-innocence phase of his trial due to the failure of defense counsel to request a jury instruction and verdict for voluntary manslaughter on the basis that at the time of the killing defendant was acting “under a sudden and intense passion resulting from serious provocation.” Ill. Rev. Stat. 1981, ch. 38, par. 9—2(a). To constitute “serious provocation,” it must be established that the provocation fits within certain recognized categories. The categories of serious provocation which have been recognized by this court are “ ‘ “substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with [defendant’s] spouse.”’” Tenner, 157 Ill. 2d at 371, quoting People v. Fausz, 95 Ill. 2d 535, 539 (1983), quoting People v. Crews, 38 Ill. 2d 331, 335 (1967). Neither the evidence of record, nor the facts presented in the affidavits, establish that any of the recognized provocations apply in the case at bar.

In a related argument, defendant contends that, but for the above-described errors on the part of defense counsel during the guilt-innocence phase of the proceedings, defendant would not have been found eligible for the death penalty because his eligibility was based on a statutory provision requiring a finding of intent to kill. Ill. Rev. Stat. 1991, ch. 38, par. 9—1(b)(3). For the reasons previously stated, we determine that defendant has failed to make a substantial showing that he was prejudiced at the eligibility stage of his trial due to defendant’s claims of counsel’s ineffectiveness during the guilt-innocence stage of the proceedings.

Defendant next contends that Levin was distracted from defendant’s trial due to outside obligations, resulting in Levin rendering ineffective assistance of counsel. According to defendant, the record indicates that Levin was fully occupied with other matters, both before and during defendant’s trial, and his inattentiveness to defendant’s case explains counsel’s lack of preparation, investigation, and strategic planning. In support of this claim, defendant cites to a comment made by Levin in response to the trial court judge’s query whether there was any reason that Levin could not proceed with defendant’s case immediately after he completed another criminal trial. Levin informed the judge that although he had been trying two criminal cases simultaneously during the prior three weeks, he could think of no reason why he could not immediately start defendant’s trial, “save for the burnout factor.”

Defendant further contends that Levin’s preoccupation with other matters did not cease when defendant’s trial commenced. According to defendant, because Levin was absent from the courtroom at many critical stages of the trial, defendant was left “effectively unrepresented.” Although Levin’s assistant, attorney Steven Decker, was present in the courtroom on the occasions when Levin was absent, defendant contends that Decker’s presence cannot excuse Levin’s absences. Additionally, defendant notes that Decker had not filed an appearance, on defendant’s behalf.

The State initially responds that defendant failed to raise this claim on his direct appeal, and thus it is waived. We disagree. The waiver doctrine does not apply where, as here, defendant asserts that the alleged waiver stems from ineffective assistance of appellate counsel. People v. Winsett, 153 Ill. 2d 335, 346 (1992). However, we find that defendant has failed to make a substantial showing that he suffered prejudice as a result of Levin’s courtroom absences.

We have repeatedly held that when a defendant claims ineffective assistance of counsel based upon allegations that counsel was distracted due t