People v. Patterson (192 Ill. 2d 93, 2000)

JUSTICE RATHJE

delivered the opinion of the court:

Defendant, Aaron Patterson, appeals from the trial court’s dismissal of his post-conviction petition. Because defendant was sentenced to death for the underlying murder conviction, he appeals directly to this court. See 134 Ill. 2d R. 651(a).

BACKGROUND

Procedural Background

A jury in the circuit court of Cook County convicted defendant of the murders of Vincent and Rafaela Sanchez. Subsequently, the jury found that there were no mitigating factors sufficient to preclude a sentence of death, and the trial court sentenced defendant to death. Defendant appealed, and we affirmed defendant’s convictions and sentence. People v. Patterson, 154 Ill. 2d 414 (1992). The Supreme Court denied defendant’s petition for a writ of certiorari. Patterson v. Illinois, 510 U.S. 879, 126 L. Ed. 2d 175, 114 S. Ct. 219 (1993).

Thereafter, defendant filed a timely post-conviction petition. The State moved to dismiss the petition, and the trial court granted the State’s motion. Defendant now appeals, arguing first that he was denied the effective assistance of counsel when his attorney failed to (a) discover and present additional evidence to support defendant’s claim that his confession was coerced; (b) discover and present evidence to support defendant’s motion to reopen his motion to suppress; (c) present evidence at trial that defendant’s confession was coerced; (d) present, during the post-trial proceedings, new evidence relating to defendant’s allegations of torture; (e) supplement the record on direct appeal or seek a remand; (f) interview witnesses who could have provided exculpatory testimony; (g) cross-examine witnesses properly; (h) seek to remove for cause the judge who presided over the pretrial proceedings; (i) argue that the trial court did not ask the proper questions during voir dire; (j) object to the use of residential burglary as an eligibility and aggravating factor; and (k) object to the trial court’s praise of the jury. In addition, defendant argues that (1) new evidence demonstrates that the trial court erred in denying defendant’s motion to suppress statements; (2) the State knowingly used perjured testimony; (3) he was denied his right to a fair trial when a police officer volunteered that defendant had taken a polygraph; and (4) the State violated its duties under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to tender the results of fingerprint examinations.

Pretrial Proceedings

In May 1986, defendant and Eric Caine were indicted for the Sanchez murders. Their case originally was assigned to Judge James Bailey. Defendant sought a substitution of judge. Rather than randomly assigning a new judge, Judge Bailey assigned the case to Judge Arthur Cieslik. Defendant moved to vacate the assignment to Judge Cieslik, and that motion was denied. Subsequently, defendant sought leave to file a writ of mandamus ordering that the case be assigned randomly. This court denied defendant’s motion.

Thereafter, defendant filed a motion to suppress statements that he had made while in police custody. After a hearing, the trial court denied that motion. Defendant’s attorney then filed a renewed motion to suppress statements or to reopen the evidence. The crux of defendant’s argument in his motions was that, to obtain defendant’s confession, the police officers struck him, attempted to suffocate him, and threatened him with a gun. The trial court, Judge John Morrissey presiding, denied that motion. Thereafter, defendant and Caine were simultaneously tried before separate juries.

Defendant’s Trial

The evidence at defendant’s trial established that, on April 19, 1986, Chicago police officers discovered the victims’ badly decomposed bodies in the Sanchez home. The police were called when Wayne Washington, a teenager who routinely performed odd jobs for Vincent, discovered that the Sanchezes’ door was open and that there was blood on the floor. Washington told the police that he had seen Caine and DeEdward White across from the Sanchez house.

The police took White into custody to question him. about the Sanchez murders. Subsequently, Marva Hall, White’s 16-year-old cousin, told the police that defendant had offered to sell her a chain saw and a shotgun. Defendant claimed that he had obtained the items from two elderly Mexicans that he had stabbed to death. Under cross-examination, Hall admitted that she had told a defense investigator that defendant had not told her that he had committed the murders. She explained, however, that she told the investigator this only because she was scared of defendant.

Several days after Hall spoke with the police, defendant was arrested on an unrelated charge. Detective James Pienta testified that, when he learned that defendant had been arrested, he questioned him about the Sanchez murders. Defendant told Pienta that Caine had approached defendant and said that he needed guns. Defendant and Caine knew that the Sanchezes had guns. They reached the house by traveling down the Illinois Central railroad tracks. Once at the house, defendant waited in the garage while Caine entered the house. Shortly thereafter, Caine came running out with a shotgun in a duffle bag, and the two fled.

When Pienta asked defendant to elaborate, defendant added that he had entered the Sanchez house and “came up like — up like a straight up Ninja” and “shanked” the “old man” because he was taking too much time to get the “good stuff.” Rafaela began screaming so defendant “shanked” her too. Thereafter, defendant repeated the same story to Pienta and Assistant State’s Attorney Kip Owen. At this time, defendant also stated that he had thrown the knife away on the railroad tracks. Although the police searched the railroad tracks for the knife, they never discovered it.

Former Assistant State’s Attorney Peter Troy testified that defendant told him that Caine, Michael Ar-buckle, “Cochise,” “Rambo,” and defendant went on a “mission” to the Sanchez home to retrieve guns and drugs. The remainder of defendant’s statement to Troy was consistent with his original statement to Pienta. Troy reduced this statement to writing, but defendant refused to sign it.

An assistant medical examiner testified that both victims died of stab wounds and that both had defense wounds. An expert in fingerprint identification testified that both a palmprint and a fingerprint recovered from the scene belonged to Vincent. A second fingerprint, recovered from a tape recorder, did not belong to Vincent, Rafaela, Wayne Washington, Willie Washington, Ar-buckle, Caine, or defendant.

Detective William Marley testified for defendant that, after hearing defendant’s statement, Owen wanted the police to perform additional investigation before he would authorize the filing charges against defendant. Carlton Ford testified that he, Steve Weathersby, and defendant were driving around in late April 1986, trying to sell a saw Weathersby owned. Ford testified that they saw Hall that day and asked her if she knew anyone who would want the saw. Ford also testified that there were no guns in the car. Defendant’s former girlfriend testified that she was with defendant on the night of April 17, the night that the State contends that the Sanchezes were murdered.

Post-Conviction Proceedings

This court affirmed defendant’s sentence and conviction on direct appeal. Defendant then filed a post-conviction petition, relying largely on evidence that numerous other people had made allegations similar to defendant’s about police brutality at Area 2. In particular, defendant relied on a report from the police department’s office of professional standard's (OPS). This report found that the abuse of prisoners at Area 2 was systemic. After allowing defendant to amend his petition, the trial court granted the State’s motion to dismiss. In dismissing the petition, the trial court stated that “any nexus between Area 2 Chicago Police Department Headquarters’ alleged systemic torture of people and Aaron Patterson is highly tenuous at best.” Defendant subsequently appealed.

ANALYSIS

Ineffective Assistance of Counsel

Defendant first raises several arguments as to how he was deprived of the effective assistance of counsel. To support a claim of ineffective assistance of counsel, a defendant must allege facts demonstrating that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 695, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068-69 (1984). A defendant must satisfy both prongs of the Strickland test; thus the failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998). Because the trial court dismissed defendant’s petition without holding an evidentiary hearing, we review that dismissal de novo. People v. Coleman, 183 Ill. 2d 366, 388 (1998).

Failure to Discover and Present Evidence to Support Defendant’s Claim of Torture

Defendant, who was represented by several different attorneys before his trial, asserts that each of these attorneys, along with his trial counsel and his post-trial counsel, was ineffective for failing to properly discover and present evidence that (1) Area 2 Lieutenant Jon Burge, who defendant alleges participated in torturing him, has a documented pattern of leading and participating in similar acts of torture; (2) Burge and the detectives who served under him had contemporaneously beaten and abused other suspects and witnesses in defendant’s case; and (3) defendant suffered psychological injury from the torture. Defendant also contends that his direct appeal counsel was ineffective for failing to raise the ineffectiveness claim with respect to his pretrial and trial counsel.

Defendant asserts that Luther Hicks, who represented defendant on his motion to suppress, was aware both of the details of defendant’s torture allegations and that a red-haired officer along with Detectives Pienta, Marley, Daniel McWeeny, and Raymond Madigan were involved.

Defendant alleges that Hicks should have discovered that the red-haired officer was Burge. Further, Hicks should have discovered that his supervisor was representing Andrew Wilson and that Wilson had raised similar torture allegations against Burge. Moreover, defendant contends that Hicks should have questioned other assistant public defenders to determine if their cases involved similar torture allegations at Area 2. Defendant concludes that, had Hicks properly conducted this investigation, he would have discovered almost 50 other victims of torture at Area 2.

Further, defendant asserts that Hicks should have discovered that Burge had actively participated in a “systemic policy and practice of torture” while at Area 2 and was involved in at least 50 incidents while he was there. Moreover, he claims that Hicks should have discovered that Pienta had been involved in prior acts of beating while working with Burge. After the other officers had finished, McWeeney would often act as the “good cop” who would help the prisoner if he would cooperate.

The problem with defendant’s argument is that much of the information relating to other allegations of torture would simply not have been discoverable by Hicks at the time of the suppression hearing in 1987. At approximately the same time that defendant’s case was proceeding, defendant’s current attorney, G. Flint Taylor, Jr., was representing Wilson in a federal suit against the City of Chicago, Burge, and other officers. Notwithstanding the fact that Taylor had available to him the full panoply of the civil discovery process, he did not discover the vast majority of the information upon which defendant now relies until February 1989, two years after Hicks filed defendant’s motion to suppress. Moreover, Taylor discovered the information relating to the other allegations of torture only because he was assisted by an anonymous police department informant.

Additionally, beyond interviewing anyone who had ever been a prisoner at Area 2, we can conceive of no manner in which Hicks reasonably could have obtained this information. At the time, the OPS had no reports indicating that several other people had been tortured. Defendant has identified no other available source that could provide this information.

After reviewing defendant’s allegations and considering the facts that were known when Hicks filed the motion to suppress, we will not find Hicks ineffective for failing to discover information that only an informant could provide. Because defense counsel would not have discovered this information, defendant was not prejudiced by counsel’s failure to investigate.

Defendant also alleges that Hicks should have investigated other contemporaneous allegations of torture from Caine, Arbuckle, and Iliya Rowland. To support his claim with respect to Caine, defendant attaches Caine’s original and amended motions to suppress. These motions allege that Caine was not informed of his Miranda rights, that the police officers promised him leniency, that the police officers struck him in the head and kicked him in the stomach, and that he was intoxicated when he gave his statement. The motions, however, do not identify any of the officers involved or describe with any particularity misconduct similar to what defendant suffered. Without some evidence indicating that the same officers or supervisors were involved or that the same type of misconduct was involved, we have no basis upon which to conclude that this evidence was relevant to defendant’s claims. See People v. Hobley, 159 Ill. 2d 272, 312 (1994) (holding that evidence of other allegations of torture was inadmissible, in part, because it was not similar to the allegations made by defendant).

Rowland’s affidavit alleges that the officers told him to implicate defendant, but it does not assert that the officers mistreated him. Arbuckle, in his affidavit, states that an Area 2 lieutenant (whom he later identified as Burge) threatened him. He does not allege, however, that Burge or any other officer used physical coercion. His allegations are limited to asserting that the officers verbally threatened him. Because these allegations are quite different from defendant’s, we are unable to conclude that they are relevant to defendant’s claim. See Hobley, 159 Ill. 2d at 312.

After reviewing the evidence submitted by defendant, we are unable to conclude that defendant has demonstrated that, had Hicks interviewed these witnesses, a reasonable probability exists that the result of the suppression hearing would have been different.

As for defendant’s claim about evidence of a psychological injury, defendant has not explained why Hicks would request a psychiatric examination of defendant. Defendant has not alleged that he told Hicks that the torture caused him psychological damage. Moreover, defendant has not alleged that any of his actions would have placed Hicks on notice that defendant had suffered a psychological injury. Without some evidence that would indicate to Hicks that defendant had suffered a psychological injury, we are unable to conclude that Hicks acted in an objectively unreasonable manner when he failed to secure a psychiatric examination of defendant.

Defendant also alleges that Hicks was ineffective in his presentation of hearsay evidence during defendant’s motion to suppress. At the motion, Hicks sought to introduce etchings made by defendant in the interrogation room after he had been interrogated. Photographs that Hicks sought to introduce revealed the following etchings on the bench in the interrogation room:

“I lied about murders police threatened me with violence slapped and suffocated me with plastic — no phone — no dad signed false statement to murders (Tonto) Aaron.”

“Sign false statements to murder, Tonto on statements is code word Aaron.”

Additionally, the photographs revealed the phrase “Aaron lied” etched in the door of the room.

During the motion to suppress, Hicks argued that the etchings were admissible under various exceptions to the hearsay rule. The trial court rejected Hicks’ argument. On appeal, defense counsel argued that the statements were admissible (1) as spontaneous declarations, (2) as prior consistent statements, and (3) under the doctrines of curative admissibility or completeness. This court rejected each of those claims. Patterson, 154 Ill. 2d at 452-54.

Defendant now claims that his trial and appellate attorneys were ineffective because they advanced the wrong arguments. Defendant explains that the etchings were admissible at the motion to suppress not because they fell within an exception to the hearsay rule but because hearsay is admissible at pretrial hearings in which the trial court is determining the admissibility of evidence.

The appellate court has recognized that hearsay evidence is admissible during a motion to suppress, even though it is not admissible at trial. People v. Lesure, 271 Ill. App. 3d 679, 680 (1995). Moreover, federal law supports defendant’s argument. Federal Rule of Evidence 104(a) provides, in relevant part, “Preliminary questions concerning *** the admissibility of evidence shall be determined by the court ***. In making its determination it is not bound by the rules of evidence except those with respect to privileges.” (Emphasis added.) Fed. R. Evid. 104(a). The Supreme Court has explained that no automatic rule precludes the admission of hearsay when a trial court is determining the admissibility of evidence. United States v. Matlock, 415 U.S. 164, 175, 39 L. Ed. 2d 242, 252, 94 S. Ct. 988, 995 (1974); see also United States v. Bolin, 514 F.2d 554, 557 (7th Cir. 1975) (holding that “it is clear that hearsay evidence is admissible in a hearing on a motion to suppress”).

After reviewing the cases cited by defendant, we agree with defendant that they support his contention that hearsay evidence is admissible during a hearing on a motion to suppress. That, however, is not sufficient to grant defendant relief on his claim. Under Strickland, a defendant must demonstrate a reasonable probability that, had this evidence been presented, 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. Given the context of defendant’s claim, that means that he must demonstrate that a reasonable probability exists that, had his appellate attorney argued on appeal that Hicks was ineffective, this court would have agreed. To do so, this court would have had to reach the conclusion that a reasonable probability exists that, had the etchings been introduced as admissible hearsay, the trial court would have concluded that defendant’s confession should have been suppressed. With this conclusion, we cannot agree.

When Hicks presented the pictures of the etchings during the motion to suppress, the trial court, in addition to excluding them from evidence as hearsay, specifically found that it did not believe that defendant had established that the etchings in the pictures were in the same condition as the etchings were when defendant allegedly made them. Moreover, the trial court twice stated that it believed that the etchings were not relevant to the motioii to suppress.

As noted by the Court in Matlock, although hearsay may be admissible during motions to suppress, the trial court is entitled to “give it such weight as his judgment and experience counsel.” Matlock, 415 U.S. at 175, 39 L. Ed. 2d at 252, 94 S. Ct. at 995. Here, we know exactly how much weight the trial court would have given it, had the court considered it: none. While this conclusion is by no means binding on any subsequent trier of fact, it is sufficient to allow us to conclude that, even if Hicks had argued that the etchings were admissible hearsay, no reasonable probability exists that defendant’s confession would have been suppressed.

Failure to Investigate, Present, and Preserve Evidence During the Motion to Suppress Statements or Reopen the Motion to Suppress

Defendant next contends that when Brian Dosch, the attorney who succeeded Hicks, sought to reopen the motion to suppress, he erred because he failed to (1) inform the court that the red-haired officer was Burge and that Burge supervised and participated in the policy and practice of torture at Area 2; (2) inform the court of the similarities between defendant’s allegations of torture and Wilson’s allegations; (3) document the other claims of torture by filing the “proffer” prepared by Wilson’s civil attorneys; and (4) subpoena Burge’s record from the OPS. Defendant also alleges that Dale Coventry, Dosch’s supervisor, failed to inform Dosch both of the similarity between defendant’s allegations of torture and the allegations raised by Wilson, Melvin Jones, and of the actions of Burge, Pienta, and McWeeny.

Allegations Relating to Coventry

With respect to the allegations relating to Coventry, defendant has cited no rule of law, and we are aware of none, that holds that the defendant’s attorney’s supervisor owes a constitutional duty to the defendant. Because defendant has failed to demonstrate that Coventry owed defendant a constitutional obligation, we must agree that the trial court properly dismissed the claims with respect to Coventry.

Defendant’s Identification of Burge as the Red-Haired Officer

As to the claims involving Dosch, defendant does not explain how Dosch’s identification of Burge as the red-haired officer would have affected either the trial court’s ruling on the motion or this court’s decision on appeal. Notably, on direct appeal, this court held that, although the red-haired officer was a material witness, it was within the trial court’s discretion not to require that the officer be called. Patterson, 154 Ill. 2d at 450. Defendant has failed to explain why a reasonable probability exists that, had either this court or the trial court known the identity of the red-haired officer, either court would have ruled differently. Accordingly, this claim must fail.

Similarities Between Defendant’s Allegations and Wilson’s Allegations

Next, defendant claims that counsel erred by failing to inform the court of the similarities between defendant’s and Wilson’s torture allegations. Counsel could be ineffective for failing to introduce this evidence only if it would have been admissible at defendant’s motion to suppress. Evidence is admissible if it is relevant to an issue in dispute and if its prejudicial effect does not substantially outweigh its probative value. People v. Gonzalez, 142 Ill. 2d 481, 487 (1991). Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Gonzalez, 142 Ill. 2d at 487-88. Probability is tested in the light of logic, experience, and accepted assumption as to human behavior. Marut v. Costello, 34 Ill. 2d 125, 128 (1966).

In past cases, this court has declined to find evidence of prior police brutality to be relevant when the defendant offered only generalized allegations of coercive activity at Area 2 (People v. Orange, 168 Ill. 2d 138, 150-51 (1995)) and when the allegations of brutality were not similar and occurred three years before the case at bar (Hobley, 159 Ill. 2d at 312).

The appellate court has found evidence of prior brutality admissible when the allegations were similar and involved the same officers, the incidents occurred only 13 months apart, and both the prior allegations and the allegations in the case before the court contained evidence of injury consistent with police brutality. People v. Banks, 192 Ill. App. 3d 986, 994 (1989). The appellate court also has found evidence of prior allegations of brutality admissible where the defendant could present evidence that “the police officers who questioned him systematically tortured other suspects to obtain confessions at or near the time he was questioned.” People v. Cannon, 293 Ill. App. 3d 634, 640 (1997). Additionally, the United States Court of Appeals, Seventh Circuit, has found evidence of prior allegations of brutality admissible when it involves the same officer, involves similar methods of torture, and occurs at or near the time of the current allegation. Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993).

Here, the State contends that the evidence of prior allegations of torture is inadmissible because defendant has failed to demonstrate that he suffered physical injuries consistent with his allegations of torture. Although we believe that this is a relevant consideration, we do not believe that the absence of physical injury, standing alone, precludes evidence of prior acts of brutality from being admissible. See Cannon, 293 Ill. App. 3d at 642.

Here, defendant testified at his suppression hearing that, when he was being transported to Area 2, he was in a car with Marley, Pedersen, Pienta, and James Hill, a friend of defendant. During this trip, Pienta reached across defendant and slapped Hill across the face. After doing this, Pienta turned to defendant and stated that, if he had been the officer who had found defendant, defendant would now be dead. Later, when the officers were interrogating defendant at the police station, Pienta said to the other officers in the room, “I don’t know about the rest of you, but I am tired of listening to this bullshit, I am about ready to kick his ass.”

Pienta then left the room and returned with four other officers. Pienta was carrying a manila folder and a gray plastic item, later identified as a typewriter cover. Thereafter, Pienta handcuffed defendant’s hands behind his back. Another officer turned off the lights, and Pienta slapped defendant across the chest and placed his hands around defendant’s neck. Pedersen then grabbed the typewriter cover and placed it over defendant’s face. Defendant testified that he could not breathe when the typewriter cover was over his face. Also, when the typewriter cover was over his face, the other officers hit him in the chest.

After approximately one minute, the officers removed the typewriter cover and turned the lights back on. Defendant then requested to speak to an attorney. Pienta replied, “No, you are not getting an m.f. attorney.” The officers then asked defendant if he was ready to cooperate. He told them that he had said all that he was going to say. The officers again turned the lights off and placed the typewriter cover over defendant’s face. After approximately one to two minutes, the officers removed the typewriter cover and turned the lights on.

Subsequently, defendant requested something to drink, and an officer gave him a plastic cup containing a brown liquid. The officer told defendant that the cup contained bourbon. The officers then told him that he was to tell an assistant State’s Attorney that he killed the victims. The officers left him alone for approximately one hour. During that time, defendant used a paper clip to scratch a statement into the bench on which he was sitting. An assistant State’s Attorney then arrived with a red-haired officer, later identified as Burge. After Burge left, pursuant to defendant’s request, defendant told the assistant State’s Attorney that he wanted an attorney and that he had nothing to say. Thereafter, the assistant State’s Attorney left. Burge then entered the room and sat across from defendant.

After taking a seat, Burge told defendant, “You are fucking up.” Defendant did not respond, and Burge said, “We told you if you didn’t do it — if you didn’t do what we told you to do that you was going to get something worse than what you had earlier. And what you had earlier will be a snap compared to what you will get.” Burge then placed his revolver on the table and asked, “[Y]ou are going to cooperate now, right?” Defendant’s only reply was to request an attorney. Burge then said, “[Y]ou know, that we [sic] just doing our job and this is nothing new to you, you know, the way we go about doing things around here, you know. If you decide to tell us that, it is your word against our word. And who are they going to believe you or us.” Burge then bolstered his revolver and left the room.

After that, Troy entered the room and told defendant that he was going to write a statement that defendant was to sign. Defendant said that he would sign the statement if Troy allowed him to make a phone call. Troy agreed. Defendant called an attorney and his grandmother. Troy took him to the interview room and asked defendant to sign the statement. After defendant refused to sign the statement, Troy left.

McWeeny then entered the room and told defendant that he was trying to help defendant and that defendant should cooperate because “they could do something serious” to defendant if he failed to cooperate. When defendant continued to refuse to sign the statement, the officers had defendant shower and they placed him in a cell.

The allegations made by Wilson are similar in some respects to those made by defendant. Wilson has testified that he was punched, kicked, and smothered with a plastic bag. He has also claimed that he was electrically shocked and forced against a hot radiator. Additionally, Wilson has testified that Burge placed a revolver in Wilson’s mouth when Burge was alone in the room with Wilson. Although both defendant and Wilson alleged that numerous officers were involved, the only officers that both included in their allegations were Burge and Pienta.

We first note that defendant’s allegations and Wilson’s allegations are not closely related in time. Wilson was arrested in February 1982. Defendant was arrested in April 1986. Thus, more than four years passed between the two occurrences. We recognize, however, that both defendant and Wilson alleged that they had been punched, kicked, and suffocated with a plastic bag. Moreover, Burge, while alone with each of them, used a revolver as a threat.

Notwithstanding these similarities, we do not believe that a reasonable probability exists that, had defense counsel informed the trial court of these similarities, the trial court would have found this evidence admissible or that we would have reversed this decision on appeal. As noted earlier, the Wilson incident occurred more than four years before the incident involving defendant. Additionally, at the time of defendant’s trial, Wilson believed that he was tortured not because officers at Area 2 routinely tortured all suspects, but rather because the officers routinely tortured those accused of killing police officers. See Wilson, 6 F.3d at 1236.

Because the information available at the time indicated that Wilson was mistreated for a reason wholly unrelated to defendant’s case, and because the evidence identified only a single incident of misconduct removed in time from defendant’s, we believe that the evidence is too attenuated to be relevant. Accordingly defendant’s attorney was not ineffective for failing to inform the court of the similarities between defendant’s and Wilson’s torture allegations.

Failure to Introduce Plaintiffs Proffer

Defendant next contends that his attorney was ineffective for failing to document the other allegations of torture by introducing the proffer prepared by Wilson’s civil attorneys. The proffer is a 12-page document detailing various allegations of torture by Burge and his associates during the years 1972 through 1984. In his affidavit, Dosch admits that he had the proffer before he sought to reopen defendant’s motion to suppress.

After examining the proffer, we do not believe that defense counsel was ineffective for failing to provide it to the trial court. The proffer is a summary of evidence prepared by Wilson’s civil attorneys for Wilson’s civil trials. We have previously recognized that documents prepared in anticipation of litigation “generally lack the earmarks of trustworthiness and reliability.” People v. Smith, 141 Ill. 2d 40, 73 (1990); see also 725 ILCS 5/115 — 5(c)(2) (West 1998). The plaintiffs proffer is nothing more than 12 pages of unreliable hearsay. Consequently, we are unable to conclude that, even if this proffer had been presented to the trial court, a reasonable probability exists that the court would have either reopened the hearing or suppressed defendant’s statements.

Failure to Subpoena Burge’s OPS Records

Defendant next contends that his attorney was ineffective for failing to subpoena Burge’s OPS records. Defendant, however, never explains what information was contained within Burge’s OPS records that would have assisted him in convincing the trial court to reopen the hearing on the motion to suppress or to grant defendant’s motion. Without this information, we have no basis to conclude that a reasonable probability exists that, had defense counsel subpoenaed the records, the result of the proceeding would have been different.

Failure to Introduce at Trial Evidence That Defendant’s Confession Was Coerced

Defendant next contends that his attorney was ineffective for failing to introduce evidence that his confession was coerced. Defendant contends that this error was particularly damaging because, during opening statements, defense counsel promised to present evidence that defendant’s statement was coerced.

Defendant could have raised this issue on direct appeal. Because he failed to do so, the issue is waived. See People v. Hobley, 182 Ill. 2d 404, 428 (1998). Defendant also argues, however, that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Consequently, we will review the underlying claim. See People v. West, 187 Ill. 2d 418, 435 (1999).

Dosch’s affidavit reveals that he chose not to have defendant testify that his confession was coerced or to present other evidence to corroborate defendant’s torture allegations because he believed that reversible error had occurred earlier during the trial when one of the State’s witnesses, in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), commented on defendant’s post-arrest silence. Unfortunately for defendant, this court did not agree with counsel’s assessment of the Doyle violation. Although this court agreed that a Doyle violation had occurred, the court held that the error was harmless beyond a reasonable doubt. Patterson, 154 Ill. 2d at 467-68.

We recognize that a mistake as to the law can be a basis for finding that an attorney was ineffective. See People v. Wright, 111 Ill. 2d 18 (1986) (holding that an attorney was ineffective for failing to pursue a voluntary intoxication defense because he did not understand the elements). Here, however, counsel’s error lies not in believing that the State had committed reversible error, but rather in deciding that, because of the error, he should not present the defense that he had promised to present.

Significantly, neither the State nor Dosch has ever explained what about the Doyle violation would have made defendant’s testimony less credible than it would have been had the Doyle violation not occurred. Because the Doyle violation did not undermine, in any manner, defendant’s defense, we fail to understand what about this Doyle violation would lead a reasonable attorney to conclude that he need not present the defense that he has already promised the jury that he will present. We also fail to see what strategy would lead Dosch to conclude that it would be best to pin defendant’s chance for success on the possibility of a reversal and remandment for a new trial rather than attempting to obtain an acquittal. Consequently, we believe that defendant has pleaded sufficient facts to demonstrate that counsel’s decision not to present this defense fell below an objective standard of reasonableness.

We now decide whether this failure to present a defense prejudiced defendant. As noted above, to demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. Notably, this standard does not require a defendant to demonstrate that counsel’s conduct more likely than not altered the outcome in the case. Strickland, 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2068. Instead, 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.

The evidence identifying defendant as the perpetrator consisted of (1) the oft-changing testimony of a teenager whose cousin had been a suspect in the crime; and (2) the testimony from the police officers and assistant State’s Attorneys concerning defendant’s confession.

The promised defense would have consisted of defendant’s testimony consistent with the testimony he provided at the motion to suppress. In his brief, defendant also contends that he could have introduced other evidence corroborating this testimony. The State raises numerous objections to this other testimony. Without deciding the effect of the other testimony, we believe that defendant has pleaded sufficient facts to undermine confidence in the jury’s verdict.

The evidence against defendant consisted essentially of the testimony of police officers and assistant State’s Attorneys stating that defendant had confessed. During opening statements, defendant’s attorney told the jury that they would hear evidence that defendant confessed only because the police beat him up and tried to suffocate him with a plastic bag. Notwithstanding this promise, defense counsel chose to present no such evidence. Although we are unable to conclude that, absent this failure, the result of the proceeding would have been different, we have no need to reach such a conclusion. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We need only determine that a reasonable probability exists that, had the evidence been present, the outcome would have been different. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. We are, of course, unable to divine the course the jury would have taken if it had heard this evidence, but we believe that, under the factual circumstances of this case, the evidence is of such import that our confidence in the jury’s verdict is undermined.

In reaching this conclusion, we emphasize that we are determining only that defendant has pleaded sufficient facts to enable him to obtain an evidentiary hearing. After the hearing, the trial court may conclude that defendant had demonstrated that his attorney was ineffective. On the other hand, the trial court may determine that the attorney had a previously undisclosed but objectively reasonable basis for failing to present defendant’s testimony or that defendant’s testimony is not so compelling as to undermine confidence in the jury’s verdict. That, however, is a question to be answered in the trial court.

Failure of Post-Trial Counsel to Present Newly Discovered Evidence of Torture Allegations

Following defendant’s conviction, Dosch sought to continue the date for filing a post-trial motion until after the trial transcripts were completed. The trial court denied the motion, and Dosch failed to file a post-judgment motion. Subsequently, this court remanded the action for the filing of a post-trial motion. Thereafter, in an arrangement with the office of the State Appellate Defender, Joan Kubalanza, an attorney with Foley & Lardner who normally handled commercial litigation, assumed primary responsibility for handling defendant’s post-trial motion and appeal.

Defendant now contends that, before Kubalanza filed her motion, she knew that (1) Burge was the red-haired officer; (2) a federal jury had found a policy and practice of torture and abuse by Area 2 detectives; and (3) the City of Chicago had held public hearings at which acts of torture and abuse by Burge had been detailed. Defendant also claims that Kubalanza had access to (1) trial counsel’s file containing Wilson’s proffer and information concerning Caine and Arbuckle, who could corroborate defendant’s testimony; (2) an article from the Chicago Reader documenting torture by Burge and other Area 2 detectives; and (3) an OPS report finding that physical and psychological abuse was systemic and methodical in Area 2 from 1973 through 1986. Defendant asserts that, if Kubalanza had introduced this new evidence, the trial court would have granted defendant’s motion for a new trial.

For new evidence to be sufficient to grant a defendant a new trial, the evidence (1) must be of such conclusive character that it will probably change the result on retrial; (2) must be material but not merely cumulative; and (3) must have been discovered since trial and be of such character that the defendant in the exercise of due diligence could not have discovered it earlier. People v. Molstad, 101 Ill. 2d 128, 134 (1984). Because defendant’s claim is based upon a claim of ineffective assistance of counsel, he must demonstrate that Kubalanza’s failure to introduce this evidence fell below an objective standard of reasonableness and that, but for counsel’s error, a reasonable probability exists that the result of the proceeding would have been different. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.

Turning to the facts that defendant contends Kubalanza should have introduced, we can easily discard some of them. The fact that Burge was the red-haired officer and the facts contained within trial counsel’s file were facts that were not “new.” Not only could they have reasonably been discovered earlier, they were. The article from the Chicago Reader is simply a newspaper article, and as such is essentially a collection of hearsay statements. Defendant fails to explain why this hearsay would have been admissible for any purpose. With respect to the hearings, defendant does not explain what information was revealed at those hearings that would have required the trial court to order a new trial.

Turning to the OPS report, we note that defendant concedes that the report was not public at the time Kubalanza filed defendant’s post-trial motion. Defendant contends, however, that the report could have been obtained by subpoena. Defendant, however, never explains why Kubalanza should have known that the OPS report existed. Without some explanation of why Kubalanza should have known that the OPS report existed, we will not find that Kubalanza’s actions fell below an objective standard of reasonableness. Kubalanza could not reasonably have been expected to engage in a fishing expedition by serving subpoenas on the Chicago police department. This is particularly true given that, just before defendant’s trial, Dosch had subpoenaed records from the OPS and the trial court found that the records that OPS delivered were not relevant to the litigation.

That leaves only the fact that a federal jury had found that Area 2 detectives had a policy and practice of torture and abuse. The evidence defendant relies on here is from the first Wilson civil trial. In that case, the jury found that Wilson’s civil rights were violated. However, the jury also exonerated all of the individual officers, including Burge. Moreover, the finding with respect to the policy and practice of abuse was a finding that “the City of Chicago had a de facto policy authorizing its police officers physically to abuse persons suspected of having killed or injured a police officer.” (Emphasis added.) Wilson, 6 F.3d at 1236.

After examining this evidence, we are unable to conclude that a reasonable probability exists that, had Kubalanza presented this in defendant’s post-trial motion, the trial court would have concluded that the evidence was of such character that it would likely change the result on retrial. First, the jury verdict implicated no officer at all, let alone any officer identified by defendant. Second, the jury’s finding, and Wilson’s theory of the case, was that Area 2 detectives tortured defendants that they believed had killed or injured police officers. Here, the victims were not police officers. Thus, any probative value that the jury’s verdict in the Wilson case might have is weakened to the point of irrelevancy. Consequently, we are unable to conclude that Kubalanza rendered the ineffective assistance of counsel when she prepared and presented defendant’s post-trial motion.

Failure of Appellate Counsel to Supplement the Record on Direct Appeal or Seek a Remand

Defendant next contends that Kubalanza was ineffective when she represented him on appeal. Specifically, he alleges that, by the time she filed his appellate brief, she (1) had obtained the OPS report finding a systemic pattern and practice of torture at Area 2; (2) had obtained an OPS report finding that Burge had tortured Wilson and recommending that Burge be fired; and (3) knew that the police board was holding public hearings at which Shadeed Mumin, Wilson, and Melvin Jones testified about acts of torture that “closely paralleled” the acts described by defendant. Defendant contends that Kubalanza should have either sought to supplement the record with this information or sought a remand to the trial court for a hearing on these issues.

Supreme Court Rule 329 (134 Ill. 2d R. 329) permits a party to amend the record on appeal to correct “[m]aterial omissions,” “inaccuracies,” or “improper authentication.” Rule 329 is not a vehicle through which a party may supplement a record with evidence that was not presented in the lower court. People v. Evans, 125 Ill. 2d 50, 94 (1988). Because the evidence defendant now relies upon was not presented in the lower court, no reasonable probability exists that, had a motion to supplement been made, that it would have been granted.

Turning to defendant’s assertion that Kubalanza should have filed a motion for remand, we are unable to conclude that Kubalanza’s failure to file such a motion fell below an objective standard of reasonableness. Although such a motion is not necessarily improper, defendant has not identified a single statute, court rule, or case that authorizes such a motion. Because of this, we are unable to conclude that Kubalanza’s failure to file the motion was objectively unreasonable.

Failure to Interview Other Witnesses

Defendant next contends that his trial attorneys were ineffective for failing to interview and present witnesses that were identified in the police and medical examiner’s reports. These witnesses included Ophelia Loy, Willie Washington, Mack Ray, and Rowland.

The State contends that, because the issue could have been raised on direct appeal, defendant has waived his claim that counsel was ineffective for failing to interview Loy. See Hobley, 182 Ill. 2d at 428. Although this is true, defendant argues that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Consequently, we will review the underlying claim. See West, 187 Ill. 2d at 435.

Defendant contends that Loy’s testimony would have impeached the reliability of the unsigned statement admitted against him. Loy, the victims’ neighbor, reportedly saw one of the victims raking grass on April 18, 1986, at 3 p.m. In defendant’s statement, however, he states that he killed the victims during the early morning hours of April 18.

The State asserts that defense counsel did not have Loy testify as a matter of trial strategy because her testimony would have directly contradicted defendant’s theory as to the victims’ time of death. After reviewing the evidence, we agree with the State’s assessment. During trial, defense counsel sought to establish that the victims had died before the time mentioned in defendant’s confession. Loy, however, would have testified that the victims died after the time indicated in defendant’s confession. Because Loy’s testimony would have directly contradicted defendant’s theory relating to the time of death, we believe that counsel’s decision not to call Loy was a matter of trial strategy and did not fall below an objective standard of reasonableness.

Defendant next asserts that his attorneys should have interviewed Willie Washington because he was a suspect in the Sanchez murders, he was identified in police reports as the person who killed the Sanchezes, and his brother Wayne knew the victims and discovered the bodies. Defendant contends that, if counsel had interviewed Washington, he would have learned that Washington lived near the victims and that the victims would open the door for him.

Defendant also contends that defense counsel should have interviewed Ray, who was reported in a police report to have told the police that Willie Washington had recruited him to rob the Sanchezes. According to Ray’s affidavit, if defense counsel had interviewed him, counsel would have learned that Ray, along with Willie and Wayne Washington, stole merchandise to sell to the Sanchezes. On several occasions, the Washington brothers asked Ray if he wanted to help them rob the Sanchezes. Ray declined each time.

Defendant also contends that counsel was ineffective for failing to interview Rowland. Defendant asserts that counsel should have interviewed Rowland because police reports indicate that defendant was at Rowland’s house just before the murders. Moreover, Rowland told Madigan that Ray had told him that Willie Washington had tried to recruit Ray to rob the Sanchezes and that defendant was with his girlfriend at the time of the murders.

The State first argues that defendant has waived his right to challenge counsel’s failure to interview and present the testimony of Washington, Ray, and Rowland. We must disagree. The evidentiary basis of the claims relating to these witnesses necessarily rests upon evidence that was de hors the direct appeal record. See People v. Whitehead, 169 Ill. 2d 355, 372 (1996). Here, Ray and Rowland have provided affidavits as to what their testimony would have been, and one of defendant’s attorneys who interviewed Washington in prison has filed an affidavit revealing what Washington told him during the interview.

After examining the affidavits, we are unable to conclude that defendant has demonstrated that, had he introduced this testimony, a reasonable probability exists that he would have been found not guilty. Ray, an admitted drug user who was in custody on a burglary charge, would have been able to testify only that the Washing-tons had asked him if he wanted to rob the Sanchezes. Ray had no information that either or both Washington brothers actually had committed the crime, and he was unable to identify with any specificity the time when they suggested robbing the Sanchezes. Rowland’s testimony is nothing more than hearsay that repeats Ray’s vague testimony. Finally, the information provided by Washington adds nothing of substance. After reviewing these affidavits, we are unable to conclude that, had counsel interviewed these witnesses and presented this evidence, a reasonable probability exists that the outcome of the trial would have been different.

Failure to Cross-Examine Witnesses Properly

Defendant next asserts that his attorney was ineffective for failing to cross-examine Hall properly. In particular, he asserts that counsel failed to perfect impeachment relating to (1) where Hall saw the shotgun defendant tried to sell her; and (2) what day defendant tried to sell her the shotgun.

The crux of defendant’s argument concerns counsel’s failure to impeach Hall with her testimony before the grand jury. Defendant, however, did not attach Hall’s grand jury testimony to his post-conviction petition. Without this evidence attached to his petition, defendant’s claim must fail. See 725 ILCS 5/122 — 2 (West 1998); People v. Turner, 187 Ill. 2d 406, 414 (1999).

The other issues defendant raises all involve a failure to cross-examine or perfect impeachment with respect to certain police reports. Defendant does not assert that these records were de hors the record on direct appeal. Consequently, we find these issues waived. See Hobley, 182 Ill. 2d at 428; Whitehead, 169 Ill. 2d at 372.

Failure to Seek Removal of Judge Cieslik for Cause

Defendant asserts that defense counsel was ineffective for failing to seek removal of Judge Cieslik for cause and that appellate counsel was ineffective for failing to raise this issue on appeal.

Defendant’s action was originally assigned to Judge Bailey. Defendant’s attorney, Thomas Bomba, sought a substitution as a matter of right (see 725 ILCS 5/114— 5(a) (West 1998)). When that motion was granted, Judge Bailey, rather than sending the.case to the office of the chief judge for random reassignment, assigned the case to Judge Cieslik. Bomba moved to vacate the case assignment, and Judge Cieslik denied that motion. Subsequently, defendant sought leave to file a petition for writ of mandamus or a supervisory order with this court. This court denied defendant’s motion.

Defendant could have raised this issue on direct appeal. Because he failed to do so, the issue is waived. Hobley, 182 Ill. 2d at 428. Defendant argues, however, that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Consequently, we will review the underlying claim. See West, 187 Ill. 2d at 435.

A defendant who seeks a substitution of judge for cause (see 725 ILCS 5/114 — 5(d) (West 1998)) bears the burden of establishing actual prejudice. People v. Vance, 76 Ill. 2d 171, 178 (1979). To meet this burden, the defendant must establish “animosity, hostility, ill will, or distrust towards this defendant.” Vance, 76 Ill. 2d at 181.

Defendant contends that Judge Cieslik demonstrated his prejudice when he (1) ruled against the motion to vacate the case assignment to Judge Cieslik filed by Bomba; (2) criticized defendant’s attitude; (3) criticized defendant’s objections to Neil Spector, who had been appointed to represent defendant; (4) referred to Hicks, in a different case, as “Smiley” and to another assistant public defender as “Laughing Boy”; (5) had a reputation for racial and sexual intolerance and had previously been censured for offensive comments to a female attorney; (6) made derogatory comments to both defendant and Hicks during the motion to suppress; and (7) stated, during defendant’s testimony during the motion to suppress, that he was not getting the facts from defendant.

The facts that Judge Cieslik ruled against defendant’s motion to vacate the case assignment and that he told Bomba that the motion was baseless are not reasons to grant a motion for substitution for cause. See Vance, 76 Ill. 2d at 178 (holding that the fact that a judge had ruled against the defendant is not a basis for finding the judge prejudiced); see also Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 490, 114 S. Ct. 1147, 1157 (1994) (explaining that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).

The comments criticizing defendant’s attitude and defendant’s objections to Spector similarly do not demonstrate an animosity, hostility, ill will, or distrust toward defendant. The first complained-of criticism occurred during the following colloquy.

“THE COURT: Any other matters that can be handled at this particular time?

A DEFENDANT: Did they catch the guy who did the double murder yet?

THE COURT: I don’t know anything about it sir. I really have no idea who they caught or anything. I have enough problems with the people that are before me, and I don’t want to get involved with some other people’s problems.

I not only have problems with the individuals, but certain other situations that you need not concern yourself.

The only problem I have, gentlemen, is that you all get a fair trial and you get fair consideration by this court, do you understand that?

A DEFENDANT: I understand, I’m just wondering is anybody earning their money around here besides sitting on your duffs.

THE COURT: How do you mean that?

A DEFENDANT: You got me up here for a double murder I didn’t even do.

THE COURT: Look, I know nothing about what’s happening in here. An attitude like that will do nothing for you.”

Defendant also complains of Judge Cieslik’s comments during a later proceeding in which defendant said, with respect to Spector, “He’s not representing me, your Honor, I don’t want him.” The trial judge responded,

“When did you think that you could tell me — just a minute. You listen to me. I listened to what you had to say. You are not going to tell me who’s going to represent you. Do you understand that? I am not running a courtroom where the defendants are telling me what they are going to do. There is no law that requires me to listen to you to tell me what I have to do. Do you understand that? I don’t tell you what you have to do. You are required to do certain things as required by rules of court and rules of statute or the Supreme Court. But there is [sic] no rules that I know of where a defendant can come out there and tell me that a particular individual is not representing him. You can indicate that you are not satisfied with him, and it is for me to make that decision.”

After reviewing the statements in their context, we are unable to conclude that they demonstrate animosity, hostility, ill will, or distrust toward defendant. Instead, they demonstrate nothing more than judicial expressions of impatience, dissatisfaction and annoyance that are within the bounds of what judges, as imperfect people, sometimes display, and such statements do not provide a basis for finding that Judge Cieslik was prejudiced against defendant. See Liteky, 510 U.S. at 555-56, 127 L. Ed. 2d at 491, 114 S. Ct. at 1157; see also People v. Blanck, 263 Ill. App. 3d 224, 232-33 (1994) (holding that an isolated comment made during a “momentary lapse of judicial composure” does not demonstrate the prejudice necessary to obtain a motion for substitution for cause).

Although we recognize the concern raised by Judge Cieslik’s statements in another case involving Hicks and another African-American assistant public defender, we do not believe that these statements are sufficient to demonstrate a prejudice against defendant. To begin with, the comments at issue were not directed at defendant. Granted, they were directed toward one of defendant’s attorneys, but our test looks to whether the trial court is prejudiced against the defendant. See Vance, 76 Ill. 2d at 181. Although situations may arise in which comments directed toward a defendant’s attorney can demonstrate animosity, hostility, ill will, or distrust toward the defendant, we do not believe that this single comment in another proceeding is sufficient to meet this standard. Moreover, the mere fact that Judge Cieslik allegedly had a reputation for racial and sexual intolerance is an insufficient basis upon which to grant a motion for substitution for cause. “To conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be lightly made.” Vance, 76 Ill. 2d at 179. Because of this, a defendant must demonstrate actual prejudice, not just the possibility of prejudice. People v. Hooper, 133 Ill. 2d 469, 513 (1989).

Finally, the comments directed toward defendant and his attorney during the motion to suppress do not demonstrate animosity, hostility, ill will, or distrust toward defendant. Defendant alleges that Judge Cieslik admonished him 11 times during defendant’s testimony to answer yes or no. Although the judge did, at times, instruct defendant to answer yes or no, he did so only where there was confusion over the question asked or when an objection had been raised. With respec