People v. Enis (194 Ill. 2d 361, 2000)

JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Anthony Enis, appeals from an order of the circuit court of Lake County dismissing his post-conviction petition without an evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, his appeal lies directly to this court. See 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the dismissal of defendant’s post-conviction petition.

BACKGROUND

A. Criminal Trials

Defendant was indicted for the murder of Merlinda Entrata. A jury found defendant guilty of first degree murder. Defendant was sentenced to death. On direct appeal to this court, we reversed defendant’s conviction and sentence, based on the prosecutor’s improper cross-examination of defendant, and remanded the matter for a new trial. People v. Enis, 139 Ill. 2d 264 (1990).

On retrial, defendant was convicted of Entrata’s murder and sentenced to death. On direct review, we affirmed defendant’s conviction and sentence. People v. Enis, 163 Ill. 2d 367 (1994). Defendant’s petition for a writ of certiorari was denied. Enis v. Illinois, 516 U.S. 827, 133 L. Ed. 2d 50, 116 S. Ct. 94 (1995).

The evidence presented against defendant on retrial is discussed in this court’s opinion on direct appeal. See Enis, 163 Ill. 2d at 375-84. We provide a brief summary here.

The victim, Merlinda Entrata, was the complainant in a criminal sexual assault case against defendant that was set to begin trial on August 17, 1987. Defendant had pled not guilty to the sexual assault charge and had been released on a personal recognizance bond. On August 10, 1987, shortly before 7 a.m., police found Entrata’s body in the hallway of her Waukegan apartment building. She had sustained multiple close-range gunshot wounds to the head.

Prosecution witnesses identified defendant as the man they saw in the parking lot outside the victim’s building on the morning of the shooting. Clara Burk testified that she saw defendant, who was wearing sunglasses, pursue Entrata from the parking lot into the apartment building. Defendant was carrying a box that resembled a lunch box. Dan Thacker testified that he saw a man running after Entrata in the parking lot. The man, whose description fit defendant, was wearing white gloves, white sunglasses and dark clothing, and was carrying a metal lunch box. Richard Hanson identified defendant as the man he saw running in the parking lot. The man was wearing white gloves and white sunglasses. As he ran, the metal box he was carrying fell open and a gun fell out of the box. Sylvia Barrett also saw defendant in the parking lot on the morning of the shooting. Defendant was wearing a dark-blue jumpsuit. In addition, John Twardy saw a man run through the parking lot, drop something, and retrieve it. Twardy lost sight of the man, and then saw a red or maroon car drive away. Twardy testified that the vehicle owned by defendant’s girlfriend, Diane Gonzales, was similar to the car he saw leaving the parking lot. Within two hours of the shooting, police found Gonzales’ car parked outside defendant’s apartment. The hood of the car was warm. Unlike the other cars in the area, there was no dew on Gonzales’ car.

A jury found defendant guilty of Entrata’s murder. Defendant waived a jury at sentencing. The trial court determined that defendant was eligible for the death penalty in that he murdered the victim because she would have been a witness against him in a criminal prosecution (see Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(8)), and that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death. On direct appeal, we affirmed defendant’s conviction and death sentence. Enis, 163 Ill. 2d 367.

B. Post-Conviction Proceedings

On June 14, 1995, defendant filed a pro se petition for post-conviction relief. The circuit court appointed counsel to represent defendant in the post-conviction proceedings. The trial court subsequently granted attorney Robert Hauser leave to file an appearance as additional counsel in the post-conviction proceedings. In August 1996, Hauser directed a subpoena to the Wauke-gan police department, calling for the production of the “entire police file pertaining to Anthony Enis and/or Melissa Entratta [sic].” The circuit court granted the State’s motion to quash the subpoena.

On November 27, 1996, defendant, through counsel, filed an amended petition for post-conviction relief alleging that he was denied the effective assistance of counsel at trial and sentencing. Defendant attached numerous affidavits and other documents to the amended petition. On April 17, 1997, the State filed a motion to dismiss the amended petition for post-conviction relief, arguing that defendant’s claims are barred by the doctrines of res judicata and waiver, and are otherwise unsupported by the record or affidavit.

On April 25, 1997, defendant filed a motion for substitution of judge, alleging that certain rulings and comments by Judge Christopher Starck demonstrated prejudice against defendant. Defendant subsequently filed an amended motion for substitution of judge, with supporting affidavit, containing essentially the same allegations. Defendant’s amended motion was transferred for disposition to Judge Stephen Walter, who denied the motion.

On October 17, 1997, the circuit court granted defendant leave to file a supplement to the amended petition for post-conviction relief. In this supplement, defendant argued that appellate counsel was ineffective for failing to raise, on direct appeal, the issue of trial counsel’s ineffectiveness. The State responded with a motion to dismiss the supplement.

On November 4, 1998, the circuit court dismissed defendant’s petition for post-conviction relief without an evidentiary hearing. The circuit court ruled that the claimed instances of ineffective assistance of trial counsel involved matters of trial strategy, were not supported by affidavit, could have been raised on direct review, or were already considered on direct review. The circuit court also ruled that there were no meritorious claims of ineffective assistance of appellate counsel.

On appeal, defendant challenges the orders of the circuit court dismissing his post-conviction petition without an evidentiary hearing, granting the State’s motion to quash the subpoena directed to the Waukegan police department, and denying his motion for substitution of judge.

ANALYSIS

A. Post-Conviction Hearing Act

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 1998)) provides a remedy for criminal defendants who claim that a substantial violation of their constitutional rights occurred at the proceedings which resulted in their convictions, when such a claim was not, and could not have been, previously adjudicated. People v. Johnson, 191 Ill. 2d 257, 268 (2000). Issues that were decided on direct appeal are barred by the doctrine of res judicata, and issues that could have been raised on direct appeal, but were not, are deemed waived. People v. Cloutier, 191 Ill. 2d 392, 397 (2000); Johnson, 191 Ill. 2d at 268. Waiver is not implicated, however, where a defendant’s post-conviction claim relies on evidence dehors the record. People v. Holman, 164 Ill. 2d 356, 362, 376 (1995). The petitioner is entitled to a hearing on his post-conviction claims only where the allegations of the petition, supported by the trial court record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. Cloutier, 191 Ill. 2d at 397; People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded facts in the petition and in any accompanying affidavits are taken as true. People v. Towns, 182 Ill. 2d 491, 503 (1998). The sufficiency of the allegations contained in a post-conviction petition are reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

With these principles in mind, we consider whether the circuit court erred in dismissing defendant’s post-conviction petition without an evidentiary hearing. Although defendant’s petition raises numerous claims of ineffective assistance of counsel at trial, sentencing, and on direct appeal, we consider only those claims that defendant has raised in this appeal. See 177 Ill. 2d R. 341(e)(7).

B. Ineffective Assistance of Counsel

In order to succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged Strickland test: a defendant must allege facts which demonstrate that counsel’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 trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v. Wilson, 191 Ill. 2d 363, 370 (2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel’s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Strick land, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186 Ill. 2d 83, 93 (1999). There is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Wilson, 191 Ill. 2d at 370.

Claims of ineffective assistance of appellate counsel are also evaluated under the Strickland test. People v. Childress, 191 Ill. 2d 168, 175 (2000). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating that such failure was objectively unreasonable and that counsel’s decision prejudiced defendant. If the underlying issue is not meritorious, then defendant has suffered no prejudice. Childress, 191 Ill. 2d at 175.

We address individually each of defendant’s claims of ineffective assistance of counsel.

1. Opening Statement

Defendant claims that his counsel was ineffective because he made promises to the jury in his opening statement that he did not keep. In his opening statement, counsel indicated that the evidence would show that Merlinda Entrata reported the sexual assault days after it allegedly occurred; that at the time of Entrata’s murder, defendant was with Diane Gonzales, his then girlfriend, now his wife; and that R.C. Burton, defendant’s landlord, told police officers that as he left for work at 6:30 a.m. on the day of the murder, Gonzales’ car was parked outside defendant’s apartment. Defendant argues that no testimony or other evidence was introduced to establish these propositions.

Defendant raises the foregoing claim as a matter separate and distinct from his claim that his counsel was ineffective for failing to call certain witnesses at trial, including those witnesses who could have established some of the propositions listed above. We therefore view defendant’s claim as a challenge only to the propriety of counsel’s opening. Defendant, however, cites to nothing outside the trial court record in support of this claim. Accordingly, this issue could have been raised on direct review. The issue is therefore waived. See Johnson, 191 Ill. 2d at 268; People v. Olinger, 176 Ill. 2d 326, 365 (1997).

2. Failure to Call Witnesses

Defendant next claims that his counsel was ineffective for failing to present the testimony of several witnesses that would have rebutted the State’s case in chief and that would have fulfilled promises made to the jury in defense counsel’s opening statement. These witnesses include Moselle Williams, Michael Melius, R.C. Burton, Kathleen Jackson, Roy Norvell, Joseph Caliendo, David Asma, and Dr. Solomon Fulero.

Guiding our review of defendant’s claim is the principle that decisions concerning whether to call certain witnesses on a defendant’s behalf are matters of trial strategy, reserved to the discretion of trial counsel. People v. West, 187 Ill. 2d 418, 432 (1999); People v. Reid, 179 Ill. 2d 297, 310 (1997). Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather than incompetence (People v. Wiley, 165 Ill. 2d 259, 289 (1995)), and are, therefore, generally immune from claims of ineffective assistance of counsel (Reid, 179 Ill. 2d at 310). This is not the case, however, where counsel’s strategy was so unsound that no meaningful adversarial testing was conducted. West, 187 Ill. 2d at 432-33; Reid, 179 Ill. 2d at 310.

Moselle Williams

Defendant claims that Moselle Williams, had he been called as a witness at trial, would have testified that he drove Merlinda Entrata to the police station six days after the alleged sexual assault. Defendant argues that En-trata’s delay in reporting the alleged assault, and other evidence that the sexual assault case against defendant was weak, negates defendant’s motive for murdering En-trata.

The issue of counsel’s failure to present evidence as to Entrata’s delay in reporting the alleged sexual assault is barred by the doctrine of res judicata. On retrial, defendant’s counsel attempted to elicit testimony from former Assistant State’s Attorney Steven Simonian that Entrata did not report the alleged sexual assault until May 4, 1987, six days after its alleged occurrence. The State objected, citing a pretrial ruling which restricted the introduction of evidence relating to the sexual assault case. The trial court sustained the objection. On direct appeal, defendant argued that trial counsel was ineffective for failing to raise this issue in a post-trial motion and preserve it for review. Defendant further argued, on direct appeal, that the trial court’s exclusion of this evidence was plain error. Enis, 163 Ill. 2d at 403, 406. We rejected both arguments. We held that, assuming arguendo trial counsel was ineffective, the result of the trial would not have been different had counsel preserved this claim. Enis, 163 Ill. 2d at 407. We also held that the exclusion of such evidence was not plain error and did not deprive defendant of a fundamentally fair trial. Enis, 163 Ill. 2d at 403-04. Defendant cannot obtain post-conviction relief merely by rephrasing a claim which was previously addressed on direct appeal. See Evans, 186 Ill. 2d at 103; People v. Williams, 186 Ill. 2d 55, 62 (1999).

Defendant also claims that Williams would have testified that Entrata told him that she could not identify her attacker. In support of this claim, defendant attached to his post-conviction petition a copy of an unsigned, un-sworn, untitled report that defendant identifies as investigation notes from “Consolidated Investigation Services.” An investigation note, dated February 4, 1988, states that contact was made that day with Williams, who stated that Entrata had told him that she was sexually assaulted by a person wearing a mask and gloves and that she could not identify her attacker.

A claim that trial counsel failed to investigate and call a witness must be supported by an affidavit from the proposed witness. People v. Johnson, 183 Ill. 2d 176, 192 (1998); People v. Thompkins, 161 Ill. 2d 148, 163 (1994). In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary. Johnson, 183 Ill. 2d at 192; Thompkins, 161 Ill. 2d at 163. Defendant has failed to support his claim with an appropriate affidavit from Williams.

Even if we considered the February 4,1988, investigation note, in lieu of an affidavit, defendant has failed to demonstrate that there is a reasonable probability that the outcome of defendant’s trial would have been different had counsel presented Williams’ testimony. As this court stated on direct appeal, the evidence overwhelmingly proved defendant’s guilt. Enis, 163 Ill. 2d at 403. Williams’ proposed testimony would not have impeached or otherwise discredited the testimony of the three prosecution witnesses who identified defendant as the man they observed in the parking lot outside the victim’s apartment building on the morning of the murder. Further, whatever identification problems the State might have encountered in its prosecution of defendant for the alleged sexual assault of Entrata, that case was, in fact, set to begin trial on August 17, 1987. Williams’ testimony would not have negated defendant’s motive for murdering Entrata on August 10, 1987. We therefore reject defendant’s claim.

We also reject defendant’s related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel’s ineffectiveness for not calling Williams as a witness. As discussed above, the underlying issue has no merit. Accordingly, defendant has suffered no prejudice due to appellate counsel’s failure to raise this issue on appeal. See Childress, 191 Ill. 2d at 175.

Michael Melius

Defendant next claims that his counsel was ineffective for failing to call as a witness Michael Melius, former public defender for Lake County, who represented defendant in the sexual assault case. According to Me-lius’ affidavit, defense counsel did not interview him prior to defendant’s retrial. Melius states that he would have testified that the sexual assault case was defensible; that he had advised defendant that there was a good chance of a not-guilty finding; that defendant was a cooperative client; and that defendant never expressed any hostility toward Entrata. The gist of defendant’s claim is that Melius’ testimony would have “blunted” the State’s suggested motive for the murder, i.e., because defendant expected a favorable outcome in the sexual assault case, there was no need to murder Entrata.

In deciding an ineffectiveness claim, the reasonableness of counsel’s conduct must be judged on the facts of the particular case, viewed as of the time of counsel’s conduct. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. In the present case, defendant’s counsel had available to him a record of Melius’ testimony at defendant’s first trial. See Enis, 139 Ill. 2d at 275-76. Melius testified, in relevant part, that statements Entrata made to police indicated that she recognized her attacker as defendant, whom she knew from her place of employment, and that Melius believed he told defendant that the outcome of the sexual assault case depended largely on the credibility of Entrata. Enis, 139 Ill. 2d at 275-76. Defendant’s counsel could have reasonably determined that Melius’ testimony would reinforce, rather than “blunt,” the State’s suggested motive for the murder of Entrata. Accordingly, counsel’s decision not to call Melius was not deficient. Assuming counsel’s decision was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different. Melius’ proposed testimony, like that of Moselle Williams, would not have negated defendant’s motive for murdering Entrata. Nor would his testimony have called into doubt the testimony of the three eyewitnesses who identified defendant. In the absence of a showing of prejudice, the trial court properly rejected defendant’s claim.

The trial court also properly rejected defendant’s related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel’s ineffectiveness for not calling Melius as a witness. Because the underlying issue has no merit, defendant has suffered no prejudice due to appellate counsel’s failure to raise this issue on direct appeal. See Childress, 191 Ill. 2d at 175.

R.C. Burton

As his next claim, defendant alleges that counsel was ineffective for failing to present the testimony of R.C. Burton, defendant’s landlord. Burton was hospitalized during the time of defendant’s second trial, and the trial court granted defendant leave to take Burton’s evidence deposition. Counsel ultimately decided, however, to proceed without Burton’s testimony. According to defendant, Burton would have testified that, at 6:30 a.m. on August 10, 1987, he saw Diane Gonzales’ maroon car in the parking lot outside defendant’s apartment. This vehicle, therefore, could not have been the vehicle seen leaving the parking lot outside Entrata’s apartment building that morning.

Defendant has failed to support this claim with the necessary affidavit from Burton. See Johnson, 183 Ill. 2d at 192. Although defendant states in his reply brief that Burton is deceased and not “now” available, it remains unclear whether defendant could have obtained an affidavit from Burton in November 1996 when defendant filed his amended post-conviction petition. Defendant argues that, notwithstanding the absence of an affidavit from Burton, it was “established” in the first trial that Burton would testify that the maroon vehicle was parked outside defendant’s apartment on the morning of the murder. Defendant mischaracterizes Burton’s testimony.

At defendant’s first trial, the State called Burton as a witness. On cross-examination by defense counsel, the following exchange occurred:

“Q. When you left for work on the morning of August 10th at 6:30 in the morning, that maroon car that belonged to Tony and Diane was still parked in the parking space, wasn’t it?

A: I can’t say for sure whether it was or was not.

* * *

Q. Do you remember having a conversation with the Lieutenant Stevenson on that day?

A. Yes.

* * *

Q. Did you tell — isn’t it true you told Lieutenant Stevenson on that date that when you left for work this morning at about 6:30 you noticed a maroon car which Enis drives still in the driveway this morning when you left at 6:30?

A. I don’t know whether I said that or not.”

On redirect, the prosecutor asked Burton whether he remembered talking to an investigator from the public defender’s office on February 7, 1988. Although Burton was not sure of the date, he thinks he told investigators that he could not testify as to whether the maroon car was parked behind the building when Burton left for work on the morning of August 10, 1987. Officer Stevenson subsequently testified that Burton told him that the maroon car was parked behind defendant’s apartment that morning. Thus, contrary to defendant’s contention on appeal, it was not “established” in the first trial that Burton would testify on retrial that the maroon vehicle was parked outside defendant’s apartment on the morning of the murder.

Assuming that Burton’s testimony on retrial was “established” in the first trial, as defendant claims, and that Burton would have testified consistent with his conversation with Officer Stevenson, defendant has waived review of this issue by failing to raise counsel’s ineffectiveness on direct appeal. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that his appellate counsel was ineffective as a result. A defendant who argues that his appellate counsel was ineffective for failing to raise a particular issue on appeal must show that the failure to raise that issue was objectively unreasonable and that the decision prejudiced defendant. Childress, 191 Ill. 2d at 175; Olinger, 176 Ill. 2d at 365. We must determine, therefore, whether defendant’s underlying claim of ineffective assistance of trial counsel would have been successful if raised on direct appeal. See Childress, 191 Ill. 2d at 175.

Testimony by Burton that Gonzales’ car was parked behind defendant’s apartment on the morning of the murder would have been subject to impeachment based on Burton’s inconsistent statements to investigators and his sworn testimony at the first trial. In addition, there was evidence introduced on retrial tending to establish that the maroon vehicle had been moved on the morning of the murder. See Enis, 163 Ill. 2d at 384. Thus, Burton’s testimony would not have gone unrebutted. Finally, three prosecution witnesses made in-court identifications of defendant. Based on this record, defendant has failed to make a substantial showing that there is a reasonable probability that the outcome of defendant’s trial would have been different had defendant’s counsel introduced Burton’s testimony.

Defendant has, accordingly, also failed to make a substantial showing that appellate counsel was ineffective for failing to raise, on direct review, trial counsel’s ineffectiveness in not calling Burton as a witness. See Childress, 191 Ill. 2d at 175.

Kathleen Jackson

Defendant also claims that his counsel was ineffective for failing to call Kathleen Jackson as a witness at trial. In his post-conviction petition, defendant states that Jackson, who lived in an apartment building adjacent to Entrata’s building, would have testified that, on August 10, 1987, at approximately 6:15 to 6:20 a.m., she was in an elevator in her building, along with a black male. The man was in his early twenties and was wearing white sunglasses. Defendant also alleges that Jackson would testify that defendant was not the man she saw in the elevator. Defendant argues that Jackson’s testimony would have rebutted the testimony of prosecution witnesses who identified defendant as the man in the parking lot outside Entrata’s building on the morning of August 10, 1987.

Although defendant failed to support this claim with an affidavit from Jackson, her testimony is sufficiently documented in this court’s opinion on direct review of defendant’s first conviction. See Enis, 139 Ill. 2d at 279-82. Therefore, on direct review of defendant’s second conviction, defendant could have raised the issue of trial counsel’s ineffectiveness for failing to call Jackson as a witness. We agree with the State that defendant has waived review of this issue. See Olinger, 176 Ill. 2d at 365. Defendant also contends, however, that his appellate counsel was ineffective for failing to raise this claim on direct appeal. We therefore consider whether this claim of trial counsel’s ineffectiveness would have been sue-cessful if it had been raised on direct review. See Childress, 191 Ill. 2d at 175.

At defendant’s first trial, the State moved in limine to preclude defendant from introducing Jackson’s testimony. The trial court granted the State’s motion. On direct review to this court, defendant challenged the trial court’s in limine order. We held that the trial court did not abuse its discretion in barring Jackson’s testimony. Enis, 139 Ill. 2d at 281-82. We observed that “[t]here is nothing connecting the person Jackson saw with the crime, nor does it necessarily follow that her testimony would have cast doubt over the identification of defendant as the offender.” Enis, 139 Ill. 2d at 282. Defendant cannot now argue that trial counsel was ineffective for failing to press for the admission of Jackson’s testimony, where this court previously held the exclusion of such testimony to be nonprejudicial. See Evans, 186 Ill. 2d at 103 (holding, in the context of post-conviction review, that trial counsel was not ineffective for failing to object to evidence and argument which was previously found on direct appeal to be nonprejudicial). Because defendant’s underlying ineffective assistance of counsel claim would not have been successful if raised on direct appeal, we reject defendant’s claim that appellate counsel was ineffective for failing to raise this claim.

Roy Norvell

The record reveals that the State called Roy Norvell as a witness during its case in chief, but that defense counsel moved to bar Norvell’s testimony. The State expected that Norvell would testify that, three days before the murder, he saw a car in the victim’s parking lot that “look[ed] like” the maroon car belonging to defendant’s girlfriend. The trial court agreed with defense counsel that Norvell’s testimony was too speculative and irrelevant and barred Norvell from testifying. In his post-conviction petition, however, defendant claims that Norvelle would have testified that, on or about August 8, 1987, he saw a black male wearing white sunglasses in the parking lot for Entrata’s apartment, and that in a photographic lineup, he identified another individual, not the defendant, as the man in the white sunglasses. Defendant argues that Norvell’s testimony would have rebutted the testimony of Clara Burk and that counsel was ineffective for failing to call Norvell as a defense witness.

Defendant has failed to support this claim with the necessary affidavit from Norvell. See Johnson, 183 Ill. 2d at 192. Instead, defendant relies on a report from the Waukegan police department documenting an interview with Norvell on August 17, 1987. Defendant also relies on a handwritten report that defendant attributes to Joseph Caliendo, an investigator for the Lake County public defender, which documented a meeting with Norvell on November 9, 1987. In his brief before this court, defendant also cites to the affidavit of Jed Stone, one of defendant’s trial attorneys. Even if we consider these documents in lieu of an affidavit from Norvell, none of the documents support defendant’s contention that Norvell’s testimony would have rebutted Burk’s testimony.

Burk testified, in relevant part, that she saw defendant for the first time on the evening of August 8, 1987, two days prior to the murder, as she was driving through the parking lot of the victim’s apartment complex. Defendant suddenly stepped off the curb in front of Burk’s car, causing her to brake. Defendant and Burk looked directly at each other. Defendant was wearing white sunglasses. On the morning of August 10, 1987, Burk recognized the man pursuing Entrata as the man she saw two days earlier in the parking lot. Enis, 163 Ill. 2d at 378-79.

According to the police report on which defendant relies, Norvell stated that, on August 7, 1987, between 6 a.m. and 6:15 a.m., he observed a burgundy car, with one occupant, parked directly behind his car in the parking lot for the apartment complex where Entrata lived. At 8 a.m., the burgundy car and its occupant were still in the lot. Norvell advised the building manager, Mary Greener. Greener and Norvell went to the parking lot and approached the burgundy car. Greener knocked on the passenger window, and the driver, a black male, rolled down the window. Greener asked the driver a few questions. Norvell said the driver appeared nervous. The police report indicates that Norvell was unable to make a positive photo identification of the driver. Caliendo’s report, however, indicates that Norvell did identify an individual, presumably someone other than defendant. Calien-do’s report also indicates that Norvell could not identify the vehicle he saw, except to say that the car was either red or blue.

These reports do not support defendant’s contention that Norvell would testify that a different black man wearing white sunglasses was seen in the vicinity of the victim’s apartment two or three days before the murder. Rather, Norvell’s testimony, if consistent with the reports on which defendant relies, would establish only that a black male, other than defendant, was seen in a burgundy, red or blue vehicle in the parking lot three days before the murder. The affidavit of Jed Stone adds nothing to defendant’s claim. Stone’s affidavit indicates only that he did not consult with defendant as to the decision not to call Norvell. Based on this record, defendant has failed to make a substantial showing that trial counsel was ineffective for failing to call Norvell as a witness.

Defendant has likewise failed to make a substantial showing that appellate counsel was ineffective for failing to raise, on direct appeal, this issue of trial counsel’s ineffectiveness. A defendant suffers no prejudice from appellate counsel’s failure to raise an issue on direct appeal where the underlying issue is not meritorious. Childress, 191 Ill. 2d at 175.

Joseph Caliendo and David Asma

Defendant claims that trial counsel was also ineffective for failing to subpoena Joseph Caliendo and David Asma, investigators for the Lake County public defender. Defendant attached to his post-conviction petition the affidavits of Caliendo and Asma. Defendant argues that the testimony of Caliendo and Asma would have impeached the identification testimony of Clara Burk, Richard Hanson, and Sylvia Barrett.

Defendant’s claims relating to the impeachment of Burk and Hanson were not raised in defendant’s pro se post-conviction petition, in his amended petition, or in the supplement to his amended petition. Accordingly, these claims are waived. See 725 ILCS 5/122 — 3 (West 1998); People v. Moore, 189 Ill. 2d 521, 544 (2000). We consider only defendant’s claim that counsel was ineffective for failing to call Caliendo or Asma to impeach Barrett’s identification testimony.

The affidavits of both Asma and Caliendo indicate that they would testify that on February 4, 1988, they interviewed Barrett. At that time, Barrett stated that she could not remember the color of the sunglasses that the man she saw in the parking lot on August 10, 1987, was wearing; that she did not see the man carrying anything, nor was she aware of whether the man was wearing gloves; that she was not sure that the man in the photograph that she selected was the man she saw in the parking lot; that the man in the photograph “most closely resembled” the man in the parking lot; and that the police stated, following her identification of defendant in a photographic lineup, “Yeah, that is the guy.”

Asma also states in his affidavit that he would testify that he interviewed Barrett on February 18, 1988, following her testimony at a hearing prior to defendant’s first trial. Barrett advised Asma and assistant public defender David Brodsky that she did not recognize defendant, who was seated at counsel’s table, as the man she saw in the parking lot on August 10, 1987. Finally, Asma states that he would testify that, on March 8, 1988, Asma and Brodsky spoke to Barrett by telephone. Barrett told them that she was not sure of the color of the sunglasses; that she does not remember who suggested to her the actual color of the sunglasses; and that, at the February 18, 1988, hearing, defendant looked totally different from the man in the parking lot and the man she selected out of the photographic lineup.

The record discloses that Barrett testified at the second trial that she did not recall whether the man she saw in the parking lot was wearing sunglasses or gloves. Therefore, the proposed testimony of Caliendo and Asma, that Barrett said she did not remember the color of the sunglasses and was not aware if the man was wearing gloves, would not have impeached her testimony. In addition, Barrett was never questioned at the second trial as to whether the man she saw in the parking lot had anything in his hands. The proposed testimony of Cali-endo and Asma, that Barrett said she did not see the man carrying anything, would not have impeached her testimony.

With respect to Asma’s proposed testimony that Barrett stated that defendant looked totally different on February 18, 1988, from the man in the parking lot, the record reveals that defense counsel cross-examined Barrett on this matter. Barrett testified, however, that she did recognize defendant at the February 18, 1988, hearing. Counsel tried to impeach Barrett with her testimony from defendant’s first trial in which she admitted that, on February 18, 1988, she did not recognize defendant and that defendant “looked basically different” on that day. Barrett, however, did not recall giving this testimony. The parties stipulated to Barrett’s testimony from the first trial, and this stipulation was read to the jury. Defendant has failed to demonstrate how counsel’s decision to perfect the impeachment of Barrett by way of stipulation, rather than with Asma’s five testimony, is objectively unreasonable.

The only other matter to which Asma and Caliendo would have testified is that Barrett said she picked the photograph of the person that most closely resembled the man she saw in the parking lot and that police acknowledged, “that is the guy.” Even if we concluded that counsel’s failure to call Asma or Caliendo on this point was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different had Barrett’s testimony been impeached in this way. Two other witnesses made in-court identifications of defendant. Clara Burk testified that defendant was the man she saw pursue Entrata from the parking lot into the building on August 10, 1987, and Richard Hanson also testified that defendant was the man he saw running in the parking lot that morning. On this record, defendant cannot demonstrate prejudice. Further, it follows that defendant cannot demonstrate that he was prejudiced by appellate counsel’s failure to raise this issue of trial counsel’s ineffectiveness. See Childress, 191 Ill. 2d at 175.

Dr. Solomon Fulero

Defendant next claims that counsel was ineffective for failing to call Dr. Solomon Fulero as an expert witness on the unreliability of eyewitness testimony. At defendant’s first trial, the State moved in limine to preclude Dr. Fulero’s testimony. The trial court granted the motion. On direct review to this court, we held that the expert testimony would not have aided the trier of fact in reaching its conclusion, and that the trial court did not abuse its discretion in excluding Dr. Fulero’s testimony. Enis, 139 Ill. 2d at 288-89. Of the several “misconceptions” about eyewitness testimony to which Dr. Fulero would have testified, only one had any relevance to defendant’s case. That misconception involved jurors’ beliefs that the more confident a witness appears to be while testifying, the more likely the witness is to be accurate in the identification. Enis, 139 Ill. 2d at 289. Although witness confidence may have been a factor in the case, we did not believe that this factor alone demanded that defendant receive a new, trial. Enis, 139 Ill. 2d at 289. We also cautioned against the overuse of expert testimony, explaining:

“Such testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of expert testimony concerning the unreliability of other types of testimony and, eventually, to the use of experts to testify as to the unreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We are concerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, and if it is necessary in light of defendant’s ability to cross-examine eyewitnesses. An expert’s opinion concerning the unreliability of eyewitness testimony is based on statistical averages. The eyewitness in a particular case may well not fit within the spectrum of these averages. It would be inappropriate for a jury to conclude, based on expert testimony, that all eyewitness testimony is unreliable.” Enis, 139 Ill. 2d at 289-90.

Defendant argues in his post-conviction petition that, as indicated in Dr. Fulero’s affidavit, the doctor could have testified at defendant’s second trial not only regarding the misconception of witness confidence as a predictor of the accuracy of identification, but also regarding the difficulty of cross-racial identifications. The offers of proof made at defendant’s first trial did not touch on cross-racial identification problems. Defendant, who is black, alleges in his post-conviction petition that of the five eyewitnesses who testified for the State, four were white. The State does not dispute the accuracy of this allegation.

In light of this court’s holding that the exclusion of Dr. Fulero’s testimony at defendant’s first trial was proper, and our admonition against the overuse of expert testimony, we conclude that counsel’s decision not to seek additional opinions from Dr. Fulero, beyond those several opinions disclosed in the first trial, was not deficient. Even if counsel’s decision was objectively unreasonable, defendant has failed to make a substantial showing that he suffered resulting prejudice.

Three witnesses identified defendant as the man seen in the parking lot on the morning of August 10, 1987. Even if all three witnesses are white, Dr. Fulero’s affidavit does not indicate that cross-racial identifications are necessarily inaccurate or that the eyewitness testimony of these particular witnesses is necessarily suspect. Moreover, defendant’s counsel capably placed the issue of the fallibility of the testimony of the State’s eyewitnesses before the jury. On cross-examination and in closing argument, defendant’s counsel aggressively explored the question of the accuracy and reliability of the witnesses’ identification of defendant, as well as the witnesses’ overall credibility. Counsel also argued that misidentification is a common occurrence in everyday life. On this record, we cannot say that there is a reasonable probability that the jury’s verdict would have been different had Dr. Fulero testified. Accordingly, we reject defendant’s claim of ineffective assistance of trial counsel, as well as his related claim of ineffective assistance of appellate counsel.

3. Failure to Introduce Evidence From Illinois Crime Laboratory

As his next post-conviction claim, defendant asserts that trial counsel was ineffective for failing to present testimony or other evidence that there was no blood on defendant’s clothing, that defendant’s fingerprints did not match those found at the crime scene, and that there was no other physical evidence connecting defendant to the crime. Defendant supports this claim with copies of reports from the Northern Illinois Police Crime Laboratory, which set forth the results of various tests and analyses performed in connection with this case.

The record discloses that defendant’s counsel, in his opening statement, called attention to the lack of physical evidence in the State’s case. Counsel told the jury that there would be no fingerprint evidence, no blood evidence, and no footprint evidence linking defendant to the crime. Counsel elaborated on this theme in his opening, stating, in part, that “no police officer, no laboratory technician, no evidence technician, no chemist can come into this courtroom to say that there’s any evidence that any lead, barium, antimony, copper, things discharged from a gun by gas after firing, were found on any of [defendant’s] clothing.” In closing argument, counsel continued his attack on the lack of physical evidence presented by the State. Counsel argued to the jury that, despite evidence of extensive blood splattering at the crime scene, the victim’s blood was not found on defendant, on his clothing, on his shoes, on his possessions, or inside Gonzales’ car.

Counsel’s decision to challenge the State’s lack of physical evidence, rather than calling a member of the police crime laboratory to testify, was a matter of trial strategy and was not deficient. Accordingly, appellate counsel was not ineffective for failing to raise, on direct appeal, these allegations of trial counsel’s ineffectiveness.

4. Failure to Object to Testimony and Photographic Evidence

Defendant next claims that his counsel was ineffective for failing to object to the identification testimony of Dan Thacker, to the evidence that Merlinda Entrata took additional security measures at her apartment shortly after the alleged sexual assault, and to the State’s impeachment of its own witness, John Twardy.

Defendant could have raised each of these claims on direct review. We thus agree with the State that defendant has waived review of these issues. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that his appellate counsel was ineffective for failing to raise these claims of trial counsel’s ineffectiveness. Accordingly, we must determine whether these claims would have succeeded, had they been raised on direct appeal. See Childress, 191 Ill. 2d at 175.

Dan Thacker

At his first trial, defendant moved the court in limine to bar any evidence relating to Dan Thacker’s pretrial identification of defendant. The trial court granted the motion. At defendant’s second trial, the court indicated that it would not revisit in limine rulings from the first trial. In his post-conviction petition, defendant claims that his counsel was ineffective for failing to raise the court’s in limine order from the first trial as a bar to Thacker’s identification testimony in the second trial. Defendant contends that his counsel “never bothered” to read the prior trial record and therefore failed to make the appropriate objection.

The record discloses that defendant’s counsel made this objection when the State, on retrial, raised the issue of the permissible scope of Thacker’s testimony. Counsel, however, later withdrew any objection to identification testimony from Thacker. To the extent that defendant’s claim is really an attack on counsel’s decision to withdraw his objection, we conclude that defendant has not demonstrated that counsel’s decision was objectively unreasonable.

At defendant’s first trial, Thacker testified on direct examination that, on August 10, 1987, at approximately 6:30 a.m., he saw a woman in a white dress running across the parking lot and a black male wearing dark clothing, white gloves and white sunglasses following the woman. Thacker provided a general description of the man, whom he later saw come out of the building and walk across the parking lot. Defense counsel, on cross-examination, questioned Thacker about the lack of detail in his description of the man he saw. Counsel also elicited testimony from Thacker that he could not make a positive identification of the man he saw in the parking lot from the initial photo array shown to him by police, but that he picked the photograph of the person who had the same general features. Defense counsel further questioned Thacker about the second photo array he viewed. On redirect, Thacker testified that he also picked a photograph from the second photo array, although he was not positive of his identification. Over defense counsel’s objection, the State was allowed to examine Thacker about the live lineup he viewed. Thacker testified that he identified defendant in the lineup, although he was not “100 percent sure.”

At defendant’s second trial, the State sought clarification as to the permissible scope of Thacker’s testimony. The State argued that the type of testimony elicited from Thacker by defense counsel at the first trial was contrary to the trial court’s in limine order and should not be permitted on retrial. The trial court agreed. The record reflects a colloquy between the prosecutor and defense counsel. Pursuant to their discussion, defense counsel withdrew his objection to Thacker’s identification testimony, but with the understanding that Thacker would testify not that defendant is the man he saw in the parking lot, but that defendant merely fits the general description of the man he saw in the parking lot. Thacker testified consistently therewith.

We conclude that counsel’s decision to withdraw his objection to Thacker’s identification testimony was a matter of trial strategy and was not “so unsound that counsel entirely fail[ed] to conduct any meaningful adversarial testing.” See Reid, 179 Ill. 2d at 310. Even if counsel’s decision was deficient, defendant has failed to demonstrate resulting prejudice where three other witnesses identified defendant in court as the man they saw in the parking lot outside Entrata’s apartment on the morning of the murder.

Because defendant’s claim of ineffective assistance of trial counsel would not have succeeded had it been raised on direct appeal, we reject defendant’s claim of ineffective assistance of appellate counsel. See Childress, 191 Ill. 2d at 175.

Evidence of Security Measures at Victim’s Apartment

At the first trial, the court granted defendant’s in limine motion to bar evidence that the victim installed homemade security devices in her apartment following the alleged sexual assault. As already noted, on retrial the court indicated that it would not revisit in limine rulings from the first trial.

At the second trial, Zacarías Meana, Entrata’s uncle, testified that, during the first week in May 1987, he helped his niece move into a new apartment in the same complex where she had been living, and helped her install wooden poles to secure the doors from the inside. Over the objection of defense counsel, photographs of Entra-ta’s apartment, which showed the make-shift security devices, were also introduced into evidence. Defendant’s counsel later called to the trial court’s attention its in limine order from the first trial and argued that the introduction of evidence contrary to that order was a ground for a mistrial. The trial court denied the motion for a mistrial.

Defendant claims, in his post-conviction petition, that counsel was ineffective for failing to raise the trial court’s prior in limine order as a bar to the admission of this evidence. We conclude that defendant’s claim is barred by the doctrine of res judicata. On direct review from defendant’s second conviction, defendant argued that the introduction of Meana’s testimony and the photographs of Entrata’s apartment were irrelevant and prejudicial and should have been excluded. Enis, 163 Ill. 2d at 404-OS. We held that any error in the admission of this evidence was not a material factor in defendant’s conviction; that it did not deprive defendant of a fundamentally fair trial; and that it is not reversible error. Enis, 163 Ill. 2d at 404-05. Defendant cannot obtain post-conviction relief by rephrasing this issue as one of ineffective assistance of counsel. See Evans, 186 Ill. 2d at 103; Williams, 186 Ill. 2d at 62.

John Twardy

Defendant also claims that his counsel was ineffective for failing to object to the State’s impeachment of its own witness, John Twardy, with inconsistent statements he made to police regarding the maroon car he saw leaving the parking lot on the morning of the murder.

On direct review of defendant’s second conviction, defendant argued that the State’s improper bolstering of Twardy’s testimony amounts to plain error. We rejected this argument, holding that the evidence was not closely balanced and that defendant was not deprived of a fundamentally fair trial. Enis, 163 Ill. 2d at 402-03. Defendant also argued, on direct review, that his counsel was ineffective for failing to properly preserve this issue for review on appeal. Enis, 163 Ill. 2d at 405. We held that, assuming counsel was ineffective, the outcome of defendant’s trial would not have been different had counsel preserved this issue for review. Enis, 163 Ill. 2d at 407. Accordingly, defendant’s post-conviction claim is barred by the doctrine of res judicata. See Williams, 186 Ill. 2d at 62.

5. Right to Testify

Defendant next claims that counsel was ineffective for failing to consult with him about his right to testify, to prepare him to give testimony, and to call him as a witness. According to defendant, after the State rested, counsel advised defendant at that time that he would not be called to testify. Defendant states in his post-conviction affidavit that he would have testified that he did not kill Merlinda Entrata, that he was prepared to proceed with the sexual assault case, and that he was confident of being acquitted of that charge. The post-conviction affidavit of Jed Stone, defendant’s counsel, indicates that Stone has no recollection of specific conversations with defendant about his right to testify, but that it is Stone’s practice to discuss this issue in detail with his clients, at which time he makes a recommendation.

The decision whether to take the witness stand and testify in one’s own behalf ultimately belongs to the defendant. Thompkins, 161 Ill. 2d at 177. Defendant in the present case acknowledges that he was aware of his right to testify. Indeed, defendant took the witness stand at his first trial. See Enis, 139 Ill. 2d at 276-77. Nothing in the present record, however, demonstrates that defendant, at any time, advised counsel of his desire or intention to testify. Moreover, upon learning at trial that he would not be called as a witness, defendant failed to assert his right by informing the trial court that he wished to testify. Thus, defendant acquiesced in counsel’s view that defendant should not take the stand. In the absence of a contemporaneous assertion by defendant of his right to testify, the trial court properly rejected this post-conviction claim. See Thompkins, 161 Ill. 2d at 177-78; People v. Brown, 54 Ill. 2d 21, 23-24 (1973). We similarly reject defendant’s related claim that appellate counsel was ineffective for failing to raise this issue on direct appeal.

6. Sentencing Hearing

Defendant next claims that his counsel was ineffective for failing to investigate and present the testimony of various witnesses at both stages of his capital sentencing hearing.

Claims of ineffective assistance of counsel at a capital sentencing hearing are reviewed under the two-pronged Strickland test. People v. Ward, 187 Ill. 2d 249, 261 (1999); Coleman, 183 Ill. 2d at 403. Thus, in the context of defendant’s post-conviction claim, defendant must allege facts which demonstrate that counsel’s performance fell below an objective standard of reasonableness, and that absent counsel’s errors, there is a reasonable probability that the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Ward, 187 Ill. 2d at 261; Coleman, 183 Ill. 2d at 403.

Eligibility Stage

Defendant alleges that his counsel failed to present evidence that would have rebutted the statutory aggravating factor under which he was found eligible for the death penalty. The trial court found defendant eligible for the death penalty in that defendant was 18 years or older at the time of the offense, and defendant murdered the victim, Merlinda Entrata, because she was a witness against him in another criminal prosecution— the sexual assault case. See Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(8). Other than a certified copy of defendant’s birth certificate, the State presented no new evidence at the eligibility stage, relying instead on the evidence presented at trial. Defendant’s counsel presented no evidence. On direct appeal, we held that the State proved defendant’s eligibility beyond a reasonable doubt. Enis, 163 Ill. 2d at 412.

Defendant now argues that counsel should have presented the testimony of Michael Melius and Moselle Williams, as well as evidence that defendant suffers from a neuropsychological impairment. We have already determined in this appeal that the proposed testimony of Melius and Williams would not have negated defendant’s motive for murdering Entrata. We therefore consider defendant’s ineffectiveness claim only with respect to counsel’s failure to investigate and present evidence of neuropsychological impairment. As to this claim, defendant relies on the opinions of neuropsychologist Dr. Michael Gelbort, whose affidavit and evaluations defendant attached to his post-conviction petition.

Of the several findings and opinions contained in Dr. Gelbort’s evaluations, only one speaks to the issue of defendant’s motivation for the murder of Entrata. Dr. Gelbort expresses his opinion that defendant, at the time of the murder, was suffering from extreme emotional disturbance and that defendant would not have been motivated by a desire to silence the victim. Rather, defendant would have acted in a deviant manner as a result of feeling emotional and psychological rejection by the victim, leading to a loss of control, and that “[t]his would have resulted in [defendant’s] using undue force in an attempt to ‘convince’ [Merlinda Entrata] to change her mind and have a relationship with [him].”

Dr. Gelbort’s opinion as to defendant’s likely motivation for the murder is contrary to the record. Evidence established that defendant shot Entrata four times at close range. Each shot defendant delivered was to Entra-ta’s head. There were powder burns on her temple. En-trata died from two of the gunshot wounds defendant inflicted. What Dr. Gelbort describes as “undue force,” the trial court aptly described as an “execution.” In addition, there was no evidence adduced at the second trial that defendant desired a relationship with Entrata, that she had rejected him, or that defendant had attempted on the morning of August 10, 1987, or at any prior time to “convince” her to have a relationship with him. At the eligibility hearing, defendant’s counsel argued that one of many reasonable hypotheses for the murder is the spurned-lover hypothesis. The trial court rejected this argument. On this record, we see no reasonable probability that the trial court would have been persuaded that the murder of Entrata was a reaction to Entrata’s alleged rejection of defendant. Thus, there is no reasonable probability that the result of the eligibility proceeding would have been different had defendant’s counsel presented evidence of neuropsychological impairment.

Aggravation-Mitigation Stage

Defendant argues that his counsel was also ineffective at the second stage of his capital sentencing hearing for failing to investigate and present available mitigation evidence regarding defendant’s neurological impairment and social history.

Given the critical importance of mitigation evidence at a capital sentencing hearing, defense counsel has a duty to make a reasonable investigation for potential sources of such evidence or must have a legitimate reason for failing to make a particular investigation. People v. Morgan, 187 Ill. 2d 500, 541 (1999); Towns, 182 Ill. 2d at 510. If mitigating evidence exists, counsel has a duty to introduce it in support of the defendant. Towns, 182 Ill. 2d at 510; People v. Griffin, 178 Ill. 2d 65, 86 (1997). The failure, however, to offer mitigation evidence at a capital sentencing hearing is not itself sufficient to show that counsel was ineffective. Counsel’s decision whether to present a particular witness is generally a strategic choice which cannot support a claim of ineffective assistance of counsel. Griffin, 178 Ill. 2d at 86. Before considering defendant’s claim, we review the evidence introduced at the sentencing hearing.

In aggravation, the State relied upon the evidence introduced at trial. The State also introduced evidence that on May 2, 1987, Merlinda Entrata confided to a hospital coworker that defendant, with whom she worked at a nursing home, had raped her. Entrata said that although he wore a mask and gloves, defendant spoke to her after the attack, and that she recognized his voice. There was also evidence that, after the alleged sexual assault, Entrata requested a shift change so that she could work days, explaining to her supervisor that she had been raped. Entrata never returned to her job at the nursing home.

The State also introduced evidence of prior inappropriate sexual conduct by defendant. In March 1981, when defendant was 14 years old, defendant asked an eighth-grade girl for a kiss. When she declined, defendant swung her to the ground, slapped her in the face and head, and kissed her forcefully. As she left, defendant grabbed her buttocks and told her that he wanted $10 or the same thing would happen the next day. The following year, defendant grabbed the breasts of a female student duri