People v. Enis
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 86636 Rel
|
Docket No. 86636-Agenda 6-May 2000. THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. Opinion filed November 22, 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 petitionwithout an evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, his appeallies directly to this court. See 134 Ill. 2d R. 651(a)). For the reasons that follow, we affirm the dismissal of defendant'spost-conviction petition.
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, basedon the prosecutor's improper cross-examination of defendant, and remanded the matter for a new trial. People v. Enis, 139Ill. 2d 264 (1990). On retrial, defendant was convicted of Entrata's murder and sentenced to death. On direct review, we affirmed defendant'sconviction 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 begintrial on August 17, 1987. Defendant had pled not guilty to the sexual assault charge and had been released on a personalrecognizance bond. On August 10, 1987, shortly before 7 a.m., police found Entrata's body in the hallway of her Waukeganapartment 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 themorning of the shooting. Clara Burk testified that she saw defendant, who was wearing sunglasses, pursue Entrata from theparking lot into the apartment building. Defendant was carrying a box that resembled a lunch box. Dan Thacker testifiedthat he saw a man running after Entrata in the parking lot. The man, whose description fit defendant, was wearing whitegloves, white sunglasses and dark clothing, and was carrying a metal lunch box. Richard Hanson identified defendant as theman he saw running in the parking lot. The man was wearing white gloves and white sunglasses. As he ran, the metal boxhe was carrying fell open and a gun fell out of the box. Sylvia Barrett also saw defendant in the parking lot on the morningof the shooting. Defendant was wearing a dark-blue jumpsuit. In addition, John Twardy saw a man run through the parkinglot, drop something, and retrieve it. Twardy lost sight of the man, and then saw a red or maroon car drive away. Twardytestified that the vehicle owned by defendant's girlfriend, Diane Gonzales, was similar to the car he saw leaving the parkinglot. Within two hours of the shooting, police found Gonzales' car parked outside defendant's apartment. The hood of thecar 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 thatdefendant was eligible for the death penalty in that he murdered the victim because she would have been a witness againsthim in a criminal prosecution (see Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(8)), and that there were no mitigating factorssufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death. On direct appeal, weaffirmed defendant's conviction and death sentence. Enis, 163 Ill. 2d 367.
On June 14, 1995, defendant filed a pro se petition for post-conviction relief. The circuit court appointed counsel torepresent defendant in the post-conviction proceedings. The trial court subsequently granted attorney Robert Hauser leaveto file an appearance as additional counsel in the post-conviction proceedings. In August 1996, Hauser directed a subpoenato the Waukegan police department, calling for the production of the "entire police file pertaining to Anthony Enis and/orMelissa 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 hewas denied the effective assistance of counsel at trial and sentencing. Defendant attached numerous affidavits and otherdocuments 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 otherwiseunsupported by the record or affidavit. On April 25, 1997, defendant filed a motion for substitution of judge, alleging that certain rulings and comments by JudgeChristopher Starck demonstrated prejudice against defendant. Defendant subsequently filed an amended motion forsubstitution of judge, with supporting affidavit, containing essentially the same allegations. Defendant's amended motionwas 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 directappeal, 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 evidentiaryhearing. The circuit court ruled that the claimed instances of ineffective assistance of trial counsel involved matters of trialstrategy, were not supported by affidavit, could have been raised on direct review, or were already considered on directreview. 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 anevidentiary hearing, granting the State's motion to quash the subpoena directed to the Waukegan police department, anddenying his motion for substitution of judge.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides a remedy for criminal defendantswho claim that a substantial violation of their constitutional rights occurred at the proceedings which resulted in theirconvictions, when such a claim was not, and could not have been, previously adjudicated. People v. Johnson, 191 Ill. 2d257, 268 (2000). Issues that were decided on direct appeal are barred by the doctrine of res judicata, and issues that couldhave 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 onevidence dehors the record. People v. Holman, 164 Ill. 2d 356, 362, 376 (1995). The petitioner is entitled to a hearing onhis post-conviction claims only where the allegations of the petition, supported by the trial court record and accompanyingaffidavits, 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 arereviewed 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-convictionpetition without an evidentiary hearing. Although defendant's petition raises numerous claims of ineffective assistance ofcounsel at trial, sentencing, and on direct appeal, we consider only those claims that defendant has raised in this appeal. See177 Ill. 2d R. 341(e)(7).
In order to succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged Stricklandtest: a defendant must allege facts which demonstrate that counsel's representation fell below an objective standard ofreasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the trial would havebeen 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 undermineconfidence in the outcome, namely, that counsel's deficient performance rendered the result of the trial unreliable or theproceeding fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186Ill. 2d 83, 93 (1999). There is a strong presumption that counsel's performance falls within the wide range of reasonableprofessional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. The failure to satisfy eitherthe 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, 191Ill. 2d 168, 175 (2000). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appealmust allege facts demonstrating that such failure was objectively unreasonable and that counsel's decision prejudiceddefendant. 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.
Defendant claims that his counsel was ineffective because he made promises to the jury in his opening statement that he didnot keep. In his opening statement, counsel indicated that the evidence would show that Merlinda Entrata reported thesexual assault days after it allegedly occurred; that at the time of Entrata's murder, defendant was with Diane Gonzales, histhen girlfriend, now his wife; and that R.C. Burton, defendant's landlord, told police officers that as he left for work at 6:30a.m. on the day of the murder, Gonzales' car was parked outside defendant's apartment. Defendant argues that no testimonyor 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 forfailing to call certain witnesses at trial, including those witnesses who could have established some of the propositionslisted 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 beenraised 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 wouldhave rebutted the State's case in chief and that would have fulfilled promises made to the jury in defense counsel's openingstatement. 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 adefendant'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 soundtrial strategy, rather than incompetence (People v. Wiley, 165 Ill. 2d 259, 289 (1995)), and are, therefore, generally immunefrom claims of ineffective assistance of counsel (Reid, 179 Ill. 2d at 310). This is not the case, however, where counsel'sstrategy was so unsound that no meaningful adversarial testing was conducted. West, 187 Ill. 2d at 432-33; Reid, 179 Ill. 2dat 310. Moselle Williams Defendant claims that Moselle Williams, had he been called as a witness at trial, would have testified that he droveMerlinda Entrata to the police station six days after the alleged sexual assault. Defendant argues that Entrata's delay inreporting the alleged assault, and other evidence that the sexual assault case against defendant was weak, negatesdefendant's motive for murdering Entrata. The issue of counsel's failure to present evidence as to Entrata's delay in reporting the alleged sexual assault is barred bythe doctrine of res judicata. On retrial, defendant's counsel attempted to elicit testimony from former Assistant State'sAttorney Steven Simonian that Entrata did not report the alleged sexual assault until May 4, 1987, six days after its allegedoccurrence. The State objected, citing a pretrial ruling which restricted the introduction of evidence relating to the sexualassault case. The trial court sustained the objection. On direct appeal, defendant argued that trial counsel was ineffective forfailing to raise this issue in a post-trial motion and preserve it for review. Defendant further argued, on direct appeal, thatthe trial court's exclusion of this evidence was plain error. Enis, 163 Ill. 2d at 403, 406. We rejected both arguments. Weheld that, assuming arguendo trial counsel was ineffective, the result of the trial would not have been different had counselpreserved this claim. Enis, 163 Ill. 2d at 407. We also held that the exclusion of such evidence was not plain error and didnot deprive defendant of a fundamentally fair trial. Enis, 163 Ill. 2d at 403-04. Defendant cannot obtain post-convictionrelief merely by rephrasing a claim which was previously addressed on direct appeal. See Evans, 186 Ill. 2d at 103; Peoplev. 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. Insupport of this claim, defendant attached to his post-conviction petition a copy of an unsigned, unsworn, untitled report thatdefendant identifies as investigation notes from "Consolidated Investigation Services." An investigation note, datedFebruary 4, 1988, states that contact was made that day with Williams, who stated that Entrata had told him that she wassexually 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 proposedwitness. People v. Johnson, 183 Ill. 2d 176, 192 (1998); People v. Thompkins, 161 Ill. 2d 148, 163 (1994). In the absence ofsuch an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony orinformation 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 demonstratethat there is a reasonable probability that the outcome of defendant's trial would have been different had counsel presentedWilliams' 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 thethree prosecution witnesses who identified defendant as the man they observed in the parking lot outside the victim'sapartment building on the morning of the murder. Further, whatever identification problems the State might haveencountered in its prosecution of defendant for the alleged sexual assault of Entrata, that case was, in fact, set to begin trialon 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, trialcounsel'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. SeeChildress, 191 Ill. 2d at 175.
Defendant next claims that his counsel was ineffective for failing to call as a witness Michael Melius, former publicdefender for Lake County, who represented defendant in the sexual assault case. According to Melius' affidavit, defensecounsel did not interview him prior to defendant's retrial. Melius states that he would have testified that the sexual assaultcase was defensible; that he had advised defendant that there was a good chance of a not-guilty finding; that defendant wasa cooperative client; and that defendant never expressed any hostility toward Entrata. The gist of defendant's claim is thatMelius' testimony would have "blunted" the State's suggested motive for the murder, i.e., because defendant expected afavorable 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 particularcase, 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 thepresent case, defendant's counsel had available to him a record of Melius' testimony at defendant's first trial. See Enis, 139Ill. 2d at 275-76. Melius testified, in relevant part, that statements Entrata made to police indicated that she recognized herattacker as defendant, whom she knew from her place of employment, and that Melius believed he told defendant that theoutcome of the sexual assault case depended largely on the credibility of Entrata. Enis, 139 Ill. 2d at 275-76. Defendant'scounsel could have reasonably determined that Melius' testimony would reinforce, rather than "blunt," the State'ssuggested motive for the murder of Entrata. Accordingly, counsel's decision not to call Melius was not deficient. Assumingcounsel's decision was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcomeof the trial would have been different. Melius' proposed testimony, like that of Moselle Williams, would not have negateddefendant's motive for murdering Entrata. Nor would his testimony have called into doubt the testimony of the threeeyewitnesses who identified defendant. In the absence of a showing of prejudice, the trial court properly rejecteddefendant's claim. The trial court also properly rejected defendant's related claim that appellate counsel was ineffective for failing to raise, ondirect 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, 191Ill. 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 granteddefendant leave to take Burton's evidence deposition. Counsel ultimately decided, however, to proceed without Burton'stestimony. According to defendant, Burton would have testified that, at 6:30 a.m. on August 10, 1987, he saw DianeGonzales' maroon car in the parking lot outside defendant's apartment. This vehicle, therefore, could not have been thevehicle 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 whetherdefendant 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" inthe first trial that Burton would testify that the maroon vehicle was parked outside defendant's apartment on the morning ofthe 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 followingexchange 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 Tonyand 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 about6:30 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'soffice on February 7, 1988. Although Burton was not sure of the date, he thinks he told investigators that he could nottestify as to whether the maroon car was parked behind the building when Burton left for work on the morning of August10, 1987. Officer Stevenson subsequently testified that Burton told him that the maroon car was parked behind defendant'sapartment that morning. Thus, contrary to defendant's contention on appeal, it was not "established" in the first trial thatBurton would testify on retrial that the maroon vehicle was parked outside defendant's apartment on the morning of themurder. Assuming that Burton's testimony on retrial was "established" in the first trial, as defendant claims, and that Burton wouldhave testified consistent with his conversation with Officer Stevenson, defendant has waived review of this issue by failingto raise counsel's ineffectiveness on direct appeal. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that hisappellate counsel was ineffective as a result. A defendant who argues that his appellate counsel was ineffective for failingto raise a particular issue on appeal must show that the failure to raise that issue was objectively unreasonable and that thedecision 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 ondirect 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 wouldhave been subject to impeachment based on Burton's inconsistent statements to investigators and his sworn testimony atthe first trial. In addition, there was evidence introduced on retrial tending to establish that the maroon vehicle had beenmoved on the morning of the murder. See Enis, 163 Ill. 2d at 384. Thus, Burton's testimony would not have goneunrebutted. Finally, three prosecution witnesses made in-court identifications of defendant. Based on this record, defendanthas failed to make a substantial showing that there is a reasonable probability that the outcome of defendant's trial wouldhave 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 toraise, on direct review, trial counsel's ineffectiveness in not calling Burton as a witness. See Childress, 191 Ill. 2d at 175.
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, wouldhave testified that, on August 10, 1987, at approximately 6:15 to 6:20 a.m., she was in an elevator in her building, alongwith a black male. The man was in his early twenties and was wearing white sunglasses. Defendant also alleges thatJackson would testify that defendant was not the man she saw in the elevator. Defendant argues that Jackson's testimonywould have rebutted the testimony of prosecution witnesses who identified defendant as the man in the parking lot outsideEntrata'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 inthis court's opinion on direct review of defendant's first conviction. See Enis, 139 Ill. 2d at 279-82. Therefore, on directreview of defendant's second conviction, defendant could have raised the issue of trial counsel's ineffectiveness for failingto call Jackson as a witness. We agree with the State that defendant has waived review of this issue. See Olinger, 176 Ill. 2dat 365. Defendant also contends, however, that his appellate counsel was ineffective for failing to raise this claim on directappeal. We therefore consider whether this claim of trial counsel's ineffectiveness would have been successful if it hadbeen 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 trialcourt granted the State's motion. On direct review to this court, defendant challenged the trial court's in limine order. Weheld that the trial court did not abuse its discretion in barring Jackson's testimony. Enis, 139 Ill. 2d at 281-82. We observedthat "[t]here is nothing connecting the person Jackson saw with the crime, nor does it necessarily follow that her testimonywould have cast doubt over the identification of defendant as the offender." Enis, 139 Ill. 2d at 282. Defendant cannot nowargue that trial counsel was ineffective for failing to press for the admission of Jackson's testimony, where this courtpreviously held the exclusion of such testimony to be nonprejudicial. See Evans, 186 Ill. 2d at 103 (holding, in the contextof post-conviction review, that trial counsel was not ineffective for failing to object to evidence and argument which waspreviously found on direct appeal to be nonprejudicial). Because defendant's underlying ineffective assistance of counselclaim would not have been successful if raised on direct appeal, we reject defendant's claim that appellate counsel wasineffective 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 tobar Norvell's testimony. The State expected that Norvell would testify that, three days before the murder, he saw a car inthe victim's parking lot that "look[ed] like" the maroon car belonging to defendant's girlfriend. The trial court agreed withdefense 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 sawa black male wearing white sunglasses in the parking lot for Entrata's apartment, and that in a photographic lineup, heidentified another individual, not the defendant, as the man in the white sunglasses. Defendant argues that Norvell'stestimony would have rebutted the testimony of Clara Burk and that counsel was ineffective for failing to call Norvell as adefense 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 onAugust 17, 1987. Defendant also relies on a handwritten report that defendant attributes to Joseph Caliendo, an investigatorfor the Lake County public defender, which documented a meeting with Norvell on November 9, 1987. In his brief beforethis court, defendant also cites to the affidavit of Jed Stone, one of defendant's trial attorneys. Even if we consider thesedocuments in lieu of an affidavit from Norvell, none of the documents support defendant's contention that Norvell'stestimony 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 tothe murder, as she was driving through the parking lot of the victim's apartment complex. Defendant suddenly stepped offthe curb in front of Burk's car, causing her to brake. Defendant and Burk looked directly at each other. Defendant waswearing white sunglasses. On the morning of August 10, 1987, Burk recognized the man pursuing Entrata as the man shesaw 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 6:15a.m., he observed a burgundy car, with one occupant, parked directly behind his car in the parking lot for the apartmentcomplex where Entrata lived. At 8 a.m., the burgundy car and its occupant were still in the lot. Norvell advised the buildingmanager, Mary Greener. Greener and Norvell went to the parking lot and approached the burgundy car. Greener knockedon 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 photoidentification of the driver. Caliendo's report, however, indicates that Norvell did identify an individual, presumablysomeone other than defendant. Caliendo's report also indicates that Norvell could not identify the vehicle he saw, except tosay 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 whitesunglasses was seen in the vicinity of the victim's apartment two or three days before the murder. Rather, Norvell'stestimony, if consistent with the reports on which defendant relies, would establish only that a black male, other thandefendant, was seen in a burgundy, red or blue vehicle in the parking lot three days before the murder. The affidavit of JedStone adds nothing to defendant's claim. Stone's affidavit indicates only that he did not consult with defendant as to thedecision not to call Norvell. Based on this record, defendant has failed to make a substantial showing that trial counsel wasineffective 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, ondirect appeal, this issue of trial counsel's ineffectiveness. A defendant suffers no prejudice from appellate counsel's failureto 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 ofCaliendo and Asma. Defendant argues that the testimony of Caliendo and Asma would have impeached the identificationtestimony 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-convictionpetition, in his amended petition, or in the supplement to his amended petition. Accordingly, these claims are waived. See725 ILCS 5/122-3 (West 1998); People v. Moore, 189 Ill. 2d 521, 544 (2000). We consider only defendant's claim thatcounsel 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 interviewedBarrett. At that time, Barrett stated that she could not remember the color of the sunglasses that the man she saw in theparking lot on August 10, 1987, was wearing; that she did not see the man carrying anything, nor was she aware of whetherthe man was wearing gloves; that she was not sure that the man in the photograph that she selected was the man she saw inthe parking lot; that the man in the photograph "most closely resembled" the man in the parking lot; and that the policestated, 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 hertestimony at a hearing prior to defendant's first trial. Barrett advised Asma and assistant public defender David Brodskythat she did not recognize defendant, who was seated at counsel's table, as the man she saw in the parking lot on August10, 1987. Finally, Asma states that he would testify that, on March 8, 1988, Asma and Brodsky spoke to Barrett bytelephone. Barrett told them that she was not sure of the color of the sunglasses; that she does not remember who suggestedto her the actual color of the sunglasses; and that, at the February 18, 1988, hearing, defendant looked totally different fromthe 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 parkinglot was wearing sunglasses or gloves. Therefore, the proposed testimony of Caliendo and Asma, that Barrett said she didnot remember the color of the sunglasses and was not aware if the man was wearing gloves, would not have impeached hertestimony. In addition, Barrett was never questioned at the second trial as to whether the man she saw in the parking lot hadanything in his hands. The proposed testimony of Caliendo and Asma, that Barrett said she did not see the man carryinganything, 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. Barretttestified, however, that she did recognize defendant at the February 18, 1988, hearing. Counsel tried to impeach Barrettwith her testimony from defendant's first trial in which she admitted that, on February 18, 1988, she did not recognizedefendant 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 hasfailed to demonstrate how counsel's decision to perfect the impeachment of Barrett by way of stipulation, rather than withAsma's live testimony, is objectively unreasonable. The only other matter to which Asma and Caliendo would have testified is that Barrett said she picked the photograph ofthe 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 todemonstrate that there is a reasonable probability that the outcome of the trial would have been different had Barrett'stestimony been impeached in this way. Two other witnesses made in-court identifications of defendant. Clara Burk testifiedthat defendant was the man she saw pursue Entrata from the parking lot into the building on August 10, 1987, and RichardHanson also testified that defendant was the man he saw running in the parking lot that morning. On this record, defendantcannot demonstrate prejudice. Further, it follows that defendant cannot demonstrate that he was prejudiced by appellatecounsel'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 theunreliability of eyewitness testimony. At defendant's first trial, the State moved in limine to preclude Dr. Fulero'stestimony. The trial court granted the motion. On direct review to this court, we held that the expert testimony would nothave 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' beliefsthat the more confident a witness appears to be while testifying, the more likely the witness is to be accurate in theidentification. Enis, 139 Ill. 2d at 289. Although witness confidence may have been a factor in the case, we did not believethat this factor alone demanded that defendant receive a new trial. Enis, 139 Ill. 2d at 289. We also cautioned against theoveruse of expert testimony, explaining: "Such testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of experttestimony concerning the unreliability of other types of testimony and, eventually, to the use of experts to testify as to theunreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determinationof a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We areconcerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, andif it is necessary in light of defendant's ability to cross-examine eyewitnesses. An expert's opinion concerning theunreliability of eyewitness testimony is based on statistical averages. The eyewitness in a particular case may well not fitwithin the spectrum of these averages. It would be inappropriate for a jury to conclude, based on expert testimony, that alleyewitness 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 testifiedat defendant's second trial not only regarding the misconception of witness confidence as a predictor of the accuracy ofidentification, but also regarding the difficulty of cross-racial identifications. The offers of proof made at defendant's firsttrial did not touch on cross-racial identification problems. Defendant, who is black, alleges in his post-conviction petitionthat of the five eyewitnesses who testified for the State, four were white. The State does not dispute the accuracy of thisallegation. In light of this court's holding that the exclusion of Dr. Fulero's testimony at defendant's first trial was proper, and ouradmonition against the overuse of expert testimony, we conclude that counsel's decision not to seek additional opinionsfrom Dr. Fulero, beyond those several opinions disclosed in the first trial, was not deficient. Even if counsel's decision wasobjectively 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 allthree witnesses are white, Dr. Fulero's affidavit does not indicate that cross-racial identifications are necessarily inaccurateor that the eyewitness testimony of these particular witnesses is necessarily suspect. Moreover, defendant's counsel capablyplaced the issue of the fallibility of the testimony of the State's eyewitnesses before the jury. On cross-examination and inclosing 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 acommon occurrence in every day life. On this record, we cannot say that there is a reasonable probability that the jury'sverdict would have been different had Dr. Fulero testified.(1) Accordingly, we reject defendant's claim of ineffectiveassistance 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 orother evidence that there was no blood on defendant's clothing, that defendant's fingerprints did not match those found atthe crime scene, and that there was no other physical evidence connecting defendant to the crime. Defendant supports thisclaim with copies of reports from the Northern Illinois Police Crime Laboratory, which set forth the results of various testsand 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 inthe State's case. Counsel told the jury that there would be no fingerprint evidence, no blood evidence, and no footprintevidence linking defendant to the crime. Counsel elaborated on this theme in his opening, stating, in part, that "no policeofficer, no laboratory technician, no evidence technician, no chemist can come into this courtroom to say that there's anyevidence 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 theState. Counsel argued to the jury that, despite evidence of extensive blood splattering at the crime scene, the victim's bloodwas 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 crimelaboratory to testify, was a matter of trial strategy and was not deficient. Accordingly, appellate counsel was not ineffectivefor failing to raise, on direct appeal, these allegations of trial counsel's ineffectiveness. 4. Failure to Object to Testimony and 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 sexualassault, 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 waivedreview of these issues. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that his appellate counsel wasineffective for failing to raise these claims of trial counsel's ineffectiveness. Accordingly, we must determine whether theseclaims would have succeeded, had they been raised on direct appeal. See Childress, 191 Ill. 2d at 175.
At his first trial, defendant moved the court in limine to bar any evidence relating to Dan Thacker's pretrial identification ofdefendant. The trial court granted the motion. At defendant's second trial, the court indicated that it would not revisit inlimine rulings from the first trial. In his post-conviction petition, defendant claims that his counsel was ineffective forfailing to raise the court's in limine order from the first trial as a bar to Thacker's identification testimony in the secondtrial. Defendant contends that his counsel "never bothered" to read the prior trial record and therefore failed to make theappropriate objection. The record discloses that defendant's counsel made this objection when the State, on retrial, raised the issue of thepermissible scope of Thacker's testimony. Counsel, however, later withdrew any objection to identification testimony fromThacker. To the extent that defendant's claim is really an attack on counsel's decision to withdraw his objection, weconclude 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., hesaw a woman in a white dress running across the parking lot and a black male wearing dark clothing, white gloves andwhite sunglasses following the woman. Thacker provided a general description of the man, whom he later saw come out ofthe building and walk across the parking lot. Defense counsel, on cross-examination, questioned Thacker about the lack ofdetail in his description of the man he saw. Counsel also elicited testimony from Thacker that he could not make a positiveidentification of the man he saw in the parking lot from the initial photo array shown to him by police, but that he pickedthe photograph of the person who had the same general features. Defense counsel further questioned Thacker about thesecond 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 examineThacker 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 Stateargued that the type of testimony elicited from Thacker by defense counsel at the first trial was contrary to the trial court'sin limine order and should not be permitted on retrial. The trial court agreed. The record reflects a colloquy between theprosecutor and defense counsel. Pursuant to their discussion, defense counsel withdrew his objection to Thacker'sidentification testimony, but with the understanding that Thacker would testify not that defendant is the man he saw in theparking lot, but that defendant merely fits the general description of the man he saw in the parking lot. Thacker testifiedconsistently therewith. We conclude that counsel's decision to withdraw his objection to Thacker's identification testimony was a matter of trialstrategy 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 wherethree other witnesses identified defendant in court as the man they saw in the parking lot outside Entrata's apartment on themorning of the murder. Because defendant's claim of ineffective assistance of trial counsel would not have succeeded had it been raised on directappeal, we reject defendant's claim of ineffective assistance of appellate counsel. See Childress, 191 Ill. 2d at 175.
At the first trial, the court granted defendant's in limine motion to bar evidence that the victim installed homemade securitydevices in her apartment following the alleged sexual assault. As already noted, on retrial the court indicated that it wouldnot revisit in limine rulings from the first trial. At the second trial, Zacarias Meana, Entrata's uncle, testified that, during the first week in May 1987, he helped his niecemove into a new apartment in the same complex where she had been living, and helped her install wooden poles to securethe doors from the inside. Over the objection of defense counsel, photographs of Entrata's apartment, which showed themake-shift security devices, were also introduced into evidence. Defendant's counsel later called to the trial court'sattention its in limine order from the first trial and argued that the introduction of evidence contrary to that order was aground 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 inlimine order as a bar to the admission of this evidence. We conclude that defendant's claim is barred by the doctrine of resjudicata. On direct review from defendant's second conviction, defendant argued that the introduction of Meana'stestimony and the photographs of Entrata's apartment were irrelevant and prejudicial and should have been excluded. Enis,163 Ill. 2d at 404-05. We held that any error in the admission of this evidence was not a material factor in defendant'sconviction; that it did not deprive defendant of a fundamentally fair trial; and that it is not reversible error. Enis, 163 Ill. 2dat 404-05. Defendant cannot obtain post-conviction relief by rephrasing this issue as one of ineffective assistance ofcounsel. 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 onthe morning of the murder. On direct review of defendant's second conviction, defendant argued that the State's improper bolstering of Twardy'stestimony amounts to plain error. We rejected this argument, holding that the evidence was not closely balanced and thatdefendant was not deprived of a fundamentally fair trial. Enis, 163 Ill. 2d at 402-03. Defendant also argued, on directreview, that his counsel was ineffective for failing to properly preserve this issue for review on appeal. Enis, 163 Ill. 2d at405. We held that, assuming counsel was ineffective, the outcome of defendant's trial would not have been different hadcounsel preserved this issue for review. Enis, 163 Ill. 2d at 407. Accordingly, defendant's post-conviction claim is barredby 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 himto give testimony, and to call him as a witness. According to defendant, after the State rested, counsel advised defendant atthat time that he would not be called to testify. Defendant states in his post-conviction affidavit that he would have testifiedthat he did not kill Merlinda Entrata, that he was prepared to proceed with the sexual assault case, and that he was confidentof being acquitted of that charge. The post-conviction affidavit of Jed Stone, defendant's counsel, indicates that Stone hasno recollection of specific conversations with defendant about his right to testify, but that it is Stone's practice to discussthis 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 attrial that he would not be called as a witness, defendant failed to assert his right by informing the trial court that he wishedto testify. Thus, defendant acquiesced in counsel's view that defendant should not take the stand. In the absence of acontemporaneous 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 relatedclaim 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 variouswitnesses 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 Stricklandtest. 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 objectivestandard of reasonableness, and that absent counsel's errors, there is a reasonable probability that the sentencer would haveconcluded 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 underwhich he was found eligible for the death penalty. The trial court found defendant eligible for the death penalty in thatdefendant was 18 years or older at the time of the offense, and defendant murdered the victim, Merlinda Entrata, becauseshe 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 eligibilitystage, relying instead on the evidence presented at trial. Defendant's counsel presented no evidence. On direct appeal, weheld 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 wellas evidence that defendant suffers from a neuropsychological impairment. We have already determined in this appeal thatthe proposed testimony of Melius and Williams would not have negated defendant's motive for murdering Entrata. Wetherefore consider defendant's ineffectiveness claim only with respect to counsel's failure to investigate and presentevidence 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'smotivation for the murder of Entrata. Dr. Gelbort expresses his opinion that defendant, at the time of the murder, wassuffering from extreme emotional disturbance and that defendant would not have been motivated by a desire to silence thevictim. Rather, defendant would have acted in a deviant manner as a result of feeling emotional and psychological rejectionby the victim, leading to a loss of control, and that "[t]his would have resulted in [defendant's] using undue force in anattempt 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 thatdefendant shot Entrata four times at close range. Each shot defendant delivered was to Entrata's head. There were powderburns on her temple. Entrata 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 secondtrial that defendant desired a relationship with Entrata, that she had rejected him, or that defendant had attempted on themorning of August 10, 1987, or at any prior time to "convince" her to have a relationship with him. At the eligibilityhearing, 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 beenpersuaded that the murder of Entrata was a reaction to Entrata's alleged rejection of defendant. Thus, there is no reasonableprobability that the result of the eligibility proceeding would have been different had defendant's counsel presentedevidence of neuropsychological impairment.
Defendant argues that his counsel was also ineffective at the second stage of his capital sentencing hearing for failing toinvestigate 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 areasonable investigation for potential sources of such evidence or must have a legitimate reason for failing to make aparticular investigation. People v. Morgan, 187 Ill. 2d 500, 541 (1999); Towns, 182 Ill. 2d at 510. If mitigating evidenceexists, counsel has a duty to introduce it in support of the defendant. Towns, 182 Ill. 2d at 510; People v. Griffin, 178 Ill. 2d65, 86 (1997). The failure, however, to offer mitigation evidence at a capital sentencing hearing is not itself sufficient toshow that counsel was ineffective. Counsel's decision whether to present a particular witness is generally a strategic choicewhich cannot support a claim of ineffective assistance of counsel. Griffin, 178 Ill. 2d at 86. Before considering defendant'sclaim, 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, hadraped her. Entrata said that although he wore a mask and gloves, defendant spoke to her after the attack, and that sherecognized his voice. There was also evidence that, after the alleged sexual assault, Entrata requested a shift change so thatshe could work days, explaining to her supervisor that she had been raped. Entrata never returned to her job at the nursinghome. The State also introduced evidence of prior inappropriate sexual conduct by defendant. In March 1981, when defendant was14 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 hewanted $10 or the same thing would happen the next day. The following year, defendant grabbed the breasts of a femalestudent during a high school swim class. The incident was reported to the dean and to police. In October 1984, whendefendant was 18 years old, defendant grabbed a female student by the arm as she was walking home from school and saidto her, "You're coming with me." Defendant pulled her along for a block and released her when someone called his name.Later that day, defendant telephoned her and said that she should meet him behind the high school the next day or he wouldget her. Less than three years later, while defendant was out on bond in the sexual assault case involving Merlinda Entrata,defendant groped a female coworker and made comments that suggested he had been following her. The young womanreported the incident to her manager. The State also introduced defendant's juvenile record and criminal record as an adult. In September 1981, defendant wasadjudicated delinquent based on his involvement in the armed robbery and aggravated battery of the elderly proprietor of aWaukegan laundromat. Defendant was 14 years old. Another older male was also involved. This individual used a butcherknife from defendant's home during the robbery. Defendant completed his one-year probation. In November 1983, defendant was arrested for robbery, conspiracy to commit robbery and theft. The charges arose out ofan incident in which defendant and others robbed a pizza delivery man. Although a gun was used, defendant was not thegunman. Defendant, who was 17 years old at the time, pled guilty to theft. He was sentenced to 30 months' probation and100 hours of community service. Defendant's reporting habits were poor and he had difficulty maintaining employment.Defendant did, however, successfully complete probation. In January 1984, defendant was arrested for disorderly conduct, following his refusal to obey police and leave the scene of afight. Defendant forfeited his bond and was subsequently found guilty. He was sentenced to 20 hours of public service. In February 1984, defendant was arrested for criminal trespass to land when he remained at Waukegan East High Schoolafter being told by the assistant principal to leave the building. Defendant pled guilty and was sentenced to one year ofconditional discharge and seven days in jail. In October 1984, defendant was arrested for battery and disorderly conduct, although the State later entered a nolleprosequi of these charges. In May 1987, defendant was arrested and charged with the sexual assault of Merlinda Entrata. During an approximate two-year period ending August 15, 1990, defendant, while incarcerated at Pontiac CorrectionalCenter, committed six minor violations and two major violations, including intimidation, insolence, and disobeying orders.In January 1991, defendant was transferred to the Lake County jail. Based on several violations, his adjustment wasdescribed in the presentence investigation report as "poor." In aggravation, the State also cited defendant's aggressive and violent conduct in school. Records establish that during the3 |