{ "id": 243850, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNIE LEE EVANS, Appellant", "name_abbreviation": "People v. Evans", "decision_date": "1999-02-19", "docket_number": "No. 83457", "first_page": "83", "last_page": "104", "citations": [ { "type": "official", "cite": "186 Ill. 2d 83" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "102 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3155800 ], "year": 1984, "pin_cites": [ { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0054-01" ] }, { "cite": "135 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256644 ], "year": 1990, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0078-01" ] }, { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "year": 1992, "pin_cites": [ { "page": "277-78", "parenthetical": "and cases cited therein" } ], 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"pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "168 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307270 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "522" }, { "page": "522" }, { "page": "538", "parenthetical": "collecting cases" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0509-01" ] }, { "cite": "155 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810080 ], "year": 1993, "pin_cites": [ { "page": "469", "parenthetical": "\"a trial judge's determination that a defendant failed to establish a Batson prima facie case is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0422-01" ] }, { "cite": "146 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597251 ], 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Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605793, 605956, 605702, 605864, 605129, 605068, 605004, 604880, 605877, 605850, 605051, 605916, 604958 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1113-02", "/us/490/1113-08", "/us/490/1113-09", "/us/490/1113-13", "/us/490/1113-11", "/us/490/1113-07", "/us/490/1113-04", "/us/490/1113-12", "/us/490/1113-06", "/us/490/1113-10", "/us/490/1113-05", "/us/490/1113-01", "/us/490/1113-03" ] }, { "cite": "506 N.E.2d 1314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 15, "year": 1986, "pin_cites": [ { "page": "85" }, { "page": "80" }, { "page": "1716" }, { "page": "93-94" }, { "page": "85-86" }, { "page": "1721" }, { "page": "97-98" }, { "page": "88" }, { "page": "1723" }, { "page": "98" }, { "page": "88-89" }, { "page": "1724" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "125 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554525 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "62" }, { "page": "61-67" }, { "page": "65-66" }, { "page": "63-64" }, { "page": "89" }, { "page": "94-96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0050-01" ] }, { "cite": "185 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121977 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ill-2d/185/0179-01" ] } ], "analysis": { "cardinality": 1350, "char_count": 32613, "ocr_confidence": 0.803, "pagerank": { "raw": 6.94495531904064e-07, "percentile": 0.9652309845091355 }, "sha256": "c5bbd7ea3ab0034e43b619dafe457f567981563ef72f07bb59b02b8c44dbd69f", "simhash": "1:a394df9677c456dd", "word_count": 5195 }, "last_updated": "2023-07-14T19:11:27.509523+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNIE LEE EVANS, Appellant." ], "opinions": [ { "text": "CHIEF JUSTICE FREEMAN\ndelivered the opinion of the court:\nDefendant, Johnnie Lee Evans, petitioned the circuit court of Cook County for relief pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122 \u2014 1 et seq. (West 1996). The circuit court dismissed defendant\u2019s amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). We affirm.\nBACKGROUND\nIn defendant\u2019s direct appeal, this court recited the details of his crimes. See People v. Evans, 125 Ill. 2d 50 (1988). We need not repeat those details here. Defendant was charged with, inter alia, the knowing, intentional, and felony murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 \u2014 1(a)(1), (a)(2), (a)(3)) and the attempted rape (Ill. Rev Stat. 1983, ch. 38, pars. 8 \u2014 4, 11 \u2014 1) of 16-year-old Adrian Allen. At the close of the evidence, the jury returned general verdicts of guilty of murder and attempted rape.\nDefendant waived a sentencing jury. At the first stage of the death sentencing hearing, the trial judge determined that defendant was eligible for the death penalty because he murdered the victim in the course of committing another felony, i.e., attempted rape. See Ill. Rev Stat. 1983, ch. 38, par. 9 \u2014 1(b)(6). At the close of the second stage of the death sentencing hearing, the circuit court sentenced defendant to death on the murder conviction and to an extended prison term of 30 years on the attempted rape conviction.\nDefendant appealed directly to this court. Ill. Const. 1970, art. VI, \u00a7 4(b); 134 Ill. 2d R. 603. While defendant\u2019s appeal was pending, the United States Supreme Court issued its decision in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). On May 1, 1987, this court entered a supervisory order remanding the cause to the circuit court for a Batson hearing. People v. Evans, No. 60705, 506 N.E.2d 1314 (1987). The circuit court found that defendant had failed to establish a prima facie case of purposeful discrimination in the State\u2019s exercise of its peremptory challenges.\nOn return of the case, this court affirmed defendant\u2019s convictions and sentences. People v. Evans, 125 Ill. 2d 50 (1988). The United States Supreme Court denied defendant\u2019s petition for a writ of certiorari. Evans v. Illinois, 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175 (1989).\nOn June 27, 1990, defendant filed in the circuit court a petition for post-conviction relief. Nearly seven years later, defendant filed an amended post-conviction petition. On May 17, 1997, the circuit court, in the person of the same judge who sentenced defendant, granted the State\u2019s motion to dismiss the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.\nDISCUSSION\nA proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal of a defendant\u2019s underlying judgment. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to post-conviction relief, the petitioner bears the burden of establishing a substantial deprivation of federal or state constitutional rights. Also, determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct appeal, but were not, are deemed waived. People v. Johnson, 183 Ill. 2d 176, 186 (1998); People v. Whitehead, 169 Ill. 2d 355, 371 (1996); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995).\nThe petitioner in a post-conviction hearing is not entitled to an evidentiary hearing as of right. Rather, the Act permits summary dismissal of a nonmeritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Johnson, 183 Ill. 2d at 187; Whitehead, 169 Ill. 2d at 370-71; Mahaffey, 165 Ill. 2d at 452. For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. People v. Coleman, 183 Ill. 2d 366, 380-82 (1998); People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995). The circuit court\u2019s dismissal of a post-conviction petition is reviewed de novo. Coleman, 183 Ill. 2d at 387-89.\nOn appeal, defendant contends that he was denied his constitutional rights at trial due to the: (1) prosecution\u2019s discriminatory use of its peremptory challenges during voir dire to exclude African-American venirepersons from the jury; (2) ineffective assistance of his trial counsel at the death sentencing hearing; and (3) cumulative effect of these errors.\nI. Batson Claim\nDefendant contends that the prosecution used its peremptory challenges during voir dire to exclude African-American venirepersons from the jury. In Batson, the United States Supreme Court reaffirmed the principle that the State denies an African-American defendant the equal protection of the laws when it tries the defendant before a jury from which members of the defendant\u2019s race have been purposely excluded. Batson, 476 U.S. at 85, 90 L. Ed. 2d at 80, 106 S. Ct. at 1716; see Evans, 125 Ill. 2d at 62. The ramifications of Batson continue to be realized. See, e.g., Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991).\nBatson requires that a defendant first establish a prima facie case of discrimination. Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at 1721. Once the defendant establishes a prima facie case, the burden shifts to the prosecution to come forward with race-neutral and trial-specific reasons for striking the African-American venirepersons. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. The trial court must then consider those explanations and determine if the defendant has established purposeful discrimination. Bat-son, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724; see People v. Williams, 147 Ill. 2d 173, 219-20 (1991); People v. Andrews, 146 Ill. 2d 413, 424 (1992).\nIn this case, the circuit court found that defendant had failed to establish a prima facie case of purposeful discrimination. On direct review, this court upheld that finding. Evans, 125 Ill. 2d at 61-67; see People v. Peeples, 155 Ill. 2d 422, 469 (1993) (\u201ca trial judge\u2019s determination that a defendant failed to establish a Batson prima facie case is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence\u201d).\nIn his post-conviction petition, defendant points to one observation of this court in its discussion of this issue on direct review:\n\u201cPerhaps even more significantly, unlike Batson this is not a case involving an interracial crime in which specific racial groups would be prone to take sides of prejudice. [Citation.] Here, the defendant is black, the victim was black, and the majority of witnesses are black. Any racial issue inherent in the selection of the jury is therefore minimal, if not nonexistent.\u201d Evans, 125 Ill. 2d at 65-66.\nDefendant assigns error to this observation.' The petition, supported by affidavits, alleges that the trial record fails to indicate the race of most of the witnesses and, further, that 8 of the 15 witnesses who testified at the guilt phase of the trial were white. The circuit court found that this claim was res judicata.\nBefore this court, defendant argues that, \u201c[b]ecause [defendant\u2019s] claim was supported by new evidence, res judicata did not apply.\u201d The State initially responds that defendant failed to include the race of the trial witnesses in the record of the Batson hearing. Thus, the State contends, \u201cbecause defendant\u2019s \u2018new evidence\u2019 is not really new, and could have been made part of the record on direct appeal, it is insufficient to overcome res judicata.\u201d In his reply, defendant denies the existence of \u201ca requirement that, to avoid res judicata, it is necessary that the new evidence at issue could not have been part of the record on direct appeal.\u201d\nDefendant\u2019s contention lacks merit. \u201cIt is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated.\u201d People v. Coleman, 168 Ill. 2d 509, 522 (1995); accord People v. Silagy, 116 Ill. 2d 357, 365 (1987); People v. Derengowski, 44 Ill. 2d 476, 479 (1970). Therefore, \u201c[t]he judgment of the reviewing court on a previous appeal is res judicata as to all issues actually decided, and any claim that could have been presented to the reviewing court in the direct appeal is, if not presented, thereafter barred under the doctrine of waiver.\u201d Silagy, 116 Ill. 2d at 365; accord Derengowski, 44 Ill. 2d at 479; Ciucci v. People, 21 Ill. 2d 81, 85 (1960). We note that these procedural bars occasionally may be relaxed when fundamental fairness requires. Coleman, 168 Ill. 2d at 522; Derengowski, 44 Ill. 2d at 479; People v. Ashley, 34 Ill. 2d 402, 408 (1966).\nWe remanded this cause to the circuit court specifically for a Batson hearing. This was defendant\u2019s opportunity to establish a Batson prima facie case. At the Batson hearing, defendant and the prosecution stipulated to the race of the selected jurors and the peremptorily excused venirepersons. Defendant knew the race of the trial witnesses, and could have easily included those facts in the record of the Batson hearing. Such facts are part of the totality of relevant circumstances a trial court may consider when determining whether there was discrimination. Evans, 125 Ill. 2d at 63-64, citing United States v. Mathews, 803 F.2d 325, 332 (7th Cir. 1986), rev\u2019d on other grounds, 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988). Defendant carried the burden of preserving those facts in the record of the Batson hearing. See Johnson, 183 Ill. 2d at 190; People v. Henderson, 142 Ill. 2d 258, 279-80 (1990). Defendant\u2019s failure to do so constitutes a waiver of this issue in this post-conviction proceeding. Further, no reason based on fundamental fairness suggests itself as to why the waiver rule should not apply to this claim. The circuit court, properly dismissed this claim.\nII. Ineffective Assistance of Counsel: Death Sentencing Hearing\nDefendant next claims that he was denied his constitutional right to effective assistance of counsel at the second stage of the death sentencing hearing. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7 8. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); see Brisbon, 164 Ill. 2d at 245-46.\nThe test is composed of two prongs: deficiency and prejudice. First, the defendant must prove that counsel made errors so serious, and that counsel\u2019s performance was so deficient, that counsel was not functioning as the \u201ccounsel\u201d guaranteed by the sixth amendment. A court measures counsel\u2019s performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. People v. Griffin, 178 Ill. 2d 65, 73-74 (1997); Mahaffey, 165 Ill. 2d at 457-58.\nSecond, the defendant must establish prejudice. The defendant must prove that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The prejudice prong of Strickland entails more than an \u201coutcome-determinative\u201d test. The defendant must show that counsel\u2019s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Griffin, 178 Ill. 2d at 74. In the context of a death sentencing hearing, a defendant must prove that there is a reasonable probability that, absent counsel\u2019s deficient conduct, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Mahaffey, 165 Ill. 2d at 466.\nA defendant must satisfy both prongs of the Strickland test. However, if the ineffective-assistance claim can be dispos\u00e9d of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel\u2019s performance was constitutionally deficient. Griffin, 178 Ill. 2d at 74; Whitehead, 169 Ill. 2d at 380-81. Defendant makes three contentions in support of this claim.\nA. Failure to Investigate: Extreme Mental or Emotional Disturbance\nDefendant contends that trial counsel failed to introduce available evidence to support the statutory mitigating factor that \u201cthe murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.\u201d Ill. Rev. Stat. 1983, ch. 38, par. 9 \u2014 1(c)(2).\nThe State initially responds that the issue is waived in this post-conviction proceeding. We disagree. The trial record does not include the evidence which defendant now presents to substantiate his claim of ineffective assistance. \u201cRules of waiver and res judicata will be relaxed where the facts relating to the issue of counsel\u2019s incompetency do not appear on the face of the record.\u201d People v. Orange, 168 Ill. 2d 138, 167 (1995). Therefore, we will address the merits of this issue. See, e.g., People v. Britz, 174 Ill. 2d 163, 184-85 (1996); People v. Eddmonds, 143 Ill. 2d 501, 528 (1991).\nThe issue of whether defendant received effective assistance of counsel must be determined from the totality of counsel\u2019s conduct. People v. Stewart, 101 Ill. 2d 470, 493 (1984). At the close of the guilt phase of the trial, defendant\u2019s trial counsel sought a 30-day continuance so defendant could receive a psychiatric evaluation from Dr. Alan Rosenwald. The trial court inquired as to the purpose of the examination. Counsel responded: \u201cJudge, it would go to the indicia \u2014 mitigation. I believe one of the factors in mitigation is that extreme, emotional distress.\u201d The trial court granted the continuance.\nAt the second stage of the death sentencing hearing, defendant\u2019s mitigation witnesses were himself and Dr. Rosenwald, in that order. Defendant, during direct examination, testified at length as to his troubled and disadvantaged life. He also denied committing the present crimes. During cross-examination, defendant denied having any knowledge of or involvement in the attempted rape and murder of the victim. He testified that he did not know the victim and that he was not in the elevator with her. Defendant testified that his inculpatory statement was not voluntary; he falsely confessed in exchange for a promise of a lesser charge and police protection for his family.\nDr. Rosenwald next testified. Defendant\u2019s trial counsel asked Dr. Rosenwald whether he was \u201cable to a degree of reasonable certainty, able to determine whether or not [defendant] is acting under an extreme emotional or mental distress?\u201d Dr. Rosenwald answered: \u201cWell, if extreme is chronic, I have trouble with the term extreme. I think this is a long-standing mental disturbance, and that consequently there would be periods of time where [defendant] would be acting under extreme duress. That he has been chronically ill for many years.\u201d On cross-examination, Dr. Rosenwald again concluded \u201cthat it was highly probable that [defendant] was under emotional factors which could contribute to the crimes that he committed.\u201d Also, during cross-examination, Dr. Rosenwald testified that defendant\u2019s trial counsel had not asked him to consider, thus his report did not discuss, whether defendant was acting under an extreme mental or emotional disturbance at the time he committed the murder.\nNow, in this post-conviction proceeding, defendant contends that trial counsel was ineffective for failing to elicit testimony from Dr. Rosenwald that tracked the language of the statutory mitigating factor, i.e., that defendant was acting under the influence of an extreme mental or emotional disturbance at the time of the offense. See Evans, 125 Ill. 2d at 89. Defendant\u2019s post-conviction petition includes affidavits from Dr. Rosenwald, Dr. Gerard Girdaukas, and Arlene Messner-Peters, attesting that defendant was under such a disturbance at the time of the murder.\nThis contention fails both the deficiency and prejudice prongs of the Strickland test. First, considering the totality of the circumstances, we cannot say that the performance of defendant\u2019s trial counsel was objectively incompetent. It is true that \u201c[ujnder the Illinois murder statute, evidence that a defendant was acting under the influence of an extreme emotional disturbance at the time of the murder is one of the factors to be considered in mitigation, and may be a basis for imposing a sentence other than death.\u201d (Emphasis added.) People v. Foster, 168 Ill. 2d 465, 490 (1995). In this case, however, defendant testified that he did not act, i.e., he was not involved in the murder in any way. \u201cDefendant\u2019s insistence of innocence colors the understanding of his claim.\u201d People v. Kokoraleis, 159 Ill. 2d 325, 330 (1994). \u201cThe reasonableness of counsel\u2019s actions may be determined or substantially influenced by the defendant\u2019s own statements or actions.\u201d Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.\nIt would have been difficult for defendant\u2019s trial counsel to elicit testimony from Dr. Rosenwald and, based thereon, argue that defendant acted under the influence of an extreme mental or emotional disturbance at the time of the murder when defendant had just finished testifying that he did not act in any way. For counsel to have presented evidence of this mitigating mental state, as defendant now contends, would have been inconsistent with defendant\u2019s own testimony. See People v. Sanchez, 169 Ill. 2d 472, 491 (1996). \u201cDefense counsel\u2019s decision to forgo the presentation of mitigation evidence that would be inconsistent with the defendant\u2019s sworn trial testimony has been held constitutionally adequate.\u201d People v. Holman, 164 Ill. 2d 356, 373 (1995).\nShould trial counsel have presented a defense that contradicted defendant\u2019s protestations of innocence? Should counsel have labelled their client a liar so they could additionally label him a murderer who acted under an extreme emotional disturbance? Rather, closing argument reveals that trial counsel\u2019s sentencing strategy was to portray defendant as the neglected and unwanted victim of an abusive childhood, who raped women in a misguided quest for love. \u201cA reasoned decision to make the best of a bad situation by pursuing a particular line of defense satisfies the constitutional minimum.\u201d Kokoraleis v. Gilmore, 131 F.3d 692, 697 (7th Cir. 1997).\nSecond, this contention fails the prejudice prong of the Strickland test. In other words, defendant has failed to show a reasonable probability that, had trial counsel presented evidence that defendant had acted under an extreme emotional disturbance at the time of the murder, the trial judge would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. See Mahaffey, 165 Ill. 2d at 466.\nThe aggravation evidence is plentiful and significant. Initially, defendant admitted his involvement in these crimes; his inculpatory statement was admitted at trial. Many details of his statement were corroborated by other evidence.\nThe record contains the following additional aggravation evidence. Between 1969 and 1974, defendant committed several offenses including criminal trespass, theft, and disorderly conduct. In 1974, defendant raped Tina Yancy at knifepoint in an elevator; however, charges based on this incident were subsequently dismissed. In 1975, 20 days after his release from the county jail on the charges brought by Yancy, defendant raped Loretta Brown in an elevator. One week later, he raped Ruby Coleman in an elevator. Defendant was tried, convicted and imprisoned. In 1978, nine days after his release from prison, defendant raped Gail Carroll at knifepoint in an elevator. Again, defendant was tried, convicted, and imprisoned. In 1983, 24 days after his release from prison, defendant attempted to rape Annie Webb in an elevator. Instead, he battered her and one of her children and stole her purse, which contained a pearl-handled knife bearing the word \u201cLion\u201d on the handle. The next day, defendant attempted to rape Diane Smith at knifepoint in her apartment. Smith resisted, defended herself with a kitchen knife, and forced defendant from her apartment. The day after that, defendant raped Maeline Mitchell at knifepoint in an elevator; Mitchell identified defendant\u2019s knife as the one defendant had stolen from Webb. Four days later, on January 22, 1983, defendant stabbed the victim in this case to death in an attempt to rape her in an elevator.\nAdditional aggravation evidence included the following. While defendant was incarcerated at Menard Correctional Center, he sent letters to Paula Banks, a 16-year-old sister of another inmate. In those letters, defendant asked Banks to be his girlfriend. In one letter, defendant threatened her fife if she did not comply. While he was incarcerated at Graham Correctional Center, defendant was disciplined for grabbing a female correctional officer\u2019s buttocks. When defendant was released on parole, he did not cooperate with his parole officer and made no effort to find employment. A petition for violation of parole was filed as a result of the charges in this case.\nFirst, given all of the evidence before the trial judge, there is no reasonable probability that the additional evidence now offered by defendant would have caused the trial judge to find the existence of this statutory mitigating factor. A defendant is under the influence of an extreme emotional disturbance when the defendant\u2019s emotional state at the time of the murder is at such a fragile point as to leave him or her with little to no emotional control. Johnson, 183 Ill. 2d at 206, quoting People v. Phillips, 127 Ill. 2d 499, 534 (1989). Here, the aggravation evidence, including defendant\u2019s inculpatory statement, shows that defendant\u2019s overall mental state was one of rationality and composure. Also, since defendant initially lied to police prior to giving his inculpatory statement, he apparently appreciated the criminality of his acts. See Johnson, 183 Ill. 2d at 206; Foster, 168 Ill. 2d at 491-92; Phillips, 127 Ill. 2d at 534-35.\nSecond, it must be remembered that:\n\u201cproof of one mitigating factor, by itself, will not always preclude the imposition of the death sentence. Instead, the sentencing authority should carefully weigh the factors, aggravating and mitigating, in order to reach a fair and just result, one that is based on the particular circumstances of the offense and the defendant.\u201d People v. Brownell, 79 Ill. 2d 508, 538 (1980).\nIn light of the overwhelming aggravation evidence, we hold that even if defendant had established the existence of this statutory mitigating factor, there is no reasonable probability that the trial judge would have imposed a sentence other than death. The circuit court properly dismissed this claim.\nB. Failure to Investigate: Other Mitigation Evidence\nDefendant next contends that trial counsel failed to investigate and present evidence of other nonstatutory mitigating factors. We earlier described the aggravation evidence. Defendant\u2019s mitigation witnesses were himself and Dr. Rosenwald.\nDefendant\u2019s testimony touched on many aspects of his life. Defendant gave extensive, detailed testimony regarding neglect, abuse, and sexual molestation from family, coworkers, and strangers during his childhood and teenage years. Defendant testified regarding his married life. He described his first wife and their children, and how the family was separated due to his jail record and his first wife\u2019s neglect of their children.\nHe admitted committing all of the rapes with which he was charged, except for the rape of Tina Yancy. Defendant explained that he \u201cdidn\u2019t mean to rape [those] women,\u201d but that he did so due to a \u201cneed of affection.\u201d He explained: \u201cI had to prove that I was a man,\u201d and \u201cI just wanted somebody to love me.\u201d\nAlso, defendant explained that he did not grab the buttocks of the female correctional officer; rather, he accidently touched her from behind his back. At first, the officer accepted his apology. However, she subsequently saw defendant laughing with other inmates; she believed that defendant was talking about her. At that point, she reported the touching to her supervisor, who ordered her to formally report the incident. Additionally, defendant denied writing letters to Paula Banks, but acknowledged that the name and prison identification number on the letter were his.\nDr. Rosenwald performed a psychiatric examination of defendant. Dr. Rosenwald believed that defendant felt \u201cvery impotent and empty and dependent\u201d and \u201cvictimized.\u201d Defendant also felt anger as a result of neglect and abuse by his family. Dr. Rosenwald described defendant as \u201cchronically a depressed human being who feels helpless, rejected, abandoned, unloved.\u201d\nDr. Rosenwald also testified that defendant: might have considerable difficulty in understanding the feelings and emotions of other people; did not have very good control of his own emotions, which would emerge in a \u201ctumultuous\u201d fashion; and had \u201ca kind of psychopathology in the sexual area.\u201d\nDr. Rosenwald opined that defendant: had average intelligence; was able to conform his thinking to conventional standards \u201cwhen emotional situations are not in play,\u201d was \u201cchronically depressed\u201d; and felt himself to be a victim of society and, therefore, \u201cwould not see himself as primarily responsible.\u201d Dr. Rosenwald opined that defendant could benefit \u201cfrom some kind of psychotherapeutic intervention,\u201d but defendant \u201cwithout treatment is indeed a danger to society.\u201d\nNow, in his post-conviction petition, defendant contends that trial counsel was constitutionally ineffective for failing to investigate and present evidence of defendant\u2019s: (1) social history, as described in the affidavit of Messner-Peters, and (2) mental impairments, as described in the affidavit of Dr. Girdaukas. We disagree.\nThe evidence of defendant\u2019s social history described in the Messner-Peters affidavit would have been cumulative to defendant\u2019s extensive mitigation testimony and, thus, of no effect on the outcome of the death sentencing hearing. See Sanchez, 169 Ill. 2d at 490-91; cf. People v. Towns, 182 Ill. 2d 491, 521 (1998) (proffered mitigation evidence not cumulative where mitigation evidence presented at death sentencing hearing \u201cdevoid of detail regarding defendant\u2019s life\u201d). Further, such evidence is not inherently mitigating. Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996). The trial judge might have considered such evidence to be an aggravating factor. The judge could have regarded defendant\u2019s troubled life, with his criminal record, as an indicator of defendant\u2019s future dangerousness. See Mahaffey, 165 Ill. 2d at 467; People v. Ward, 154 Ill. 2d 272, 335-37 (1992).\nSimilarly, evidence of mental impairments as described in Dr. Girdaukas\u2019 affidavit is not inherently mitigating. Holman v. Gilmore, 126 F.3d 876, 882-84 (1997). Proof of defendant\u2019s mental handicaps not only could evoke compassion from the trial judge, but also could have demonstrated defendant\u2019s continued dangerousness. See Foster, 168 Ill. 2d at 490-91; Mahaffey, 165 Ill. 2d at 467-68.\n\u201cMoreover, we must assess prejudice in a realistic manner based on the totality of the evidence. Accordingly, it is improper to focus solely on the potential mitigating evidence. As our cases illustrate, the nature and extent of the evidence in aggravation must also be considered.\u201d Coleman, 168 Ill. 2d at 538 (collecting cases). In this case, the aggravation evidence was overwhelming. We conclude that the introduction of the evidence now proffered by defendant regarding his background and mental health would not have created a reasonable probability of a different sentence. See Coleman, 168 Ill. 2d at 539; People v. Thomas, 164 Ill. 2d 410, 424-29 (1995). The circuit court properly dismissed this claim.\nC. Failure to Object: Victim\u2019s Pregnancy\nDefendant next contends that trial counsel failed to object to aggravation evidence and argument that the victim was pregnant. Edmund Donaghue, deputy chief medical examiner of Cook County, testified that the victim was five months\u2019 pregnant at the time she was killed. Defendant notes Dr. Donaghue\u2019s testimony that the victim\u2019s pregnancy was not externally visible; thus, defendant was unaware that she was pregnant. During closing argument, both the prosecution and defendant\u2019s trial counsel referred to .this evidence. Defendant\u2019s trial counsel failed to object to this evidence and argument.\nDefendant argues that such evidence and argument were irrelevant, inflammatory, and highly prejudicial. Dismissing this claim, the circuit court found that defendant\u2019s trial counsel was not deficient and defendant was not prejudiced.\nThis issue is barred by operation of res judicata and waiver. A petitioner cannot obtain relief under the Act by rephrasing issues, which were previously addressed, in constitutional terms, such as ineffective assistance of counsel. People v. Flores, 153 Ill. 2d 264, 277-78 (1992) (and cases cited therein). This court found that defendant was not prejudiced by this evidence and argument. Evans, 125 Ill. 2d at 94-96. Defendant cannot now argue that trial counsel was ineffective for failing to object to what this court has previously concluded to be nonprejudicial. See Thomas, 164 Ill. 2d at 420-21. The circuit court properly dismissed this claim.\nIII. Cumulative Effect of Alleged Errors\nDefendant lastly claims that the cumulative effect of these alleged errors violated his constitutional rights. The circuit court properly dismissed this claim. We have rejected each claim in this post-conviction petition. Thus, there can be no cumulative effect. See People v. Franklin, 135 Ill. 2d 78, 105 (1990); People v. Albanese, 102 Ill. 2d 54, 82-83 (1984).\nCONCLUSION\nFor the foregoing reasons, the order of the circuit court of Cook County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, May 18, 1999, as the date on which the sentence of death entered in the circuit court is to be imposed. The defendant shall be executed in the manner provided by law. 725 ILCS 5/119 \u2014 5 (West 1996). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the institution where defendant is now confined.\nAffirmed.\nJUSTICES HEIPLE and RATHJE took no part in the consideration or decision of this case.", "type": "majority", "author": "CHIEF JUSTICE FREEMAN" }, { "text": "JUSTICE HARRISON,\nconcurring in part and dissenting in part:\nI agree that no basis exists for disturbing Evans\u2019 convictions or the sentence he received for the attempted rape of Adrian Allen. In my view, however, Evans\u2019 death sentence should not be allowed to stand. For the reasons set forth in my dissent in People v. Bull, 185 Ill. 2d 179 (1998), this state\u2019s present death penalty law does not meet the requirements of the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) or article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 2). Accordingly, we should vacate Evans\u2019 death sentence and remand the cause to the circuit court for imposition of a sentence other than death.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HARRISON," } ], "attorneys": [ "Julie A. Bauer, E Lee Berger and Cornelius M. Murphy, of Winston & Strawn, of Chicago, for appellant.", "James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 83457.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNIE LEE EVANS, Appellant.\nOpinion filed February 19, 1999.\nRehearing denied March 29, 1999.\nHEIPLE and RATHJE, JJ., took no part.\nHARRISON, J., concurring in part and dissenting in part.\nJulie A. Bauer, E Lee Berger and Cornelius M. Murphy, of Winston & Strawn, of Chicago, for appellant.\nJames E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0083-01", "first_page_order": 95, "last_page_order": 116 }