{ "id": 1096315, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY ENIS, Appellant", "name_abbreviation": "People v. Enis", "decision_date": "2000-11-22", "docket_number": "No. 86636", "first_page": "361", "last_page": "418", "citations": [ { "type": "official", "cite": "194 Ill. 2d 361" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "139 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574337 ], "weight": 11, "year": 1990, "pin_cites": [ { "page": "275-76" }, { "page": "275-76" }, { "page": "279-82" }, { "page": "281-82" }, { "page": "282" }, { "page": "288-89" }, { "page": "289" }, { "page": "289" }, { "page": "289-90" }, { "page": "276-77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0264-01" ] }, { "cite": "163 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477949 ], "weight": 15, "year": 1994, "pin_cites": [ { "page": "375-84" }, { "page": "403, 406" }, { "page": "407" }, { "page": "403-04" }, { "page": "403" }, { "page": "384" }, { "page": "378-79" }, { "page": "404-05" }, { "page": "402-03" }, { "page": "405" }, { "page": "407" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0367-01" ] }, { "cite": "516 U.S. 827", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 327363, 324571, 327688, 324300, 327277, 327214, 323630, 324944, 325621, 327639, 322904, 326937, 328315, 328157, 326847 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0827-05", "/us/516/0827-06", "/us/516/0827-01", "/us/516/0827-13", "/us/516/0827-08", "/us/516/0827-15", "/us/516/0827-11", "/us/516/0827-09", "/us/516/0827-04", "/us/516/0827-14", "/us/516/0827-02", "/us/516/0827-03", "/us/516/0827-10", "/us/516/0827-07", "/us/516/0827-12" ] }, { "cite": "133 L. 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Ct.", "year": 1995, "opinion_index": 0 }, { "cite": "191 Ill. 2d 257", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229721 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "268" }, { "page": "268" }, { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0257-01" ] }, { "cite": "191 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229725 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "397" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0392-01" ] }, { "cite": "164 Ill. 2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477007 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "362, 376" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0356-01" ] }, { "cite": "182 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864527 ], "year": 1998, "pin_cites": [ { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0404-01" ] }, { "cite": "182 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864533 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "503" }, { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0491-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "388-89" }, { "page": "403" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 15, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" }, { "page": "697" }, { "page": "699" }, { "page": "2069" }, { "page": "690" }, { "page": "695" }, { "page": "2066" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "191 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229715 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0363-01" ] }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "weight": 7, "year": 1999, "pin_cites": [ { "page": "93" }, { "page": "103" }, { "page": "103", "parenthetical": "holding, in the context of post-conviction review, that trial counsel was not ineffective for failing to object to evidence and argument which was previously found on direct appeal to be nonprejudicial" }, { "page": "103" }, { "page": "96" }, { "page": "96-97" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "191 Ill. 2d 168", "category": "reporters:state", "reporter": 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"/ill-2d/183/0176-01" ] }, { "cite": "161 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783176 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "163" }, { "page": "163" }, { "page": "177" }, { "page": "177-78" }, { "page": "166-67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0148-01" ] }, { "cite": "189 Ill. 2d 521", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224773 ], "year": 2000, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0521-01" ] }, { "cite": "54 Ill. 2d 21", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934161 ], "year": 1973, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0021-01" ] }, { "cite": "187 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131028 ], "year": 1999, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0249-01" ] 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"/ill-2d/157/0324-01" ] }, { "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": 2200, "char_count": 89499, "ocr_confidence": 0.797, "pagerank": { "raw": 4.294588959297344e-07, "percentile": 0.9165119279154885 }, "sha256": "2111d91f96b5e0c781f3be4ec63e4af9a77a494de2abf9bfd46f27bc24b0a79c", "simhash": "1:a7ffd5bc731c5169", "word_count": 14080 }, "last_updated": "2023-07-14T22:17:13.097218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appel-lee, v. ANTHONY ENIS, Appellant." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nDefendant, Anthony Enis, appeals from an order of the circuit court of Lake County dismissing his post-conviction petition without an evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, his appeal lies directly to this court. See 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the dismissal of defendant\u2019s post-conviction petition.\nBACKGROUND\nA. Criminal Trials\nDefendant 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\u2019s conviction and sentence, based on the prosecutor\u2019s improper cross-examination of defendant, and remanded the matter for a new trial. People v. Enis, 139 Ill. 2d 264 (1990).\nOn retrial, defendant was convicted of Entrata\u2019s murder and sentenced to death. On direct review, we affirmed defendant\u2019s conviction and sentence. People v. Enis, 163 Ill. 2d 367 (1994). Defendant\u2019s 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).\nThe evidence presented against defendant on retrial is discussed in this court\u2019s opinion on direct appeal. See Enis, 163 Ill. 2d at 375-84. We provide a brief summary here.\nThe victim, Merlinda Entrata, was the complainant in a criminal sexual assault case against defendant that was set to begin trial on August 17, 1987. Defendant had pled not guilty to the sexual assault charge and had been released on a personal recognizance bond. On August 10, 1987, shortly before 7 a.m., police found Entrata\u2019s body in the hallway of her Waukegan apartment building. She had sustained multiple close-range gunshot wounds to the head.\nProsecution witnesses identified defendant as the man they saw in the parking lot outside the victim\u2019s building on the morning of the shooting. Clara Burk testified that she saw defendant, who was wearing sunglasses, pursue Entrata from the parking lot into the apartment building. Defendant was carrying a box that resembled a lunch box. Dan Thacker testified that he saw a man running after Entrata in the parking lot. The man, whose description fit defendant, was wearing white gloves, white sunglasses and dark clothing, and was carrying a metal lunch box. Richard Hanson identified defendant as the man he saw running in the parking lot. The man was wearing white gloves and white sunglasses. As he ran, the metal box he was carrying fell open and a gun fell out of the box. Sylvia Barrett also saw defendant in the parking lot on the morning of the shooting. Defendant was wearing a dark-blue jumpsuit. In addition, John Twardy saw a man run through the parking lot, drop something, and retrieve it. Twardy lost sight of the man, and then saw a red or maroon car drive away. Twardy testified that the vehicle owned by defendant\u2019s girlfriend, Diane Gonzales, was similar to the car he saw leaving the parking lot. Within two hours of the shooting, police found Gonzales\u2019 car parked outside defendant\u2019s apartment. The hood of the car was warm. Unlike the other cars in the area, there was no dew on Gonzales\u2019 car.\nA jury found defendant guilty of Entrata\u2019s murder. Defendant waived a jury at sentencing. The trial court determined that defendant was eligible for the death penalty in that he murdered the victim because she would have been a witness against him in a criminal prosecution (see Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(b)(8)), and that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death. On direct appeal, we affirmed defendant\u2019s conviction and death sentence. Enis, 163 Ill. 2d 367.\nB. Post-Conviction Proceedings\nOn June 14, 1995, defendant filed a pro se petition for post-conviction relief. The circuit court appointed counsel to represent defendant in the post-conviction proceedings. The trial court subsequently granted attorney Robert Hauser leave to file an appearance as additional counsel in the post-conviction proceedings. In August 1996, Hauser directed a subpoena to the Wauke-gan police department, calling for the production of the \u201centire police file pertaining to Anthony Enis and/or Melissa Entratta [sic].\u201d The circuit court granted the State\u2019s motion to quash the subpoena.\nOn November 27, 1996, defendant, through counsel, filed an amended petition for post-conviction relief alleging that he was denied the effective assistance of counsel at trial and sentencing. Defendant attached numerous affidavits and other documents to the amended petition. On April 17, 1997, the State filed a motion to dismiss the amended petition for post-conviction relief, arguing that defendant\u2019s claims are barred by the doctrines of res judicata and waiver, and are otherwise unsupported by the record or affidavit.\nOn April 25, 1997, defendant filed a motion for substitution of judge, alleging that certain rulings and comments by Judge Christopher Starck demonstrated prejudice against defendant. Defendant subsequently filed an amended motion for substitution of judge, with supporting affidavit, containing essentially the same allegations. Defendant\u2019s amended motion was transferred for disposition to Judge Stephen Walter, who denied the motion.\nOn October 17, 1997, the circuit court granted defendant leave to file a supplement to the amended petition for post-conviction relief. In this supplement, defendant argued that appellate counsel was ineffective for failing to raise, on direct appeal, the issue of trial counsel\u2019s ineffectiveness. The State responded with a motion to dismiss the supplement.\nOn November 4, 1998, the circuit court dismissed defendant\u2019s petition for post-conviction relief without an evidentiary hearing. The circuit court ruled that the claimed instances of ineffective assistance of trial counsel involved matters of trial strategy, were not supported by affidavit, could have been raised on direct review, or were already considered on direct review. The circuit court also ruled that there were no meritorious claims of ineffective assistance of appellate counsel.\nOn appeal, defendant challenges the orders of the circuit court dismissing his post-conviction petition without an evidentiary hearing, granting the State\u2019s motion to quash the subpoena directed to the Waukegan police department, and denying his motion for substitution of judge.\nANALYSIS\nA. Post-Conviction Hearing Act\nThe Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1998)) provides a remedy for criminal defendants who claim that a substantial violation of their constitutional rights occurred at the proceedings which resulted in their convictions, when such a claim was not, and could not have been, previously adjudicated. People v. Johnson, 191 Ill. 2d 257, 268 (2000). Issues that were decided on direct appeal are barred by the doctrine of res judicata, and issues that could have been raised on direct appeal, but were not, are deemed waived. People v. Cloutier, 191 Ill. 2d 392, 397 (2000); Johnson, 191 Ill. 2d at 268. Waiver is not implicated, however, where a defendant\u2019s post-conviction claim relies on evidence dehors the record. People v. Holman, 164 Ill. 2d 356, 362, 376 (1995). The petitioner is entitled to a hearing on his post-conviction claims only where the allegations of the petition, supported by the trial court record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. Cloutier, 191 Ill. 2d at 397; People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded facts in the petition and in any accompanying affidavits are taken as true. People v. Towns, 182 Ill. 2d 491, 503 (1998). The sufficiency of the allegations contained in a post-conviction petition are reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).\nWith these principles in mind, we consider whether the circuit court erred in dismissing defendant\u2019s post-conviction petition without an evidentiary hearing. Although defendant\u2019s petition raises numerous claims of ineffective assistance of counsel at trial, sentencing, and on direct appeal, we consider only those claims that defendant has raised in this appeal. See 177 Ill. 2d R. 341(e)(7).\nB. Ineffective Assistance of Counsel\nIn order to succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged Strickland test: a defendant must allege facts which demonstrate that counsel\u2019s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel\u2019s errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v. Wilson, 191 Ill. 2d 363, 370 (2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel\u2019s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Strick land, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186 Ill. 2d 83, 93 (1999). There is a strong presumption that counsel\u2019s performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Wilson, 191 Ill. 2d at 370.\nClaims of ineffective assistance of appellate counsel are also evaluated under the Strickland test. People v. Childress, 191 Ill. 2d 168, 175 (2000). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating that such failure was objectively unreasonable and that counsel\u2019s decision prejudiced defendant. If the underlying issue is not meritorious, then defendant has suffered no prejudice. Childress, 191 Ill. 2d at 175.\nWe address individually each of defendant\u2019s claims of ineffective assistance of counsel.\n1. Opening Statement\nDefendant claims that his counsel was ineffective because he made promises to the jury in his opening statement that he did not keep. In his opening statement, counsel indicated that the evidence would show that Merlinda Entrata reported the sexual assault days after it allegedly occurred; that at the time of Entrata\u2019s murder, defendant was with Diane Gonzales, his then girlfriend, now his wife; and that R.C. Burton, defendant\u2019s landlord, told police officers that as he left for work at 6:30 a.m. on the day of the murder, Gonzales\u2019 car was parked outside defendant\u2019s apartment. Defendant argues that no testimony or other evidence was introduced to establish these propositions.\nDefendant raises the foregoing claim as a matter separate and distinct from his claim that his counsel was ineffective for failing to call certain witnesses at trial, including those witnesses who could have established some of the propositions listed above. We therefore view defendant\u2019s claim as a challenge only to the propriety of counsel\u2019s opening. Defendant, however, cites to nothing outside the trial court record in support of this claim. Accordingly, this issue could have been raised on direct review. The issue is therefore waived. See Johnson, 191 Ill. 2d at 268; People v. Olinger, 176 Ill. 2d 326, 365 (1997).\n2. Failure to Call Witnesses\nDefendant next claims that his counsel was ineffective for failing to present the testimony of several witnesses that would have rebutted the State\u2019s case in chief and that would have fulfilled promises made to the jury in defense counsel\u2019s opening statement. These witnesses include Moselle Williams, Michael Melius, R.C. Burton, Kathleen Jackson, Roy Norvell, Joseph Caliendo, David Asma, and Dr. Solomon Fulero.\nGuiding our review of defendant\u2019s claim is the principle that decisions concerning whether to call certain witnesses on a defendant\u2019s behalf are matters of trial strategy, reserved to the discretion of trial counsel. People v. West, 187 Ill. 2d 418, 432 (1999); People v. Reid, 179 Ill. 2d 297, 310 (1997). Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather than incompetence (People v. Wiley, 165 Ill. 2d 259, 289 (1995)), and are, therefore, generally immune from claims of ineffective assistance of counsel (Reid, 179 Ill. 2d at 310). This is not the case, however, where counsel\u2019s strategy was so unsound that no meaningful adversarial testing was conducted. West, 187 Ill. 2d at 432-33; Reid, 179 Ill. 2d at 310.\nMoselle Williams\nDefendant claims that Moselle Williams, had he been called as a witness at trial, would have testified that he drove Merlinda Entrata to the police station six days after the alleged sexual assault. Defendant argues that En-trata\u2019s delay in reporting the alleged assault, and other evidence that the sexual assault case against defendant was weak, negates defendant\u2019s motive for murdering En-trata.\nThe issue of counsel\u2019s failure to present evidence as to Entrata\u2019s delay in reporting the alleged sexual assault is barred by the doctrine of res judicata. On retrial, defendant\u2019s counsel attempted to elicit testimony from former Assistant State\u2019s Attorney Steven Simonian that Entrata did not report the alleged sexual assault until May 4, 1987, six days after its alleged occurrence. The State objected, citing a pretrial ruling which restricted the introduction of evidence relating to the sexual assault case. The trial court sustained the objection. On direct appeal, defendant argued that trial counsel was ineffective for failing to raise this issue in a post-trial motion and preserve it for review. Defendant further argued, on direct appeal, that the trial court\u2019s exclusion of this evidence was plain error. Enis, 163 Ill. 2d at 403, 406. We rejected both arguments. We held that, assuming arguendo trial counsel was ineffective, the result of the trial would not have been different had counsel preserved this claim. Enis, 163 Ill. 2d at 407. We also held that the exclusion of such evidence was not plain error and did not deprive defendant of a fundamentally fair trial. Enis, 163 Ill. 2d at 403-04. Defendant cannot obtain post-conviction relief merely by rephrasing a claim which was previously addressed on direct appeal. See Evans, 186 Ill. 2d at 103; People v. Williams, 186 Ill. 2d 55, 62 (1999).\nDefendant also claims that Williams would have testified that Entrata told him that she could not identify her attacker. In support of this claim, defendant attached to his post-conviction petition a copy of an unsigned, un-sworn, untitled report that defendant identifies as investigation notes from \u201cConsolidated Investigation Services.\u201d An investigation note, dated February 4, 1988, states that contact was made that day with Williams, who stated that Entrata had told him that she was sexually assaulted by a person wearing a mask and gloves and that she could not identify her attacker.\nA claim that trial counsel failed to investigate and call a witness must be supported by an affidavit from the proposed witness. People v. Johnson, 183 Ill. 2d 176, 192 (1998); People v. Thompkins, 161 Ill. 2d 148, 163 (1994). In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary. Johnson, 183 Ill. 2d at 192; Thompkins, 161 Ill. 2d at 163. Defendant has failed to support his claim with an appropriate affidavit from Williams.\nEven if we considered the February 4,1988, investigation note, in lieu of an affidavit, defendant has failed to demonstrate that there is a reasonable probability that the outcome of defendant\u2019s trial would have been different had counsel presented Williams\u2019 testimony. As this court stated on direct appeal, the evidence overwhelmingly proved defendant\u2019s guilt. Enis, 163 Ill. 2d at 403. Williams\u2019 proposed testimony would not have impeached or otherwise discredited the testimony of the three prosecution witnesses who identified defendant as the man they observed in the parking lot outside the victim\u2019s apartment building on the morning of the murder. Further, whatever identification problems the State might have encountered in its prosecution of defendant for the alleged sexual assault of Entrata, that case was, in fact, set to begin trial on August 17, 1987. Williams\u2019 testimony would not have negated defendant\u2019s motive for murdering Entrata on August 10, 1987. We therefore reject defendant\u2019s claim.\nWe also reject defendant\u2019s related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel\u2019s 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\u2019s failure to raise this issue on appeal. See Childress, 191 Ill. 2d at 175.\nMichael Melius\nDefendant next claims that his counsel was ineffective for failing to call as a witness Michael Melius, former public defender for Lake County, who represented defendant in the sexual assault case. According to Me-lius\u2019 affidavit, defense counsel did not interview him prior to defendant\u2019s retrial. Melius states that he would have testified that the sexual assault case was defensible; that he had advised defendant that there was a good chance of a not-guilty finding; that defendant was a cooperative client; and that defendant never expressed any hostility toward Entrata. The gist of defendant\u2019s claim is that Melius\u2019 testimony would have \u201cblunted\u201d the State\u2019s suggested motive for the murder, i.e., because defendant expected a favorable outcome in the sexual assault case, there was no need to murder Entrata.\nIn deciding an ineffectiveness claim, the reasonableness of counsel\u2019s conduct must be judged on the facts of the particular case, viewed as of the time of counsel\u2019s conduct. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. In the present case, defendant\u2019s counsel had available to him a record of Melius\u2019 testimony at defendant\u2019s first trial. See Enis, 139 Ill. 2d at 275-76. Melius testified, in relevant part, that statements Entrata made to police indicated that she recognized her attacker as defendant, whom she knew from her place of employment, and that Melius believed he told defendant that the outcome of the sexual assault case depended largely on the credibility of Entrata. Enis, 139 Ill. 2d at 275-76. Defendant\u2019s counsel could have reasonably determined that Melius\u2019 testimony would reinforce, rather than \u201cblunt,\u201d the State\u2019s suggested motive for the murder of Entrata. Accordingly, counsel\u2019s decision not to call Melius was not deficient. Assuming counsel\u2019s decision was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different. Melius\u2019 proposed testimony, like that of Moselle Williams, would not have negated defendant\u2019s motive for murdering Entrata. Nor would his testimony have called into doubt the testimony of the three eyewitnesses who identified defendant. In the absence of a showing of prejudice, the trial court properly rejected defendant\u2019s claim.\nThe trial court also properly rejected defendant\u2019s related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel\u2019s ineffectiveness for not calling Melius as a witness. Because the underlying issue has no merit, defendant has suffered no prejudice due to appellate counsel\u2019s failure to raise this issue on direct appeal. See Childress, 191 Ill. 2d at 175.\nR.C. Burton\nAs his next claim, defendant alleges that counsel was ineffective for failing to present the testimony of R.C. Burton, defendant\u2019s landlord. Burton was hospitalized during the time of defendant\u2019s second trial, and the trial court granted defendant leave to take Burton\u2019s evidence deposition. Counsel ultimately decided, however, to proceed without Burton\u2019s testimony. According to defendant, Burton would have testified that, at 6:30 a.m. on August 10, 1987, he saw Diane Gonzales\u2019 maroon car in the parking lot outside defendant\u2019s apartment. This vehicle, therefore, could not have been the vehicle seen leaving the parking lot outside Entrata\u2019s apartment building that morning.\nDefendant 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 \u201cnow\u201d available, it remains unclear whether defendant could have obtained an affidavit from Burton in November 1996 when defendant filed his amended post-conviction petition. Defendant argues that, notwithstanding the absence of an affidavit from Burton, it was \u201cestablished\u201d in the first trial that Burton would testify that the maroon vehicle was parked outside defendant\u2019s apartment on the morning of the murder. Defendant mischaracterizes Burton\u2019s testimony.\nAt defendant\u2019s first trial, the State called Burton as a witness. On cross-examination by defense counsel, the following exchange occurred:\n\u201cQ. When you left for work on the morning of August 10th at 6:30 in the morning, that maroon car that belonged to Tony and Diane was still parked in the parking space, wasn\u2019t it?\nA: I can\u2019t say for sure whether it was or was not.\n* * *\nQ. Do you remember having a conversation with the Lieutenant Stevenson on that day?\nA. Yes.\n* * *\nQ. Did you tell \u2014 isn\u2019t it true you told Lieutenant Stevenson on that date that when you left for work this morning at about 6:30 you noticed a maroon car which Enis drives still in the driveway this morning when you left at 6:30?\nA. I don\u2019t know whether I said that or not.\u201d\nOn redirect, the prosecutor asked Burton whether he remembered talking to an investigator from the public defender\u2019s office on February 7, 1988. Although Burton was not sure of the date, he thinks he told investigators that he could not testify as to whether the maroon car was parked behind the building when Burton left for work on the morning of August 10, 1987. Officer Stevenson subsequently testified that Burton told him that the maroon car was parked behind defendant\u2019s apartment that morning. Thus, contrary to defendant\u2019s contention on appeal, it was not \u201cestablished\u201d in the first trial that Burton would testify on retrial that the maroon vehicle was parked outside defendant\u2019s apartment on the morning of the murder.\nAssuming that Burton\u2019s testimony on retrial was \u201cestablished\u201d in the first trial, as defendant claims, and that Burton would have testified consistent with his conversation with Officer Stevenson, defendant has waived review of this issue by failing to raise counsel\u2019s ineffectiveness on direct appeal. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that his appellate counsel was ineffective as a result. A defendant who argues that his appellate counsel was ineffective for failing to raise a particular issue on appeal must show that the failure to raise that issue was objectively unreasonable and that the decision prejudiced defendant. Childress, 191 Ill. 2d at 175; Olinger, 176 Ill. 2d at 365. We must determine, therefore, whether defendant\u2019s underlying claim of ineffective assistance of trial counsel would have been successful if raised on direct appeal. See Childress, 191 Ill. 2d at 175.\nTestimony by Burton that Gonzales\u2019 car was parked behind defendant\u2019s apartment on the morning of the murder would have been subject to impeachment based on Burton\u2019s inconsistent statements to investigators and his sworn testimony at the first trial. In addition, there was evidence introduced on retrial tending to establish that the maroon vehicle had been moved on the morning of the murder. See Enis, 163 Ill. 2d at 384. Thus, Burton\u2019s testimony would not have gone unrebutted. Finally, three prosecution witnesses made in-court identifications of defendant. Based on this record, defendant has failed to make a substantial showing that there is a reasonable probability that the outcome of defendant\u2019s trial would have been different had defendant\u2019s counsel introduced Burton\u2019s testimony.\nDefendant has, accordingly, also failed to make a substantial showing that appellate counsel was ineffective for failing to raise, on direct review, trial counsel\u2019s ineffectiveness in not calling Burton as a witness. See Childress, 191 Ill. 2d at 175.\nKathleen Jackson\nDefendant 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\u2019s building, would have testified that, on August 10, 1987, at approximately 6:15 to 6:20 a.m., she was in an elevator in her building, along with a black male. The man was in his early twenties and was wearing white sunglasses. Defendant also alleges that Jackson would testify that defendant was not the man she saw in the elevator. Defendant argues that Jackson\u2019s testimony would have rebutted the testimony of prosecution witnesses who identified defendant as the man in the parking lot outside Entrata\u2019s building on the morning of August 10, 1987.\nAlthough defendant failed to support this claim with an affidavit from Jackson, her testimony is sufficiently documented in this court\u2019s opinion on direct review of defendant\u2019s first conviction. See Enis, 139 Ill. 2d at 279-82. Therefore, on direct review of defendant\u2019s second conviction, defendant could have raised the issue of trial counsel\u2019s ineffectiveness for failing to call Jackson as a witness. We agree with the State that defendant has waived review of this issue. See Olinger, 176 Ill. 2d at 365. Defendant also contends, however, that his appellate counsel was ineffective for failing to raise this claim on direct appeal. We therefore consider whether this claim of trial counsel\u2019s ineffectiveness would have been sue-cessful if it had been raised on direct review. See Childress, 191 Ill. 2d at 175.\nAt defendant\u2019s first trial, the State moved in limine to preclude defendant from introducing Jackson\u2019s testimony. The trial court granted the State\u2019s motion. On direct review to this court, defendant challenged the trial court\u2019s in limine order. We held that the trial court did not abuse its discretion in barring Jackson\u2019s testimony. Enis, 139 Ill. 2d at 281-82. We observed that \u201c[t]here is nothing connecting the person Jackson saw with the crime, nor does it necessarily follow that her testimony would have cast doubt over the identification of defendant as the offender.\u201d Enis, 139 Ill. 2d at 282. Defendant cannot now argue that trial counsel was ineffective for failing to press for the admission of Jackson\u2019s testimony, where this court previously held the exclusion of such testimony to be nonprejudicial. See Evans, 186 Ill. 2d at 103 (holding, in the context of post-conviction review, that trial counsel was not ineffective for failing to object to evidence and argument which was previously found on direct appeal to be nonprejudicial). Because defendant\u2019s underlying ineffective assistance of counsel claim would not have been successful if raised on direct appeal, we reject defendant\u2019s claim that appellate counsel was ineffective for failing to raise this claim.\nRoy Norvell\nThe record reveals that the State called Roy Norvell as a witness during its case in chief, but that defense counsel moved to bar Norvell\u2019s testimony. The State expected that Norvell would testify that, three days before the murder, he saw a car in the victim\u2019s parking lot that \u201clook[ed] like\u201d the maroon car belonging to defendant\u2019s girlfriend. The trial court agreed with defense counsel that Norvell\u2019s testimony was too speculative and irrelevant and barred Norvell from testifying. In his post-conviction petition, however, defendant claims that Norvelle would have testified that, on or about August 8, 1987, he saw a black male wearing white sunglasses in the parking lot for Entrata\u2019s apartment, and that in a photographic lineup, he identified another individual, not the defendant, as the man in the white sunglasses. Defendant argues that Norvell\u2019s testimony would have rebutted the testimony of Clara Burk and that counsel was ineffective for failing to call Norvell as a defense witness.\nDefendant has failed to support this claim with the necessary affidavit from Norvell. See Johnson, 183 Ill. 2d at 192. Instead, defendant relies on a report from the Waukegan police department documenting an interview with Norvell on August 17, 1987. Defendant also relies on a handwritten report that defendant attributes to Joseph Caliendo, an investigator for the Lake County public defender, which documented a meeting with Norvell on November 9, 1987. In his brief before this court, defendant also cites to the affidavit of Jed Stone, one of defendant\u2019s trial attorneys. Even if we consider these documents in lieu of an affidavit from Norvell, none of the documents support defendant\u2019s contention that Norvell\u2019s testimony would have rebutted Burk\u2019s testimony.\nBurk testified, in relevant part, that she saw defendant for the first time on the evening of August 8, 1987, two days prior to the murder, as she was driving through the parking lot of the victim\u2019s apartment complex. Defendant suddenly stepped off the curb in front of Burk\u2019s car, causing her to brake. Defendant and Burk looked directly at each other. Defendant was wearing white sunglasses. On the morning of August 10, 1987, Burk recognized the man pursuing Entrata as the man she saw two days earlier in the parking lot. Enis, 163 Ill. 2d at 378-79.\nAccording to the police report on which defendant relies, Norvell stated that, on August 7, 1987, between 6 a.m. and 6:15 a.m., he observed a burgundy car, with one occupant, parked directly behind his car in the parking lot for the apartment complex where Entrata lived. At 8 a.m., the burgundy car and its occupant were still in the lot. Norvell advised the building manager, Mary Greener. Greener and Norvell went to the parking lot and approached the burgundy car. Greener knocked on the passenger window, and the driver, a black male, rolled down the window. Greener asked the driver a few questions. Norvell said the driver appeared nervous. The police report indicates that Norvell was unable to make a positive photo identification of the driver. Caliendo\u2019s report, however, indicates that Norvell did identify an individual, presumably someone other than defendant. Calien-do\u2019s report also indicates that Norvell could not identify the vehicle he saw, except to say that the car was either red or blue.\nThese reports do not support defendant\u2019s contention that Norvell would testify that a different black man wearing white sunglasses was seen in the vicinity of the victim\u2019s apartment two or three days before the murder. Rather, Norvell\u2019s testimony, if consistent with the reports on which defendant relies, would establish only that a black male, other than defendant, was seen in a burgundy, red or blue vehicle in the parking lot three days before the murder. The affidavit of Jed Stone adds nothing to defendant\u2019s claim. Stone\u2019s affidavit indicates only that he did not consult with defendant as to the decision not to call Norvell. Based on this record, defendant has failed to make a substantial showing that trial counsel was ineffective for failing to call Norvell as a witness.\nDefendant has likewise failed to make a substantial showing that appellate counsel was ineffective for failing to raise, on direct appeal, this issue of trial counsel\u2019s ineffectiveness. A defendant suffers no prejudice from appellate counsel\u2019s failure to raise an issue on direct appeal where the underlying issue is not meritorious. Childress, 191 Ill. 2d at 175.\nJoseph Caliendo and David Asma\nDefendant claims that trial counsel was also ineffective for failing to subpoena Joseph Caliendo and David Asma, investigators for the Lake County public defender. Defendant attached to his post-conviction petition the affidavits of Caliendo and Asma. Defendant argues that the testimony of Caliendo and Asma would have impeached the identification testimony of Clara Burk, Richard Hanson, and Sylvia Barrett.\nDefendant\u2019s claims relating to the impeachment of Burk and Hanson were not raised in defendant\u2019s pro se post-conviction petition, in his amended petition, or in the supplement to his amended petition. Accordingly, these claims are waived. See 725 ILCS 5/122 \u2014 3 (West 1998); People v. Moore, 189 Ill. 2d 521, 544 (2000). We consider only defendant\u2019s claim that counsel was ineffective for failing to call Caliendo or Asma to impeach Barrett\u2019s identification testimony.\nThe affidavits of both Asma and Caliendo indicate that they would testify that on February 4, 1988, they interviewed Barrett. At that time, Barrett stated that she could not remember the color of the sunglasses that the man she saw in the parking lot on August 10, 1987, was wearing; that she did not see the man carrying anything, nor was she aware of whether the man was wearing gloves; that she was not sure that the man in the photograph that she selected was the man she saw in the parking lot; that the man in the photograph \u201cmost closely resembled\u201d the man in the parking lot; and that the police stated, following her identification of defendant in a photographic lineup, \u201cYeah, that is the guy.\u201d\nAsma also states in his affidavit that he would testify that he interviewed Barrett on February 18, 1988, following her testimony at a hearing prior to defendant\u2019s first trial. Barrett advised Asma and assistant public defender David Brodsky that she did not recognize defendant, who was seated at counsel\u2019s table, as the man she saw in the parking lot on August 10, 1987. Finally, Asma states that he would testify that, on March 8, 1988, Asma and Brodsky spoke to Barrett by telephone. Barrett told them that she was not sure of the color of the sunglasses; that she does not remember who suggested to her the actual color of the sunglasses; and that, at the February 18, 1988, hearing, defendant looked totally different from the man in the parking lot and the man she selected out of the photographic lineup.\nThe record discloses that Barrett testified at the second trial that she did not recall whether the man she saw in the parking lot was wearing sunglasses or gloves. Therefore, the proposed testimony of Caliendo and Asma, that Barrett said she did not remember the color of the sunglasses and was not aware if the man was wearing gloves, would not have impeached her testimony. In addition, Barrett was never questioned at the second trial as to whether the man she saw in the parking lot had anything in his hands. The proposed testimony of Cali-endo and Asma, that Barrett said she did not see the man carrying anything, would not have impeached her testimony.\nWith respect to Asma\u2019s proposed testimony that Barrett stated that defendant looked totally different on February 18, 1988, from the man in the parking lot, the record reveals that defense counsel cross-examined Barrett on this matter. Barrett testified, however, that she did recognize defendant at the February 18, 1988, hearing. Counsel tried to impeach Barrett with her testimony from defendant\u2019s first trial in which she admitted that, on February 18, 1988, she did not recognize defendant and that defendant \u201clooked basically different\u201d on that day. Barrett, however, did not recall giving this testimony. The parties stipulated to Barrett\u2019s testimony from the first trial, and this stipulation was read to the jury. Defendant has failed to demonstrate how counsel\u2019s decision to perfect the impeachment of Barrett by way of stipulation, rather than with Asma\u2019s five testimony, is objectively unreasonable.\nThe only other matter to which Asma and Caliendo would have testified is that Barrett said she picked the photograph of the person that most closely resembled the man she saw in the parking lot and that police acknowledged, \u201cthat is the guy.\u201d Even if we concluded that counsel\u2019s failure to call Asma or Caliendo on this point was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different had Barrett\u2019s testimony been impeached in this way. Two other witnesses made in-court identifications of defendant. Clara Burk testified that defendant was the man she saw pursue Entrata from the parking lot into the building on August 10, 1987, and Richard Hanson also testified that defendant was the man he saw running in the parking lot that morning. On this record, defendant cannot demonstrate prejudice. Further, it follows that defendant cannot demonstrate that he was prejudiced by appellate counsel\u2019s failure to raise this issue of trial counsel\u2019s ineffectiveness. See Childress, 191 Ill. 2d at 175.\nDr. Solomon Fulero\nDefendant next claims that counsel was ineffective for failing to call Dr. Solomon Fulero as an expert witness on the unreliability of eyewitness testimony. At defendant\u2019s first trial, the State moved in limine to preclude Dr. Fulero\u2019s testimony. The trial court granted the motion. On direct review to this court, we held that the expert testimony would not have aided the trier of fact in reaching its conclusion, and that the trial court did not abuse its discretion in excluding Dr. Fulero\u2019s testimony. Enis, 139 Ill. 2d at 288-89. Of the several \u201cmisconceptions\u201d about eyewitness testimony to which Dr. Fulero would have testified, only one had any relevance to defendant\u2019s case. That misconception involved jurors\u2019 beliefs that the more confident a witness appears to be while testifying, the more likely the witness is to be accurate in the identification. Enis, 139 Ill. 2d at 289. Although witness confidence may have been a factor in the case, we did not believe that this factor alone demanded that defendant receive a new, trial. Enis, 139 Ill. 2d at 289. We also cautioned against the overuse of expert testimony, explaining:\n\u201cSuch testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of expert testimony concerning the unreliability of other types of testimony and, eventually, to the use of experts to testify as to the unreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We are concerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, and if it is necessary in light of defendant\u2019s ability to cross-examine eyewitnesses. An expert\u2019s opinion concerning the unreliability of eyewitness testimony is based on statistical averages. The eyewitness in a particular case may well not fit within the spectrum of these averages. It would be inappropriate for a jury to conclude, based on expert testimony, that all eyewitness testimony is unreliable.\u201d Enis, 139 Ill. 2d at 289-90.\nDefendant argues in his post-conviction petition that, as indicated in Dr. Fulero\u2019s affidavit, the doctor could have testified at defendant\u2019s second trial not only regarding the misconception of witness confidence as a predictor of the accuracy of identification, but also regarding the difficulty of cross-racial identifications. The offers of proof made at defendant\u2019s first trial did not touch on cross-racial identification problems. Defendant, who is black, alleges in his post-conviction petition that of the five eyewitnesses who testified for the State, four were white. The State does not dispute the accuracy of this allegation.\nIn light of this court\u2019s holding that the exclusion of Dr. Fulero\u2019s testimony at defendant\u2019s first trial was proper, and our admonition against the overuse of expert testimony, we conclude that counsel\u2019s decision not to seek additional opinions from Dr. Fulero, beyond those several opinions disclosed in the first trial, was not deficient. Even if counsel\u2019s decision was objectively unreasonable, defendant has failed to make a substantial showing that he suffered resulting prejudice.\nThree witnesses identified defendant as the man seen in the parking lot on the morning of August 10, 1987. Even if all three witnesses are white, Dr. Fulero\u2019s affidavit does not indicate that cross-racial identifications are necessarily inaccurate or that the eyewitness testimony of these particular witnesses is necessarily suspect. Moreover, defendant\u2019s counsel capably placed the issue of the fallibility of the testimony of the State\u2019s eyewitnesses before the jury. On cross-examination and in closing argument, defendant\u2019s counsel aggressively explored the question of the accuracy and reliability of the witnesses\u2019 identification of defendant, as well as the witnesses\u2019 overall credibility. Counsel also argued that misidentification is a common occurrence in everyday life. On this record, we cannot say that there is a reasonable probability that the jury\u2019s verdict would have been different had Dr. Fulero testified. Accordingly, we reject defendant\u2019s claim of ineffective assistance of trial counsel, as well as his related claim of ineffective assistance of appellate counsel.\n3. Failure to Introduce Evidence From Illinois Crime Laboratory\nAs his next post-conviction claim, defendant asserts that trial counsel was ineffective for failing to present testimony or other evidence that there was no blood on defendant\u2019s clothing, that defendant\u2019s fingerprints did not match those found at the crime scene, and that there was no other physical evidence connecting defendant to the crime. Defendant supports this claim with copies of reports from the Northern Illinois Police Crime Laboratory, which set forth the results of various tests and analyses performed in connection with this case.\nThe record discloses that defendant\u2019s counsel, in his opening statement, called attention to the lack of physical evidence in the State\u2019s case. Counsel told the jury that there would be no fingerprint evidence, no blood evidence, and no footprint evidence linking defendant to the crime. Counsel elaborated on this theme in his opening, stating, in part, that \u201cno police officer, no laboratory technician, no evidence technician, no chemist can come into this courtroom to say that there\u2019s any evidence that any lead, barium, antimony, copper, things discharged from a gun by gas after firing, were found on any of [defendant\u2019s] clothing.\u201d In closing argument, counsel continued his attack on the lack of physical evidence presented by the State. Counsel argued to the jury that, despite evidence of extensive blood splattering at the crime scene, the victim\u2019s blood was not found on defendant, on his clothing, on his shoes, on his possessions, or inside Gonzales\u2019 car.\nCounsel\u2019s decision to challenge the State\u2019s lack of physical evidence, rather than calling a member of the police crime laboratory to testify, was a matter of trial strategy and was not deficient. Accordingly, appellate counsel was not ineffective for failing to raise, on direct appeal, these allegations of trial counsel\u2019s ineffectiveness.\n4. Failure to Object to Testimony and Photographic Evidence\nDefendant next claims that his counsel was ineffective for failing to object to the identification testimony of Dan Thacker, to the evidence that Merlinda Entrata took additional security measures at her apartment shortly after the alleged sexual assault, and to the State\u2019s impeachment of its own witness, John Twardy.\nDefendant could have raised each of these claims on direct review. We thus agree with the State that defendant has waived review of these issues. See Olinger, 176 Ill. 2d at 365. Defendant maintains, however, that his appellate counsel was ineffective for failing to raise these claims of trial counsel\u2019s ineffectiveness. Accordingly, we must determine whether these claims would have succeeded, had they been raised on direct appeal. See Childress, 191 Ill. 2d at 175.\nDan Thacker\nAt his first trial, defendant moved the court in limine to bar any evidence relating to Dan Thacker\u2019s pretrial identification of defendant. The trial court granted the motion. At defendant\u2019s second trial, the court indicated that it would not revisit in limine rulings from the first trial. In his post-conviction petition, defendant claims that his counsel was ineffective for failing to raise the court\u2019s in limine order from the first trial as a bar to Thacker\u2019s identification testimony in the second trial. Defendant contends that his counsel \u201cnever bothered\u201d to read the prior trial record and therefore failed to make the appropriate objection.\nThe record discloses that defendant\u2019s counsel made this objection when the State, on retrial, raised the issue of the permissible scope of Thacker\u2019s testimony. Counsel, however, later withdrew any objection to identification testimony from Thacker. To the extent that defendant\u2019s claim is really an attack on counsel\u2019s decision to withdraw his objection, we conclude that defendant has not demonstrated that counsel\u2019s decision was objectively unreasonable.\nAt defendant\u2019s first trial, Thacker testified on direct examination that, on August 10, 1987, at approximately 6:30 a.m., he saw a woman in a white dress running across the parking lot and a black male wearing dark clothing, white gloves and white sunglasses following the woman. Thacker provided a general description of the man, whom he later saw come out of the building and walk across the parking lot. Defense counsel, on cross-examination, questioned Thacker about the lack of detail in his description of the man he saw. Counsel also elicited testimony from Thacker that he could not make a positive identification of the man he saw in the parking lot from the initial photo array shown to him by police, but that he picked the photograph of the person who had the same general features. Defense counsel further questioned Thacker about the second photo array he viewed. On redirect, Thacker testified that he also picked a photograph from the second photo array, although he was not positive of his identification. Over defense counsel\u2019s objection, the State was allowed to examine Thacker about the live lineup he viewed. Thacker testified that he identified defendant in the lineup, although he was not \u201c100 percent sure.\u201d\nAt defendant\u2019s second trial, the State sought clarification as to the permissible scope of Thacker\u2019s testimony. The State argued that the type of testimony elicited from Thacker by defense counsel at the first trial was contrary to the trial court\u2019s in limine order and should not be permitted on retrial. The trial court agreed. The record reflects a colloquy between the prosecutor and defense counsel. Pursuant to their discussion, defense counsel withdrew his objection to Thacker\u2019s identification testimony, but with the understanding that Thacker would testify not that defendant is the man he saw in the parking lot, but that defendant merely fits the general description of the man he saw in the parking lot. Thacker testified consistently therewith.\nWe conclude that counsel\u2019s decision to withdraw his objection to Thacker\u2019s identification testimony was a matter of trial strategy and was not \u201cso unsound that counsel entirely fail[ed] to conduct any meaningful adversarial testing.\u201d See Reid, 179 Ill. 2d at 310. Even if counsel\u2019s decision was deficient, defendant has failed to demonstrate resulting prejudice where three other witnesses identified defendant in court as the man they saw in the parking lot outside Entrata\u2019s apartment on the morning of the murder.\nBecause defendant\u2019s claim of ineffective assistance of trial counsel would not have succeeded had it been raised on direct appeal, we reject defendant\u2019s claim of ineffective assistance of appellate counsel. See Childress, 191 Ill. 2d at 175.\nEvidence of Security Measures at Victim\u2019s Apartment\nAt the first trial, the court granted defendant\u2019s in limine motion to bar evidence that the victim installed homemade security devices in her apartment following the alleged sexual assault. As already noted, on retrial the court indicated that it would not revisit in limine rulings from the first trial.\nAt the second trial, Zacar\u00edas Meana, Entrata\u2019s uncle, testified that, during the first week in May 1987, he helped his niece move into a new apartment in the same complex where she had been living, and helped her install wooden poles to secure the doors from the inside. Over the objection of defense counsel, photographs of Entra-ta\u2019s apartment, which showed the make-shift security devices, were also introduced into evidence. Defendant\u2019s counsel later called to the trial court\u2019s attention its in limine order from the first trial and argued that the introduction of evidence contrary to that order was a ground for a mistrial. The trial court denied the motion for a mistrial.\nDefendant claims, in his post-conviction petition, that counsel was ineffective for failing to raise the trial court\u2019s prior in limine order as a bar to the admission of this evidence. We conclude that defendant\u2019s claim is barred by the doctrine of res judicata. On direct review from defendant\u2019s second conviction, defendant argued that the introduction of Meana\u2019s testimony and the photographs of Entrata\u2019s apartment were irrelevant and prejudicial and should have been excluded. Enis, 163 Ill. 2d at 404-OS. We held that any error in the admission of this evidence was not a material factor in defendant\u2019s conviction; that it did not deprive defendant of a fundamentally fair trial; and that it is not reversible error. Enis, 163 Ill. 2d at 404-05. Defendant cannot obtain post-conviction relief by rephrasing this issue as one of ineffective assistance of counsel. See Evans, 186 Ill. 2d at 103; Williams, 186 Ill. 2d at 62.\nJohn Twardy\nDefendant also claims that his counsel was ineffective for failing to object to the State\u2019s impeachment of its own witness, John Twardy, with inconsistent statements he made to police regarding the maroon car he saw leaving the parking lot on the morning of the murder.\nOn direct review of defendant\u2019s second conviction, defendant argued that the State\u2019s improper bolstering of Twardy\u2019s testimony amounts to plain error. We rejected this argument, holding that the evidence was not closely balanced and that defendant was not deprived of a fundamentally fair trial. Enis, 163 Ill. 2d at 402-03. Defendant also argued, on direct review, that his counsel was ineffective for failing to properly preserve this issue for review on appeal. Enis, 163 Ill. 2d at 405. We held that, assuming counsel was ineffective, the outcome of defendant\u2019s trial would not have been different had counsel preserved this issue for review. Enis, 163 Ill. 2d at 407. Accordingly, defendant\u2019s post-conviction claim is barred by the doctrine of res judicata. See Williams, 186 Ill. 2d at 62.\n5. Right to Testify\nDefendant next claims that counsel was ineffective for failing to consult with him about his right to testify, to prepare him to give testimony, and to call him as a witness. According to defendant, after the State rested, counsel advised defendant at that time that he would not be called to testify. Defendant states in his post-conviction affidavit that he would have testified that he did not kill Merlinda Entrata, that he was prepared to proceed with the sexual assault case, and that he was confident of being acquitted of that charge. The post-conviction affidavit of Jed Stone, defendant\u2019s counsel, indicates that Stone has no recollection of specific conversations with defendant about his right to testify, but that it is Stone\u2019s practice to discuss this issue in detail with his clients, at which time he makes a recommendation.\nThe decision whether to take the witness stand and testify in one\u2019s own behalf ultimately belongs to the defendant. Thompkins, 161 Ill. 2d at 177. Defendant in the present case acknowledges that he was aware of his right to testify. Indeed, defendant took the witness stand at his first trial. See Enis, 139 Ill. 2d at 276-77. Nothing in the present record, however, demonstrates that defendant, at any time, advised counsel of his desire or intention to testify. Moreover, upon learning at trial that he would not be called as a witness, defendant failed to assert his right by informing the trial court that he wished to testify. Thus, defendant acquiesced in counsel\u2019s view that defendant should not take the stand. In the absence of a contemporaneous assertion by defendant of his right to testify, the trial court properly rejected this post-conviction claim. See Thompkins, 161 Ill. 2d at 177-78; People v. Brown, 54 Ill. 2d 21, 23-24 (1973). We similarly reject defendant\u2019s related claim that appellate counsel was ineffective for failing to raise this issue on direct appeal.\n6. Sentencing Hearing\nDefendant next claims that his counsel was ineffective for failing to investigate and present the testimony of various witnesses at both stages of his capital sentencing hearing.\nClaims of ineffective assistance of counsel at a capital sentencing hearing are reviewed under the two-pronged Strickland test. People v. Ward, 187 Ill. 2d 249, 261 (1999); Coleman, 183 Ill. 2d at 403. Thus, in the context of defendant\u2019s post-conviction claim, defendant must allege facts which demonstrate that counsel\u2019s performance fell below an objective standard of reasonableness, and that absent counsel\u2019s errors, there is a reasonable probability that the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Ward, 187 Ill. 2d at 261; Coleman, 183 Ill. 2d at 403.\nEligibility Stage\nDefendant alleges that his counsel failed to present evidence that would have rebutted the statutory aggravating factor under which he was found eligible for the death penalty. The trial court found defendant eligible for the death penalty in that defendant was 18 years or older at the time of the offense, and defendant murdered the victim, Merlinda Entrata, because she was a witness against him in another criminal prosecution\u2014 the sexual assault case. See Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 1(b)(8). Other than a certified copy of defendant\u2019s birth certificate, the State presented no new evidence at the eligibility stage, relying instead on the evidence presented at trial. Defendant\u2019s counsel presented no evidence. On direct appeal, we held that the State proved defendant\u2019s eligibility beyond a reasonable doubt. Enis, 163 Ill. 2d at 412.\nDefendant now argues that counsel should have presented the testimony of Michael Melius and Moselle Williams, as well as evidence that defendant suffers from a neuropsychological impairment. We have already determined in this appeal that the proposed testimony of Melius and Williams would not have negated defendant\u2019s motive for murdering Entrata. We therefore consider defendant\u2019s ineffectiveness claim only with respect to counsel\u2019s failure to investigate and present evidence of neuropsychological impairment. As to this claim, defendant relies on the opinions of neuropsychologist Dr. Michael Gelbort, whose affidavit and evaluations defendant attached to his post-conviction petition.\nOf the several findings and opinions contained in Dr. Gelbort\u2019s evaluations, only one speaks to the issue of defendant\u2019s motivation for the murder of Entrata. Dr. Gelbort expresses his opinion that defendant, at the time of the murder, was suffering from extreme emotional disturbance and that defendant would not have been motivated by a desire to silence the victim. Rather, defendant would have acted in a deviant manner as a result of feeling emotional and psychological rejection by the victim, leading to a loss of control, and that \u201c[t]his would have resulted in [defendant\u2019s] using undue force in an attempt to \u2018convince\u2019 [Merlinda Entrata] to change her mind and have a relationship with [him].\u201d\nDr. Gelbort\u2019s opinion as to defendant\u2019s likely motivation for the murder is contrary to the record. Evidence established that defendant shot Entrata four times at close range. Each shot defendant delivered was to Entra-ta\u2019s head. There were powder burns on her temple. En-trata died from two of the gunshot wounds defendant inflicted. What Dr. Gelbort describes as \u201cundue force,\u201d the trial court aptly described as an \u201cexecution.\u201d In addition, there was no evidence adduced at the second trial that defendant desired a relationship with Entrata, that she had rejected him, or that defendant had attempted on the morning of August 10, 1987, or at any prior time to \u201cconvince\u201d her to have a relationship with him. At the eligibility hearing, defendant\u2019s counsel argued that one of many reasonable hypotheses for the murder is the spurned-lover hypothesis. The trial court rejected this argument. On this record, we see no reasonable probability that the trial court would have been persuaded that the murder of Entrata was a reaction to Entrata\u2019s alleged rejection of defendant. Thus, there is no reasonable probability that the result of the eligibility proceeding would have been different had defendant\u2019s counsel presented evidence of neuropsychological impairment.\nAggravation-Mitigation Stage\nDefendant argues that his counsel was also ineffective at the second stage of his capital sentencing hearing for failing to investigate and present available mitigation evidence regarding defendant\u2019s neurological impairment and social history.\nGiven the critical importance of mitigation evidence at a capital sentencing hearing, defense counsel has a duty to make a reasonable investigation for potential sources of such evidence or must have a legitimate reason for failing to make a particular investigation. People v. Morgan, 187 Ill. 2d 500, 541 (1999); Towns, 182 Ill. 2d at 510. If mitigating evidence exists, counsel has a duty to introduce it in support of the defendant. Towns, 182 Ill. 2d at 510; People v. Griffin, 178 Ill. 2d 65, 86 (1997). The failure, however, to offer mitigation evidence at a capital sentencing hearing is not itself sufficient to show that counsel was ineffective. Counsel\u2019s decision whether to present a particular witness is generally a strategic choice which cannot support a claim of ineffective assistance of counsel. Griffin, 178 Ill. 2d at 86. Before considering defendant\u2019s claim, we review the evidence introduced at the sentencing hearing.\nIn aggravation, the State relied upon the evidence introduced at trial. The State also introduced evidence that on May 2, 1987, Merlinda Entrata confided to a hospital coworker that defendant, with whom she worked at a nursing home, had raped her. Entrata said that although he wore a mask and gloves, defendant spoke to her after the attack, and that she recognized his voice. There was also evidence that, after the alleged sexual assault, Entrata requested a shift change so that she could work days, explaining to her supervisor that she had been raped. Entrata never returned to her job at the nursing home.\nThe State also introduced evidence of prior inappropriate sexual conduct by defendant. In March 1981, when defendant was 14 years old, defendant asked an eighth-grade girl for a kiss. When she declined, defendant swung her to the ground, slapped her in the face and head, and kissed her forcefully. As she left, defendant grabbed her buttocks and told her that he wanted $10 or the same thing would happen the next day. The following year, defendant grabbed the breasts of a female student during a high school swim class. The incident was reported to the dean and to police. In October 1984, when defendant was 18 years old, defendant grabbed a female student by the arm as she was walking home from school and said to her, \u201cYou\u2019re coming with me.\u201d 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 would get 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 woman reported the incident to her manager.\nThe State also introduced defendant\u2019s juvenile record and criminal record as an adult. In September 1981, defendant was adjudicated delinquent based on his involvement in the armed robbery and aggravated battery of the elderly proprietor of a Waukegan laundromat. Defendant was 14 years old. Another older male was also involved. This individual used a butcher knife from defendant\u2019s home during the robbery. Defendant completed his one-year probation.\nIn November 1983, defendant was arrested for robbery, conspiracy to commit robbery and theft. The charges arose out of an incident in which defendant and others robbed a pizza delivery man. Although a gun was used, defendant was not the gunman. Defendant, who was 17 years old at the time, pled guilty to theft. He was sentenced to 30 months\u2019 probation and 100 hours of community service. Defendant\u2019s reporting habits were poor and he had difficulty maintaining employment. Defendant did, however, successfully complete probation.\nIn January 1984, defendant was arrested for disorderly conduct, following his refusal to obey police and leave the scene of a fight. Defendant forfeited his bond and was subsequently found guilty. He was sentenced to 20 hours of public service.\nIn February 1984, defendant was arrested for criminal trespass to land wh,en he remained at Waukegan East High School after being told by the assistant principal to leave the building. Defendant pled guilty and was sentenced to one year of conditional discharge and seven days in jail.\nIn October 1984, defendant was arrested for battery and disorderly conduct, although the State later entered a nolle prosequi of these charges. In May 1987, defendant was arrested and charged with the sexual assault of Mer-linda Entrata.\nDuring an approximate two-year period ending August 15, 1990, defendant, while incarcerated at Pontiac Correctional Center, 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 was described in the presen-tence investigation report as \u201cpoor.\u201d\nIn aggravation, the State also cited defendant\u2019s aggressive and violent conduct in school. Records establish that during the 3\u00bd years that defendant attended Waukegan East High School, he received numerous suspensions. For example, in November 1980, defendant was suspended for five days following an incident in which defendant, after being told to take his seat, swung his hand at the teacher\u2019s face and said, \u201cBoy was I tempted.\u201d In February 1982, defendant was suspended for five days after telling a teacher, \u201cIf you were on my turf, I\u2019d blow you away with a .45!\u201d In February 1984, defendant received a 10-day suspension for hitting a teacher.\nFinally, the State relied on victim impact statements from Merlinda Entrata\u2019s family, expressing their grief and profound loss.\nIn mitigation, defendant called as a witness Janis Enis, defendant\u2019s older sister. Janis testified that defendant\u2019s family, i.e., his siblings and mother, decided that Janis would be their \u201cspokesperson.\u201d Defendant\u2019s mother, however, was also present at the sentencing hearing. In her brief testimony, Janis told the court that defendant was a loving brother and a good son; that he has helped her and her siblings with problems; that he is talented, open and warm-hearted; and that she has, and will continue to have, a relationship with him while he is incarcerated.\nDefendant also introduced into evidence a sentencing report, compiled by clinical social worker Jeffrey Eno. The report describes defendant\u2019s difficult childhood. Defendant was one of five children raised by their mother in a single-parent household. Defendant was closest to his older brother Larry; defendant never knew his father. At a young age, defendant was responsible for his younger sister Debra. Due to financial and other circumstances the family frequently relocated. The report acknowledges that defendant was suspended from Waukegan East High School 14 times, but also indicates that there is no evidence that the recommended counseling ever took place. Eno also notes that defendant took the initiative and negotiated terms and conditions under which he was permitted to return to school at Waukegan West High School. Under the guidance of principal Billy Greer, defendant successfully completed high school. None of defendant\u2019s older siblings completed high school.\nThe report comments favorably on defendant\u2019s current relationships with his family, including his wife, Diane Gonzales, and his newborn daughter. The State argued in rebuttal that defendant\u2019s fatherhood is not a mitigating circumstance. Defendant and Gonzales gave up their first child for adoption, and defendant fathered his newborn daughter while in prison, the result of an obvious rule violation. According to Eno\u2019s report, the first child was given up for adoption because of pressure from Gonzales\u2019 family, who did not approve of her relationship with a black man.\nEno\u2019s report concludes that defendant has adjusted well to prison life, noting that he has been inspirational and supportive of fellow inmates; that he has developed an appreciation for self-expression through poetry and painting; that he has pursued educational interests; and that he has remained committed to his religion. Attached to the report were photographs of some of defendant\u2019s paintings. Defendant separately submitted samples of his poetry and lyrics.\nDefendant spoke in allocution at the sentencing hearing. Defendant protested his innocence and expressed concern for his wife and child. Defendant also expressed sorrow for the family of Merlinda Entrata. In responding to the State\u2019s evidence of inappropriate sexual conduct, defendant stated, \u201cI don\u2019t deny those incidents,\u201d although \u201cthere is two sides to every story.\u201d In addition, defendant submitted a written statement to the trial court, in which defendant again protested his innocence. Defendant stated that he has used his time in prison wisely; that he has focused on his religion; that he has taken two courses and plans on teaching himself a foreign language; and that he has learned to paint. Defendant commented on his difficult childhood and, in particular, the absence of a father. Defendant also recounted the difficult decision, and one that he regrets, to give up his first child for adoption. He expressed his hope that his daughter will not grow up without a father.\nIn addition to Eno\u2019s report, defendant submitted a psychological evaluation by Dr. Ronald Ganellen, who evaluated defendant to assess the likelihood of defendant acting in a violent manner if sentenced to life in prison. Dr. Ganellen concluded that defendant is able to understand and comply with the rules and regulations of prison life and that, in his opinion, the likelihood of aggressive or violent behavior is low in the highly structured prison setting.\nIn further mitigation, defendant submitted numerous letters from a variety of individuals. Nine letters were from friends, church members and ministers, expressing belief in defendant\u2019s innocence and commenting favorably on defendant\u2019s character and religious faith. Seven letters were from staff members of the Lake County jail. Although one letter indicates that defendant has not been a cooperative prisoner, the balance of the letters state that defendant has been disciplined only for minor infractions and that defendant does not pose a threat. Five letters were from other death row inmates, describing the beneficial impact defendant has had on their lives. Defendant also submitted a letter from the prison chaplain, who remembers defendant as pleasant, friendly, respectful, warm and loving, with whom he enjoyed visiting. Finally, defendant submitted letters from David Brodsky and Gerald Block, who represented defendant in his first trial, and James Chadd, who represented defendant in his direct appeal following his first trial. These individuals described defendant as respectful, courteous, intelligent, and understanding, with a capacity for rehabilitation.\nIn his closing argument, defense counsel focused on defendant\u2019s desire to learn, read and create, which counsel stated is the \u201cessential human condition.\u201d Counsel also elaborated on the love of family experienced by defendant, his ability to be productive while in prison, the positive effect he has had on fellow inmates, and Dr. Ganellen\u2019s opinion that there is little chance of defendant becoming violent if sentenced to life in prison. In summation, counsel argued:\n\u201cIf you accept the premise, and I think it is founded in the truth, that the death penalty is the last and ultimate punishment and should be reserved for the very few, for the cold and malignant hearted, for those for whom life in prison behind the bars is no solution *** then Tony Enis ought not get a sentence of death. It is that straight forward. *** I\u2019m telling you this from my heart because it is the truth, and you have all of the evidence before you. If society\u2019s death penalty is reserved for the worst, it is undeserved for this man.\n* * *\nTony Enis is not a thing. He is a human being. He has been convicted of a terrible crime. *** But he is nonetheless a precious, unique human being *** who can produce both beauty and feeling.\n* * *\nI beg you, please, please, Judge, perceive this man as a man worthy of redemption and spare his life ***.\u201d\nIn these post-conviction proceedings, defendant contends that his counsel was constitutionally deficient by failing to investigate and present evidence of defendant\u2019s neuropsychological impairment, as described in Dr. Gelbort\u2019s evaluations, and further evidence of defendant\u2019s social history.\nIn his evaluations, Dr. Gelbort states that, due to a neuropsychological impairment, defendant\u2019s conduct is less likely to conform to societal norms and that he is less able than a normal individual to exercise self-control. Dr. Gelbort also states that defendant\u2019s impairment may explain why his behavior has been maladaptive in the past and that such impairment would have been present at the time of the murder. Dr. Gelbort further states that defendant\u2019s capacity to relate to women developed in a deviant fashion and that defendant suffers from a Narcissistic Personality Disorder (Atypical). According to Dr. Gelbort, incarceration can be the perfect treatment for a person with defendant\u2019s psychopathology and history. As discussed earlier, Dr. Gelbort also expressed his opinion as to defendant\u2019s likely motivation for the murder.\nIn contrast to Dr. Gelbort\u2019s proposed testimony, which may suggest an explanation for defendant\u2019s conduct in murdering Entrata, defendant, in both his oral and written statements, protested his innocence of the crime charged. In his written statement defendant states that he will \u201cnever stop fighting to prove that fact.\u201d In allocution, defendant stated that, contrary to what the trial court may have heard from witnesses, Mer-linda Entrata\u2019s death was not at his hands.\nThe reasonableness of counsel\u2019s action may be judged with reference to a defendant\u2019s own statements. Evans, 186 Ill. 2d at 96. In the present case, it would have been contradictory for defendant\u2019s counsel to present mitigation evidence that explained why defendant committed the murder when defendant continued to maintain his innocence. Counsel cannot be expected to present mitigation evidence that contradicts his client\u2019s protestations of innocence. Accordingly, counsel\u2019s failure to do so is not deficient. See Evans, 186 Ill. 2d at 96-97; People v. Sanchez, 169 Ill. 2d 472, 491 (1996); Holman, 164 Ill. 2d at 373.\nDefendant contends, however, that Dr. Gelbort\u2019s testimony also would have helped explain the aggravating evidence presented by the State and that, under People v. Morgan, 187 Ill. 2d 500 (1999), prejudice is apparent. We disagree.\nIn Morgan, counsel failed to present any evidence of neurological impairment and brain damage, even though such evidence was readily available from family members, school records and the defendant\u2019s criminal file, and counsel was on notice of the defendant\u2019s history of mental health problems. Morgan, 187 Ill. 2d at 540-44. In contrast, here, the affidavits of family members do not indicate that defendant suffers from some underlying medical or psychological condition. Although defendant was referred to a clinical social worker for a psychological evaluation in 1984 as a condition of his probation, the conclusion of the social worker, that defendant has an antisocial personality disorder, was called into doubt by improper test scoring. In addition, the presentence investigation report states that the psychologist who evaluated defendant upon his entering Pontiac Correctional Center determined that defendant was not in need of any mental health treatment or counseling. Furthermore, counsel in the present case did obtain a psychological evaluation of defendant prior to his sentencing hearing. Dr. Ganellen, who evaluated defendant, found \u201cno signs of underlying psychosis, thought disorder, or cognitive slippage present.\u201d\nEven if defendant\u2019s counsel were faced with some evidence that defendant was neurologically impaired, such evidence is not inherently mitigating. The sentencer may view such information as either mitigating or aggravating, depending on whether the evidence evokes compassion or demonstrates possible future dangerousness. See People v. Madej, 177 Ill. 2d 116, 139 (1997); People v. Tenner, 175 Ill. 2d 372, 382 (1997). For this further reason, we will not deem counsel\u2019s performance deficient.\nDefendant also argues that his counsel was ineffective for failing to present further evidence of his social history. Defendant identifies several individuals who he contends could have provided mitigation testimony as to defendant\u2019s difficult childhood, the negative influence of defendant\u2019s brother Larry, and defendant\u2019s respectful conduct toward prior girlfriends.\nA comparison of the testimony compiled by defendant on post-conviction, and the evidence introduced at defendant\u2019s sentencing hearing, reveals that much of the new evidence is cumulative, or simply duplicative, of information presented to the trial court. For example, the post-conviction affidavit of Gladys Hicks essentially duplicates her letter to defense counsel, which was submitted in mitigation. Similarly, the post-conviction affidavit of Terry Atwater duplicates, in part, his letter to defense counsel, which was also submitted in mitigation. Additional information contained in Atwater\u2019s affidavit regarding defendant\u2019s difficult childhood and lack of a male role model are addressed in the presentence investigation report, in defendant\u2019s written statement, and in Jeffrey Eno\u2019s report. The post-conviction affidavit of Billy Greer, former principal of Waukegan West High School, contains information as to his relationship with defendant and defendant\u2019s success at Waukegan West. This evidence was already before the trial court in the presentence investigation report, in Eno\u2019s report, and in the testimony of Rose Santiago, one of defendant\u2019s probation officers. Greer\u2019s additional statements in his affidavit expressing shock at learning of the charges against defendant is cumulative of similar statements contained in the letters from friends and clergy which defendant submitted in mitigation at the sentencing hearing. Defense counsel was not deficient for failing to provide cumulative evidence. See People v. Henderson, 171 Ill. 2d 124, 155 (1996).\nThe new, noncumulative evidence defendant has compiled indicates that defendant idolized his older brother Larry, who was a negative role model; that defendant began to work part-time jobs at an early age; and that defendant\u2019s encounters with the law began at age 9 when he was picked up for vandalism. The new evidence also indicates that when defendant was growing up, the electricity was sometimes turned off for a day or two in the Enis home; that defendant did not always have decent clothing and enough to eat; that defendant witnessed his mother being physically abused by her former husband; that defendant\u2019s mother sometimes disciplined the children with a leather belt; and that there was a lot of confusion and arguing in the home. There was also evidence that defendant was well-mannered and respectful with some of his high school dates.\nThe additional evidence defendant cites illustrating his difficult upbringing and the negative influence of his brother is not necessarily mitigating. Evidence of a chaotic childhood, or that a defendant\u2019s upbringing caused him to become violent or aggressive, can be considered in aggravation. See Childress, 191 Ill. 2d at 179; Evans, 186 Ill. 2d at 101; Sanchez, 169 Ill. 2d at 491; People v. Hend erson, 142 Ill. 2d 258, 339 (1990). Moreover, defendant\u2019s counsel did present evidence of defendant\u2019s social history. Jeffrey Eno\u2019s report, as well as defendant\u2019s own statements, provide significant detail on defendant\u2019s background. Thus, this is not a situation where defendant\u2019s counsel completely overlooked this type of potentially mitigating evidence.\nAssuming, however, that counsel was deficient in failing to investigate and present this additional evidence, defendant must still show prejudice to sustain a claim of ineffective assistance of counsel. Prejudice must be assessed based on the totality of the evidence. It is therefore improper to focus exclusively on the potential mitigating evidence. Rather, the nature and extent of the evidence in aggravation must also be considered. People v. Coleman, 168 Ill. 2d 509, 538 (1995).\nIn this case, the trial court was presented with evidence of the execution-style murder of the victim; evidence of defendant\u2019s criminal conduct beginning at a young age; evidence of defendant\u2019s threats, intimidation and violence directed toward his teachers; evidence of defendant\u2019s sexually aggressive, if not criminal, conduct toward women; and evidence of defendant\u2019s periodic displays of intimidation and insolence while in prison. On this record, we do not believe that defendant has succeeded in demonstrating prejudice by the failure of counsel to present additional evidence of defendant\u2019s social history.\nPeople v. Thompkins, 161 Ill. 2d 148 (1994), on which defendant relies, does not require a different result. In Thompkins, we remanded the matter to the trial court for an evidentiary hearing on the defendant\u2019s post-conviction claim that his trial counsel was ineffective for failing to present mitigating evidence from the defendant\u2019s parents, siblings, children and friends. The only witness to testify in mitigation was the defendant\u2019s wife. Although counsel submitted over 50 letters in support of the defendant, most of them were from individuals who did not appear to know the defendant particularly well. Thus, the additional affidavits the defendant submitted in support of his post-conviction claim were not duplicative of evidence introduced at the defendant\u2019s sentencing hearing. We concluded that the live testimony of the affiants may have provided a more complete portrayal of the defendant, rather than letters from persons who did not know defendant well. We therefore remanded the matter for an evidentiary hearing on this issue. Thompkins, 161 Ill. 2d at 166-67.\nIn contrast, the mitigation evidence compiled by defendant in the present case largely duplicates or is cumulative of evidence introduced at defendant\u2019s sentencing hearing. In addition, many of the letter writers state that they know defendant well. Although the only witness to testify in support of defendant was his sister Jams Enis, she did so as spokesperson for the Enis family. Furthermore, defendant was permitted to speak in al-locution. He also submitted a written statement to the court. Unlike Thompkins, we believe that the sentencing judge in the present case was provided with a complete portrayal of defendant. Defendant\u2019s reliance on Thomp-kins is therefore misplaced. The trial court did not err in dismissing this claim without an evidentiary hearing.\nC. Motion to Quash Subpoena\nPrior to filing his amended post-conviction petition, defendant directed a subpoena to the Waukegan police department, calling for the production of \u201c[t]he entire police file pertaining to Anthony Enis and/or Melissa En-tratta [sic].\u201d The circuit court granted the State\u2019s motion to quash the subpoena. The court noted that defendant did not allege any discovery violations by the State, and that a post-conviction petition is not a new discovery tactic. Defendant argues on appeal that the trial court erred in granting the State\u2019s motion.\nBecause post-conviction proceedings afford only-limited review, and because there exists the opportunity for abuse of the discovery process, circuit courts must be cautious in the exercise of their inherent authority to order discovery. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988). Where a defendant\u2019s discovery request has gone beyond the limited scope of post-conviction proceedings and amounted to nothing more than a \u201cfishing expedition,\u201d this court has upheld the circuit court\u2019s denial of the defendant\u2019s discovery request. See Olinger, 176 Ill. 2d at 370-71. Similarly, in determining whether a defendant\u2019s request for a pretrial subpoena is justified, Illinois courts will consider whether, inter alia, the defendant\u2019s application is made in good faith and whether it is intended as a general fishing expedition. People v. Shukovsky, 128 Ill. 2d 210, 225 (1988). We believe the same concern applies when a circuit court is faced with a challenge to a defendant\u2019s use of a subpoena in post-conviction proceedings.\nDiscovery was conducted in both of defendant\u2019s criminal trials. Defendant did not argue in the circuit court that a discovery violation occurred. Defendant also did not claim a Brady violation. Rather, defendant simply argued that there may exist something in the police file that police withheld, which could lead to exculpatory evidence. Under these circumstances we conclude that defendant\u2019s subpoena was little more than a fishing expedition and that the circuit court did not abuse its discretion in granting the State\u2019s motion to quash.\nKyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995), on which defendant relies on appeal, does not support his contention that the circuit court erred. In Kyles, the United States Supreme Court reversed a decision of the Court of Appeals for the Fifth Circuit that rejected the defendant\u2019s claim for federal ha-beas corpus relief based on a Brady violation. The opinion does not speak to the appropriate scope of discovery, or the requirements for issuance of a subpoena, on post-conviction review. Accordingly, we reject defendant\u2019s contention of error.\nD. Motion for Substitution of Judge\nAs a final matter, defendant contends that the circuit court improperly denied his motion for substitution of judge at post-conviction proceedings. In his motion for substitution, defendant alleged, in relevant part, that Judge Christopher Starck agreed to allow Robert Hauser to file his appearance as additional counsel on behalf of defendant, so long as Hauser\u2019s fees were not paid by Lake County; that Judge Starck commented that the subpoena to the Waukegan police department may be \u201cburdensome\u201d; that Judge Starck refused to order the production of the entire police file; and that Judge Starck questioned whether defendant had a right to respond to the State\u2019s motion to dismiss defendant\u2019s post-conviction petition. Defendant argued that Judge Starck\u2019s comments and conduct indicate prejudice against defendant. The State opposed the motion. After argument by the parties, Judge Stephen Walter, to whom defendant\u2019s motion for substitution of judge was transferred, denied the motion. Judge Walter found that defendant\u2019s allegations were not supported by the record, or that the complained-of conduct by Judge Starck did not evidence prejudice. We agree.\nA defendant does not have an absolute right to substitution of judge at a post-conviction proceeding. Madej, 177 Ill. 2d at 163; People v. Steidl, 177 Ill. 2d 239, 264 (1997). Rather, a defendant must demonstrate that he will be substantially prejudiced if his motion for substitution is denied. Steidl, 177 Ill. 2d at 264.\nThe record in the present case reveals that, contrary to the allegations in defendant\u2019s motion for substitution, Judge Starck did not condition the filing of attorney Hauser\u2019s appearance on the payment of his fees from sources other than Lake County. When Hauser first appeared before Judge Starck, Hauser volunteered that \u201cthe Capital Project will pay whatever fees are involved *** so it won\u2019t cost the county.\u201d Judge Starck simply reiterated that arrangement when he granted Hauser leave to file his appearance.\nAs to Judge Starck\u2019s refusal to order the Waukegan police department to produce its entire file, we have determined that the court did not abuse its discretion in granting the State\u2019s motion to quash the subpoena. Moreover, the entry of an adverse judgment, standing alone, is not evidence of judicial bias. People v. Hall, 157 Ill. 2d 324, 335 (1993). Judge Starck\u2019s initial observation that compliance with the subpoena may be \u201cburdensome\u201d is also not indicative of prejudice. Judge Starck ordered the parties to submit authority in support of their respective positions regarding the State\u2019s motion to quash; he heard argument on the motion; and he ultimately granted the motion on grounds unrelated to whether compliance with the subpoena would be burdensome.\nFinally, we do not believe that defendant\u2019s allegation that Judge Starck expressed uncertainty as to whether defendant had a right to file a response to the State\u2019s motion to dismiss the post-conviction petition evidences bias. Judge Starck merely requested that defendant provide authority to support his position. Such a routine request is not indicative of prejudice. Accordingly, the circuit court did not err in denying defendant\u2019s motion for substitution of judge.\nCONCLUSION\nFor the foregoing reasons, we affirm the order of the circuit court of Lake County dismissing defendant\u2019s post-conviction petition without an evidentiary hearing. We also affirm the order of the circuit court quashing the subpoena directed to the Waukegan police department and the order of the circuit court denying defendant\u2019s motion for substitution of judge. We further direct the clerk of this court to enter an order setting Thursday, March 15, 2001, as the date on which the sentence of death, entered by the circuit court of Lake County, shall be carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119 \u2014 5 (West 1998). 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 confined.\nAffirmed.\nWe have assumed, for purposes of evaluating defendant\u2019s post-conviction claim, that Dr. Fulero\u2019s testimony regarding problems associated with cross-racial identifications would have been properly admitted at trial. We express no opinion, however, as to whether such expert testimony generally aids the trier of fact in reaching its conclusion.", "type": "majority", "author": "JUSTICE BILANDIC" }, { "text": "CHIEF JUSTICE HARRISON,\nconcurring in part and dissenting in part:\nI agree that Enis\u2019 murder conviction should not be disturbed. In my view, however, his sentence of death cannot be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XTV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 2). Enis\u2019 sentence of death should therefore be vacated, and the cause should be remanded to the circuit court for imposition of a sentence of imprisonment. 720 ILCS 5/9 \u2014 1(j) (West 1998).", "type": "concurring-in-part-and-dissenting-in-part", "author": "CHIEF JUSTICE HARRISON," } ], "attorneys": [ "Robert J. Hauser, of Waukegan, and Marshall Hartman, of the Office of the Illinois State Appellate Defender, of Chicago, for appellant.", "James E. Ryan, Attorney General, of Springfield, and Jeff Pavletic, State\u2019s Attorney, of Waukegan (Joel D. Ber-tocchi, Solicitor General, and William L. Browers and David H. Iskowich, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 86636.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appel-lee, v. ANTHONY ENIS, Appellant.\nOpinion filed November 22, 2000.\nRehearing denied January 29, 2001.\nHARRISON, C.J., concurring in part and dissenting in part.\nRobert J. Hauser, of Waukegan, and Marshall Hartman, of the Office of the Illinois State Appellate Defender, of Chicago, for appellant.\nJames E. Ryan, Attorney General, of Springfield, and Jeff Pavletic, State\u2019s Attorney, of Waukegan (Joel D. Ber-tocchi, Solicitor General, and William L. Browers and David H. Iskowich, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0361-01", "first_page_order": 371, "last_page_order": 428 }