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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES HARRIS, Appellant",
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      "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES HARRIS, Appellant."
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        "text": "CHIEF JUSTICE McMORROW\ndelivered the opinion of the court:\nDefendant James Harris petitioned the circuit court of Cook County for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 1996)). The circuit court dismissed defendant\u2019s amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). For the reasons set forth below, we affirm in part, reverse in part, and remand for an evidentiary hearing on certain claims raised by defendant.\nBACKGROUND\nOn direct review, this court recited the details of defendant\u2019s crimes. See People v. Harris, 129 Ill. 2d 123 (1989) (Harris I;, People v. Harris, 164 Ill. 2d 322 (1994) (Harris II). We need not repeat those details here. In 1984, following a jury trial in the circuit court of Cook County, defendant was convicted of the murder of Jesse James, Sr., the owner of a tavern on the south side of Chicago, and the attempted murder of Theresa Woods, who worked as a waitress at the tavern. Defendant also was convicted of one count of aggravated battery and two counts of attempted robbery in connection with this incident, which occurred on February 10, 1983. Defendant received the death penalty for the murder conviction and sentences of imprisonment for the remaining felonies.\nDuring the pendency of his appeal, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and this court remanded for a hearing, in light of Batson, on defendant\u2019s claim of discrimination in the exercise of peremptory challenges. Following this hearing, the circuit court denied relief. On direct appeal in Harris I, this court again remanded, determining that additional proceedings were required for resolution of the Batson issue. The court also found that during the sentencing hearing, the circuit court had improperly considered evidence of a 1969 \u201cmurder\u201d for which defendant was never convicted. We vacated defendant\u2019s death sentence, and conditionally vacated his convictions and nondeath sentences subject to reinstatement. Harris I, 129 Ill. 2d at 189. On remand from Harris I, the circuit court resolved the Bat-son issue adversely to defendant and reinstated his convictions. The case was then assigned to a different judge for a new sentencing hearing. Following this hearing, the circuit court again sentenced defendant to death for the murder conviction. On appeal, this court affirmed in Harris II.\nOn June 27, 1995, defendant filed a pro se petition for post-conviction relief. Subsequently, through appointed counsel, defendant filed an amended petition and a supplement to the amended petition. The amended post-conviction petition raised eight claims for relief. We set forth only those claims that are raised by defendant in this appeal.\nFirst, the amended post-conviction petition alleged that defendant was denied his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) when, during his initial Batson hearing, his attorneys failed to establish the race of two venirepersons who were excused by the State. The petition asserted that, because of this allegedly defective performance, defendant\u2019s subsequent Batson appeal was reviewed as to only 15 excused venirepersons rather than the 17 that the petition alleges were excused by the State.\nSecond, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) with regard to his counsel\u2019s handling of his pretrial motion to suppress evidence. Defendant alleged errors on the part of his trial counsel, post-trial counsel and appellate counsel with regard to this issue. According to the petition, defendant\u2019s trial counsel failed to impeach one of the State\u2019s witnesses during the pretrial hearing on the motion to suppress and failed to ask during trial that the motion to suppress be reopened on the ground that this same witness materially changed his testimony at trial. Defendant alleges that his post-trial counsel failed to point to these alleged deficiencies in trial counsel\u2019s performance as a basis for granting a new trial. Defendant alleges in addition that, \u201c[t]o the extent that this issue arguably could have been raised on appeal, Mr. Harris was also denied the effective assistance of appellate counsel.\u201d\nThe amended petition also set forth a claim alleging that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) during the eligibility phase of his second capital sentencing hearing. According to the petition, defense counsel failed to call as a witness former Chicago police officer Phyllis Ham Garth, whose testimony defendant claims would have raised a reasonable doubt as to whether he acted with the mental state required to render him death eligible.\nIn addition, the amended post-conviction petition alleged that defendant was denied due process of law when the State knowingly presented false aggravation evidence at the second capital sentencing hearing and failed to turn over to defense counsel medical reports that would have shown the evidence to have been false. According to the amended petition, John Szumigala, who testified in aggravation at the hearing, exaggerated the extent of the injuries he suffered as the victim of a 1971 robbery for which defendant was convicted.\nIn a related claim, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel at his second capital sentencing hearing when his attorneys failed to rebut the testimony of John Szumigala in aggravation. The focus of this claim is that defense counsel failed to investigate and present a readily available defense to the State\u2019s primary evidence in aggravation.\nFinally, the amended post-conviction petition alleged that defendant was denied the effective assistance of appellate counsel when his attorney failed to raise a meritorious issue on direct appeal concerning the use of victim impact evidence from a prior unrelated offense. According to the petition, the evidence in question was victim impact testimony given by John Szumigala during defendant\u2019s second capital sentencing hearing.\nIn support of the allegations in his petition, defendant attached affidavits of the two venire members whose race had not been established at the first Batson hearing. Edward Shealy, one of these venirepersons, stated in his affidavit that he is African American, and Christine Riley Brown, the other venireperson, stated that she is Latino-American. Also attached were affidavits of investigators Jonathan Lyon, Appolon Beaudouin, Jr., and Edward Torres, as well as a copy of a Cook County circuit court record, all of which indicated that Brown appeared to be African American. Defendant also attached an affidavit of Michael Levitin, one of his attorneys at the Batson hearing, stating that he had made no strategic decision not to present affidavits or other documentary evidence to establish the race of Shealy or Brown.\nDefendant\u2019s amended post-conviction petition was also supported by a separate affidavit of attorney Michael Levitin, who was also defendant\u2019s post-trial counsel. In his affidavit, Levitin stated that he made no strategic decision to exclude from his post-trial motions any issues regarding trial counsel\u2019s ineffectiveness in handling defendant\u2019s pretrial motion to suppress evidence. Also attached was an affidavit of attorney James Chadd, defendant\u2019s counsel in his first appeal to this court. Chadd stated in his affidavit that he made no strategic decision to exclude from his appellate brief the issue of trial counsel\u2019s handling of defendant\u2019s motion to suppress.\nIn addition, defendant attached to his amended post-conviction petition a copy of a police report signed by former Chicago Police Officer Phyllis Ham (now Garth) recounting her interview with Theresa Woods following the incident on February 10, 1983, in which Jesse James, Sr., was killed. Defendant also attached a separate affidavit of investigator Jonathan Lyon recounting conversations with Officer Garth in which Garth confirmed Woods\u2019 statements to her and the accuracy of Garth\u2019s report.\nDefendant\u2019s amended post-conviction petition was also supported by a copy of the medical records from the hospital where John Szumigala was treated after the 1971 robbery. The injuries reflected in these records do not appear to be as severe as those described by Szumigala at the sentencing hearing. Defendant also attached an opinion letter from a physician stating that the medical records do not \u201cbear out the allegations of Mr. Szumigala\u2019s permanent injury,\u201d which the physician stated \u201cwould certainly have appeared by the time he was discharged from the hospital.\u201d In addition, defendant attached a copy of Szumigala\u2019s 1971 testimony in the trial on the robbery charge, which differs somewhat from the testimony Szumigala gave at the sentencing hearing in 1992. Also attached was an affidavit of attorney Joseph McElligott, who represented defendant at his second capital sentencing hearing. In his affidavit, McElligott averred that he did not receive Szumigala\u2019s 1971 medical records from the State. McElligott added that if he had received the records, he \u201cwould have used them to further impeach Mr. Szumigala\u2019s testimony.\u201d\nFinally, defendant\u2019s amended post-conviction petition was supported by an affidavit of Charles Hoffman, who represented defendant on appeal from the second capital sentencing hearing. In his affidavit, which addressed the issue of the admissibility of John Szumigala\u2019s victim impact testimony, Hoffman stated that he made no strategic decision not to raise this issue.\nOn August 20, 1997, the State filed an amended motion to dismiss defendant\u2019s amended post-conviction petition. Following oral argument, the circuit court granted the State\u2019s motion to dismiss defendant\u2019s amended post-conviction petition without an evidentiary hearing.\nThe circuit court concluded that the issues raised in the petition were either previously litigated or \u201cdo not raise questions of law such that the defendant\u2019s constitutional [rights] have been neglected or sacrificed.\u201d The court rejected defendant\u2019s claim that he was denied the effective assistance of counsel at his Batson hearing. The court also rejected defendant\u2019s claim that his appellate counsel was ineffective for failing to raise the issue of the improper use of victim impact evidence from a prior unrelated offense.\nDefendant moved to reconsider and vacate judgment, and the motion was denied. Because defendant was sentenced to death for the underlying murder conviction, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). We will recount additional relevant facts in the context of the issues on appeal.\nANALYSIS\nThe Illinois Post-Conviction Hearing Act provides a mechanism by which criminal defendants can assert that their convictions and sentences were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122 \u2014 1 (West 1996). An action for post-conviction relief is a collateral proceeding and is not an appeal from the underlying judgment. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000); People v. Morgan, 187 Ill. 2d 500, 528 (1999). In order to be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. Morgan, 187 Ill. 2d at 528; People v. Tenner, 175 Ill. 2d 372, 378 (1997).\nThe purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, and could not have been, adjudicated previously on direct appeal. People v. Haynes, 192 Ill. 2d 437, 464 (2000); People v. Towns, 182 Ill. 2d 491, 502 (1998). Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata. Towns, 182 Ill. 2d at 502; People v. Whitehead, 169 Ill. 2d 355, 371 (1996), overruled on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998). Issues that could have been presented on direct appeal, but were not, are waived. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. However, the doctrines of res judicata and waiver are relaxed in three situations: where fundamental fairness so requires, where the alleged waiver stems from the incompetence of appellate counsel, or where the facts relating to the claim do not appear on the face of the original appellate record. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 371-72.\nA defendant filing a post-conviction petition is not entitled to an evidentiary hearing as a matter of right. Mahaffey, 194 Ill. 2d at 171; Whitehead, 169 Ill. 2d at 370-71. An evidentiary hearing on post-conviction claims is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant\u2019s constitutional rights have been violated. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995); Towns, 182 Ill. 2d at 503. A trial court\u2019s determinations regarding the sufficiency of the allegations in a post-conviction petition are reviewed de novo. Morgan, 187 Ill. 2d at 528; 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. Before this court, defendant raises six claims for review. We address each of them seriatim.\nI. Batson Claim\nDefendant argues that his attorneys were ineffective at his first Batson hearing when they failed to establish the race of Edward Shealy and Christine Riley Brown, two venirepersons who were excused by the State.\nAt the start of the hearing, which took place in 1987, the parties disputed the total number of African American venirepersons who had been peremptorily challenged by the State. Defense counsel argued that the number was 17, while the State maintained that the total was 15. The two disputed venirepersons were Shealy and Brown. At the behest of the trial court, defense counsel investigated the matter and informed the court that while he had been unable to speak directly to Shealy and Brown, he had spoken by telephone with members of their households, who informed him that Shealy and Brown were African Americans. The State presented no evidence to refute this assertion, and the trial court judge concluded that Shealy and Brown were African Americans. Having found that the State used 17 of its 20 peremptories to excuse African Americans, the judge then determined that defendant had established a prima facie case of Batson discrimination. Pursuant to Batson, the State was then required to provide race-neutral reasons for its peremptory challenges. At the conclusion of the hearing, the trial court found that \u201cthe challenges were used for neutral reasons[,] not for racial reasons.\u201d On appeal in Harris I, this court determined that Shealy\u2019s and Brown\u2019s race had not been properly established, and that defendant therefore had waived his Batson claim as to these two venire members. Accordingly, in reviewing defendant\u2019s Batson claim, we considered only the 15 excused venirepersons that the parties agreed were African Americans. Harris I, 129 Ill. 2d at 172.\nBefore this court, the State initially argues that defendant\u2019s Batson claim is barred by the doctrines of waiver and res judicata. Pointing to our decision in Harris I, the State asserts: \u201cthis Court has already decided that Petitioner forfeited his right to challenge the exclusion of jurors Riley [Brown] and Shealy when counsel failed to make an adequate record\u201d of their race. The State contends that our recognition of waiver in Harris I is res judicata as to defendant\u2019s claim in the case at bar with regard to Shealy and Brown. We disagree.\nAs noted, the doctrines of res judicata and waiver are relaxed where the facts relating to the claim do not appear on the face of the original appellate record. Here, as this court noted in Harris I, there was nothing in the record establishing the race of the two venire members in question. Harris I, 129 Ill. 2d at 172. Indeed, it is the absence of facts establishing Shealy\u2019s and Brown\u2019s race that is at the heart of defendant\u2019s claim, which, as noted, is that his counsel was ineffective for failing to establish their race. The facts relating to this claim do not appear on the face of the original appellate record, and res judicata and waiver therefore do not apply in this instance.\nNotwithstanding the foregoing, the State points to this court\u2019s decision in People v. Evans, 186 Ill. 2d 83 (1999), where a similar post-conviction claim was found to have been waived because the defendant failed to include in the record the race of the witnesses who testified at trial. However, the defendant in Evans did not claim, as does defendant in the instant case, that his counsel was ineffective for failing to establish the witnesses\u2019 race. Instead, his post-conviction claim was . simply a variation of the fourteenth amendment Batson claim that he had raised on direct appeal. Defendant in the instant case raises a different, sixth amendment claim of ineffective assistance of counsel. Therefore, we find Evans inapposite to the case at bar.\nTurning to the merits of defendant\u2019s claim, we recall the familiar standard by which we review ineffective assistance of counsel claims. To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under the first prong of this test, the defendant must demonstrate that his counsel\u2019s performance was deficient. In other words, \u201cthe defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness.\u201d Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. However, even if it is established that counsel\u2019s performance was professionally unreasonable, this, by itself, is insufficient to warrant reversal. The defendant must also meet the second prong of the Strickland test: he must demonstrate that counsel\u2019s deficiencies resulted in prejudice. In order to establish prejudice, \u201c[t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendant must satisfy both prongs of the Strickland test in order to succeed on a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530.\nIn the case at bar, defendant argues that his counsel\u2019s failure to establish the race of venirepersons Shealy and Brown at the Batson hearing was professionally unreasonable. Defendant also contends that he suffered prejudice as a result of this allegedly deficient perfor-\u00ab manee. According to defendant, there is a reasonable probability that, had these venirepersons\u2019 race been properly established, this court in Harris I would have found the State\u2019s reasons for excusing Shealy and Brown to be pretextual and would have reversed defendant\u2019s convictions. Alternatively, defendant argues that there is a reasonable probability that this court would have found the trial court judge\u2019s findings as to these two venirepersons erroneous and would have remanded for further Batson proceedings as to Shealy and Brown.\nIn Batson, the Supreme Court held that it was unconstitutional for the prosecution to use a peremptory challenge to exclude a prospective juror solely on the basis of race. The Court in Batson outlined a three-step process for evaluating claims of Batson discrimination. First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Once a prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for excusing the venirepersons in question. Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991); People v. Williams, 164 Ill. 2d 1, 19 (1994). At this stage of the process, the explanation given by the prosecutor need not be persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (1995). A neutral explanation is one based on a reason other than race. Harris II, 164 Ill. 2d at 333. \u201cUnless a discriminatory intent is inherent in the prosecutor\u2019s explanation, the reason offered will be deemed race neutral.\u201d Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866. Once the prosecutor articulates his reasons for striking the prospective jurors in question, the process moves to the third step: the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866. Because the trial court\u2019s decision as to discriminatory intent represents a finding of fact, this determination is entitled to great deference and will be disturbed on appeal only if it is clearly erroneous. Hernandez, 500 U.S. at 364-65, 369, 114 L. Ed. 2d at 409, 412, 111 S. Ct. at 1869, 1871; People v. Wiley, 165 Ill. 2d 259, 274 (1995); Harris II, 164 Ill. 2d at 333. Where more than one explanation has been offered for the exclusion of a venire member, it is sufficient for our purposes if at least one of these explanations is race neutral. People v. Andrews, 155 Ill. 2d 286, 294 (1993); Wiley, 165 Ill. 2d at 278.\nIn the case at bar, defendant\u2019s Batson argument turns on whether the reasons given by the State for excusing Brown and Shealy were pretextual, and on whether the trial court\u2019s determination that they were race neutral was clearly erroneous. If these questions are answered in the negative, it follows that defendant suffered no prejudice as a result of counsel\u2019s failure to establish Shealy\u2019s and Brown\u2019s race. Accordingly, defendant\u2019s ineffective assistance of counsel claim would fail. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530. For the reasons that follow, we conclude that defendant\u2019s Batson claim is without merit.\nChristine Riley Brown\nDuring voir dire, which was conducted by the trial court judge on April 23 and 24, 1984, Christine Riley (now Brown) stated that she graduated from Richard Vocational High School and had worked for six years as a directory assistance operator for Illinois Bell. With regard to her place of residence, she agreed with the judge when he stated that she lived in \u201cHyde Park or Kenwood,\u201d which are two neighborhoods in the same vicinity on Chicago\u2019s south side. Riley had a friend who was a lawyer. She had never spoken to this friend about her philosophies of law or law enforcement. Riley was separated from her husband, who had done auto bodywork during the time that they were together. Her nephew had been the victim of a crime. He was stabbed \u201cabout three months ago\u201d in front of his house on the south side of Chicago. Riley said \u201c[i]t was a fight,\u201d and she did not know \u201cexactly what happened.\u201d\nThe Batson hearing was conducted by the same judge who presided at trial. At this hearing, Daniel Franks, one of the prosecutors in the case, explained his reasons for excusing Brown. One of these reasons was that she \u201clived in the Hyde Park area.\u201d Franks explained that, based on his experience, it was his belief that people who live in the Hyde Park and University of Chicago area \u201chave a certain attitude about themselves and that community.\u201d According to Franks, \u201c[t]hey are more interested in scholastic endeavors and maybe would be more open to new ideas and other types of ideas than people in the rest of the Chicago area.\u201d Franks stated that in selecting jurors, he looks for people who \u201care going to listen to the evidence and make their findings of fact based on the evidence that they get in this courtroom, and not guess or attempt to go beyond the rulings of the court or the jury instructions.\u201d\nDefendant argues that the reasons given by the prosecutor for excusing Brown \u201cappear either pretextual or unsupported by the record.\u201d With regard to Brown\u2019s place of residence, defendant notes that Brown never stated that she was a resident of Hyde Park. Instead, she simply answered \u201cyes\u201d when the judge stated: \u201cYou live in Hyde Park or Kenwood, did you say?\u201d In addition, defendant emphasizes that Brown graduated from a vocational high school and worked as a directory assistance operator. According to defendant, \u201cthere is no evidence she possessed the characteristics of Hyde Parkers which Franks found objectionable.\u201d\nAs defendant correctly notes, Brown did not state that she lived in Hyde Park. Her answer to the judge\u2019s question about her place of residence indicated that she lived either in Hyde Park or Kenwood. However, the prosecutor, in explaining why he excluded Brown, did not say that she lived in Hyde Park. His statement was that she \u201clived in the Hyde Park area.\u201d (Emphasis added.) This statement could apply to Brown whether she lived in Hyde Park or Kenwood.\nDefendant also contends, as noted, that Brown did not necessarily possess the characteristics that the prosecutor found objectionable in \u201cHyde Parkers.\u201d Defendant raised this identical argument in Harris I regarding a different venire member. There, defendant challenged the prosecutor\u2019s explanation that a venire member was excluded in part because of her residence in Hyde Park. According to defendant, the State could not rely on such an explanation unless it could show that Hyde Park residents actually did tend to be scholarly, open to new ideas and not likely to base their findings of fact on evidence, and that the venireperson in question actually possessed these traits. Harris I, 129 Ill. 2d at 176-77. We rejected defendant\u2019s argument. We determined in Harris I that the State\u2019s failure to show that a group actually possesses the undesirable traits attributed to it by the State, or that an excluded venire member also possesses these traits, is a factor that should be considered by the trial court in evaluating the legitimacy of the State\u2019s explanation. However, the State is not required, at the second stage of the Batson process, to make such a showing. At the second stage, \u201cit is not necessary that the State establish the empirical truth of the reason it cites in support of a challenge to a juror.\u201d Harris II, 164 Ill. 2d at 338. All that is required of the State at the second stage is that the prosecutor\u2019s explanation be facially race-neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.\nWe conclude that, in the case at bar, the prosecutor\u2019s explanation that Brown was excluded because she lived in the Hyde Park area is race-neutral. As noted previously, at the conclusion of the Batson hearing, the trial court judge found that \u201cthe challenges were used for neutral reasonst,] not for racial reasons.\u201d With regard to Brown, the judge specifically found that the explanation that she lived in \u201cthe community of Hyde Park\u201d was race-neutral. We cannot say that the judge\u2019s determination here was clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364-65, 369, 114 L. Ed. 2d 395, 409, 111 S. Ct. 1859, 1869, 1871 (1991); Wiley, 165 Ill. 2d at 274; Harris II, 164 Ill. 2d at 333. We therefore reject defendant\u2019s Batson claim as to the exclusion of venire member Christine Riley Brown.\nEdward Shealy\nDuring voir dire, Edward Shealy stated that he had a bachelor\u2019s degree in music and worked as a docket manager at a Chicago law firm. Shealy had worked at this firm for 3V2 years, and prior to this had been a docket manager at a different firm for six years. Shealy told the judge that he had \u201cplenty\u201d of close friends who were attorneys but did not discuss with them their philosophies about law or law enforcement because \u201c[tjhey don\u2019t have time.\u201d Shealy also indicated that he had a close friend who was a \u201cnew recruit\u201d with the Chicago police department. When asked if he ever talked to this friend about his work with the police department, Shealy answered, \u201cNone whatsoever.\u201d Shealy also stated that he did not talk to this friend about his police training.\nAt the Batson hearing, prosecutor Daniel Franks offered several explanations for excusing Shealy. One of them was that, while Shealy indicated he had \u201cplenty\u201d of close friends who were attorneys, he insisted that he never talked to any of them about their philosophies of law or law enforcement. Franks stated that this response \u201cdid not make sense,\u201d and he commented on the demeanor that Shealy displayed while giving it: \u201cI don\u2019t think I can do justice in [sic] the way that the juror answered [the judge\u2019s] question in terms of his tone of voice and his mannerisms while answering that question.\u201d According to Franks, Shealy\u2019s answer was \u201cthe type of response that did not give me a feeling that I wanted him on that jury.\u201d\nDefendant argues that this explanation \u201cappears pretextual.\u201d He points to three white venire members\u2014 Theresa Najdowski, Richard Gray, and Michael Dolan\u2014 who had friends or family members who were attorneys and who were accepted as jurors, even though they were never asked if they discussed legal matters with the attorney. Defendant notes that the State expressed no concern about this issue with regard to these jurors.\nThis court has consistently held that where a prosecutor excludes a minority venireperson based on a certain characteristic, but does not reject a white venireperson who shared the same characteristic, \u201cit does not follow that this in itself shows that the prosecutor\u2019s explanations were pretextual.\u201d People v. Young, 128 Ill. 2d 1, 23 (1989); Harris I, 129 Ill. 2d at 179; see Wiley, 165 Ill. 2d at 282. In Wiley, this court explained:\n\u201cThe State\u2019s purposeful discrimination is not automatically established by the mere coincidence that an excluded juror shared a characteristic with a juror who was not challenged. The excluded juror may possess an additional trait that caused the State to find him unacceptable, while the juror who was not challenged may possess an additional characteristic that prompted the State to find him acceptable to serve as a juror. ([People v.] Ramey, 151 Ill. 2d [498,] 520 [(1972)].) \u2018[A] peremptory challenge is based on a combination of traits, and a juror possessing an unfavorable trait may be accepted while another juror possessing that same negative trait, but also possessing other negative traits, may be challenged.\u2019 [People v.] Mitchell, 152 Ill. 2d [274,] at 295 [(1992)].\u201d Wiley, 165 Ill. 2d at 282-83.\nIn the case at bar, while Shealy and the three white jurors shared the characteristic that they all had close friends or family members who were attorneys, Shealy possessed \u201can additional trait that caused the State to find him unacceptable.\u201d Wiley, 165 Ill. 2d at 283. In this instance, the additional trait was that, unlike Najdowski, Gray or Dolan, Shealy had \u201cplenty\u201d of close friends who were attorneys, yet he insisted that he never talked to them about their philosophies of law or law enforcement. In such a situation, the fact that white jurors also had close friends or family members who were attorneys does not render the State\u2019s explanation for excluding Shealy pretextual. People v. Young, 128 Ill. 2d 1, 23 (1989).\nAs noted, defendant also objects that no one asked the white jurors if they discussed legal matters with their friends or relatives who were attorneys. The voir dire in this case was conducted by the trial court judge. This court has held that \u201c[t]he State\u2019s failure to pose additional questions does not lead to the conclusion that the reasons given by the State were a mere pretext for racial discrimination.\u201d Wiley, 165 Ill. 2d at 276, citing People v. Kitchen, 159 Ill. 2d 1, 20-21 (1994); Harris II, 164 Ill. 2d at 334.\nAt the conclusion of the Batson hearing, the judge found that the State had exercised its peremptory challenges for race-neutral reasons and had rebutted defendant\u2019s prima facie case. With regard to Shealy, the judge specifically mentioned the explanation that Shealy \u201cworks at a law firm\u201d and had \u201cplenty of friends who were lawyers,\u201d and concluded that this was an adequate basis for excluding Shealy. In elaborating upon this explanation, the judge opined that because Shealy worked for a large civil law firm, Shealy might take the view that criminal law is not very important.\nDefendant challenges the judge\u2019s findings on the ground that they do not reflect the reasons actually given by the prosecutor. Defendant argues that Franks\u2019 actual reasons for excusing Shealy were not that he worked at a law firm and had friends who were lawyers, or that Shealy thought criminal law was unimportant. Rather, the prosecutor stated that he doubted Shealy\u2019s candor when Shealy stated that he never talked to his attorney friends about law enforcement issues or philosophies of the law.\nThis court has repeatedly held that there is no need for a trial court judge to enter findings with respect to each black member of the venire excluded by the prosecution. People v. Mack, 128 Ill. 2d 231, 245-46 (1989); People v. Fair, 159 Ill. 2d 51, 76 (1994); Harris II, 164 Ill. 2d at 335. In both Mack and Fair, the circuit court judges who conducted the Batson hearings found at the conclusion of the hearings that the explanations offered by the prosecution were race-neutral and sufficient under Batson. In each case, the judge made only this general finding and did not enter specific factual findings for each black venireperson excluded by the State. We held in both Fair and Mack that such a general finding was specific enough for our purposes and that there was no need for the circuit court judge to make specific findings as to the State\u2019s explanations for each such peremptory challenge. \u201cIn both of those cases, we noted that the record contained the prosecutor\u2019s explanations for the separate challenges made to the minority members of the venire, and, in reviewing in each case the trial judge\u2019s findings of no discriminatory intent, we considered the explanations provided by the prosecution.\u201d Harris II, 164 Ill. 2d at 335. If our review of a Batson claim may proceed in the absence of specific findings by the circuit court as to each minority person challenged by the State, we see no reason why, in a case where the judge does make specific findings, we should be limited only to those findings and prevented from independently considering explanations provided by the State but not expressly ruled on by the judge.\nOur decision in People v. Williams, 164 Ill. 2d 1 (1994), is exactly on point as to this issue. Following the trial court judge\u2019s decision that defendant had made a prima facie case with regard to the exclusion of Alvin Pettigrew, an African American venireperson, the State in Williams then provided its reasons for exercising a peremptory challenge against Pettigrew. The first two of these reasons were that Pettigrew kept his hat on during voir dire, which the prosecutor said she thought was disrespectful, and that Pettigrew gave short, cryptic answers to the questions asked. The judge mentioned each of these reasons in finding that the State\u2019s explanation was legitimate and race-neutral. However, the judge did not mention the third reason provided by the State: \u201cPettigrew\u2019s lack of knowledge concerning the employment of one of his four children, a 24-year-old son who, he said, \u2018[wjorks downtown somewhere.\u2019 \u201d Williams, 164 Ill. 2d at 20. Nevertheless, this court proceeded to consider this reason and concluded: [It] \u201cappears to be a legitimate, race-neutral one. The record makes plain that the finding of the circuit court is not clearly erroneous.\u201d (Emphasis added.) Williams, 164 Ill. 2d at 21. Just as this court in Williams examined a reason not explicitly ruled upon by the trial judge, so here we have considered the reasons advanced by the prosecutor for excluding Shealy, including those not explicitly ruled upon by the trial judge. Based on our review of these reasons, we cannot say that the judge\u2019s determination that they were legitimate and race-neutral is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364-65, 369, 114 L. Ed. 2d 395, 409, 412, 111 S. Ct. 1859, 1869, 1871 (1991); Wiley, 165 Ill. 2d at 274; Harris II, 164 Ill. 2d at 333. We therefore reject defendant\u2019s Batson claim as to the exclusion of venire member Edward Shealy.\nBecause defendant\u2019s Batson claims as to Shealy and Brown are meritless, defendant has failed to show that he suffered prejudice as a result of his counsel\u2019s failure to establish the race of Shealy and Brown. Even if counsel had established the race of these two venirepersons, defendant has not demonstrated that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. In other words, even if this court had considered the State\u2019s exclusion of Shealy and Brown, it is not reasonably probable that the court would have found the State\u2019s reasons to be pretextual or that the trial judge\u2019s determination that the reasons were race-neutral was clearly erroneous. Defense counsel\u2019s failure to establish the race of Shealy and Brown did not constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct at 2069; Morgan, 187 Ill. 2d at 530.\nDefendant makes an additional Batson claim regarding defense counsel\u2019s failure to establish the race of Christine Riley Brown. According to defendant, Brown is a \u201cBlack Latina\u201d and is therefore one of three Hispanic members of the venire, two of whom (Brown and Eva Morales) were peremptorily challenged by the State. Defendant contends that if defense counsel had established Brown\u2019s Latina heritage, there is a reasonable probability that in Harris II this court would have found a prima facie case of discrimination against Hispanic venire members. In Harris II we held that defendant failed to establish such a prima facie case, based in part on \u201cthe apparent presence of only one Hispanic in the venire.\u201d Harris II, 164 Ill. 2d at 344. Defendant argues that this court\u2019s decision might have been different if we had known that Riley was also Hispanic and that the State thus had peremptorily challenged two of three Hispanic venire members, or 66%. We disagree.\nIn order to establish a prima facie case of purposeful discrimination under Batson, a defendant must show that the relevant facts and circumstances \u201craise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.\u201d Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In other words, the defendant must show that \u201cthe totality of the relevant facts gives rise to an inference of discriminatory purpose.\u201d Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721.\nThis court has enumerated a number of factors that are relevant in determining whether a prima facie case of purposeful discrimination in jury selection has been established. These factors include:\n\u201ca \u2018pattern\u2019 of strikes against [minority] jurors; \u2018the prosecutor\u2019s questions and statements during voir dire examination and in exercising his challenges\u2019 [citation]; the disproportionate use of peremptory challenges against [members of a minority] [citations]; the level of [minority] representation in the venire as compared to the jury [citations]; whether the excluded [minority members] were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations]; and the race of the witnesses [citation].\u201d People v. Evans, 125 Ill. 2d 50, 63-64 (1988).\nIn the case at bar, defendant contends that there were three Hispanic members of the venire (Brown, Lucio Martinez, and Eva Morales) and that the State used peremptory challenges to remove two of them, Brown and Morales. The State thus used peremptory challenges to remove 66% of the Hispanic members of the venire. However, \u201c[s] imply because [minority] veniremen are peremptorily challenged does not, without more, raise the specter or inference of discrimination.\u201d Evans, 125 Ill. 2d at 64, citing Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725 (White, J., concurring) (\u201cit is not unconstitutional, without more, to strike one or more blacks from the jury\u201d); People v. Hooper, 118 Ill. 2d 244, 248 (1987) (Ryan, J., specially concurring) (the court must avoid arbitrarily deciding this delicate question \u201csolely from the number of blacks peremptorily excused as disclosed by the record\u201d).\nDefendant does not contend here that the prosecutor, in exercising peremptory challenges against Hispanics, made statements indicating discriminatory intent. More importantly, neither defendant nor his two victims, one of whom was the State\u2019s chief witness, were Hispanic. All three of them were African Americans. We are aware that a criminal defendant may bring a Batson claim \u201cwhether or not the defendant and the excluded jurors share the same race.\u201d Powers v. Ohio, 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366 (1991). However, even though racial identity is not required in order to bring the claim, such identity, or lack thereof, \u201cremains a relevant factor in determining whether a prima facie case of discrimination has been established.\u201d People v. Pasch, 152 Ill. 2d 133, 163 (1992); People v. Andrews, 146 Ill. 2d 413, 425 (1992). In Harris II this court held that defendant had failed to establish a prima facie case of discrimination with regard to an excluded Hispanic venire member. In reaching this decision, the court stated: \u201cThe defendant was of a different ethnic group, and there would have been no likely reason for the prosecutor to have attempted to discriminate against Hispanics.\u201d Harris II, 164 Ill. 2d at 344. We draw the same conclusion here as to the racial-identity factor.\nBased on our review of the record, we conclude that the totality of the relevant facts does not give rise to an inference' of discriminatory purpose on the part of the State. See Batson, 476 U.S. at 93, 94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at 1721. Even if defense counsel had established Brown\u2019s Hispanic heritage, a prima facie case of discrimination against Hispanic venire members would not have been established. Accordingly, defendant has failed to show that he suffered prejudice as a result of his counsel\u2019s failure to establish Brown\u2019s Hispanic heritage. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defense counsel\u2019s alleged error here did not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700, 104 S. Ct. at 2069; Morgan, 187 Ill. 2d at 530.\nDefendant\u2019s Batson claim is without merit. Accordingly, the trial court correctly dismissed defendant\u2019s post-conviction Batson claim without an evidentiary hearing.\nII. Motion to Suppress\nDefendant next argues that his counsel mishandled his pretrial motion to suppress evidence, thereby denying him the effective assistance of counsel. According to defendant, if counsel had effectively handled this motion, the gun that was allegedly taken from defendant at his arrest would have been suppressed and the State\u2019s case without this evidence would have been insufficient to convict.\nPrior to trial defendant moved to quash his arrest and suppress evidence, arguing that his conduct prior to the arrest did not constitute probable cause to suspect that he had committed or was about to commit a crime. A hearing was held in which three witnesses testified. We begin with a review of their testimony and the trial judge\u2019s conclusions, along with relevant testimony given at trial by the same witnesses.\nCleveland Johnson, a Chicago resident who worked in a western suburb, testified at the hearing that on the morning of February 10, 1983, he was driving west on 63rd Street when, at about 4:15 or 4:25 a.m., he stopped at a traffic light at the intersection of 63rd and State Streets. While he was at the intersection, Johnson noticed a young man on foot who was headed north on State Street. The man, whom Johnson identified as defendant, stopped, turned, and looked back toward 64th Street. He then stepped around the corner, headed east, and stood behind a traffic control box. Johnson said he continued to watch defendant because he felt that there was \u201csomething wrong with this guy.\u201d When the light changed, Johnson turned right and headed north on State Street. In his rearview mirror he saw defendant come across 63rd Street, step up onto the sidewalk, and start running north on State. Defendant, who was to the right of Johnson\u2019s car, then hooked his left hand on the car\u2019s right front door handle, and hit the car with his right hand. Johnson stopped, the car and opened the passenger-side window a few inches. Defendant asked Johnson if he would take him to 51st Street, and he offered to pay five dollars for the ride. Johnson said, \u201cNo, I do not think so,\u201d and defendant reached down and pulled up on the front of his pants at the waist.\nJohnson testified further that at this point a Chevy Blazer drove up from behind and pulled in front of Johnson\u2019s car. Two officers came out of the Blazer, one from the right-hand side and the other from the driver\u2019s side. Both had guns. One of the officers came around the rear of Johnson\u2019s car and pushed defendant over the car\u2019s hood, telling him, \u201cDon\u2019t move.\u201d The officer then took a gun from defendant\u2019s belt. Johnson did not see the gun before the officer took it from defendant.\nMichael Grady, who was employed as a railroad police officer for the Consolidated Railroad Corporation (Conrail), testified that on the morning of February 10, 1983, he and his partner, Theodore Kurzweil, were patrolling in their Chevy Blazer near the intersection of 63rd and State Streets. Sometime prior to 4:20 a.m., Chicago police officers drove up and gave the Conrail officers a description of a man they said was wanted for attempted armed robbery: \u201ca male Black, approximately five-ten to six foot, in his twenties, wearing a blue jean jacket [and] blue jeans, [with a] large, bushy Afro-style hairdo.\u201d The Chicago police officers said the man was armed with a small caliber handgun. They then drove away.\nGrady testified further that a short time later, at about 4:20 a.m., he and his partner were at the intersection of 63rd and State Streets when they saw a man whom Grady identified as defendant running alongside Johnson\u2019s car. The car was moving north on State Street. According to Grady, defendant had a handgun \u201copenly displayed\u201d in his right hand, and his left hand was on the car\u2019s passenger-side door. The Conrail officers turned north onto State Street and pulled in front of Johnson\u2019s car, which by now had stopped about a half block north of 63rd on State. Grady and his partner got out of their vehicle with their guns drawn and arrested defendant, from whom they recovered the gun.\nKurzweil, who was driving the Blazer on February 10, gave essentially the same testimony. He stated that at about 4:20 that morning he saw a man whom he identified as defendant going north on State Street at 63rd Street. The man, who was alongside a moving car, had in his right hand what \u201cappeared to be a revolver.\u201d At that time defendant was wearing a blue jean jacket and blue jeans, and \u201c[h]is hair was in a large Afro.\u201d\nAt the conclusion of the hearing, the circuit court denied defendant\u2019s motion to quash arrest and suppress evidence. The judge stated that there was probable cause to arrest defendant on either of two grounds: (1) \u201cat a time closely connected with the [February 10, 1983] incident,\u201d defendant matched the description given to the Conrail officers, or (2) defendant was observed carrying a handgun \u201cwithin the City of Chicago.\u201d\nEvidence presented at trial included testimony from these same three witnesses \u2014 Cleveland Johnson and Conrail officers Michael Grady and Theodore Kurzweil. All three gave essentially the same testimony that they had given previously. With regard to the gun that Grady and Kurzweil had seen in defendant\u2019s hand, Grady stated at trial that he observed defendant running alongside the car, with a gun in his right hand, and his arm extended to his right side. The gun was below the level of the car window. When Grady subsequently told defendant to drop the gun, defendant \u201c[pjlaced the weapon into his waistband.\u201d Grady then recovered the gun from defendant, who was placed under arrest. Kurzweil gave similar testimony regarding the gun. Kurzweil stated that defendant \u201cwas running alongside [Johnson\u2019s] car,\u201d with a \u201crevolver\u201d in his right hand and his left hand \u201ctoward the car.\u201d Grady subsequently recovered the gun from defendant.\nWith respect to the description of defendant given by Chicago police officers, Grady\u2019s testimony at trial differed somewhat from his pretrial testimony. At the motion hearing, as noted, Grady stated that the officers told him \u201cthey were looking for a male Black, approximately five-ten to six foot, large Afro-style hair, wearing blue jean jacket, blue jeans, and armed with a small caliber handgun, wanted for Attempted Armed Robbery.\u201d At trial, however, Grady gave the description as \u201cMale black, wearing a blue jean jacket with a large \u2018fro.\u201d Under cross-examination at trial, Grady conceded that when he stated during the motion hearing that the description included a height of \u201cfive, ten to six foot,\u201d this was \u201cconjecture\u201d on his part.\nAs noted, Johnson\u2019s testimony at trial was similar to his previous testimony. Johnson testified that he was in his car at the intersection of 63rd and State Streets, stopped at a stoplight, when he observed defendant acting suspiciously. Johnson turned right off 63rd and headed north on State, looked in his rearview mirror, and saw defendant running toward him, but saw nothing in defendant\u2019s hands. Johnson subsequently lost sight of defendant in his rearview mirror, and when he saw him again, defendant was alongside Johnson\u2019s car, on the right-hand side, with his left hand on the passenger door. Defendant hit the passenger door with his right hand, and Johnson stopped the car. Johnson could not see defendant\u2019s hand when defendant hit the door. He saw only defendant\u2019s \u201carm swinging.\u201d A short time later, one of the officers recovered a gun from defendant.\nBefore this court, defendant argues that his counsel\u2019s handling of the motion to suppress was deficient in three ways: (1) during the pretrial hearing on the motion to suppress, defense counsel failed to impeach Grady regarding his testimony as to the description that he was given by Chicago police; (2) during the trial, defense counsel failed to ask that the motion to suppress be reopened in light of Grady\u2019s different testimony at trial regarding the description; and (3) after the trial, defendant\u2019s newly appointed post-trial counsel failed to point to these deficiencies in trial counsel\u2019s performance as a basis for granting defendant a new trial. Defendant contends in addition that \u201c[t]o the extent that the issue could have been raised on direct appeal, [defendant] allege[s] that he was denied the effective assistance of appellate counsel.\u201d\nThe State initially argues that defendant has waived this issue by failing to raise it either in post-trial motions or on direct appeal. As noted, the purpose of a post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, and could not have been, adjudicated previously on direct appeal. People v. Haynes, 192 Ill. 2d at 464; People v. Towns, 182 Ill. 2d 491, 502 (1998). Issues that could have been presented on direct appeal, but were not, are waived. Haynes, 192 Ill. 2d at 465; Towns, 182 Ill. 2d at 503. However, the doctrine of waiver is relaxed where the alleged waiver stems from the incompetence of appellate counsel. People v. Mahaffey, 194 Ill. 2d 154, 171 (2000); People v. Whitehead, 169 Ill. 2d 355, 371 (1996). Here, defendant alleges not only that he was deprived of the effective assistance of trial and post-trial counsel, but also that his appellate counsel was ineffective for failing to raise the motion-to-suppress issue on direct appeal. We therefore address the merits of defendant\u2019s claim. People v. Simms, 192 Ill. 2d 348, 371-72 (2000).\nClaims of ineffective assistance of appellate counsel are evaluated under the same two-prong standard set forth in Strickland for assessing claims of ineffective assistance of trial counsel. Haynes, 192 Ill. 2d at 476; People v. Richardson, 189 Ill. 2d 401, 412 (2000).\n\u201c \u2018A defendant who contends that appellate counsel rendered ineffective assistance, e.g., by failing to argue an issue, must show that the failure to raise that issue was objectively unreasonable and that the decision prejudiced the defendant. Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel\u2019s appraisal of the merits is patently wrong. Accordingly, unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel\u2019s failure to raise them on appeal. People v. Childress, 191 Ill. 2d 168, 175 (2000); People v. West, 187 Ill. 2d 418, 435 (1999) (and cases cited therein).\u2019 \u201d Haynes, 192 Ill. 2d at 476, quoting People v. Easley, 192 Ill. 2d 307, 328-29 (2000).\nThe State argues that defendant cannot show Strickland prejudice here because, regardless of the merits of his insufficient-physical-description claim, the trial court judge found a separate, independent ground for denying defendant\u2019s motion to suppress: defendant was observed with a handgun \u201cin his hand, within the City of Chicago.\u201d According to the State, defendant\u2019s argument with regard to the physical description \u201cin no way weakens the second and alternative finding that [the judge] made when he denied [defendant\u2019s] motion to quash: Grady and [Conrail officer Theodore] Kurzweil had probable cause to arrest [defendant] as soon as they saw him running alongside [Cleveland] Johnson\u2019s car with a gun in his hand, in what appeared to be an attempt to enter the car and harm the driver.\u201d\nWith regard to this argument, defendant contends that Johnson \u201ccompletely contradicted\u201d Grady\u2019s and Kurzweil\u2019s testimony about the gun. Defendant points to Johnson\u2019s testimony at the pretrial hearing and at trial, in which, according to defendant, Johnson stated that defendant \u201chad not been carrying a gun.\u201d Defendant notes that Johnson did not see the gun until one of the Conrail officers took it from defendant.\nA careful reading of Johnson\u2019s testimony at the pretrial hearing and at trial shows that Johnson did not \u201ccompletely contradict\u201d the Conrail officers\u2019 testimony. In both his pretrial testimony and at trial, Johnson stated that he first saw the gun when it was in the officer\u2019s hands. However, he clearly stated that the gun was taken from defendant. In his pretrial testimony, the following exchange took place between defense counsel and Johnson.\n\u201cMR. KUNZ [Assistant Public Defender]: Did you see a gun?\nTHE WITNESS [Johnson]: The officer got it from *** him. That is when I [saw] it.\nMR. KUNZ: Did you see the officer take it from him?\nTHE WITNESS: I am looking at the officer when he\npulled it up from his jacket.\n* * *\nMR. KUNZ: And, before the officer took the gun, you had not seen it?\nTHE WITNESS: No.\nMR. KUNZ: Was it hidden by his jacket? Had it been hidden by his jacket?\nTHE WITNESS: It had to be, because I did not see it.\u201d Johnson gave similar testimony at trial, but he provided additional details. The following colloquy took place between the prosecutor and Johnson.\n\u201cMR. FRANKS [Assistant State\u2019s Attorney]: Describe the gun that you saw taken from the defendant?\nTHE WITNESS: It was a small caliber, dark gun. Looked to me like it was a .32.\nMR. FRANKS: When the officer was touching the\ndefendant or frisking him, did that officer\u2014\n* * *\nMR. FRANKS: Did that officer have a gun in his hands at that moment?\nTHE WITNESS: No.\nMR. FRANKS: Did you see that gun then for the first time when it was in the officer\u2019s hands?\nTHE WITNESS: That\u2019s the first time I [saw] it.\n* * *\nMR. FRANKS: Where was the gun taken from?\n* * *\nTHE WITNESS: He [took] the gun from under the man\u2019s jacket where it was pushed down the waist of his pants.\nMR. FRANKS: Did the officers [sic] have anything in his hands before he put his hands in the defendant\u2019s waist area?\nTHE WITNESS: Yeah, he put his gun away and then he put his hands on the man and started patting him down.\nMR. FRANKS: At the time he was patting him down, the officer had put his gun away?\nTHE WITNESS: That\u2019s right.\nMR. FRANKS: He had nothing in his hands at that time?\nTHE WITNESS: That\u2019s right.\u201d\nContrary to defendant\u2019s contention, Johnson made no explicit assertion that defendant was not carrying a gun\". Rather, as noted, Johnson\u2019s testimony indicated that he did not see the gun until one of the officers took it from defendant. This is consistent with what Grady and Kurzweil stated, particularly in light of Grady\u2019s testimony that the gun that the officers saw in defendant\u2019s right hand was below the level of the car window. This explains why Grady and Kurzweil, who were driving behind Johnson\u2019s car, were able to see the gun and Johnson was not. In addition, while Johnson stated that he first saw the gun when it was in the officer\u2019s hand, Johnson never wavered from his assertion that the gun was taken from defendant. We note in particular Johnson\u2019s testimony that he saw the officer put his own gun away before he searched defendant, and that the officer had \u201cnothing in his hands\u201d at that time. This appears to counter any suggestion that it was the officer who placed the gun in defendant\u2019s waistband.\nDefendant has failed to show that he suffered prejudice from any deficiency on the part of his trial counsel, post-trial counsel or appellate counsel in handling the motion to suppress. The circuit court had a valid basis for finding that there was probable cause to arrest defendant, and the court did not err in denying defendant\u2019s motion to suppress. There is thus no merit in defendant\u2019s claim that his trial counsel and post-trial counsel were ineffective. Further, because this underlying claim lacks merit, it was not incompetence on the part of appellate counsel to refrain from raising this issue on direct appeal. The appraisal of this issue by defendant\u2019s appellate counsel was not \u201c \u2018patently wrong.\u2019 \u201d Haynes, 192 Ill. 2d at 476, quoting Easley, 192 Ill. 2d at 329; Richardson, 189 Ill. 2d at 412. Accordingly, the trial court correctly dismissed this specific post-conviction claim without an evidentiary hearing.\nIII. Second Capital Sentencing Hearing The remainder of defendant\u2019s claims refer to his second capital sentencing hearing, which was conducted on remand from Harris I. We consider each of these claims in turn.\nA. Testimony of Phyllis Ham Garth Defendant argues that his counsel was ineffective for failing to call former Chicago police officer Phyllis Ham Garth as a witness during the eligibility phase of his second capital sentencing hearing. Defendant contends that Garth\u2019s testimony would have impeached the credibility of Theresa Woods, the State\u2019s chief witness, regarding whether defendant possessed the mental state required to render him death eligible. Section 9 \u2014 1(b)(6)(b) of the Criminal Code of 1961 provides that a defendant may be sentenced to death if he \u201ckilled the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm.\u201d (Emphases added.) Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(b)(6)(b).\nWe begin with a review of portions of the testimony given at trial and at the second sentencing hearing, along with relevant argument of counsel and findings of the trial court in the sentencing hearing. At trial, Woods testified that on February 10,1983, she and her employer, Jesse James, Sr., closed his tavern at about 2 a.m. and left the premises together between 3:30 and 4 o\u2019clock that morning. As they walked to their cars, they were approached by defendant, who grabbed Woods and pointed a gun at her head. Following defendant\u2019s instructions, James got into the driver\u2019s seat of his car, and Woods sat in the backseat on the driver\u2019s side. Defendant, who sat in the front passenger\u2019s seat, then ordered James to drive a short distance and park in a nearby alley. Once they had parked, defendant demanded $300 from James and Woods, threatening to kill them if they did not comply. Defendant explained that if he was caught he was going back to jail \u201cfor good,\u201d so it did not matter if he killed them.\nJames told defendant that he had some money back at the tavern, so they returned to that area and parked in the mouth of an alley with the car facing outward toward the street. Defendant told Woods to go to the tavern and get the money, and he warned her that he would kill James if she did not return within three minutes. Woods then ran into the tavern, grabbed paper currency from the cash register, and went back outside. Emerging from the tavern, she noticed that the car had pulled out of the alley and was parked next to the curb. Woods walked to the driver\u2019s side of the car, and defendant, who was still in the front passenger seat next to James, told her to get into the vehicle. James objected, asking why Woods had to get back in the car. Defendant told James to \u201cshut up\u201d and that \u201che was running this.\u201d According to Woods, defendant then pulled James toward him so they were facing each other, and defendant shot James.\nWoods attempted to run away from the car. As she was running she heard another gunshot and tripped and fell. She landed on her left side and rolled over onto her back. When she looked up, she saw defendant standing over her with the gun. Defendant said, \u201cYou bitch.\u201d Woods raised her hand to protect herself, pleading with him not to shoot, and rolled over onto her stomach. Woods heard another shot and then lay motionless, pretending to be dead. A short time later she heard footsteps running from the scene. Woods got up, saw that James was still alive, and noticed that the car had crashed into the window of a nearby storefront. She then ran into the tavern and called the police. It was then that she noticed she had been shot. The wound was in her right shoulder.\nAlso testifying at trial was Chicago police detective Geraldine Perry, who gave a somewhat different account of the incident. According to Perry, who spoke to Woods at Billings Hospital the day of the incident, Woods told Perry that when she emerged from the tavern with the money, she saw the car moving down the street and saw \u201csome movement in the front seat of the car.\u201d As Woods watched, she saw the car crash into the storefront. Woods did not tell Perry that she approached the driver\u2019s side of the car or that she heard any words spoken by James or defendant.\nAt defendant\u2019s second sentencing hearing, Woods gave essentially the same testimony that she gave at trial. She stated that when she emerged from the tavern with the money, the car in which Jesse James, Sr., and defendant were seated had already moved out of the alley and was parked next to the curb. Woods did not see the car moving, nor did she see the two persons in the front seat struggling. Woods also did not see the car go up over the curb and crash into the storefront window. It was not until after she had been shot that she noticed the car \u201chad moved up into the building.\u201d\nIn order to impeach this testimony by Woods, the defense called Detective Perry, who also gave essentially the same testimony that she gave at trial. According to Perry, Woods said that when she emerged from the tavern, she observed the car moving slowly along the street, and she saw movement of the two persons in the front seat. Woods also told Perry that she saw the car go up over the curb and crash into the storefront window.\nDuring argument in the first phase of the sentencing hearing, defense counsel referred to this testimony by Perry and stated:\n\u201c[It] suggests that there was a struggle going on in the car and that is certainly corroborated by the fact that the car rolled forward and crashed into a window. It contradicts any suggestion by the State\u2019s witness that this was in any way, shape, or form a cold-blooded killing.\u201d\nIn rebuttal, the State offered a different explanation. According to the State, it was reasonable to infer that the car was in gear when James was shot and that \u201c[t]he car simply moved as cars will move when [an] automatic transmission is in gear[,] and [it] went up the curb and bumped in the window and cracked the window. *** It does not mean that somebody was driving that car wildly after the shot was fired.\u201d\nAt the conclusion of this phase of the sentencing hearing, the judge found defendant eligible for the death penalty. He stated: \u201cThe Court\u2019s finding of eligibility will stand.\u201d\nBefore this court, defendant argues that his counsel was ineffective for failing to call former police officer Garth as a witness at the second sentencing hearing. Defendant contends that Garth\u2019s testimony \u201cwould not only have impeached the credibility of Woods\u2019 testimony but it also could have provided substantive evidence (under the excited utterance-spontaneous declaration exception to the rule against hearsay) that the shooting was a negligent or accidental act rather than an intentional or knowing one.\u201d Attached to defendant\u2019s amended post-conviction petition are a February 10, 1983, police report prepared by Officer Phyllis Ham (now Garth) and a \u201csecond affidavit\u201d of State Appellate Defender\u2019s office investigator Jonathan Lyon. According to these attachments, Garth and her partner were the first officers on the scene of the February 10, 1983, incident. Garth interviewed Woods, who Garth said was \u201cupset,\u201d and Garth was told by Woods that \u201cwhen she came out of the bar she observed a struggle inside the car after which the car crashed into a building.\u201d Defendant argues that if Garth\u2019s testimony had been presented, it is reasonably probable that the judge at the sentencing hearing \u201cwould have found that the State had failed to prove the requisite mental state beyond a reasonable doubt.\u201d\nThe State initially contends that defendant made \u201c [virtually\u201d the same claim on direct appeal in Harris II and that this court\u2019s decision as to this claim is res judicata as to this issue. In Harris II, defendant argued that his counsel was ineffective for failing to present Detective Perry\u2019s testimony \u201cas substantive evidence under the excited utterance exception to the hearsay rule\u201d (Harris II, 164 Ill. 2d at 348), rather than merely as impeachment of Woods\u2019 testimony. This court rejected defendant\u2019s ineffective assistance argument, concluding that defendant had failed to show that he was prejudiced by his counsel\u2019s failure to offer Perry\u2019s testimony as substantive evidence at the sentencing hearing. Harris II, 164 Ill. 2d at 349.\nThe purpose of a post-conviction proceeding is to allow inquiry into constitutional issues that have not been, and could not have been, adjudicated previously on direct appeal. Accordingly, determinations of a reviewing court on the prior direct appeal are res judicata as to issues actually decided. Towns, 182 Ill. 2d at 502; Whitehead, 169 Ill. 2d at 371. While defendant\u2019s argument in the case at bar is similar to the argument he raised about the Perry testimony in Harris II, the two contentions are not the same. In Harris II, defendant argued that Perry\u2019s testimony, which had already been presented as impeachment, should have been offered as substantive evidence as well. In other words, Perry\u2019s testimony would have carried more weight had it been introduced as substantive evidence. In the case at bar, defendant argues, similarly to his previous contention, that Perry\u2019s testimony should have carried more weight, but here the device by which the weight is to be added is different. In this instance, unlike Harris II, defendant complains that Garth\u2019s testimony was not presented at all. If it had been, defendant contends, it would have corroborated Perry\u2019s testimony and would have thereby given it greater weight. Because of this distinction between these contentions, we conclude that defendant\u2019s argument in the case at bar was not \u201cactually decided\u201d in Harris II, and res judicata does not apply. We therefore consider the merits of defendant\u2019s claim.\nUnder the Strickland standard, a defendant must establish not only that his counsel\u2019s performance was deficient, but also that the defendant suffered prejudice as a result. Morgan, 187 Ill. 2d at 529-30. Prejudice is shown if the defendant establishes \u201cthat there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nWe agree with defendant that Garth would have been a separate witness from Perry, and that Garth\u2019s testimony would have recounted a different interview with Woods. However, the gist of Garth\u2019s testimony would have been exactly the same as Perry\u2019s: that Woods, upon emerging from the tavern, observed a struggle inside the car and saw the car crash into the storefront. Even if Garth\u2019s testimony had been presented, it is not reasonably likely that the judge at the second sentencing hearing would have accepted defendant\u2019s theory that the shooting was accidental.\nIn considering defendant\u2019s similar claim in Harris II, we stated: \u201cthe prosecutor explained at the sentencing hearing [that] the more reasonable inference from the description of the offenses provided by Woods to police was that James was shot while the car was in gear, and that the vehicle rolled forward when the driver lost control.\u201d Harris II, 164 Ill. 2d at 349. In addition, we stated:\n\u201cOther evidence established that the shooting was not accidental. The defendant initially threatened to kill James and Woods because, he said, he had \u2018nothing to lose.\u2019 When Woods reentered the tavern to obtain money, the defendant said that he would kill James if she did not return shortly. When Woods came back to the car, the defendant rejected James\u2019 plea that Woods be allowed to go, saying that he was \u2018running this.\u2019 After James was shot, the defendant straddled Woods, said to her, \u2018You bitch,\u2019 and shot her at close range.\u201d Harris II, 164 Ill. 2d at 349.\nAt the conclusion of the second sentencing hearing, the circuit court judge stated that the murder of James was \u201c \u2018totally unnecessary,\u2019 \u201d suggesting that he did not accept defendant\u2019s accident theory. Harris II, 164 Ill. 2d at 347-48. The judge made this comment after hearing Perry\u2019s testimony in support of this theory during the first phase of the hearing. Garth\u2019s testimony, if presented, would have been to the same effect as Perry\u2019s. Given the \u201cother evidence\u201d establishing that the shooting was not accidental, it is not reasonably probable that Garth\u2019s testimony would have altered the result of the proceeding.\nNotwithstanding the foregoing, defendant points to People v. Pugh, 157 Ill. 2d 1 (1993). In Pugh, as in the case at bar, the defendant contended that his shooting of the victim was accidental and that his counsel was ineffective for failing to present evidence that he lacked the culpable (intentional or knowing) mental state required to render him eligible for the death penalty. We held in Pugh that the defendant was prejudiced by his counsel\u2019s errors, and we vacated his death sentence.\nPugh is distinguishable from the case at bar. In Pugh, the defendant entered a blind plea of guilty to felony murder, and he stipulated to his eligibility for the death penalty. This stipulation was entered based on defense counsel\u2019s incorrect belief that a finding of felony murder by itself rendered the defendant eligible for the death penalty. Defense counsel was unaware that the State also was required to prove that the defendant possessed the culpable mental state of intent or knowledge. Accordingly, \u201c[njone of defendant\u2019s evidence was presented by defense counsel at the first phase of sentencing because counsel believed such evidence was irrelevant once felony murder was established.\u201d Pugh, 157 Ill. 2d at 20.\nHere, by contrast, there was no misapprehension of the law on the part of defense counsel, nor was there any stipulation that defendant was eligible for the death penalty. Defendant in the instant case does not allege that counsel presented no evidence during the eligibility phase of the sentencing hearing. Rather, he complains that counsel did not augment the testimony that was presented by calling an additional witness who would have testified to precisely the same effect as did Perry. Given the \u201cother evidence\u201d establishing that the shooting was not accidental, we do not believe that defendant has shown that he was prejudiced by counsel\u2019s failure to augment Perry\u2019s testimony with Garth\u2019s. Therefore, the trial court correctly dismissed this post-conviction claim without an evidentiary hearing.\nB. Brady Claim\nDefendant argues that portions of the testimony of one of the State\u2019s witnesses in aggravation were false and that the State knew this testimony was perjurious. Defendant also contends that the State failed to disclose medical records showing that the testimony was false and thus violated the United States Supreme Court\u2019s decision in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Defendant\u2019s claim focuses on the testimony of John Szumigala, the victim of a 1971 robbery for which defendant received a four- to eight-year prison sentence. Szumigala testified at the sentencing hearing that defendant severely beat him during the 1971 robbery, and that as a result Szumigala sustained numerous injuries, both immediate and long-term. According to defendant, Szumigala\u2019s hospital records, which were not disclosed by the State, demonstrate that Szumigala exaggerated the extent of his injuries in his testimony.\nWe begin with a review of Szumigala\u2019s testimony at the 1992 sentencing hearing, along with other relevant evidence and the judge\u2019s conclusions. At the sentencing hearing, Szumigala stated that in February 1971 he was a 17-year-old student at the Goodman Theater in Chicago. At about 7:45 p.m. on February 19, 1971, he was crossing the Jackson Street bridge en route to the theater when he was approached by six young men, one of whom was defendant. According to Szumigala, defendant walked up and punched Szumigala in the stomach, and two others grabbed him and dragged him under the bridge. The group robbed him of $40, a watch, two rings, and a coat. Defendant then punched Szumigala in the stomach several more times. At about this time, one of the other young men in the group told defendant that they had what they wanted and should leave. According to Szumigala, defendant replied: \u201cNo. I\u2019m going to kill this guy.\u201d Defendant then slammed Szumigala\u2019s head into a brick wall, kicked him in the right eye, and kicked him again in the nose and forehead. Another member of the group rolled Szumigala over and said, \u201cHe\u2019s dead.\u201d Szumigala then \u201cplayed dead\u201d until he was sure the group was gone. He was subsequently taken to the hospital.\nSzumigala said his hands were \u201cvery badly cut up,\u201d his shoulders were \u201cpretty well scraped,\u201d and he had \u201cabsolutely blurred vision\u201d in his right eye. According to Szumigala, his right eye had been forced up into its socket, with pieces of stone and gravel lodged in the eye and the eye canal. A surgical procedure was performed to remove \u201cthe rocks and rubble out of the eye and out of the eye canal.\u201d In addition, Szumigala\u2019s right shoulder was dislocated and \u201cwas put back into [its] socket at the hospital that night.\u201d Szumigala added that his fingers, his right knee, and his right ankle were dislocated.\nTestifying further at the sentencing hearing, Szumigala described the long-term effects of the 1971 incident. He said he had difficulty distinguishing certain colors, and this had prevented him from pursuing his chosen career as a costume and set designer. Szumigala added that, since the incident, he has suffered recurring, \u201calmost violent\u201d headaches, as well as chronic dislocation of his right shoulder. In addition, he lost \u201ca great deal of dental work on the right side of [his] face.\u201d According to Szumigala, his teeth had to be wired following the beating. He also stated that he has difficulty reading for more than half an hour at a time because of pressure on his eyes.\nDefense counsel attempted to impeach Szumigala with his 1971 testimony at trial in the robbery case. Szumigala was asked whether, during that testimony, he had stated that one of the young men who attacked him had said he was going to kill him. Szumigala answered that he had said that. However, the State stipulated that such a statement did not appear in the transcript of the 1971 testimony.\nThe State introduced into evidence a certified statement of defendant\u2019s conviction in the Szumigala robbery, as well as a certified statement of his conviction for a 1970 burglary for which he was sentenced to five years\u2019 probation. Also introduced were certified statements of defendant\u2019s convictions in two armed robberies.\nDefendant himself made a statement on his own behalf during the sentencing hearing. He essentially denied having committed the present offenses, assuring the court repeatedly that he was not a violent person. On cross-examination, defendant was questioned about the 1971 robbery of John Szumigala. Defendant acknowledged that he was present at the scene on the night of the robbery. According to defendant\u2019s version of the incident, defendant was alone on February 19, 1971, when Szumigala approached him and said something that provoked a fight. In the course of the fight, defendant kicked Szumigala in the face. When asked how many times he kicked Szumigala in the face, defendant responded: \u201cIt couldn\u2019t have been no more than once.\u201d Defendant asserted that once he had won the fight, he left.\nAt the conclusion of the evidence and argument, the trial court sentenced defendant. The judge referred to evidence presented in mitigation regarding defendant\u2019s childhood and family, observing that \u201cthere are some rips and tears in the canvas of his life\u201d such as the \u201cviolence between his mother and father\u201d that are \u201ccertainly negatives in Mr. Harris\u2019 life.\u201d However, the judge pointed to testimony from defendant\u2019s sister that none of the other children in the family were convicted of felonies. The judge stated: \u201c[N]o one else *** found that based upon that family life *** they must go out and commit crimes and be involved in criminal activity.\u201d\nTurning to the killing of James in 1983, the judge stated: \u201c[D]espite Mr. Harris\u2019 indication on the stand that he did not commit this offense, based upon the records, based upon my opportunity to observe the *** surviving witness who testified, Ms. Woods, there is no question in this court\u2019s mind *** that Mr. Harris did in fact kill Mr. James and that he in fact shot Ms. Woods.\u201d The judge called defendant\u2019s murder of James \u201ctotally unnecessary.\u201d The judge also referred to \u201cthe beating that was administered to\u201d John Szumigala \u201c20 some years ago.\u201d He termed defendant\u2019s explanation of this incident \u201cjust unbelievable.\u201d\nIn sentencing defendant, the trial court judge stated:\n\u201cI have searched this record. I have searched my mind. I have listened [to] and looked at Mr. Harris. I have looked at his art work. I have listened to his family, looking, searching, and hoping in all candor that there would be some mitigating circumstance to preclude the imposition of the death penalty. Despite that diligent search, I have been unable to find any such mitigating circumstance.\u201d\nAccordingly, the trial court sentenced defendant to death for the murder of James.\nBefore this court, the State contends that defendant waived his Brady claim by failing to file a post-sentencing motion following the second sentencing hearing. Defendant concedes that no such motion was filed. Ordinarily, waiver would apply. People v. Szabo, 113 Ill. 2d 83, 93 (1986). However, as noted, the rules of waiver are relaxed where the facts relating to the claim do not appear on the face of the original appellate record. Mahaffey, 194 Ill. 2d at 171. Here, the facts forming the core of defendant\u2019s claim are in Szumigala\u2019s medical records, which first appeared in the record as an attachment to defendant\u2019s amended post-conviction petition. We therefore address the merits of defendant\u2019s claim.\nSzumigala\u2019s medical records from Henrotin Hospital, where he was treated after the robbery, provide little or no support for many of his injury claims. The records show that Szumigala complained of pain in his right shoulder in the emergency room, but the only reference to dislocation is a notation that his right shoulder had been dislocated one year earlier. There does not appear to be any indication that the shoulder was dislocated when he was admitted to the hospital, or that hospital personnel put it back into its socket.\nThe \u201cPhysical Examination\u201d section of the records lists major areas of the body, with notes next to each area that was injured. Next to \u201cHead-Eyes,\u201d the records note the \u201cpresence of an abrasion at the occipital region, right upper and lower eyelids with hematoma, small lacerations of the right upper eyelid, subconjunctival hemorrhage present, vision not impaired.\u201d (Emphasis added.) Regarding other areas of the body, the notes indicate, inter alia, \u201ctenderness and discoloration at the right side of the nose,\u201d \u201chematoma upper lip with laceration,\u201d and \u201cslight tenderness\u201d to the xiphoid, or breast bone. There are no notes of injuries next to \u201cSkin,\u201d despite Szumigala\u2019s testimony that his hands were cut and his shoulders were abraded, or next to \u201cBones-Joints-Muscles,\u201d despite Szumigala\u2019s testimony that his right knee, shoulder and ankle were dislocated. In addition, though Szumigala testified at the sentencing hearing that defendant punched him in the stomach numerous times, the notation next to \u201cAbdomen\u201d states: \u201cnon-remarkable.\u201d\nThere also does not appear to be any indication in the medical records that Szumigala\u2019s eye was out of place, or that a surgical procedure was required to repair injuries. In addition, despite Szumigala\u2019s testimony that he suffered \u201cblurred vision\u201d in his right eye, the notation next to \u201cHead-Eyes\u201d stated: \u201cvision not impaired.\u201d A similar notation appeared in the \u201cProgress Notes\u201d section, which stated that, as of February 20, 1971, the day after the robbery, Szumigala had \u201cno headache or dizziness or any visual disturbance.\u201d\nAs previously noted, defendant also attached to his amended post-conviction petition an opinion letter from a physician stating that the medical records did not support Szumigala\u2019s allegations regarding his long-term injuries. This letter, by Burton Russman, M.D., stated:\n\u201cThere is no evidence in the records that [Szumigala] had any specific eye injury other than a laceration of the lid, as well as a subconjunctival hemorrhage and some contusions about the eye. X-rays were completely negative for any fractures, and it was stated in the records that \u2018He has no headache or dizziness or any visual disturbance.\u2019 *** When he was discharged from the hospital, the discharge note was as follows: \u2018No complaints, alert and oriented, swelling much better, doing fine, to go home now.\u2019 As to Mr. Szumigala\u2019s alleged loss of color vision, there is no evidence that he had such a loss, nor evidence to show that he had any peripheral field of vision loss. *** In short, I do not find that the records bear out the allegations of Mr. Szumigala\u2019s permanent injury, as they would certainly have appeared by the time he was discharged from the hospital.\u201d (Emphasis added.)\nThe United States Supreme Court held in Brady that the State has an affirmative duty in a criminal prosecution to disclose evidence favorable to a defendant, where the evidence is material either to guilt or to punishment. Coleman, 183 Ill. 2d at 391; Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. There are three situations to which the general rule of Brady applies. People v. Simms, 192 Ill. 2d 348, 388-89 (2000); Coleman, 183 Ill. 2d at 391. In the first, the undisclosed evidence demonstrates that the prosecution\u2019s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. In this situation, the test for materiality is whether there is any reasonable likelihood that the false testimony could have affected the judgment. Simms, 192 Ill. 2d at 389. The second situation is characterized by a pretrial request for specific evidence followed by the prosecution\u2019s noncompliance with the request. In the third situation, the defense makes either no discovery request or only a general request for \u201cBrady\u201d material, and exculpatory matter is withheld by the State. \u201cIn the second and third situations, favorable evidence is material and constitutional error results from its suppression by the government, if the evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.\u201d Simms, 192 Ill. 2d at 389. In addition, \u201cthe cumulative effect of the suppressed evidence also informs the materiality determination.\u201d Simms, 192 Ill. 2d at 389; Coleman, 183 Ill. 2d at 393.\nIn situations such as the case at bar that involve both the use of perjured testimony and the failure to disclose Brady material, the test for materiality is the former of the two tests set forth above: whether there is any reasonable likelihood that the false testimony could have affected the judgment. We explained in Coleman why it is this standard, which is more lenient to the defendant, that is to be applied in such situations:\n\u201c[Wjhere undisclosed Brady material undermines the credibility of specific testimony that the State otherwise knew to have been false, the standard of materiality applicable to the first [United States v.] Agurs[, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976),] category applies. In such circumstances, the failure to disclose is \u2018part and parcel of the presentation of false evidence to the jury and therefore \u201ccorrupt[s] *** the truth-seeking function of the trial process,\u201d [citation] and is a far more serious act than a failure to disclose generally exculpatory material.\u2019 United States v. Vozzella, 124 F.3d 389, 392 (2d Cir. 1997). Therefore, the standard of materiality in this case is whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.\u201d Coleman, 183 Ill. 2d at 394.\nIn the instant case, we may affirm the circuit court\u2019s decision to dismiss defendant\u2019s Brady claim without an evidentiary hearing only if we can conclude, as a matter of law, that Szumigala\u2019s allegedly false testimony does not fall within this strict standard of materiality. Simms, 192 Ill. 2d at 391; Coleman, 183 Ill. 2d at 394.\nIn considering this question, we note that Szumigala, who was a prominent witness in aggravation, provided damaging testimony. While the State presented evidence that defendant had numerous prior convictions, Szumigala\u2019s testimony provided the only evidence that defendant had injured another person prior to the shooting of James and Woods. Szumigala\u2019s testimony thus provided the only evidence that defendant was a chronically violent offender.\nExcluding Szumigala\u2019s testimony, the evidence in aggravation and mitigation that was presented at the sentencing hearing was closely balanced. The evidence in mitigation included the testimony of seven witnesses, three of whom were correctional officers who had contact with defendant. In addition, a report prepared by a mitigation specialist was admitted into evidence, as were two letters in support of defendant, one from a daughter and the other from his mother-in-law. The correctional officers described defendant as a \u201cmodel inmate\u201d and \u201ca very good prisoner.\u201d\nAnother factor bearing on our decision regarding the Brady claim is the judge\u2019s comments during sentencing. In explaining his decision to impose the death penalty, the judge specifically mentioned Szumigala\u2019s testimony. The judge stated:\n\u201cThe conduct on the bridge on Jackson Street some 20 years ago, the beating that was administered to this individual, the comments that Mr. Szumigala had testified about other people saying we got what we want and let\u2019s go, and the defendant\u2019s position that I am going to kill this guy, the defendant\u2019s indication to me in open court or indication to [Assistant State\u2019s Attorney] Mr. Meyer in response to questions that he didn\u2019t do that, that this was just an encounter[,] that it was a fair fight and that he happened to win[,] is just unbelievable.\u201d\nHaving reviewed the entire transcript, we cannot say that \u201cthere exists no reasonable likelihood that the allegedly false testimony [c]ould not have affected the [judge\u2019s decision] to impose the death penalty.\u201d Simms, 192 Ill. 2d at 392.\nNotwithstanding the foregoing, the State argues that it did not allow false testimony to stand uncorrected. The State contends that Szumigala\u2019s medical records do not establish that his testimony was false. In addition, the State challenges Russman\u2019s affidavit, asserting that it \u201cwould be probative only if Russman could state that, based on his own examination of Szumigala and his own medical knowledge, Szumigala could not possibly have suffered the injuries that he claimed.\u201d\nIn making these arguments, the State is contesting the truth of defendant\u2019s allegations that Szumigala gave false testimony and that Szumigala\u2019s medical records demonstrate that this testimony was false. The difficulty with the State\u2019s contentions is that they ignore the procedural posture of this case. As noted, this appeal is before us as a result of the circuit court judge\u2019s dismissal of defendant\u2019s amended post-conviction petition without an evidentiary hearing. This action by the judge came in response to the State\u2019s motion to dismiss the petition. By seeking to dismiss the petition, as opposed to answering it, the State assumed the truth of the factually supported allegations contained in the petition, at least for purposes of the motion. Coleman, 183 Ill. 2d at 390; Towns, 182 Ill. 2d at 503; Brisbon, 164 Ill. 2d at 244-45. The State, as movant, thus eliminated all factual issues from the inquiry, and the sole question remaining is whether the petition\u2019s allegations are sufficient, as a matter of law. Coleman, 183 Ill. 2d at 390. It is premature for the State to contest factual matters at this juncture. Such determinations are to be made at the evidentiary stage of the post-conviction proceeding. Coleman, 183 Ill. 2d at 390-91.\nIn determining the sufficiency of defendant\u2019s allegations, we look to the support provided for them. In this instance, defendant has provided a copy of Szumigala\u2019s medical records, as well as a copy of Russman\u2019s opinion letter. These materials support defendant\u2019s Brady allegations, the truth of which may not be determined at this stage of the proceedings.\nWe hold that defendant\u2019s Brady allegations are sufficient to make a substantial showing of a constitutional violation and to require an evidentiary hearing to determine if the violation did in fact occur. The circuit court\u2019s dismissal of these particular claims without an evidentiary hearing was improper. We express no opinion as to the actual merits of these claims. Rather, we reverse and remand with instructions for the circuit court to proceed to the evidentiary stage on defendant\u2019s Brady claims. See Simms, 192 Ill. 2d at 392. We note in passing that there appears to be some dispute as to whether the State was in possession of Szumigala\u2019s medical records at the time when defense counsel requested discovery as to such records. This question, of course, will be determined in the evidentiary hearing.\nC. Defense Counsel\u2019s Alleged Failure to Investigate\nIn a related argument, defendant contends that his defense counsel was ineffective for failing to use Szumigala\u2019s medical records to challenge Szumigala\u2019s testimony at the second sentencing hearing. Defendant asserts that these records were readily available by subpoena, and he argues that if counsel had properly investigated, he would have obtained them and could have used them to attack Szumigala\u2019s testimony. According to defendant, this \u201cfailure to investigate and present a readily available defense\u201d was professionally unreasonable. He argues in addition that if this defense had been presented, there is a reasonable probability that he would not have been sentenced to death.\nAs noted, a claim of ineffective assistance of counsel is evaluated according to the two-prong test set forth in Strickland, which requires a showing that counsel\u2019s performance was deficient and that defendant suffered prejudice as a result. \u201cBoth prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of counsel.\u201d Coleman, 183 Ill. 2d at 397.\nIn order to satisfy the first element of this test, a defendant must demonstrate that his counsel\u2019s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Regarding the application of this standard to an alleged failure to investigate, the Court in Strickland stated:\n\u201cThese standards [for determining whether counsel\u2019s performance was deficient] require no special amplification in order to define counsel\u2019s duty to investigate ***. *** [Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel\u2019s judgments.\u201d Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.\nThus, any decision by counsel to conduct a less-than-complete investigation would fall within the wide range of professionally competent assistance, so long as the decision were supported by a reasonable professional judgment.\nAt defendant\u2019s first sentencing hearing, which took place in 1984, Szumigala did not testify. The evidence presented with reference to Szumigala consisted of a certified copy of defendant\u2019s conviction for the 1971 robbery of Szumigala; the testimony of Chicago police detective Bernard Stahl, who investigated the robbery and whose testimony comprised about six transcript pages; and a stipulation to the testimony of the physician who treated Szumigala in the hospital on the night of the robbery. The injuries described in this stipulation, which was read into the record by the prosecutor, correspond fairly closely to the injuries mentioned in Szumigala\u2019s medical records. According to the stipulated testimony, Szumigala suffered contusions of the right eye, nose, upper lip and chest, as well as a laceration to the right upper eyelid. In addition, he had a possible cerebral concussion. X rays of Szumigala\u2019s chest, jaw, shoulder, skull and other areas were negative with respect to fractures. According to the stipulation, \u201cthe injuries were confined to the tissues themselves.\u201d The stipulation makes no mention of any dislocation of Szumigala\u2019s shoulder or any other joint or of his eye being out of place.\nDefendant acknowledges that \u201c[a]t Mr. Harris\u2019 first sentencing hearing, the State presented a relatively accurate account of Mr. Szumigala\u2019s rather minor injuries.\u201d However, defendant argues that because the State introduced such evidence at the first sentencing hearing, defense counsel \u201cshould have anticipated that Mr. Szumigala would be a witness or at least that the State would attempt to introduce evidence of his injuries\u201d at the second sentencing hearing. According to defendant, counsel\u2019s failure to follow up and obtain Szumigala\u2019s medical records so that he could use them to challenge Szumigala\u2019s testimony constituted deficient performance on counsel\u2019s part.\nAs Strickland instructs, we evaluate the reasonableness of counsel\u2019s challenged conduct \u201cfrom counsel\u2019s perspective at the time,\u201d taking all of the circumstances into consideration. Strickland, 466 U.S. at 689, 690, 80 L. Ed. 2d at 694, 695, 104 S. Ct. at 2065, 2066. Prior to the second sentencing hearing, defense counsel filed two motions for discovery pertaining to this matter. As defendant asserts in his amended post-conviction petition, one of these motions \u201cspecifically requested discovery regarding the testimony of aggravation witnesses,\u201d and the other included a request for any reports of experts made in connection with the case, including the results of physical examinations. In response to counsel\u2019s discovery requests, the State turned over a copy of Szumigala\u2019s 1971 testimony in the robbery trial, and defense counsel used this testimony to cross-examine Szumigala in the second sentencing hearing. However, as indicated previously, the State did not disclose Szumigala\u2019s medical records. Given that these records were not disclosed, and given the \u201crather minor\u201d nature of the injuries described in the stipulation in the first sentencing hearing, it would be professionally reasonable for counsel to conclude that further investigation regarding Szumigala\u2019s injuries was unnecessary and that counsel\u2019s investigative energies would be more profitably directed elsewhere. As noted, counsel presented extensive mitigation evidence at the second sentencing hearing, including the testimony of seven witnesses. In addition, a report prepared by a mitigation specialist was admitted into evidence.\nApplying \u201ca heavy measure of deference to counsel\u2019s judgments\u201d (Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066), and taking all of the circumstances into consideration (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066), we conclude that defendant has failed to establish that his counsel\u2019s performance fell below an objective standard of reasonableness. The failure to obtain Szumigala\u2019s medical records was not an error \u201cso serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment\u201d (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064). Because defendant has not shown that his counsel\u2019s performance was deficient, he has failed to satisfy the first prong of the Strickland test. Therefore, his claim of ineffective assistance of counsel must fail. Morgan, 187 Ill. 2d at 530. The trial court correctly dismissed this post-conviction claim without an evidentiary hearing.\nD. Victim Impact Evidence\nFinally, defendant contends that his appellate counsel was ineffective for failing to challenge on direct appeal the State\u2019s use of victim impact evidence from an unrelated crime. The evidence in question is Szumigala\u2019s testimony as to the injuries he suffered as a result of the 1971 robbery. According to defendant, in 1993 when his appeal in Harris II was filed, there was a strong possibility that such evidence was inadmissible, particularly as it related to long-term effects such as Szumigala\u2019s alleged color blindness. In defendant\u2019s view, his appellate counsel should have recognized this possibility and included this issue in his brief on appeal.\nAs noted, a claim of ineffective assistance of appellate counsel is evaluated under the same two-prong standard set forth in Strickland for assessing claims of ineffective assistance of trial counsel. Haynes, 192 Ill. 2d at 476; Richardson, 189 Ill. 2d at 412. Where a defendant contends that appellate counsel was ineffective for failing to raise an issue, the defendant must show that this failure was objectively unreasonable and that the defendant suffered prejudice as a result. Both prongs of this test must be satisfied in order to prevail on an ineffective assistance claim. Morgan, 187 Ill. 2d at 530. In order to satisfy the first prong, i.e., that counsel\u2019s performance was deficient, the defendant must demonstrate that \u201ccounsel\u2019s representation fell below an objective standard of reasonableness.\u201d Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Determinations as to whether this standard has been met are based on \u201cthe facts of the particular case, viewed as of the time of counsel\u2019s conduct.\u201d Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. In addition, judicial scrutiny of counsel\u2019s performance is \u201chighly deferential.\u201d Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. There is a strong presumption that counsel\u2019s assistance was adequate and that counsel \u201cmade all significant decisions in the exercise of reasonable professional judgment.\u201d Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.\nIn the case at bar, the determination of whether appellate counsel\u2019s performance was deficient turns to a large extent on the state of the relevant law in 1993 when the appeal in Harris II was filed. In Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991), the United States Supreme Court held that evidence about the victim of a murder and about the impact of the murder on the victim\u2019s family is admissible during the penalty phase of a capital trial. Payne, 501 U.S. at 827, 115 L. Ed. 2d at 736, 111 S. Ct. at 2609. The Court in Payne did not address the question of whether victim impact evidence from unrelated crimes was admissible. People v. Hope, 184 Ill. 2d 39, 56-57 (1998) (Miller, J., concurring in part and dissenting in part). The decision in Payne overruled Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2527 (1987), and South Carolina v. Gathers, 490 U.S. 805, 104 L. Ed. 2d 876, 109 S. Ct. 2207 (1989), which had held that victim impact evidence was inadmissible in a capital sentencing proceeding.\nA few months after the Supreme Court\u2019s decision in Payne, this court decided People v. Howard, 147 Ill. 2d 103 (1991), which adopted the holding in Payne. In Howard, similarly to the case at bar, the defendant complained about the State\u2019s use of victim impact evidence at his capital sentencing hearing. This evidence consisted of testimony from the victims of other offenses committed by the defendant. While the court in Howard \u201cleft unanswered\u201d the question of the admissibility of victim impact evidence from other crimes (Hope, 184 Ill. 2d at 49), it nevertheless found \u201cno error\u201d in the presentation of this evidence in the case before it (Howard, 147 Ill. 2d at 158). The court in Howard affirmed the defendant\u2019s death sentence.\nGiven the decisions in Payne and Howard, a reasonably competent attorney in 1993 might very well have decided not to raise on direct appeal the issue of whether other-crimes evidence was admissible. Based on Payne and Howard, there did not appear to be a strong possibility that such evidence would be held inadmissible. \u201c \u2018Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel\u2019s appraisal of the merits is patently wrong.\u2019 \u201d Haynes, 192 Ill. 2d at 476, quoting Easley, 192 Ill. 2d at 329.\nNotwithstanding the foregoing, defendant points to two 1992 decisions by this court in which, according to defendant, we \u201cgave indications that victim impact evidence from a prior unrelated offense might well be inadmissable [sic].\u201d We disagree. Neither People v. Johnson, 149 Ill. 2d 118 (1992), nor People v. Mitchell, 152 Ill. 2d 274 (1992), considered the admissibility of victim impact evidence from other crimes. In Mitchell the defendant challenged the admission during sentencing of life photographs of the two murder victims. The court in Mitchell found that this issue had been waived and concluded that the admission of the photographs was not plain error. In explaining this decision, the court noted that \u201cthe Supreme Court in Payne recently held that victim impact evidence is admissible during sentencing proceedings in capital cases.\u201d Mitchell, 152 Ill. 2d at 338. In Mitchell, as in Payne, the challenged evidence dealt with victims of the crime in question, not with victims of other crimes committed by the defendant. The court in Mitchell also stated:\n\u201cWe caution, however, that Payne does not give the prosecution free rein to introduce and argue anything it wants. As the Payne court warned: \u2018In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.\u2019 \u201d Mitchell, 152 Ill. 2d at 338, quoting Payne, 501 U.S. at 825, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608.\nGiven the specific evidence upon which the court in Mitchell was ruling, i.e., life photographs of the victims of the crime in question, we do not believe this language could be taken to indicate, as defendant contends, \u201cthat victim impact evidence from a prior unrelated offense might well be inadmissable [sic]\u201d. The key to the import of this language is the sentence that is quoted from Payne. In Payne, the purpose of this sentence was to help explain that not all victim impact evidence from the crime in question is per se admissible. The Court\u2019s precise holding as to this issue was that \u201cthe Eighth Amendment erects no per se bar\u201d to such evidence. Payne, 501 U.S. at 827, 115 L. Ed. 2d at 736, 111 S. Ct. at 2609. The Court explained:\n\u201cWe think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.\u201d (Emphasis added.) Payne, 501 U.S. at 825, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608.\nThe quoting of this italicized sentence in the passage from Mitchell indicates that the court in Mitchell was simply stating what the Court in Payne had stated: not all victim impact evidence from the crime in question is automatically admissible during sentencing. There is nothing in the passage quoted from Mitchell to indicate that the court was referring to victim impact evidence from other crimes.\nIn Johnson, the defendant challenged the State\u2019s use at his sentencing hearing of testimony from the father of the murder victim. In this testimony, the father \u201cexplained the effect of the victim\u2019s death upon him and other family members.\u201d Johnson, 149 Ill. 2d at 152. The court in Johnson rejected the defendant\u2019s argument, noting that the Supreme Court in Payne had held that such evidence was admissible. The court also cited this court\u2019s decision in Howard and concluded that \u201c[t]o the extent Payne and Howard permit the introduction of victim impact evidence, we concur.\u201d Johnson, 149 Ill. 2d at 153.\nHere again, as in Mitchell, the challenged evidence concerns the victims of the crime in question, not the victims of other crimes committed by the defendant. Similarly to Mitchell, the decision in Johnson cannot be taken to indicate \u201cthat victim impact evidence from a prior unrelated offense might well be inadmissable [sic].\u201d Indeed, because it mentions Howard, the decision in Johnson might be seen as supporting the admissibility of such evidence.\nThere is nothing in Johnson or Mitchell that persuades us to alter our view as to the state of the law on other-crimes evidence at the time when defendant\u2019s appeal in Harris II was filed. Based on the legal landscape in 1993 regarding this issue, a reasonably competent attorney might very well have declined to raise this question on direct appeal.\nDefendant also points to an affidavit of Charles Hoffman, his appellate counsel in his appeal in Harris II. In this affidavit, which was attached to defendant\u2019s amended post-conviction petition, Hoffman states that his failure to raise on direct appeal the admissibility of Szumigala\u2019s victim impact testimony was not a \u201cstrategic decision.\u201d Rather, Hoffman indicates that he failed to read the Howard decision carefully enough to realize that the issue of the admissibility of such other-crimes evidence had been left unanswered in Howard. Accordingly, at the time he prepared defendant\u2019s brief on appeal in Harris II, Hoffman \u201cassumed that Mr. Szumigala\u2019s testimony about the impact of the crime committed upon him was admissible under the reasoning of Payne and Howard.\u201d\nDefendant appears to argue that this affidavit demonstrates that appellate counsel\u2019s performance was deficient. However, as we held in People v. Sanchez, 169 Ill. 2d 472, 490 (1996), \u201c[Counsel\u2019s own admission of ineffectiveness is not binding on us or determinative of the issues raised here.\u201d As Strickland instructs, counsel\u2019s performance is assessed against an \u201cobjective standard of reasonableness.\u201d Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, cited in Sanchez, 169 Ill. 2d at 490. In evaluating defendant\u2019s claim of ineffective assistance of appeHate counsel, the appropriate question is not whether defendant\u2019s counsel himself viewed his performance as deficient, but rather whether a reasonably competent attorney, in the same circumstances, would have decided not to raise the admissibility of other-crimes evidence on direct appeal. As we have indicated, we believe that a reasonably competent attorney in 1993 might well have made such a decision. Viewing appellate counsel\u2019s performance \u201cas of the time of counsel\u2019s conduct\u201d (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066), and taking into consideration all of the relevant circumstances, we conclude that counsel\u2019s performance fell within the \u201cwide range of professionally competent assistance\u201d (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066) and therefore was not deficient. Because defendant has failed to satisfy the performance prong of the Strickland test, his claim of ineffective assistance of appellate counsel is without merit. Morgan, 187 Ill. 2d at 530. Therefore, the trial court correctly dismissed this post-conviction claim without an evidentiary hearing.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County dismissing defendant\u2019s amended post-conviction petition without an evidentiary hearing is affirmed in part and reversed in part. The circuit court is instructed to hold an evidentiary hearing with respect to defendant\u2019s Brady claims. As to the dismissal of the remaining claims, the circuit court\u2019s order is affirmed.\nCircuit court judgment affirmed in part and reversed in part-, cause remanded'.\nJUSTICE RARICK took no part in the consideration or decision of this case.\nNajdowski had a close friend who was a corporate attorney; Gray\u2019s father was a corporate attorney; and Dolan had a cousin who was an attorney.\nSzumigaIa\u2019s testimony consumed some 30 transcript pages.\nIn People v. Hope, 184 Ill. 2d 39 (1998), this court explicitly held that the unforeseen effects of a defendant\u2019s prior crimes upon the victims of those crimes are too attenuated to be relevant to the defendant\u2019s sentencing for the murder in question. Hope, 184 Ill. 2d at 52-53. Accordingly, such other-crimes victim-impact evidence is inadmissible at sentencing. We note that this decision was filed in 1998, five years after the filing of the appeal in Harris II, and therefore has no relevance to an assessment of counsel\u2019s performance in 1993.",
        "type": "majority",
        "author": "CHIEF JUSTICE McMORROW"
      },
      {
        "text": "JUSTICE KILBRIDE,\nconcurring in part and dis-\nsenting in part:\nThe majority correctly reverses in part the judgment of the circuit court and remands this cause for an evidentiary hearing on defendant\u2019s Brady claims. Nevertheless, for the reasons set forth in my dissents in People v. Hickey, 204 Ill. 2d 585, 636-40 (2001) (Kilbride, J., dissenting), and People v. Simpson, 204 Ill. 2d 536, 581-85 (2001) (Kilbride, J., dissenting), I believe that the majority fails to grant defendant the constitutionally required relief of a new trial conducted in accordance with the new supreme court rules governing capital cases. The procedures in capital cases prior to this court\u2019s adoption of the new rules were inherently unreliable and did not adequately protect a defendant\u2019s constitutional rights. Consequently, since the new rules were promulgated to address the deficiencies of constitutional dimension that regularly occurred under the old system, the rules must be applied retroactively to all capital cases. See People v. Caballero, 179 Ill. 2d 205, 220-21 (1997).",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "JUSTICE KILBRIDE,"
      }
    ],
    "attorneys": [
      "Martin S. Carlson, of the Office of the State Appellate Defender, of Chicago, and Anne E. Carlson, of North-brook, for appellant.",
      "James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee G. Goldfarb and Sally L. Dilgart, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "(No. 88468.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES HARRIS, Appellant.\nOpinion filed December 19, 2002.\nRARICK, J., took no part.\nKILBRIDE, J., concurring in part and dissenting in part.\nMartin S. Carlson, of the Office of the State Appellate Defender, of Chicago, and Anne E. Carlson, of North-brook, for appellant.\nJames E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee G. Goldfarb and Sally L. Dilgart, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0001-01",
  "first_page_order": 13,
  "last_page_order": 77
}