delivered the opinion of the court:
The defendant, Charles Albanese, filed petitions under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) challenging separate murder convictions in McHenry and Lake Counties. Charles Albanese was tried and convicted in the circuit court of McLean County for the 1980 murders of his father and his wife's grandmother and the attempted murder of his brother. The trial had been transferred to McLean County from McHenry County. A jury sentenced him to death. This court affirmed the conviction and sentence. (People v. Albanese (1984),
Five issues are presented by the defendant for review: (1) whether he was denied effective assistance of counsel at each trial; (2) whether he was denied effective assistance of counsel at each sentencing hearing; (3) whether recent evidentiary disсoveries render scientific evidence admitted during the trials unreliable; (4) whether the Lake County circuit court erred in denying the post-conviction petition without an evidentiary hearing; and (5) whether the Illinois death penalty statute is applied in a racially discriminatory manner and is therefore unconstitutional.
The factual background of each case was presented at length in each of the direct appeals (Albanese I and Albanese II), and we will therefore discuss only those facts relevant to the issues before our court for review. Briefly, however, Charles Albanese was convicted of murdering and attempting to murder, by the use of arsenic, members of his and his wife’s families for the purpose of financial gain.
A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment. (People v. James (1986),
For purposes of this review, we are combining our discussion of the defendant’s assistance-of-counsel claims. The defendant contends that he was denied effective assistance of counsel both at the trial and at the sentencing phase of the proceedings in both counties. This court squarely dealt with the issue of еffective assistance of counsel at the Lake County trial in Albanese II, in which we specifically adopted the Supreme Court’s rule for challenges to effectiveness of counsel enunciated in Strickland v. Washington (1984),
We therefore turn now to an application of the Strickland standard to those phases not previously reviewed by this court to determine if defendant has made a case for ineffective assistance of counsel. Strickland advances a two-component standard. The first component is to prove that counsel’s representation fell below an objective standard of reasonableness such that the trial results were unreliable. Under the second component, the defendant must prove that he was prejudiced by the unprofessional conduct; that is, he must show that, but for the attorney’s unprofessional errors, the results of the trial would have been different. (Strickland,
“[A] court need not determine whether counsеl’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (466 U.S. at 697 ,80 L. Ed. 2d at 699 ,104 S. Ct. at 2069 .)
The question we must answer, then, is, Does defendant’s claim of ineffectiveness present an indication that he suffered sufficient prejudice to overturn the trial results? We find that there was no such prejudice.
As noted in Strickland, “[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt.” (
Under the Supreme Court guidelines, we look first to the component of prejudice. In order to determine if prejudice exists, we must consider whether, if defendant’s trial counsel did commit all of the errors alleged, the defendant wаs prejudiced; that is, would the results or decision of the jury have been different had the alleged errors not been committed. We find that even if we accept the defendant’s contention that his attorney did commit each and every one of the indicated errors, he was not prejudiced by them, either singly or in their totality. The uncontroverted evidence against Charles Albanese is strong enough to support the conviction even if we were to accept that his attorney’s actions or inactions cоnstituted error. For example, it is undisputed that the defendant possessed arsenic at the time of the victim’s deaths, and arguments about the date of delivery could not change that fact; there is no dispute that as a result of the deaths the defendant experienced financial gains that eased a financially tight situation, and moving numbers from one side of the ledger to another could not have altered that fact; additionally, there is no dispute that witnesses did appear on behalf of Charles Albanese аt the sentencing phase of the trial, that their input was taken into consideration by the judges and/or the jury and cumulative testimony could not have added anything new.
Although we are not required to review the case further under the Supreme Court’s guidelines, we note that our review of the record indicates only that Charles Albanese’s present attorney would have handled the trials somewhat differently. Defendant’s brief concedes that trial strategy is not subject to review; our decisions have held that errors in judgment or trial strategy do not establish incompetence (People v. Gaines (1984),
Finally, we also note that defendant had a full post-conviction evidentiary hearing in McHenry County in which the issue of ineffective assistance was presented. The circuit court found that the petitioner failed to establish ineffective representation by trial counsel. The court found that defendant’s case was bаsed upon speculation, conjecture and second-guessing. That court’s review of the record found that the petitioner’s attorney was an experienced criminal law trial attorney who had made reasonable investigation and preparation under the circumstances and who provided representation that adequately made the adversarial testing process work. The court concluded that the fact that the result was unsatisfactory to the petitioner did not make the reрresentation ineffective. Determinations by the trial judge will not be disturbed unless manifestly erroneous (People v. Griffin (1985),
We next turn to defendant’s allegations that recent evidentiary discoveries render scientific evidence admitted during the trials unreliable. Specifically, defendant contends that the 1985 closing of the Illinois Department of Public Health Toxicology Laboratory because of various serious inadequacies makes analysis for arsenic poisoning done by the lab in 1981 on the three murder victims unreliable. The State’s case, the defendant contends, centered on this false and unreliable scientific analysis, and the reviewing court should now accept this “new evidence” and grant defendant a new trial.
To begin our analysis оf this argument, we first note that the Post-Conviction Hearing Act specifies that the petitioner must “clearly set forth the respects in which petitioner’s constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.) Additionally, “[t]he [trial] court may receive proof by affidavits, depositions, oral testimony, or other evidence.” (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 6.) Proof or verification of the closing of the toxicology lab or of its allegedly unprofessional workmanship was never accepted as substantive evidence before the trial court in the McHenry County proceeding. Instead, various reports about the lab were made a part of the record only for the purpose of preservation of the record to indicate the type of information upon which an expert witness had relied in reaching an opinion. These reports, preserved in the record in such manner, included copies оf the Director of Public Health Thomas Kirkpatrick, Jr.’s March 26, 1985, report, the Chemical Toxicology Institute Director Randall C. Baselt’s May 24, 1985, report, and the St. Louis University Medical Center School of Medicine, Division of Forensic and Environmental Pathology Director Alphonse Poklis’ April 3, 1986, report. The last report named above was done at the request of defendant’s counsel, while the first two were undertaken as. part of a State investigation of the toxicological laboratory. No witnesses or affidavits were proffered to vouch for the authenticity, truthfulness or accuracy of any of these reports. The State contends that the defendant has failed to come forward with the kind of evidence necessary to support his claims of unreliable or false evidence. However, the testimony of the State’s own witness, Dr. Conibear, at the post-conviction hearing in McHenry County, put into the record during cross-examination her opinion that the lab had experienced “problems” at the time of the defendаnt’s trial. The allegation is a serious one and warrants our court’s review to assure that the defendant did indeed receive a fair trial. Our review did incorporate a study of the Kirkpatrick, Baselt and Poklis reports and, additionally, we took note of the fact that the toxicology laboratory was closed in 1985. Would this information, if taken as new substantive evidence to be admitted for its truth and accuracy, warrant a new trial for the defendant? We find that it would not.
The standard for a new trial based on the discovery of new evidence is discussed in People v. Molstad (1984),
“To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.” (16 Ill. 2d at 374 .)
While the above-named reports and the closing of the lab were not discoverable beforе the trial, problems with lab procedures might have been difficult for a nontechnician or a nonscientist to discover, and the reliability of the tests could be considered material, we do not find that any of the information — even assuming, for the sake of review, its truth and accuracy — is “of such conclusive character that it will probably change the result on retrial.” (Emphasis added.)
The tests to disclose levels of arsenic utilized by the State in the Albanese trials were performed by the lab in 1981. The problems, studies, and reports which culminated in the closing of the lab occurred in 1985. A com- , píete review of the reports gave no indication or suggestion that the lab was experiencing extensive or grave problems as far back as 1981, and we will not presume or assume that problems uncovered in 1985 necessarily existed four years earlier. We note also that the reference during the McHenry County post-conviction hearing testimony of Dr. Conibear to “problems” at the lab was tempered by the accompanied аdmission that she was unfamiliar with the lab’s procedures, equipment, or methods and that she was not familiar with the methodology used in determining levels of arsenic poisoning. Additionally, we note that while the proffered reports do indicate the problems found in 1984 and 1985, they provide other evidence that the lab was functioning adequately in 1981. A report included in defendant’s brief, “Toxicology Final Report,” notes at page 34 that “[t]he most consistent analytical errors made by the Illinois Department of Public Health Toxicology Laboratory occurred in blood alcohol analysis.” Yet, Dr. Baselt’s report, which ultimately recommended the closing of the lab, noted that “[r]eview of quarterly U.S. Department of Transportation Blood Alcohol Survey results for the period September, 1972 to October, 1984 indicate that the laboratory performed very well” and then went on to note the progressive development of problems during 1984 and 1985. These reports indicate that an area of scientific analysis which was found by the State to havе experienced the most problems in 1985 appears to have been experiencing few problems in 1981. Finally, we also note that Dr. Baselt’s report made no mention of the Albanese case, though it did make specific mention of another arsenic-poisoning case. We will not stretch these findings to now include what they originally did not include based on defendant’s mere conjecture.
Thus, even taking note of the reports and acknowledging that the lab was closed in 1985, defendant has not produced evidence which would convince us that the conditions which existed in 1985 requiring the closing of the lab were present four years earlier when the lab performed the Albanese tests.
Even if we were to assume, however, for the sake of argument, that the test results were questionable or unreliable, we do not believe that that fact would warrant a new trial in this case. As defendant properly notes, the case against him was essentially a circumstantial one. No one piece of evidence was central to the State’s case against Charles Albanese; it was, rather, the cumulative effect which convinced the juries of Mr. Albanese’s guilt and which supported our affirmances in Albanese I and Albanese II. Our court and the lower courts on retrial would still be left with all of the other facts presented: that Mr. Albanese had obtained arsenic and that he at one point lied to the police about possessing arsenic; that the noted symptoms of the three murder victims coincide with known symptoms of lethal and sublethal arsеnic poisoning; that the symptoms of the victim of attempted murder evidence sublethal doses of arsenic; that the defendant was experiencing financial problems (at the very least he was in arrears on mortgage and child support payments) that were eased by receipt of funds from * the estates of the victims; that the defendant used his position in the family company to defraud the company and his family in order to obtain additional funds after the death of his father and during the incapacitating illness of his brother; further, that he attempted on two occasions to hire others to kill his brother and his brother’s wife; that he authored and sent anonymous letters attempting to implicate his brother as the murderer. The point to be made here is that the tests from the lab were not the pivotal linchpin in the State’s case against Mr. Albanese, they were merely one of several links in the chain of circumstantial evidence. As we have already noted in Albanese II, a conviction can be sustained on circumstantial evidence. (
In closing our review on this issue, we found no case exactly on point with the case at bar; however, one somewhat analogous case was this court’s decision in People v. Cornille (1983),
Having examined the defendant’s third proffered issue from various angles, we find that the recent “evidentiary discoveries,” i.e., the circumstances and conditions leading to the closing of the lab, do not substantiate his contention that scientific evidence offered during his trials was unreliable.
Defendant next contends that Lake County erred in denying his post-conviction petition without an evidentiary hеaring. It is well established that a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 6; People v. Silagy (1987),
Lastly, defendant contends that the Illinois death penalty statute is unconstitutional because it is applied in a racially discriminatory manner. Defendant bases this allegation on the results of a statistical study published in the Stanford Law Review which show that a suspect accused of killing a white victim in Illinois is four times more likely to receive the death penalty than is a suspect accused of killing a black. (See Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing & Homicide Victimization, 37 Stan. L. Rev. 27 (1984).) This issue and study were fully discussed in two of our recent decisions in which we held that “defendants] cannot make a substantial showing of a violation of *** constitutional rights based on the Gross study.” (People v. Stewart (1988),
For the reasons stated herein, the McHenry County circuit court’s denial and the Lake County circuit court’s dismissal of defendant’s post-conviction petitions are affirmed. The clerk of this court is directed to enter an order fixing Wеdnesday, January 25, 1989, as the date on which the sentence of death entered in each circuit court shall be executed at the Stateville Correctional Center at Joliet. The defendant shall be executed by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 119 — 5). A certified copy of this order shall be furnished by the clerk of this court to the Director of Corrections and to the wardens of the Illinois State penitentiaries at Menard and Joliet.
No. 63896 — Affirmed.
No. 6UU08 — Affirmed.
JUSTICE STAMOS took no part in the consideration or decision of this case.