delivered the opinion of the court:
In February 1986, defendant, Paul West, was indicted in the circuit court of Cook County for murder pursuant to sections 9—1(a)(1) and (a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2)). A jury found defendant guilty after a trial. The circuit court, however, ordered a retrial after granting defendant’s motion for a new trial. Defendant waived his right to a jury, and the circuit court found defendant guilty as charged. Defendant elected to have a jury determine whether he should receive the death penalty, and the jury subsequently found defendant eligible for death under section 9—1(b)(3) of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(3)). The jury further concluded, after hearing the evidence in aggravation and mitigation, that there were no mitigating factors sufficient to preclude the imposition of the death penalty, and the circuit court sentenced defendant to death. This court affirmed the conviction and sentence on direct appeal, and the United States Supreme Court denied certiorari. People v. West,
Defendant thereafter timely filed a petition, which was later amended, for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). The circuit court dismissed the amended petition without an evidentiary hearing, and this appeal followed. 134 Ill. 2d R. 651.
BACKGROUND
Our opinion on direct appeal sets forth the details surrounding defendant’s conviction, and we will not repeat them here. Defendant’s conviction stemmed from the January 29, 1986, murder of three-month-old Shardae Harris, who died from internal injuries resulting from a fractured skull and a lacerated liver. We will refer to additional facts from the trial as needed during the course of our opinion.
Following the completion of direct review proceedings, defendant filed a petition for post-conviction relief in the circuit court on October 18, 1991. The petition was later amended on September 5, 1996. Attached to the petition were numerous affidavits submitted by various members of defendant’s family and a neuropsychological evaluation prepared by Michael Gelbort, Ph.D. We will summarize only those claims that are raised by defendant in this appeal.
In the petition, as amended, defendant initially argued that he received ineffective assistance of counsel in that his trial attorney had failed to retain an independent forensic expert. Defendant also alleged that he had received ineffective assistance of counsel during his direct appeal because appellate counsel had failed to argue that the State did not prove, beyond a reasonable doubt, the existence of the statutory aggravating factor that rendered him death-eligible. Defendant also challenged appellate counsel’s competency in failing to argue on direct appeal that the circuit court erred when it refused to accept his jury waiver at sentencing. Defendant further alleged that he was denied effective rеpresentation during his sentencing hearing because counsel failed to investigate and present certain mitigating evidence, including evidence that defendant suffered from organic brain syndrome. Finally, defendant claimed that he was denied a fair sentencing hearing when the prosecutor misrepresented to the jury during closing arguments that defendant might be released from prison if he was not sentenced to death and that appellate counsel was ineffective in failing to raise the issue on direct appeal.
Defendant also filed, in conjunction with his amended petition, a motion seeking funds for the appointment of various experts who would substantiate the claims raised in his petition. Specifically, defendant requested funds for (i) a forensic expert to evaluate the forensic records in the case, (ii) a psychological expert to perform a PET brain scan in order to confirm and expand upon the neuropsychologiсal diagnosis offered by Dr. Gelbort, and (iii) a mental health expert to review the evidence of defendant’s abusive and dysfunctional childhood in order to augment the affidavits submitted by defendant’s family. Defendant also renewed a previously denied motion for the depositions of Michael King, who served as trial counsel during defendant’s trial, and Vincent Wagner, who served as private co-counsel during the sentencing hearing. The circuit court denied all of the motions.
The State moved to dismiss the amended petition, and the circuit court held a hearing on the motion. The court subsequently granted the State’s motion, and this appeal followed.
ANALYSIS
The matter is now before this court on dismissal of defendant’s amended petition for relief under the Post-Conviction Hearing Act. A post-conviction action is a collateral attack on a prior conviction and sentence. People v. Brisbon,
Trial Errors
Defendant argues that the circuit court erred in dismissing his claim concerning trial counsel’s failure to retain a forensic expert. According to defendant, the defense theory of the case at trial was that the victim was killed, not by defendant, but by her mother, Shirley Harris. In furtherance of this theory, defendant claims that it was essential for counsel to show that the external injuries on the victim’s body could have been as old as two weeks, thereby predating the time when the victim started to live with defendant. Defendant maintains that, under these circumstances, trial counsel’s decision not to present such expert testimony fell below the range of reasonable professional assistance. Moreover, defendant asserts that, had such an expert been called to testify, a reasonable probability exists that the outcome of his trial would have been different. In a somewhat related claim, defendant contends that, at a minimum, the post-conviction court’s denial of his request for a forensic expert “interfered with [defendant’s] ability to develop his claim and denied [him] a full and fair opportunity to litigate his claim.” Defendant states that “such evidence would show that the several burns and bruises in fact were injuries that occurred previous to the time that petitioner knew the victim.”
The State initially asserts that this argument is procedurally defaulted because the defendаnt did not raise it on direct appeal. We disagree. In this proceeding, defendant is attempting to take issue, not with what trial counsel did (which was clearly apparent from the face of the record), but with counsel’s decision not to call a forensic expert. See Kokoraleis,
The success of such a claim, however, is dependent upon the strength of the supporting affidavits to defendant’s petition, viewed in light of the original trial record. We are, of course, aware that at the dismissal stage of these proceedings, all well-pleaded allegations in the petition are to bе taken as true; however, those allegations must be supported by the original trial record or by the petition’s accompanying affidavits. In this case defendant supplied neither the circuit court nor this court with any supporting affidavits or exhibits that support the conclusory allegations contained in defendant’s petition. Defendant claims that the circuit court’s denial of his request for a forensic expert unfairly denied him the opportunity to present such supporting evidence. Therefore, we must initially determine whether the circuit court erred in denying defendant’s motion.
This court has held that the granting of this type of motion is a matter that rests with the discretion of the trial judge. People v. Henderson,
In order to evaluate this contention, a review of the еvidence adduced at trial is necessary. The victim’s mother, Shirley Harris, testified that she moved the victim into defendant’s two-story apartment on Friday, January 24, 1986. Shirley first noticed several bruises on the victim’s back on Saturday, January 25, 1986, after she returned from a neighbor’s house. Shirley questioned defendant, who had been home with the victim, about the injuries. Defendant told her that “some man” must have come into the building and beat the victim. Two days later, Shirley again noticed additional bruises on the victim’s chest. On the day of the victim’s death, Shirley went to school in the morning and returned home in the early afternoon. Upon her arrival, she checked on the victim, who appeared to be fine. Later in the afternoon, Shirley and defendant “went upstairs” to prepare dinner. The victim remained in defendant’s room in the “downstairs” part of the building. Shirley stated that while she and defendant were preparing dinner, defendant went downstairs by himself to get a cigarette and remained there for approximately 20 minutes. He returned, and the couple ate dinner. About one hour later, Shirley went downstairs to check on the victim. She found the infant, who was lying in a chair, dead.
Shirley further testified that she told defendant that they had to take the victim to the hospital. Defendant refused and told her that they had to “sit down and plan this.” He suggested that they bury the victim in the backyard and tell people that a kidnapping had occurred. Eventually, defendant allowed Shirley to go to the hospital, but only after Shirley had promised defendant that she would tell the doctors that the victim had died of pneumonia and had fallen out of bed. However, when Shirley arrived at the hospital, she told the first doctor that she saw that defendant had killed the victim.
According to the police witnesses who were called to the hospital to investigate the homicide, defendant initially denied any involvement in the victim’s death. He told police that an intruder must have entered the building and killed the victim while defendant and Shirley were upstairs. Upon investigation, however, police found no evidence of a forcible entry into defendant’s building. Defendant then gave police a statement in which he admitted that he had, several days before the victim’s death, struck her two or three times with a leather belt in an effort to “calm her down.” Defendant further admitted that, on the day of the victim’s death, defendant and Shirley were upstairs preparing to eat dinner. The victim was downstairs at this time. At some point, defendant went downstairs to get a cigarette. The victim was crying, which defendant found “irritating” because it was “getting on [his] nerves.” He then picked the victim up and shook her to “calm her down.” In so doing, defendant hit the victim’s head on a dresser. While shaking the victim, defendant then dropped her onto the floor. When he picked her up and put her on a couch, he noticed that she was coughing and gagging. Defendant became frightened because he did not know what to tell Shirley. He returned upstairs, but did not tell Shirley what had оccurred. Later on, both he and Shirley were watching television when Shirley heard the victim coughing and went to check on her. Shirley attempted to resuscitate the victim, but her efforts failed.
Defendant testified in his own defense at trial. Defendant maintained that he and Shirley had watched television during the afternoon of January 29, 1986. Defendant then went upstairs, by himself, to prepare dinner. When he later returned downstairs, he saw Shirley holding the victim in her arms. Defendant repeatedly asked Shirley what was wrong with the victim, who appeared to defendant to be coughing and gagging. Defendant told Shirley that they would have to take the victim to the hospital. He denied that he ever told Shirley that they should bury the baby in the backyard. Defendant also claimed that Shirley had told him, in May of 1985, that she did not want her baby. Defendant denied ever striking the victim or causing the injuries that resulted in her death. Moreover, defendant explained that he had been physically abused by police officers during his interrogation аnd that, in order to prevent further abuse, defendant decided to do what the police told him to do. To that end, he memorized details of a confession, which had been given to him by the police and repeated the story in the seven-page written statement that he later gave to an assistant State’s Attorney. Defendant believed that Shirley had been abusing the baby before she had moved into defendant’s home and that she, knowing that he had been previously incarcerated, had planned all along to implicate him in the victim’s death. Defendant also provided the stipulated testimony of his neighbor, Shirley Gleeson, who, if called to testify, would have stated that defendant and Shirley Harris both visited her on Saturday, January 25, 1986, at 10 p.m. and stayed for about five minutes.
The medical evidence concerning the victim’s cause of death and injuries was presented by way of a stipulation between defense counsel and the prosecutor. Both agreed to present thе trial judge, who was sitting as the trier of fact, with the transcript of the testimony of Dr. Barry Lifschultz, the forensic pathologist who performed the autopsy on the victim and who had testified at defendant’s first jury trial. At that time, Dr. Lifschultz stated that he had performed the autopsy on the victim on January 30, 1986. Upon examination, Dr. Lifschultz discovered 73 external injuries on various parts of the victim’s body. Of these, seven could be characterized as either burns or abrasions. Of these seven, two appeared on the victim’s chest. The remainder were on her back and left knee. Dr. Lifschultz stated that the cause of death was due to internal injuries which resulted from blunt trauma to the head and abdomen. On cross-examination, defense counsel asked Dr. Lifschultz what stage of healing the two external chest injuries were in. He replied that those injuries could have been more than five days old, i.e., inflicted before January 25, 1986, but could not have been older than two weeks, i.e., inflicted no earlier than January 16, 1986. On redirect examination, the prosecutor asked if the internal injuries that caused the victim’s death could have been inflicted two weeks before death. Dr. Lifschultz indicated that the internal injuries were recent, meaning that they had not yet begun to heal at the time of the autopsy.
As the foregoing demonstrates, defense counsel succeeded in raising the possibility that certain of the external injuries could have been inflicted at some time prior to January 24, 1986, the date the evidence established that the victim moved into defendant’s building. Therefore, we disagree with defendant that an independent forensic expert was needed to present evidence that the victim’s injuries were two weeks old rather than several days old. The record establishes that Dr. Lifschultz readily admitted that some of the injuries were in the healing stages, indicating that they were not of recent origin. He also readily stated that some injuries could have been as old as two weeks. What we must consider here is whether the appointment of a forensic expert would have helped the post-conviction court assess defendant’s allegation of ineffective assistance of trial counsel. We think not.
Assuming such an expert would have been appointed and, assuming further, that such an expert would testify that some of the injuries were two weeks old (as defendant contends), we fail to see how this would demonstrate constitutionally ineffective trial assistance. Claims of ineffective assistance of counsel are analyzed under the familiar two-prong standard enunciated in Strickland v. Washington,
Decisions concerning which witnesses to call at trial and what evidence to present on defendant’s behalf ultimately rest with trial counsel. People v. Ramey,
Contrary to defendant’s position, our review of the record reveals that trial counsel’s strategy cannot be deemed as so unsound as to lead us to believe that he did not fulfill his constitutional obligation to provide a meaningful adversarial testing of the State’s case. By stipulating to Dr. Lifschultz’s original trial testimony, defense counsel achieved the very goal defendant now urges, i.e., counsel adduced circumstantial evidence that the victim had been abused prior to her moving in with defendant. During his cross-examination of Dr. Lifschultz, defense counsel asked about the possibility that some of the victim’s external injuries could have been as old as two weeks. Dr. Lifschultz did not discount the fact that some of the injuries could have been that old. We will not second-guess counsel’s decision to adduce this evidence through the use of the very doctor who, not only was an expert in pathology, but also performed the victim’s autopsy and personally examined the victim’s injuries.
Moreover, even if we were to assume that counsel’s decision on this matter was deficient, we remain unconvinced that the forensic expert’s testimony, if presented, would have created the requisite “reasonable probability” that the outcome of the trial would have been different. As noted above, trial counsel was able, during his cross-examination of Dr. Lifschultz, to bring out the fact that some of the victim’s external injuries were older than others. Counsel further argued this point to the trial judge during closing. Thus, the additional testimony that defendant now suggests should have been presented would only have been cumulative of the findings related to the trier of fact by Dr. Lifschultz. In other words, the evidence that defendant says an independent expert would have provided (and would have corroborated the defense theory of the case) was in the trial record, in thе form of Dr. Lifschultz’s testimony. For this reason, we cannot say that, had trial counsel presented the testimony of an independent forensic expert, a reasonable probability exists that the trial’s outcome would have been different. '
In light of the above, we hold that defendant’s post-conviction allegations concerning trial counsel’s failure to retain a forensic expert do not warrant the granting of an evidentiary hearing. Moreover, the circuit court did not abuse its discretion in denying defendant’s request for a forensic expert.
Sentencing Errors
Defendant argues that the circuit court incorrectly dismissed his first claim of ineffective assistance of counsel on direct appeal. In that claim, defendant alleges that he was denied effective representation on direct review because his appellate attorney did not argue that the State failed to prove, beyond a reasonable doubt, the existence of a statutory aggravаting factor necessary to establish his eligibility for the death penalty.
The State responds that review of this claim is procedurally barred because it could have been raised on direct appeal. As we noted above, the scope of post-conviction review is limited to constitutional matters that have not been, and could not have been, previously adjudicated. We agree with the State that this type of argument is normally apparent from the face of the trial record and, as such, could have been raised in defendant’s direct appeal. However, defendant specifically alleged in his amended post-conviction petition that appellate counsel’s failure to raise this issue represents ineffective assistance of appellate counsel, a claim that is cognizable under the Act. People v. Mack,
Claims of ineffective assistance of appellate counsel are measured against the same standard as those dealing with ineffective assistance of trial counsel. People v. Coleman,
When a capital sentencing hearing is conducted before a jury, a defendant can be found eligible for the death penalty only if the jury unanimously finds that the State has proven beyond a reasonable doubt that defendant was at least 18 years of age at the time of the commission of the offense and that at least one statutory aggravating factor exists. Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(f), (g); People v. Simms,
As noted above, the crux of defendant’s ineffective-assistance claim is that the evidence of death-eligibility was insufficient to support the jury’s verdict. The standard of review to be applied is whether, after viewing all of the evidence in the light most favorable tó the prosecution, any rational trier of fact could have found the elements necessary to establish defendant’s eligibility for the death penalty beyond a reasonable doubt. People v. Pasch,
At the eligibility phase of the sentence hearing, the State first presented the testimony of Detective Thomas McCarthy, who stated that in January and February 1977 he was involved in the homicide investigation of Gladys Jones. During the course of that investigation, defendant was arrested and charged in connection with the murder. Detective McCarthy identified defendant in court as the man arrested in the Jones case. Detective McCarthy then stated that he was in the circuit court of Cook County on February 23, 1978, when defendant “plead [sic] guilty” and received a 14-year sentence. According to Detective McCarthy, defendant pled guilty to “murder.”
Detective McCarthy also testified that he was involved in the January 1986 investigation of the homicide of Shardae Harris. Detective McCarthy stated that defendant was arrested and charged in connection with that murder. Detective McCarthy added that he was in the circuit court on March 24, 1987, when defendant was found guilty of the Harris murder. Moreover, the Harris murder, according to Detective McCarthy, was “a separate and distinct murder from the first murder of Gladys Jones.” Detective McCarthy identified People’s Exhibit 1, a Xerox copy of defendant’s birth certificate, which established defendant’s date of birth as January 1, 1959. McCarthy also identified People’s Exhibit 2, which was a certified statement of defendant’s conviction for the murder of Gladys Jones, a murder referred to by the prosecutor as the “first” murder.
The parties then agreed to present the remainder of the evidence by way of stipulation. First, the parties agreed that Linda Madison, if called to testify, would state that she was an official court reporter for the circuit court of Cоok County and that she was in court on March 24, 1987, when defendant testified that he was 27 years old. The parties also agreed that “if Mr. Richard Kurz, Clerk of the Circuit Court of Cook County, in Judge Ma-hon’s courtroom were called to testify, he would testify that on March 24, 1987, [defendant] was found guilty of murder in that he, without lawful justification, intentionally and knowingly beat and killed Shardae Harris with his hands. And that he was found guilty of that count of the information in this courtroom on that date.” The court then admitted into evidence both exhibits, and the State rested its case. Defendant did not offer any evidence.
Following closing arguments, the jury returned a verdict unanimously finding beyond a reasonable doubt that defendant had attained the age of 18 at the time he committed the offense of murder and that the defendant had been convicted of murdering two or more individuals as the result of either an intent to kill more than one person or of separate intentional and knowing acts.
Defendant believes that the above evidence does not establish beyond a reasonable doubt that he possessed the requisite mental state with respect to the 1977 murder of Gladys Jones. He maintains that the certified copy of conviction entered upon his plea of guilty to the murder of Gladys Jones is insufficient, in and of itself, to establish that, in causing Jones’ death, he acted with intent or knowledge of death or great bodily harm. The certified copy of conviction is not a part of the record on appeal. In this regard, we note the following stipulation entered into by the State and defendant and filed with this court on May 4, 1999:
“The parties, through their undersigned counsel, stipulate that People’s Exhibit Number 2 that was introduced at the sentencing hearing in this cause is a certified copy of conviction that stated that [defendant] Paul West, had been convicted of the 1977 murder of Gladys Jones under Ill. Rev. Stat. 1977, ch. 38, par. 9—1(a). The parties further stipulate that nothing in People’s Exhibit Number 2 indicates whether the conviction was under Ill. Rev. Stat. 1977, ch 38 par. 9—1(a)(1), 9—1(a)(2), or 9—1(a)(3). The parties agree that either party can withdraw its stipulation if People’s Exhibit 2 is located and made a part of the record in this case.”
The parties have not sought to withdraw this stipulation.
Our review of the record reveals that the evidence presented at the hearing clearly established that defendant was 18 years old and had been convicted of two or more murders. Defendant’s birth certificate is proof that defendant had attained the age of 18 at the time of the murder for which the death penalty was sought. Moreover, both the testimony of the witnesses and the documentary evidence established that defendant had twice been convicted of murder. This court has held that the term conviction, as used in section 9—1(b)(3), means “ ‘a judgment of conviction *** entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury’” People v. Franklin,
The State, relying on People v. Thompkins,
In our view, cases such as Thompkins and Shatner are not сontrolling under the circumstances presented in the case at bar. Here, we do not have a jury’s general verdict rendered after the jury was fully instructed on the various types of murder upon which defendant was originally charged. Instead, we have a certified copy of conviction entered upon a plea of guilty. What cannot be discerned from the certified copy of conviction (or from the stipulation of the parties filed in this court) is under what theory of murder the judge in 1978 accepted defendant’s plea. At the time of defendant’s 1978 conviction, a person could be found guilty of murder under three different theories, two of which required a specific mens rea and the third, felony murder, which required none. See Ill. Rev. Stat. 1977, ch. 38, par. 9—1(a). Without more information, we cannot presume that defendant pleaded guilty to intentional or knowing conduct because we do not know if the State even charged him with such conduct. This is so because the State did not present any evidence from which the presumption could have been raised or the necessary inference been made. See People v. McDonald,
We note that this court was presented with a very similar challenge to the sufficiency of the evidence in People v. Jоhnson,
Unlike the prosecution in Johnson, the State here failed to offer into evidence the indictment or the information thаt was used to charge defendant with the Jones murder. We, therefore, cannot say that the jury was “apprised” that defendant’s plea applied to either a knowing or an intentional murder. We simply lack any evidence of record that establishes under what theory of murder defendant was charged or convicted. Indeed, our review of the record reveals that not one scintilla of evidence was ever presented to the jury during the State’s case in chief during the eligibility phase of the hearing with respect to the issue of defendant’s mens rea at the time of the Jones murder.
1
Detective McCarthy testified only that he was involved in the Jones homicide investigation and that defendant was arrested and subsequently pled guilty for that murder. Detective McCarthy never once revealed any of the facts surrounding the Jones murder from which the jury may have inferred that the defendant’s actions which resulted in his murder conviction arose from an intent to kill or were committed with knоwledge of death or great bodily harm. Nor did any of the witnesses who testified by way of stipulation reveal any facts from which the requisite mens rea could be inferred with respect to the Jones murder. See Hope,
Notwithstanding the above, the State contends that, during rebuttal closing argument, the prosecutor told the jury that defendant had “been convicted twice of two intentional murders.” Although the State concedes that elsewhere in the closing argument the prosecutor omitted any reference to the requisite mens rea, the State nevertheless maintains that the rebuttal argument served to “set the record straight” by informing the jury that “the State had proved [defendant] committed two intentional murders.” The State also points out that the jury here was adequately instructed as to all of the necessary elements concerning eligibility under section 9—1(b)(3) and returned a legally correct verdict form which found that defendant possessed the requisite mental state. In light of the above, the State contends that “there was sufficient evidence upon which the jury could base its finding of eligibility.” This argument, however, falls wide of the mark.
Initially, counsel’s closing argument is not evidence (People v. Henderson,
Finally, the State points out that evidence presented by the prosecution during the aggravation and mitigation phase of the hearing established that defendant either intentionally or knowingly killed Jones. In so arguing, the State relies on Cabana v. Bullock,
Cabana holds that the eighth amendment’s proportionality inquiry requires that “at some point in the [state court] process, the requisite factual finding as to the defendant’s culpability [must be] made.” Cabana,
In essence then, the State asks this court to find defendant death-eligible based on evidence that was adduced at the second stage of the sentence hearing. We decline to do so. We have recently held that the Illinois capital sentencing statute does not permit a court of review to usurp the jury’s role as sentencer without damaging defendant’s due process rights. People v. Shaw,
In view of the foregoing, we believe that had appellate counsel challenged the sufficiency of the evidence with respect to the jury’s finding of death-eligibility on direct appeal, the challenge would have been successful. While we are cognizant of the fact that appellate attorneys are not required to raise every conceivable argument on appeal, we believe that counsel’s failure to raise this sufficiency of the evidence argument fell below an objective standard of reasonableness associated with рrofessional norms. We further hold that defendant has shown the requisite prejudice under Strickland by establishing that, had the argument been raised, the claim would have been meritorious. The circuit court, therefore, should have granted defendant post-conviction relief, as a matter of law, on this claim.
Having found that the State failed to establish defendant’s death-eligibility beyond a reasonable doubt, we must next determine what relief must be afforded to defendant. We believe that the result in this case is dictated by tenets announced by this court some 13 years ago, in People v. Davis,
“Although principles of double jeopardy generally do not apply to sentencing determinations (North Carolina v. Pearce (1969),395 U.S. 711 ,23 L. Ed. 2d 656 ,89 S. Ct. 2072 ), the defendant correctly observes that they may be applicable in a capital sentencing hearing (Arizona v. Rumsey (1984),467 U.S. 203 ,81 L. Ed. 2d 164 ,104 S. Ct. 2305 ; Bullington v. Missouri (1981),451 U.S. 430 ,68 L. Ed. 2d 270 ,101 S. Ct. 1852 ). We note that the capital sentencing procedures of this State share many of the characteristics that the Supreme Cоurt has found significant in applying principles of double jeopardy to those sentencing determinations. (See Arizona v. Rumsey (1984),467 U.S. 203 , 209-11,81 L. Ed. 2d 164 , 170-71,104 S. Ct. 2305 , 2310; Bullington v. Missouri (1981),451 U.S. 430 , 438,68 L. Ed. 2d 270 , 278-79,101 S. Ct. 1852 , 1858.) For example, in the sentencing proceeding here, the State was required to prove, as a prerequisite for a sentence of death, the existence of a statutory aggravating circumstance beyond a reasonable doubt. (See Ill. Rev. Stat. 1979, ch. 38, par. 9—1(f).) Moreover, the usual rules of evidence governed that determination, and the discretion of the sentencing authority — in this case, a jury — was carefully guided. (See Ill. Rev. Stat. 1979, ch. 38, pars. 9—1(e), (g).) The sentencing proceeding was essentially ‘a trial on the issue of punishment’ (Bullington v. Missouri (1981),451 U.S. 430 , 438,68 L. Ed. 2d 270 , 279,101 S. Ct. 1852 , 1858), and therefore a determination, either in the trial court or on review, that the defendant was not eligible for the death penalty would have operated as an acquittal on an element essential to a sentence of death.” (Emphasis added.) Davis,112 Ill. 2d at 81-82 .
Accord People v. Levin,
In other words, once either the trial court or a court of review has determined that the evidence was insufficient to prove the existence of a statutory aggravating factor, the State is precluded by double jeopardy principles from seeking the death penalty again. “Having received ‘one fair opportunity to offer whatever proof it could assemble,’ [citation] the State is not entitled to another.” Bullington v. Missouri,
Because of our disposition of defendant’s sufficiency of the evidence claim, we need not address defendant’s remaining claims in which he identified other errors allegedly occurring during the sentencing hearing.
CONCLUSION
The circuit court correctly dismissed defendаnt’s sole post-conviction claim concerning the guilt phase of his trial proceedings, i.e., that trial counsel was ineffective for failing to retain an independent forensic expert. The circuit court, however, improperly dismissed defendant’s claim regarding ineffective assistance of appellate counsel with respect to counsel’s failure to raise on direct appeal a challenge to the sufficiency of the death-eligibility evidence. Therefore, we remand the cause to the circuit court for further proceedings consonant with this opinion.
Affirmed in part; reversed in part; cause remanded with directions.
Notes
Interestingly, the State chose to supplement Detective McCarthy’s testimony, that he was in court when defendant was convicted on March 27, 1987, of the Harris murder, with the stipulated testimony of circuit court clerk Kurz, which related to the jury that defendant “without lawful justification, intentionally and knowingly beat and killed Shardae Harris with his hands.”