People v. Pecoraro

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Docket No. 78457--Agenda 4--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN PECORARO,
Appellant.
Opinion filed February 6, 1997.

JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County,
defendant, John Pecoraro, was found guilty of murder (Ill. Rev.
Stat. 1981, ch. 38, par. 9--1) in connection with the shooting
death of Jimmy Christian. Thereafter a capital sentencing hearing
was conducted before the trial court and defendant was sentenced
death. Defendant's conviction and sentence were affirmed on direct
appeal. People v. Pecoraro, (1991). Defendant
subsequently filed a petition for relief under the Post-Conviction
Hearing Act. 725 ILCS 5/122--1 et seq. (West 1994). The State filed
a motion to dismiss defendant's petition and the circuit court
granted the motion. Defendant appeals directly to this court
pursuant to Supreme Court Rule 651 (134 Ill. 2d R. 651). We note
that defendant has filed briefs through counsel and has also
submitted a pro se brief. For the reasons set forth we affirm the
judgment of the circuit court.

BACKGROUND
On Wednesday, December 8, 1982, the body of the victim, Jimmy
Christian, was discovered in his brown Oldsmobile, which was parked
near the premises of a small manufacturing company in Chicago. The
owner and an employee of the company had observed that the
Oldsmobile had been parked in the same spot and had not moved since
Monday, December 6. The cause of the victim's death was a gunshot
wound to the chest.
The record reveals that defendant worked with the victim's
wife, Nadine Christian, for a company called Parklane Jewelry. The
detectives investigating the murder apparently considered defendant
a suspect and interviewed him in connection with the crime, but
were initially unable to obtain sufficient evidence to support
charges against defendant. The turning point in the case occurred
several years after the offense. On August 6, 1986, at about 9
a.m., defendant flagged down a police car driven by Chicago police
officer Jeffrey Becker. Defendant stated that he wanted to confess
to a murder. Officer Becker placed defendant under arrest and
administered his Miranda warnings. Defendant informed Officer
Becker that he had killed Jimmy Christian. Defendant related that
he waited outside the victim's house. When the victim emerged,
defendant forced the victim at gunpoint into the victim's
automobile. Defendant drove to a certain location and shot the
victim. Defendant indicated that the murder weapon was a .45-
caliber handgun and that he disposed of the weapon in the Chicago
River.
After Officer Becker transported defendant to the police
station, defendant was interviewed by Detectives William Kaupert
and Peter Aipaia and later by Assistant State's Attorney Joseph
Barbaro. Before each interview, defendant was advised of his
Miranda rights. Assistant State's Attorney Barbaro prepared a
handwritten statement detailing defendant's account of the crime.
Defendant refused to sign the statement, indicating that he only
wanted to get the crime "off his chest," but did not want to go to
prison. The handwritten statement was read to the jury at trial
without objection by the defense. Defendant's account to the
detectives and assistant State's Attorney was similar to his
account to Officer Becker. He stated that he waited for the victim
to leave for work, forced the victim into his own car and drove the
car a few blocks from the Christian home where he shot the victim
in the chest with a .45-caliber handgun. With respect to his motive
for the crime, defendant indicated that he had been involved in a
romantic relationship with the victim's wife, Nadine, and that he
did not like the way the victim treated Nadine.
Prior to trial, defendant moved to suppress his statements to
police on the basis that he had consumed substantial quantities of
drugs and alcohol and was fatigued when he spoke with police.
Defendant claimed that he was unable to knowingly and intelligently
waive his rights under Miranda. The trial court denied the motion.
At trial, the State presented the testimony of Martha Jackson,
a coworker of defendant and Nadine Christian at Parklane Jewelry.
Jackson testified that she and Nadine had met defendant in August
1982, and Nadine recruited defendant to work for Parklane. Jackson
observed defendant and Nadine spending a lot of time together. On
one occasion during a celebration at a tavern, Jackson observed
defendant and Nadine kissing. Jackson joked that Nadine's husband
was coming through the door. Defendant made an obscene gesture and
stated that if he could not have Nadine, nobody could. Jackson also
testified that on one occasion she observed defendant armed with a
handgun in a shoulder holster. She told police the gun was a .45-
caliber weapon.
Defendant presented evidence that subsequent to his statements
to the authorities, it was determined that the bullet that killed
the victim was fired from a .357-caliber weapon rather than a .45-
caliber weapon. Defendant's former wife testified that on December
6, 1982, she and defendant woke up together at about 6:30 a.m. and
defendant drove her to work, arriving at about 8:20 a.m.
Defendant also presented the testimony of Lisa Shankman, who
was defendant's girlfriend in August 1986. Shankman testified that
defendant was a regular cocaine user and she was familiar with the
manner in which cocaine affected defendant. Shankman saw defendant
briefly at about 5 p.m. on August 5, 1986, the day before his
arrest, and he appeared to have been drinking or to have been under
the influence of some substance. Shankman next saw defendant at
8:30 the next morning and it appeared he was definitely "high on
something." It was stipulated that Jean Clark, a bartender or
waitress, would testify that on the evening of August 5, 1986, she
served defendant a number of drinks. It was further stipulated that
Clark would testify that on a few occasions she observed defendant
go into the washroom and on his return he would appear to be "more
hyper and more talkative" than before.
Based on the foregoing evidence, the jury found defendant
guilty of murder. The trial court found defendant to be eligible
for the death penalty because he had a prior murder conviction (see
Ill. Rev. Stat. 1981, ch. 38, par. 9--1(b)(3)), and sentenced him
to death.

THE POST-CONVICTION HEARING ACT
The Post-Conviction Hearing Act permits a defendant to mount
a collateral attack on his conviction and sentence based on
violations of his constitutional rights. People v. Coleman, , 522 (1995); People v. Mahaffey, , 452
(1995). The scope of post-conviction review is limited to matters
which have not been, and could not have been, previously
adjudicated. Coleman, 168 Ill. 2d at 522; People v. Brisbon, , 245 (1995). Determinations of the reviewing court on
direct appeal are res judicata as to issues actually decided, and
issues that could have been raised on direct appeal but were not
are waived. Coleman, 168 Ill. 2d at 522; Mahaffey, 165 Ill. 2d at
452. Moreover, a defendant is entitled to an evidentiary hearing on
a post-conviction claim only if he has made a substantial showing,
based on the record and supporting affidavits, that his
constitutional rights were violated. Coleman, 168 Ill. 2d at 537;
People v. Guest, , 389 (1995). With these principles
in mind, we review the dismissal of defendant's post-conviction
petition without an evidentiary hearing.

ANALYSIS
I. Failure to Disclose or Preserve Exculpatory Evidence
Defendant contends that the prosecution violated its
constitutional obligation under Brady v. Maryland, , 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny to disclose
to the defense various evidence that defendant characterizes as
exculpatory. Brady held that "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97.
Subsequently, however, the Court held that regardless of whether
specifically requested by the defense, favorable evidence is
material and its suppression by the State constitutes a
constitutional violation "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." United States v. Bagley,
, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct 3375, 3383
(1985), quoted in Kyles v. Whitley, 514 U.S. ___, ___, 131 L. Ed. 2d 490, 505, 115 S. Ct. 1555, 1565 (1995). Moreover, the disclosure
obligation applies to impeachment evidence as well as evidence
bearing directly on guilt or innocence. United States v. Bagley,
, 676, 87 L. Ed. 2d 481, 490, 105 S. Ct 3375, 3380
(1985); see Kyles v. Whitley, 514 U.S. ___, ___, 131 L. Ed. 2d 490,
505, 115 S. Ct. 1555, 1565 (1995).

A. Self-incriminating Statements by a Third Party
Initially, defendant claims that the State had knowledge that
another individual, Ronald Baker, had confessed to the murder of
Jimmy Christian, but the State failed to disclose this information
to defendant. Defendant's post-conviction petition includes the
affidavit of a defense investigator who interviewed the Reverend
Jerry Gibson. During the interview, Reverend Gibson related that he
had spoken with Ronald Baker in connection with Baker's marital
troubles and Baker acknowledged having at some point made the
statement, "Yes I killed Jimmy Christian, and I'll kill you too."
Reverend Gibson believed that this statement had been addressed to
Brian Diffy, and that Baker made the threat because he suspected
that his wife and Diffy were having an affair. Reverend Gibson told
the defense investigator that he had informed the police of Baker's
statements and other information concerning the Jimmy Christian
murder. Subsequent to the interview, Reverend Gibson informed the
defense investigator that he did not want to become involved in the
case again, but that he would testify pursuant to a subpoena. We
note that defendant also submitted an affidavit by Brian Diffy
which would appear to indicate that any threat by Baker against
Diffy was not made directly to Diffy. In his affidavit, Diffy
stated, "About three or four months after Jimmy Christian's murder,
I heard that Ronald Baker said he had killed Jimmy Christian and
would kill me too if I didn't leave his wife alone."
Defendant argues that the information that Ronald Baker had
admitted to killing Jimmy Christian was essential to the defense
and would have been devastating to the State's case. Defendant
apparently assumes, without offering any analysis, that Ronald
Baker's alleged confession would have been admissible into evidence
had defense counsel known about it and sought to introduce it. The
general rule, however, holds to the contrary. An extrajudicial
declaration, not under oath, by the declarant that he, and not the
defendant on trial, committed the crime is inadmissible as hearsay,
though the declaration is against the declarant's penal interest.
People v. Cruz, , 342 (1994); People v. House, , 389-90 (1990); People v. Bowel, , 66
(1986); see People v. Rutherford, 274 Ill. App. 3d 116, 123 (1995).
Such a declaration will be admitted, however, when justice
requires. Cruz, 162 Ill. 2d at 343. Where there are sufficient
indicia of trustworthiness, such out-of-court statements may be
admissible as an exception to the hearsay rule. Cruz, 162 Ill. 2d
at 343; Bowel, 111 Ill. 2d at 66.
In Chambers v. Mississippi, , 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), the United States Supreme Court identified four
factors present in that particular case underlying the Court's
decision that the defendant was constitutionally entitled to
introduce evidence of an extrajudicial third-party confession
notwithstanding a common law rule of evidence barring the use of
such confessions. The four factors in Chambers were: (1) the
statement was made spontaneously to a close acquaintance shortly
after the crime occurred; (2) the statement was corroborated by
other evidence; (3) the statement was self-incriminating and
against the declarant's interest; and (4) there was adequate
opportunity for cross-examination of the declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; see
Cruz, 162 Ill. 2d at 343. The Chambers factors are merely
guidelines to admissibility rather than "hard and fast
requirements" (House, 141 Ill. 2d at 390, citing Bowel, 111 Ill. 2d
at 67) and the presence of all four factors is not a condition of
admissibility (Cruz, 162 Ill. 2d at 343). Ultimately, admissibility
depends on whether the statement was made under circumstances that
provide considerable assurance of its reliability by objective
indicia of trustworthiness. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; Cruz, 162 Ill. 2d at 343;
Bowel, 111 Ill. 2d at 67.
Consideration of the four specific Chambers criteria does not
favor admissibility. While Ronald Baker's alleged statement was
self-incriminating and against interest, defendant has failed to
establish the other three factors. See People v. Keene, , 29-30 (1995) (statement would not have been admissible where
only Chambers factor present was that statement was self-
incriminating). First, it is not known when Baker made his
statement, or whether he made the statement to a close
acquaintance. Indeed, the identity of the person to whom the
statement was addressed is unknown. Second, there appears to be no
meaningful or substantial corroboration of any statements
implicating Ronald Baker in the Jimmy Christian murder. Third,
assuming that Baker made the self-incriminating statement that has
been attributed to him, defendant has failed to establish that
Baker would have been available for cross-examination with regard
to the statement. Baker might very well have asserted his privilege
against self-incrimination rather than answer questions pertaining
to any self-incriminating statements. Cf. Keene, 169 Ill. 2d at 30.
More generally, Baker's alleged statement was not made under
circumstances that provide considerable assurance of its
reliability by objective indicia of trustworthiness. The statement
admitting to the murder was coupled with a threat apparently borne
of jealousy. As such, the self-incriminating portion of the
statement ("I killed Jimmy Christian") may simply represent bravado
designed to bolster the threat ("and I'll kill you too").
Because Ronald Baker's alleged self-incriminating statements
would not have been admissible, there is no reasonable probability
that disclosure of Reverend Gibson's report of the statement to
police would have affected the outcome of defendant's trial.
Accordingly, defendant has failed to establish that the allegedly
undisclosed information was material giving rise to a
constitutional obligation to disclose.

B. Impeachment Evidence
Defendant next contends that the State failed to disclose
certain information that would have been valuable in impeaching
prosecution witness Martha Jackson. The record contains police
reports indicating that Jackson was arrested for soliciting the
murder of her husband based on information provided by a
confidential informant. While a police report indicates that
Jackson confessed to the offense, she was released shortly after
her arrest. Subsequently, Jackson apparently agreed to wear an
electronic eavesdropping device--a "wire"--and to engage defendant
in conversations designed to elicit self-incriminating statements
about the Jimmy Christian murder and the plot to kill Martha
Jackson's husband. The police filed an application with the circuit
court pursuant to section 108A--3 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/108A--3 (West 1994)) for authorization to use
an eavesdropping device to monitor conversations between Jackson
and defendant or certain other individuals. The application was
supported by an affidavit from Jackson in which she averred that
she had entered into a written contract with defendant pursuant to
which defendant agreed to kill Jackson's husband in exchange for
$4,000.
Defendant first argues that Martha Jackson's affidavit was not
disclosed to the defense at trial, and consequently defendant was
deprived of the ability to impeach her based on her sworn
confession to soliciting the murder of her husband. The parties
disagree as to whether the post-conviction petition sufficiently
alleges that the affidavit was in fact withheld from defense
counsel. However, defendant's argument is meritless in any event.
A witness may be impeached by attacking his or her character with
proof of a conviction of a crime punishable by death or
imprisonment of one year or more or of a crime that involves
dishonesty or false statements. People v. Montgomery, , 516-19 (1971); In re A.M., 274 Ill. App. 3d 702, 712 (1995).
However, only actual convictions may be used for this purpose:
proof of arrests, indictments, charges or the actual commission of
a crime are not admissible. People v. Franklin, , 21
(1995); People v. Lucas, , 491 (1992); In re A.M.,
274 Ill. App. 3d at 712. Had Martha Jackson been convicted of
soliciting the murder of her husband, evidence of the conviction
would have been admissible for impeachment purposes. However,
defendant was not entitled to impeach Jackson with independent
proof that she committed that offense. Since Jackson's affidavit
was inadmissible, it could not have affected the outcome of trial,
and thus the confession was not material for purposes of Brady and
its progeny.
Defendant also contends that the State violated his right to
due process by failing to disclose the identity of the confidential
informant who originally implicated Martha Jackson in a plot to
kill her husband. Defendant insists that "[h]ad the defense been
able to investigate Jackson's attempt on her husband's life, her
fragile credibility may have come completely unraveled." Since,
Martha Jackson's possible participation in an unrelated crime which
did not result in a conviction was not a proper basis for
impeachment, the identity of the confidential informant was in no
way material or relevant to this case.
Defendant also surmises that in view of the circumstances of
Martha Jackson's arrest and release, Jackson must have entered into
an agreement with the authorities whereby, in exchange for her
cooperation in the investigation of defendant, no charges would be
filed against Jackson arising from the plot to kill her husband.
Defendant contends that evidence of such an agreement would have
discredited Jackson's trial testimony by showing a motive to
testify in the State's favor. This issue was raised and rejected on
direct appeal. In his pro se brief on direct appeal, defendant
advanced the following argument:
"[T]he prosecution with-held [sic] vital impeachment
evidence from the defendant., [sic] on the state's
witness Martha Jackson it is a fact that through the
reports of the police, and the special prosecutions
office., [sic] that Martha Jackson was released from
custody for her cooperation that charges for solicitation
for murder was [sic] droped [sic], and that she was
claiming that the defendant, was a co-defendant in that
case., [sic] the prosecutions [sic] failure to tender the
deals made with the state's witness denied the defendant
a fair trial."
This court rejected the argument, finding, inter alia, that
"defendant did not show that the discovery material purportedly
withheld from the defense would have been favorable to defendant or
material to his guilt or punishment." People v. Pecoraro, , 20 (1991). The principles of res judicata bar relitigation of
this issue.
Even if the issue were properly before us, our decision would
be no different. Assuming, arguendo, that the State actually
promised Jackson leniency in exchange for her cooperation in the
investigation, the nondisclosure of the agreement would not have
impaired the defense in view of other information that was in fact
disclosed. The record shows that defense counsel had knowledge from
police reports of essentially the same information that defendant
presently relies on as circumstantial evidence of an agreement or
promise of leniency. Trial counsel's affidavit submitted in support
of the post-conviction petition states:
"I had received police reports which related that
the police had arrested Martha Jackson on suspicion of
solicitation to murder her husband. Thereafter, she was
released, and arrangements were made to secure her
cooperation in attempting to prove John Pecoraro's
complicity in the murder of Jimmy Christian. This
included having her set up a meeting with John Pecoraro
and `wiring' Martha Jackson when she met with John
Pecoraro."
If, as defendant argues, this information is presently sufficient
to create an inference that Jackson had an agreement with the
State, then there is no reason why defendant could not have relied
on the same inference at trial to discredit Jackson's testimony.
Armed with information regarding the circumstances of Jackson's
involvement in the case, trial counsel was fully equipped to probe
the witness' possible bias or motive to fabricate based on any
explicit or implicit agreements or promises of leniency. However,
counsel made a decision, presumably as a matter of strategy, not to
pursue this approach. Granted, definitive proof at trial of an
agreement would have been preferable to circumstantial proof. Even
so, we regard it as highly unlikely that any nondisclosure affected
either trial strategy or the ultimate outcome of trial.

C. Disclosure of Impeachment Evidence to the Jury
In a related claim, defendant asserts that in addition to its
disclosure obligations to the defense, the prosecution was
constitutionally required to inform the jury of the circumstances
of Martha Jackson's involvement in this case. In support of this
argument, defendant relies, in part, on People v. Holmes, 238 Ill.
App. 3d 480 (1992). In Holmes, the court stated that "[i]t is well
settled that if a witness offers testimony in exchange for some
beneficial treatment from the State, the State must disclose that
information to the jury." Holmes, 238 Ill. App. 3d at 490-91. The
cases cited in Holmes--Napue v. Illinois, , 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), Giglio v. United States, ,
31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and People v. Bolton, 10
Ill. App. 3d 902 (1973)--do not stand for this broad proposition.
In Napue a witness at a murder trial falsely testified that he
received no consideration from the State in exchange for his
testimony. While the assistant State's Attorney was aware that the
testimony was false, he took no action to correct it. The Court
reversed the defendant's conviction. The Court noted that a
conviction through the use of evidence known by the State to be
false must be reversed, and the same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected
when it appears. The Court further noted that it was of no
consequence that the false testimony bore upon the witness'
credibility rather than directly upon guilt or innocence.
Similarly, in Bolton, a State's witness also falsely denied the
existence of an agreement with the State, and the State failed to
correct the false testimony. In Giglio, the Court held that a
promise made to a witness by one attorney for the government would
be attributed to the prosecution. In Giglio, the Court reversed the
defendant's conviction where a prosecution witness falsely denied
that any promises of leniency had been made, even though the
prosecutor appearing at trial was personally unaware of the falsity
of the testimony. Accordingly, in each of these cases, the
prosecution's obligation to reveal the existence of an agreement
with a witness arose only because of the witness' false testimony
on the subject. These cases merely impose an obligation to correct
false evidence. Under our adversarial system, the State is not
required in the first instance to impeach its own witnesses with
all evidence bearing on their credibility.
In addition to Holmes, defendant cites certain federal court
decisions which also appear to suggest that the prosecution has an
affirmative duty to inform the jury of any agreements or promises
of leniency to its witnesses. See Campbell v. Reed, 594 F.2d 4, 7
(4th Cir. 1979) (stating that Giglio held that "the prosecution's
failure to present all material evidence to the jury constituted a
denial of due process"); United States v. Pope, 529 F.2d 112, 114
(9th Cir. 1976) (citing Giglio as holding that "[i]t is
inconsistent with the rudimentary demands of a fair trial for the
prosecuting attorney to fail to disclose to the court that a
material prosecution witness has had the benefit of a plea
bargain"). To the extent these cases stand for this proposition,
like Holmes, they reflect a misreading of the applicable United
States Supreme Court decisions. Defendant does not contend that
Martha Jackson testified falsely regarding any agreement with the
State or the circumstances surrounding her involvement with this
case. Accordingly, the State was not obligated to disclose this
information to the jury.

D. Tape-Recorded Conversation
As previously noted, Martha Jackson engaged in a conversation
with defendant while wearing a "wire" in an attempt to elicit
incriminating statements. The conversation was tape-recorded and
defendant presently claims that the tape of the conversation was
withheld from the defense. Apparently, the tape cannot be located
and was unavailable during the post-conviction proceedings below.
Defendant claims that the tape would have been useful to the
defense because during the conversation "Martha Jackson recited
facts *** which later found their way into [defendant's] alleged
oral confession." The only information in the record regarding the
content of the conversation appears in an affidavit executed by
defendant. Having reviewed the affidavit, we conclude there is no
reasonable probability that disclosure of the tape would have
affected the outcome of defendant's trial. Even if defendant had
been able to show that Martha Jackson had discussed the details of
the murder with him, it is unlikely that the jury would have
rejected defendant's confession on that basis. Accordingly,
defendant has failed to show a constitutional violation.

E. Polygraph Results
Defendant next contends that constitutional error occurred
because the State did not reveal to the defense that Ronald Baker
and Martha Jackson "failed" lie detector tests administered in
connection with the investigation of this case. The record reflects
that polygraph examinations were administered to Baker and Jackson.
With respect to the examination of Baker, the examiner concluded
that Baker may have had some knowledge about the Jimmy Christian
murder. With respect to the examination of Jackson, the examiner
concluded that Jackson was untruthful in her answers to questions
regarding her knowledge of a plot to kill her husband and knowledge
of the Jimmy Christian murder. However, defendant's post-conviction
petition, as amended and supplemented, contains no claim that the
prosecution suppressed this information in violation of defendant's
constitutional rights. The Post-Conviction Hearing Act provides
that "[a]ny claim of substantial denial of constitutional rights
not raised in the original or an amended petition is waived." 725
ILCS 5/122--3 (West 1994).
Considerations of waiver aside, defendant's claim is
meritless. Evidence of polygraph results is inadmissible both at
trial and at a capital sentencing hearing. People v. Sanchez, 169 Ill. 2d 472, 493 (1996). Notwithstanding the inadmissibility of the
polygraph results, defendant argues in a conclusory manner that the
information would have assisted defense counsel in his
investigation of the case. Defendant's claim is based on pure
speculation, which is insufficient to establish a reasonable
probability that the outcome of defendant's trial would have been
different. See Wood v. Bartholomew, 516 U.S. ___, 133 L. Ed. 2d 1,
116 S. Ct. 7 (1995). Accordingly, defendant has failed to establish
that the polygraph results were material for purposes of Brady and
its progeny.

F. Failure to Document Defendant's Condition During Interrogation
by Police
Defendant next contends that his right to due process was
violated because the police failed to preserve evidence bearing on
his physical and mental condition at the time he made incriminating
statements to the authorities. Defendant argues that in view of his
physical appearance and statements he made to police regarding
recent drug use and lack of sleep, the police were obligated to
create an objective record of his condition. According to
defendant, the officers should have conducted or arranged blood or
breath testing to determine the presence of drugs or alcohol, and
should have videotaped defendant's conversations. Defendant
maintains that such evidence would have assisted the defense in
proving that defendant was unable to knowingly and intelligently
waive his rights under Miranda v. Arizona, , 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
In California v. Trombetta, , 488-89, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534 (1984), relied on by defendant, the
United States Supreme Court stated:
"Whatever duty the Constitution imposes on the States to
preserve evidence, that duty must be limited to evidence
that might be expected to play a significant role in the
suspect's defense. To meet this standard of
constitutional materiality [citation], evidence must both
possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence
by other reasonably available means."
Trombetta held that when police conduct breath tests to determine
the blood-alcohol level of a motorist suspected of driving while
under the influence of alcohol, due process does not require
preservation of the motorist's breath sample for use by the defense
in verifying the accuracy of the breath test. Based on evidence
showing that the breath-analysis equipment was highly accurate, the
court reasoned that the chances were extremely low that a preserved
breath sample would be exculpatory, and a malfunction in the
breath-analysis equipment could demonstrated in other ways.
Subsequently, in Arizona v. Youngblood, , 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337 (1988), the Court held that
unless a criminal defendant can show bad faith on the part the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process. In so holding, the Court
distinguished the failure to preserve evidence from the failure to
disclose material exculpatory evidence in the State's possession
where the good or bad faith of the State is irrelevant. Youngblood,
488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The
Youngblood Court also explained that "[t]he presence or absence of
bad faith by the police for purposes of the Due Process Clause must
necessarily turn on the police's knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed." Youngblood,
488 U.S. at 56 n.*, 102 L. Ed. 2d at 288 n.*, 109 S. Ct. at 336
n.*.
Applying these principles from Trombetta and Youngblood, we
conclude that defendant's claim is meritless. The record reveals
that at the time defendant spoke with police, he informed them that
he had used cocaine a few hours earlier. Defendant also related
either that he had not slept in two days or that he had not slept
the previous night. Nonetheless, at the hearing on defendant's
motion to suppress his statements, the police officers who observed
defendant and the assistant State's Attorney who interviewed him
each testified that defendant did not appear to be intoxicated or
under the influence of drugs. The assistant State's Attorney
specifically testified that although defendant's eyes appeared
bloodshot, "his walking was fine and his speech was fine." In view
of this testimony, defendant cannot show that it was apparent that
videotaping defendant's demeanor or conducting drug and alcohol
testing would have produced exculpatory evidence. Likewise,
defendant cannot show that the authorities acted in bad faith in
failing to take these steps. Cf. United States v. Weise, 89 F.3d 502, 504 (8th Cir. 1996) (failure by police to administer blood-
alcohol test to defendant convicted of second degree murder did not
violate due process where police officers testified that defendant
appeared to be in control of his thoughts and actions at the time
of his arrest).
Defendant alternatively argues that even if the failure to
preserve evidence of his condition did not violate the United
States Constitution under Trombetta, this court is free to hold
that failure violative of the due process clause of our state
constitution. Ill. Const. 1970, art. I, 2. Defendant relies on
Gunderson v. Municipality of Anchorage, (Alaska 1990),
where, notwithstanding Trombetta, the Supreme Court of Alaska held
that in a prosecution for driving while intoxicated, the failure to
preserve breath samples for independent testing violated the due
process clause of Alaska's constitution. We decline to apply
Gunderson in the present setting and instead adhere to the well-
reasoned principles set forth in Trombetta and Youngblood for
purposes of our state due process clause.

G. Pro Se Arguments
In his pro se brief defendant advances many of the same
arguments set forth in the brief submitted by counsel regarding
nondisclosure of evidence. Defendant also complains that the State
failed to disclose: (1) the order authorizing the use of an
eavesdropping device to monitor his conversation with Martha
Jackson; (2) a statement by the informant who implicated Martha
Jackson in a plot to kill her husband; (3) that the victim's wallet
had been recovered; (4) any crime laboratory reports regarding the
wallet; and (5) a tape cartridge found in the victim's car.
Defendant has failed to explain how any of the foregoing would be
exculpatory. Defendant also complains that the State failed to
disclose the identity of Tom Wolverton, whom defendant considers a
possible suspect in the case. As will be seen in our discussion
below of defendant's ineffective-assistance-of-counsel claim,
available information regarding Tom Wolverton would not have
affected the outcome of trial and therefore was not material under
Brady and its progeny. Accordingly defendant's pro se arguments are
meritless.

II. Ineffective Assistance of Counsel
Defendant contends that he was deprived of effective
assistance of counsel by the Cook County public defender's office,
which represented him at the hearing on his motion to suppress, and
by the privately retained attorney who represented him at trial. In
support of this claim, defendant submitted an affidavit from an
attorney experienced in the defense of capital cases who reviewed
the record and formed the opinion that the performance of
defendant's trial attorneys was not in conformity with accepted
professional standards for the defense of capital cases and fell
below an objective standard of reasonableness.
Claims of ineffective assistance of counsel based on deficient
representation of a criminal defendant are evaluated in accordance
with the two-prong test set forth in Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Initially, the
defendant must show deficient performance. "This requires showing
that counsel made errors so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must show that counsel's 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. Moreover,
judicial scrutiny of counsel's performance is highly deferential
and "a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action `might be
considered sound trial strategy.' [Citation.]" Strickland, 466 U.S.
at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.
Even where deficient performance is shown, the defendant must
also show prejudice in order to establish an ineffective-assistance
claim. "The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

A. Trial Counsel's Lack of Experience and Resources and
Failure to Present a Coherent Defense
At the outset we consider defendant's general claim that his
sixth amendment right to effective assistance of counsel was
violated because trial counsel was unqualified to represent him due
to lack of training and experience. Defendant observes that trial
counsel had previously conducted only four jury trials, had no
staff or co-counsel to rely upon, and lacked specific training in
the defense of capital cases. Defendant also notes that his
attorney represented him for a total fee of $200. According to
defendant, his attorney should have requested that the court
appoint co-counsel and provide funds for investigative assistance,
mitigation experts and other experts as needed. As noted in People
v. Lear, No. 78292, slip op. at 7 (February 6, 1997), "[h]aving a
counsel with limited resources and limited experience is not a
circumstance which this court has held to constitute per se
ineffective assistance of counsel." In Lear counsel had only been
out of law school for two years when appointed to represent the
defendant, counsel had never tried a capital or homicide case
before, counsel had received no formal training in defense of
capital cases, counsel's office employed no investigators or other
attorneys, the only assistance counsel received was from another
attorney who performed 60 hours of legal research, and counsel had
numerous other pending cases. As in Lear, counsel's alleged
inexperience and lack of resources in the present case would be
insufficient in itself to give rise to a sixth amendment violation.
Rather, under Strickland's two-part test, defendant must establish
specific errors by counsel and resultant prejudice.
Defendant also argues that trial counsel presented no coherent
theory of defense to the jury. We emphatically disagree. Faced with
evidence that defendant had approached police on his own initiative
and confessed to the crime, counsel performed competently, albeit
unsuccessfully, in attempting to undermine the State's case.
Counsel presented testimony from defendant's former wife that
defendant was with her on the morning of the crime. Counsel also
elicited testimony from defendant's girlfriend that defendant was
a heavy drug user and might have used drugs, alcohol or both at the
time of his statements to police. While defendant allegedly
confessed to killing the victim with a .45-caliber weapon, counsel
established that the gun used was actually a .357-caliber weapon.
Counsel vigorously cross-examined the State's witnesses and
successfully objected on a number of occasions to the State's
attempts to introduce hearsay testimony. During closing argument,
counsel attempted to discredit defendant's confession, arguing that
he was under the influence of drugs and alcohol and pointing out
the discrepancy in defendant's statements as to the weapon used.
Counsel also argued that defendant's confession omitted certain
details of the offense and that aspects of defendant's account to
police were contrary to human experience. In addition, counsel
emphasized the lack of eyewitnesses and physical evidence
implicating defendant. Defendant's charge that counsel failed to
provide a coherent defense is unfounded.

B. Inadequate Pretrial Investigation
Defendant claims that trial counsel failed to adequately
investigate the possibility that Ronald Baker was responsible for
the murder of Jimmy Christian. Defendant first asserts that counsel
should have interviewed Reverend Jerry Gibson, and that had he done
so, he would have learned of Ronald Baker's alleged admission to
killing Jimmy Christian. As discussed earlier, Baker's allegedly
self-incriminating statements would not have been admissible.
Accordingly, the failure to interview Reverend Gibson did not
affect the outcome of the case and defendant has failed to
establish prejudice under Strickland.
Defendant also maintains that counsel rendered deficient
performance by failing to interview Baker's former wife, Pat, and
her one-time paramour and present husband, Brian Diffy. Defendant
argues that had counsel done so, he would have learned that Ronald
Baker was a drug addict who sold drugs to support his habit.
According to defendant, counsel also would have learned that Baker
was a violent, jealous and paranoid individual, that the victim
sometimes rode to work with Pat, and that members of Baker's family
once assaulted Diffy because of his relationship with Pat.
Defendant asserts that this information would have supported the
theory that Baker may have killed Jimmy Christian because of
jealousy.
Defendant's argument is meritless. The record reveals that
Brian Diffy and Pat Diffy (formerly Pat Baker) were each privy to
essentially the same information about Ronald Baker, and thus
interviewing both Pat and Brian (as opposed to one or the other)
would not have advanced counsel's investigation. Defendant's claim
fails because the record does not clearly substantiate the
assertion that trial counsel failed to interview Pat Diffy. Trial
counsel's affidavit submitted with defendant's post-conviction
petition specifically identifies a number of witnesses who were not
interviewed, including Brian Diffy. With respect to Pat Diffy,
however, the affidavit merely indicates that although subpoenaed,
she was not called to testify at trial. The affidavit is silent as
to whether or not she was interviewed. It is also unclear from Pat
Diffy's affidavit whether defense counsel interviewed her. Her
affidavit merely states that she had a "brief conversation" with
defense counsel, but does not detail the content of that
conversation.
Defendant also contends that an adequate investigation would
have revealed: (1) that packets of a white powder were found in the
victim's car, "suggesting the possibility of a drug deal gone
awry"; (2) that Baker missed work the day of the murder; and (3)
that a polygraph examination was administered to Ronald Baker, and
the examiner concluded that Baker may have had some knowledge of
the Jimmy Christian murder. Contrary to defendant's assertions,
trial counsel's affidavit shows that he was aware of the packets of
white powder found in the victim's car. In fact, trial counsel
cross-examined one of the investigating officers about the packets.
Defendant cites a police report in support of the assertion that
Ronald Baker was absent from work the day of the murder. Defendant
has not alleged that the prosecution suppressed this report, and
hence defendant has failed to show that defense counsel was unaware
of this information. Finally, as discussed earlier, the results of
Baker's polygraph would have been inadmissible at trial and
sentencing. Thus, even if defense counsel failed to discover the
polygraph results, as defendant asserts, no prejudice under
Strickland resulted.
Defendant further claims that trial counsel's failure to
interview Martha Jackson and numerous other witnesses represents
ineffective assistance of counsel. While defendant broadly argues
that the failure to interview these witnesses impaired his ability
to effectively cross-examine them, the possibility that the result
of the trial was thereby affected is wholly speculative. A
defendant cannot rely on speculation or conjecture to justify his
claim of incompetent representation. People v. Holman, , 369 (1995). Accordingly, this argument is without merit.
Defendant also contends that trial counsel's failure to
interview Nadine Christian's uncle, Tom Wolverton, constitutes
ineffective assistance of counsel. The record contains an anonymous
letter found in Jimmy Christian's wallet charging that Wolverton
was having an affair with Nadine. In addition, a police report
indicates that defendant and Martha Jackson had a conversation in
which they discussed "how Nadin's [sic] uncle Tom had been caught
in bed with her by the victim and thrown from the house by the
victim." Defendant contends that Wolverton thus had a motive to
kill Jimmy Christian.
Counsel has only a duty to make reasonable investigations or
to make a reasonable decision which makes particular investigations
unnecessary, and the reasonableness of a decision to investigate is
assessed applying a heavy measure of deference to counsel's
judgment. People v. Orange, , 149 (1995). Where
circumstances known to counsel at the time of his investigation do
not reveal a sound basis for further inquiry in a particular area,
it is not ineffective for the attorney to forgo additional
investigation. Orange, 168 Ill. 2d at 150. Thus, counsel is not
necessarily required to investigate every individual with some
conceivable motive to kill the victim. It was entirely reasonable
for counsel to focus his strategy on the weaknesses in the State's
case rather than developing a speculative theory assigning blame
for the murder to Tom Wolverton. With regard to our assessment of
counsel's decision, we note that "[w]here circumstantial evidence
relied upon to support the defense that another committed the crime
is unsatisfactory, based upon mere surmise or possibility, without
evidence to support it, a hypothesis of innocence may be rejected
by the trier of fact." People v. Coleman, , 533
(1995).
Moreover, both the anonymous letter and the information
related in the police report alleging a sexual relationship between
Nadine Christian and Tom Wolverton are inadmissible as hearsay.
Since defendant has failed to produce any admissible evidence that
Tom Wolverton had a motive to kill Jimmy Christian, there is no
basis to conclude that any investigation counsel might have
conducted would have produced any evidence useful to the defense.
Accordingly, defendant has not demonstrated that the failure to
interview Tom Wolverton, or otherwise investigate his possible
responsibility for the murder, was prejudicial under Strickland.
Defendant also alludes to counsel's failure to investigate an
individual named Jack Louvier. Defendant contends that Louvier
moved to Texas with Nadine Christian shortly after the murder and,
accordingly, Louvier should be considered yet another possible
suspect in the murder of Jimmy Christian. Because defendant's post-
conviction petition as amended and supplemented contains no
allegations related to the failure to investigate Jack Louvier, the
issue is waived. In any event, the theory that Jack Louvier was
involved in the murder is entirely speculative. There is no
reasonable probability that a defense theory implicating Jack
Louvier as the killer would have succeeded.

C. Deficient Cross-Examination
Defendant next argues that trial counsel's performance in
cross-examining Martha Jackson was deficient. As detailed earlier,
Jackson testified for the State that on one occasion she had
observed defendant and Nadine Christian kissing in a bar, and that
defendant had stated that if he could not have Nadine, no one
could. Jackson also testified that on one occasion she saw
defendant armed with a handgun carried in a shoulder holster at the
Christians' home. Defendant contends that his trial attorney should
have attacked Jackson's credibility with evidence of the
circumstances of her involvement in the murder investigation.
According to defendant, his attorney should have tried to discredit
Jackson with evidence suggesting that she assisted in the
investigation because she had been implicated in a separate plot to
murder her husband. Defendant also contends that trial counsel
failed to properly impeach Jackson with prior inconsistent
statements relating to her testimony that she observed defendant
with a handgun, and failed to object to certain irrelevant or
otherwise inadmissible testimony. Defendant essentially raised the
same issues on direct appeal. In his pro se brief on direct appeal,
defendant contended that trial counsel's failure to impeach Martha
Jackson based on her relationship with the authorities and
counsel's failure to object to prejudicial testimony constituted
ineffective assistance of counsel. This court rejected the argument
(see People v. Pecoraro, , 12-14 (1991)), and under
the principle of res judicata, that disposition is controlling
here.
In any event, defendant's claim of deficient cross-examination
is meritless. Generally, the decision whether or not to cross-
examine or impeach a witness is a matter of trial strategy which
will not support a claim of ineffective assistance of counsel.
People v. Franklin, , 22 (1995). The manner in which
to cross-examine a particular witness involves the exercise of
professional judgment which is entitled to substantial deference
from a reviewing court. Defendant can only prevail on an
ineffectiveness claim by showing that counsel's approach to cross-
examination was objectively unreasonable. Similarly, as stated in
the opinion on defendant's direct appeal, trial strategy ordinarily
encompasses decisions such as what matters to object to and when to
object. Pecoraro, 144 Ill. 2d at 13.
In the case at bar, trial counsel vigorously cross-examined
Martha Jackson. With regard to the episode where defendant and
Nadine had been kissing at a bar, counsel emphasized that the group
assembled at the bar had been drinking and defendant had several
drinks that night, thus suggesting that the events that transpired
were an isolated indiscretion.
Counsel was also able to gain some advantage from Jackson's
testimony that she had seen defendant with a handgun. On cross-
examination, Jackson admitted that she described the weapon to
police as a .45-caliber handgun. This point is significant because
the State's evidence showed that defendant confessed to having
killed Jimmy Christian using a .45-caliber weapon, when ballistics
tests later revealed that a .357-caliber weapon had been used.
Thus, Jackson's testimony bolstered the theory that the police had
composed defendant's confession. Notwithstanding defendant's
argument that cross-examination might have been handled
differently, we cannot say that trial counsel's approach fell
outside the wide range of reasonable professional assistance. We
thus reaffirm the decision on this point in defendant's direct
appeal.

D. Failure to Introduce Expert Testimony
Defendant claims that the assistant public defenders who
represented him at his suppression hearing erred by failing to
present expert testimony regarding the effect of drug and alcohol
use on his ability to knowingly and intelligently waive his Miranda
rights. Similarly, defendant contends that the privately retained
attorney who represented him at trial should have introduced expert
testimony showing that the use of drugs and alcohol rendered his
self-incriminating statements to police unreliable and unworthy of
belief. In support of this claim defendant submitted two affidavits
from Louis Hemmerich, Ph.D., a clinical psychologist. In his
initial affidavit, Dr. Hemmerich relied on the transcript of the
hearing on defendant's motion to suppress. At the suppression
hearing, Joseph Siemioneko testified that prior to defendant's
arrest defendant had consumed at least six beers and 1¬ grams of
cocaine. Defendant testified that he had used a substantial amount
of cocaine prior to joining Siemioneko. Based on Siemioneko's
testimony, Dr. Hemmerich formed the opinion defendant's blood-
alcohol content was well above the legal limit and that he was
intoxicated at the time of his arrest. Dr. Hemmerich also indicated
that the chief dangers of combining alcohol and cocaine were
cocaine psychosis and blackout. Cocaine psychosis is characterized
by poor reality testing, impaired judgment, inability to comprehend
and integrate information, paranoia and delusions. Cocaine
delusions involve confabulation: one makes up what is perceived to
be the truth. According to Dr. Hemmerich's affidavit, if defendant
had previously been a suspect in a murder case and was aware of
some of the facts of the case, cocaine psychosis might give rise to
the delusion that he had actually committed the crime even if he
had not.
Dr. Hemmerich's affidavit also states that a person
experiencing blackouts often fabricates and does and says things
which he does not remember following the blackout. Dr. Hemmerich
offered the opinion that a person experiencing these conditions
would be unable to understand the significance of their Miranda
rights or appreciate the significance of waiving those rights, and
that during a blackout defendant may have assented to suggestions
presented in leading questions by police. Finally, Dr. Hemmerich
indicated that a person experiencing these conditions could appear
to be unimpaired to an observer who had not been specifically
trained to detect intoxication.
Dr. Hemmerich submitted his second affidavit after
interviewing defendant. Based on the interview, Dr. Hemmerich
formed the opinion that: (1) defendant was most likely experiencing
a blackout as a result of excessive consumption of alcohol and
drugs; (2) in this condition defendant would not have been able to
understand the significance of his Miranda rights or their waiver;
and (3) defendant's blackout may have gone undetected by others.
Defendant claims that had expert testimony of this nature been
presented to the trial court during the hearing on defendant's
motion to suppress, there is a reasonable probability the court
would have suppressed his statements to police. Defendant also
argues that had testimony been presented to the jury at trial,
there is a reasonable probability it would have found a reasonable
doubt as to defendant's guilt.
We conclude that the failure to introduce expert testimony
during the suppression hearing was not prejudicial under
Strickland. Dr. Hemmerich's opinion regarding defendant's ability
to waive his Miranda rights was based, at least in part, on
defendant's own account of his drug and alcohol use prior to his
arrest. However, the trial court specifically rejected defendant's
account, deeming it "exaggerated and at times untruthful." Given
this rejection of the factual basis for the opinion regarding
defendant's waiver of his Miranda rights, it is doubtful that the
court would have found the ultimate opinion persuasive. In this
regard, we note that even if expert testimony had been presented,
the court would not have been required to accept the expert's
conclusions. People v. Mahaffey, , 463 (1995).
We also conclude that defendant suffered no prejudice due to
the failure to introduce expert testimony at trial. We note that
Dr. Hemmerich merely suggested that it was possible that if
defendant was suffering cocaine psychosis and associated delusions
he might falsely confess to a crime merely because he had been
implicated in it. Dr. Hemmerich did not elaborate on how likely it
was that this would occur. Dr. Hemmerich also explained that if
experiencing a blackout during interrogation, defendant might have
assented to leading questions by police. Here, however, the record
shows that defendant flagged down a police officer at random and
gave a somewhat detailed account of the offense. That officer had
no prior knowledge of the offense and it is thus impossible that
this initial confession was the product of leading or prompting by
police. Under the circumstances, defendant has failed to show a
reasonable probability that expert testimony would have altered the
outcome of the suppression hearing or trial.

III. Post-Conviction Discovery
During the post-conviction proceedings below, defendant moved
to take discovery depositions from various individuals. Defendant
contends that the denial of these motions was error. We note that
while defendant appears to take the position that the denial of
every one of his discovery requests was error, in his brief,
defendant only specifically addresses the denial of a few of his
requests. Specifically, defendant contends that he should have been
permitted to take depositions from Reverend Jerry Gibson, Detective
Raymond Schalk, Detective Bogucki and police officer Ralph Storck.
We limit our analysis to the denial of the discovery motions
relating to these individuals.
In a post-conviction proceeding, the trial court has inherent
discretionary authority to order discovery. People v. Henderson,
171 Ill. 2d 124, 156 (1996); People ex rel. Daley v. Fitzgerald,
, 183 (1988). In deciding whether to permit the
taking of a discovery deposition the circuit court should consider,
among other relevant circumstances, the issues presented in the
post-conviction petition, the scope of discovery sought, the length
of time between the conviction and the post-conviction proceeding
and the burden the deposition would impose on the opposing party
and on the witness. Fitzgerald, 123 Ill. 2d at 183-84.
Defendant sought to depose Reverend Gibson with regard to
Ronald Baker's possible responsibility for the murder of Jimmy
Christian. In his motion and argument to the circuit court,
defendant failed to suggest how this information would be relevant
to a violation of defendant's constitutional rights. The denial of
defendant's motion to depose Reverend Gibson was not an abuse of
discretion.
Defendant sought to depose Detectives Schalk and Bogucki to
learn whether the police had entered into any agreements with
Martha Jackson in exchange for her assistance in the investigating
defendant. We have already held that the disclosure of any such
agreement that may have existed would not have affected the outcome
of trial. Under these circumstances the denial of the motion to
depose these detectives was not error.
Defendant apparently sought to depose Officer Storck in
connection with the theory that trial counsel was ineffective for
failing to investigate the possibility that a former police officer
named Jack Louvier may have been responsible for the murder. We
have already stated that this theory of the offense was too
speculative to support an ineffective-assistance-of-counsel claim.
We find nothing in the record to suggest that Officer Storck was
aware of any meaningful evidence implicating Jack Louvier in the
crime such as would have bolstered defendant's otherwise meritless
claim. Accordingly the circuit court did not err in denying the
motion to depose Officer Storck.

IV. Denial of the Right to Self-Representation
After trial, defendant filed a pro se motion for a new trial,
a pro se supplemental motion for a new trial or judgment
notwithstanding the verdict and a pro se motion in arrest of
judgment. Defendant also moved to be permitted to act as co-
counsel. Addressing defendant in open court, the trial court
stated, "My understanding of the law *** is that *** you have a
right to represent yourself or of course you have the right to be
represented by an attorney but you can't do both or you can't take
a position in between." However, the trial court allowed defendant
to submit his pro se motions and permitted defense counsel to argue
the motions.
Defendant argues through counsel and in his pro se brief that
the trial court violated his absolute constitutional right to self-
representation under Faretta v. California, , 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). Faretta held that a criminal
defendant has a constitutional right to refuse state-provided
counsel and proceed without representation if he voluntarily and
intelligently elects to do so. See People v. Coleman, , 544 (1995). A trial court may appoint standby counsel to
assist the defendant. Faretta, 422 U.S. at 834 n.46, 45 L. Ed. 2d
at 581 n.46, 95 S. Ct. at 2541 n.46. However, Faretta does not
require the trial judge to permit " `hybrid' representation."
McKaskle v. Wiggins, , 183, 79 L. Ed. 2d 122, 136, 104 S. Ct. 944, 953 (1984). See also United States v. Callwood, 66 F.3d 1110, 1114 (10th Cir. 1995); Cain v. Peters, 972 F.2d 748, 750 (7th
Cir. 1992). It has been stated that there is "a crucial difference
between a defendant seeking to represent himself and a defendant
asking to serve as `co-counsel' in his defense. The defendant has
no absolute right to the latter. Instead, `[t]he decision to grant
or deny "hybrid representation" lies solely within the discretion
of the trial court.' [Citation.]" United States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996). In view of these principles, the denial of
defendant's request to act as co-counsel was not a violation of
defendant's constitutional right of self-representation.
Defendant further argues through counsel that the failure of
his appellate attorneys to raise this issue on direct appeal
constitutes ineffective assistance of counsel. Claims of
ineffective assistance of appellate counsel are evaluated under the
standard set forth in Strickland, , 80 L. Ed. 2d 674,
104 S. Ct. 2052, which, as previously noted, requires the defendant
to show both deficient performance by counsel and resultant
prejudice. See People v. Coleman, , 523 (1995).
Since we have concluded that the issue of defendant's right to
self-representation is meritless, defendant suffered no prejudice
under Strickland as a result of appellate counsel's failure to
raise the issue. See Coleman, 168 Ill. 2d at 523.

V. Actual Innocence
Finally, we note that defendant argues that he is actually
innocent of the murder of Jimmy Christian and is therefore entitled
to an evidentiary hearing on his post-conviction claims under the
principles of Schlup v. Delo, 513 U.S. ___, 130 L. Ed. 2d 808, 115 S. Ct. 851 (1995). Schlup essentially held that a petitioner in a
federal habeas corpus action is entitled to consideration of the
merits of otherwise procedurally barred constitutional claims if
the petitioner is able to show, based on newly discovered evidence
of innocence, that it is more likely than not that no reasonable
juror would have convicted the petitioner. Schlup, 513 U.S. at ___,
130 L. Ed. 2d at 836, 115 S. Ct. at 867; Schlup, 513 U.S. at ___,
130 L. Ed. 2d at 839-40, 115 S. Ct. at 869-70 (O'Connor, J.,
concurring). Assuming, without deciding, that Schlup should be
applied in state post-conviction proceedings, we note that we have
in fact considered the merits of the large majority of defendant's
post-conviction claims and Schlup would require no more with
respect to those claims. In any event, defendant has failed to
make the requisite showing under Schlup that based on newly
discovered evidence of innocence it is more likely than not that no
reasonable juror would have convicted defendant. Accordingly Schlup
does not apply.
We further observe that this court has recently recognized the
viability of a "free-standing" post-conviction claim of "actual
innocence" based on new evidence of actual innocence. See People v.
Washington, 171 Ill. 2d 475 (1996). To be entitled to relief, the
supporting evidence must be new, material, noncumulative and of
such conclusive character as would probably change the result on
retrial. Washington, 171 Ill. 2d at 489. We note that defendant has
not attempted to assert such a free-standing claim, nor given the
record, could he do so successfully.

CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Cook County dismissing defendant's post-conviction petition is
affirmed. The clerk of this court is directed to enter an order
setting Tuesday, May 13, 1997, as the date on which the sentence of
death, entered in the circuit court of Cook County, is to be
carried out. Defendant shall be executed in the manner provided by
law. 725 ILCS 5/119--5 (West 1994). The clerk of this court shall
send a certified copy of the mandate to the Director of
Corrections, to the warden of Stateville Correctional Center, and
to the warden of the institution where defendant is now confined.

Affirmed.

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