People v. Ramsey

Docket No. 105942.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. DANIEL RAMSEY, Appellant.

Opinion filed October 7, 2010.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

After a jury trial in the circuit court of Hancock County,

defendant, Daniel Ramsey, was convicted of two counts of first

degree murder (720 ILCS 5/9–1(a) (West 1996)), three counts of

attempted murder (720 ILCS 5/8–4(a), 9–1(a) (West 1996)), and one

count each of aggravated criminal sexual assault (720 ILCS

5/12–14(a) (West 1996)), home invasion (720 ILCS 5/12–11(a) (West

1996)), and residential burglary (720 ILCS 5/19–3(a) (West 1996)),

and sentenced to death and several terms of imprisonment. His

convictions were reversed by this court. People v. Ramsey, 192 Ill. 2d

154 (2000). He subsequently pleaded guilty to the intentional and

felony murders of two victims, the attempted murders of three victims,

aggravated criminal sexual assault, and home invasion. A jury found

him eligible for the death penalty and determined that he should be

sentenced to death. The trial court sentenced him to death and

imposed prison sentences totaling 60 years on the other convictions.

His appeal lies directly to this court under Supreme Court Rule 603

(134 Ill. 2d R. 603). For the reasons set forth below, we affirm his

conviction and sentence.

BACKGROUND

On July 9, 1996, Daniel Ramsey, then 18 years old, was taken into

custody at the Sloop residence in rural Hancock County. He gave the

police an account of the events of the previous evening, in which he

admitted killing two young women and shooting two children and his

former girlfriend, intending to kill them.

Defendant’s Statement

According to defendant, 17-year-old Rachel Sloop had recently

broken up with him. They had agreed to remain friends and he was

still welcome at the Sloop home. He had called Rachel almost every

day since the breakup. On the afternoon of July 8, defendant was

visiting the Sloop home. Rachel’s mother told Rachel that it was time

for defendant to leave because she did not have enough food to invite

him to stay for dinner. He remained for a while longer and then went

home.

Later that evening, another girl, Michelle Haist, told defendant

that Rachel never truly liked him and that she had been using him

because he gave her presents. Upset by her comments, defendant took

a .22-caliber pistol from the trunk of his car and placed it underneath

the front seat. He drove from his home in Keokuk, Iowa, to the home

of another friend, L.M., in Basco, Illinois.

At about 11 p.m., defendant and L.M. went for a drive. L.M. told

her mother that she would be home in about half an hour. They talked

about Rachel and the breakup and began to argue. He called her a

“bitch” and she slapped him. He struck her with his fist and then

stopped the car near a grain bin. She slapped him again and he pulled

the car closer to the grain bin. She got out of the car and came around

to the driver’s side. Then he got out of the car and they continued to

fight, shoving each other, until L.M. got back into the car on the

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passenger side. Defendant then pinned L.M. down on the front seat of

the car and ripped at her clothing. She told him several times to “stop”

and to “quit it,” but he sexually penetrated her anyway and ejaculated.

When he finished, L.M. told him that he was no longer her friend

and that she would tell what he had done. He took a roll of duct tape

from the trunk of his car and wrapped tape around her head, including

her eyes, and around her arms, her wrists, and her hands. After she

tried to run away, he also taped her lower legs. He lifted her over his

shoulder and walked to a nearby empty grain bin and placed her

inside, where he told her to stay.

Defendant went back to his car, retrieved the pistol, and returned

to the grain bin. He shot her twice. Then he got into his car and left.

He later told police that he shot L.M. because she said she would get

him into trouble. She died as a result of her wounds.

Defendant told police that he decided at this point that he wanted

to commit suicide and that he wanted Rachel to see him do it. He

drove for a while, thinking of a way to get Rachel’s mother, Barbara

Sloop, and a houseguest, Kim Haist, out of the house. At about 11:30

p.m., he called the Sloop residence from a pay telephone at a gas

station in Carthage, Illinois, and told Barbara that she and Kim were

needed at Kim’s apartment in Carthage, because Kim’s ex-fiancé,

Terry Hamelton, had ransacked her apartment there.

He then sped to the Sloop home. He turned the lights off in his car

and waited until he saw the adults leave. Once he was sure that

Barbara and Kim were gone, he parked his car on the side of the road

beyond the Sloop home and walked through a cornfield to the home,

carrying wire cutters, a flashlight, and his pistol. He looked in the

windows and saw that Rachel and her 12-year-old sister, Lonna, were

in the living room watching television. To ensure that Barbara could

not telephone the girls from her cell phone once she discovered the

ruse, he cut the telephone line to the house. He entered the house

through the unlocked back door.

He approached Rachel quietly, startling her by touching her. They

went into the dining room and talked for a while as she sat at the table

with her back to him. According to defendant, he had not planned to

shoot her, but she said something that set him off and he pulled out

the gun and shot her in the back of the neck. He could not recall what

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she said to upset him.

Lonna, who was in the living room lying on the sofa, began

screaming, so he shot her twice. Kim’s two children, Cody Hamelton,

age 3, and Courtnie Hamelton, age 2, were sleeping upstairs. When

defendant heard them crying, he went upstairs and shot both children.

(An autopsy revealed a nonfatal wound to Lonna’s neck and a fatal

wound to the top of her head. The children survived, with serious

permanent injuries.)

Defendant told police that he then tried to shoot himself in the

head with his pistol, but that it misfired. He knew that there was a

shotgun in the house, which he retrieved and again tried to kill

himself. The shotgun slipped as he fired, causing a superficial wound

to the back of his head, but he believed that he was dying.

When he came back downstairs, he found Rachel on the floor,

slipping in and out of consciousness. He lay down on the floor next to

her and fell asleep. He awoke when she got up to go to the bathroom.

She walked out of the house and he followed. The police, who by this

time had been called to the house by Barbara Sloop, were outside and

took him into custody. He led them to L.M.’s body and later waived

his Miranda rights and made the statement summarized above, which

was videotaped.

Procedural History

Following a jury trial in which he raised the defense of insanity,

defendant was convicted of the murders of L.M. and Lonna Sloop and

other felonies. The jury found him eligible for the death penalty based

on the cold, calculated, and premeditated manner in which the crimes

were committed. 720 ILCS 5/9–1(b)(11) (West 1996). After a

hearing, the jury found no mitigating factors sufficient to preclude

imposition of the death penalty. The trial court sentenced defendant

to death for the murders and to terms of imprisonment for the other

crimes. This court reversed defendant’s convictions and remanded for

a new trial. Ramsey, 192 Ill. 2d at 158-59.

Pretrial proceedings concluded in April 2007 with the selection of

a jury. Shortly thereafter, the parties advised the court that a plea

agreement had been reached under which defendant would plead

guilty to the murders of L.M. and Lonna Sloop, the attempted

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murders of Rachel Sloop, Cody Hamelton, and Courtnie Hamelton,

the aggravated criminal sexual assault of L.M., and home invasion.

The State agreed to dismiss four other counts. The trial court

admonished defendant regarding the effect of a guilty plea and of the

rights he was relinquishing. The court also determined that the plea

was voluntary and was not the result of threats or promises.

The matter proceeded to a capital sentencing hearing before the

jury.

Capital Sentencing Hearing–Eligibility Phase

At the eligibility phase, the State introduced a copy of defendant’s

birth certificate, showing his date of birth as March 30, 1978. The

State also offered a certified copy of five judgments of guilt based on

defendant’s guilty pleas.

L.M.’s mother testified that her daughter and defendant had been

“platonic” friends who talked daily on the phone. He often visited the

Marson home to watch movies with L.M. She allowed L.M. to go for

a drive with defendant at approximately 11 p.m. on the evening of July

8, 1996, and expected her daughter to be home in half an hour. When

she was not home by 3 a.m., she called the police.

Crime scene investigator Steve Zuber of the Illinois State Police

described the grain bin where L.M.’s body was found as being in a

field of fairly mature corn, “about a hundred feet” off the road and

“surrounded with fairly dense vegetation.” There was a path leading

from the road to the empty bin, but it was also covered with

vegetation. Some of the vegetation was “crushed-down” as if a vehicle

had recently driven on it. There were tire tracks and shoe prints in the

dirt behind the grain bin, where the vegetation was less dense. He

took photographs of the tire tracks and shoe prints. Zuber identified

several distinctive aspects of the shoe prints that identified the shoes

as Nike brand shoes.

Zuber further testified that he found the body of L.M. inside the

grain bin, with her head “wrapped almost completely in duct tape from

her eyebrows down to her chin with no openings left for her eyes,

ears, nose, or mouth.” Her arms and wrists and lower legs were also

bound with duct tape. Her shorts were torn and there appeared to be

blood on her underwear. Her fingers were also bloody. Zuber

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identified a photograph of the soles of L.M.’s shoes and noted that no

footprints matching her shoes had been seen in the area of the grain

bin.

Barbara Sloop testified regarding the dating relationship between

defendant and Rachel and Rachel’s decision to end it because she felt

defendant was “smothering” her with his constant attention. While the

young couple was dating, defendant visited the Sloop home every day

and spent some weekends there. After the breakup, he continued to

be a regular visitor and to call Rachel almost every day. When she

returned home after work on the evening of July 8, 1996, defendant

was there. Kim Haist, a family friend, was also there. She had been

staying in the Sloop home with her two small children because an ex-

boyfriend had recently set fire to her car. Barbara and Kim discussed

the security of the Sloop home and defendant interjected that “if

anybody wanted in your home, whether your doors were locked or

not, they would get in.” Shortly thereafter, Barbara told defendant

that dinner was almost ready and that he could not stay because she

did not have enough food for everyone. He did not leave right away,

but did eventually leave.

Barbara said that she was asleep on the couch in the living room

when the telephone rang at about 11:30 p.m. She recognized

defendant’s voice. He told her that Kim’s former boyfriend had

ransacked her apartment and was going to pour gasoline on it and set

it on fire. He told her to get Kim and come directly to her apartment

in Carthage and not to go to the police station. She woke Kim and

then Rachel, so that Rachel could listen for the children in case they

woke up. When she and Kim arrived at Kim’s apartment, neither

defendant nor the police were there and nothing was amiss. She called

home and got a busy signal, so she drove to the sheriff’s office.

Thomas Merchie, a crime scene investigator with the Illinois State

Police, testified that he photographed a brown or tan Ford bearing

Iowa license plates that was parked east of the Sloop residence on a

gravel road leading into a field. The car was separated from the house

by a corn field and a bean field. He measured the distance at

approximately 417 feet from the car to the house. Merchie observed

a police radio sitting in the front seat of defendant’s car. The radio

was turned on and he could hear police radio frequency traffic. After

arranging for the car to be towed for later processing, Merchie went

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to the Sloop home to process the scene there.

In the living room, he found the body of a young woman on the

couch. She was partially covered with an afghan and her head was on

a pillow. She had been shot in the right side of the neck, with the

bullet traveling through the pillow. She had a second gunshot wound

to the top of her head.

In an upstairs bedroom, Merchie found a shotgun on the floor near

an empty gun case and a .22-caliber handgun. Outside the residence,

he found three telephone wires that had been cut. He also found a

blue-handled “side cutter,” or wire cutter, in the grass outside the

house. He found no signs of forced entry into the house.

After being accepted as an expert witness without objection by the

defense, Dr. Travis Hindman testified regarding the autopsy he

performed on L.M. He described the duct tape that was wrapped

“very tightly” from her forehead to her chin. Her arms were taped to

her chest and her legs were taped together. She had abrasions on the

fingers of both hands. Her shorts were torn and stained. He found

bruising and tearing in the vaginal area, compatible with a sexual

assault. Hindman recovered bullet fragments from a gunshot wound

to the back of her head. The cause of death was severe brain trauma

due to the gunshot wound, with a possible contributory cause of

asphyxia due to her face having been covered with duct tape. Other

physical findings demonstrated that L.M. was alive when she was

shot. Had she not been shot, she eventually would have suffocated.

Hindman also testified regarding the autopsy of Lonna Sloop. She

had one gunshot wound to the side of her neck and one to the top of

her head. The bullet penetrated a pillow before entering her neck,

pulling some of the pillow filling with it. The wound was about one-

inch deep and when the pillow fabric rebounded, it pulled the filling

and the bullet with it. As a result, the neck wound was survivable. The

second wound was fatal.

The State’s final witness in the eligibility phase was Rachel Sloop

White, now age 28. She testified that she began dating defendant in

March 1996, when she was 17 years old. During the several months

that they dated, he came to her house “every day” and stayed “all

day.” She decided to end the dating relationship in late June 1996

because he was too possessive and she felt that she had no “space” of

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her own. After she ended the dating relationship, he continued to visit

the Sloop home every day and they remained friends.

She explained that Kim’s brother, Terry Haist, was engaged to

Amy Sloop, Rachel’s older sister. Kim and her two children were

staying with the Sloops because she suspected the children’s father,

Terry Hamelton, of setting fire to her car the previous weekend. On

the afternoon of July 8, 1996, defendant was visiting the Sloop home

and the fire was discussed.

At about 11:20 p.m. that night, Rachel’s mother woke her up,

explaining that she and Kim had to leave the house. Rachel was afraid

to be the oldest person in the house with only her 12-year-old sister,

Lonna, and two small children. She woke Lonna and asked her to

accompany her downstairs so she would not be alone. Lonna lay on

the couch and fell asleep while Rachel sat in a recliner, watching

television.

She looked up and saw defendant coming through the dining room

toward her. When she asked what he was doing there, he replied that

her mother knew he was there and that it was “okay” for him to be in

the house. He asked her to come into the dining room to talk to him

and she complied. Toward the end of that discussion, he asked Rachel

if she would resume dating him.

At this point in her testimony, the State rested its case on

eligibility. The defense presented no evidence at this stage of the

proceedings. Closing arguments were made and the jury was

instructed.

The State noted that defendant was 18 years old and that he had

pleaded guilty to first degree murder. In addition, the State argued

that it had proven the existence of three eligibility factors beyond a

reasonable doubt: (1) defendant was convicted of murdering two

individuals and their deaths were the result of his intent to kill (720

ILCS 5/9–1(b)(3) (West 1996)); (2) defendant killed L.M. in the

course of another felony, aggravated criminal sexual assault (720

ILCS 5/9–1(b)(6) (West 1996)); and (3) both murders were

committed in a “cold, calculated and premeditated manner pursuant

to a preconceived plan, scheme or design to take a human life by

unlawful means, and the conduct of the defendant created a reasonable

expectation that the death of a human being would result therefrom”

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(720 ILCS 5/9–1(b)(11) (West 1996)).

In support of the third factor, the State argued that the murder of

L.M. was cold, calculated, and premeditated, as shown by the fact that

the defendant brought a gun and duct tape when he went to Marson’s

house and that he drove only 1.6 miles from the Marson home before

leaving the road to park behind a grain bin that was surrounded by

dense vegetation, where he raped her, bound her with duct tape,

placed her inside the grain bin, and shot her.

Similarly, the State argued, the murder of Lonna Sloop was cold,

calculated, and premeditated. Defendant lied to Barbara Sloop to get

the adults to leave Rachel, Lonna, and two small children alone in the

house, using information about who was in the home that he obtained

in an earlier visit that day. He sped to the Sloop home and parked off

the road with his headlights off, so that he could see the adults leave.

Then he parked his car where it could not be seen from the house, cut

through a cornfield to reach the house, and cut the telephone lines.

After gaining access to the house, he shot Lonna in the top of the head

as she lay on the living room couch.

Defense counsel emphasized that defendant, after receiving

Miranda warnings and knowing that he did not have to speak,

cooperated with the police. He gave a full statement and took

responsibility for his actions at that time and later when he pleaded

guilty. If he had premeditated killing L.M., counsel argued, he would

not have spent half an hour visiting with her in her home before taking

her out that night. Counsel also noted that defendant did not try to

disguise his voice when he called the Sloop home. Thus, counsel

suggested, because he did not try to conceal his identity from his

victims’ mothers, he did not premeditate the murders.

The jury found, unanimously, that each of the three aggravating

factors existed.

Capital Sentencing Hearing–Evidence in Aggravation

After opening statements by both sides, Rachel Sloop White

resumed the stand as the State’s first witness in the second stage of

the capital sentencing hearing. She testified that she was introduced

to defendant by a mutual friend, L.M., at the Keokuk, Iowa, YMCA.

Eventually, they began dating and she attended prom with him in

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March 1996. She broke up with him later that spring by giving him a

letter that she had written. She wanted to continue to be his friend.

On the afternoon of July 8, 1996, defendant was visiting her

house. Rachel, Lonna, Kim, and defendant talked about the incident

in which Kim’s car caught fire. There had also been a fire in

defendant’s car. They all suspected Terry Hamelton of setting the

fires.

At some point in the afternoon, defendant drove Kim into town to

run errands “to do with the fire” and then brought her back to the

house. Rachel’s mother returned from work about 4:30 p.m. and

began cooking dinner. She told Rachel that it was time for defendant

to leave because there was not enough food for him to eat with them

that evening. After Rachel told defendant to leave he “moved at a

slow pace,” and when he did finally leave, called her a “bitch.”

She was asleep later that night in her second-floor bedroom when

her mother woke her, explaining that she had received a telephone call

from defendant telling her that she and Kim were needed in town at

Kim’s apartment because Terry Hamelton was ransacking it.

Rachel and Lonna were in the living room watching television

when she heard someone in the dining room. She saw defendant

coming toward her. Defendant asked to talk to her in the dining room.

They sat at the table, smoking cigarettes and talking. When he

asked her if she would resume dating him, she tried to change the

subject, saying that she needed to bring the dogs inside. She went to

the front door to let the dogs in and defendant accompanied her. Then

they went back to sit at the dining room table. From her seat at the

table, she could see out the window and she saw the headlights of a

car coming down the road toward the house. When she told defendant

that a car was approaching the house, he shot her in the head, just

above and behind her right ear. Before she “fell over,” she heard her

sister, Lonna, say, “Don’t shoot me.”

Rachel remained seated, with her head resting on the table, as she

slipped in and out of consciousness. At some point, defendant

returned to the room. He was bleeding and he let his blood “just go all

over” her. Then he asked her to lie down on the floor next to him. She

used a chair cushion as a pillow and lay down on the floor, covering

herself with a blanket. He kept touching her, asking her if she was still

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alive. She responded, “Stop touching me before I die.” She asked

defendant if he had shot anyone else and he told her that he thought

he had killed her sister, but he denied having shot the two children.

Eventually, she told defendant that she had to go to the bathroom.

He initially refused to let her leave, but she told him that she would

leave the bathroom door open. When she came out of the bathroom,

she did not see defendant, so she opened the front door and walked

outside where the police were waiting. (Later testimony by a state

trooper established that it was approximately 5:52 a.m. on July 9,

1996, when Rachel exited the house, followed shortly thereafter by

defendant, who surrendered to the police.)

Michelle Haist, the younger sister of Kim and Terry Haist, testified

that she knew defendant because he was dating Rachel, whose sister,

Amy, was engaged to Michelle’s brother, Terry. Defendant “was

always around.” In 1996, Michelle was living with Kim in Carthage,

Illinois.

On July 3, 1996, Michelle had been at Kim’s apartment when

Terry Hamelton came by and told her that he wanted to see the

children, Cody and Courtnie. Kim had not been home at the time.

Later that night, Michelle was awakened by flashing lights. Kim’s car

was on fire and the flames were “starting to come in the window.”

On several subsequent evenings, defendant spent the night at

Kim’s apartment, along with Michelle, her boyfriend, and Kim and the

children. Everyone was on edge. The night of July 6, defendant “kept

going in and out,” then he ran into the apartment saying his car was

on fire. When she went out to look, she saw several newspapers in the

backseat that had been set on fire. The flames had gone out on their

own and it was not necessary to call the fire department.

Michelle also testified that she was at the Sloop home on the

afternoon of July 8, 1996. She noted that defendant and Rachel “were

having some kind of argument.” She accepted a ride back to Keokuk

from defendant. Rachel was yelling after him as they pulled out of the

driveway. Defendant said that he felt like pulling “in front of a semi

right now.” She told him that it was “stupid” to kill himself over

“some girl” and that he just needed to move on. He would not accept

that Rachel did not want to be with him.

Defendant dropped Michelle at a friend’s house and then left for

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a bit, saying that he had to go to his house “to do something.” Later,

he returned and offered Michelle a ride to her home. She said she was

not ready to go, so he stayed. Then he left a second time and came

back, again offering to take her home. She told him she intended to

stay there for the night. He “stayed there for a while and then he

eventually left.” Michelle was “annoyed because he just kept repeating

it over and over and kept asking [her] to go ***. He just persistently

kept asking me over and over.”

Terry Haist testified that he was living at the Sloop home with his

fiancée, Amy Sloop, in 1996. He knew defendant as Rachel’s

boyfriend. Terry had a 20-gauge single-shot shotgun that he kept

under the bed in Amy’s upstairs bedroom.

He also testified regarding the relationship at that time between his

sister, Kim, and her former boyfriend, Terry Hamelton. There was

some “squabbling” between Kim and Terry Hamelton over the

children. Terry Hamelton resented Terry Haist because he was “more

or less like a father figure to the kids.” Hamelton had made comments

about coming for Haist and wanting “a piece” of him. Terry Haist was

told by defendant that Hamelton had been taking target practice,

making Haist believe that Hamelton was going to come looking for

him. Every time defendant was at the house, he would make

comments to Haist about “what Terry Hamelton was doing.”

On the afternoon of July 8, 1996, Haist was at the Sloop house

while Barbara Sloop was cooking dinner. Everyone, including

defendant, was talking “about how everybody was scared about all the

events that were going on. And Amy wanted her mom to lock all the

doors.” Defendant said that if someone really wanted to get into the

house, they could just come in through the window, pointing at the

window in the dining room.

On the evening of July 8, 1996, Haist and Amy did not stay at the

Sloop home because Amy was afraid that Hamelton “was going to

show up and try to do something.” They went into town to stay with

his grandmother. He left the shotgun in the bedroom, sticking out

from under the bed so that he could have easy access to it. The

shotgun was not loaded.

Haist further testified that he had shot the shotgun with defendant

on at least five occasions. They shot birds and took target practice.

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Once, defendant brought his own shotgun shells so that he could take

target practice while Haist was gone.

Kim Haist’s previous sworn testimony was read into the record by

another person. She had testified at the first trial that on July 8, 1996,

defendant drove her and her two small children from their apartment

in Carthage to the Sloop home. Her car had been set on fire at her

home several days before and she suspected that Terry Hamelton, the

children’s father, was responsible. She knew defendant through the

Sloop family and he had stayed at her apartment for several nights to

protect her and her children.

After they dropped the children at the Sloop home and arranged

for Lonna to watch them, defendant took Kim to run several errands

in town. They returned to the Sloop home at about 4 p.m. and visited

for a while. When they discussed the recent fire, the discussion turned

to the need to lock the doors when everyone went to bed that night.

Defendant said that it would not matter if the doors were locked,

because someone who wanted inside could come through the

windows.

When it was time for defendant to leave, he offered to drive Kim’s

younger sister, Michelle, to her boyfriend’s house in Keokuk, Iowa.

Michelle and defendant left the Sloop home together. Terry Haist and

Amy Sloop also left for the night because Amy did not feel safe. Then

Kim and Barbara Sloop went back to Carthage to retrieve clothing

and toys for the children, returning at about 10 p.m. After they

watched the television news, everyone went to bed. Barbara woke her

at 11:30 p.m., to tell her that defendant had phoned to say that they

needed to go to her apartment in Carthage because Terry Hamelton

had been arrested while ransacking her apartment and that the police

needed to speak to her. When they arrived, they saw no lights and no

vehicles. They went to the police station and Barbara attempted to call

home. When there was no answer, a county sheriff’s deputy was sent

to the Sloop home. At the request of the police, they remained at the

police station until 6:30 a.m. the following morning. The next time she

saw her children was in the trauma unit of the local hospital, before

they were airlifted to Peoria for treatment.

Police Captain Kevin Church of Keokuk, Iowa, testified that when

he was a patrol officer in 1992, he investigated a report of a young

man who approached the manager of a cemetery, asking alarming

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questions about security there. He had shown her a police badge and

stated that he was doing security work for the police department.

Church identified defendant as that young man. Church and another

officer went to the Ramsey home, spoke to defendant’s father, and

searched defendant’s bedroom, where they found a police badge.

Defendant’s father told Church that he had found some stolen items

in the attic of his garage and had discarded them. He gave the officers

permission to search the garage and they found a 9-millimeter

handgun. Church asked that defendant be brought to the police

station, where he was given Miranda warnings and made a statement,

admitting that he had gone to the cemetery and spoken to the

manager. He also admitted stealing the handgun from a neighbor’s

home. Church also testified that he had arrested defendant on more

than one occasion prior to this incident.

Amy Mitchell Briggs testified that in 1993 she had been the

girlfriend of Shane Mullenburg. She knew defendant from school and

from seeing him around town. On October 11, 1993, she and Shane

left his house to go out for the evening. She had forgotten something,

so they returned to the house where they found defendant and another

young man whom she identified as Dustin Wade. One of them was

holding a VCR. They went out through the front door and she chased

them. She could not recall if Shane owned a gun at that time.

Barbara Sloop returned to the stand to read a victim impact

statement regarding the death of her daughter, Lonna.

Thomas Crew, chief of police for the City of Keokuk, Iowa, was

the next witness for the State. In 1993, when he was a criminal

investigator, he investigated the burglary of Shane Mullenburg’s

home. The police could not locate defendant, but they did speak to

Dustin Wade, who explained that the burglary was defendant’s idea

and that defendant was looking for a gun. He said that when they

were interrupted by Briggs’s return, the gun was left on a bed.

Crew also testified that he was familiar with defendant, who was

a “common figure” in the community and who frequented the fire

department and police department on a regular basis. He was “always

there” and was fascinated with anything having to do with radio

equipment or emergency services.

In 1994, Crew was part of a task force that was conducting

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undercover narcotic operations. The members of the task force used

radios to communicate during surveillance. At one point, Crew was

sent to do a “buy bust” at a local hotel. As he was driving an

unmarked car to the hotel, he saw defendant on the street talking to

a relative of the target of the operation. As Crew drove by, defendant

pointed him out to the person to whom he was speaking.

That individual later complained to the police department that he

and his family were being surveilled by the police. An investigation

revealed that defendant had recorded task force radio transmissions.

Upon learning that the task force’s radio frequencies had been

compromised, Crew obtained a search warrant for defendant’s school

locker and his residence. In his bedroom, police found a Rolodex file

containing information regarding police officers and their families,

including home addresses and names of their children and spouses.

The file contained similar information regarding firefighters and

emergency management personnel. Defendant was charged with

interference with official acts.

Dr. Christopher Hefner testified as an expert witness. He testified

that he treated Rachel Sloop for a gunshot wound to the head. The

bullet struck and entered the first cervical vertebra and both the bullet

and the bone were fragmented. There was no exit wound. The injury

resulted in complete occlusion of the right vertebral artery, which

supplies the back part of the brain. Although Rachel was able to speak

and her vision and facial functions were normal, this injury presented

a risk of a devastating stroke due to formation of a blood clot. Dr.

Hefner elected to use blood thinners to treat the clot, rather than

surgery, because of the risks involved in surgery. Rachel’s injury was

potentially life-threatening.

Retired Illinois State Police officer Stuart Erlenbush testified that

he had been present on the morning of July 9, 1996, when defendant

was taken into custody. He observed what appeared to be a superficial

gunshot wound to the back of his head. There was some blood, but no

sign of a puncture wound. The wound was treated by applying gauze

with tape.

Dan Law of the Illinois State Police testified over a continuing

objection by the defense to any mention of the attempted murders of

Cody and Courtnie Hamelton. Law stated that he responded to the

Sloop home on the night of July 8, 1996, as a member of the tactical

-15-

response team. After donning protective gear, the team approached

the house from the rear. As they did so, two individuals exited

through the front door. The team then entered the house. Law went

to the second floor and entered a bedroom in which he found a small

boy, lying on the floor with a blanket and pillow covering his face.

Law removed the blanket and pillow and then began removing his

equipment so that he would not alarm the boy. He did not initially

observe any injuries, but saw the child’s skin turn an ashy color. His

condition seemed to be deteriorating. When medical personnel arrived

and moved the boy, Law observed a wound in his back. While he was

tending to the boy, Law heard a gasp from the corner of the room. He

looked over to see a small girl lying on the floor. One of her eyes was

“bulged out enormously” and there was dried blood on her face. When

the EMT tried to insert an IV in the girl’s arm, she began screaming.

Once the boy was removed on a backboard, Law carried the girl to

the waiting ambulance. Law returned to the house through the front

door and observed the body of another girl lying on the couch.

Illinois State Police master sergeant Bruce Liebe also testified over

a defense objection regarding the discovery of the injured children in

the upstairs bedroom. Liebe stated that he saw the two children lying

on the floor. The girl was face down and he initially thought she was

dead. The boy was lying on his back, with a pool of blood around his

head. He was obviously frightened. Liebe got down on the floor and

began removing his mask, goggles, and other equipment. The boy

calmed down. He was alert and responded with eye movements, but

he did not speak. At this point Law realized that the girl was still

breathing. He observed what appeared to be a gunshot wound to her

right eye. Initially, he could not tell whether it was an entrance wound

or an exit wound. Later, he discovered an entry wound to the back of

her head. The girl seemed to be unconscious, but reacted when

paramedics attempted to insert an IV. Then the boy became

unresponsive and his color turned ashen. He appeared to be going into

shock. When the boy was being moved to a board, Liebe observed a

bullet wound in his “upper shoulder area alongside of his spine.” Both

children were then removed to waiting emergency responders.

Dr. William Hanigan, a neurosurgeon, testified as an expert

witness regarding his treatment of Cody and Courtnie Hamelton.

When he first saw Courtnie in the emergency room, she was

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semicomatose. A CT scan of her head showed bone and bullet

fragments along the right side of her temporal lobe to the right eye,

along with a blood clot. He performed surgery to remove the

fragments and injured brain tissue. Courtnie’s right eye was

“destroyed.”

Hanigan saw Cody Hamelton for the first time the following day.

The bullet wound through his shoulder damaged his esophagus, which

required surgery to repair. He later developed a bacterial infection at

this site. The bullet also fractured cervical vertebrae and injury to his

right brachial plexus, which supplies nerves to the arm. Cody was not

able to move his right arm and was barely moving his right leg. A

second surgery was required to remove dead tissue in the shoulder.

During this procedure, the doctor performed a spinal tap, which

revealed meningitis.

Captain Tim Becker of the Illinois State Police testified that he had

been a trooper in 1996 and that he was the individual who placed

defendant in handcuffs after he exited the Sloop home. He observed

that defendant had blood on his hair, face, and clothing. Another

trooper read defendant the Miranda warning. Defendant

acknowledged that he understood his rights. He was “shivering;

shaking violently; crying; saying he was sorry.” On cross-examination,

Becker acknowledged that defendant shed tears and that he said he

was sorry more times than Becker could count.

Ron Wood testified that he was a juvenile court officer in Keokuk,

Iowa, and that he had held that position since 1985. He first

encountered defendant in 1992, when he was charged with fourth

degree theft for stealing a gun. He was adjudicated delinquent, placed

on probation, and ordered to comply with certain conditions including

attending school, making restitution, performing community service,

and obtaining counseling.

Wood next encountered defendant in 1993 after he was charged

with fourth degree theft, assault, fifth degree theft, assault doing

bodily injury, and third degree burglary. The charges stemmed from

five separate incidents. Wood recommended that defendant be placed

in detention. After a hearing, he was ordered placed in detention in the

juvenile facility at Montrose, Iowa.

Defendant later admitted the delinquent acts of theft and assault.

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The court placed custody of defendant with his parents and sister for

the purpose of placing him in an “appropriate structured residential

facility,” which Wood described as “group care.” He went to a home

in Davenport, Iowa, where he attended school and obtained family

and individual counseling. He remained there from November 1993 to

August 1994, when he was released by consent of all parties, including

the State’s Attorney. He remained on probation.

In December 1994, while still on probation, defendant was

charged with interference with official acts and harassment of a public

official. After a hearing, his probation was revoked and he was placed

at the State Training School for boys at Eldora, Iowa, which is the

state’s juvenile prison.

On cross-examination, Wood acknowledged that defendant

admitted guilt each time he was accused of a crime. In addition, a

psychiatrist at the State Training School prepared a report, which was

submitted to Wood, in which he diagnosed defendant with Attention

Deficit Hyperactivity Disorder (ADHD) and recommended that he be

referred to a mental health center for treatment with medication.

Wood agreed with his recommendation that defendant be placed in a

highly structured group home upon his release from Eldora. This

recommendation, however, was rejected by the committee responsible

for such decisions and the defendant was instead sent home “with

services.”

Wood was also questioned on cross-examination about the

circumstances of the December 1994 charges. Defendant entered an

electronics store in Davenport, Iowa, and claimed to be a member of

the West Point fire department. He attempted to buy the type of radio

used by the department. The clerk became suspicious and refused to

make the sale. The clerk took down the license plate number of

defendant’s car and reported the incident to the sheriff.

Wood’s cross-examination was also used to admit defendant’s

discharge summary from Eldora, which indicated that he had been a

productive student, taking a vocational course in residential wiring,

that he had completed his GED requirements, and that he was enrolled

in a computer literacy program.

On redirect, Wood testified that defendant served multiple in-

school suspensions during his eighth-grade year, 1991-1992, for

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offenses such as hitting, kicking, and pushing other students and

possession of keys to the school building. Except for a B in physical

education, his final grades were Ds and Fs. In 1992, when Wood first

dealt with defendant, he had not previously been charged with any

crime. However, he told Wood that he had been involved in numerous

thefts in the Keokuk area. The records provided to Wood revealed

that prior to the incident involving the cemetery and the theft of the

gun, defendant was seen by a clinical psychologist who diagnosed him

as having oppositional defiant disorder. In addition, the doctor who

diagnosed the ADHD condition found “no evidence for any serious

mental disorder which would impair [his] ability to be responsible for

his behaviors.” Records from defendant’s stay at the group home in

Davenport showed that he had a “superficial commitment” to the

program there and that he “demonstrate[d] a false commitment to the

program.” He denied and minimized the conduct that resulted in his

placement there and did not accept responsibility for his actions.

Further, he interacted with his peers in a “domineering and superior

manner.” He also had an “unrealistic concept of boundaries between

himself and authority figures.” Wood read and relied on these reports

and records to make his recommendation regarding placement of

defendant.

In 1994, after the incident in which defendant interfered with the

work of the drug task force, a search warrant was executed on his

locker at school. The search disclosed a confidential list with unlisted

telephone numbers at the school. Based on his possession of this list

and his excessive absenteeism, he was suspended from high school.

Defendant’s father thereafter contacted Wood to tell him about the

suspension and to report that defendant was not following his curfew.

His father was concerned with recent outbursts of defendant’s temper

and feared that he might physically hurt his mother. Wood’s testimony

also revealed that defendant’s parents were, in fact, his biological

grandparents who had adopted him as an infant.

Dr. James E. Coeur was unavailable to testify. His testimony from

defendant’s first trial was read into the record. Dr. Coeur testified that

he treated defendant on July 9, 1996, for a superficial wound to the

back of the scalp. An X-ray revealed no damage to the skull. The

wound was a “groove” in the soft tissue of the scalp, about 4½ inches

long and half an inch wide. He used a local anesthetic and sutured the

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wound. Defendant was calm and cooperative.

The videotape of the statement defendant made to the police on

the morning of July 9, 1996, was admitted into evidence via the

testimony of William Pententler of the Illinois State Police, who was

present during the interview. The tape was played for the jury. Its

contents are summarized above.

The State’s case in aggravation closed with the testimony of

Suzanne Marson, who read a victim impact statement regarding the

death of her daughter, L.M.

Capital Sentencing Hearing–Evidence in Mitigation

Mark Cunningham, a clinical and forensic psychologist, testified

as an expert witness that he is familiar with scholarly research

regarding the likelihood that a capital defendant will commit serious

violence while in prison. He authored a number of articles on this

topic, for which he received several awards. Cunningham interviewed

defendant for 1 hour and 40 minutes in August 2006. He also

interviewed two corrections officers from facilities in which defendant

had been confined regarding their observations of him, and he

reviewed defendant’s records from these facilities. In addition,

Cunningham utilized statistical and demographic information

regarding inmates who commit crimes while in prison.

Cunningham opined that there is a “very low likelihood that Dan

Ramsey would commit an act of serious violence or seriously injury

somebody while confined for life.” This conclusion was based on

defendant’s age (29 at the time of his evaluation), the appraisal of

correctional staff, the fact that he holds a GED certificate, and the fact

that he has regular visitation with his family. In addition, “in his

interpersonal style, he is significantly detached from inmate

interactions.” Cunningham also noted that defendant had no

disciplinary tickets for threats, fights, or assaults while in prison.

Cunningham further noted that the data shows that severity of the

offense that sent an individual to prison is not a predictor of violence

while in prison. He also testified regarding the conditions in Illinois

prisons for individuals serving life sentences without the possibility of

parole.

Jana Huele testified that she is defendant’s biological mother and

-20-

his adoptive sister. She was 16 years old when defendant was born.

Her two older sisters and older brother had left home by this time, so

she was the only child living at home with her parents. She concealed

her pregnancy from her parents until a few hours before giving birth.

She received no prenatal care. She originally intended to give the baby

up for adoption, but decided the morning after his birth that she

wanted to see him. The nurse brought her an infant, with whom she

spent several hours. After she went home with her parents, she

realized that their description of the baby’s red hair did not match the

infant she had seen. When the social worker came to the house for her

to sign the consent papers, she insisted that she could not sign the

papers without seeing her baby.

The social worker brought the infant to the Ramsey home. Jana

and her family, including her parents, her grandmother, one sister, and

her brother, spent several hours with the infant. When Jana announced

that she wanted to keep the baby, the family was “very happy.” The

social worker took the child back to the foster parents, over her

objections. He was not returned to her for a week and a half or two

weeks.

Jana went back to school while her mother cared for the baby. The

crib was placed in her parents’ bedroom and her mother got up with

the baby at night. Eventually, her parents suggested that they adopt

the baby and she agreed. The adoption was final just before his first

birthday. When she was 17, Jana married Mark Huele and moved out

of her parents’ house.

Jana did not necessarily agree with her parents’ decision not to tell

defendant the circumstances of his birth and adoption until he was in

his teens, but she and the other family members went along with the

decision. However, when defendant was about nine years old, Jana’s

oldest sister began to drop hints that his parents were really his

grandparents. The sister was then divorced and living at home and

Jana felt that she was jealous of the amount of attention her parents

paid to defendant rather than her own children. After defendant found

out that he was adopted, he began to rebel. He was angry and began

to get into trouble. Over time, it became more difficult for her parents

to discipline defendant. She and her siblings could not tell their parents

about anything defendant said or did, because they would not have

believed it. Her parents thought that their children and grandchildren

-21-

were jealous of defendant and tried to get him into trouble.

At age 11 or 12, defendant became very interested in listening to

the police scanner. He would keep track of calls and would ride his

bicycle to watch what was going on. He equipped his bicycle with a

light and some sort of siren and carried the scanner with him.

Edna Jean Daggs testified that she had been defendant’s

kindergarten teacher. She noticed that defendant was immature and

had a difficult time staying on task. She had a hard time getting and

then holding his attention. She discussed the situation with defendant’s

parents, who declined to give permission to have him tested. At the

beginning of the school year, routine speech, hearing, and vision

testing was done. Defendant’s parents would not give permission for

additional testing or the speech therapy that was recommended as a

result of the screening. During the first semester, defendant did not

learn to write his name and he did not learn to recognize any sounds

associated with letters of the alphabet. Daggs later sent home another

request for special education support services for defendant’s parents

to sign. Instead, they withdrew him from school.

Defendant’s kindergarten grades were admitted via Daggs’s

testimony. In addition to the report card she gave, which stated that

he was not making progress, talked constantly, and had a very short

attention span, the physical education teacher reported that defendant

experienced difficulty with jumping, skipping, hopping, galloping, and

marching. He had difficulty identifying parts of the body and naming

animals.

Phyllis Benner testified that she was defendant’s teacher for the

remainder of kindergarten after he transferred from public school. He

had to repeat kindergarten because he had not yet begun to read. He

attended the same school for first through fourth grades. Defendant

was “a loner.” He did not have any friends at school. On show-and-tell

days, he would bring keys to school. He would take his ring of keys

out on the playground and try to tell the other children what he could

open with them. He was disappointed that they were not interested.

Kathleen Carter testified that she had been defendant’s sixth-grade

teacher at another private school. As a transfer student in fifth grade,

he had a hard time fitting in. He was a C or D student in her class. She

thought he would benefit from speech therapy and she referred him to

-22-

the speech teacher. The principal signed off on her recommendation

and defendant’s mother consented to the initial evaluation. However,

she refused permission for him to attend speech therapy.

She further testified that defendant had difficulty paying attention,

that he was easily distracted by the sound of a truck going by or even

a lawn mower outside. He did not regularly complete his homework.

He got into scuffles on the playground and in the lunch room.

Defendant complained that other students picked on him and teased

him. For example, he would bring a badge that he had made to school

and tell his classmates that he worked for the FBI. He also brought

toy handcuffs to school. He carried a briefcase instead of a backpack

like the other students. She saw defendant carry a key ring with 20 to

25 keys on it, which hung from his belt loop. He liked to show them

off and tell people what he could unlock.

Doris Turner testified that she had been defendant’s seventh- and

eighth-grade mathematics and science teacher at a Catholic junior high

school. She observed that defendant was not “able to interact with the

other junior high students in a way that [she] would expect a seventh

grade student to interact.” Thus, when assigning students to work

together in lab groups, she had to select a partner for defendant who

could communicate and work with him. He was not able to “banter”

with the other students and took things that they said “very literally.”

His feelings were easily hurt and she saw him “tense up,” “become

rigid,” and have tears in his eyes when this happened. He had no close

friends among the other students, but did stay at school after hours,

as if school were a “safe haven” for him. “One-on-one, with an adult,”

he was “fine.” He was very helpful to the teachers and offered to do

chores such as sweeping and moving equipment.

Turner observed defendant regularly carrying a key ring with as

many as 100 keys on it. He was fascinated with law enforcement and

he would “hop on his bike after school” if he heard a siren. He was

“always talking” about one particular police officer and often wanted

to tell her about things that had happened with the police in town.

Jack Turner testified that he had been the principal of the Catholic

school defendant attended. He found defendant to be “personable” in

a one-on-one conversation. He was “very, very, very infatuated” with

what the police and fire department were doing. However, he was

“kind of a loner, had not matured socially, and as a consequence,”

-23-

Turner thought, he “had a tendency to try and get attention,

sometimes negatively.” Defendant was frequently given detention.

Turner observed no close relationships between defendant and other

students. He sometimes saw defendant trying to join a group of

students in conversation and being rebuffed. Defendant would be

“very hurt,” and he “did not accept rejection very well.” He

participated in no extracurricular activities, but readily volunteered to

help the teachers.

The situation with defendant deteriorated during his eighth-grade

year. Money was missing from the locker room, from bingo receipts,

and from the office. Turner suspected defendant. Defendant was

finally caught with “a whole pocket full of keys that belonged to the

school building” as well as keys to multiple pop machines at the

school and elsewhere.

Turner took the matter to the school board, in a meeting that

defendant’s parents attended. Turner’s position was that defendant

should not stay at the school unless he received “professional help.”

He recommended the Newman Center in Quincy, Illinois. At the end

of the meeting, defendant’s parents knew that if they took defendant

to the Newman Center or a similar facility for treatment, he could

come back to the school. Shortly thereafter, Turner received a request

to transfer defendant’s records to a public junior high school.

Nancy Clemonson testified that she had been employed as a school

counselor at the Catholic junior high school defendant attended. She

first met defendant after an “altercation,” in which he wielded his

briefcase against other students. She spoke to him about appropriate

behavior with other students. Later, she recommended to defendant’s

parents that he receive counseling because he was getting into fights

at school.

Linda Burdette testified that she was defendant’s biological aunt

and adoptive sister. She had given birth to her first child, a son, six

months before defendant was born. She had not been aware that her

teenage sister, Jana, was pregnant. Jana had lost some weight earlier

and Linda thought she was just gaining the weight back. Jana had no

prenatal care. She did not take prenatal vitamins. During the

pregnancy, she “smoked like a chimney” and “drank a lot of Pepsi,”

because she did not like milk. Linda urged her sister to give the baby

up for adoption, but encouraged her to see him before making her

-24-

decision. Jana was “very angry” that the hospital initially substituted

another baby for her to see. Linda did not think it was a good idea for

her parents, then 49 and 50 years old, to adopt the infant. She and her

husband considered adopting him, but did not feel that they could

afford to care for another child.

Linda explained that her parents intended to tell defendant that he

was adopted, but that they wanted to choose the right time. The other

family members were aware of her parents’ insistence that they be the

ones to tell defendant the truth, but they “just kept putting it off and

off and off” until it was “too late.” When defendant was about eight

years old, the oldest Ramsey sister, Debbie, told defendant that he was

adopted. He has since refused to reveal what she told him or the

circumstances, but he was very upset. Debbie was very jealous of

defendant and Linda opined that she “didn’t tell him very nicely.”

After learning the circumstance of his birth, defendant tried to

form a closer relationship with Jana, his birth mother, who lived

nearby with her husband and four children. Her husband “didn’t care

for [defendant] at all” and did not want him around. Her children were

jealous of him. In the end, he was not “welcome” at Jana’s home.

In addition, defendant lost trust in his adoptive parents. Linda tried

to talk to him and to tell him that he was loved, but he ignored her.

His behavior changed and he became rebellious.

She then spoke about his fascination with keys, radios, and

electrical equipment. Once she cleaned her parents’ house for them

and she found keys and key rings hidden in the curtain valances and

other places. He had “stuffed keys all over the house.” He was also

fascinated with the police scanner and hand-held radios.

Shortly before the events of July 8, 1996, defendant came to

Linda’s house to talk to her about his breakup with Rachel Sloop. She

spent about an hour talking to him. He wanted advice on how to

reconcile with Rachel and said that he intended to buy her a gift. Linda

advised against it, explaining that he could not “buy” love. Instead,

she recommended that he write her a card or letter explaining his

feelings. He came back to see her on July 3, 1996, and told her that he

bought a ring for Rachel. Linda was busy preparing for the holiday,

and did not give him the time and attention he needed.

Linda stated that she visited defendant in prison once a week and

-25-

that she once asked him how he felt about what he had done. He

became very upset with her questioning him about his remorse and

said that he thinks about what he did “every day.”

Roy Bell testified that he was a paramedic in Keokuk until 2002.

He stated that when he was on ambulance calls, defendant would

“come and see if we needed any help.” Sometimes defendant would

arrive at the scene before the ambulance. Defendant also came to the

garage where the ambulances were housed. Bell would occasionally

allow defendant to get equipment from the truck or to help lift a

patient on a backboard. Bell encouraged defendant to take the test to

become an EMT.

Richard Marlin testified that when he was employed as a juvenile

court specialist in the early 1990s he twice supervised defendant when

he was ordered to perform community service. Groups of young men

would be assigned to pick up trash or set up tents for community

events. Defendant was a hard worker. He followed instructions and

never complained about the work. Unlike some of the other young

men, defendant was always on time. Marlin stated that he could not

turn his back on defendant because the other boys would “knock him

upside the head.” They did not like defendant, who had problems

fitting in. If Marlin had to leave the work site, he had to take

defendant with him because the other boys “would do something to

him.”

Dr. Ruben Gur was accepted as an expert witness in the fields of

psychology and neuropsychology. He provided a lengthy description

of the structure of the brain, the functions of the various portions of

the brain, and how the brain develops.

Dr. Henry Conroe was accepted as an expert in the field of

psychiatry. He testified that he was asked to evaluate defendant to

determine if he had any mental disorders that might have affected his

behavior in July 1996. He reviewed records regarding the crimes

including defendant’s videotaped statement to the police, records of

interviews with people from the community, and defendant’s medical

and school records. He interviewed defendant for a total of 9½ hours

over a period of several years. He also interviewed defendant’s

adoptive parents, his biological mother, and his adoptive uncle.

Conroe observed that defendant had “difficulty explaining his

-26-

emotions” and that when he did talk about his feelings, there was a

“disconnect” between his facial expression and what he was saying.

He assigned four diagnoses to defendant: “Asperger’s Syndrome,”

“Borderline Personality Disorder,” “Attention Deficit Disorder,” and

a history of “Conduct Disorder.”

He described Asperger’s Disorder as a “mild form of autism,”

which consists of two findings. First, these individuals are unable to

“read” other people’s emotions or cues. As children, they have

problems with their peers and, as adults, they have difficulties in

relationships. Second, individuals with Asperger’s Disorder tend to

have an “intense preoccupation with a very narrow idea *** to the

exclusion of other activities.” They will be “very focused” on this one

idea and “spend tremendous amounts of time over a long period of

time” pursuing it. Asperger’s Disorder was first recognized as a

diagnosis in 1994.

As to the second finding, Conroe found that defendant was

fascinated with communication equipment, particularly as related to

police, firefighters, and emergency responders. His family reported

that this interest began when he was only seven or eight years old. His

brother provided a file that defendant kept as a teenager in which he

recorded names and information regarding people in the community.

At that age, he saw himself as “being an officer in some sort of

security company.” He described defendant’s interest as an “intense

preoccupation.”

As to the first finding, Conroe stated that defendant’s family

members described his difficulty reading their feelings. He did not

relate well to other children, but did better with adults because they

were more patient with his difficulties. The school reports that Conroe

reviewed were consistent with this finding. Defendant was described

as easily upset, mumbling to himself, and having social problems. His

teachers also observed that he was “preoccupied with gadgets” and

that he carried an “FBI badge,” which was actually an old calculator

case. One teacher described defendant as “confused” and “sad” and

having a “short fuse.” She said he was “very sensitive to rejection”

and she considered him “a disaster waiting to happen.”

A person with Borderline Personality Disorder, Conroe explained,

feels abandoned and, thus, rejected. Such a person has unstable

moods, is impulsive, and may have a problem managing anger. In

-27-

addition, the person may have “two conflicting aspects of themselves.”

In defendant, Conroe observed five of eight diagnostic criteria for this

disorder, which is sufficient to make a diagnosis. At a young age, he

learned that he was rejected by his birth mother and adopted by his

grandparents, causing his sense of abandonment. At this time in his

life, there was a “significant deterioration in his behavior,” including

increased anger as reported by his family members and his teachers.

His confusion about his family relationships–learning that the people

he believed to be his parents were his grandparents and that his sister

was really his mother–“could, in a vulnerable individual, cause a great

degree of confusion about who and what they are.” His emotions were

“very easily set off.” For example, his reactions to the breakup with

Rachel Sloop included depression, anger, and tears. Defendant himself

described this period as a “roller coaster.” The two letters that

defendant wrote to Rachel prior to the offenses but did not send to her

revealed feelings “of rejection, anger, suicidal thought, and

abandonment.” The letters were admitted into evidence.

Attention Deficit Disorder (ADD) is seen in children who have

difficulty focusing in school. They are easily distracted and have

problems organizing their behavior and completing tasks. ADD leads

to stress, low self-esteem, and compromised problem-solving ability.

Treatment may include medication, counseling, and special education.

The condition may persist into adulthood. Records from several

schools and from the Eldora facility described defendant in these

terms. While in school, he was evaluated for ADD, but he never

received treatment.

Conroe also reviewed defendant’s medical records, including the

record of his birth, which showed that his teenage mother had

received no prenatal care.

An intake assessment from the River Center for Community

Mental Health, dated December 9, 1991, described defendant at age

13. A psychologist noted that defendant had problems with anger and

peer relationships, particularly after learning that he had been adopted

by his grandparents. He got along with older people, but not others his

own age. Conroe described this as “typical of Asperger’s.” His

adoptive parents described him as having few friends and said that

they did not know what would “provoke him.” He was not physically

violent, but would become “very verbally angry.” Defendant told the

-28-

psychologist that he wanted to be a police officer or a firefighter.

A report from a psychologist who treated defendant supported

Conroe’s diagnosis of Borderline Personality Disorder. The

psychologist stated that defendant liked to talk about listening to

police scanners and being around policemen, but that he became

“quite uncomfortable” when asked about his discovery that he was

adopted. According to Conroe, this showed “how emotionally

charged this was” for defendant and that he did not “have the ability

*** to use that therapeutic session to handle the feelings.”

In a later report, the same psychologist reported that therapy was

being terminated because defendant’s adoptive mother was unable to

afford further treatment. Defendant was disappointed and stated that

he had become “really comfortable” with the therapist. He tried to

persuade his mother to change her mind. In the psychologist’s

opinion, the mother felt threatened because the therapy had begun to

focus on defendant’s lack of a relationship with his birth mother. At

the end of the session, defendant was close to tears and “trying hard

to stifle his emotions.” Conroe opined that this record showed

defendant “had some ability to make use of a therapist,” but that

“external circumstances interrupted therapy.”

In 1992, a psychiatrist at the State Training School in Eldora,

Iowa, diagnosed defendant with ADHD and Undifferentiated Conduct

Disorder. He recommended treatment for the ADHD with a stimulant,

such as Ritalin. The report also described defendant as being “very

immature” and as having difficulty “establishing and maintaining

appropriate relationships with peers.” His IQ was within the average

range, but he was “inept socially, attention seeking,” and his behavior

was “a little odd.” One worker at Eldora said that defendant did not

learn from his experiences with his peers. For example, he would

continue telling his stories even after his peers would tell him that they

did not want to hear any more. Conroe said that this behavior is “very

characteristic of someone with Asperger’s. They don’t get the clues

or the cues from other people.” The report from Eldora concluded

that defendant would benefit from a “highly structured program.”

Conroe concluded that on July 8 and 9, 1996, the disorders he

diagnosed had “an extreme affect” on defendant. They affected his

ability “to make judgments, to manage his feelings, to make decisions,

to deal with the feelings that were welling up within him that were

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[described] in these two notes” that he had written to Rachel. “So he

was under extreme duress at that point from these disorders.”

Defense counsel asked Conroe whether these “mental disorders”

could also be characterized as “mental disturbances.” He answered,

“Yes.” The State objected and the court instructed the jury to

disregard the question and answer.

Conroe opined that defendant was remorseful for his actions, as

shown in his videotaped confession and by the fact that he was “visibly

shaken” when speaking to Conroe about the events. He did not try to

“explain it away or rationalize it” or “make excuses.”

On cross-examination, Conroe acknowledged that another

psychiatrist, now deceased, had been hired by the defense to evaluate

defendant prior to his becoming involved in the case. That psychiatrist

did not diagnose defendant with Asperger’s Disorder, Borderline

Personality Disorder, or ADD. Instead, that psychiatrist diagnosed

Antisocial Personality Disorder. Conroe was questioned regarding the

diagnostic criteria for this disorder and whether defendant met these

criteria.

The first criterion is failure to conform to social norms with

respect to lawful behavior as indicated by repeatedly performing acts

that are grounds for arrest. Conroe admitted that defendant meets this

criterion. The second criterion is deceitfulness as indicated by repeated

lying, use of aliases, or conning others for personal profit or pleasure.

Conroe acknowledged that defendant displayed some of this behavior,

but “not in a pervasive manner which is necessary for the diagnosis to

be made.” He also noted that defendant has been incarcerated since

the crimes and has not committed any antisocial acts while in custody.

Conroe agreed that the third criterion, impulsivity or failure to plan

ahead, was present but insisted that the fourth criterion, irritability or

aggressiveness as indicated by repeated physical fights or assaults, had

not been a problem since defendant’s incarceration. He noted that

fights are common in jails and prisons, despite efforts to control

inmates. Again, with respect to the fifth criterion, reckless disregard

for safety of self or others, Conroe’s position was that defendant had

not displayed this trait while incarcerated and that because the second,

fourth, and fifth criteria were not “pervasive” in his conduct, even

while in custody, the diagnosis of Antisocial Personality Disorder did

not apply.

-30-

Conroe also acknowledged that violence against others is unusual

in persons with Asperger’s Disorder and that defendant’s

preoccupation with police communications and police procedure,

while it could be seen as reflective of Asperger’s, could also be seen

as a means of acquiring information that would be useful in

committing crimes.

Dr. Terry Killian testified as an expert in the field of psychiatry. He

explained that he had initially been contacted by the prosecution to

evaluate defendant, but had been called to testify by the defense. Prior

to meeting with the defendant in February 2003, he reviewed police

reports related to the crimes, reports of interviews with witnesses,

school records, and records from the various facilities and programs

that had been involved with defendant. The interview lasted for four

hours. His primary diagnosis was ADHD. He also diagnosed a past

history of Conduct Disorder, explaining that the diagnosis, by

definition, applies only to patients under the age of 18.

Killian explained the difference between ADD and ADHD. Not all

children with ADD are hyperactive. Boys are more likely than girls to

have ADD and are more likely to be hyperactive. In his opinion,

defendant’s records described a child with ADHD, despite no

diagnosis being offered until his teen years. He was never treated for

ADHD.

Several years after performing his initial evaluation of defendant,

Killian was again contacted by the State and asked to review

additional psychological and psychiatric reports regarding defendant.

The files that he obtained at that time included reports of numerous

interviews that he had not seen previously. He then interviewed

defendant for a second time in November 2006. He diagnosed ADHD

and a history of Conduct Disorder, but also diagnosed Asperger’s

Disorder and Depressive Disorder, not otherwise specified, probable

Personality Disorder with dependent features, and Nonverbal Learning

Disorder.

Killian described the diagnostic criteria for Asperger’s Disorder

including “qualitative impairment in social interactions,” which may be

manifested by: the marked impairment in use of nonverbal behaviors

to regulate social interactions, the failure to develop peer relationships

appropriate to the individual’s age, or lack of spontaneous sharing of

one’s interests, activities, or achievements with others, and a lack of

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social or emotional reciprocity. If two of these four manifestations is

present, this criterion is met.

The records he reviewed, in his opinion, revealed that defendant

manifested the second and fourth traits. He did not have age-

appropriate friends because other children and teens saw him as “odd”

and he lacked the ability to reciprocate socially or emotionally with

others because he did not understand his own or other people’s

emotions.

The second criterion described by Killian was “repetitive and

restricted and stereotyped patterns of behavior,” manifested by any

one of four behaviors: “an encompassing preoccupation with one or

more activities that are abnormal in either their intensity or their

focus,” “inflexible adherence to nonfunctional routines or rituals,”

“repetitive motor mannerisms” causing “clinically significant

impairment,” or a “preoccupation with taking things apart.” Killian

opined that defendant had an “encompassing preoccupation” with

“everything that had to do with police work and emergency services.”

A “lot of the trouble he got into during his teen years” was, according

to Killian, related to this preoccupation. He described defendant’s

interest in these matters as “very significant and abnormal.”

A third criterion, “significant impairment in social, occupational,

or other important areas of functioning,” was also met. Defendant was

significantly impaired in his social interactions. Three other criteria

were not applicable to defendant, but Killian stated that the requisite

number of criteria were met to make the diagnosis of Asperger’s

Disorder.

After his 2006 evaluation of defendant, Killian wrote in his report

that defendant had “Probable Antisocial Personality Disorder.” He

explained that “antisocial” means that the individual “violates other

people’s rights frequently and typically without remorse.” He made

the probable diagnosis because he found that defendant “without

question” met the requisite number of criteria for the diagnosis.

Defendant repeatedly disregarded and violated the rights of others

starting by the age of 15; he was irritable and aggressive; he

repeatedly failed to conform his behavior to social norms of lawful

behavior; and he engaged in deceit. However, Killian noted, he did not

see in defendant “what pretty much everyone I’ve ever read says is the

core of the antisocial personality,” that is, “the repeated violation of

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other people’s rights without remorse.” Killian concluded that

although defendant “technically” meets the diagnostic criteria, he has

repeatedly expressed sorrow for the crimes and is “emotionally

distraught” when he describes them. Thus, he stated, the diagnosis

likely does not apply to defendant. He also observed that antisocial

conduct does not cease merely because the individual is incarcerated

and he noted that there were no reports of such conduct by defendant

while in jail.

In conclusion, Killian opined that at the time of the offenses,

defendant had all of these disorders and that his mental illnesses

impaired his judgment. He had a “substantial disorder of thought,

mood, and behavior,” which caused him difficulty in recognizing his

own emotions and those of other people.

On cross-examination, Killian acknowledged that at the time of the

offenses, defendant was “not impaired by a psychiatric condition that

would have made him unable to appreciate the criminality of his

behavior.” Further, he was “clearly able” to plan and make decisions

and that he committed the crimes “out of anger.” His Asperger’s did

not cause his anger or possessiveness of Rachel Sloop, but “played a

role” although his “deficits were certainly not severe.” He also

acknowledged that defendant was not acting under any delusional

beliefs or manic symptoms. He knew what he was doing, even though

he was unable to describe why he did it.

Killian was also questioned regarding the records of defendant’s

psychiatric treatment while at State Training School. The psychiatrist

there found “no evidence for any serious mental disorder which would

impair his ability to be responsible for his behaviors.” Another

counselor described defendant as resisting treatment and seeing

counseling as a “kind of game to see how long he could go without

really telling the counselor anything.”

The records reviewed by Killian also revealed that defendant

described the mental health treatment he had received as a youngster

as a “pain in the ass” and as a “game of cat and mouse.” He did not

feel that he had ever derived any benefit from treatment and said that

he never felt the need for mental health treatment.”

With regard to the Asperger’s diagnosis, Killian agreed that this

condition does not “make people particularly prone to committing

-33-

crimes.” He stated that defendant’s Asperger’s is “relatively mild.” A

reasonable mental health professional could conclude that his

symptoms, while present, are not sufficient to warrant the diagnosis.

He noted that defendant’s symptoms are “sustained,” but are not

“severe.”

With regard to the Antisocial Personality Disorder diagnosis,

Killian acknowledged that lack of remorse is but one of seven

recognized symptoms and that an individual could be diagnosed with

the condition if he manifested three of the other six symptoms. Thus,

Killian explained, he qualified his diagnosis as “probable” and, if

indeed present, the condition is “mild.”

The final witness in mitigation was Joyce Ramsey, defendant’s

biological grandmother and adoptive mother. She testified that she

loves her son, in spite of the “terrible thing” that he did, and that she

visits him in jail once a week and speaks to him on the telephone two

or three times a week. She regrets not having told him “right from the

start” that he was adopted.

Capital Sentencing Hearing–Evidence in Rebuttal

Dr. Vallabhaneni, a psychiatrist, testified as an expert witness. He

first interviewed defendant in August 1997, when he was a staff

psychiatrist at Menard Correctional Center. He found defendant to be

alert and oriented, with no sign of mental illness and no intellectual

impairment. Defendant was coherent and cooperative. His mood,

affect, and thinking were normal and he exhibited good

communication skills. He did not diagnose any mental disorders,

including ADHD.

On cross-examination, Vallabhaneni acknowledged that he had no

independent recollection of his contact with defendant and that he

typically spent 15 to 30 minutes evaluating a new inmate. He had no

further contact with defendant after the initial evaluation.

Patrick Ewing, a clinical psychologist who treated defendant in

1992, testified as an expert witness. Defendant was referred for

treatment after his release from the State Training School in Eldora.

A psychiatrist there suspected that defendant had ADHD. Ewing

testified that he did not diagnose defendant with ADHD because he

did not see symptoms consistent with that diagnosis. He was

-34-

“interactive” and “cooperative.” He was “open in providing

information” and Ewing did not observe any indication of significant

emotional distress or hyperactivity. Defendant told Ewing that he had

been arrested for impersonating an officer. The “two main themes”

they discussed were his anger at his father for allowing the search in

which police found a gun defendant had stolen and the trauma of

being told by a cousin that the people he believed to be his parents

were really his grandparents. Ewing’s diagnostic impression after his

initial evaluation of defendant was Conduct Disorder, which is

basically a descriptive term referring to violating the rights of others

and of society’s norms and rules.

Ewing saw defendant again a week later and again found him to

be “very communicative” and “very interactive.” He enjoyed talking

about his interest in police work. He described his “being assigned

some important position or status by people in the community.” He

had a strong interest in listening to police radio and “immers[ed]

himself in that culture.” During this second visit, defendant had a pair

of handcuffs with him, which he “proudly displayed.” Ewing

attempted to obtain a release from defendant’s parents to speak to a

police officer who knew him because he thought the officer might be

a resource to use in a positive way in defendant’s therapy. Defendant

became very angry at this suggestion and stormed out of the office.

Ewing’s notes from their third session indicated that defendant

was “a keen observer of many behaviors and situations when they

relate to *** being in a position of power or control.” Defendant used

this information to present himself as being in a position of authority.

At a later session, defendant brought a key ring with 35 keys on it.

Ewing noted that defendant was angry that his parents were

imposing limits on his behavior and that Ewing was supporting and

encouraging them in this effort. Defendant stated that he would not

accept such limits.

Eventually, defendant’s mother told Ewing she was going to move

defendant to another therapist, citing financial problems. She also

expressed her opinion that Ewing was being “unfair” to defendant

because of the limits he proposed the parents set on his behavior.

Defendant was upset about this decision. He was fighting back tears

and said that he was going to talk to his mother about changing her

decision.

-35-

Defendant resumed therapy with Ewing in August 1994, after he

had been arrested for a break-in and sent to a residential facility. He

had joined the school football team at the suggestion of his probation

officer and was surprised at how well he got along with the other

members of the team. He still did not want to talk about how he found

out about his adoption and who his natural mother was, but was

willing to discuss his dating relationship at that time. Ewing noted that

social acceptance had been a very positive influence on his self-

esteem.

With regard to Asperger’s Disorder, Ewing testified that although

he was familiar with the disorder, he had not been aware of it when he

was treating defendant in 1992 through 1994. The diagnosis was not

recognized until 1994. In retrospect, however, he did not believe that

the diagnosis applied to defendant. The Asperger’s patient has a

difficult time reading other people, while defendant could “effectively

con” people. Ewing described defendant at that time as being “pretty

fluent in his interaction” with other people.

Mental health counselor Mike Maher testified as an expert

witness. In 1992, Maher treated defendant at the River Center for

Community Mental Health, after he was referred to the Center by the

juvenile court office. Maher observed that defendant, who had

previously been seen at the Center by another counselor, was “not

overly receptive” to being there as a condition of his probation for

theft. Defendant was 14 years old. At the initial interview his behavior

was “grandiose and narcissistic.” He had no difficulty communicating,

but appeared to feel as if he were “above the law.” At the same time

that he was “preoccupied with police matters,” he felt as if he could

do things that were illegal. He was defiant and rebellious, perhaps

related to his “family distress.” Maher opined that defendant liked to

push the limit “to see how far he could go, what he could get away

with.” Maher noted in his written evaluation at that time that while

defendant did not “pose an immediate threat,” “the potential for

aggressive acts seemed possible given his ability to justify or

rationalize the things that he was doing.”

Maher noted “an open hostility towards both biological parents,”

with whom defendant did not want to have any contact. The

information provided to him by the probation officer stated that

defendant’s adoptive parents were “intimidated and fearful of him, and

-36-

that he gets by with a lot of inappropriate behavior.”

Maher had also reviewed the records from Eldora, which indicated

that defendant was “shunned by his peers” there for his “grandiose and

exaggerated stories/behavior” and that he had been caught going

through a social worker’s desk while at that facility.

Maher diagnosed defendant with Conduct Disorder,

undifferentiated, moderate to severe, which he described as “a cluster

of behavioral symptoms representing violations of age appropriate and

legal societal norms.” Except for the psychiatrist at Eldora who

diagnosed defendant with ADHD, Maher was not aware of any other

professional who had made that diagnosis.

The treatment plan that Maher developed for defendant in 1992

was admitted into evidence. This plan noted defendant’s strength as

his willingness to discuss his situation. His weakness was that “he saw

nothing inappropriate or nothing wrong with his inappropriate and

many times illegal behavior.” In 1993, Maher documented defendant’s

progress. Defendant “continued to manifest oppositional behavior”

and was unwilling to engage in treatment. In addition, there was a

“lack of support from his grandparents to enforce behavioral

objectives.”

At the conclusion of one counseling session, Maher wrote: “Client

is extremely manipulative and seeks to avoid responsibility for any of

his behavior.” At a later session, Maher observed that during their

sessions, he and defendant “learned that a significant motivating factor

for his decision making process is that anything providing him a sense

of power or influence or authority over people is very alluring to him.”

With respect to Asperger’s Disorder, Maher testified that he was

familiar with the diagnosis from his continuing education training and

that he has seen children with this diagnosis. He stated that he could

make the diagnosis, but that he saw “no evidence” of Asperger’s in

defendant.

Capital Sentencing Hearing–Sentencing

In its closing statement, the State urged the jury to focus on the

“facts and circumstances of the defendant’s horrible crimes” and the

“many decisions and choices” that he made while carrying out his

crimes. The prosecutor argued that the two mental health counselors

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who best knew defendant, Maher and Ewing, rebutted defendant’s

mental health evidence. He noted that defendant brought a gun with

him on the evening of July 8, 1996, and had it under the seat of his car

when he went for a drive with L.M. That drive lasted only a few

minutes–long enough to travel 1.6 miles–and ended when defendant

pulled off the road near an empty grain bin that was surrounded by

dense vegetation and then drove his car over 100 feet further off the

road to park behind the bin. This, according to the prosecutor, was

not “a haphazard, accidental, random thing.” Similarly, defendant

“very calculatingly and deliberately concealed her body in that grain

bin off the road where she could not easily or quickly be found.”

The prosecutor also questioned the testimony that defendant went

to the Sloop home that night to commit suicide. If his intent was to

kill himself, he would not have needed to scheme to get the adults out

of the house. Rather, the prosecutor suggested, defendant’s motive

was to confront Rachel, to see if what Michelle Haist and L.M. had

said about her feelings for him was true, so that he could decide if she

deserved to die.

The prosecutor noted that defendant drove at a high speed to the

Sloop home, so that he could be sure the adults had left. He turned his

headlights off and waited by the side of the road “like a predator

stalking his prey.” This conduct was not “impulsive, random, crazy”;

it was “calculating,” “cold,” and “methodical.”

Further, if he had intended to commit suicide there, defendant

would have simply pulled his car in the driveway. Instead, he drove

400 feet past the driveway and approached the house on foot, through

a cornfield, bringing wirecutters and a flashlight. His cutting of the

telephone wires was also inconsistent with his professed intention to

commit suicide.

The prosecutor argued that after Rachel failed his test and he shot

her, defendant shot Lonna Sloop because she could have identified

him. Similarly, he shot the two children because they knew him and

could have identified him, even though they had not seen him because

they were in an upstairs bedroom.

Because defendant and Rachel had, by this time, seen the

headlights of an approaching car, escape was not possible. His “half-

hearted, lame attempt to supposedly commit suicide” was belied by all

-38-

of his “acts of planning *** concealment and deception” earlier that

night. Further, his cooperation with the police was the result of his

being caught “red-handed.” There was “no mystery” about whom

L.M. was with that night or about who shot four persons in the Sloop

home. Thus, his cooperation with police was one more instance of

defendant’s manipulative conduct.

The prosecutor then summarized the statutory aggravating factors

for the jury and argued that several of the factors were met. The

prosecutor argued further that the evidence in mitigation should be

given little weight.

Defense counsel began by explaining that mitigation is not

intended to provide an excuse for a defendant’s actions, but that such

evidence should be used to determine whether death is the appropriate

penalty. He urged the jury to focus not just on what defendant did, but

on his life and on “what happened to him in his formative years that

took him to that point.” Defendant’s expert witnesses established that

he was “a mentally ill young man” and that his illnesses “impaired his

judgment.” He argued that the testimony of these board-certified

psychiatrists was more credible than that of the State’s witnesses.

Defense counsel also noted the decisions that affected defendant’s

life over which he had no control: his birth to a teenage mother who

did not receive prenatal care, her reversal of her initial decision to give

him up for adoption, his adoption by his grandparents and their

decision not to tell him of his adoptive status, the manner in which he

learned of his adoption, his parents’ refusal to provide recommended

speech therapy as a child, their refusal to give him recommended

medication or to place him in the recommended treatment facility, and,

finally, his removal from therapy with Patrick Ewing at his mother’s

insistence.

Counsel also emphasized defendant’s acceptance of responsibility,

including his guilty plea. In addition, counsel noted defendant’s youth

and the expert testimony that he was not fully mature when he

committed these crimes.

After brief rebuttal by the State, defendant was allowed to make

a statement. He expressed sorrow for his actions and for the pain he

caused. He stated that although he could not change what he did in

the past, he has since “tried to make the right decisions.”

-39-

The jury was instructed and, after deliberation, rendered a

unanimous verdict that death is the appropriate sentence. The court

found that the record supported the jurors’ finding and imposed the

penalty of death. At a subsequent hearing, defendant was sentenced

on the remaining counts. Defendant’s posttrial motions to withdraw

his guilty plea and to reconsider sentence were denied by the trial

court after a hearing.

ANALYSIS

I. Applicability of Amended Supreme Court Rule 701

On July 11, 1996, the court appointed James Dennis to represent

defendant, and Dennis continuously represented defendant throughout

these proceedings. Defendant was also represented at his retrial by

John Carter, who was appointed by the court in February 2001.

Defendant first argues that he is entitled to a new sentencing hearing

because neither of his trial attorneys were members of the Capital

Litigation Trial Bar (CLTB). He points to Supreme Court Rule

701(b), which states in pertinent part: “However, no person, except

the Attorney General or the duly appointed or elected State’s

Attorney of the county of venue, may appear as lead or co-counsel for

either the State or defense in a capital case unless he or she is a

member of the Capital Litigation Trial Bar provided for in Rule 714.”

188 Ill. 2d R. 701(b). This requirement was added to the rule on

March 1, 2001, by an amendment that also provided: “The amendment

to paragraph (b) shall be effective one year after its adoption, and shall

apply in capital cases filed by information or indictment on or after its

effective date ***.” Thus, the amended rule became effective March

1, 2002, and applies to all capital cases filed on or after that date.

Defendant was charged by indictment on July 9, 1996, and by

amended indictment January 23, 1997. In February 2001, Judge

Stephen G. Evans, who was then presiding and who had presided over

defendant’s first trial, contacted the attorneys for both defendant and

the State. Judge Evans called the parties’ attention to several recent

news articles on the proposed creation of the CLTB. Although Judge

Evans’ letter indicates that he had not yet seen the proposed supreme

court rule changes, he nonetheless expressed concern:

“While the Ramsey case was filed in 1996, I do not know

-40-

whether these rules are retroactive; however, with the strong

policy positions taken in Illinois by the Governor, the Illinois

Supreme Court, and the Task Force recommendations, I

suggest that we take a very close look at the application of

these new rules to this case.

As presiding judge at the first trial, I believe that all

counsel performed very well. Based upon those observations,

and what has occurred since the remand from the Illinois

Supreme Court, I personally believe it would be in Mr.

Ramsey’s best interest to proceed with his present counsel.

However, none of us want to participate in any error in the

upcoming trial.”

The court therefore instructed the attorneys to find out whether

the proposed rule changes would apply to them and to take any

necessary action: “I request that counsel promptly make inquiry as to

how new Supreme Court Rule 714 may apply in People v. Ramsey. I

also request that if applications for admission to the Capital Litigation

Trial Bar are required, that same be pursued.”

On February 23, 2001, at a hearing before Judge Evans, the judge

again raised his concern about the forthcoming rule changes,

indicating that he “would like to make a formal record at this time that

would address the experience of counsel, and have that of record.”

The court then asked each of the attorneys present to recite his or her

experience. After the State’s attorneys had spoken, defense attorney

Dennis told the court, “I have read some of the articles in the

newspaper about the expected qualifications, and I believe I meet

those qualifications.” Dennis went on to explain that he had been

practicing law since 1978, and he believed the new rules would

require five years of practice experience. He also stated that he had

tried “eight or more” felony cases before a jury, including the first trial

in this case and one other murder case. Defense attorney Carter, who

was then the chief public defender for McDonough County, Illinois,

stated that he had been admitted to practice law in Illinois since 1982.

He further stated that he “believed” that he had served as either co-

counsel or lead counsel in more than five felony cases tried before a

jury, although he could not remember precisely how many, and he had

been “second counsel” in one murder case. Judge Evans responded

that he believed Carter could meet the proposed rules’ requirements

-41-

based on the cases Carter had tried before him alone. The court then

found, “With respect to what has been recited by counsel, it appears

that you all qualify under what I believe the terms will be of the

proposed Supreme Court Rule for admission to the capital litigation

trial bar. I do make those findings for the record at this time.”

On November 21, 2002, the issue was raised before Judge William

D. Henderson at a scheduling hearing. The State expressed continuing

concern about the application of the amended rules to this case:

“Judge, there is one issue here that I would like to raise and

that is in regard to capital litigation certification of the

attorneys involved.

***

And as we all know those new Supreme Court Rules are

now in effect which require the certification of all attorneys.

The statute, in my mind, clearly does say that it only applies to

cases filed after the effective date.

However, in the last year and half or so, virtually every

opinion coming out of the Supreme Court on a death penalty

case has had a very strong dissent in which the two dissenting

justices have indicated that if it were up to them they would

reverse every case in which a non-certified defense attorney

participated.

***

Just this week 650 attorneys from throughout the state

submitted a petition or letter to Governor Ryan urging that all

cases be commuted, the 160 or so death penalty defendants,

because of the fact that they were not tried with the present

rules in effect.

***

I think in the present situation with the death penalty I

think it would be a smart move to simply have the attorneys

on this case get certified prior to trial.”

In response, Dennis told the court, “If this is a real issue for the

State, and if the state’s attorney agrees with 650 lawyers, one way to

resolve it is to have the State take death off the table and *** and just

try it as a regular murder case.” The State indicated that it did not

-42-

intend to do so. The court then acknowledged that it had not

considered the new rules in the context of this case, although “this

case was filed well before the new rule.” The court concluded that it

would “take a look at it,” but it instructed the State, “if you are going

to attack the defense counsel on that basis, you should get a motion

on file very quickly.” The State responded that it had no intention of

“attacking” them, but that it wanted to bring the issue to the attention

of the court and the parties.

On January 16, 2003, the question came up again in proceedings

before Judge Steven R. Bordner, who had been recently assigned to

the case. Judge Bordner asked all of the attorneys whether they had

become members of the CLTB, and upon finding that neither defense

attorneys had, he said, “Counsel, I have not been confronted with

circumstances in which we are this close to a capital trial in which

neither counsel have been certified in this matter. Is it your intention,

counsel, to be certified prior to trial?” Dennis responded, “Your

Honor, I hadn’t intended to do that. My understanding was because

I was appointed and we had the case started prior to the new rules

that wasn’t required. No other judge that has been involved in the case

has made it a requirement, and so I have not qualified.” The court

asked the parties to brief the issue, saying,

“I would not want to repeat or replace any of these matters

pending before the Court on a simple technical issue involving

qualification of counsel.

***

I would suggest, counsel, that if there is a significant

question[,] that if you believe you would be certified by the

Capital Litigation Committee[,] that you proceed with an

application in order that that issue is finally resolved.”

Counsel did not apply for membership to the CLTB. Instead, in a

letter submitted to the court and dated January 22, 2003, defense

counsel maintained that the amended supreme court rules did not

apply to this case: “It is our position that the Supreme Court Rules

requiring membership in the Capital Litigation Trial Bar do not apply

to the Daniel Ramsey case, as the amended information in this case

was filed prior to the adoption of the rule.”

In a hearing on February 26, 2003, the court stated,

-43-

“The materials which were forwarded to me suggest that the

rule, the Supreme Court Rule 701, applies to capital cases

filed by information or indictment on or after the effective date

of the rule which is March 1, 2001.

It appears further to the Court that these matters precede

the effective date of Supreme Court Rule 701, and, thus, the

application of the rule 701 is not appropriate to this case.”

However, the State continued to express concern that neither

Dennis nor Carter had applied for membership to the CLTB:

“The problem the People see, Your Honor, is that almost two

years ago Judge Evans, who was the judge in this case at the

time, brought this matter to counsel’s attention. Two years

have passed, and that’s a substantial period of time for counsel

to become members of the capital litigation bar.

They have not done so. And it concerns the People that in

the event there would be a conviction in this case, in the event

there would be a capital sentence in this matter on appeal that

the appellate court would look at us in the year 2000–what we

did in the year 2003, after this matter being around for so

long, and wonder why counsel were not required to submit

application to the bar.

And so we think that this is a matter that is important

enough that it should be addressed before any other action is

taken in this case.

***

And we think the opinion of the defendant is relevant in

this matter. We think that [the amended rules] allow for the

court to inquire of the defendant in this type of thing.”

In response, Dennis explained that Judge Evans’ 2001 letter had

not asked counsel to join the CLTB: “It was obvious to me as a result

of that letter that if we were required to [join the CLTB], then Judge

Evans was directing us to do that. It then became obvious to Mr.

Carter and myself that we were not required to do so.” He also

objected to the State’s request to again document counsel’s

credentials:

“If the State is so worried about this case and our

noncertification as members of the capital litigation bar, the

-44-

way we resolve it is to take that off the table. They have that

in their power and they could do it. If this is a big problem that

they have got an overwhelming concern of theirs unresolved,

take death off the table, and there is no problem.

Now we are getting down to the last hour and all of a

sudden it sounds like–if it’s not directly a motion to remove

attorneys, it’s basically what they’re wanting to do; or they are

wanting the defendant to say, [‘H]ey I want a continuance

because now the State is making me afraid to go to trial with

these attorneys.[’] That’s not fair.

And I don’t think Mr. Ramsey has to be put on the record

either. If he were wanting to represent himself then, obviously,

he would have to put it on the record, but that’s not the case.

And I just think we are wasting the court’s time.”

After both parties had been heard, the court opined that the

amended rules did not apply, saying:

“The Supreme Court, it seems to me and in conjunction with

the legislative mandate has applied these rules prospectively

and not retrospectively.

***

However, the Court will do two things to make a record

in this matter. One, it will at this time make a finding that the

attorneys in this case are experienced and have sufficient

training to represent the Defendant in this matter so that a fair

trial will result in this case.

And further, the Court will take judicial notice of this and

the prior proceeding in which the qualifications of counsel

were addressed either by way of letter, representation on the

record or by way of other materials.

That is the basis for the court’s finding in this matter that

defense counsel are qualified to represent the defendant. The

Court will further require that defense counsel supply an

affidavit for the record in this matter which would generally

outline their experience.”

The court did not question the defendant about his counsel,

noting,

-45-

“The Court will not do so because the defendant is not entitled

to the attorney of his choosing. He is entitled to experienced

and competent counsel. The court will make a finding that he

has experienced and competent counsel; that Supreme Court

Rule 701 does not apply retroactively; and to the extent that

the defendant is not entitled to an attorney of his choosing;

and the court having made that finding, his opinion is not

controlling in this matter.”

The affidavit detailing Carter’s experience, filed March 14, 2003,

indicated that he had been licensed to practice in Illinois since 1982

and in Missouri since 1988. He averred that he had never been

disciplined in either jurisdiction, and that his performance had never

been criticized by a reviewing court. Since his admission to the Illinois

bar, he had spent more than four years as an assistant public defender

in Knox County, Illinois, and he had been the chief public defender in

McDonough County since 1989. In that time, he asserted, he had

handled “hundreds if not thousands of traffic, misdemeanor, and

felony cases,” and that he had “tried numerous cases to jury verdicts,”

although he could not recall the exact number. Dennis’s affidavit does

not appear in the record.

Three years later, defense counsel were still not members of the

CLTB. On June 23, 2006, the State filed a motion entitled “People’s

Motion to Determine Defense Attorneys’ Qualifications to Represent

Defendant in a Capital Case,” in which it asked the court to “ensure

Defendant’s trial counsel possess the ability, knowledge, and

experience to represent Defendant in this matter in a competent and

professional manner.” The State maintained that the amended rules did

not apply, but requested another finding of record that counsel was

competent to represent defendant:

“Since this case was filed by information and amended

information before March 1, 2001, paragraphs (d) and (f)(I)

[of Rule 416] do not apply to this case.

Nonetheless, the interests of fairness require that, in capital

cases such as this case, the People and the Court have a duty

to ensure that the proceedings are fair and that the Defendant

is represented by trial counsel who possess the ability,

knowledge and experience to represent Defendant in this

matter in a competent manner.”

-46-

The State acknowledged the previous discussions of counsel’s

qualifications, but it again requested that the court “put into the record

both defense attorney’s qualifications to represent a defendant in a

capital case consistent with Supreme Court Rule 714,” and “[v]erify

with Defendant his desire to proceed to trial with counsel who are not

members of the Capital Litigation Trial Bar as established pursuant to

Supreme Court Rule 714.”

Defense counsel responded to the State’s motion, listing the prior

proceedings and correspondences in which their qualifications had

been examined. They argued that further proceedings on the issue

were not necessary because there had been no new developments.

They agreed with the State’s assertion that the amended rules were

“not applicable to the present case.” In the attached memorandum,

counsel concluded, “Rule 416 and the cited cases make it clear that

the attorneys in the present case are not required to be certified as

members of the Capital Litigation Trial Bar.”

On August 18, 2006, Judge Stephen C. Mathers held a hearing on

the State’s motion. At that hearing, the State clarified its motion:

“I think it’s possibly helpful to first in discussing this motion

to first state what this motion is not. Number one it is not a

motion to apply the capital litigation supreme court rules to

this case. The People concede in their motion that those rules

don’t apply. ***

And defense counsel has filed its response and has

delivered a memorandum with points and authorities

establishing that. And in none of that do the People contest.

They’re absolutely right. They don’t apply. And so we’re not

contending that.

The second thing to make clear is that the People are not

seeking the removal of these defense counsel. We’re not

alleging that they are unqualified. In fact everything that the

People know about their qualifications leads us to believe that

they’re fully qualified. The concern of the People in this matter

is the constitutional guarantee of effective assistance of

counsel and the need to protect the record in that regard.”

The State also suggested that any potential problems could be

solved by appointing a third attorney to represent defendant, if the

-47-

newly appointed attorney was a member of the CLTB.

Dennis pointed out to the court that this issue had been discussed

several times previously, and he questioned what the State sought to

achieve:

“The State apparently concedes that Mr. Carter and I are

qualified and competent and have been representing Mr.

Ramsey in a qualified and competent manner. *** So it

appears to me that even though they agree that the rules don’t

apply in this case and that Mr. Ramsey has been having

competent counsel, they still want a little bit more. They have

not specifically asked in their motion that someone from the

capital litigation bar be assigned to this case but now they’re

apparently making that request.

There are two other options that I see that would handle

this question satisfactorily with the State. One is to take death

off the table. And I’ve said that before and I’ll say it again.

That will resolve any questions that the State has with respect

to a certified member of the capital litigation bar representing

Mr. Ramsey. That’s in their power. That’s in their control. But

they have not yet done that. So we’re stuck with that situation

with death still on the table.

The other option would be for you to remove [defense

counsel] from representation of Mr. Ramsey and appoint two

new attorneys certified by the capital litigation bar. Although

the State is not seeking that.”

The court expressed its appreciation for the “overabundance of

caution” that led the State to raise this issue again, although it worried

that “an emphasis of form over substance and a continuous rehash of

old business” was distracting the parties from “truly important

matters.” The court addressed defendant directly, and defendant

declined to express any opinion to the court about his counsel.

Ultimately, the court declined to order any change in defendant’s

representation. Neither counsel’s qualifications nor the amended rules

were discussed again.

Clearly, the plain language of Rule 701 does not require that this

defendant’s counsel be members of the CLTB. As explained above,

the amended rule became effective March 1, 2001, and applies only to

-48-

cases filed on or after March 1, 2002. The amended indictment in this

case was filed January 23, 1997. Defendant acknowledges that the

rule does not apply, but he argues that the amendment nonetheless

entitles him to a new sentencing hearing for three reasons. First, he

argues that the exclusion of a case like this one, where a defendant

was charged prior to the 2002 effective date but where substantial

proceedings occurred after the effective date, was a mere oversight

that produces an absurd or unjust result. Second, he argues that

because he is the only defendant currently sentenced to death in

Illinois who was not represented by a member of the CLTB, his equal

protection and due process rights have been violated. Finally, he asks

this court to find that the imposition of the death penalty under these

circumstances would be “fundamentally unjust.”

With respect to defendant’s first argument, we note that Rule 701

requires attorneys to be members of the CLTB not only at the time of

trial, but from the very beginning of their involvement in a case. The

comments to amended Rule 701 (188 Ill. 2d R. 701, Committee

Comments) state that any attorney who is not a member of the CLTB

should decline any representation in a capital case, as well as in any

first degree murder case that could become a capital case. The

comments further suggest that it is incumbent on counsel to

determine, before agreeing to representation, whether a case is likely

to become a capital case. Moreover, the rule does not authorize a trial

court to require that unwilling attorneys apply for CLTB membership.

Thus, if counsel in a capital case refuses to become properly certified

pursuant to Rule 701, the court must require that counsel step down

or work only under the supervision of a CLTB-certified attorney. By

requiring attorneys to be members of the CLTB from the very outset

of a case, the rule avoids the disruption and delay that would be

caused by allowing an attorney who is not a member of the CLTB to

appear in the case, only to later require him or her to withdraw and be

replaced by CLTB counsel unfamiliar with the case.

Defendant suggests that the retrial in his case distinguishes it from

other ongoing capital cases, but that argument is not persuasive. This

court’s mandate granting defendant a new trial was filed on September

11, 2000, well before the effective date of the amendment to Rule

701. Discovery and other pretrial proceedings were long underway

when the amendment took effect. Procedurally, defendant’s case was

-49-

nearly indistinguishable at that point from a capital case filed in 2000.

If the amendment to Rule 701 had been applied at its effective date to

similarly situated capital cases, disruption, delay, and potential for

prejudice could have ensued in every capital case pending at any stage

throughout the state. This is precisely the result we sought to avoid in

applying the new rules only to cases filed after the effective date, and

defendant’s case is a prime example. By the time the amendments

took effect in 2002, defendant’s trial attorneys had been working on

his retrial for over 18 months; lead counsel had been representing

defendant since his first trial in 1997. Counsel were familiar with the

facts and witnesses, had filed over 15 motions, had engaged in

substantial discovery, and had taken an interlocutory appeal on

defendant’s behalf. Although the trial court and the State suggested

on at least three occasions that defense counsel should join the CLTB,

both attorneys steadfastly declined. Requiring that both attorneys

involved in his defense be replaced with CLTB members would have

resulted in delay and disruption to a case that had already been

unresolved for over six years. Rather than incur such delays in this and

any other pending cases, we left ongoing cases outside the scope of

the amendments to Rule 701. One inevitable effect of creating such a

clear line for determining whether the amended rule applies is that

some cases will fall short of that line. Defendant’s is one such case,

and we will not now rewrite the rule to include him. In this light, it is

clear that applying the CLTB requirement prospectively only to cases

filed after the effective date is not absurd, but is wholly consistent with

the intent of the rule.

Defendant also argues that applying Rule 701 as written violates

his equal protection and due process rights. According to defendant,

every other capital defendant in Illinois whose case was filed before

March 1, 2002, but who, like defendant, was sentenced after the

amendment took effect was represented by a CLTB member. Thus,

defendant claims he was “arbitrarily singled out.” We disagree. It is

axiomatic that the constitutional guarantee of equal protection

requires that the government treat similarly situated individuals in a

similar manner. People v. Warren, 173 Ill. 2d 348, 361 (1996). Here,

the rule treated defendant in precisely the same manner as other

defendants whose cases were filed prior to the rule’s effective date; it

did not apply to any of the cases. That the other attorneys to whom

-50-

defendant points chose to become CLTB members during the course

of representation is of little relevance in this case. We have previously

explained that, with respect to cases in which the amended rule does

not apply, we will not presume an attorney rendered incompetent

representation simply because he or she was not a member of the

CLTB. People v. Simpson, 204 Ill. 2d 536, 570-72 (2001). In this

case, defendant’s attorneys were qualified and experienced capital

litigators. Lead counsel had 23 years of criminal defense experience,

with eight or more felony trials and two murder trials. Co-counsel had

15 years’ experience in criminal defense, during which time he handled

“hundreds if not thousands” of criminal cases, including more than five

felony trials and one murder case. On this record, we are unwilling to

conclude that counsel was not competent to represent defendant.

Throughout the eight years that this retrial was pending, three

different trial judges inquired into their qualifications and found them

sufficient, and we agree. Defendant was not denied any equal

protection or due process rights.

Finally, defendant asks us to find that the imposition of the death

penalty in this case is “fundamentally unjust.” Section 9–1(i) of the

Criminal Code of 1961 states that this court “may overturn the death

sentence *** if the court finds that the death sentence is fundamentally

unjust as applied to the particular case.” 720 ILCS 5/9–1(i) (West

2008). We find no basis for such a conclusion in this case. Although

we emphasize the importance of ensuring that appointed counsel in

capital cases have met every qualification we have set forth, in this

case the amended requirements of Rule 701 did not apply. Contrary

to defendant’s claim of injustice, defendant received experienced,

capable, and competent representation. That other ongoing cases

proceeded differently than defendant’s is no injustice when the same

rules were applied to all of them. We therefore reject defendant’s

contention that he is entitled to a new sentencing hearing because his

attorneys were not CLTB members.

II. Constitutionality of State’s Seeking the Death Penalty

Following defendant’s first conviction and direct appeal, this court

reversed and remanded the cause to the trial court for a new trial.

-51-

Prior to trial, the State’s Attorney notified defendant that she would

again seek the death penalty. However, she did inform the court that

if defendant agreed to plead guilty and accept a sentence of life

without parole, she would not seek a death sentence. At the time the

offer was made, defense counsel announced that “at this time I think

we are going to trial.”

Five years later, defendant pleaded guilty to several counts against

him. By that time, the office of State’s Attorney was occupied by a

different individual. Both parties agree the guilty plea was in exchange

for a dismissal of several other counts. However, defendant also

claims that his guilty plea, in accordance with the former State’s

Attorney’s initial plea offer, made him eligible for a sentence of natural

life in prison but did not expose him to the possibility of a death

sentence. The State did not agree and asked for a death penalty

hearing. When defendant entered his guilty plea, he acknowledged that

by pleading guilty he was “possibly subjecting himself to a sentence of

death.” The court specifically admonished defendant that the minimum

sentence he could receive was a term of natural life in prison and that

the maximum sentence was a death sentence.

The court accepted defendant’s plea, a sentencing hearing was

held, and defendant was again sentenced to death. Defendant now

argues that the State’s Attorney’s decision to seek the death penalty

was arbitrary and warrants his sentence being reduced to that of

natural life in prison.

At the outset, we note that the State argues that defendant has

forfeited this issue by failing to object in the trial court or to raise the

issue in a posttrial motion. The State also argues that although

defendant’s claim could be reviewed for plain error, defendant has

failed to argue plain error in his opening brief. Defendant

acknowledges that this issue was not properly preserved, but disagrees

with the State that he has also forfeited plain-error review.

In the absence of a plain-error argument by a defendant, we will

generally honor the defendant’s procedural default. People v. Hillier,

237 Ill. 2d 539, 549 (2010). However, although defendant did not

argue plain error in his opening brief, he has argued plain error in his

reply brief, which is sufficient to allow us to review the issue for plain

error. People v. Williams, 193 Ill. 2d 306, 347-48 (2000).

-52-

The first step in plain-error analysis is to determine whether a clear

or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565

(2007). Defendant argues it was error for the trial court to allow the

State to seek the death penalty, because a prior State’s Attorney had

already offered to waive the possibility of a death sentence if the

defendant were to plead guilty. Defendant’s claim is a due process

challenge in that he argues the decision of the State’s Attorney to seek

a death sentence was impermissibly arbitrary.

Defendant cites People v. Walker, 84 Ill. 2d 512 (1981), and

People v. Brownell, 96 Ill. 2d 167 (1983). In Walker, the defendant

was charged with murder and entered into plea negotiations with the

State. The parties agreed that the defendant would plead guilty to

several other charges in return for the State’s dropping a conspiracy

charge and recommending a 60-year prison term for the murder.

Walker, 84 Ill. 2d at 514. The court, in accepting the plea, incorrectly

advised the defendant that the maximum penalty for the offense to

which the defendant was pleading was 80 years. In fact, the

indictment, as charged, justified a maximum penalty of death. The

State failed to draw attention to the court’s incorrect admonishments.

Walker, 84 Ill. 2d at 515.

The defendant later moved to withdraw his guilty plea, alleging he

did not fully understand the consequences of his plea and wanted to

plead not guilty because of mental incompetence. Defendant was

allowed to withdraw his plea. When defendant later sought to plead

guilty again, the State sought the death penalty and the defendant was

eventually sentenced to death. Walker, 84 Ill. 2d at 518.

The Walker court noted that “defendants who make knowing,

voluntary, and intelligent choices to risk an increased sanction rather

than plead guilty pursuant to a plea bargain will be held to that

choice.” Walker, 84 Ill. 2d at 522. However, this principle applies

only when the defendant can, in fact, make a knowing, voluntary, and

intelligent evaluation of the risks. Walker, 84 Ill. 2d at 522. In Walker,

the court concluded that the State’s failure to correct the trial court’s

admonishments meant that it adopted the court’s position and

“notified defendant that death was not a possible penalty for his

crimes.” Walker, 84 Ill. 2d at 523. When weighing the decision to

withdraw his plea, defendant was under the mistaken impression that

he was risking only an additional 20 years of imprisonment and not a

-53-

death sentence. Under these circumstances, when the State later

sought the death penalty after the defendant’s withdrawal of his guilty

plea, the State sought to increase the severity of the sanction, without

notice, after defendant’s successful invocation of a right afforded by

law. Walker, 84 Ill. 2d at 523-24. Thus, the defendant’s sentence was

reversed.

The procedural history in Brownell was slightly different. In that

case, the defendant was convicted by the trial court and sentenced to

death. This court vacated the sentence and remanded for resentencing.

On remand, the defendant was again sentenced to death. On appeal,

however, defendant raised a new issue. Defendant argued that prior

to his first sentencing the prosecutor had promised not to seek the

death penalty if the defendant would confess in writing.

This promise occurred at 10 p.m. The defendant, after consulting

counsel, did not accept the offer. Later that night, the defendant spoke

to a pair of police detectives. At 1 a.m., when the meeting ended, the

defendant still declined to make any confession. An hour later,

however, at 2 a.m., the defendant asked to talk to the police and

confessed.

Based on these facts, and relying on Walker, this court vacated the

defendant’s sentence. We concluded that once the State’s Attorney

“made a conscious decision to agree not to seek the death penalty if

the defendant would provide him with a confession,” it was

“incumbent on the State’s Attorney to abide by the agreement absent

a change in circumstances.” Brownell, 96 Ill. 2d at 174-75. In the five

hours between the State’s Attorney’s offer and defendant’s written

confession, nothing had changed, yet the State’s Attorney had chosen

to continue to seek the death penalty. This court concluded that this

type of reversal “creates an appearance of a vindictive motive on the

part of the prosecutor.” Brownell, 96 Ill. 2d at 175.

The State, in turn, relies on People v. Yates, 98 Ill. 2d 502 (1983),

and People v. Davis, 144 Ill. 2d 349 (1991). In Yates, defendant

approached the prosecutor and asked if he would agree not to seek

the death penalty in exchange for a guilty plea and recommended

sentence of natural life imprisonment. The State agreed to make the

offer, but the defendant turned it down and went to trial. Defendant

was convicted and the State successfully sought the death penalty.

-54-

On appeal, this court concluded that the case was unlike Walker,

in that the defendant was not misadvised of the maximum possible

sentence he faced. Brownell was also distinguished because the State

did not renege on its promise after getting what it bargained for.

In Davis, the defendant rejected a plea offer from the State.

Nevertheless, the State filed a motion to waive its right to request a

death penalty hearing. Before the court took any action on that

motion, however, a new State’s Attorney was sworn into office,

withdrew the motion and proceeded to request a death penalty

hearing. The defendant argued that Walker required the State to

demonstrate some factual circumstance that changed between the

filing of the motion and the successor State’s Attorney’s withdrawal

of the motion. This court rejected that argument, concluding that no

misrepresentations were made to the defendant about the seriousness

of the punishment he could receive and the decision to seek the death

penalty was based on the prosecutorial discretion of a new State’s

Attorney. Therefore, defendant had not suffered any deprivation of

rights.

Here, defendant argues that the only distinction between Walker

and Brownell and this case is that, in this case, the occupant of the

State’s Attorney’s office changed between the time the State first

offered a deal and the time the defendant ultimately entered a guilty

plea. We disagree and conclude this case differs in other significant

ways.

The first distinction is with Walker. Unlike Walker, defendant was,

at all times, aware of the potential punishment he faced. The State

sought a death sentence at his first trial. Later, in pleading guilty,

defendant acknowledged that a death sentence was a possible result.

This was true even though defendant knew that the State had made a

previous offer to refrain from seeking a death sentence. As we stated

in Yates, Walker is not implicated when the defendant does not labor

under a misconception that death is not a possible sentence. Yates, 98

Ill. 2d at 534. Here, defendant was not misled by the court or the

prosecutor and, therefore, cannot maintain a claim based on Walker.

A second distinction relates to Brownell, and specifically relates

to the particular timing of the State’s offer and defendant’s eventual

plea. In Brownell, a mere four hours passed between the State’s initial

offer not to seek a death sentence and the defendant’s agreement to

-55-

write a confession. Even though defendant expressly rejected the deal

at the time, it is evident he began rethinking that decision soon after,

ultimately choosing to talk to police mere hours later.

In this case, defendant’s decision to plead guilty came not four

hours after the State’s offer, but rather five years after the offer.

Although the Brownell court concluded that there had not been any

change in circumstances in those four hours, it is far more difficult to

conclude that nothing changed over the five years in which the parties

were preparing for a retrial.

Until April 2007, defendant continued to pursue a trial, risking the

more serious penalty of death. This time line refutes any suggestion by

defendant that the State’s Attorney reneged on the bargain made by

his predecessor. After five years of proceedings, there was no bargain

between defendant and the State. Although we do not construe offers

such as this in strict contractual terms (Brownell, 96 Ill. 2d at 176),

the fact that defendant rejected the State’s offer and prepared for trial

for five years reflects the absence of any bargain. Unlike Brownell,

defendant could not have reasonably believed that the earlier offer was

still open, particularly when he acknowledged, in entering his guilty

plea, that death was a possible sentence.

A contrary holding would allow the defendant to seek a plea offer

from the State, reject it, and pursue a trial, forcing the State to spend

the time and money to prosecute the case. Then, at the last possible

moment, perhaps facing a conviction, the defendant could force the

State to adhere to its side of the “bargain.” Under this scenario, a

prosecutor likely would be hesitant to risk making such a plea offer

for fear of being bound indefinitely, even if the defendant initially

rejected it.

In Brownell, this court concluded that the proper question is

whether circumstances changed between the time the State’s offer was

made and the time that the defendant complied with the State’s

conditions. In this case, we answer that question in the affirmative and

hold that the State’s decision to again seek a death sentence did not

violate defendant’s right to due process.

III. Excusing of Prospective Juror for Cause

During voir dire, prospective juror N.W. was questioned by the

-56-

trial court about his ability to vote for or against a death penalty

verdict. He answered that he did not have strong feelings about the

death penalty that would cause him to vote automatically for or

against imposing a death penalty. Instead, if the evidence showed that

death was an appropriate sentence, N.W. indicated he could sign the

verdict. Likewise, if the evidence did not demonstrate that death is the

appropriate sentence, he would not sign the death penalty verdict

form.

However, upon further questioning by the State, the following

exchange occurred:

“MR. ELWARD [prosecutor]: *** If at the end of this

case, Jim, Mike and I prove to you by the evidence in this case

beyond a reasonable doubt that the Defendant is guilty, he is

eligible for the death penalty, and at the sentencing hearing, in

your opinion, the only appropriate sentence is the death

penalty, can you sign that verdict?

[Prospective Juror N.W.]: No, I don’t think that I could.

MR. ELWARD: And I appreciate your honesty. Can you

tell me why not?

[Prospective Juror N.W.]: I am not for sure why not. I

don’t want to take responsibility for that.

MR. ELWARD: You don’t want to take responsibility for

that.

[Prospective Juror N.W.]: Yeah.

MR. ELWARD: Judge, I don’t have any more questions.”

Later, N.W. was questioned by defense counsel. During this

questioning, the following exchange occurred:

“MR. CARTER: Concerning the issue of the death penalty

that you may have to determine, if you are selected as a juror

in this case, would you listen to the opinions of the other

jurors concerning that process?

[Prospective Juror N.W.]: Yeah.

MR. CARTER: And would you consider their opinion in

making your decision?

[Prospective Juror N.W.]: No.

MR. CARTER: You would not.

-57-

[Prospective Juror N.W.]: It depends–I don’t know.

MR. CARTER: Well, I am asking you if you would

consider having an open mind to the possibility of voting for

the death penalty, if you are asked to serve and follow the law

in the case. And I am asking you, can you do that?

[Prospective Juror N.W.]: Yeah.”

The State challenged N.W. for cause on the ground, among

others, that he stated he could not sign a verdict of death. Defense

counsel objected, arguing that N.W. indicated he had no feelings one

way or the other on the death penalty and that he indicated he would

be fair and impartial.

The trial court allowed the State’s challenge for cause, stating,

“The prospective juror indicated that he could not sign a

verdict form imposing the death penalty, and just as he

understood the other questions, this was not a failure to

communicate, in the court’s opinion. He understood the

question, and he answered it indicating that he could not do

that. This is the first juror who has indicated when a clear and

succinct question has been put to them as to whether they

could or could not sign that form, indicated that he could not,

and that’s troublesome to the Court, and in the exercise of my

discretion I am going to excuse the juror on that basis and on

that basis alone.”

Defendant now contends that the trial court erred in allowing the

State’s challenge, resulting in a violation of his sixth and fourteenth

amendment rights.

A trial court may remove a prospective juror for cause because of

the person’s views toward the death penalty when “the juror’s views

would ‘prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.’ ”

Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52,

105 S. Ct. 844, 852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45,

65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980); People v.

Banks, 237 Ill. 2d 154, 189-90 (2010). It is not enough, to dismiss a

juror for cause, that the juror “voices only general objections to the

death penalty.” Banks, 237 Ill. 2d at 189. The trial judge is in a

superior position to gauge the meaning of the prospective juror’s

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responses to the examination. People v. Tenner, 157 Ill. 2d 341, 363

(1993). Therefore, a decision of the trial court to excuse a prospective

juror for cause is reviewed for abuse of discretion. People v. Taylor,

166 Ill. 2d 414, 421-22 (1995).

Defendant argues that, in this case, it cannot be concluded that

N.W.’s views are opposed to the death penalty. Defendant supports

this claim by arguing N.W. informed the court that he had no difficulty

with Illinois law providing for a death penalty and that his beliefs

would not prevent him from being fair and impartial to both sides.

Defendant argues that N.W., at no time, expressed any feelings against

the death penalty. We disagree.

It is necessary to consider the prospective juror’s statements as a

whole and not in isolation. Taylor, 166 Ill. 2d at 421. Although N.W.

informed the court that he did not have strong feelings either for or

against the death penalty, in response to a direct question as to

whether he could sign a verdict imposing a death sentence, he replied,

“No, I don’t think I could.” He explained that he did not “want to take

responsibility for that.” Although N.W. went on to agree that he could

have an “open mind to the possibility of voting for the death penalty,”

N.W.’s statements, taken as a whole, demonstrate at least some doubt

as to whether he would be able to sign a death verdict.

Defendant argues that N.W.’s views on the death penalty are not

even known. However, we can infer that whatever his views of the

death penalty in ideological or moral terms, he admitted he did not

think he could sign a death verdict. Thus, whatever his views may be,

his answer demonstrated they could have foreclosed or substantially

impaired the performance of his duties, thereby undermining the

fairness of defendant’s trial. Precise knowledge of the prospective

juror’s views, or the reasons behind them, are not always necessary to

determine whether such views will interfere with the juror’s ability to

perform his duties. It might be helpful to question a prospective juror

as to such matters if the court thinks he is seeking merely to avoid jury

duty. However, where the court determines the prospective juror to

be sincere in his belief he cannot sign a particular verdict, and where

his answers suggest an inability to carry out his duties, the court need

not examine in detail the prospective juror’s moral and political

leanings. Here, the record reflects statements by N.W. that suggest he

would not have been able to carry out his duties. The trial court was

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in the best position to determine whether N.W. was credible as to

those statements. Therefore, we hold that the trial court did not abuse

its discretion in excluding prospective juror N.W. for cause.

IV. Exclusion of Portion of Testimony by Defense Expert Witness

At his first trial, defendant raised an insanity defense. Dr. Conroe

testified as a defense expert that defendant met the second prong of

the insanity statute in that he was unable “to conform his conduct to

the requirements of the law” at the time of the offense. The trial court

applied an amended version of the statute that was in effect at the time

the crimes were committed. The statute, as amended, narrowed the

definition of insanity to eliminate the “inability to conform” prong and

increased a defendant’s burden of proof for an insanity defense to one

of clear and convincing evidence. Ramsey, 192 Ill. 2d 154; 720 ILCS

5/6–2 (West 1996). This court subsequently found that the act

amending the statute in this manner violated the single subject rule of

the state constitution. People v. Reedy, 186 Ill. 2d 1 (1999). Thus,

defendant was entitled to a new trial at which he would be “allowed

to present an insanity defense based on his inability to conform his

conduct to the law” and “required to prove his insanity at the time of

the offense by a preponderance of the evidence.” Ramsey, 192 Ill. 2d

at 159. Instead, defendant elected to enter a plea of guilty in return for

dismissal of certain charges.

Defendant notes in his brief that “[o]ne of the central themes of

mitigation presented by the defense was that death was not an

appropriate penalty” because at the time of the crimes, defendant

suffered from several mental disorders. This “theme” was intended to

provide support for the jury’s consideration of one of the seven

mitigating factors enumerated in the statute: “the murder was

committed while the defendant was under the influence of extreme

mental or emotional disturbance, although not such as to constitute a

defense to prosecution.” 720 ILCS 5/9–1(c)(2) (West 1996).

At the sentencing hearing, Dr. Conroe again testified as an expert

witness for the defense. He testified that defendant had a long history

of several chronic mental disorders, including Asperger’s Disorder,

Borderline Personality Disorder, and ADHD, and that he had a history

of Conduct Disorder as a youth. In combination, these disorders

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affected his ability to make judgments and to manage his feelings.

Conroe opined that as a result of these disorders, defendant was

“under extreme duress” at the time he committed the crimes.

In an effort to clearly bring Conroe’s opinion within the scope of

the statutory mitigating factor, defense counsel asked the witness

whether the diagnosed “disorders” could be characterized as “mental

disturbances.” Conroe replied “yes.” The State objected and,

following a sidebar discussion, the trial court sustained the objection

and informed the jury to disregard the question and the answer.

At a hearing the following day, the parties made a record of the

basis for the objection and the court’s ruling. The State objected to

the witness’s opinion on the basis that it had not been disclosed

previously, either in his written report or his discovery deposition.

Defense counsel argued that there had been no discovery violation,

because it was implicit in Conroe’s opinion and earlier testimony that

defendant suffered from an extreme mental disturbance. That is,

because Conroe opined that defendant’s mental state prevented him

from conforming his conduct to the law, he necessarily opined that

defendant’s condition met the “lesser standard” of extreme mental

disturbance. The trial court rejected this argument, finding that

because Conroe had “opined on other matters,” including “whether

defendant was insane at the time of the offenses,” his disclosure of this

opinion at trial was a discovery violation and would not be allowed.

In closing argument, defense counsel spoke at length about

defendant’s history of mental illness and suggested that the evidence

showed that when he committed these crimes, defendant “wasn’t

completely in his right mind.” He reviewed the diagnoses reached by

Drs. Conroe and Killian, including ADHD, and discussed the bases for

these diagnoses. Counsel emphasized the effect of ADHD on

defendant’s “problem solving, coping, and thinking through

decisions.” He discussed defendant’s “frantic efforts to avoid real or

imagined abandonment” and impulsivity, both related to Borderline

Personality Disorder, an “identity disturbance.” Counsel noted that

Conroe “characterized the mental illnesses as extreme” at the time of

the crimes. He argued that the defense witnesses on the mental health

issues were more credible, based on their professional credentials and

the depth of their evaluations, than the State’s witnesses. The

remainder of closing argument recounted the details of defendant’s

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birth and childhood, including the traumatic discovery of his adoption

and the repeated recommendations that he receive various forms of

therapy that were rejected by his adoptive parents.

The jury was instructed to consider mitigating factors “if

supported by the evidence,” including whether “the murders were

committed while the defendant was under the influence of an extreme

mental or emotional disturbance, although not such as to constitute a

defense to the prosecution.” In addition, the jury was instructed that

“[w]here there is evidence of a mitigating factor, that fact that such

mitigating factor is not a factor specifically listed in these instructions

does not preclude your consideration of the evidence.”

Defendant asserts that excluding Conroe’s answer to this question

is error entitling him to a new sentencing hearing. He argues that: (1)

there was no discovery violation because the answer to the question

was not a matter of Conroe’s opinion, (2) there was no discovery

violation because Conroe’s opinion regarding defendant’s mental

disturbance was adequately disclosed, (3) if there was a discovery

violation, the exclusion of Conroe’s answer was an abuse of

discretion, and (4) if the sanction imposed for the discovery violation

was within the trial court’s discretion, defense counsel was ineffective

for failing to obtain Conroe’s opinion on this question prior to trial

and to make a timely disclosure of this opinion to the State.

Discovery Violation

Before considering the appropriateness of the sanction imposed by

the trial court, a threshold question must be answered–whether there

was a discovery violation by the defense. People v. Hood, 213 Ill. 2d

244, 256 (2004). Where, as here, the facts giving rise to the alleged

discovery violation are not in dispute, the question is one of law that

we review de novo. Hood, 213 Ill. 2d at 256.

Defendant asserts that the question asked of Conroe did not seek

to elicit the witness’s opinion. For this assertion, defendant relies on

the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-

TR), a publication of the American Psychiatric Association, which sets

out the diagnostic criteria for recognized psychiatric disorders. The

text of the DSM-IV-TR uses the word “disturbance” to describe each

of the conditions diagnosed by Conroe. Thus, defendant argues, in

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describing these disorders as disturbances, Conroe was not expressing

an expert opinion, but was merely using the “accepted terminology of

the psychiatric community.” Thus, the question posed to Conroe

sought “clarification of the scientific fact that mental ‘disorders’ can

also be characterized as ‘disturbances.’ ” Therefore, according to

defendant, the lack of an express statement to that effect in either

Conroe’s written report or his deposition testimony cannot constitute

a discovery violation.

The State argues that defendant has forfeited this argument by not

raising it at trial, citing People v. O’Neal, 104 Ill. 2d 399, 407 (1984).

In that case, the State’s brief to this court challenged the jury

instruction on self-defense that was given at trial, basing its objection

“on an entirely different theory” from the one raised in the trial court.

Because the ground on which the instruction was being challenged

had not been brought to the attention of the trial court, this court

concluded that the State forfeited any right to have this court consider

the question on review. O’Neal, 104 Ill. 2d at 407.

In the present case, we need not determine whether defendant has

forfeited this issue or is merely citing new authority in support of a

properly preserved issue because this argument clearly lacks merit.

The State did not object to Conroe’s mere use of the word

“disturbance” in a manner that members of his profession typically use

the word. Rather, the State objected when defense counsel asked

Conroe whether the diagnoses he had made “could” be characterized

as “mental disturbances.” This question clearly called for the witness

to express his expert opinion on the question. If the question and

answer had been allowed, the next question would likely have been

whether, in the doctor’s expert opinion, the effect of these

disturbances upon the defendant was “extreme” at the time he

committed the murders, thus obtaining an expert opinion regarding the

existence of a statutory mitigating factor. If Conroe’s opinion on this

matter was not previously disclosed to the State, the objection was

properly sustained because he was being asked for his opinion.

Defendant also argues that Conroe’s written report and deposition

adequately disclosed his expert opinion regarding the existence of an

extreme mental disturbance at the time defendant committed the

murders. His written report stated that the “intense feelings of

abandonment following the break-up of the relationship with Ms.

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Sloop precipitated significant depression with serious suicidal

ideation.” In addition, Conroe opined that defendant’s various mental

illnesses “all affected his ability to control his anger and despair, to

maintain rational thinking and to come up with a number of options

that would prevent him from harming himself or others.” “He could

not control the intense feelings that overwhelmed him.” In his

discovery deposition, Conroe testified that he had no opinion about

defendant’s mental condition at the time of the crimes that was not

contained in his written report, but reiterated that “there was a

confluence of events that led to his feelings overwhelming him.”

The trial court rejected this argument, stating that “it would be

impossible to sort out those [opinions] which may have been a subset

of a previously-disclosed opinion or not.” Similarly, the court

observed that “it would be difficult if not impossible to try to interpret

such nondisclosed opinions because the Court would then be in the

process of interpreting the disclosures which had been made.”

We note that although the existence or nonexistence of this

mitigating factor may be supported by expert opinion, a jury may find,

based on the facts before it, that a defendant was acting under an

extreme mental or emotional disturbance, even in the absence of an

expert opinion to that effect or in the presence of a contrary expert

opinion. See, e.g., People v. Ramirez, 98 Ill. 2d 439, 467-68 (1983)

(finding it proper for State’s expert witness to give opinion as to

whether defendant was acting under the influence of an extreme

mental or emotional disturbance at the time of the murder, but noting

that the jury was free to reject that opinion based on the facts before

it). We also note that a diagnosis of some form of mental illness does

not necessarily establish the mitigating circumstance of extreme

mental or emotional disturbance at the time the defendant committed

the murders. See People v. Crews, 122 Ill. 2d 266, 283 (1988).

With this in mind, we agree with the trial court. Conroe’s report

and deposition testimony contained some statements that might have

been consistent with an opinion that defendant was extremely

disturbed, mentally or emotionally, at the time of the murders.

However, Conroe made no express statement to this effect in either

his written report or his deposition testimony. The trial court properly

declined to parse the earlier disclosures to see if they might support

such an unexpressed opinion.

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In sum, we conclude that the trial court properly ruled that the

defense failed to disclose the expert’s opinion on this matter and turn

to the question of the proper sanction for the discovery violation.

Sanction

When this court has had occasion to consider allegations of

discovery violations in capital cases, it has most often been in the

context of a defendant’s claim that the State’s violation of the

discovery rules entitles him to a new trial. See, e.g., People v.

Lovejoy, 235 Ill. 2d 97 (2009); People v. Sutherland, 223 Ill. 2d 187

(2006). We have not had occasion to consider whether a sanction

imposed on a capital defendant for a discovery violation is excessive.

Thus, the authorities cited by defendant are from our appellate court

in noncapital cases.

Defendant cites People v. Hawkins, 235 Ill. App. 3d 39, 43

(1992), for the proposition that the purpose of sanctions for discovery

violations is to compel the party’s compliance with discovery, not to

punish him. Further, discovery sanctions should be “fashioned to meet

the circumstances of the particular case with the ultimate objective of

compelling compliance, not punishing a party for the oversight or the

errors of his attorney.” People v. Damico, 309 Ill. App. 3d 203, 212

(1999). Defendant further asserts that the sanction of excluding

defense evidence in criminal cases should be applied only in extreme

situations, citing People v. Houser, 305 Ill. App. 3d 384, 390 (1999)

(trial court abused its discretion by barring necessity defense where

defendant timely disclosed intent to raise related defense of

compulsion), and People v. Foster, 145 Ill. App. 3d 477, 481 (1986)

(exclusion of defense witness as discovery sanction was abuse of

discretion where failure to disclose was inadvertent and State had

ample opportunity to interview the witness before trial). Finally,

defendant argues that if a less drastic sanction is available to redress

a discovery violation by the defense, it is an abuse of discretion for the

court to impose “the ultimate sanction of exclusion of evidence,”

citing People v. Brooks, 277 Ill. App. 3d 392, 398 (1996) (exclusion

of defense witness as discovery sanction was abuse of discretion

where sanction deprived defendant of his ability to present a defense),

and People v. Jackson, 48 Ill. App. 3d 769, 771-72 (1977) (exclusion

of defendant’s eyewitnesses, who were fellow inmates in correctional

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facility, was abuse of discretion where State was presumed to know

identity and location of witnesses within its control). Defendant

acknowledges that he has the burden of demonstrating prejudice as a

result of the imposition of an improper sanction. Foster, 145 Ill. App.

3d at 481. In general, we agree with these propositions, noting,

however, that sanctions imposed in the cited cases were more severe

than the mere exclusion of a testifying witness’s answer to a single

question.

On the merits, defendant argues that the opinion testimony need

not have been excluded because the State could have impeached Dr.

Conroe on cross-examination for his failure to testify during his

deposition that mental disorders may be characterized as

“disturbances.” In the alternative, the trial court could have called a

recess, during which the prosecutor could have questioned the witness

regarding this newly disclosed opinion. He also argues that the State

could not have been surprised that he was relying on Conroe’s

testimony to support his assertion of extreme mental or emotional

disturbance as a mitigating factor. He accuses the State of making an

objection that was “nothing more than a disingenuous ‘gotcha’ based

on Conroe’s failure to explicitly equate disorders with disturbances at

his deposition” and insists that the trial court did not consider

alternative sanctions, but “mechanically ruled” that the question and

answer would be excluded.

The State responds that the sanction was appropriate. The witness

testified at length regarding the various diagnoses he made and how,

in his opinion, these conditions affected defendant’s emotions and

judgment at the time of his crimes. Defendant was not prevented from

relying on the mitigating factor of extreme mental or emotional

disturbance and could have argued to the jury that Conroe’s testimony

supported a finding that this factor existed. In addition, the jury was

instructed to consider this specific mitigating factor. In the alternative,

the State argues that even if the trial court abused its discretion by not

ordering a less severe sanction, the error was harmless.

The imposition of sanctions for discovery violations is governed

by Rule 415(g)(i):

“If at any time during the course of the proceedings it is

brought to the attention of the court that a party has failed to

comply with an applicable discovery rule or an order issued

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pursuant thereto, the court may order such party to permit the

discovery of material and information not previously

disclosed, grant a continuance, exclude such evidence, or enter

such other order as it deems just under the circumstances.”

134 Ill. 2d R. 415(g)(i).

A trial court’s decision as to the appropriate sanction for a

discove

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