People v. Hanson

Docket No. 106566.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIC

HANSON, Appellant.

Opinion filed June 24, 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

Following a jury trial in February 2008, in the circuit court of

Du Page County, defendant, Eric Hanson, was convicted of four

counts of first degree murder (720 ILCS 5/9–1(a)(1) (West 2006)),

two counts of armed robbery (720 ILCS 5/18–2(a)(1) (West 2006)),

two counts of aggravated kidnapping (720 ILCS 5/10–2(a)(8) (West

2006)) and two counts of identity theft (720 ILCS 5/16G–15(a)(1),

(d)(1)(D) (West 2006)). The jury found death to be the appropriate

sentence on the murder convictions and the circuit court of Du Page

County imposed a sentence of death. The circuit court also found that

the armed robbery and aggravated kidnapping convictions merged into

the murder convictions and, therefore, did not enter sentences on

those counts. However, the circuit court did sentence defendant to

concurrent terms of 15 years for the identity theft convictions.

Defendant now appeals both his conviction and sentence.

BACKGROUND

Defendant was convicted of killing his sister, Katherine Tsao, and

Katherine’s husband, James. He was also convicted of killing his

parents, Terrence and Mary Hanson. The bodies of the four victims

were found in James and Katherine’s home (the Tsao home) on

September 29, 2005. Katherine and James had been bludgeoned.

Terrence and Mary had been shot in the head. Police later determined

that Terrence and Mary had been shot in their own home (the Hanson

home) and then had been wrapped in tarps and transported to the

Tsao home.

An investigation into the murders led police to the defendant after

police spoke with defendant’s other sister, Jennifer Williams. Jennifer

told police that Katherine telephoned her six weeks prior to the

murders, to tell Jennifer that defendant had been engaged in a scheme

to obtain credit in their parents’ names. Katherine also told Jennifer

that defendant had threatened Katherine by saying that if she told their

father what defendant had been doing, he would kill her. The

investigation quickly centered on defendant, leading to his arrest.

Prior to trial defendant filed several motions in limine, mostly

attempting to prevent admission of opinion and hearsay testimony

stemming from the investigation. One of these motions sought to

prevent reference to Jennifer’s belief that defendant was responsible

for the crime. This motion was denied. The State also filed a motion

in limine seeking to admit testimony from Jennifer regarding her

phone conversation with Katherine six weeks before the murders. The

circuit court granted this motion over defendant’s objection. As

discussed below, defendant has challenged both of these rulings.

The case proceeded to trial. At the guilt phase of the trial, the

following evidence was heard.

Chiuchih Tsao, James’s brother, testified that he and James

worked together at a trading company. The last time he saw James

and Katherine alive was around 5 p.m. on the day of the murders,

when the two left work for the day. He then testified that James did

not show up for work the next day. He thought it very strange that

-2-

James did not arrive for work, so he went to the Tsao home. When he

arrived, he first rang the bell. Then, when no one answered, he peered

in a window. From the window, Tsao saw a woman on the floor with

blood around her. He called his daughter, who, when she arrived at

the house, called the police. The fire department arrived first and

broke down the front door. Tsao testified that he saw a person sitting

on the couch when he went into the house. He went upstairs but did

not see anyone there. At that time police asked him to leave the house.

During his testimony, Tsao also identified a watch that he had bought

for James.

John Eul, an Aurora firefighter, then testified to the events

following the emergency call to the Tsao home. Eul testified that

when he and his partner arrived, they forced down the front door and

entered the house. Inside they saw the bodies of Katherine, James, and

Mary. Eul testified that they then determined the scene was not safe

and exited the house.

Katherine Von Holten, Mary’s coworker and friend, testified that

she became worried when Mary did not show up for work on

September 29. She testified that Mary had not called in to say she

would be late. After noon, Von Holten called Mary at her house

phone and cell phone but received no answer. At that point she and

another coworker drove to the Hanson home. They entered the

Hanson home with the help of a keypad code provided by Jennifer

Williams. Inside the home, they noticed nothing out of the ordinary,

other than a strong fire burning in the fireplace. Mary’s coworkers

then left a note for Mary. The note was left next to a note, written by

defendant, which read: “Mom, dad, see you Sunday. Have fun in

Galena.” Next to this note was some cash. The note included a

postscript that indicated this money was for “payment this month.”

While Von Holten was at the Hanson home, Mary’s nephew, Bob

Stutelberg, arrived. Von Holten testified that Stutelberg also looked

through the house. Stutelberg then drove the three of them to the

Tsao home. By the time they arrived, emergency personnel had

already arrived.

Stutelberg testified that defendant called him the morning of

September 29. He testified defendant told him he was on his way to

Midway Airport to catch a flight. Defendant asked if he would make

it in time. Stutelberg testified defendant was going to be flying to

-3-

California. He also testified that defendant mentioned he did not get

much sleep the previous night, as his mattress was “rotten.” In a

second telephone call from defendant, defendant informed Stutelberg

that he was at the airport and was going to make his flight.

Stutelberg also testified that on September 29 he received a call

from one of Terrence’s coworkers. The coworker told Stutelberg that

Terrence had missed a meeting that morning. Stutelberg testified that

it was unusual for Terrence to miss meetings. Stutelberg tried

contacting Terrence and Mary by phone, but was unable to reach

them. At this time, Stutelberg drove to the Hanson house, where he

encountered Mary’s coworkers. Stutelberg, too, mentioned that other

than the fire in the fireplace, nothing appeared out of the ordinary in

the house. Stutelberg then accompanied Mary’s coworkers to the

Tsao home.

Stutelberg further testified that between 5:30 and 6 p.m. he called

defendant on his cell phone to tell him that the police were saying they

found four bodies in the Tsao home. Stutelberg turned the phone over

to Detective Nilles of the Aurora police department, who had a

conversation with the defendant.

Christine Undesser testified that she and the defendant had gone

out together on September 28, the night of the murders. She testified

that she and defendant were out from 7 p.m. until around 9:30 p.m.

During the evening defendant mentioned that he was flying to

California to meet with Allison Beck, his ex-fiancée. Defendant drove

Undesser to her home, arriving around 10 p.m. She and defendant

talked for 15 minutes and then defendant left.

Allison Beck testified that she and defendant had known each

other for six years. They began dating in 2002 and eventually decided

to get married. When they were engaged, she and defendant moved to

Illinois from Phoenix, living with defendant’s parents. Beck testified

that during the time they lived together, she had seen defendant

looking through papers on Terrence’s desk. She also testified that

defendant had mentioned he would get an inheritance if his parents

ever passed away.

In 2004, Beck broke off her engagement to defendant. At some

point she moved to California, yet remained in contact with defendant.

She testified that during the time they were dating, defendant was

-4-

spending more money and buying nicer things. In May 2005, Beck

inquired about defendant’s finances and he replied that he was doing

very well at his job. However, Beck also had spoken with Katherine

several times in August 2005. As a result of these conversations, Beck

checked her credit. During one phone conversation, defendant asked

if Beck had been speaking with Katherine. Beck responded, falsely,

that she had not been talking with Katherine. According to Beck,

defendant responded, “If I ever find out, you are going to get it.”

Beck asked him if that was a threat. Defendant replied, “It’s a fact.”

Beck then testified about the week leading up to the night of the

murders. She had invited defendant to a concert in Los Angeles.

Defendant had agreed to go, and planned to fly to California on

September 29. Beck testified defendant had told her his flight left

Chicago at 9:30 a.m. and that he would be leaving his house at 6:30

a.m. in order to arrive at the airport in time. On the evening before he

was to fly to Los Angeles, defendant called Beck around 11:30 p.m.,

Central time. Defendant said he had a bad connection, and asked Beck

to call him back on his parents’ home phone number. Beck did call

him, and Terrence answered the phone at first. Defendant then

answered another phone in the house, and Terrence hung up. Beck

and defendant then had a conversation about his trip to California. The

next morning, defendant again called Beck to say that he was running

late to the airport because of traffic, but that he was going to be on a

later flight. When defendant arrived, Beck asked him what he did on

the plane and defendant replied that he slept the entire time. He said

he did not know why he was so tired.

Deborah Chereskin, a neighbor of the Hansons, testified that she

took her dog out in the backyard at 1:50 a.m. on September 29.

Chereskin’s backyard abuts the backyard of the Hanson house.

Chereskin testified that when she took her dog out, all of the lights in

the Hanson house were turned on, including the basement window

where defendant’s bedroom is located.

State’s witnesses then testified regarding the crime scene at the

Tsao home. Sergeant Nisha Kalra, an evidence technician and

photographer, testified to the layout of the Tsao home, and identified

several pictures depicting the location and position of the victims’

bodies, a laptop computer, bloodspatters and other forensic evidence.

Detective Christopher Berard, of the computer forensics division of

-5-

the Naperville police, testified that the hard drive taken from the

computer found near James’s body was last accessed at 10:43 p.m. on

September 28.

Next, Jennifer Williams, sister to both Katherine and defendant,

testified as to defendant’s spending habits in the months leading up to

the murders. Williams also testified to the conversation she had with

Katherine six weeks before the murders. In that conversation

Katherine told her that defendant had admitted to opening up credit

accounts in his parents’ names and had charged around $80,000 to

these accounts. Defendant had admitted this both to Katherine and to

Mary. Defendant promised to pay the money back and asked that

Katherine and Mary not tell Terrence. Williams testified that Katherine

told defendant she was going to tell Terrence anyway. At that point

Katherine told Williams that defendant had threatened her, saying, “If

you tell dad I’ll fucking kill you.” Katherine called Williams that same

day to tell her about the confrontation.

Williams testified that Katherine called her again the following

day. Katherine called to say she did not go to work because “she was

really freaked out” about what defendant had said the day before.

Over the next few weeks, Katherine and Williams continued to talk

about the situation over the phone, but Williams did not provide any

more specifics. Williams also testified that on the night of the murders,

Katherine had called her twice, at 10 and 10:06 p.m. Williams was out

of the house the first time Katherine called, but Katherine spoke to

Williams’s daughter. The second time Katherine called, Williams did

not answer, as she was getting ready for bed.

The following morning, Williams tried calling Terrence to ask

about a home repair issue, but there was no answer. Williams testified

she also tried to reach Mary at work, as well as Mary’s cell phone and

Katherine’s cell phone. She called again later in the morning, and then

made repeated attempts to call each of them. She also spoke with Bob

Stutelberg, and she asked him to drive over to house to check on her

parents. Williams testified she also spoke with Mary’s coworkers and

provided them the entry code for the garage door. Later, from the

Tsao home, Mary’s coworkers put Williams on the phone with

Detective Nilles, of the Aurora police department. During that

conversation, Williams told Detective Nilles that she “was really

worried because my brother had threatened my sister.” Williams

-6-

testified as to a copy of Mary’s credit report she found when cleaning

out Mary’s bedroom dresser. The credit report was dated August 13,

2005, which was the day before Katherine called her about

defendant’s threat.

Lisa Stewart, a custodian of records for Southwest Airlines,

testified that the airline’s records showed defendant had purchased a

ticket from Chicago to Los Angeles, departing at 11:15 a.m. and

arriving at 1:30 p.m. A return flight was booked at the same time, for

flight on October 2, leaving Los Angeles at 11:15 a.m. and arriving in

Chicago at 5:10 p.m. Stewart also attempted to testify to a note

included in those records. That note read “if passenger checks in,

please contact the LAPD ***. Passenger is very dangerous.” This

testimony drew an objection from defense counsel and the objection

was sustained. Stewart then testified to another reservation defendant

had made for a flight on September 30, leaving Los Angeles at 7:15

p.m. and arriving in Chicago at 1:05 a.m. on October 1. Stewart

testified defendant did not board either of defendant’s booked return

flights. Sarah Voss, an airlines record custodian for United Airlines,

testified that defendant had booked a flight on September 29, leaving

Los Angeles at 11:05 p.m. Voss confirmed that defendant did board

this flight.

The State called several witnesses to explain how various evidence

samples were collected and how the case was investigated. The

witnesses, mainly police officers, testified that bloodstains were found

in the Hanson home, that the Hansons’ mattress had been switched

with a mattress in the guest bedroom, that the murderer had attempted

to repair the headboard where bullets had penetrated and that a

cordless drill was found. One witness testified that a bullet fragment

was found in an attic joist near the Hansons’ bed. The State later

argued this evidence demonstrated the calculated nature of the crime.

John Collins, a firearms and tool mark expert, testified that the

bullet found in the joist matched other bullets found within Terrence

and Mary. Collins also testified as to tool marks made in an attempt

to repair the headboard of the Hansons’ bed and testified that the

plastic garbage bag found under Terrence’s head came from a box of

garbage bags found at the Hanson house. He compared markings on

a plastic zip lock bag found in defendant’s car, containing green latex

gloves, to a box of zip lock bags at the Hanson home, and concluded

-7-

that the bag found in the car came from the same manufacturer as the

box of bags in the Hanson home.

Dr. Scott Denton, a medical examiner, testified to his autopsies of

James and Katherine Tsao. He described in detail the various injuries

sustained by both victims. He confirmed that James’s and Katherine’s

deaths were caused by skull and brain injuries as a result of blunt

trauma to the head. He also testified that James lacked any indication

of defensive wounds. However, Denton did conclude that injuries to

Katherine’s forearms were defensive wounds. Denton also testified

that Katherine’s ring finger had been broken. He opined it was broken

by being bent backwards. On cross-examination, Denton

acknowledged that her ring finger had no indentation from a ring and

no cuts or bruises. Denton further testified that he did not know if

Katherine was wearing a ring when she was killed.

Similarly, Dr. Jeff Harkey, chief forensic pathologist for the

Du Page County coroner’s office, testified as to his autopsies of

Terrence and Mary Hanson. Harkey concluded that each victim died

as a result of a single gunshot wound to the head. Harkey also

concluded, based on a stippling pattern on Terrence’s head, that a

second gunshot was fired near Terrence’s head but did not hit him.

Craig Morehouse, a Wisconsin state trooper, testified that he

initiated a traffic stop of defendant’s vehicle north of Madison,

Wisconsin. He further testified that he informed defendant that there

was a warrant for his arrest in Illinois, and took defendant to a nearby

county sheriff’s department.

Reynaldo Rivera, an evidence technician with the Aurora police

department, testified that he examined defendant’s vehicle after his

arrest. Rivera testified he began by taking photographs, and then

examined the contents of the vehicle. Specifically, he testified that he

found a clear zip lock sandwich bag containing rubber or vinyl gloves.

The gloves had a brown, reddish flaky substance on them. Rivera also

found a gold Rolex watch in the center console of the vehicle along

with a silver, princess-cut diamond ring.

Tamara Camp, a DNA analyst, testified that she tested swabs

taken from both crime scenes, as well as from items found in

defendant’s vehicle the night he was stopped by Wisconsin police.

Camp identified several samples that contained DNA profiles

-8-

matching those of James and Katherine Tsao and Terrence and Mary

Hanson. Profiles matching Terrence and Mary were found both at the

Hanson home as well as inside Terrence and Mary’s SUV. Camp

testified that she identified a DNA profile matching James on the

watch found in defendant’s SUV. Camp also testified that although

she noticed a brown speck on the ring found in defendant’s SUV, she

was unable to identify a DNA profile. Lastly, Camp testified that

stains on the green gloves found in defendant’s vehicle tested positive

for blood, and that the gloves contained a DNA profile matching that

of Terrence.

Michael Nilles, a detective with the Aurora police department,

testified as to his investigation of the murders. When he arrived at the

Hanson home, he encountered Belinda Robinson, Mary’s coworker

who had gone to the home to check on Mary. Belinda handed Nilles

a cell phone. On the other end of the phone was defendant’s sister,

Jennifer Williams. Nilles testified that this phone conversation led him

to consider defendant a suspect. After that conversation, Mary’s

nephew, Bob Stutelberg, gave his cell phone to Nilles, telling Nilles

that defendant was on the phone. During this conversation, Nilles

confronted defendant with, among other things, the statement

“Jennifer thinks you did this” and told defendant that he knew

defendant had an argument with Katherine over his using his parent’s

identities to get credit cards. Nilles informed defendant that he was

sending two detectives to Los Angeles to meet with defendant. Nilles

testified to a series of calls between himself and defendant, including

a conversation in which defendant acknowledged being at the airport

and Nilles told defendant that it seemed as if he was running from the

police, which defendant denied.

Nilles further testified that on Friday morning, September 30, he

received a phone call from defendant, who indicated he was still in

Los Angeles. However, following a phone call with the FBI, Nilles

had reason to believe defendant was actually back in Illinois, and

instructed local police agencies to look for defendant traveling north

toward Wisconsin. Following defendant’s apprehension in Wisconsin,

Nilles traveled there and interviewed defendant. Defendant was

advised of his Miranda rights, which defendant waived. Defendant

repeatedly denied being involved in the murders.

The State also questioned several witnesses regarding the GPS

-9-

device recovered from defendant’s vehicle. The State elicited

testimony that tracked the movements of defendant’s vehicle on the

evening prior to the murders as well as its movements the morning

before the bodies were discovered and the following day, when

defendant returned to Illinois. Testimony also revealed the device was

turned off between 7:30 p.m. the day of the murders and

approximately 9:30 a.m. the day after.

During the trial, the State also called several witnesses to establish

the basis for the identity theft charges against defendant. As defendant

is not challenging the evidence or the convictions on these counts, we

need not describe this testimony in detail.

For the defense, Jennifer Cones, a forensic scientist certified as an

expert in fingerprint identification and comparison, testified that she

examined a fingerprint found on the bag containing bloodstained

gloves that was found in defendant’s car. Comparing this print to

defendant’s fingerprints, she concluded that the two did not match.

However, on cross-examination, she acknowledged that she did not

compare the print to the fingerprints of Terrence and Mary Hanson.

Defendant testified next. He acknowledged that he had used his

mother’s and father’s names in order to secure credit, which he then

used to purchase various items. He then admitted that in the middle of

August his parents confronted him with credit reports and defendant

admitted that he had been charging purchases to these credit cards.

According to defendant, he convinced Mary that he would stop and

that he would begin to pay her back. When he was separately

confronted by Terrence, defendant testified, his father agreed to allow

defendant to take out a consolidation loan in Terrence’s name, in

order to pay off some of the current debt.

Defendant then testified as to his whereabouts the evening of

September 28, prior to the murders. He met with Christine Undesser

at a bar and returned to his parents’ house, where he was living,

around 11 p.m. Defendant testified that Terrence was awake in his

office when defendant arrived home. Around 11:15 defendant called

Allison Beck in Los Angeles. The connection was not good, and

defendant asked Allison to call him back on his parents’ house phone.

When Allison called, Terrence answered, but defendant answered

shortly after and told Terrence, “I got it.” Defendant then talked to

Allison until approximately 11:30. Defendant testified that after this

-10-

phone call, he put a movie into his DVD player and fell asleep during

the movie, probably around 1:30 a.m.

Defendant testified that the following morning, he woke up, went

to a convenience store to buy cigarettes, took a shower, finished

packing for his trip to Los Angeles and left the house. He testified he

planned on driving to James and Katherine’s house in order to return

Katherine’s wedding ring and the watch belonging to James.

According to defendant, Katherine had taken the ring off while

painting some flower pots. As for the watch, defendant testified that

Katherine had wanted to order Terrence a watch and needed to know

how many links were needed for the chain. According to defendant,

Katherine was going to order the watch because Terrence did not

always do things in a timely fashion. If Katherine helped get the right

measurements, she would order the watch so Terrence would not

have to do anything. Katherine had James’s watch in order to compare

it to Terrence’s wrist for sizing purposes and defendant testified that

Katherine left the watch at the Hanson home. Defendant testified that

although he intended to return the items before he went to the airport,

he was in a hurry to get to the airport and forgot to stop by their

house.

On the way to the airport, defendant realized that he did not have

his driver’s license and that he was not going to be able to get to his

flight on time. He returned to his parents’ home to get his license and

called to book a new reservation to Los Angeles. On his second

attempt to get to the airport, defendant called Bob Stutelburg to ask

where to park and whether he thought defendant would be able to

make his flight in time. Defendant testified that he did get to the

airport in time and boarded his flight to Los Angeles. While in Los

Angeles, defendant learned from Stutelberg that there were four

persons dead in James and Katherine’s house. Defendant denied

killing any of the victims.

The jury returned a verdict of guilty as to all four counts of first

degree murder. The jury also found defendant guilty of the armed

robbery of James and Katherine Tsao and of the aggravated

kidnapping of Terrence and Mary Hanson. The jury found defendant

guilty of the identity theft of Terrence and Mary Hanson.

In the eligibility phase of defendant’s sentencing trial, the jury

returned a verdict finding defendant to be eligible for a death sentence.

-11-

The verdict was based on defendant being 18 years or older at the

time of the murders and that the deaths were a result of the intent to

kill more than one person, the murders were committed in a cold,

calculated and premeditated manner pursuant to a preconceived plan

scheme or design, James and Katherine were killed in the course of an

armed robbery and Mary and Terrence were killed in the course of an

aggravated kidnapping.

At the sentencing hearing itself, the State first argued that the fact

there were multiple victims and the fact that the murder was

committed in a calculated and premeditated manner were both

sufficient aggravating factors. The State also argued that defendant’s

criminal history, which included home invasions, retail theft and

property damage, was an aggravating factor. The State referred to

testimony from witnesses detailing other incidents involving violence

and threats made by defendant. Lastly, the State asked the jury to

consider the impact statements of the victims’ family members.

In mitigation, counsel for defendant argued that the murder was

committed while defendant was under the influence of an extreme

mental or emotional disturbance. Defendant relied primarily on the

testimony of Dr. Dawkins, who concluded that defendant would not

be a risk of harm to others in a structured environment such as prison.

After weighing the evidence in aggravation and mitigation, the jury

returned a verdict that death was the appropriate sentence. The court

declined to enter a written order setting forth a basis for disagreement

with the jury’s verdict, as permitted by section 9–1(g) of the Criminal

Code of 1961 (720 ILCS 5/9–1(g) (West 2006)). Instead, the circuit

court concurred in the decision of the jury and sentenced defendant to

death. The court found that the convictions for armed robbery and

aggravated kidnapping merged into the convictions for murder and so

did not enter sentences on those counts. The circuit court did sentence

defendant to concurrent terms of 15 years for defendant's identity theft

convictions.

Pursuant to Supreme Court Rule 603 and section 9–1(i) of the

Criminal Code, defendant now appeals directly to this court. 134 Ill.

2d R. 603; 720 ILCS 5/9–1(i) (West 2006).

-12-

ANALYSIS

On appeal to this court, defendant raises nine arguments. These

arguments relate to both the guilt and sentencing phases of his trial

and challenge the constitutionality of the death penalty statute itself.

We address each in turn, supplementing each analysis with additional

facts from the record when necessary.

I. Forfeiture by Wrongdoing

Defendant’s first argument is that the circuit court erred in

admitting the testimony of Jennifer Williams relating to a conversation

Jennifer had with her sister, Katherine. In that conversation, Katherine

mentioned that defendant had threatened her. Prior to trial, the State

filed a motion to forfeit defendant’s right to cross-examine these

statements made by Katherine. The State argued that defendant

sought to prevent Katherine from serving as a witness against him and

did so by killing her. In a hearing on the State’s motion, Jennifer’s

testimony was consistent with the testimony she would later give at

trial. Katherine phoned her shortly after she and Mary had confronted

defendant about the credit cards he had obtained in Mary’s name.

Defendant had admitted to Mary and Katherine that he had gotten the

credit cards issued and had run up debt. He also promised he would

pay the money back to his parents. At that time Mary and Katherine

agreed that neither of them would tell Terrence about what defendant

had done.

After Mary had left the room, however, Katherine told defendant

that she would tell Terrence about defendant’s scheme. Katherine told

Jennifer that defendant responded by saying, “If you tell dad, I will

fucking kill you.” Jennifer testified that Katherine was very upset

during the phone conversation. Jennifer urged Katherine to tell

Terrence what had happened, but Katherine demurred, saying she had

promised Mary not to tell Terrence.

When Jennifer had a second conversation with Katherine the next

day, Katherine said she “had a very unsettling feeling about what Eric

had said.” She told Jennifer that she had stayed home from work and

turned on her home security system. Lastly, Jennifer testified that she

had found a printout of a credit report in Mary’s name. The report had

Mary’s handwriting on it, and the report was found in Mary’s dresser

-13-

drawer. Several items on the report were circled and other had

question marks next to them.

On cross-examination, Jennifer acknowledged that she did not

know why Katherine would tell defendant she was going to tell

Terrence what defendant had done, but then tell Jennifer that she

would not be telling Terrence. She also admitted that she did not call

the police after Katherine told her about defendant’s threat, but

explained that she was trying to honor what Katherine had asked, that

she not tell anyone else.

At the hearing, the State also proffered testimony which tracked

what would eventually be its case in chief. This testimony included the

estimated timeline of the murders, defendant’s whereabouts the day

of, and days following, the murders and a summary of the forensic

evidence discovered at the scene of the murders. The State also

referred to a letter from defendant to Bob Stutelberg in which

defendant reported that he had told Katherine to stay out of his

business and out of his life. Further, he told Katherine that if she did

not, she would “regret it.” According to the letter, Katherine

responded by asking if defendant was threatening her. Defendant

responded, “No, I’m promising.”

Arguing the motion, the State admitted that Katherine’s

statements to Jennifer were hearsay. However, pursuant to the

doctrine of forfeiture by wrongdoing, defendant had forfeited his right

to cross-examine Katherine on those statements. The State argued

that it had proved, by a preponderance of the evidence, that defendant

committed a wrongdoing, murdering Katherine with the intent to

undermine the judicial process or destroy the integrity of the criminal

justice system by keeping Katherine from going to the police or

testifying against him.

Defendant argued in response that the State had not proven any

wrongdoing. Specifically, defendant questioned whether one person

could have committed these murders, and could not demonstrate that

defendant was in the Tsao home at 10:43 p.m. when the laptop was

accessed for the last time. Defendant also challenged the State’s

forensic evidence as insufficient to prove any wrongdoing.

The circuit court concluded the State had proved forfeiture by

wrongdoing by a preponderance of the evidence. The court

-14-

specifically found that the State proved defendant committed the

murder and proved that defendant did so with the intent to make

Katherine unavailable as a witness. The court, therefore, granted the

State’s motion and allowed Jennifer’s testimony to be introduced at

trial.

In reviewing this issue, we first note that the State argues

defendant has only challenged the circuit court finding that, by a

preponderance of the evidence, defendant made Katherine unavailable.

Defendant conceded at oral argument that he is not challenging the

finding that he acted with the intent to make Katherine unavailable.

Therefore, we will not review this finding concerning intent.

Instead, we address defendant’s contention that the circuit court

erred by admitting Jennifer’s testimony because the doctrine of

forfeiture by wrongdoing does not permit admission of nontestimonial

hearsay. Defendant also suggests that even if nontestimonial hearsay

may be admitted under the doctrine, the reliability of the statements

must be considered in the admission decision. Lastly, defendant argues

that the State’s proffered testimony was insufficient to prove by a

preponderance of the evidence that defendant committed Katherine’s

murder.

A reviewing court will not reverse the circuit court’s ruling on a

motion in limine absent an abuse of discretion. People v. Kirchner,

194 Ill. 2d 502, 539 (2000). However, defendant is not arguing the

circuit court abused its discretion. Rather defendant argues that the

court had no discretion to admit Jennifer’s testimony because the

forfeiture by wrongdoing doctrine requires that the statements be

testimonial and because the statements must show some measure of

reliability. Defendant correctly argues that these questions are ones of

law to be reviewed de novo. People v. Caballes, 221 Ill. 2d 282, 289

(2006).

The doctrine of forfeiture by wrongdoing is a common law

doctrine. As early as 1878, the United States Supreme Court

acknowledged that if “a witness is absent by [a defendant’s] own

wrongful procurement, he cannot complain if competent evidence is

admitted to supply the place of that which he has kept away.”

Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244, 247

(1878). The doctrine was later codified, at the federal level, by Federal

Rule of Evidence 804(b)(6) as an exception to the general hearsay

-15-

rule. Fed. R. Evid. 804(b)(6). More recently, the Supreme Court, in

Crawford v. Washington, recognized that the forfeiture by

wrongdoing doctrine, in addition to serving as an exception to the

hearsay rule, also “extinguishes confrontation claims on essentially

equitable grounds.” Crawford v. Washington, 541 U.S. 36, 62, 158 L.

Ed. 2d 177, 199, 124 S. Ct. 1354, 1370 (2004). In People v. Melchor,

our appellate court first recognized Rule 804(b)(6) as the law of

Illinois. People v. Melchor, 362 Ill. App. 3d 335, 345 (2005).

This court confirmed the appellate court’s recognition of the

doctrine in People v. Stechly, 225 Ill. 2d 246, 268-69 (2007).

However, defendant argues that Stechly adopted the doctrine only in

the context of testimonial statements to be analyzed under Crawford.

The doctrine of forfeiture by wrongdoing is not limited to

evidentiary questions that raise Crawford concerns. Rather, Rule

804(b)(6) is a general exception to the hearsay rule. We have already

expressed that the rule is coextensive with the common law doctrine.

Stechly, 225 Ill. 2d at 272-73. This conclusion is based on the

Supreme Court’s acknowledgment that Rule 804(b)(b) codifies the

forfeiture doctrine. Davis v. Washington, 547 U.S. 813, 833, 165 L.

Ed. 2d 224, 244, 126 S. Ct. 2266, 2280 (2006). Therefore, although

left unsaid in Stechly as a matter of Illinois law, we now expressly

recognize that the doctrine serves both as an exception to the hearsay

rule and to extinguish confrontation clause claims.

Traditionally, most hearsay exceptions allow the admission of

nontestimonial evidence. Crawford, 541 U.S. at 56, 158 L. Ed. 2d at

195, 124 S. Ct. at 1367. Defendant provides no argument, other than

a possible lack of reliability, for why the forfeiture by wrongdoing

doctrine should not also permit nontestimonial statements. As we next

discuss, lack of reliability is an insufficient rationale. Therefore, we

hold that the doctrine may be applied to admit both testimonial and

nontestimonial statements.

Turning to reliability, defendant misapprehends the purpose of the

forfeiture by wrongdoing doctrine by arguing for requiring indicia of

reliability. Had Katherine not been made unavailable by defendant’s

wrongdoing, she might have testified as to the threat defendant made

against her. Defendant would have then had an opportunity to test

Katherine’s reliability by cross-examining her, perhaps asking why she

did not go to police if she really thought she was in danger. He could

-16-

have also asked whether she fabricated the threat because she was

angry with defendant. Under the circuit court’s findings, however,

defendant forfeited his ability to challenge the reliability of Katherine’s

statements by improperly preventing her from testifying. Requiring

additional indicia of reliability would, therefore, undermine the

equitable considerations at the center of the doctrine.

Nor is reliability a significant consideration with respect to

Jennifer’s testimony relating her conversation with Katherine. Unlike

Katherine, Jennifer was present and able to testify. Thus, defendant

had every opportunity to demonstrate that Jennifer was exaggerating,

or even fabricating, the conversation she had with Katherine.

Defendant cross-examined Jennifer, pointed out to the jury the

seemingly contradictory dates given for the phone conversation and

asked Jennifer why, if she thought Katherine was upset and serious

about the threat, she did not call the police after the conversation.

Notwithstanding such arguments, a reasonable jury could conclude,

and we can presume did conclude, that Jennifer was telling the truth

and that Katherine indeed reported that defendant had threatened her.

The jury was aided in this effort by the State’s entering into evidence

defendant’s letter, and the credit report found in Mary’s bedroom,

which could be construed to support the conclusion that Jennifer was

reliably relaying what Katherine had told her.

In summary, the forfeiture by wrongdoing doctrine by its

application obviates the need to consider reliability. Under the

doctrine, defendant had the opportunity to challenge the reliability of

Jennifer’s testimony through cross-examination. Further, by his own

wrongdoing, defendant forfeited his right to challenge the reliability

of Katherine’s statements to Jennifer. Accordingly, we hold that so

long as the declarant’s statements are relevant and otherwise

admissible, statements admitted under the forfeiture by wrongdoing

doctrine need not reflect additional indicia of reliability. Additionally,

based on the testimony elicited at the hearing, discussed above, we

cannot say that the circuit court’s finding that defendant caused

Katherine to be unavailable was arbitrary or unreasonable. The circuit

court, therefore, did not abuse its discretion in granting the State’s

motion to allow Jennifer’s testimony.

-17-

II. Jennifer’s Statement to Police

Defendant next argues that the circuit court erred in admitting

testimony by Detective Nilles that defendant’s sister, Jennifer, believed

defendant had committed the murders. Defendant contends that this

testimony constituted improper and irrelevant opinion evidence. The

State responds first that defendant has waived any claim of error on

this issue, and even if the issue is not waived, the testimony was

admissible to demonstrate the course of the criminal investigation and

defendant’s reaction to Nilles’s comment, and provided context for

explaining defendant’s subsequent flight from police.

We address the State’s waiver argument first. The State cites

People v. Caffey for the proposition that “[w]hen a defendant objects

to certain testimony on direct examination, but then questions the

witness on cross-examination concerning that allegedly inadmissible

testimony, any error is waived for purposes of appeal.” People v.

Caffey, 205 Ill. 2d 52, 113 (2001). In Caffey, a witness testified he

overheard another person name four persons as burglars who had

entered that person’s home. On cross-examination, defense counsel

confronted the witness with the fact that he had not mentioned the

above statement to police when he was first interviewed. On redirect,

the State elicited testimony, over defense objection, that the witness

had told police about this statement during a subsequent interview.

Defense, on recross, attempted to demonstrate that the witness had

consulted with another witness between the two police interviews,

rendering the statement at the second interview suspect. On appeal,

defense counsel argued that admitting evidence of the second

interview was error. This court concluded that defendant had waived

that issue because defendant himself continued to question the witness

regarding the same testimony to which defendant had objected.

Caffey, 205 Ill. 2d at 113.

Defendant argues, however, and we agree, that this case more

closely resembles People v. Brown, 172 Ill. 2d 1 (1996). In that case,

the trial court ruled against the defendant on his motion in limine to

prevent admission of testimony as to defendant’s involvement with

gangs. At trial, the defendant responded to the State’s evidence by

calling witnesses who testified they had never known the defendant to

have been involved with any gang. Brown, 172 Ill. 2d at 48. We

concluded that the defendant did not waive appeal of the court ruling

-18-

on the defendant’s motion in limine. The defendant had only pursued

that line of questioning “in response to the trial court’s adverse

disposition” to his motion. Brown, 172 Ill. 2d at 48. The defendant

“apparently sought to blunt the impact” of the State’s anticipated

evidence. Brown, 172 Ill. 2d at 48.

When a circuit court makes an adverse evidentiary decision,

defense counsel cannot be forced to choose between waiving an issue

for appeal and allowing damaging testimony to go unanswered on

cross-examination. Forcing such a choice undermines counsel’s ability

to fully and vigorously pursue a client’s interests. Accordingly, we

conclude that defendant has not waived this issue and address the

merits of defendant’s claim.

As noted above, it is within the circuit court’s discretion to

determine whether evidence is relevant and admissible. People v.

Morgan, 197 Ill. 2d 404, 455 (2001). A decision to admit evidence,

therefore, will not be overturned unless it is arbitrary, fanciful or

unreasonable. Morgan, 197 Ill. 2d at 455.

The testimony at issue is Detective Nilles’s assertion, during a

conversation with defendant, that “Jennifer thinks you did this.” Also

relevant to this discussion is Jennifer’s testimony, elicited by

defendant, that she had indeed made that statement to Detective

Nilles.

Defendant first asserts that the testimony at issue was improper

opinion testimony. We disagree. Detective Nilles did not testify that

he believed defendant was guilty. Nor did Jennifer testify that she

believed defendant was guilty. Rather, both Nilles and Jennifer

testified to a statement which indicated, at the time the statement was

made, that Jennifer thought defendant had caused the victims’ deaths.

At no time was any testimony offered as to Jennifer’s present opinion

of defendant’s guilt or innocence. Thus, while defendant may arguably

challenge the testimony as to relevance and hearsay concerns, we

reject defendant’s argument that this testimony constituted improper

opinion testimony.

Regarding relevance, we conclude that the evidence was relevant

in that it provided some context for why the investigation was

focusing on defendant. Defendant, in an earlier phone conversation,

had asked on at least one occasion why Detective Nilles was “asking

-19-

him these types of questions.” The information that “Jennifer thinks

you did this,” based on her remembering Katherine telling her about

defendant’s earlier threat, was part of the reason for the questions.

Nilles later testified that he mentioned several things to defendant to

let him know why he was sending detectives to meet him in Los

Angeles, and why it was important that defendant and Nilles speak to

each other in person later. Lastly, the State argues, and we agree, that

Nilles’s testimony that “Jennifer thinks you did this” was relevant for

interpreting defendant’s subsequent actions, such as his unannounced

return to Illinois, and his drive through Wisconsin. The jury could

have found that the fact that defendant knew his sister had told police

about his argument with Katherine, and had indicated she thought

defendant could have committed the murders, made it more likely that

defendant felt the need to flee the police and avoid being arrested.

Defendant’s hearsay arguments are also unconvincing, for many

of the same reasons. An out-of-court statement is admissible if it is

offered for some purpose other than to establish the truth of the

matter asserted and does not constitute hearsay. People v. Banks, No.

103933, slip op. at 16 (February 19, 2010). In this case, the State did

not seek to admit Jennifer’s statements to prove that defendant was

guilty or even to prove that Jennifer thought defendant was guilty.

Instead, Detective Nilles’s testimony provided context for his

investigation and for testimony pertaining to defendant’s state of mind

based on defendant’s response to Nilles’s questioning.

As Nilles’s testimony was not improper opinion, was not irrelevant

and was not inadmissible hearsay, the only question remaining is

whether the testimony was nonetheless unduly prejudicial to

defendant. A court may exercise its discretion and exclude evidence,

even if it is relevant, if the danger of unfair prejudice substantially

outweighs any probative value. People v. Walker, 211 Ill. 2d 317,

337-38 (2004). However, in this case, we conclude that the decision

by the circuit court to deny defendant’s motion in limine and allow

Nille’s testimony was not arbitrary, fanciful or unreasonable, and was,

therefore, not an abuse of discretion. We agree with defendant that

evidence that a witness believes a defendant is guilty may be unfairly

prejudicial. Defendant cites People v. Crump, 319 Ill. App. 3d 538

(2001), as an example. In that case, it was considered reversible error

for a police officer to testify he believed the defendant was guilty.

-20-

However, in this case, as we have noted above, no witnesses testified

as to their belief that defendant was guilty. Further, the prejudice

arising from such testimony does not substantially outweigh its

probative value. In Crump, the testimony was “especially prejudicial

because, as an authority figure, he was informing the jury that it

should believe a portion of the prosecutor’s case.” Crump, 319 Ill.

App. 3d at 544. In contrast, this court has held that the testimony of

a defendant’s sister-in-law that the defendant did not have a compliant

personality and “did whatever he wanted to do” was not overly

prejudicial. People v. Kidd, 175 Ill. 2d 1, 36 (1996).

In this case, although defendant suggests that a jury would find

Jennifer to be “uniquely knowledgeable” about defendant’s character,

we cannot conclude that the indirect reference to Jennifer’s initial

opinion of defendant’s involvement is so prejudicial as to substantially

outweigh the probative value of the statement, as identified above.

Therefore, we hold the circuit court did not abuse its discretion in

admitting the testimony of Detective Nilles.

III. References to Defendant’s “Dangerousness”

During defendant’s trial, the State called as witnesses two airline

employees who had been in contact with defendant in Los Angeles the

day after the murders. During that testimony, the State first

questioned Lisa Stewart, the airline records custodian, as follows:

“[Prosecutor]: Now, if you page forward to 4991 [of the

airline computer records]. What is that sheet called?

[Stewart]: This is the remarks page. The gate agent or

ticket agent has access to the reservation records and can put

remarks in the reservation record.

Q. And were remarks typed in to that sheet, that remark

sheet, at about 7:00 that night?

A. Yes.

Q. And that would be September 29th?

A. Yes, that’s correct.

Q. And what were those remarks?

A. Some of them were abbreviated, but I can read it to

you. It says if passenger checks in, please contact the LAPD

-21-

at (310) 4– excuse me, 646-2255 ASAP. Passenger is very

dangerous.

[Defense Counsel]: Objection. Your Honor.

THE COURT: Sure. Sustained.

[Prosecutor]: There were–

THE COURT: And you’re not to consider that in any

way.”

Later, the State questioned Lynnly Taylor, the ticket agent who

sold defendant an airline ticket on September 29. Taylor twice

referred to the computer records notation. The first time, the State

asked “Was there any information that was put into the ticketing

computer at Southwest?” Taylor responded, “Yes, there was a

comment put in by another Southwest agent, you know, this person

could be potentially dangerous.” Defense counsel did not object to

this response.

Later, in asking Taylor to identify the records so that they could

be admitted into evidence, the State asked, “Can you tell the jury what

that is?” Taylor responded, “It’s a remark in the reservation record for

Eric Hanson, the notation says that the passenger is dangerous.”

Defense counsel objected and the objection was sustained. The court

then gave the following instruction:

“You’re not to consider that for the truth of the matter.

You’re only to consider that only insofar as it explains what

she did in talking to her supervisor, but you can’t consider it

as being a truthful statement just insofar as it explains what

she did. So, again, you can’t consider it for the truth of the

matter.”

Defendant’s argument as to this testimony is that he was denied

due process and effective assistance of counsel as a result of the airline

agents’ mentioning that the Los Angeles police department considered

defendant “dangerous.” Defendant argues trial counsel was deficient

in failing to consistently object to this testimony or in failing to seek

a motion in limine to exclude the testimony. The State responds that

two of the three references to defendant’s dangerousness were cured

by sustained objections accompanied by limiting instructions, which

also avoided any prejudice against defendant for the one reference to

which defense counsel did not object.

-22-

We analyze ineffective assistance of counsel claims under the two-

part test established by Strickland v. Washington, 466 U.S. 668, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d

504, 526-27 (1984). To satisfy Strickland, defendant must first show

that defense counsel’s performance was deficient, in that it fell below

an objective standard of reasonableness. Strickland, 466 U.S. at 688,

80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Defendant must also show

that there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

After reviewing the record, we cannot say that counsel’s

performance fell below an objective standard of reasonableness. We

turn first to defendant’s assertion that counsel should have filed a

motion in limine seeking to exclude any reference to the notes

contained in the airline’s computer record. Although defendant argues

that a motion in limine would have prevented the jury from hearing

the testimony, we do not agree that the testimony would have been

excluded.

Had a motion in limine been brought, we agree that the proper

ruling would have prevented reference to the notes found in

defendant’s computer record when testified to by Lisa Stewart, the

records custodian. In reaching this conclusion, we assume that the

circuit court would have exercised its discretion by granting or

denying the motion based on whether the rules of evidence require

exclusion. However, we note that even if the rules of evidence require

exclusion, a circuit court nonetheless has the discretion to deny the

motion and require the moving party to object at trial.

Here, the notes, as referenced by Stewart, had no admissible

nonhearsay purpose. Also, as the court correctly concluded at trial,

the State had failed to meet the requirements to admit the notes under

the business record exception to the hearsay rule.

However, any attempt to completely exclude the notes as they

related to Lynnly Taylor’s testimony would not have been properly

granted. At trial, the State elicited from Taylor testimony on the notes

twice within a short time period. Both mentions were related to how

Taylor later recognized defendant’s name, and informed her actions

following her brief encounter with him. The content of the notes,

although hearsay, were admissible for this nonhearsay purpose.

-23-

Therefore, the hearsay nature of the notes alone would not have

permitted the circuit court to grant a motion in limine.

The only other way defense counsel could have succeeded in a

motion in limine would be if the prejudice to defendant of admitting

the testimony substantially outweighed its probative value. In this

case, the notes regarding defendant’s potential “dangerousness” were

not so prejudicial as to weigh against its admission. This trial centered

around four murders. The jurors had already heard testimony that

police were interested in defendant as a suspect. They were aware that

Nilles had sent detectives to Los Angeles to look for defendant, and

that local police in California were also involved. Jurors likely were

not surprised to learn that, during a murder investigation, the Los

Angeles police department had made a note to consider the suspect

dangerous. We conclude that any prejudice to defendant was minimal,

and the court would have been correct to deny the motion on

prejudice grounds.

Had a motion in limine been filed, then, defense counsel likely

would have succeeded only in preventing one mention of the notes.

Further, the notes would have been later admitted anyway, albeit for

a limited purpose. We cannot say that the decision to object at trial,

rather than file a motion, was so unreasonable as to constitute

deficient performance.

Nor was defense counsel’s performance at trial deficient. Defense

counsel promptly objected to the first mention of these notes, by

Stewart. The objection was sustained and the court properly ruled that

the remarks could not be considered by the jury in any way. Later,

during Taylor’s testimony, the court sustained defense counsel’s

objection to the third mention of the notes and offered a limiting

instruction that the notes were only to be considered “insofar as it

explains what [Taylor] did in talking to her supervisor.” The limiting

instruction could have been clearer, but it was sufficiently clear to

inform the jury that it could consider the statement as evidence for

why the agent called her supervisor, but not as evidence that

defendant was actually dangerous. Thus, although defense counsel

failed to object at the second mention of the notes, doing so would not

have prevented that evidence from being admitted. At best, defendant

could have received a limiting instruction, likely a similar instruction

as given by the court a few minutes later. The failure to object to this

-24-

one mention, when the testimony would have nonetheless been

admitted and when the jury was subsequently instructed as to the

limited purpose for which the testimony could be considered, does not

constitute performance by counsel that fell below an objective

standard of reasonableness. Therefore, we hold that defendant was not

deprived of effective assistance of counsel.

IV. Aggravated Kidnapping Convictions

Defendant next argues that the State did not prove the elements of

aggravated kidnapping. The State’s brief did not directly respond to

defendant’s arguments as to the sufficiency of the evidence and at oral

argument it conceded, without explanation, that the aggravated

kidnapping conviction should be vacated. Because defendant’s

conviction for aggravated kidnapping ultimately merged with the

murder conviction and he was not sentenced on that conviction, and

because defendant challenges the conviction exclusively to argue that

it improperly affected the jury’s sentencing verdict, we need not

consider the sufficiency of the evidence in this case. Instead, without

reaching the merits of defendant’s argument, we accept the State’s

concession and proceed to examine whether, as defendant contends,

the conviction for aggravated kidnapping was improperly considered

by the jury in determining that death was an appropriate sentence.1

The Supreme Court has concluded that “[a]n invalidated

sentencing factor (whether an eligibility factor or not) will render the

sentence unconstitutional by reason of its adding an improper element

to the aggravation scale in the weighing process unless one of the

other sentencing factors enables the sentencer to give aggravating

weight to the same facts and circumstances.” (Emphasis in original.)

Brown v. Sanders, 546 U.S. 212, 220, 163 L. Ed. 2d 723, 733, 126 S.

1

Defendant does not argue that the aggravated kidnapping conviction

requires the jury’s eligibility verdict to be set aside. An invalid statutory

factor will not impair an eligibility finding as long as a separate, valid

aggravating factor supported eligibility. People v. Williams, 193 Ill. 2d 306

362-63 (2000). As the State notes, the jury found two other aggravating

factors supporting eligibility, and defendant does not challenge either of those

factors. Therefore, eligibility is not at issue.

-25-

Ct. 884, 892 (2006).

In Brown, the Court invalidated two of the four eligibility factors

that the jury considered in determining whether a death sentence was

appropriate. Nonetheless, in addition to the “special circumstances”

sentencing factors, the California statute included a sentencing factor

allowing aggravating weight to be given to “ ‘[t]he circumstances of

the crime of which the defendant was convicted in the present

proceeding.’ ” Brown, 546 U.S. at 222, 163 L. Ed. 2d at 734, 126 S.

Ct. at 893, quoting Cal. Penal Code Ann. §190.3 (West 1999). The

Court concluded that this additional factor permitted the jury to

consider all of the same aggravating facts and circumstances presented

under the invalidated factors. Brown, 546 U.S. at 224, 163 L. Ed. 2d

at 735, 126 S. Ct. at 894.

The Illinois death penalty statute has a similar additional

sentencing factor. In capital cases in Illinois, the court shall instruct

the jury “to consider any aggravating and any mitigating factors which

are relevant to the imposition of the death penalty. Aggravating

factors may include but need not be limited to those factors set forth”

in the death penalty statute. 720 ILCS 5/9–1(c) (West 2006). In this

case, the jury was instructed that it should consider “all the

aggravating factors supported by the evidence” even if “such

aggravating factor is not a factor specifically listed in the[ ]

instructions.” Thus, citing Brown, the State argues that the facts upon

which the aggravated kidnapping charge was based could be

considered by the jury to give aggravating weight under this “catch-

all” sentencing factor.

Defendant argues the line should be drawn more narrowly. He

argues that the evidence relating to the kidnapping, that Terrence and

Mary had living, beating hearts at the time they were moved, would

not have otherwise been admitted and, therefore, could not have

otherwise been considered by the jury in the “catch-all” category. We

disagree.

Defendant’s argument suggests that the jury would not have

otherwise heard testimony relating to the aggravated kidnapping

charge had it not been charged or had it been disposed of on a motion

for a directed verdict. Specifically, defendant asserts the jury would

not have heard evidence that defendant moved living persons with

beating hearts. As Brown indicates, “[i]f the presence of the invalid

-26-

sentencing factor allowed the sentencer to consider evidence that

would not otherwise have been before it, due process would mandate

reversal *** .” Brown, 546 U.S. at 220-21, 163 L. Ed. 2d at 733, 126

S. Ct. at 892. However, this did not occur in this case.

Facts adduced at trial relating to the aggravated kidnapping charge

were not extensive. The State elicited on direct examination from Dr.

Harkey only that the cause of death of both Terrence and Mary was

a gunshot wound to the head. The State did not ask about time of

death and did not ask for Dr. Harkey’s opinion on when Terrence and

Mary were moved. Indeed, it was defense counsel who asked Dr.

Harkey about the time of death. Dr. Harkey responded by

acknowledging that Terrence and Mary likely were immediately brain

dead, but that their hearts could have continued beating for seconds

or minutes afterward. The State did not submit Dr. Harkey to any

redirect examination.

The State, however, did elicit testimony from several witnesses

supporting its theory that Terrence’s and Mary’s bodies had been

moved from the house where they were shot to the Tsao home. Thus,

the jury was presented with evidence that Terrence and Mary were

shot in their home. The jurors were presented with evidence, elicited

by the defendant, that Terrence’s and Mary’s hearts may have been

beating for, at most, a couple of minutes and that they were at some

time moved to the Tsao home.

As for argument, we note that in closing argument of the guilt

phase of defendant’s trial, the State did not reference the aggravated

kidnapping. The State also failed to argue aggravated kidnapping

during its initial argument of the eligibility phase, other than to say:

“As to Mary and Terry, aggravated kidnapping, was that

committed during the course of a felony? He shot them and he

moved them to the other house. Why? It’s a continuing course

of conduct, one act. He did not want the two scenes to be

connected. That is why he shot them and brought them over

to the other house. That murder was committed in the course

of another felony. Mary and Terry were both killed during the

course of another felony, aggravated kidnapping.

***

That the murders of Mary and Terry Hanson were

-27-

committed in the course of an aggravated kidnapping. ***

They were killed in their bed, and they were transported over,

with one purpose, to cover up the crime scene. It was part and

parcel of the whole continuing course of conduct.”

Defense counsel then argued that a person cannot be kidnapped

when they are dead. Counsel referred to the testimony by Dr. Harkey

that Terrence and Mary were already brain dead when they were

moved. In rebuttal argument during the eligibility phase, the State then

argued that Dr. Harkey did say Terrence’s and Mary’s hearts could

have still been beating, but acknowledged that he did not know

whether this was so, and did not know the exact time the bodies were

moved.

We cannot say that the presence of the invalid sentencing factor

allowed the sentencer to consider evidence that would not otherwise

have been before it. The jury was presented with the entire sequence

of events, from the shooting to the cleanup to transporting of the

Hansons to the Tsao home. The jury was entitled to give those facts

and circumstances aggravating weight under the “catch-all” sentencing

factor. Therefore, we hold that the improper conviction for

aggravated kidnapping does not require reversal of defendant’s death

sentence.

V. Testimony in Aggravation

During the sentencing phase of defendant’s trial, defendant called

Roger Cowan, a former prison warden, to testify as to what defendant

might expect to experience if he were sentenced to natural life in

prison. During the course of that examination, the following exchange

occurred:

“[Defense counsel]: Now, let’s say you have someone who

becomes–or someone who perhaps tries to stab another

inmate or someone who tries to take out a guard, certainly

there’s something more penal than something like taking away

their radio. What would Menard do with a person like that?

[Witness]: Well, yes, the grade system is to deal with the

minor rule infractions. Any major rule infraction he would be

placed in segregation and for a lack of another term, that a jail

inside the jail, the segregation unit, where he would be locked

-28-

up 24 hours a day. And any time he comes out of his cell, he’d

be escorted; and there would be a number of restrictions that

would be imposed.”

On cross-examination, the State referenced this inquiry and asked

Cowan about three specific instances where an inmate killed a

corrections officer at a maximum security prison. That exchange went

as follows:

“[Prosecutor]: [Defense counsel] mentioned something.

He said let’s say someone takes out a guard, do you recall that

question?

[Cowan]: Takes out a guard?

Q. Yeah.

A. Assaults an employee or guard?

Q. Right. And his words were take out a guard.

A. Okay. Yes.

Q. And you were the Captain of Corrections; is that

correct? You held that office?

A. Yes, I did.

Q. And that was for–between 1981 and 1986 at Menard,

correct?

A. Yes, it is.

Q. And between 1981 and 1986, would you tell the jury

how was it that a Correctional Officer Joseph Cushman got

killed?

A. Actually Joseph Cushman was a guard at a medium

security facility called a farm annex. And an inmate struck him

in the head with an ax and killed him at the farm annex.

Q. How about Cecile Harvison who got killed in 1984?

A. In 1984 Officer Harvison was killed coming off of the

four gallery in the south cell house. An inmate charged out of

his cell while the evening dining room doors were open and he

attacked Officer Harvison with a knife and stabbed him to

death at the four gallery grill door.

***

Q. And you’re probably familiar with the most recent

-29-

[killing of an officer] in 2007, correct?

A. No. I’m not that familiar with that; but now that you

say that, I did read where there was an incident at Stateville,

yes.”

Defendant argues that this testimony was irrelevant and should not

have been admitted. Defendant acknowledges that counsel did not

object to this testimony at trial. Therefore, he asks this court to review

the record for plain error or, in the alternative, to hold that defendant

was denied effective assistance of counsel.

The plain-error doctrine allows a reviewing court to consider

unpreserved error when (1) a clear or obvious error occurs and the

evidence is so closely balanced that the error alone threatened to tip

the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurs and that

error is so serious that it affected the fairness of the defendant’s trial

and challenged the integrity of the judicial process, regardless of the

closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565

(2007). The first step in this analysis, therefore, is to determine

whether a clear and obvious error occurred.

The ostensible purpose of defendant’s questioning of Cowan was

to demonstrate that defendant would not be a danger to others if he

were sentenced to natural life in prison rather than be given a death

sentence. Elsewhere in Cowan’s testimony, he stated that there have

been only three instances where an inmate has gotten outside the wall

of Menard state prison. Cowan also noted that each of these three

individuals had been apprehended. From this testimony, jurors could

infer that defendant likely would not escape to again pose a danger to

the public. From Cowan’s testimony as to the penalties for “taking

out” a guard, the jury was to infer that defendant would not be a

danger to prison employees, either.

For this reason, the State argues that defendant opened the door

to its questioning Cowan about specific instances of inmate violence.

The purpose of the State’s questioning was to clarify how frequent an

occurrence it is for an inmate to kill a corrections officer even when

there are strict punishments for doing so. Therefore, the State argues

there was no error and, consequently, no plain error. We agree with

the State that admission of this testimony did not constitute error.

-30-

Although it is error for the State to speculate as to the possibility

that defendant will commit future crimes (People v. Edgeston, 157 Ill.

2d 201, 241 (1993)), we conclude that the State made no such

speculation in this case. On direct examination, defendant did not seek

to demonstrate that he, himself, would not be prone to violence.

Rather, Cowan’s testimony concerned general statements that

regulations and the threat of further punishment are in place to

provide incentives for inmates to refrain from violence. Likewise, the

State’s questioning emphasized that such regulations will not work

under all circumstances. The State refrained from questioning Cowan

about whether defendant himself was likely to harm prison officers.

Rather, it limited itself merely to demonstrating that the threat of

stricter confinement alone does not always prevent inmate violence.

Additionally, the State made no reference to defendant’s future

dangerousness in closing argument. Based on the generalized nature

of the questioning and the lack of any argument as to defendant’s

future dangerousness, we conclude that it was not a clear and obvious

error for the court to allow Cowan’s testimony to be admitted.

Finding no error, our plain-error analysis ends here.

Similarly, we find no merit in defendant’s ineffective assistance

claim. As noted above, to demonstrate ineffective assistance of

counsel, defendant must show that defense counsel’s performance was

deficient, in that it fell below an objective standard of reasonableness.

Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant must also show that there is a reasonable probability that,

but for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d

at 698, 104 S. Ct. at 2068. Having concluded that it was not error for

the court to allow Cowan’s testimony, the failure to object to this

testimony cannot constitute deficient performance and cannot result

in prejudice to defendant. Thus, we hold that defendant’s ineffective

assistance of counsel claim must also fail.

VI. Fifth Amendment Challenge

Defendant next argues that the circuit court’s instruction to the

jury that recognized defendant’s right to remain silent and not submit

to an interview by a prosecution psychologist penalized defendant by

indicating that mitigation could have been rebutted had defendant

-31-

agreed to such an interview. The State responds that this issue has

been forfeited because defendant failed to object to the instruction and

affirmatively contributed to the instruction’s content.

During the closing arguments of the sentencing phase of

defendant’s trial, counsel for defendant referenced the testimony of

Dr. Marva Dawkins. Dawkins testified as an expert in clinical and

forensic psychology and gave the opinion that defendant had attention

deficit hyperactivity disorder. Dawkins suggested that although prison

life would be difficult for defendant, prison structure would control his

behavior. In referencing this testimony defense counsel argued that

Dawkins’ testimony was “unrebutted” and “unchallenged by any other

expert.” Counsel also argued that the State could have hired an expert

and that “Eric would have had to subject himself to those interviews.”

Counsel’s statements prompted several objections by the State, which

were overruled. The State requested a sidebar, where the parties

discussed whether the State could have required defendant to give an

interview to a prosecution psychologist. The State cited People v.

Lee, 196 Ill. 2d 368 (2001), which held that a defendant in a capital

case may not be required to submit to an interview by a State expert.

People v. Lee, 196 Ill. 2d at 382. 2 The circuit court agreed to instruct

the jury that defendant could not be forced to submit to an interview.

Defense counsel then asked the court to also instruct the jury that the

State could have hired an expert to review Dawkins’ findings, but that

the State chose not to do so. The circuit court agreed and instructed

the jury as follows:

“Ladies and gentlemen, good afternoon. I’m just going to

clarify one issue for you. Mr. Hanson has a right at every stage

of this proceeding under the Illinois and United States

constitutions to remain silent.

As part of that right, I need you to be aware that I–the

Court could not order him to agree to any interview or testing

by an expert on behalf of the State. The State did not make

2

At the time Lee was decided, this court’s Rule 413, governing discovery,

did not apply to death penalty proceedings. Although Rule 413 was soon

after amended to include such cases, the rule still does not require a

defendant to submit to a psychiatric examination.

-32-

such a request in this case, but you need to be aware that I

could not have ordered him to do so, and he would have had

no obligation to agree to an interview or test by an expert on

behalf of the State. That’s his right. We’ve talked about it

many times.

An expert could have reviewed reports and records in this

case. The State chose not to do that and they may be

discussing that in their argument or not as they see fit.

In any event, I want you to be aware that that’s the case.

So there is no misunderstanding, again, I’m not at all saying

that either side did anything wrong in this case, and certainly

Mr. Hanson was never asked to submit, but under the law he

has no right to submit, nor could I order him to submit to any

interview or testing by an expert on behalf of the State. Thank

you.”

Defendant did not object to this instruction. During the sidebar

preceding the instruction, the circuit court asked if defendant had any

objection to informing the jury that defendant could not be required

to testify. Defense counsel responded, “[o]nly with the caveat, your

Honor, as long as the jury understands that they [the State] were

allowed–were given the documents, the same documents that Dr.

Dawkins had *** and that their expert could have given an opinion

based on the records aside from any interview with Mr. Hanson.”

Defendant’s “caveat” was satisfied when the court instructed the jury

that the State could have hired an expert to review the documents.

Therefore, we conclude that defendant has forfeited this issue.

Anticipating the State’s forfeiture argument, defendant

acknowledges that “the error was not as well preserved as it might

have been had counsel made the most appropriate objections.” Thus,

defendant first argues that application of the waiver rule is less rigid

where the basis of the objection is the trial judge’s conduct, a doctrine

referred to as the Sprinkle doctrine. See People v. Nevitt, 135 Ill. 2d

423, 455 (1990). Defendant’s reliance on Nevitt is misplaced. As this

court recently explained in People v. McLaurin, relaxing the waiver

rule is warranted when the trial judge has overstepped its authority in

the presence of the jury or when counsel is effectively prevented from

objecting as any objection would have “fallen on deaf ears.” People v.

McLaurin, 235 Ill. 2d 478, 488 (2009).

-33-

In this case, however, the circuit court first informed both parties

of its intended instruction during a sidebar outside the presence of the

jury. Counsel had ample time to argue its point that the State could

have had an expert review Dawkins’s findings. Indeed, it did argue

that point and succeeded in having the court include a statement in its

instruction reflecting defendant’s position. For this same reason, we

cannot say that any objection would have “fallen on deaf ears.” The

circuit court incorporated defendant’s suggestion into its instruction,

and defendant otherwise made no objection to the content of the

instruction. Therefore, we decline to relax the forfeiture rule in this

case based on Sprinkle.

Defendant argues, in the alternative, that this court should review

the issue for plain error. As discussed above, plain error analysis first

requires us to examine whether a clear and obvious error occurred.

Defendant argues that the instruction was error in that it penalized

defendant for exercising his Fifth Amendment rights by letting the jury

believe that defendant had obstructed the State’s efforts to rebut

defendant’s mitigation arguments.

We find no error in the court’s instruction. First, the instruction,

as delivered, was a correct statement of the law. During the

sentencing phase of a capital case, a defendant is not required to

submit to examination by the State. In clarifying this to the jury, the

circuit court corrected defense counsel’s prior statement that

suggested that the State could have hired its own expert and that

defendant would have had to subject himself to those interviews. The

court’s statements regarding the State’s options were also a correct

statement of the law. The State could have hired an expert to review

the findings of Dr. Dawkins. 134 Ill. 2d R. 413(c). The State chose

not to do so.

Defendant argues that People v. Szabo, 94 Ill. 2d 327 (1983), and

People v. Mulero, 176 Ill. 2d 444 (1997), support his argument that

he was penalized for exercising his fifth amendment rights. The

defendant in Szabo was convicted of murder. During the sentencing

phase of his trial the defendant testified in support of mitigation.

Specifically, he explained to the jury how bad he felt about what he

had done, and expressed remorse that he had agreed to go along with

his co-conspirator’s plan. Szabo, 94 Ill. 2d at 358. On cross-

examination, the prosecution confronted the defendant with his failure

-34-

to express any remorse to police after he had been arrested. The

defendant did not admit to police that it was his co-conspirator’s idea

to commit the murder. In finding error in the State’s cross-

examination, this court concluded “[t]here is no question that such

remarks are fundamentally unfair and amount to a deprivation of due

process in allowing an arrested person’s silence to be used to impeach

an explanation subsequently offered at trial.” Szabo, 94 Ill. 2d at 359.

Similarly, the defendant in Mulero, convicted of murder, testified

at her sentencing hearing in mitigation that she confessed and pleaded

guilty because she knew her actions were wrong and was remorseful.

Mulero, 176 Ill. 2d at 459. On cross-examination, the prosecution

raised the issue of a motion to suppress her confession. In that motion,

the defendant alleged that she confessed because the police had

tricked her and did not mention anything about remorse. Mulero, 176

Ill. 2d at 460-61. The State then used that motion to suppress to

suggest that the defendant had pleaded guilty to avoid a harsher

penalty and not because she felt guilty about what she had done.

Mulero, 176 Ill. 2d at 461. This court found error with the State’s

cross-examination. It concluded that “[t]he sentencing jury was in

effect told that it could consider defendant’s exercising of her

constitutional right to remain silent as an aggravating factor against

her.” Mulero, 176 Ill. 2d at 463. This tactic, if allowed, would have a

“chilling effect” on a defendant’s decision to file a motion to suppress

or otherwise exercise her fifth amendment rights. Mulero, 176 Ill. 2d

at 463.

We find Szabo and Mulero to be distinguishable. In each of these

cases, the defendant’s silence was directly used against him or her on

cross-examination. The prosecution in each case specifically referred

to the defendant’s silence to infer the defendant was pretending to be

remorseful to avoid a death sentence. However, the State did not ask

the jury to make such an inference in this case. It did not ask

defendant about any postarrest silence. It did not confront him with a

refusal to submit to a psychiatric exam, as the State never requested

one. The only statement presented to the jury about defendant’s right

to remain silent was presented by the court.

Rather, in this case the judge in no way suggested that the

defendant interfered with the State’s effort to perform a psychological

evaluation. The court’s instruction made clear that although defendant

-35-

was not required to submit to an interview, the State could have

requested a voluntary interview. The court noted that State did not

submit such a request. Nor did the court imply that defendant

obstructed any other efforts. The court was clear that the State could

have asked another expert to review the documentation gathered by

Dawkins and noted, again, that the State declined to do so. Thus, the

instruction clearly noted that the State did not make any effort to hire

an expert.

This instruction, taken as a whole, supported most of defense

counsel’s argument that Dawkins’s testimony went unchallenged.

With the one exception of the statement suggesting that defendant

“would have had to subject himself” to an interview, defense counsel’s

statements were proper. The instruction allowed the jury to note that

although the State could have hired an expert or requested defendant

to voluntarily submit to an interview, it did not take the opportunity

to do so. Whereas in Szabo the jury was expressly told that the State’s

efforts were hampered by the defendant’s exercise of his fifth

amendment rights, the jury here was instructed that the State made no

such efforts to produce evidence in rebuttal. Therefore, we hold that

the circuit court did not err in giving the instruction as to defendant’s

right to remain silent.

VII. Defendant’s Request for Subpoenas to Collect Data

During the sentencing phase of defendant’s trial, defendant filed

a motion to declare the death penalty unconstitutional, which included

a discovery request to subpoena records that would “demonstrate the

empirical basis for [defendant’s] contention that *** the Illinois Death

Penalty Act fails to sufficiently narrow the class of persons eligible for

the death penalty.” The circuit court denied defendant’s request.

A subpoena is a judicial process, and the circuit court determines

whether the subpoena is unreasonable or oppressive. People ex rel.

Fisher v. Carey, 77 Ill. 2d 259, 265 (1979). Thus, the decision to

issue a subpoena is reviewed for abuse of discretion. People v. Jones,

295 Ill. App. 3d 444, 450 (1998).

Defendant contends that this court’s opinion in People v. Ballard,

206 Ill. 2d 151 (2002), indicated a need for empirical analysis of

whether eligibility for the death penalty is properly narrowed by

-36-

aggravating factors. Defendant argues that his subpoena request was

an attempt to avoid the criticism that the defendant in Ballard faced,

which was an inability to show his claims were empirically correct.

We cannot accept defendant’s interpretation of Ballard as

providing the basis for requiring the circuit court to allow subpoenas

to conduct a statewide review of death penalty cases. Defendant in

this case requested discovery of “all information on these issues from

records or files from the various prosecutor’s offices and public

defenders’ offices in Illinois.” The information sought by defendant

would include records not only of death penalty cases but of non-

death-penalty murder cases as well. Issuing a subpoena requiring such

discovery would be unreasonable and oppressive. Broad discovery of

this type becomes even less reasonable and more burdensome when,

under defendant’s interpretation of Ballard, one may presume every

defendant would be entitled to the same remedy. Thus, the time and

effort spent in complying with subpoenas would be multiplied as each

defendant conducted his own analysis, which may ultimately differ

from the analyses of other defendants. This is not a proper use of the

court’s subpoena power.

In addition to creating a burdensome scenario that could possibly

lead to incomplete or inconsistent results, defendant’s interpretation

misreads the court’s intent in Ballard. This court’s decision in Ballard

was not an invitation for defendants to seek to use the judicial process

as a means of compelling the collection of empirical data on the death

penalty. Rather, Ballard noted that defendant provided no evidence

“ ‘ “on this record, or through sources of which we might take judicial

notice, that his claims are empirically accurate, or that, if they were

correct, this would require the invalidation of the death penalty law.” ’

*** [Citation.]” Ballard, 206 Ill. 2d at 200. Setting aside for a

moment the second half of that statement, that there is no certainty

that any empirical evidence would even require invalidating the death

penalty, Ballard required only that if a defendant were to make an

empirical claim, he need provide some support. Ballard did not

suggest, however, that it would be appropriate for a defendant to

request that the court compel production of possibly thousands of

documents from offices throughout the state. Under Ballard,

defendants may present empirical evidence, but are not entitled to

require the circuit court to issue unreasonable discovery orders.

-37-

Therefore, we conclude that the circuit court did not abuse its

discretion in denying defendant’s subpoena request.

VIII. Eighth Amendment Challenge

Defendant next argues that the Illinois death penalty statute is

unconstitutionally excessive in that it fails to satisfy its legislative

purposes of incapacitation, deterrence and retribution. Defendant cites

as support the concurring opinion of Justice Stevens in the recent

Supreme Court case Baze v. Rees, 553 U.S. 35, 170 L. Ed. 2d 420,

128 S. Ct. 1520 (2008).

This court discussed in detail the analysis required by the eighth

amendment in capital cases in People v. Ballard, 206 Ill. 2d at 194-

200. Although Ballard did not directly address the concerns raised by

defendant in this case, the analysis adopted in Gregg v. Georgia, 428

U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), and its progeny

remains the framework for determining whether a state’s death penalty

statute is unconstitutionally excessive. Whatever the merits of Justice

Stevens’s arguments regarding incapacitation, deterrence and

retribution, the full Court has not incorporated such factors into its

jurisprudence as constitutionally significant. We decline to expand the

Court’s analysis, and we suggest that at this time defendant’s

arguments would be more appropriately directed to the legislature.

IX. Apprendi

Defendant lastly contends that the Illinois death penalty statute, as

amended, violates the principles announced in Apprendi v. New

Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000),

because the statute does not require the State, at the second stage of

the death sentencing hearing, to prove beyond a reasonable doubt that

aggravating factors outweigh mitigating factors. This court has

repeatedly rejected this argument. People v. Harris, 225 Ill. 2d 1, 50

(2007); People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); People v.

Mertz, 218 Ill. 2d 1, 93-94 (2005). Defendant has not persuaded us to

overturn these decisions.

-38-

CONCLUSION

As to defendant’s alleged guilt-phase trial errors, we conclude: (1)

the circuit court did not misapply the forfeiture by wrongdoing

doctrine and that it properly admitted the testimony of Jennifer

Williams; (2) the circuit court did not err in admitting the testimony

of Detective Nilles referencing Jennifer Williams’s initial opinion that

defendant was involved in the murders; (3) the trial court did not err

in its treatment of the airline’s computer records indicating that

defendant was dangerous; and (4) defendant’s convictions for

aggravated kidnapping must be vacated.

Although we conclude that defendant’s aggravated kidnapping

convictions must be vacated, we conclude that the erroneous

convictions did not improperly affect the sentencing phase of

defendant’s trial. We further conclude that no error occurred during

the sentencing phase with regard to the testimony of former Warden

Cowan or the instruction given to the jury regarding defendant’s fifth

amendment rights.

Lastly, we conclude that the circuit court did not abuse its

discretion in denying defendant’s subpoena requests and reaffirm that

the Illinois death penalty statute conforms to the Supreme Court’s

eighth amendment analysis and does not run afoul of Apprendi v. New

Jersey. Defendant has raised no issue that requires a new trial as to

either guilt or sentencing. Consequently, we vacate defendant’s

aggravated kidnapping convictions but affirm the circuit court

judgment in all other respects.

For the foregoing reasons, the judgment of the circuit court of

Du Page County is affirmed in part and vacated in part. The clerk of

this court is directed to enter an order setting Tuesday, November 9,

2010, as the date on which the sentence of death entered in the circuit

court is to be imposed. The defendant shall be executed in the manner

provided by law. 725 ILCS 5/119–5 (West 2008). The clerk of this

court shall send a certified copy of the mandate in this case to the

Director of Corrections, the warden of Tamms Correctional Center,

and the warden of the institution where defendant is now confined.

Affirmed in part and vacated in part.

-39-