People v. Banks

Docket No. 103933.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

BANKS, Appellant.

Opinion filed February 19, 2010.–Modified upon denial of

rehearing May 24, 2010.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,

Garman, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Dion Banks, was indicted in Cook County in numerous

counts of first degree murder in the shooting death of Rose Newburn,

attempt (first degree murder), armed robbery, aggravated vehicular

hijacking, aggravated kidnapping, aggravated discharge of a firearm,

possession of a stolen motor vehicle, and aggravated unlawful

restraint. The State elected to try defendant on only five counts of

murder and one count of aggravated discharge of a firearm. The jury

returned a general verdict of guilty of first degree murder and a

verdict of guilty of aggravated discharge of a firearm. Thereafter, the

jury found defendant eligible for the death penalty on two statutory

grounds and, after considering evidence in aggravation and mitigation,

found no mitigating factor sufficient to preclude the imposition of a

death sentence. The circuit court sentenced defendant to death and

therefore his appeal was brought directly to this court. Ill. Const.

1970, art. VI, §4(b); 134 Ill. 2d R. 603.

On appeal, defendant contends that (1) the State presented

inadmissible hearsay that linked defendant to the carjacking of Rose

Newburn’s Dodge Intrepid; (2) the State mocked defendant during

closing argument, compared the strength of its case against defendant

to other cases, and claimed that the jury had to believe all of the

State’s witnesses were lying to acquit defendant; (3) he was tried by

a juror with a bias against gang members; (4) the trial court erred

when it excused a potential juror who merely would have had

difficulty in imposing a death sentence; (5) the death sentence must be

vacated because the jury was not instructed on the elements of the

felonies in the felony-murder aggravating factor; (6) the State

presented irrelevant evidence of privileges received by prison inmates;

(7) the State violated defendant’s right to confront witnesses when it

had a records keeper testify about his prison disciplinary record and

had an assistant State’s Attorney read to the jury a statement and the

grand jury testimony of a witness to the killing that resulted in

defendant’s prior murder conviction; (8) the trial court erred when it

instructed the jury that the defendant should be sentenced to death if

no mitigating factor was sufficient to preclude a death sentence,

because that prevented the jury from performing its constitutionally

required task of measuring the totality of the mitigation against the

aggravation; (9) the State improperly argued that defendant should be

sentenced to death because he would kill someone if he received life

in prison, that the jury should weigh the aggravation against the

mitigation, and that defendant displayed no remorse for the murder;

(10) the trial court failed to adequately inquire into defendant’s

statements that his trial lawyers were ineffective; and (11) the Illinois

death penalty statute violates due process under Apprendi v. New

Jersey, because the State is not required to prove beyond a reasonable

doubt that aggravating factors outweigh the mitigating factors.

BACKGROUND

About 3 p.m. on March 24, 2001, Rose Newburn drove her sons,

Tyrone, age 5, and Quincy, age 4, to Ford City Mall. Tyrone, who

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was 11 years old at the time of trial, testified that he and his younger

brother Quincy were sitting in their mother’s car, while she was

looking through some papers. He saw a man, later identified as

defendant, approach the driver’s side window with a gun in his hand

and heard defendant tell his mother to “get out of the fucking car.”

When she did not get out, he saw defendant break the driver’s side

window, unlock and open the door, drag his mother out onto the

ground, and shoot her. Tyrone said that after shooting his mother,

defendant got into the car and drove off while he and Quincy were still

in the car. After a short time, defendant stopped the car and told the

children to jump out the window, but then he opened the driver’s side

door and let the boys out. After getting out of the car, Tyrone said, he

saw defendant talking to someone in a black car, and he watched both

cars drive off together. Tyrone and his brother hid behind a stop sign

until the defendant drove off, and then they ran to the front of the mall

where their mother was.

John Southward testified that he was walking in the mall

parking lot that afternoon when he heard an argument and saw a man,

whom he later identified in a police lineup and in court as the

defendant, standing next to the driver’s side of a green Dodge Intrepid

about 40 or 50 feet ahead of him. He had a clear look at the man’s

face.

Southward heard defendant say, “bitch, hurry up and get the fuck

out of the car,” and heard the victim respond, “please just let my kids

out.” He then heard a shot and ran toward the car. As Southward was

running, he observed defendant break the glass of the driver side

window with the butt of the gun, reach into the car, unlock the door,

open it, and throw the victim to the ground. He saw the defendant

drive away in the victim’s car and observed another car that had been

parked next to the Intrepid drive off after the defendant, but he did not

see anyone inside the other car. During his testimony, Southward

admitted to multiple previous convictions in the State of North

Carolina, as well as having two outstanding warrants from North

Carolina.

Joseph Harrison testified that he and his fiancee, Retrenia Smith,

were driving home from a shopping trip and while he was stopped at

a red light at 79th Street and Talman, he noticed two cars, a green

Intrepid and a dark-colored Corolla, “jumping in and out of lanes.”

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Harrison explained that defendant, in the Intrepid, pulled up next to

him on the driver’s side, but the Corolla hit Harrison’s car in the rear.

Harrison got out to inspect his car and then went to talk to the driver

of the Corolla, a woman later identified as codefendant Shakina

Feazell. She refused to roll down her window or respond to him. The

Intrepid drove off but then backed up. Defendant exchanged

profanities with Harrison and defendant told codefendant to “forget

about [Harrison] and take off.” She put the Corolla in reverse and

then drove off, with defendant following. Harrison said he jumped

back into his car and started following them east on 79th Street, as his

fiancee called the police.

Harrison stated that he stopped for a red light in the far right lane

at 79th and Western, the Corolla was next to him in the middle lane,

and the Intrepid next to the Corolla in the left-turn lane. He and

defendant again exchanged profanities and defendant told the woman

in the Corolla to take off when the light changed. As the light changed

the Corolla driven by codefendant left first, followed by Harrison, who

was followed by defendant. Defendant then pulled up to the left of

Harrison’s car and yelled at Harrison to “back the fuck off.”

Harrison’s fiancee testified that she saw a gun in defendant’s hand.

Harrison said he heard two shots, but he did not see defendant fire

them. Harrison then made a U-turn, and he and his fiancee called the

police while waiting at a gas station. Harrison later positively

identified defendant in a police lineup. His fiancee identified someone

other than the defendant in the lineup.

Steve Kelly testified that about 5:35 p.m. on March 24, 2001, he

was standing outside the field house in Garfield Park when he heard

a big crash and a bang. He went to investigate and saw a woman, later

identified as codefendant, lying on the ground next to a Corolla car

that had run into a parked van with such force that the van was now

on its side. Kelly said that as he attended to her, defendant pulled up

in a green Intrepid. Defendant asked the woman if she was all right,

helped her up, and told Kelly he would take her to the hospital. Kelly

said he pointed them in the direction of the nearest hospital. Kelly said

he saw defendant and the woman drive north in the green Intrepid on

Central Park Avenue.

By this time, the police had begun their investigation of the

carjacking and shooting that occurred at Ford City Mall, as well as the

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events reported by Harrison and Smith. Detective Jose Cardo, a

uniformed officer on patrol, testified that he received a series of flash

messages over the police radio. The first message was about a hit and

run accident, which included the description of a green Dodge

Intrepid, license plate MSV 43, fleeing the scene of the accident. He

said immediately following that message was another, informing the

officers that the Intrepid had been taken in a carjacking and shooting

at Ford City Mall.

Cardo said he was on Ohio Street traveling west when he received

the messages, and he immediately observed the green Intrepid

proceeding east on Ohio toward him. Cardo closed in on the Intrepid

and saw a male driving, with a female in the passenger seat. He

activated his emergency equipment and the Intrepid sped off. After a

chase lasting a few blocks, the Intrepid failed to make a left turn onto

Lake Street and slammed into a Chicago Transit Authority (CTA)

elevated-train pillar. Defendant jumped out of the vehicle and ran.

Cardo was able to apprehend defendant when defendant fell after a

short foot chase. After taking defendant and codefendant into custody,

Cardo stated, he observed a revolver on the floor of the driver’s side

of the Intrepid.

Officer Jackie Frausto testified that she arrived at scene of the

crash at the CTA elevated-train pillar and arrested a woman sitting in

the passenger seat of a green Dodge Intrepid. She saw a black

revolver with a brown handle on the floor of the driver’s side of the

Intrepid. She identified a photograph of codefendant as the woman

she arrested.

Assistant State’s Attorney Jennifer Gonzalez testified that, in the

early afternoon hours of March 26, 2001, detectives contacted the

Cook County State’s Attorney’s office, felony review unit, and she

responded. Gonzales testified she knew defendant had been in custody

since March 24, 2001. After introducing herself and explaining who

she was, she informed defendant of his Miranda rights. Defendant told

her he understood his Miranda warnings and responded in the

affirmative to her question: “Do you want to tell me about what

happened at Ford City Mall?” In this interview, defendant said he met

codefendant, Shakina Feazell, in a drug and alcohol rehabilitation

program; that she got most of their money by shoplifting; that he and

Feazell had gone to Ford City planning to steal a car; that he brought

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his revolver with him; that when he saw the Intrepid, he decided that

was the car he wanted; that he went up to the Intrepid, but the woman

inside would not roll down the window or open the door, so he shot

her, got into the car and started to drive off with the woman’s children

in the backseat; that the children would not stop screaming so he let

them out; and that after codefendant wrecked the Corolla they drove

to a gas station and codefendant tried to use the victim’s credit cards,

which would not work. Defendant also told Gonzales he did not want

to talk about firing the gun at anyone else; that he was sorry, he

wanted to do the right thing, and he would change places with the

victim if it were possible.

Forensic Investigator Peter Larcher testified that he recovered

blood and broken glass from the Ford City crime scene and from the

scene of the Intrepid crash. He also recovered a loaded revolver with

three live cartridges and three spent cartridges, and blood samples.

Illinois State Police Forensic Scientist Carlee Konig, an expert in

forensic biology, stated that the swabs collected from the Intrepid

contained human blood. Forensic Scientist Charity Noreuil explained

that she tested the swabs of the stains recovered from the Intrepid and

found them to contain a mix of blood from defendant and another

contributor she could not positively identify, but who definitely was

not the victim.

Robert Berk, a trace evidence analyst with the Illinois Forensic

Science Center and an expert in the area of trace analysis and gunshot

residue (GSR), testified that he received samples from defendant’s

clothing and performed GSR tests on them. Berk found trace particles

on defendant’s clothing and found elevated levels of GSR on the

samples from defendant’s hands, which indicated that he either

handled a weapon, discharged a weapon, or was in close proximity to

a weapon when it was fired.

Marc Pomerance, a forensic scientist with the Illinois State Police

and an expert in the area of firearms and ballistics evidence, testified

that he had examined the two bullets recovered from the victim’s body

and clothing as well as the cartridges found in the revolver taken from

the Intrepid. He testified that the two bullets and the empty cartridge

cases found in the revolver had been fired from the gun recovered in

the Intrepid to the exclusion of all others.

Dr. Edward Donaghue, the chief medical examiner for Cook

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County, was qualified as an expert in forensic pathology without

objection and testified that he performed an autopsy on Rose

Newburn on March 25, 2001. He stated that the cause of death,

within a reasonable degree of scientific certainty, was the gunshot

wound to the left thigh and that her manner of death was homicide.

He noted a hole in the victim’s clothing that indicated there had been

a second shot.

After the State rested, defendant made a motion for a directed

verdict, which was denied. Defendant did not testify or present any

evidence on his behalf. The jury returned with verdicts of guilty of first

degree murder and aggravated discharge of a firearm.

The case immediately moved on to the death penalty eligibility

phase. The State entered all of the evidence from the trial, as well as

a birth certificate for defendant showing his birth date as February 25,

1962, and a certified copy of both an indictment and a 1986

conviction for the intentional murder of Alfred Evans. Detective

Thomas Kelly testified he was assigned to Gang Crimes in March

1985 and was one of the officers who arrested defendant for the

murder of Evans. A stipulation was entered into by the parties that

Jane Klewin, if called to testify, would state that she was employed as

an assistant State’s Attorney in March 1986 and that defendant

pleaded guilty to the murder of Evans and to one count of attempted

murder for the shooting of Robert Brown. Defendant presented no

evidence at the eligibility phase.

The jury found defendant eligible for the death penalty based on

two statutory factors: first, that defendant was convicted of murdering

two or more persons, and, second, that Rose Newburn was killed

during the commission of another felony. The proceedings then moved

on to the second phase of the death penalty hearing to determine

whether defendant would be sentenced to death or life in prison.

The State called various witnesses in aggravation, including

Pamela Tiggins. She testified that on April 5, 1982, she was at the

home of her friend Danielle White and heard White arguing with

defendant. White screamed for her to come upstairs, where she saw

defendant holding White down on a bed. Tiggins asked defendant to

stop and went back downstairs, but she did not leave or summon help.

White then came downstairs with defendant. Defendant asked Tiggins

to remove her clothes. When she declined to do so, he produced an

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ice pick, whereupon she took off her clothes and lay on the floor next

to White. Defendant then had sexual intercourse with her while

holding the ice pick to White’s throat. After defendant left, Tiggins

went home and told her mother, who called the police and took her to

the hospital.

Peter Earl testified that on February 27, 2001, he stopped at a gas

station while driving his 1996 Toyota Corolla. As he was filling his

tire with air, an individual stole his Corolla. Earl stated that three

weeks later, he saw his car near 69th and Western, and it was being

driven by a “black male with bushy hair, an Afro,” in his “mid-thirties”

whom he could not identify. His car was the Corolla wrecked by

codefendant in Garfield Park.

The State also called personnel from both the Illinois and the

Cook County Department of Corrections to testify regarding various

situations involving the defendant during his time in these institutions.

Officer Damewood testified that on May 2, 1988, at Hill

Correctional Center, defendant was permitted to leave his grade

equivalency diploma (GED) class, but he did not return as required.

Damewood wrote a ticket for defendant because of this infraction. On

September 30, 1988, defendant repeatedly refused to leave the dining

area after being asked to do so. As he approached defendant,

defendant stuck his finger near Damewood’s face and told him that

with a 25-year sentence, he did not need guards telling him what to

do. Finally, on October 4, 1988, he searched defendant’s cell and

found a steel wood screw about 2½ inches long, a wooden dowel rod

about 4 inches long, and some National Football League wagering

papers. Damewood explained that wood screws can be attached to

dowels to make a weapon.

Sergeant Art St. George testified that he worked at Hill

Correctional Center and on August 28, 1990, he was in charge of

lining inmates up for yard privileges. Defendant and another inmate

were late lining up and St. George told them because of this they

could not go to the yard. Defendant and the other inmate continued

toward the yard but were turned back by other guards. Defendant was

very hostile and told St. George he had better not stop him from going

to the yard.

Officer Thomas Hart stated he was working at Hill Correctional

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Center when he spotted defendant wearing an unauthorized shirt. He

informed defendant he would have to remove the shirt. Defendant

refused to remove the shirt and told Hart he would have to kick his

ass to get the shirt. Hart explained there were other inmates around at

the time and they started encouraging defendant not to give up his

shirt. Defendant eventually gave the shirt to Hart’s supervisor and no

one was harmed.

Lieutenant Jason Henton testified that on September 11, 1994, he

was working at Big Muddy Correctional Center. While he was

overseeing orientation defendant kept walking in and out of the

program. He asked defendant for his identification card to write him

a ticket. When he did defendant replied, “you better watch yourself

around me, I don’t give a fuck about you, I’m not a new jack,”

meaning, new to being incarcerated.

Officer Balmares testified that on May 11, 2005, he was working

in the Cook County Department of Corrections, Division 11, Tier AB,

where defendant was housed. Defendant told him, “We can step

outside so that I can kick your ass with your smart ass mouth.”

Defendant did not touch Officer Balmares.

Tayna Rambo testified that on August 29, 2001, she was passing

out razors to the inmates at the Cook County Department of

Corrections. Defendant yelled at her to hurry up and observed she was

so slow she “must not be getting any dick.” Rambo stated she issued

defendant a ticket. Defendant was locked in his cell when he made

those remarks.

Sergeant Krauskopf testified that he was assigned at the time of

trial to Division 11 of the Cook County Department of Corrections,

where defendant was housed. He saw defendant daily or weekly and

said that defendant’s attitude toward authority figures was “bad” and

many times verbally abusive. He thought defendant did this to curry

favor with the other inmates and he felt defendant’s behavior made the

other inmates more hostile as well.

Officer Jack Hamilton testified that on March 20, 1995, he was

working at the Western Illinois Correctional Center. Around 11 p.m.,

he opened the doors to the wings and defendant, who was housed on

the “A” wing, ran through to the “C” wing. He had to yell at

defendant repeatedly to come off the “C” wing, and when defendant

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finally did, he held open the “C” wing door, which was a breach of

security. Defendant told him that he “couldn’t make him shut that

door and to go ahead and write him a ticket.”

Officer Bryk testified that on April 10, 2003, he was working at

Cook County jail and saw defendant get in a fight with another

inmate. Defendant threw three or four punches at the other inmate,

who was taken to the dispensary. Defendant claimed the other inmate

spit at him through the opening in his cell door.

Tim Zeeck testified on March 4, 1995, he was working at the

Western Illinois Correctional Center. He did a strip search of

defendant and discovered two $5 bills in his underpants. He said that

inmates are not allowed to possess paper currency. He also found a

razor blade after searching defendant’s cell. Zeeck explained razor

blades were generally used to make weapons. Defendant was punished

only for possessing currency.

Dolores Drennan testified that she was a nurse who was working

at Western Illinois Correctional Center on June 17, 1996. As she was

dispensing medication to inmates, defendant got into an argument

with a guard, insulted her, called her an obscene name, and told her

she could shove the medications up her ass. Defendant told her to

write him a ticket, but that the warden would just throw it out. She

believed defendant was waiting to receive psychotropic medications.

Stephen Klimek, a Cook County corrections officer, testified that

on March 9, 2006, he was working at the Cook County Department

of Corrections. He observed an incident between defendant and a

female civilian commissary worker. Klimek stated defendant was

questioning where his items were and said, “ok bitch, I see how it is”

to the civilian worker and then walked out.

Cook County jail officer Christopher Moore stated that on

September 22, 2002, he was working in the barber shop of Division

11 in the Cook County jail. He observed defendant get into a fight

with another inmate and strike him about a dozen times. Both

defendant and the other inmate were taken to the infirmary.

The State also offered testimony from two other employees of the

Illinois Department of Corrections (DOC), Glen Jackson, the chief

records officer for DOC, and Robert Griffin, the assistant warden at

Pontiac Correctional Center. Each testified, over defendant’s

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objection, regarding privileges offered to an inmate serving a term of

natural-life imprisonment. This testimony and its admissibility will be

discussed later in this opinion.

Jackson also testified, over defendant’s objection, to some of the

contents of defendant’s DOC master file which involved five incidents

of rules violations. This testimony and its admissibility at the

sentencing phase will be discussed later in this opinion.

Former Assistant State’s Attorney Barry Gross was called by the

State to testify over defendant’s objection. The State told the court

that Mark Carrington, who was dead by the time of trial, was a

witness to the murder of Alfred Evans. The State wanted to present

Carrington’s grand jury testimony about Evans’ murder through

Assistant State’s Attorney Gross. Defendant argued this created a

confrontation clause problem. The circuit court ruled that the

transcript was sworn testimony, and therefore reliable, particularly

since defendant pleaded guilty to the murder. The court also found

that the testimony was relevant to the case, but it did not make a

finding as to the confrontation clause objection. The testimony of

former Assistant State’s Attorney Barry Gross and its admissibility at

the sentencing phase will be discussed later in this opinion.

Kim Evans, Alfred Evans’ brother, testified that in March 1985 his

brother was killed after having been shot four times, twice in the back,

once in the groin and once in the thumb.

Finally, the State called Quincy Newburn, who testified as to what

he remembered about the day his mother was shot. After Quincy read

a victim impact statement, which was admitted into evidence, the

State rested in aggravation.

Defendant began his case in mitigation with the testimony of his

sister, Germaine Kimber. Against the wishes of her mother, she

testified regarding their childhood and life with their parents,

Gwendolyn and Austin Banks. She and defendant would get

“whoopings” with belts and electrical cords that left welts on their

bodies, that her father “drank obsessively” and that he had two

temperaments–one nice and one “evil.” She could tell by the way he

shut his car door in the evening if there would be trouble. Her father

carried a gun for his job as a tow-truck driver for the Chicago police

and would pull it out around the house. One time he drunkenly fired

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his weapon over defendant’s head. In their house, it was “ok to lie and

be dishonest” as long as it was for good; for example, it was

acceptable for defendant to bring money home from selling drugs as

long as he used the money to pay bills.

Kimber testified there had once been a confrontation between

defendant and their father and that defendant was “put out” by their

father and went to live somewhere else. She admitted that she knew

defendant was a drug addict and that she was also an addict. She had

seen defendant use both heroin and cocaine. Defendant would try to

get help and would get clean for a while, but never for good.

Rita White worked at Cornell Interventions as a clinical

coordinator. Cornell Interventions was one of the drug treatment

centers defendant had previously attended. She stated defendant

voluntarily admitted himself to the program in November 2000 as a

heroin addict. He completed the standard 30-day program and she

never found defendant to be violent.

Sylvia Dillard was defendant’s case manager at Cornell

Interventions. She stated that defendant was compliant and

successfully completed their program. She was defendant’s primary

counselor and she saw him five days a week during both group and

individual sessions. She stated that he was never belligerent, violent,

or inappropriate toward women and he did not make her feel

threatened.

Dr. Robert Smith, a clinical psychologist, testified on behalf of

defendant and was qualified as an expert in the field of psychology

with a specialty in chemical dependency. He was hired by the Cook

County public defender’s office to conduct an evaluation of defendant.

He had reviewed several documents, including: the State’s “Notice of

Intent to Seek Death”; statements from codefendant and Shirley

Baldwin, a friend of Gwendolyn Banks; summaries of interviews with

defendant’s friends and family; defendant’s school records; all

defendant’s medical and hospital records; Cornell Interventions

records; the judgment of dissolution of marriage for defendant’s

parents; and defendant’s Chicago criminal record. He also met with

defendant three times, and interviewed Gwendolyn Banks, Rafaelle

and Germaine Banks, Maryann Kimber Davis (defendant’s niece),

Katherine and Jacqueline Johnson (defendant’s aunts), Anthony

Robinson, and Rita White.

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Dr. Smith testified to several incidents which he felt were significant

in defendant’s development, including the defendant (who was 15 years

old at the time) learning that he was the product of a rape, and that

Austin Banks was not his actual father. He also recited an incident that

occurred when defendant was 18 months old and was left by his mother

in the care of Austin Banks. When defendant’s mother returned she

discovered Austin had beaten defendant, causing bruises and welts all

over the defendant’s back. He went on to say that when defendant was

too old to be afraid of being beaten, Austin Banks took to threatening

him with the gun he carried for his job. Austin Banks would fire his gun

in the home when he was angry, and he once shot a relative. Another

incident occurred when defendant was in ninth grade and he got into a

fight with another student. During this incident, instead of stopping the

fight, defendant’s parents encouraged him to fight with the student, and

defendant’s mother slapped the other child across the face.

According to Dr. Smith, defendant’s school attendance started to

decline when he was 10 years old. Among children in his socioeconomic

class defendant’s scores ranged from a best of having 57% of the

children do better than him, to his worst category, where 90% did

better. Smith testified that by seventh grade, between 99% and 61% of

the children in his socioeconomic class were doing better than defendant

in various categories measured by the test. Dr. Smith stated he did not

believe that defendant was mentally retarded, but his scores indicated a

low IQ. At the age of 13, his school reported defendant did not have

basic skills in math, science, or social studies.

Dr. Smith testified that when defendant learned Austin Banks was

not his father, he became depressed and felt a sense of abandonment.

Around that same time, Austin Banks’ behavior also became more

erratic, including an incident where he shot a family member in the

home. It was around this time when defendant confronted Austin Banks

about his abusive behavior and cheating on defendant’s mother. After

being confronted, Austin Banks threatened defendant with a gun and

kicked him out of the house. At age 17, a year after Austin Banks

forced defendant from the family home, defendant dropped out of

school and joined a gang.

Dr. Smith also testified about some of defendant’s previous

infractions with the law. At age 19 defendant was convicted of robbery,

and at age 20 he was charged with rape, attempted rape, “agg. violence”

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[sic], and unlawful restraint. Defendant ended up pleading guilty to

unlawful restraint and received three years in prison. In March of 1985

defendant was charged with murder and he pleaded guilty a year later.

Defendant was twice charged in 1998 with possessing a controlled

substance and in 1999 he was charged with possessing stolen property.

Dr. Smith also testified to defendant’s long history of drug and

alcohol addiction, and defendant’s unsuccessful attempts to seek

treatment for his drug and alcohol issues. Defendant underwent

treatment for drug and alcohol addiction in 1999, and again in August

and November of 2000. He testified that people with drug addictions

often have a “co-existing” mental illness and both need to be treated or

neither can improve. Dr. Smith stated defendant’s underlying mental

illnesses were not treated along with his addiction. In his professional

opinion, defendant suffered from dysthymia, or long-term depression,

a borderline personality disorder, and an addiction to alcohol, heroin,

and cocaine. He also commented that codefendant had said the crime

was committed to obtain money to purchase drugs and explained he

thought the defendants were going through withdrawal the day of the

crime. Because Smith felt these disorders were present at the time the

offense was committed, he said it was his professional opinion that

would have impacted or diminished defendant’s ability to conform his

conduct to the requirements of the law and would constitute an extreme

mental or emotional disturbance.

Anthony Robinson also testified for the defense. He met defendant

in 1997 or 1998 after defendant was released from prison upon

completion of his previous sentence for murder. Robinson said he tried

to be a mentor for defendant and defendant visited his home several

times a week and helped around the yard and house. At one point,

defendant accompanied Robinson to an alcohol and substance abuse

program Robinson had been attending, although defendant later stopped

attending. He began seeing defendant with codefendant, of whom he did

not approve, and that on March 21 and 22 of 2001, defendant appeared

as though he had been using drugs. After defendant was charged with

murder he visited defendant in jail. Defendant told Robinson that the

shooting of Rose Newburn was an accident and the gun had discharged

as he struck the window with it, although defendant had initially told

Robinson he had nothing to do with the murder. Robinson also stated

that defendant had told him he did not know there were children in the

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car and that he was sorry.

Kathryn Jackson, defendant’s cousin, spoke primarily of defendant’s

childhood. She remembered that the family used to joke that their

parties did not end until the police arrived. She stated that at one party,

Austin Banks shot a burglar, and at another party, he shot a niece.

Jackson’s testimony confirmed much of what Kimber had stated: that

defendant’s parents were not good role models and defendant’s father

beat him.

In contrast to the Department of Corrections employees who

testified for the State, defendant had several DOC officers who testified

on his behalf. Officer Frederick Kincaid testified that he had been

assigned as defendant’s tier officer about two to three years prior to

trial. He had used defendant as a tier worker, which entitled him to extra

privileges. Kincaid also testified that defendant once helped him diffuse

a situation that seemed to be escalating into a fight, and that he gave

defendant a Bible and had Bible discussions with him. He had also seen

defendant give needy inmates certain things, like soap or underwear.

Finally, Kincaid stated that defendant had never been a management

problem.

Defendant called Cook County Department of Corrections Officer

Chevelle Alberts as his final witness in mitigation. She testified that she

had known defendant in the jail for several years, that she had previously

used him as her worker, and that an inmate with a bad record would not

have been chosen as a worker. She believed defendant believed in God

and was interested in scripture and spirituality. She believed he was

really concerned about moving in another direction.

ANALYSIS

1. Admissible Testimony or Inadmissible Hearsay

Defendant’s first point for review is that the State presented

inadmissible hearsay evidence to the jury that linked defendant to the

carjacking of Rose Newburn’s Dodge Intrepid. Detective Cardo testified

that he was on his way to a burglary when there was a series of flash

messages sent over the radio. When a crime happens and someone flees

the scene, a responding officer will give out a flash of either a person

fleeing the scene or a vehicle fleeing the scene so that other units in the

area can look for this person or vehicle. Cardo’s testimony continued as

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follows:

“Q. [Assistant State’s Attorney] When you receive[d] that

flash message, what information did you receive?

[Defense counsel]: Objection.

THE COURT: Objection overruled. The jury can regard this

matter only not for the truth of the matter asserted in it, but only

to show what the officer did when he did it next, if anything.

Q. Thank you. What information did you receive?

A. [Officer Cardo] There’s flash message initially of a

hit-and-run incident, and they gave a description of a green

Dodge Intrepid with a plate of Mary, Sam, Victor four, three,

and that vehicle had fled the scene of the accident.

Q. That Mary, Sam, Victor, that’s ‘MSV’?

A. That’s correct.

Q. Now did you receive any other flash messages after that?

A. Yes.

Q. What was that?

A. A message was sent that that vehicle was taken in a

carjacking and a shooting from Ford City Mall.”

Defendant contends that the State sought to establish defendant’s

identity as the killer by showing a string of offenses in which he was

involved beginning with the carjacking and murder. He argues that

Cardo should have testified that he received a message to look for a

green Dodge Intrepid and that it was not necessary to explain why he

was looking for it.

Defendant argues that Cardo’s testimony was inadmissible hearsay.

Hearsay is an out-of-court statement offered to establish the truth of the

matter asserted (People v. Tenney, 205 Ill. 2d 411, 432-33 (2002);

People v. Rogers, 81 Ill. 2d 571, 577 (1980)) and testimony about an

out-of-court statement which is used for a purpose other than to prove

the truth of the matter asserted in the statement is not hearsay (People

v. Simms, 143 Ill. 2d 154, 173 (1991) (and cases cited therein)).

We note initially that the flash messages described in Cardo’s

testimony did not mention anyone’s identity or that there had been a

murder. It is clear that the State did not present Cardo’s testimony to

prove the truth of the statement that “that vehicle was taken in a

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carjacking and a shooting from Ford City Mall.” The trial court had

already instructed the jury that the similar testimony from the prior flash

message was to be considered only “to show what the officer did when

he did it next, if anything.” Cardo testified after Southward and

Harrison, both of whom had already recounted that they saw defendant

in the green Intrepid and Southward testified as to defendant’s vehicular

hijacking and shooting of Rose Newburn. We find that the flash

messages were not improperly offered to link defendant to the

carjacking and shooting.

The admission of an out-of-court statement that is not offered to

prove the truth of the matter asserted but rather to explain the

investigatory procedure followed in a case is proper (see, e.g., People

v. Jones, 153 Ill. 2d 155, 160-61 (1992)) and to show that the police

officers had probable cause to arrest on the basis of the communication

(see People v. Louisville, 241 Ill. App. 3d 772, 781 (1992)). Because

Cardo was not part of the initial investigation, the admission of the flash

messages explained the course of the investigation, the subsequent

actions of the police officers, which included a high-speed chase, a car

crash into a CTA elevated-train pillar, a foot chase, and the basis for

placing defendant under arrest.

Defendant cites In re Guttierrez, 71 Ill. App. 3d 537 (1979), and

People v. Jura, 352 Ill. App. 3d 1080 (2004), in support of his

contention that the flash messages contained inadmissible hearsay.

However, these cases are distinguishable. In re Guttierrez involved a

flash message that was broadcast of an offender who was a “male white,

Mexican, 5 feet 5 inches in height, wearing dark trench coat and ski

mask.” In re Guttierrez, 71 Ill. App. 3d at 538. The appellate court held

that the trial court’s “substantive reliance” on the flash message was

improper, in particular since there was no other evidence that the

offender was Hispanic and that the evidence was clearly offered to

prove both that respondent made the statement and the verity of its

contents. In re Guttierrez, 71 Ill. App. 3d at 541. In Jura, the appellate

court held that the testimony admitted had the effect of proving the

matter asserted, that the defendant was the individual who committed

the offense, and that it failed to satisfy any other relevant, nonhearsay

purpose. Jura, 352 Ill. App. 3d at 1088.

Defendant finally asserts that admitting testimony of the flash

messages violated his sixth amendment right to be confronted by

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witnesses against him. See U.S. Const., amend. VI. The confrontation

clause “does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” Crawford v.

Washington, 541 U.S. 36, 59 n.9, 158 L. Ed. 2d 177, 197 n.9, 124 S.

Ct. 1354, 1369 n.9 (2004).

As we found earlier, the testimony of the flash messages was

admitted into evidence for purposes other than establishing the truth of

the matter asserted and the jury was so instructed by the trial court.

2. Alleged Prosecutorial Error During Rebuttal Argument

The defendant’s second point for review is that he should be granted

a new trial because the State mocked defendant during closing

argument, compared the strength of its case against defendant to other

cases, and claimed that the jury had to believe all of the State’s

witnesses were lying to acquit defendant.

Defendant alleges the mocking occurred when the prosecutor began

his rebuttal argument by stating, “Bravo. Bravo for Mr. Wonderful over

here. Bravo that he didn’t fight with Officer Cardo. Bravo that he didn’t

struggle with Officer Cardo. Bravo. Let’s give him a hand. He’s Mr.

Wonderful.” Defendant’s objections “to the theatrics” and that “this is

not proper argument” prompted the court to remark, “Stick to the facts,

Mr. [Prosecutor].”

Defendant argues that the prosecutor’s performance was calculated

to inflame the passions of the jury and cause the jury to despise

defendant, citing People v. Johnson, 119 Ill. 2d 119, 139 (1987) (it is

improper to refer to the defendant as an animal), and People v. Johnson,

208 Ill. 2d 53, 80 (2003) (it is improper to refer to defendant as evil).

Defendant concluded by arguing the jury should not have been goaded

into despising him.

The State argues that this was proper rebuttal argument because it

was made in direct response to the argument made by defense counsel.

In her closing statement, defense counsel said:

“So, let’s look at the other evidence. The arresting officer,

Officer Cardo, who handle[d] the chase. He took [defendant]

into custody at 5:56 p.m. on March 24th. After a short foot

chase, [defendant] did not resist arrest. He did not try to strike

or shoot at any of the officers. He did not grab the gun from the

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vehicle. He did not try to toss the gun. The officer told you,

after a short foot chase, [defendant] did not resist arrest.”

We agree with the State that the prosecutor was not attempting, as

defendant claims, to “cause the jury to despise the defendant,” but rather

was responding to defense counsel’s argument. The wide latitude

extended to prosecutors during their closing remarks has been held to

include some degree of both sarcasm and invective to express their

points. See People v. Kirchner, 194 Ill. 2d 502, 549 (2000); People v.

Armstrong, 183 Ill. 2d 130, 146 (1998); People v. Burton, 338 Ill. App.

3d 406, 418 (2003).

Defendant next contends that the prosecutor improperly compared

the strength of the case against defendant to other cases when he

argued, “The evidence in this case is overwhelming. Most cases have

eyewitness testimony, and that’s it. Some cases don’t have DNA, or

fingerprints, or gunshot residue, or ballistics. Other than fingerprints,

you’ve got it all. This case has it all.” An objection to this argument was

overruled.

Defendant asserts that the prosecutor may not argue assumptions or

facts not based upon the evidence in the record, citing People v.

Johnson, 208 Ill. 2d 53, 115 (2003). He contends this argument was

prejudicial because it implied that guilt depends upon the quantity and

variety of evidence presented, rather than upon the quality of the

evidence.

The State argues that it is well established that comments by a

prosecutor on the strength of the State’s evidence are permitted. See,

e.g., People v. Emerson, 122 Ill. 2d 411, 434 (1987). The clear focus of

the prosecutor’s argument was the overwhelming strength of the

evidence presented in this case. The State also argues that the remarks

here bear out that there was eyewitness testimony, DNA analysis,

gunshot residue evidence, and ballistics evidence, and that was all the

prosecutor was pointing out with his remarks. We do not agree with

defendant’s contention that the prosecutor’s argument “was prejudicial

because it implied that guilt depends upon the quantity and variety of

evidence presented, rather than upon the quality of the evidence.”

With regard to defendant’s claim that the State improperly argued

the jury would have to believe all the State’s witnesses were lying in

order to acquit defendant, he points to the prosecutor’s argument that

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“[t]hey would have you believe that each of those witnesses that

testified from the jury box, from the witness stand, got in here and lied

to put a case on [defendant].” Defendant argues that he did not testify,

and because the prosecutor referred to the defense’s “story,” the

argument told the jury that it could not acquit defendant unless it

believed each of the State’s witnesses was lying.

The State argues that defendant misstates the proper application of

the law, citing People v. Coleman, 158 Ill. 2d 319 (1994), wherein this

court examined a similar complaint by a defendant. In examining the

issue, this court drew a distinction between situations where a

prosecutor permissibly argues that a jury would have to believe the

State’s witnesses were lying in order to believe the defendant’s version

of events and where a prosecutor improperly argues that a jury would

have to believe the State’s witnesses were lying in order to acquit

defendant. Coleman, 158 Ill. 2d at 346. Since in Coleman the argument

represented the former, and was a direct response to a defense attack on

the credibility of the State’s witnesses, the argument was not a

misstatement of the law or an attempt to distort the burden of proof.

The same is true here. See People v. Pecoraro, 144 Ill. 2d 1, 16 (1991);

People v. Williams, 147 Ill. 2d 173, 232 (1991).

Defendant cites several other cases in support of his argument, but

they are distinguishable. In People v. Crossno, 93 Ill. App. 3d 808, 822

(1981), and People v. Miller, 302 Ill. App. 3d 487, 497 (1998), the

prosecutors improperly distorted the burden of proof by incorrectly

intertwining the burden with the jury’s credibility determinations. That

did not happen in this case. Rather, the prosecutor was simply

responding to defendant’s attack on the credibility of the State’s

witnesses.

We find that the three complained-of arguments by the prosecutor

during rebuttal argument were not improper.

3. Bias Against Gang Members

The third point for review is that defendant is entitled to a new trial

because he was tried by a juror with a bias against gang members.

During the examination of Juror A by defense counsel, the following

colloquy ensued:

“[Defense counsel]: Would the fact that [defendant], our

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client, was a member of a street gang prevent you from giving

him a fair and impartial hearing?

[Juror A]: That might, yes.

[Defense counsel]: In what way?

[Juror A]: Well, my husband used to be involved with gang

crimes, and he talked a lot about the different offenders involved

and victims and that kind of thing. And so–and I do have some

views about gang members and that whole–

[Defense counsel]: I guess the question is, would you be

able to put that aside, or are your feelings that strong that you

wouldn’t be able to put it aside?

[Juror A]: I think I could put it aside.”

Defendant now argues that the trial court committed plain error in

seating Juror A because she said she had a bias against gang members;

that she only thought she could put the bias aside, and therefore she was

not an impartial juror. Because the jury was not impartial, defendant

argues he is entitled to a new trial and sentencing hearing.

The State argues that the seating of Juror A on the jury did not

constitute error. “In addressing defendant’s plain-error contention, it is

appropriate to determine whether error occurred at all.” People v.

Bannister, 232 Ill. 2d 52, 65 (2008); People v. Harris, 225 Ill. 2d 1, 31

(2007).

After the above colloquy between Juror A and defense counsel, both

the State and defense counsel were given the opportunity to and did

pose additional questions to Juror A. Thereafter both the State and

defense counsel accepted Juror A without any further discussion or

challenge with regard to the now claimed bias. Defendant does not

argue that the court was required, sua sponte, to challenge or decline to

seat Juror A. Indeed, in People v. Metcalfe, 202 Ill. 2d 544, 557 (2000),

we held that while a trial court has the discretion to remove a juror sua

sponte, it has no duty to do so. Accordingly, the trial judge here did not

commit any error in seating Juror A. In any event it is evident, given

Juror A’s responses, that she would be fair and impartial. Clearly,

defendant’s trial counsel agreed with that assessment.

We find that the trial court did not err in seating Juror A and

defendant was not denied his constitutional right to be tried by a fair and

impartial jury.

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4. Potential Juror Excused for Cause

Defendant’s fourth point for review is whether the trial court erred

when it excused a potential juror (Juror B) who merely would have had

difficulty in imposing a death sentence. During the examination of Juror

B, the following ensued:

“THE COURT: I mentioned in the courtroom, if the

defendant is found guilty of the offenses charged in this case, the

[S]tate will seek the death penalty in a separate sentencing

proceeding. Do you have any scruples, by which I mean strong

feelings by reason of religion, morals, or conscience, against the

imposition of the death penalty?

[Juror B]: Generally, it’s not something that I agree with.

THE COURT: Are your beliefs such that regardless of the

facts of the case or the background of the defendant, that under

no circumstances could you consider signing a verdict directing

the Court to sentence the defendant to death?

[Juror B]: I think I would find that difficult.

THE COURT: Would there be circumstances that you

would be able to do that, or you think you could? Whether or

not it’s easy or not, that’s not a question right now but–

[Juror B]: I honestly don’t know how I feel in the situation,

itself, but certainly in a general principle, it’s–I think it would be

difficult for me to feel that I had sentenced someone to death.

THE COURT: Okay. Would your beliefs about the death

penalty prevent or substantially impair your ability to reach a fair

and impartial decision as to whether the defendant was guilty?

[Juror B]: No, I don’t think so.

THE COURT: Do you have any strong feelings in favor of

the death penalty? You have already answered that, but I want

you to answer that again.

[Juror B]: No.

THE COURT: Are your beliefs such that regardless of the

facts of the case or the background of the defendant, that if the

defendant were found guilty as charged, you would

automatically vote to impose the death penalty and not consider

signing a verdict which would result in a sentence of life

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imprisonment?

[Juror B]: No.

THE COURT: You’d be able to look at both of those

aspects–

[Juror B]: I think so.

THE COURT: –before making up your mind?

[Juror B]: Yes.

THE COURT: If there is such a sentencing hearing that I’m

talking about, at the conclusion of that hearing or the conclusion

of your deliberations, you could be asked to sign a verdict that

would direct the Court to impose a sentence of death.

Do you think if the facts–if you think the facts and the

background of the defendant would be appropriate, do you think

you’d be able to sign such a verdict?

[Juror B]: I honestly don’t know. I certainly would find that

difficult.

THE COURT: Nobody said its going to be easy, but–and

it’s hard to imagine or you’re in a position where it’s maybe the

first time you have thought about this particular situation, but

it’s kind of–is that the best answer you can give us at this time?

[Juror B]: I guess I don’t know exactly how I would react

in the situation, but certainly, it’s not something that I’m

comfortable with.

***

[Defense counsel]: As you already know, if [defendant] is

convicted, there may be a hearing to determine if he receives the

death penalty. You would hear evidence against him in

aggravation, evidence for him in mitigation. Would you be able

to keep an open mind in considering this question?

[Juror B]: The question being?

[Defense counsel]: Death or no death, or death versus life

imprisonment, whatever way.

[Juror B]: I would certainly try to.

[Defense counsel]: Would you be able to though?

[Juror B]: I just don’t know how to answer that. Certainly

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it’s not something that I’m comfortable with, and I don’t know

how I would react in the situation, but–I don’t know that I can

give you a better answer.”

After examination of Juror B concluded, the following colloquy ensued

between the court and counsel outside the presence of the prospective

jurors:

“THE COURT: Anything [sic] want to say about [Juror B]?

[Assistant State’s Attorney]: We’d ask he be excused for

cause. He was so equivocal in his responses and uncomfortable

with the concept that he shows clearly he wouldn’t be able to

sign the verdict form.

[Defense counsel]: I’d object to cause. Certainly in death

penalty, many people here are uncomfortable, and he did say,

basically, he didn’t–he did say he’d be able to consider and–he

said he would consider it even though it was difficult.

THE COURT: Looking at the totality of his answers,

however, I don’t think he’s going to be able to sign a verdict in

this case, even if he thought the evidence warranted it. I am

going to excuse him for cause based on the totality of his

answers.”

Defendant argues that a trial court may not exclude a prospective

juror for cause for voicing general reservations about capital

punishment, citing People v. Seuffer, 144 Ill. 2d 482, 505 (1991), or

simply because the person opposes the death penalty and cites

Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85,

88 S. Ct. 1770, 1777 (1968). Witherspoon and its progeny provide that

the right to an impartial jury, guaranteed by the sixth and fourteenth

amendments to the United States Constitution, prohibits removal of a

prospective juror for cause where the prospective juror voices only

general objections to the death penalty. People v. Gilliam, 172 Ill. 2d

484, 509 (1996). In determining whether a prospective juror in a capital

case may be removed for cause because of the person’s views toward

the death penalty, the “standard is whether 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,

-24-

589, 100 S. Ct. 2521, 2526 (1980). “The trial judge is in a ‘superior

position to gauge the meaning of the prospective juror’s responses’ to

the examination, and the judge’s determination is therefore entitled to

deference.” People v. Tenner, 157 Ill. 2d 341, 363 (1993), quoting

People v. Emerson, 122 Ill. 2d 411, 439 (1987).

In People v. Harris, 225 Ill. 2d 1 (2007), this court examined a

challenge to an exclusion for cause where the potential juror gave

“ambiguous” responses to questions regarding whether he could sign a

verdict sentencing a defendant to death, first indicating that he would

automatically vote against the death penalty and then later responding

that it was a “possibility” that he would sign a verdict of death. Harris,

225 Ill. 2d at 36-37. In finding that the juror was properly dismissed,

this court noted that “ ‘[i]t is precisely in situations such as this, where

the cold record suggests an apparent contradiction, that we defer to the

circuit court’s discretion.’ ” Harris, 225 Ill. 2d at 37, quoting People v.

Shaw, 186 Ill. 2d 301, 317 (1998); see also People v. Sims, 192 Ill. 2d

592, 632-33 (2000).

Based on Juror B’s repeated equivocal responses to questions from

the court and counsel about his ability to sign a verdict for the death

penalty, we hold that the trial court did not abuse its discretion in

dismissing Juror B for cause. Harris, 225 Ill. 2d at 34-39; Tenner, 157

Ill. 2d at 359-63.

5. Jury Not Instructed on Elements of the Felonies in the

Felony-Murder Aggravating Factor

Defendant’s fifth point for review is that his death sentence must be

vacated because the jury was not instructed on the elements of the

felonies in the felony-murder aggravating factor. After argument and

instruction from the court during the death penalty phase of the

sentencing hearing, the jury found defendant eligible for the death

penalty based on two statutory factors: (1) defendant was convicted of

murdering two or more persons, and (2) Rose Newburn was killed

during the course of the commission of another felony. 720 ILCS

5/9–1(b)(3), (b)(6) (West 2006).

Defendant claims that none of the eligibility-stage instructions set

forth the elements the jury had to find to decide whether defendant

committed armed robbery, aggravated kidnapping, or aggravated

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vehicular hijacking, the underlying felonies in the felony-murder

aggravating factor. He concludes this was plain error because it

deprived him of both a substantial right and a fair sentencing hearing,

citing People v. Fuller, 205 Ill. 2d 308 (2002), and People v. Ramey,

151 Ill. 2d 498 (1992). In addressing defendant’s plain-error argument,

we will first determine whether error occurred at all. Bannister, 232 Ill.

2d at 65.

The State argues, and defendant concedes, that the instructions

defendant claims were lacking during the eligibility phase of his hearing

were given to the same jury prior to deliberation during the guilt phase

of his trial, which took place earlier the same day. The guilt-phase

instructions included separate elements instructions for armed robbery,

aggravated kidnapping, and aggravated vehicular hijacking. Thus, the

jurors were aware of the elements of the underlying felonies in the

felony-murder aggravating factor and did not need to be reinstructed

before deliberating on the eligibility phase of the proceedings.

In Ramey the trial court did not instruct the jury that the State must

prove that defendant “ ‘acted with the intent to kill the murdered

individual or with the knowledge that his acts created a strong

probability of death or great bodily harm to the murdered individual’ ”

(Ramey, 151 Ill. 2d at 539-40, quoting Ill. Rev. Stat. 1985, ch. 38, par.

9–1(b)(6)(b)), “[a]n essential element which the State was required to

prove in order to establish the existence of the sixth aggravating factor”

(Ramey, 151 Ill. 2d at 545). This court also found that “the sentencing

jury never found that the defendant acted intentionally or knowingly.”

Ramey, 151 Ill. 2d at 545. The court then vacated the defendant’s death

sentence and remanded for a new sentencing hearing.

In Fuller, the jury instructions, “just like those in Ramey, failed to

mention that the defendant acted with knowledge or intent in causing

the death of the victim. Also like Ramey, the required finding was not

made by the jury at any other stage of the proceeding ***.” Fuller, 205

Ill. 2d at 344. Just like in Ramey, this court vacated defendant’s

sentence and remanded for a new sentencing hearing. Fuller, 205 Ill. 2d

at 346.

The Fuller and Ramey cases are distinguishable because, here, the

trial court did instruct the jury in the sentencing phase that “defendant

acted with the intent to kill the murdered person, or with the knowledge

that his acts created a strong probability of death or great bodily harm

-26-

to the murdered person.” Furthermore, unlike Ramey and Fuller, the

jury was instructed at the guilt phase on the underlying elements of the

felonies in the felony-murder aggravating factor.

Under the circumstances of this case, where the trial court instructed

this same jury as to the elements of the predicate felonies for felony

murder during the guilt phase of the trial, we find the trial court did not

err by failing to repeat those instructions during the eligibility phase.

6. Evidence of Privileges Received by Prison Inmates

Defendant’s sixth point for review is that the State presented

irrelevant evidence of privileges received by prison inmates. Glen

Jackson, the chief records officer for the DOC, testified regarding

privileges offered to inmates serving a term of natural life imprisonment.

He explained that these inmates are allowed privileges based upon their

good behavior. They initially could be assigned to a maximum-security

facility, where there are fewer programs than in other institutions, but

they could be stepped down to a medium-security facility based upon

their behavior. He said that the natural life inmates received recreation

privileges like other inmates, including going to the yard for two hours

a day to play basketball, softball, and lift weights; that they were able to

engage in vocational training, such as educational adult basic education,

General Educational Development (GED) programs, culinary arts

programs, wood shop, and auto shop; and that they were able to use the

library and the commissary, as well as have a television and a radio in

their cell. In a typical day, the inmates are counted in the morning and

then eat breakfast. After breakfast, inmates go to their assignments and

then eat lunch. After lunch they go to the yard, then to dinner, and after

dinner they return to their cells.

Defendant’s motion in limine to preclude the State from presenting

this evidence was denied.

Defendant argues that “[evidence] is not proper at the sentencing

hearing if it does not bear on the aggravating or mitigating factors, the

circumstances of the offense or the character or rehabilitative potential

of the particular defendant,” citing People v. Barrow, 133 Ill. 2d 226,

280 (1989). He contends the evidence about prison privileges did not

bear on his character or the nature of the offense, and it was therefore

irrelevant.

-27-

Defendant also argues that this prison-privileges evidence was

prejudicial when the prosecutor in closing argument said that defendant

should be sentenced to death “[b]ecause if he knows he’s going to spend

the rest of his life walking around the yard, lifting weights, playing

basketball, watching TV, he’ll do whatever he wants. He’ll take that

sentence as a joke.” The State also appears to refer to this evidence,

stating, “Don’t give him what he wants. Life in general population is like

sending him to his room.”

The State contends that the trial court properly admitted evidence

regarding privileges received by inmates at the DOC, citing People v.

Smith, 176 Ill. 2d 217 (1997). In Smith we stated: “ ‘Wide latitude is

granted to the parties in introducing evidence in aggravation and

mitigation at a capital sentencing hearing. The testimony presented need

not satisfy the more restrictive rules of evidence that govern the

guilt-innocence phase.’ People v. Tenner, 157 Ill. 2d 341, 380 (1993);

720 ILCS 5/9–1(e) (West 1994). Rather, the only requirement is that

the evidence be relevant and reliable.” Smith, 176 Ill. 2d at 242-43. See

also People v. Caffey, 205 Ill. 2d 52, 125 (2001).

The State and defendant agree that the only issue is whether the

prison-privileges evidence was relevant.

Defendant relies heavily on the South Carolina Supreme Court case

of State v. Burkhart, 371 S.C. 482, 640 S.E.2d 450 (2007). During the

sentencing phase in that capital case, the Director of Inmate

Classification for the Department of Corrections testified that an inmate

receiving a sentence of life without parole was eligible to receive

privileges that “include[d] access to the yard, work, education, meals,

canteen, phone, library, recreation, mail, television, and outside

visitors.” Burkhart, 371 S.C. at 487, 640 S.E.2d at 453. On

cross-examination, the Director acknowledged that prison life is “very

regimented” and “is not a country club.” Burkhart, 371 S.C. at 487, 640

S.E.2d at 453. Burkhart presented evidence through his own witness

that prison is a harsh environment with violent predators where one’s

freedom is severely curtailed. Burkhart, 371 S.C. at 487, 640 S.E.2d at

453.

The South Carolina court stated: “[E]vidence in the sentencing

phase of a capital trial must be relevant to the character of the defendant

or the circumstances of the crime. We are aware of the tension between

evidence regarding the defendant’s adaptability to prison life, which is

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clearly admissible, and this restriction on the admission of evidence

regarding prison life in general. We note, however, that evidence of the

defendant’s characteristics may include prison conditions if narrowly

tailored to demonstrate the defendant’s personal behavior in those

conditions.” (Emphasis omitted.) Burkhart, 371 S.C. at 488, 640 S.E.2d

at 453.

The five-member South Carolina Supreme Court unanimously found

that the evidence concerning prison conditions was not relevant and

should not have been admitted into evidence. Based on a South Carolina

statute, three of the justices found the admission of this evidence was

reversible error and two found it was harmless error. The majority

stated, “A capital jury may not impose a death sentence under the

influence of any arbitrary factor. S.C. Code Ann. §16–3–25(C)(1)

(2003). When the jury is invited to speculate about irrelevant matters

upon which a death sentence may be based, §16–3–25(C)(1) is violated.

State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982). Accordingly, we

reverse appellant’s death sentence and remand for resentencing.”

Burkhart, 371 S.C. at 488-89, 640 S.E.2d at 453.

The dissenting justices stated they would find that although the trial

court admitted irrelevant evidence during the sentencing proceeding,

they could find nothing that indicated the introduction of this evidence

prejudiced the defendant. Burkhart, 371 S.C. at 490, 640 S.E.2d at 454

(Toal, C.J., dissenting, joined by Burnett, J.). They further held that the

South Carolina statute was subject to harmless-error analysis. Burkhart,

371 S.C. at 490-95, 640 S.E.2d at 454-57 (Toal, C.J., dissenting, joined

by Burnett, J.).

Here, the State asserts that the evidence of inmate privileges was

offered to help “the jurors make their determination regarding whether

defendant would be able to adjust to a life of incarceration.” It argues

that the South Carolina Supreme Court recognized that there is an

important distinction between permissible evidence designed to show a

defendant’s adaptability to prison life and evidence of prison conditions

in general. Burkhart, 371 S.C. at 488, 640 S.E.2d at 453. However, at

trial, the State did not argue that the evidence of privileges in prison

showed that defendant could not adapt to prison life. Rather, the

prosecutor argued that the prison privileges meant life in prison was too

good for defendant. Accordingly, the prison-privileges evidence was not

relevant to the circumstances of the offense or the character or

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rehabilitative potential of defendant (People v. Williams, 97 Ill. 2d 252,

301 (1983)) and it should not have been admitted.

Because of this error, defendant argues that this court should grant

him a new sentencing hearing. We have previously found that the

admission of improper aggravation evidence during a sentencing

proceeding is subject to harmless-error analysis and reversal is not

mandated in every instance. People v. Towns, 174 Ill. 2d 453, 469

(1996); see also People v. Chapman, 194 Ill. 2d 186, 246 (2000). Here

the State’s evidence was very strong and showed that defendant was a

repeat offender with a history of preying on innocent victims for whom

he showed no remorse or concern. The State’s case included 23

witnesses in aggravation, many of them DOC officials. These DOC

witnesses discussed defendant’s many disciplinary infractions during his

incarcerations, which included fights with other inmates, abusive

behavior toward guards and civilian staff, and refusal to conform to the

rules and regulations of the institutions. The State also offered testimony

from Pamela Tiggins, who told how defendant sexually assaulted her

while holding an ice pick to her friend’s neck and testimony regarding

defendant’s murder of Alfred Evans, whom he gunned down from the

back, allegedly in retaliation for the killing of another gang member.

Defendant, on the other hand, presented testimony from family

members and a clinical psychologist, all of whom spent most of their

time detailing defendant’s childhood as the reason behind his criminal

behavior. This mitigation did not present any reason sufficient to

preclude the death penalty and was far outweighed by the aggravation

evidence.

We find that the error in admitting the improper testimony was

harmless beyond a reasonable doubt and that no prejudice resulted to

defendant from its admission.

7. The Right to Confront Witnesses at the Capital Sentencing

Hearing

Defendant’s seventh point for review is that the State violated his

right to confront witnesses when a Department of Corrections records

keeper testified for the State about defendant’s prison disciplinary

record and an assistant State’s Attorney read to the jury a statement and

the grand jury testimony of a witness to the killing that resulted in

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defendant’s prior murder conviction.

Defendant argues that the jury learned at the eligibility stage that

defendant had pleaded guilty to the murder of Alfred Evans. At that

stage of the sentencing hearing, the State told the court that Mark

Carrington, a witness to that murder, was dead, but the State still

wanted to present Carrington’s grand jury testimony about Evans’

murder. The defense objected, but the court found that because

Carrington was under oath before the grand jury and defendant had

pleaded guilty to the murder, the evidence was relevant and reliable and

was therefore admissible.

The State placed into evidence Carrington’s signed statement to the

police and a transcript of his grand jury testimony. Barry Gross then

testified that as an assistant State’s Attorney in 1985, he conducted the

grand jury investigation into Evans’ murder. Gross read Carrington’s

grand jury testimony to defendant’s sentencing jury. Carrington testified

that he met with defendant on March 15, 1985, when defendant was a

“general,” and Carrington was a member, of the Gangster Stones.

Defendant told Carrington to accompany him to get narcotics. They

walked to a building a block away and defendant told Carrington to wait

outside. Defendant went inside and talked to two men in the hallway.

Defendant pulled a gun and shot the shorter of the two men in the back.

As Carrington fled, he heard more shots. Carrington met defendant later

that night and defendant told him he had done it because “Fred” had

been shot earlier. Carrington said he was not told more because

“[g]enerals don’t really talk. They don’t really do nothing else about

what they do.”

Defendant requested a mistrial or, in the alternative, that the

testimony be stricken, because he was unable to cross-examine

Carrington. Again, the trial court stated that the evidence was relevant

and reliable.

The court also overruled defendant’s objection that his right to

confront witnesses would be violated if Glen Jackson, the DOC record

keeper, should be permitted to testify concerning the details of certain

violations reported in defendant’s master file. The court ruled the

evidence was admissible. Jackson testified that defendant accumulated

133 rules violations between 1983 and 2000 and provided more specific

information as to five of those violations as set forth below.

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First, Jackson testified that on September 11, 1990, while defendant

was at Hill Correctional Center, defendant approached an officer and

berated him because the officer would not let defendant leave the yard

early. Forty or fifty inmates watched, and the officer felt intimidated.

Jackson said a disciplinary ticket was filed and the adjudicatory

committee found defendant guilty of the charges.

Next Jackson stated that on February 12, 1991, defendant was

housed at Illinois River Correctional Center and was issued a ticket for

insolence, unauthorized movement, and disobeying a direct order.

Jackson explained that defendant was asked to leave the dietary area

because he was finished eating, and he refused to comply with three

orders to leave the area. Defendant left when a higher ranking officer

ordered him to do so. The adjudicatory committee found him guilty of

those charges.

Jackson also testified that defendant was issued another ticket on

May 19, 1992, at Illinois River Correctional Center for creating a

dangerous disturbance, insolence, and unauthorized movement.

Defendant attempted to avoid a shakedown as he was leaving lunch. As

a number of other inmates watched, defendant became loud and insolent

when a lieutenant asked him to empty his pockets. The adjudicatory

committee found defendant guilty of insolence and unauthorized

movement, but not of creating a dangerous disturbance.

Jackson further testified that defendant received a ticket on January

23, 1993, at the Illinois River Correctional Center for intimidation,

threats, disobeying a direct order, insolence, violation of rules, and

sexual misconduct. An officer had seen defendant holding a door open,

and as the officer shut it, defendant pushed past him into a different

wing of the facility. Defendant then refused to return to his wing,

refused to produce his identification card, swore at the officer, and

shook his finger in the officer’s face. When defendant finally left, he

started yelling “turn around, I got something for you” and when the

officer turned around, he saw defendant with his pants pulled down and

his penis exposed through his shorts. The adjustment committee found

him guilty of all charges except sexual misconduct.

Finally, Jackson testified that on January 25, 1994, defendant was

ticketed for insolence, intimidation, and threats based on his going to the

correctional office, telling the reporting officer that he did not like being

at Danville Correctional Center and that he wanted to go back to

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Pontiac. Defendant said, “I just want to let you know, my name is

Banks, I’m a Stone, and I want to see the warden about getting out of

here. I’m telling you, I’m letting you know, you have been warned, if

anything happens, it’s on you.” The adjudicatory committee found

defendant guilty.

Defendant contends that the admission of Carrington’s statements

through Gross’ testimony, and the admission of the various prison

guards’ accounts of rule violations through Jackson’s testimony,

violated defendant’s sixth and fourteenth amendment right to confront

witnesses, citing Crawford v. Washington, 541 U.S. 36, 58 L. Ed. 2d

177, 124 S. Ct. 1354 (2004). The trial court’s ruling that the evidence

was relevant and reliable did not address the defendant’s confrontation

objection.

The sixth amendment’s confrontation clause, which applies to both

federal and state prosecutions (Crawford, 541 U.S. at 42, 158 L. Ed. 2d

at 187, 124 S. Ct. at 1359), provides: “In all criminal prosecutions, the

accused shall enjoy the right *** to be confronted with the witnesses

against him ***.” U.S. Const., amend. VI. In Crawford, the Supreme

Court further interpreted the confrontation clause and held that the

testimonial hearsay statements of a witness who is unavailable at trial

may not be admitted against a criminal defendant unless the defendant

had a prior opportunity for cross-examination. Crawford, 541 U.S. at

68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court in Crawford

declined to spell out a comprehensive definition of “testimonial,” but it

found that: “Whatever else the term covers, it applies at a minimum to

prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.” Crawford, 541 U.S. at 68,

158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

The State argues that both the testimony from the records officer

and the testimony recounting a deceased witness’ grand jury testimony

were properly admitted in aggravation during defendant’s sentencing

hearing. The ordinary rules of evidence are relaxed at the

aggravation/mitigation stage of a capital sentencing hearing. People v.

Caffey, 205 Ill. 2d 52, 125 (2001). The only requirement for the

admissibility of evidence at this stage of a capital sentencing hearing is

that the evidence be relevant and reliable. Caffey, 205 Ill. 2d at 125.

Furthermore, “it is well settled that the introduction of hearsay evidence

in a capital sentencing hearing violates neither the due process clause

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(People v. Jones, 94 Ill. 2d 275, 286 (1982)), nor the confrontation

clause (People v. Brown, 172 Ill. 2d 1, 49 (1996)). Therefore, the

arguments based on the sixth and fourteenth amendments also fail.”

People v. Jackson, 182 Ill. 2d 30, 83 (1998).

These well-established rules in Illinois are consistent with Williams

v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949),

where the Supreme Court stated:

“Highly relevant–if not essential to [a court’s] selection of an

appropriate sentence is the possession of the fullest information

possible concerning the defendant’s life and characteristics. And

modern concepts individualizing punishment have made it all the

more necessary that a sentencing judge not be denied an

opportunity to obtain pertinent information by a requirement of

rigid adherence to restrictive rules of evidence properly

applicable to the trial.” Williams, 337 U.S. at 247, 93 L. Ed. at

1342, 69 S. Ct. at 1083.

There is nothing in Crawford to indicate that the confrontation

clause does or does not apply to the aggravation/mitigation phase of a

capital sentencing hearing. There is a split of authority on the issue by

the courts that have considered the issue. The parties have cited cases

which hold that the confrontation clause does not apply, namely, People

v. Jackson, 182 Ill. 2d 30, 83 (1998), Szabo v. Walls, 313 F.3d 392 (7th

Cir. 2002), United States v. Fields, 483 F.3d 313 (5th Cir. 2007),

United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005), United

States v. Johnson, 378 F. Supp. 2d 1051 (N.D. Iowa 2005), State v.

McGill, 213 Ariz. 147, 140 P.3d 930 (2006), State v. Stephenson, 195

S.W.3d 574 (Tenn. 2006), and Summers v. State, 122 Nev. 1326, 148

P.3d 778 (2006); and cases which hold that the right to confront

witnesses does apply, namely, Proffitt v. Wainwright, 685 F.2d 1227

(11th Cir. 1982), United States v. Mills, 446 F. Supp. 2d 1115 (C.D.

Cal. 2006), Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005),

State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004), and Rodriguez v. State,

753 So. 2d 29 (Fla. 2000).

Defendant contends that the argument against applying the

confrontation clause to the aggravation/mitigation phase of a capital

sentencing hearing relies upon Williams. But, defendant argues, a

growing number of jurists have questioned the continued vitality of

Williams. Because the sixth amendment right to confrontation was not

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extended to the states until over 15 years after Williams was decided,

Williams was decided on due process grounds and it “is thus quite

questionable whether Williams is controlling with respect to the

determination of whether the Sixth Amendment right to confrontation

extends to capital sentencing hearings.” United States v. Hall, 152 F.3d

381, 405 n.13 (5th Cir. 1998). “The bases of the Williams decision,

written in 1949, well before the modern death penalty era of Furman [v.

Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)] and

Gregg [v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909

(1976)], have been eroded as applied to capital cases.” United States v.

Taveras, 424 F. Supp. 2d 446, 457 (E.D.N.Y. 2006).

A similar argument was presented to this court in People v.

Patterson, 217 Ill. 2d 407 (2005), which involved the question of

whether a Crawford violation was subject to harmless-error review. In

Patterson we stated:

“What defendant is arguing, in essence, is that Crawford

implicitly overruled Harrington [v. California, 395 U.S. 250, 23

L. Ed. 2d 284, 89 S. Ct. 1726 (1969)], [Delaware v.] Van

Arsdall, [475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431

(1986)] and any other Supreme Court decision holding that

confrontation clause violations are subject to harmless-error

review. Crawford does not explicitly overrule these decisions,

and we may not assume an implicit overruling of a previous

Supreme Court decision. Agostini v. Felton, 521 U.S. 203, 237,

138 L. Ed. 2d 391, 423, 117 S. Ct. 1997, 2017 (1997)

(reaffirming rule that it is the prerogative of the Supreme Court

to overrule its own decisions). In view of the well-established

rule, pre-Crawford, that confrontation clause violations were

subject to harmless-error analysis, and the numerous

post-Crawford decisions applying harmless-error review to

Crawford violations, as well as the Supreme Court’s admonition

not to assume the implicit overruling of a Supreme Court

decision, we conclude that Crawford violations are subject to

harmless-error analysis.” Patterson, 217 Ill. 2d at 427-28.

Applying the rationale of Patterson, we hold that the confrontation

clause does not apply to the aggravation/mitigation phase of a capital

sentencing hearing. People v. Jackson, 182 Ill. 2d 30, 83 (1998). As we

stated earlier, the only requirement for the admissibility of evidence at

-35-

this stage of a capital sentencing hearing is that the evidence be relevant

and reliable. People v. Caffey, 205 Ill. 2d 52, 125 (2001).

We further find that the trial court did not abuse its discretion in

admitting the complained-of hearsay evidence. First, the testimony of

Glenn Jackson, the chief records officer, detailed defendant’s prior

behavior in the Department of Corrections, which directly impacts

defendant’s potential for rehabilitation and his ability to adjust to a life

of incarceration. Traditionally, this type of evidence has been found

relevant and admissible. People v. Casillas, 195 Ill. 2d 461, 494 (2000);

People v. Terrell, 185 Ill. 2d 467, 506 (1998); People v. Ward, 154 Ill.

2d 272, 328-29 (1992).

The testimony from former Assistant State’s Attorney Barry Gross

was also properly admitted at the sentencing hearing. Gross testified that

he presented a now-deceased witness named Mark Carrington to the

grand jury in 1985, and then proceeded to read Carrington’s sworn

testimony to defendant’s sentencing jury. In that testimony before the

grand jury, Carrington described watching defendant shoot Alfred Evans

in the back. The testimony was also reliable, as it consisted of

Carrington’s signed handwritten statement and his sworn grand jury

testimony regarding a crime to which defendant pleaded guilty, and it

was relevant because it shed light for the jurors on not only the

circumstances surrounding defendant’s first conviction for murder, but

also his street gang affiliations.

8. Jury Instructions Regarding Consideration of

Mitigation Evidence

Defendant’s eighth point for review is that the trial court erred when

it instructed the jury that the defendant should be sentenced to death if

no mitigating factor was sufficient to preclude a death sentence, because

that prevented the jury from performing its constitutionally required task

of measuring the totality of the mitigation against the aggravation.

Defendant contends that the instructions informed the jury that it had to

consider each mitigating factor singly rather than aggregating the

mitigation factors in determining whether defendant should be sentenced

to death. Therefore he argues that the jurors were prevented from

reaching the decision that death was inappropriate because they had to

weigh each mitigating factor against all of the aggravation. Finally, he

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contends that a juror who believed that all of the mitigation outweighed

the aggravation could not conclude death was inappropriate unless that

juror also believed that there was one single mitigating factor that

outweighed all of the aggravation.

Defendant elected to be sentenced under the death penalty statute in

effect at the time of the crime on March 24, 2001, rather than the statute

in effect at the time of his trial in 2006. The instructions given by the

court, which defendant now argues are objectionable, are Illinois Pattern

Jury Instructions, Criminal, Nos. 7C.05 and 7C.06 (4th ed. 2000) (IPI

Criminal 4th), which instructions were promulgated for use under the

death penalty statute in effect at the time of the crime. Those instructions

were as follows:

“Under the law, the defendant shall be sentenced to death if

you unanimously find that there is no mitigating factor sufficient

to preclude imposition of a death sentence.

If you are unable to find unanimously that there is no

mitigating factor sufficient to preclude imposition of a death

sentence, the court will impose a sentence of natural life

imprisonment, and no person serving a sentence of natural life

imprisonment can be paroled or released, except through an

order by the Governor for executive clemency.” See IPI Criminal

4th No. 7C.05.

“In deciding whether the defendant should be sentenced to

death, you should consider all the aggravating factors supported

by the evidence and all the mitigating factors supported by the

evidence. Aggravating factors are reasons why the defendant

should be sentenced to death. Mitigating factors are reasons why

the defendant should not be sentenced to death.

Aggravating factors include:

First: The defendant has been convicted of murdering two or

more persons so long as the deaths were the result of an intent to

kill more than one person; or the murdered person, Rose

Newborn, was killed in the course of another felony if the

murdered person was actually killed by the defendant; and, in

performing the acts which caused the death of the murdered

person, the defendant acted with the intent to kill the murdered

person or with the knowledge that his acts created a strong

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probability of death or great bodily harm to the murdered person;

and, the other felony was one or more of the following: armed

robbery, aggravated kidnaping, or aggravated vehicular hijacking.

Second: Any other reason supported by the evidence why the

defendant should be sentenced to death.

Where there is evidence of an aggravating factor, the fact that

such aggravating factor is not a factor specifically listed in these

instructions does not preclude your consideration of the

evidence.

Mitigating factors include:

First: Any or all of the following if supported by the evidence:

The murder was 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.

The defendant has expressed remorse for the crime.

The defendant has plead guilty on previous cases.

The defendant’s background includes a history of extreme

emotional or physical abuse.

Second: Any other reason supported by the evidence why the

defendant should not be sentenced to death.

Where there is evidence of a mitigating factor, the fact that

such mitigating factor is not a factor specifically listed in these

instructions does not preclude your consideration of the

evidence.

If you unanimously find from your consideration of all the

evidence that there is no mitigating factor sufficient to preclude

imposition of a death sentence, then you should sign the verdict

requiring the court to sentence the defendant to death.

If you do not unanimously find from your consideration of all

the evidence that there is no mitigating factor sufficient to

preclude imposition of a death sentence, then you should sign the

verdict requiring the court to impose a sentence other than

death.” See IPI Criminal 4th No. 7C.06.

Defendant argues that the jury should have been instructed that it

could sentence defendant to death only if there were no mitigating

factors sufficient to preclude imposition of a death sentence. In support

-38-

of this argument he cites Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d

384, 108 S. Ct. 1860 (1988). He states that in Mills the verdict form

could be interpreted to require jurors to disregard any mitigating factor

that all 12 jurors could not unanimously agree existed. This was

unconstitutional because “[i]f eleven jurors agree that there are six

mitigating circumstances, the result is that no mitigating circumstance is

found. Consequently, there is nothing to weigh against any aggravating

circumstance found and the judgment is death even though eleven jurors

think the death penalty wholly inappropriate.” Mills, 486 U.S. at 373-74,

100 L. Ed. 2d at 393, 108 S. Ct. at 1865. In such a case, the result is that

the jury “may not give mitigating evidence any effect whatsoever, and

must impose the sentence of death.” Mills, 486 U.S. at 375, 100 L. Ed.

2d at 394, 108 S. Ct. at 1865.

Defendant then goes on to analogize his case with the Mills case. He

asserts: “His jurors were instructed that they were to vote for death if no

‘mitigating factor’ was sufficient to preclude death. If all his jurors

believed that death was inappropriate because the entirety of his

mitigation precluded a death sentence, but none of them believed that any

single mitigating factor precluded a death sentence, they were required

to sentence him to death. The jury could not give [defendant’s]

mitigation ‘any effect whatsoever’ in those circumstances.”

In People v. Ramey, 152 Ill. 2d 41 (1992), defendant raised basically

the same contention as defendant in this case and cited the Mills case in

support of his argument. In rejecting this argument we said: “In Illinois,

unlike Maryland, the belief by one juror that any one mitigating factor

sufficient to preclude the death penalty exists is sufficient to do so. As

such, Illinois’ death penalty procedure clearly provides for meaningful

consideration of any and all mitigating factors.” People v. Ramey, 152 Ill.

2d at 77.

In examining a challenge to jury instructions, a reviewing court must

determine whether the instructions, taken as a whole, fairly, fully and

comprehensively apprised the jury of the relevant legal principles. People

v. Parker, 223 Ill. 2d 494, 501 (2006).

Here the jury was instructed under IPI Criminal 4th No. 7C.06 to

consider “all mitigating factors supported by the evidence,” that

“[m]itigating factors are reasons why the defendant should not be

sentenced to death” and that “[m]itigating factors include *** [a]ny other

reason supported by the evidence why the defendant should not be

-39-

sentenced to death,” even if such reason or mitigating factor “is not one

of the specifically listed factors.”

It is clear from these instructions that defendant’s conclusion in his

hypothetical is not correct–the jury was not “required to sentence him to

death.” On the contrary, the instructions clearly state that if any one of

the jurors believed that death was inappropriate, based on all of the

mitigating evidence, that is, in itself, a “reason supported by the evidence

why the defendant should not be sentenced to death.” Accordingly, IPI

Criminal 4th No. 7C.06 then directs the jury to sign the verdict requiring

the court to impose a sentence other than death.

Furthermore, this court has upheld substantially the same language

of IPI Criminal 4th Nos. 7C.05 and 7C.06. See, e.g., People v. Simms,

192 Ill. 2d 348, 411-15 (2000); People v. Emerson, 189 Ill. 2d 436, 503-

05 (2000); Bannister, 232 Ill. 2d at 81-82.

In Boyde v Calfornia, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct.

1190 (1990), the Supreme Court held that the proper legal standard for

reviewing a claim that an instruction was ambiguous and therefore

subject to erroneous interpretation was whether there was a reasonable

likelihood that the jury has applied the challenged instruction in a way

that prevents the consideration of constitutionally relevant evidence.

Boyde v. California, 494 U.S. at 380, 108 L. Ed. 2d at 329, 110 S. Ct.

at 1198. The Supreme Court further said, “Jurors do not sit in solitary

isolation booths parsing instructions for subtle shades of meaning in the

same way that lawyers might.” Boyde v. California, 494 U.S. at 380-81,

108 L. Ed. 2d at 329, 110 S. Ct. at 1198. Accord People v. Bannister,

232 Ill. 2d at 81 (correctness of instructions “depends not on whether

defense counsel can imagine a problematic meaning, but whether

ordinary persons acting as jurors would fail to understand them”).

The Supreme Court noted in Middleton v. McNeil, 541 U.S, 433,

158 L. Ed. 2d 701, 124 S. Ct. 1830 (2004), that “[n]othing in Boyde

precludes a state court from assuming that counsel’s arguments clarified

an ambiguous jury charge.” Middleton v. McNeil, 541 U.S. at 438, 158

L. Ed. 2d at 708, 124 S. Ct. at 1833. Here, in closing argument, defense

counsel apprised the jury, without objection:

“[The prosecutor] talked about mitigation and aggravation. This

is not a balancing test in the sense that you put things on a scale.

We don’t have to prove mitigation outweighs aggravation. You’ll

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get the instructions. All we have to do is show you there is a

mitigating factor or factors which are sufficient to preclude

death.”

Defense counsel later reiterated:

“Remember this is not a balancing test. We don’t have to prove

mitigating factors outweigh aggravating factors; just that there is

a single mitigating factor or factors, just one sufficient to

preclude that.”

The instructions directed the jurors to examine all the mitigating

evidence offered by defendant during the hearing in deciding whether

there was sufficient mitigation to preclude the imposition of a death

sentence. Defense counsel properly argued that the mitigating factors

did not have to outweigh the aggravating factors “just that there is a

single mitigating factor *** just one” to preclude death. Construing the

instructions as a whole, and the record before us, we find that the trial

court properly instructed the jury regarding consideration of the

mitigation evidence. We further find that there is not a reasonable

likelihood that the jurors understood the challenged instructions to

preclude proper consideration of all the relevant mitigating evidence and

we conclude that the jury understood and properly followed the

applicable law in reaching its verdict.

Defendant also tendered a verdict form to the court stating that he

could be sentenced to death only if “no mitigating factor or factors”

precluded a death sentence and it was rejected by the court. The decision

to give a non-IPI rests within the sound discretion of the trial court.

Caffey, 205 Ill. 2d at 127. Here, the court did not abuse its discretion by

refusing to give defendant’s proposed verdict form and instead give the

verdict forms from IPI Criminal 4th Nos. 7C.08 and 7C.09A, which

properly stated the law.

9. The State’s Remarks at the Sentencing Hearing

Defendant’s ninth point for review is that the State improperly argued

that defendant should be sentenced to death because he would kill

someone if he received life in prison, that the jury should weigh the

aggravation against the mitigation and that defendant displayed no

remorse for the murder. The State conceded that defendant had said he

was sorry, but commented that he “was sorry he was sitting in jail

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awaiting his trial.” The State then argued, “He didn’t show any remorse,”

and “he shows no remorse.” Defendant argues that the State cannot

argue that a defendant has shown no remorse when he has. People v.

Gosier, 145 Ill. 2d 127, 153-54 (1991). Defendant argues that he told the

assistant State’s Attorney from felony review that he was sorry, that he

wanted to do the right thing, and that he would change places with Rose

Newburn if it were possible. That was remorse.

The State contends that in Gosier this court did not set forth a rule

of law regarding commentary on a defendant’s lack of remorse, as

defendant seems to imply in his brief. Rather, the issue in Gosier was

whether the prosecutor had made a blatantly untrue statement when he

argued that the defendant “had shed no tears for what he had done”

considering the fact that the defendant had broken down in tears several

times before the jury, and the detective in the case had testified that the

defendant had cried during their interview. Gosier, 145 Ill. 2d at 153-54.

Here, there was no such incorrect statement of fact. The prosecutor

conceded during his remarks that defendant had said that he was sorry,

but argued that the apology alone was not enough to show genuine

remorse, thereby distinguishing this case from Gosier. Further, this court

has consistently held that “ ‘ “a convicted defendant’s remorse or the

absence of it is a proper subject for consideration at sentencing.” ’ ”

Bannister, 232 Ill. 2d at 91, quoting People v. Burgess, 176 Ill. 2d 289,

317 (1997), quoting Barrow, 133 Ill. 2d at 281.

Defendant also asserts that the prosecutor improperly argued that

defendant should be sentenced to death because he would kill someone

if he were to receive life in prison. This court has held “[t]he fact that a

defendant is parole-ineligible does not prevent the State from arguing

that the defendant poses a future danger, as the State may reasonably

argue that defendant will pose a danger to others in prison and that

executing him is the only means of eliminating the threat to the safety of

other inmates or prison staff.” People v. Mertz, 218 Ill. 2d 1, 56 (2005).

In People v. Hudson, 157 Ill. 2d 401, 457 (1993), this court found

that the prosecutor’s statement that the defendant “will kill again if he is

given the chance” was proper because it was supported by the evidence

and based upon testimony regarding prior misconduct. Defendant argues

that “the State presented no evidence that [defendant] threatened to kill

anyone.” We agree with the State that there was testimony, however,

that defendant sexually assaulted a young girl while holding an ice pick

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to her friend’s throat, that he had an actual prior murder in his

background, and that he had threatened violent behavior in prison,

including possession of a weapon.

Finally, defendant contends that the State improperly argued that

death was mandatory if the mitigation did not outweigh the aggravation.

Under the Illinois death penalty statute as it existed at the time of the

crime, the defendant had to show that there is mitigation “sufficient to

preclude imposition of the death penalty.” People v. Olinger, 112 Ill. 2d

324, 351 (1986).

Defendant’s argument fails, however, because the prosecutor’s

argument was essentially a correct statement of the law. As he noted, the

law under which defendant elected to be sentenced did state that “[i]f the

jury determines unanimously that there are no mitigating factors sufficient

to preclude the imposition of the death sentence, the court shall sentence

the defendant to death.” 720 ILCS 5/9–1(g) (West 2002). In stating that

all the jurors had to find was that the “aggravation outweighs the

mitigation,” the prosecutor was simply rephrasing the standard, to

explain that all the jurors had to decide was that the mitigation offered

was not justification to preclude the death penalty.

Here, the remarks in question did not substantially prejudice

defendant, particularly since there was an overwhelming amount of

evidence offered in aggravation, including testimony regarding

defendant’s 133 disciplinary infractions in the Department of Corrections,

his prior murder conviction, and his prior sexual assault.

10. Inquiry Into Defendant’s Claim of Trial Lawyers’

Ineffectiveness

Defendant’s tenth point for review is that the trial court failed to

adequately inquire into defendant’s statements that his trial lawyers were

ineffective. After denying counsel’s motions for a new trial and new

sentencing hearing, the court asked defendant if he had anything to say.

Defendant said that his attorneys were ineffective for failing to call a law

enforcement officer who would have testified on his behalf during the

trial and that counsel had selected a biased juror. Asked by the court to

comment, defense counsel stated, “We did everything in our power we

thought to defend him in this case.” The court asked, “Including the

examination of any possible witnesses or any possible other avenues that

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could be presented on his behalf?” Counsel replied that he had.

Defendant argues that when a defendant asserts that his trial counsel

had been ineffective, he may be entitled to different counsel to investigate

those claims. People v. Johnson, 159 Ill. 2d 97, 124 (1994). The trial

court must conduct an adequate inquiry into allegations of ineffective

assistance of counsel, that is, inquiry sufficient to determine the factual

basis of the claim. Johnson, 159 Ill. 2d at124; People v. James, 362 Ill.

App. 3d 250, 256 (2005). Here, defendant contends the trial court did

not inquire into the factual basis of his claims. The court merely asked

counsel whether he believed that the defense had been diligent. He

asserts that this court should remand the cause for the appointment of

new counsel to investigate defendant’s claims that his trial attorneys were

ineffective, citing People v. Krankel, 102 Ill. 2d 181, 189 (1984).

The State contends the trial court adequately inquired into

defendant’s claim that his counsel was ineffective and it was not required

to appoint new counsel. Defendant’s ineffectiveness claims were twofold:

(1) that defense counsel had failed to call “a law enforcement officer that

could have testified in [his] trial,” and (2) that counsel had seated a juror

whom he did not want.

The State concedes that this court has held that in some

circumstances, new counsel should be appointed to investigate a

defendant’s claims of ineffectiveness by his trial attorneys. See People v.

Krankel, 102 Ill. 2d 181 (1984). The law is clear, however, that new

counsel is not required in every case, and that the operative concern for

a reviewing court is whether the trial court conducted an adequate

inquiry into the pro se defendant’s claim of ineffective assistance.

Johnson, 159 Ill. 2d at 125. Where the claim lacks merit or pertains to

matters of trial strategy, no counsel should be appointed. People v.

Crane, 145 Ill. 2d 520, 533 (1991).

In this case, the trial court conducted an adequate inquiry and thus

rightfully declined to appoint counsel for defendant. Defendant claims

that the trial court’s entire inquiry into his complaint regarding the

witness consisted of the court asking defense counsel whether he

examined “any possible witnesses or any possible other avenues that

could be presented on his behalf,” but this statement fails to take into

account that the trial court had been presented with the exact same

complaint regarding defendant’s trial counsel twice previously. On May

16, 2005, prior to commencement of the trial, defense counsel informed

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the court that his client wanted to talk to the court about the same

witness. Counsel explained to the court that he talked to his client about

it at length and that counsel did not believe the witness should be called.

On the next court date, the issue was addressed again by the court via

a motion to withdraw filed by defense counsel. Counsel explained to the

court that defendant’s family had located a potential witness, specifically,

a state trooper who had stopped defendant on two occasions, but that

counsel did not want to call the trooper as a witness, and that he

considered the potential testimony aggravation. The trial court talked to

defendant regarding the witness and explained to him that he had “four

competent attorneys” and told defendant that he needed to realize that

they were not calling the witness because “in their expert opinion, it

would do more harm than good.”

These two exchanges between defendant and the court explain why

the trial court’s inquiry on September 19, 2006, did not need to be

lengthy. The court was already familiar with the substance of defendant’s

complaint regarding his counsel since it was presented on the two prior

occasions. As such, the inquiry conducted by the trial court was sufficient

to satisfy the requirement set forth in Johnson. It is well established that

decisions concerning whether to call certain witnesses for the defense are

matters of trial strategy left to the discretion of trial counsel. People v.

Enis, 194 Ill. 2d 361, 378 (2000).

Defendant’s other complaint revolved around counsel’s decision to

seat a juror whom defendant believed to be biased. The law is equally

clear that defense counsel’s conduct during voir dire involves matters of

trial strategy that generally are not subject to scrutiny under Strickland

v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

See also People v. Metcalfe, 202 Ill. 2d 544, 561-62 (2002). Here, both

of defendant’s complaints fell under the parameters of trial strategy and

therefore the trial court did not err in choosing not to appoint counsel.

11. Death Penalty Statute

Defendant’s eleventh point for review is that the Illinois death penalty

statute violates due process under Apprendi v. New Jersey, 530 U.S.

466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the State is not

required to prove beyond a reasonable doubt that aggravating factors

outweigh the mitigating factors. Defendant notes that he chose to be

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sentenced under the old statutory scheme in effect at the time of the

crime, which required the jury to sentence him to death if it found no

mitigation sufficient to preclude a death sentence. 720 ILCS 5/9–1(g)

(West 2000). He argues that this court’s rejection of an Apprendi

challenge to the constitutionality of our death penalty statute should be

reconsidered.

The State contends that the Illinois death penalty statute does not

violate the principles announced in Apprendi and Ring v. Arizona, 536

U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), 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. We agree. This court has repeatedly rejected

defendant’s argument. See, e.g., Bannister, 232 Ill. 2d 52; Harris, 225

Ill. 2d at 50; People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); Mertz,

218 Ill. 2d at 93-94; People v. Ballard, 206 Ill. 2d 151 (2002); People v.

Davis, 205 Ill. 2d 349 (2002). We decline to reconsider these decisions.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Cook

County is affirmed. The clerk of this court is directed to enter an order

setting Tuesday, September 14, 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.

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