People v. Buss

concurring part HARRISON, in JUSTICE and dis- senting part:

I, agree Brooks’ convictions should not be disturbed, set aside sentence of death. For but would his my the reasons set forth dissent Bull, (1998), penalty present 2d 179 this state’s death law Ill. requirements eighth of the not meet the does States fourteenth amendments the United Constitu (U.S. XIV) Const., VIII, I, or article tion amends. section (Ill. 1970, I, Const. art. 2, of the Illinois Constitution 2).§ Accordingly, we should vacate Brooks’ death sentence, to a term of and he should be sentenced 1(j). par. imprisonment. 38, 1991, ch. Ill. Rev. Stat. 9 - murdering guilty of more Because Brooks has been found imprisonment victim, term of must be than one his par. 38, 1991, life. Stat. ch. 1005 — 8— natural Ill. Rev. 1(a)(1)(c).

(No. 81911. Appel ILLINOIS, THE OF THE PEOPLE OF STATE Appellant. lee, BUSS, D. v. TIMOTHY Rehearing 1999. Opinion April denied October 1999. filed HARRISON, J., concurring part dissenting part. and Defender, Kim Schiedel, Charles M. and Rob- Deputy Defender, of the Office Fawcett, ert Assistant Appellate Defender, for Chicago, appel- of the State of Appellate lant, Buss, Menard, se. Timothy appellant pro and D. of General, of and Ryan, Attorney Springfield,

James E. (Barbara Attorney, of Joliet A. Glasgow, James State’s Preiner, General, and L. Browers and Solicitor William General, of Hoffman, Attorneys Assistant Jay Paul counsel), for the Chicago, People. opinion

JUSTICE McMORROWdelivered the of the court: August disappear- 7, 1995, connection with the Christopher Meyer, defendant,

ance and murder of Timothy Buss, D. was indicted on six counts of first degree aggravated kidnapping, murder, three counts of aggravated and one count of unlawful restraint. Follow- ing County, jury a trial in the circuit court of found Will guilty charges. jury defendant of all of these The same eligible determined that defendant was for the death penalty. hearing aggravation After evidence in and miti- gation, jury mitigating found that there were no fac- preclude imposition tors sufficient to of the death penalty. The circuit court sentenced defendant to death degree imposed for first murder and sentences of 30 years’ imprisonment years’ imprisonment ag- and 5 gravated kidnapping aggravated restraint, unlawful respectively. appeal, argues

On that this court must grant capital sentencing hearing him a new trial and relating dire, because of errors to voir the denial of his pretrial quash suppress evidence, motion to arrest and stages trial, errors that occurred at at errors both sentencing hearing. Defendant’s death sentence has stayed pending been direct this court. Ill. review 609(a). 4(b); § VI, Const. art. 134 Ill. 2d Rs. We affirm defendant’s and death sentence. convictions

BACKGROUND Christopher trial, Moulton, At defendant’s 1996 Mika Meyer’s August mother, that, 1995, testified in she and During Park, her children lived Aroma Illinois. the August gave lOVa-year-old 7, 1995, afternoon of she Christopher permission go to the Aroma Park boat launch on the Kankakee River. Moulton instructed Christopher p.m. day. he to return home at 5 that When bicycle Christopher launch, on the was left his for boat T-shirt, Chicago shorts, patterned a green blue wearing Turtle shoes, Ninja and tennis high-top Blackhawks home did not return Christopher underwear. When success. She for him without Moulton looked evening, Christopher. for began a search police, notified who Christopher’s disappearance, days following In the him Christo- for found searching of the team members Kankakee in areas around the clothing bicycle pher’s the river that, dragging testified while River. Searchers float- shoes Christopher’s found one of August they on day, launch. That same Aroma Park boat ing near the was last seen bicycle Christopher searchers found the the river from recovered across bicycle The was riding. of the railroad in a area east launch wooded boat of During morning Drive. trestle on Birchwood was found float- 9,1995, other shoe August Christopher’s Country near the Kankakee in the Kankakee River ing Park from the Aroma boat Club, which is downstream found of Christo- August pieces On searchers launch. lot the gravel parking the area around pher’s clothing On a Kankakee State Park. Hunting Area 10 lot, piece there was leading parking from the path of Ninja and a ground, pair T-shirt on the Christopher’s nearby in a bush. hanging Turtle underwear was police Christopher proceeded, the search for While Christopher had seen learned that several individuals at the launch dur- man boat resembling and a Mailloux, who was 7. Jacob August the afternoon ing that he went to trial, time of testified years old at the Buckner during friend Paul launch with his boat fished at the As he and Buckner August afternoon of 7. launch, Mailloux saw adjacent an area boat bayou, Christopher knew to a man. Mailloux talking Christopher The launch before. he had seen him at the boat because hair and a mustache man had dark Christopher with jean and blue cut-off tank wearing turquoise top 162 During

shorts. a conversation Mailloux had with this man, the man said that he had been in raised Aroma Park, had in family area, just had returned from Florida. The man also talked to Mailloux about salt wa- ter in fishing Florida. Mailloux noticed that the man’s tackle box contained a filet knife and lures that were too to big by be used fishermen the Aroma Park area. Al- though Mailloux was unable to make a positive identifica- tion of court or viewed, at the he lineup he testified that defendant was similar to the man he saw with Christopher.

Fifteen-year-old that, Edward Meier testified around 7, on p.m. August 1995, he was at the boat launch with his friends Dustin and Darren Posing. Meier saw Christo- pher walk out of the woods on a path leading from the fishing adjacent area to the boat launch. Christopher car, walked to a where he to spoke someone, after which he to jogged the boat ramp wash mud from his shoes in the river. He bike, then retrieved his which was lean- ing nearby on a tree. suggested Darren that Christopher ride his bike into the refused, river but Christopher say- he had to ing be home 4:30 p.m. Dustin told him it only was 4:17 p.m., but Christopher replied that he had Meanwhile, leave. slowly car circled around the lot and parking then drove out of the Harry’s lot toward Bait Shop. Christopher quickly rode out of the parking lot after the car. August On Meier selected defendant’s car from 25 or 30 cars lot of parking the Kankakee County sheriffs department identified it as the car he saw at the August boat launch on 7.

Darren Posing’s testimony essentially was the same Meier’s, as except that he did not see Christopher talking anyone at boat launch. Posing, years who was the. old at trial, did, however, the time of see one car in the lot, boat launch parking gray or dark blue car that ap- peared to be a 1984 police Oldsmobile Ciera. He told at the boat one he saw to the car similar rode to- Christopher addition, he testified launch. lot of left the parking he Shop Bait when Harry’s ward launch. the boat Aroma at the that she was testified

Beth Waselewski Forbes, on Jason boyfriend, her launch with Park boat his bike pushing 7, Christopher saw 1995. She August early or forties. late thirties a man his following and mustache, shirt, had a a dark The man wore sleeveless Christopher hair, smoking cigarette. a dark and was had path on the out of the woods walking man were and this four- gray a dark saw bayou. from the Waselewski leading launch but was lot of the boat parking car in the door County sheriffs of the Kankakee to tell members unable the launch the car saw at boat whether she department lot of parking viewed the cars she later among was unable to tell whether She was also department. in a she Christopher lineup was man she saw with that “very possible” that it viewed, but she testified was man, “possible” and it was defendant was that at the boat launch. car was the one she saw defendant’s car individuals defendant or Other saw Henry around 7. Charles August in the Aroma Park area 1995, of the trestle that, in he lived east August testified there from his house Drive. Across the road on Birchwood 7, August and the river. On between the road park was he a car from work when saw 1995, driving he home was fac- parked The car was park. area of the the parking behind the car standing a man him, and there was ing had a he Henry past park, As drove trunk. open the man contact with eye the man. He made side view of him. turned to look at when the man dark, wavy hair man had Henry, According did Henry jeans gray and a T-shirt. wearing blue see a man, he did facial hair on the but any not notice man’s from the protruding knife in a leather case filet back pocket. Henry, fisherman, explained it was common for fishermen to have this type leather case knife, filet which he described thin, as a single-edged, flexible knife. Henry could not remember whether he saw the car and the man when he came home for lunch between 12:30 and 1 p.m. or when he returned home from work between 4:30 and p.m. 5:30

Henry reported his observations to police August on 9. On August Henry viewed a of 20 group to 25 cars in the parking lot of the Kankakee County sheriff’s department. From cars, these he selected defendant’s car, which he stated looked like the car he saw on August 7. On August Henry viewed a from lineup, which he identified defendant as the person he on saw 7. August Henry also made a courtroom identification of defendant.

Bobbye Fancher that, testified at 12:45 a.m. on 7, 1995, August she was driving work on Route 113 when she saw an older model silver-blue turn Spectrum in front of her from a just dirt road west of Hunting Area 7 the Kankakee State Park. At about p.m. 9:25 on August 8, Fancher was driving on the same route when she saw the same car turn onto Route 113 at the same location. The car did not turn on its headlights for one-half to one mile. The man driving the car had a mustache. Fancher and, contacted police after viewing group 23 to 35 cars at police station, she identified the defendant’s car as the one she saw on August 7 and 8. She admitted having worked with defendant’s father at one time but stated that she was unaware that defen- dant had been arrested for Christopher’s murder when she police contacted about the car she saw. David Buss testified that he and Fancher had had at disagreements work but that had they last worked together 15 to 20 years ago.

According to records from the Illinois Secretary of State, defendant owned 1986 four-door Chevy Spec- In June Christopher’s murder.

trum around the time of this plates Illinois license 1995, obtained defendant from to Illinois. Florida car and title was transferred neighbors of defendant’s testimony by Other some Ad- Candace to Christopher’s disappearance. linked him same that, 1995, she lived in the August kins testified there building He had moved as defendant. apartment 6, her sister May year. August from Florida in of that On had from defen- they returned a hammer that borrowed returned it to they hammer clean when dant. The was 7, on she defendant’s car p.m. August him. Around saw but she building, gone at the it was when apartment 4, 5, day. August or 6 that On p.m. looked for it around Adkins 9, asked if she knew where he was on 7) Monday told her that he was a (August suspect and noticed defen- Christopher’s disappearance. Adkins that dant had three on his forearm when she saw scratches him on 9. August sister, Adkins, testified that she

Candace’s Laura lived with her sister in 1995 and had seen defen- August dant a filet knife in a case on his belt. that summer with August long On she him in his car for sitting saw in a inway of time daze. He had not acted this periods past. and police department Members of Kankakee testified, County Kankakee sheriffs concern- department ing attempts their to defendant about Christo- speak August police On visited pher’s disappearance. Buss, Terry home David defendant’s father Terry refused to stepmother. speak police Buss however, afternoon, an morning attorney. without That in Joliet police living David Buss told that defendant was his visited defendant’s Joliet police with brother. When was afternoon, address no one home. Defendant employment. placed also not at his of Police place under surveillance and observed apartment defendant’s him return home that At evening. p.m., around police saw defendant’s car parked front of his apartment building but, thereafter, shortly police realized that had defendant’s car Their disappeared. attempts locate the car night that were unsuccessful. Poole,

Wanda a neighbor of in August testified she is familiar with defendant’s car. or Around 8:40 on p.m. August she sitting was her garage when she saw defendant’s car traveling down the alley behind her home 35 to per at 40 miles hour. Al- dark, though it was headlights car’s were off. Theresa Billingsley testified that she working was as a desk at the B and P manager Motel in Braidwood on the night August 9. A man checked into the motel at about 10 under p.m. the name of Jim The Benson. man model, was a driving blue-gray, older Spectrum four-door with rods in the fishing back window. He was smoking when he registered at the motel and assigned smoking Billingsley room. contacted police because she believed that this man resembled the sketch composite on a flier had police distributed regarding Christopher’s disappearance. call, response Billingsley’s police placed defendant under at motel. surveillance

Marsha Pressler testified she worked as a desk clerk at the B and P during day Motel on 10. August At a.m., around 8:25 checked out the motel. defendant After office, defendant left the motel Pressler saw him place a boots in pair of the motel Pressler dumpster. asked guest another at motel to retrieve the boots from the dumpster plastic them in a place bag. Pressler this gave bag police Braidwood officer Keith Kemp, who testified that the boots were soaked” “water but good condition when he received them. County Brady Bertrand,

Kankakee Sheriff Deputy the police officer to watch at assigned motel, testified that he place also observed defendant away drive and then dumpster in the motel of boots

pair Chevy Spectrum. or gray in light the motel a blue from Dam. Wilmington to the followed defendant Bertrand Wil- that at the he was Treadman William testified 10. Defendant on August Dam around 9 a.m. mington had Treadman and asked whether Treadman approached responded Dam before. Treadman fishing him at the seen not. he had came that, trial after police Buss at explained David had defendant 9, on he contacted August to his house night him the at a motel around spend advised to and in Dam the Dam, people to at the Wilmington speak the 7, and “verify August to his whereabouts” on morning in to police. turn himself the the Dam on After and defendant arrived at Bertrand Three of joined four other officers Bertrand. August Rich officers, Gary Mitchell, Detective those Lieutenant defen- Larry Osenga, Sims, approached and Lieutenant they Mitchell identified himself told defendant dant. nervous, to him. Defendant speak appeared wanted circles, make with eye and did not contact walked to take a addition, attempted when Sims officers. him, away put turned face of defendant his picture hands to shield his face. up his officers, defendant then request police

At the of the Two officers ac- department. drove his car the sheriffs in their to the sheriffs companied department defendant lot his car parking Defendant in the parked own cars. inside, he had department. police While was sheriffs parking similar cars to the company a other towing bring if they lot, police potential which asked witnesses after in the lot. That any cars recognized parking of the attorney, his afternoon, consulting after with of his car. Defendant to the search writing consented arrested on 1995. August was County on found in body was Will Christopher’s August 15, 1995. Will County Sheriffs Deputy Scott Swearengen testified that he and another deputy were searching hunting areas the Kankakee State Park during early morning hours of 15. In August a clear- ing at the end of a from path leading parking area of 7, they Area Hunting found the body of small child in a grave shallow under sheet of plywood.

Forensic presented evidence the State established the body was that of and that Christopher he had from multiple died stab wounds sunset prior August on Pavlik, 7. Dr. Edward an expert in forensic odontology, testified that he asked to assist identifying body recovered in Hunting Area 7. Based on the develop- ment of the teeth in the body and a of comparison these teeth to of teeth photographs Christopher’s before his death, Pavlik body determined that the belonged Christopher.

Dr. an Larry Blum, in expert pathology, forensic testi- fied that he performed the of autopsy Christopher’s body. body The signs was unclothed and of decomposi- showed Blum tion. found a contusion to Christopher’s jaw and 52 stab cuts on body, primarily wounds the to the chest, abdomen, opinion, and back. Blum’s stab and slash wounds were made a sharp, single-edged knife that relatively was and narrow. long This knife could have been filet was a knife. There also evidence that this had type of knife been cut Christopher’s used to area; genital his external genitalia missing. were None of wounds, Christopher’s one wound to including stab his heart and 12 to lungs, his was sufficient cause imme- diate opined death. Blum that the cause of death was multiple stab wounds. Haskell,

Neal explained a forensic entomologist, remains, certain insects are attracted to human some- death, within their in lay eggs times seconds these stage remains. on the of the development Based insects time of of the estimation precise corpse, found in a the insects analyzed Haskell be obtained. may death as well as body, Christopher’s from recovered had been body to which conditions environmental death was most the time of He concluded subjected. 7. August sunset on before likely sometime connected forensic evidence Other Hartman, a Kankakee Randy murder. Christopher’s technician, helped and evidence detective County police to the consented car after defendant defendant’s process placed the car and that he vacuumed He testified search. floor of the On the bags. sealed the collected debris with and hammer backseat, found a bucket Hartman in the fishing poles There on the claw. were mud caked There was in the trunk. and a tackle box back window did contain box, but the box knife in this tackle no filet hook. sinkers, fishing water lures, and a salt various trunk, as as on of the well carpet on the There was blood wrench, puller, dent trunk, lug such as items and bottle. as apartment, also searched police

The In the motel B and P Motel. room at the well as his name of receipt a motel with found dumpster, police apart- knife found on No filet Jim Benson it. ment or at the motel. the Illinois microscopist a forensic Meyer,

Ralph he Lab, testified Forensic Science State Police from car and from defendant’s recovered analyzed hairs 10. He Area Hunting in fragment found the T-shirt from body and Christopher’s from hair samples obtained two hairs of that the characteristics He stated defendant. area of defendant’s passenger from the front recovered hair, Christopher’s of matched the characteristics car pigment. of structure in terms unique which fragment the T-shirt found on of a hair Characteristics hair. Christopher’s those of also matched Kenneth Knight, forensic scientist with the Illinois State Police Crime Lab and an expert forensic micros- copy, testified that he analyzed soil recovered from the claw of the hammer found in defendant’s car and soil from the grave site. He found that these soil samples were consistent with each other. Hunton,

Robert a forensic scientist with the Illinois State Police and an expert marks, in foot testified that he compared a partial footprint found grave at the site to the boots defendant discarded B at the and P Motel. The pattern and size of the right boot was the same as the footprint. Kienast,

Gail a forensic scientist at the Illinois State Bureau of Forensic Sciences and an expert serology analysis, blood testified that analyzed she items recovered by police this case. She determined there was human blood on the dent found in puller trunk of defendant’s car. On from the carpet trunk there was a stain of human blood that had soaked through carpet. There was human blood on a box found at the grave site. There was also blood on the boots defendant placed had in the motel dumpster, although test determine whether this blood was human was not posi- tive. Frank,

William the DNA Research Coordinator the Illinois State Police Forensic Sciences Command and acid) an expert in forensic (deoxyribonucleic DNA analy- sis, testified that he analyzed DNA extracted from an inhaler prescribed for from Christopher, carpet from the trunk car, of defendant’s from a piece Christopher’s femur, right and from a bloodstained box found at the grave site. Frank used two methods of analysis: DNA reaction) (restriction PCR (polymerase chain and RFLP fragment length polymorphism). Each of these methods is used to identify particular characteristics of a given sample DNA. Those characteristics are referred to as anal- method of Because each of that DNA. the “profile” characteristics, different PCR and identifies ysis, RFLR subjecting sample are obtained profiles two different analysis, of types of DNA to both DNA found analyze PCR method to Frank used the femur, profile The PCR inhaler, and box. carpet, on the Frank the same. each of these items was of the DNA from could be found profile DNA particular calculated that this individuals. 19,000 in one out of Caucasian method, is more discriminat- the RFLP which Using from samples DNA blood Frank the ing, compared in blood to the DNA and defendant Christopher’s parents (Because of the amount carpet. found on the box and inhaler and femur from Christopher’s DNA extracted Frank analysis, for the RFLP method was insufficient to determine Christopher’s parents used DNA from belonged and carpet the blood from the box whether obtained, he By profiles the DNA Christopher.) comparing and the that the blood on the box Frank determined Mika Moulton and James from a child of came carpet that Frank calculated Sr., father. Meyer, Christopher’s a child producing parents the chance of two Caucasian the DNA found on RFLP DNA as profile with the same million. was one out of 3.8 carpet box for the profile a PCR and an RFLP Having obtained Frank estimated then carpet, DNA found on box in the profiles of these of DNA with both frequency with such DNA person He determined that population. 1 out of only Caucasian population occur would 419 million times. years defendant was 28 parties stipulated

The time of trial. old at the of three wit- testimony presented

The defense time around the they believed saw nesses who effort to show In an Christopher’s disappearance. unreliable, are identifications eyewitness such defense then called witnesses testimony whose indicated that defendant was not the individual these three wit- nesses saw. For example, Kankakee County Deputy Sheriff Marcia Dillon that, testified while she was work- ing at the search command center August a.m., on 8 at 6 she saw a man resembling composite sketch police had distributed. The man drove into the command center lot in a parking blue-gray, early eighties Buick, model or Chevy, Oldsmobile. Dillon could not positively identify

defendant as the driver and testified that defendant’s car was not the car she saw that morning.

Cindy Berglund that, testified around 1 on p.m. 8, August she at a pond was a half hour from Kankakee with her 13-year-old son, Berglund. David A man driving Chevy silver-blue exited his car and began talking her son. seeing After picture defendant’s in the newspa- she per, believed that the man she saw talking to her son defendant, was and she contacted police. David Berglund testified that the man talked to him about Both fishing. Berglunds that, testified if the they man saw was not de- fendant, he was defendant’s twin. Neither Berglund, however, was able identify the car they saw from the of group police cars showed them.

In contradiction to Dillon’s and Berglund’s testimony, Cash, Michelle one of neighbors, defendant’s testified that her children did not awaken defendant until 10 a.m. August addition, on 8. In that, Cash testified between 10:30 2 p.m. a.m. and on August defendant was with her running errands.

Like Berglund, Francis Wood testified that she was at a lake near Wilmington grandchildren with her at about 7:30 or 8:30 p.m. 5, 1995, on August when a man ap- proached her grandson and to him spoke fishing. about He was an driving eighties model dark-gray automobile with a dent on the driver’s side. She contacted police about the incident after seeing picture defendant on television. She testified that she believed the man was aunt, however, defendant. father and testi- Defendant’s fied that defendant at his sister’s wedding recep- tion on 5 from 2 to 10:30 August p.m. addition, testimony to rebut Fancher’s that she defendant driving Hunting

saw near Area 7 on the eve- August Buss, ning grandmother, Alice testified that defendant was her in with Kankakee that from 6 to 10 evening p.m. p.m. sought

Defendant to further undermine the identifi- him by cations of the State’s by presenting witnesses testimony of witnesses who thought they may have seen defendant and Christopher together but who were un- able identify at For lineups. example, Thomas that, Dellibac testified on August 7 at around 5:30 he p.m., saw a boy a man on fishing Kankakee River 50 to yards downriver from the Aroma Park boat launch. boy The resembled Christopher and the man looked similar to defendant. Dellibac could not, however, positively identify anyone in the lineup po- lice showed him.

Similarly, that, Steven Jones testified around 4:30 p.m. 7, 1995, on August he saw a man and a blond-haired boy a car leaving a bn playground the Kankakee River in Aroma Park. The car was at a traveling high rate of speed, and there was a bicycle 20-inch in the Al- trunk. though he first tentatively selected defendant from a he saw in lineup October he was unable to posi- tively the identify driver of the car.

To show that defendant was not the only man Aroma Park to have recently arrived from Florida around the time of Christopher’s murder, defendant also pre- sented the testimony of Michael Ingalls, who testified that, around noon on he August had a conversation with a man in Harry’s Bait Shop Aroma Park. The man said that he had driven to Illinois from Florida. The mid-forties, had black hair in his late thirties to man was mustache, a white car. driving compact and was and evidence, jury found defendant hearing After this The jury him. same charges against of all of the guilty on penalty for the death based eligible found defendant (1) de statutory three factors: following aggravating or more murdering two fendant had been convicted 1(b)(3) (West (2) (720 1994)); ILCS individuals 5/9 — (720 ILCS felony in the of a murder occurred course 5/9— (3) 1(b)(6) (West 1994)); and the murder victim was death resulted from excep under the and his age indicative of wanton brutal or heinous behavior tionally 1(b)(7) (West 1994)). (720 Following a ILCS cruelty 5/9 — ag testimony concerning at extensive hearing which found jury mitigation presented, was gravation sufficient were no factors mitigating there The circuit death penalty. of the preclude imposition (intentional I first on counts judgment court entered X (ag murder), (aggravated kidnapping), VIII degree restraint) indictment. The court unlawful of the gravated murder degree to death for the first sentenced years’ imprison sentences of 30 imposed conviction and and five conviction kidnapping ment for the aggravated re unlawful aggravated years’ imprisonment straint conviction.

ANALYSIS Jury I. Selection by the that the voir dire conducted Defendant claims as a respects, in several in this case was deficient court to a fair and right he denied his of which result fourteenth amend- under the sixth and jury impartial (U.S. Const., Constitution ments to the United States (1) XIV). the court he contends: VI, Specifically, amends. by proposed questions to ask certain refusing erred in (2) refusing grant defense; the court erred defense requests jurors cause; that certain be excused for (3) manner which the court conducted voir dire denied him jury. a fair and impartial According to defendant, these errors require that he receive a new trial and sentencing hearing. A. Questions Voir Dire Refusal of Defense

Before voir began, dire the defense made a motion for attorney participation voir dire. The circuit court denied addition, this motion. In defendant provided the court with a number of questions for the court to include in its questioning venire, of the as well as a written questionnaire jurors. for the The court had provided the parties with the 23 questions it planned ask prospec- jurors, tive but the defense argued that the court’s ques- tions did not address subjects. certain The court refused to use questions defendant’s in voir dire and refused to require jurors to complete the defense questionnaire. The court found that its own questions covered the is- sues raised defendant, that questions proposed by de- fendant were an attempt to jurors “educate” the concern- ing position, and that defendant’s proposed questions concerned matters more appropriate instruction or argument. During dire, course of voir defendant asked the circuit court to reconsider its rul- ings on these voir issues, dire but the court refused. De- fendant argues now that the circuit court’s refusal to ask the questions he proposed violated his constitutional right to an impartial jury by preventing him from identifying unqualified jurors.

Under the fourteenth amendment to the United Constitution, States a defendant in a case capital has a to an right impartial jury for capital sentencing. Morgan v. Illinois, 719, U.S. 492, 501, 119 L. Ed. 2d S. (1992); Ct. 2228-29 Const., U.S. amend. XIV This constitutional guarantee includes the right to an adequate voir dire to permit the identification of unqual- 176 729, L. 2d at U.S. at 119 Ed. jurors. Morgan,

ified 504 dire voir should 503, Accordingly, 112 S. Ct. at 2230. prospective information about “ascertain sufficient removal of so as to allow jurors’ opinions beliefs and minds are so closed members of the venire whose those the law as they apply cannot by prejudice.that bias Clou People oath.” v. in accordance with their instructed (1993). 483, 496 tier, 156 Ill. 2d - jury to an Illinois, right impartial a defendant’s himself. jurors to examine right include the does not (1993). Instead, Ill. 2d 459 Peeples, v. 155 People for examin primary responsibility circuit court has the of voir scope the manner and jurors, and ing prospective Williams, Ill. 164 its discretion. dire is within (1994). by employed as the long procedures 2d So that a reasonable assurance court provide circuit exercise discovered, the court’s any, if would be prejudice, Ill. 2d at 459. upheld. Peeples, will be discretion Mitigation Consideration of Questions Concerning 1. for the circuit it was error contends Defendant he jurors questions ask prospective court to refuse to weigh ability their to consider concerning submitted defendant, as a result According evidence. mitigating he was questions, to ask these of the court’s refusal challenges his exercising intelligently from prevented jury. and impartial and denied a fair refusal to ask the circuit court’s We first address the defense: by submitted following questions two degree of first mur- proves guilty Mr. Buss “If the State doubt, proves he is and also beyond a reasonable der as to hearing will be held penalty, death eligible for the dies, you would hear evidence or where whether he lives (mitigation). him and for against (aggravation) him both considering open mind you keep an Would be able question?” this degree mur- guilty of first proves Mr. Buss

“If the State is doubt, proves he and also beyond a reasonable der eligible penalty, your for the feelings death are such that mitigating there are no you factors which feel should prevent imposition penalty?” of the death The circuit court refused to ask the venire these ques- tions because it found that its own questions covered these The concepts. however, defendant argues, court’s questions were general and did not cover the three stages of a death penalty case or the jurors’ ability to consider mitigating evidence. argument

Defendant’s is belied the record. Before questioning prospective jurors about their views on penalty, death the circuit court explained to the ve- nire the three phases of a death penalty case and cautioned the venire not to infer from its discussion of the penalty death that the defendant was guilty or that a particular penalty was appropriate. addition, during dire, voir the circuit court posed the following questions to the venire: your

“Are feelings about the death penalty such that you always would impose vote to penalty the death in every case where there finding has been a guilty?” of you

“Will be keep open able to an mind and follow the court’s instructions in phase each of proceeding?” this you

“Do understand simply that because a verdict of guilty charge of the Christopher Meyer murder of is returned, if in fact returned, such a verdict is that a sentence of death does not automatically follow from that?” Our review of the record convinces us that concepts contained in defendant’s proposed questions were more than adequately by covered the circuit court’s statements to the venire and its own questions. We are unable to perceive what incremental value defendant’s questions would have had. Consequently, we find that the circuit court did not err in refusing to ask proffered questions. See Peeples, 155 Ill. 2d at 460-62 (circuit court did not err in refusing voir dire questions proposed by the defense when court’s general questions bias). were sufficient to expose areas of Defendant also that the circuit court’s failure asserts other he jury to ask these caused questions proposed constitutionally inadequate: to be selection you counting “Do that it is not a question understand many aggravating may try circumstances to how the State present many mitigating versus circumstances how may try present?” Defense you any one “Do understand existence of outweigh mitigating aggravat- could of the circumstance all ing circumstances?” you ‘mitigate’:

“Do the term —it means to understand severe?” make less you any mitigating to consider factors

“Would be able by you presented a. Would able to consider defense? be testimony? give weight psychiatric/psychological full you mercy possible mitigating as a fac- b. Would consider tor, upon based the evidence?” to ask on questions The circuit court refused these they covered its own adequately the basis were or matters more questions appropriate involved occasion, On more argument. instructions or than one *** defense, “I court commented to the think the circuit these are here is to educate you doing attempting what you your direction want case jurors regard with to the in.” go observed, the circuit these four as questions,

As court should well as the other contends questions venire, attempt by asked of indicate an have been mitigation to focus the of the venire on defense attention entitled Although argues that he was evidence. against venire to determine whether the was biased voir dire is not to be mercy, evidence or psychological impanel jury or to with jurors used to indoctrinate Bowel, v. People 111 Ill. 2d predisposition.” “particular (1986). 58, 431, and

Moreover, under Court Rules 234 Supreme indirectly voir dire directly not or questions “shall R. 134 Ill. 2d matters of law or instructions.” concern 234; Jury also 134 2d R. 431. Illinois see Ill. The Pattern (IPI) in provide “[u]nder Instructions used this case that the if law, you the defendant shall be sentenced to death unanimously find that there are no factors mitigating to of a preclude imposition sufficient death sentence” “ factors reasons defen [mjitigating why are the dant should not be sentenced to death.” See Illinois Pat (3d Instructions, Jury Criminal, 7C.05, tern Nos. 7C.06 (hereinafter 1992) 3d). ed. IPI By seeking Criminal to jury inform the to weigh mitigating how evidence and how to define the term “mitigate,” defendant’s proposed undoubtedly questions involved “matters of law or (134 instructions” in violation of Rules and 431 Ill. 431). 2d Rs. Accordingly, the circuit court acted properly denying request to ask these questions.

Defendant’s reliance on this court’s decision in Stack, 112 (1986), v. authority Ill. 2d 301 as prop for the osition the circuit required court was to ask members of the venire they whether would psy consider or chiatric psychological testimony mercy is mis Stack, placed. this court held it that was error for the to circuit court refuse to ask of the members venire about their feelings concerning insanity. the defense of The Stack court reasoned: “Just as the State is allowed to probe the venire jurors who would not the follow law punishment, capital defendant should be allowed identify and challenge those prospective jurors who would refuse to statutory follow the law of insanity Stack, defense.” 112 Ill. 2d at 313.

Contrary to defendant’s argument, holding Stack not require did at circuit court the case bar jurors concerning ask about bias evi psychological mercy. dence or While it is appropriate ask prospective jurors they (see, whether will follow law e.g., People Davis, (1983)), 95 Ill. 2d 17-18 of voir purpose 180 is with jurors’ opinions

dire not to ascertain prospective (see v. to at trial respect presented to evidence be (1991) (circuit Howard, did 103, Ill. 2d 135-36 court 147 jurors not err in to ask their attitudes about refusing it was error for the circuit handguns)). Accordingly, while they in to whether prospective jurors court Stack not ask defense, it was not er apply statutory would refuse to a to ror for court in this case to refuse ascertain the circuit theory of defense jurors’ views on defendant’s prospective (circuit (see Bowel, properly 111 Ill. 2d at 65 court to selecting jury receptive refused aimed at questions defense). theory Questions of the Death Concerning Imposition

2.

Penalty in Circumstances Particular In questions concerning pro- addition to requesting evidence, defendant views on spective jurors’ mitigating ve- that the circuit court ask members requested the death they automatically impose nire whether would statutory they aggravating if found that certain penalty argues factors in the case. Defendant now present were questions to the circuit court’s refusal use these sentencing. for right impartial jury denied him his to an States Court deci- Supreme Pursuant United 510, n.21, 20 Illinois, in v. 391 522 Witherspoon sion U.S. (1968), 1770, n.21 776, n.21, 88 S. Ct. 1777 L. Ed. 2d prospective jurors for cause the State is entitled excuse under penalty refuse to vote for death who would Witt, 469 U.S. See also v. any Wainwright circumstance. 844, 841, 849-51, 105 S. Ct. 412, 420-23, 83 L. Ed. 2d (1985). U.S. 119 L. Illinois, Morgan 850-51 (1992), Ct. 2222 Court held that Ed. 2d 112 S. right has a constitutional corresponding may for is, a defendant exclude “life-qualify” jury; automatically vote jurors who would prospective cause Court every case. The capital for the penalty death Morgan: explained juror automatically

“A who will vote the death penalty every good case will fail in faith to consider the aggravating mitigating evidence of circumstances as Indeed, require the instructions him to do. because such a juror already merits, opinion has formed an on presence aggravating or absence of either mitigating or cir- entirely Therefore, cumstances juror. is irrelevant to such a requirement impartiality based on the of in embodied the Amendment, Due Process Clause of the Fourteenth a capital may defendant challenge any prospective for cause Morgan, juror who maintains such views.” 504 U.S. at 502-03, 119 L. Ed. 2d at 112 S. Ct. at 2229-30.

To permit identify jurors with these views and intelligently cause, exercise his challenges for Morgan Court held that a defendant is entitled to have prospective jurors asked whether they would vote for the death in penalty every case involving a conviction for a capital offense, regardless of the circumstances of the case. Morgan, 735-36, 504 U.S. at 119 L. Ed. 2d at 506- 07, 112 S. Ct. at 2233.

As required by Morgan, the circuit in court this case “reverse-Witherspoon” its voir included in question dire alia, inter It asked inquiry. jurors, prospective “Are your feelings about the death penalty you such that would vote always the death impose penalty every murder case where there has been a finding guilt.” Morgan, Finding this question sufficient to comply with the circuit rejected court request to ask these additional questions: you impose

“Would penalty death in all murder cases?” you impose penalty

“Would the death in all murder cases where the deceased was also a child?” you impose penalty

“Would death all murder cases kidnaping which involved the and death of a child?” you impose penalty “Would the death in all murder cases (12) years age which involved a child under twelve brutal and heinous exceptionally death from resulted cruelty?” indicative of wanton behavior previously you person if a has been “Do believe guilty of first murder of a child and is found convicted of child, person that such should degree murder of another automatically penalty? receive the death (a) you strongly? that a belief hold Is

(b) change your mind? it be hard for someone to Would (c) next you jury, If on the would it be difficult or were you you tell to set to convince or impossible someone aside?” that view ; ruling. We find no error the court’s argument it error for the circuit that was Defendant’s questions dire in direct from voir is court to omit these holdings by this court. In recent conflict with several (1998), held that Jackson, 182 Ill. 2d 30 we prospec require Morgan the circuit court to ask does not automatically impose jurors they would tive whether involving particular aggravating penalty in a case death us, the Jackson, as in the case now before factors. jurors they prospective whether would circuit court asked directing impose court to the death a verdict “return finding guilty every penalty a of of in case there is where regardless of what the facts were of murder the offense you The defen Jackson, 182 Ill. 2d at 61. that heard?” requested court also ask that the circuit dant in Jackson “ you impose penalty in all the death venire, ‘Would ” person killed?’ than one murder cases where more “ penalty you impose in all murder the death and ‘Would ” Jackson, 182 Ill. 2d at 61. a child is killed?’ cases where court refused. The circuit properly denied the the circuit court

We held that questions request additional that it ask these defendant’s explained 61. We Jackson, 182 Ill. 2d at of the venire. Brown, 172 Ill. 2d in v. that, under our decisions (1995), (1996), People Hope, a 2d 1 168 Ill. jury “life-qualify” Morgan right a under jurors prospective right to have include the does not they automatically impose asked whether would death in a case certain fac penalty involving aggravating tors. In Brown and Hope, interpreted we as Morgan requiring jurors only they be asked whether would automatically vote for the death based on a penalty find Jackson, ing guilt of case. 182 Ill. 2d at 61- capital stated, 62. The Morgan holding, we is intended to permit discovery jurors to whom the presence mitigating or “ ” aggravating Jackson, factors is ‘entirely irrelevant.’ 59-60, 182 Ill. 2d at quoting Hope, 168 Ill. 2d at 29-30. “ Asking jurors whether they would ‘vote to impose given circumstances, death penalty, particular set of is ” thus not required Morgan.’ (Emphasis original.) Jackson, 59-60, 182 Ill. 2d at quoting 2d Hope, Ill. at 29-30.

Defendant presents us with precisely the same argu- rejected ment we in Jackson. The questions he argues erroneously were omitted from voir dire in his case are virtually identical to the ones at issue Jackson. Defen- dant presents us with no reason compelling to overturn Jackson, Brown, and Hope, and we decline to do so. Indeed, although Jackson was decided to the prior filing brief, of defendant’s reply he explain why fails to its hold- ing should not applied Jackson, be to his case. Under Brown, and Hope, circuit court’s refusal to ask the questions submitted by defendant was proper.

3. Question “Stand Alone” This court has recently rejected also another of defendant’s arguments regarding voir dire De- questions. fendant argues it was error for the circuit court refuse to ask prospective jurors this “In the question: event you are to consider penalty] [the death question, you would have to unanimously vote for death. But if any you death, one of were against you could so vote alone and the entire stop proceeding. you Would be able to stand alone in way?” this in (Emphasis original.) The on the basis question

circuit court refused to ask this by covered the court’s instruc- its substance was already planned and the the court to ask questions tions the venire. required

Defendant that the circuit court was argues in dire in to include his “stand alone” its voir question Zehr, in under this court’s decision quiry (1984). Zehr, held that the circuit Ill. 2d 472 this court to have request court erred when it refused a defendant’s jurors they asked whether understood prospective innocent. This court presumed defendant was stated: opinion qualification that essential to the “We are of the they know that a defen jurors a criminal case is that innocent, presumed required is that he is not to offer dant behalf, proved that he must be any evidence his own doubt, failure to guilty beyond a reasonable and that his against be held him. If a testify in his own behalf cannot juror against any guarantees, of these basic prejudice has a given the end of the trial will have little an instruction at Zehr, curative effect.” 103 Ill. 2d at 477. question this court held that a reasoning,

Based on this of innocence was concerning presumption required. Zehr, 103 Ill. 2d at 477.1 Zehr, that it was error for

Under defendant contends jurors refuse to ask prospective the circuit court voting against alone in they whether could stand unanimity require He asserts that penalty. death Code of the Criminal 1(g) ment contained section 9 — (720 (West 1994)), to capital is as essential 1(g) ILCS 5/9 — of innocence as the sentencing proceedings presumption defendant, According “[a] proceedings. is to trial conscience could not follow his own juror who capital and after due delibera- jurors other challenged when 1, May Supreme Rule effective 1 An Court amendment prospective court ask requirement that the circuit added the guarantees. Ill. 2d R. 431. jurors See 177 their views on these basic tion is a conscienceless cannot follow the law juror who juror or oath. is not impartial.” his Such rejected virtually We identical in arguments (1998). Macri, Ill. 2d 1 We held that the circuit court in that case did not err in to ask refusing prospective jurors three their questions concerning ability to vote in against penalty remaining the death the event jurors Maori, voted otherwise. In this acknowledged we jurors court’s Zehr that should be holding prospective determine, alia, examined to inter the existence of preju against innocence, dice the standard presumption right and the of a defendant not to proof, testify. We however, explained, that the “stand alone” questions by the proposed defendant did not involve these basic were, guarantees therefore, not required by Zehr. Macri, 185 Ill. 2d at 38.

We further concluded in Macri the defendant’s questions involved appropriately matters more covered by jury that, instructions. We found at eligibility both the and penalty phases of the sentencing hearing, jury was adequately informed about the unanimity require Thus, ment. the circuit court’s refusal to ask the “stand alone” questions proposed by the defendant did not deprive the defendant Macri, of his constitutional rights. 185 Ill. 2d at 38.

Our holding Macri requires reject we defen dant’s argument that the circuit court erred in refusing to ask members of the his proposed venire “stand alone” The question. refused at issue in questions Macri were essentially the same as the on one which defendant this case his case, Maori, bases claim of error. In this as in jurors were given clear instructions concerning unanimity Macri, Under requirement. we find no error in the circuit jurors court’s refusal to ask prospective defendant’s “stand alone” question. B. Denial Challenges Cause of Defense

Next, defendant argues that the circuit court erred Laurie by refusing requests venirepersons his to have Marcinkowski, Morse, Raysel, Rhonda Marsha Irene Smeets, Jeanette and John excused for Keagle, Roop that, cause. Defendant asserts because the circuit court challenges denied his for cause these improperly he forced to use his jurors, peremptory challenges result, contends, remove them. As a he he exhausted his and was unable to strike venire- peremptory challenges whose voir dire Peterik, Michael person responses sug- that he would be unfavorable to the defense. gested Marcinkowski, respect Raysel, Keagle, With Smeets, challenges defendant claims that his Roop, granted for cause should have been because these venire- that, a in a persons upon finding guilt capital indicated case, regard would the death without they impose penalty the circuit to the facts of the case. After court specific cause, for he excused these challenges denied jurors challenges. his using peremptory give

The United and Illinois Constitutions a States a that can and right jury defendant to be tried the evidence solely will decide his or her case based on (1997). v. presented. People Olinger, 326, 176 Ill. 2d 353 Illinois, v. 719, L. Ed. 2d Morgan Under 504 U.S. 119 2222 has the to 492, (1992), right 112 S. Ct. a defendant if that juror juror a for cause would challenge potential conviction automatically penalty upon the death impose v. 1, People Hope, 168 Ill. 2d 29 a case. See also capital (1995). juror “A who will Morgan explained: The Court case every for the death automatically penalty vote of aggravat fail in faith to consider the evidence good will as the instructions ing mitigating and circumstances 729, Morgan, U.S. at 119 L. Ed. him to do.” 504 require 502-03, Permitting juror 112 2229-30. a 2d at S. Ct. at due jury to on the would violate with these views serve 2d at 502- Morgan, 504 U.S. 729, at 119 L. Ed. process. 03, 112 S. Ct. at 2229-30. is in “the best to observe position

The circuit court ascertain the mean juror’s demeanor and potential Williams, 173 Ill. 2d People of his or her remarks.” v. ing (1996). is, therefore, It the sound discretion within to determine a permit the circuit court whether Gilliam, for cause. 172 Ill. 2d challenge (1996). record, Based on our examination of the we cannot conclude that the circuit court its discre abused challenges tion when it denied defendant’s for cause. 1. Raysel Rhonda One of the should prospective jurors argues have Raysel. been excluded for cause is Rhonda When Raysel asked about her views on the death penalty, stated: “How I feel is if a or are person persons involved crime, that, if they mind, are in their right basically, *** from knowing right wrong, doing like a —did life, senseless crime I they where it did take a think give should one.” In her responses subsequent ques- *** tions, stated, she “I just believe if did they [t]hat totally senseless, something they then should really pay *** *** that,” “Basically, if the really crime is *** terrible crime they where know from I right wrong, they believe that should pay for that.” In making cause, his challenge for defendant argued that these responses Raysel indicated that impose would penalty death without regard mitigating evidence. In reviewing a circuit court’s on a ruling challenge for cause, however, juror’s dire voir examination must be in entirety. Williams, considered its 173 Ill. 2d at 67. While a prospective juror may be removed for cause when that person’s prevent substantially would or “views impair performance juror” of his duties as a (People (1998)), v. 183 Ill. Armstrong, 2d an equivocal response does not that a require juror be excused for 67). (Williams, cause 173 Ill. 2d at In addition to the described responses previously, Raysel stated voir dire that she would not vote to during Also, in penalty every response the death case. impose the court asked at defendant’s follow-up questions ac request, Raysel said that she would decide case cording regardless to the law and the evidence and of her the death In of this concerning penalty. light own beliefs Raysel’s views, clarification of the circuit court did not its discretion that she could be fair by concluding abuse (1995) Keene, See 169 Ill. 2d impartial. (no deny of discretion to for cause to challenge abuse juror initially who indicated that he would prospective on a impose penalty finding vote to the death based guilt; fully explained sentencing after the court more he for the death process, only he stated that would vote case). in an penalty appropriate 2. Marsha Marcinkowski reasons, reject arguments For similar we defendant’s for deny challenges pro- it was error to his cause “I juror Marcinkowski. Marcinkowski stated: spective there, if a and the is I don’t person guilty feel is evidence I The any give see reason wouldn’t a death why penalty.” separate circuit court asked her three times whether she in all murder impose penalty would the death cases After some guilty expressing which there was verdict. confusion with to the Marcinkowski respect question, affirmatively Subsequently, answered this once. question addition, it two times. In negatively she answered her ad- request court it ask granted her clarifying ditional views. questions purposes Marcinkowski response supplemental questions, to these penalty her with to the death respect stated that beliefs her of evidence would not interfere with consideration the case. equivocal that Marcinkowski’s suggests

Defendant for cause or required answers her to be excused required court. We'dis- clarification of her views further voir responses explained, equivocal As we have agree. be juror a prospective not require dire do questions at 67. The record Williams, 173 Ill. 2d See excused. response one affirmative Marcinkowski’s indicates that “reverse-Witherspoon” question circuit court’s to the re of her The remainder the result of confusion. mitigating consider indicate that she would sponses in a sentencing in evidence aggravating (1995) 168 Ill. 2d 31-32 Hope, case. See capital (denial not an abuse for cause was challenge of defense context, juror indicated when, prospective in of discretion impair would not penalty that her about the death views Thus, no fur juror). of her duties as a performance necessary, and it was of her views was explanation ther the court to refuse to not an of discretion for abuse excuse her for cause. Keagle

3. Irene refusing the circuit court did not err Similarly, or in Keagle refusing excuse for cause venireperson further. that the court her request question on feelings penalty, When asked about her the death murder, did commit then “[I]f stated: someone Keagle if When they they’re guilty.” do the death penalty deserve every to death in asked if she would sentence a defendant for first involving guilty degree case verdict capital later murder, initially “yes.” explained, said She Keagle whether the death however, that it was her view that on depend in such a case would was warranted penalty stated, “Well, like For she example, the circumstances. maybe it was someone adult, an like it’s an adult where themselves, if like that something happened protecting the death maybe penalty, then I think twice about would if I feel the death penalty but an adult towards a child stated, She also guilty apply.” is would person not interfere with her however, that her attitude would instructions, to follow the court’s ability impartial, to be of the case. an mind at each keep open phase and to We agree that, with the circuit court some although what equivocal, Keagle’s responses demonstrated she would not impose the death penalty every case. Her statement that she believed the penalty death would be appropriate cases in which an adult murders a child only was an example of those circumstances under which she believed the death penalty was appropriate. Further more, she her expressed ability and to willingness decide the case according to the evidence presented and regard less of her personal views. Given responses, these it was for the unnecessary circuit court to further examine this prospective juror, and the circuit court properly denied cause. See Hope, 168 Ill. 2d at defendant’s for challenge 31-32.

4. Jeanette Smeets Defendant also asserts that it was error for the circuit court to refuse his for request follow-up questioning Smeets and to deny his to her for challenge cause. When asked about her feelings about the death penalty, Smeets stated that eye she believed in “an eye.” an She however, explained, that her attitude toward the death penalty would not prevent her from being impartial that she would not impose the death in penalty every case because she would “have to hear the facts.” The circuit court denied request for additional questioning on these views.

Pursuant to defendant’s the circuit request, court did, however, ask Smeets additional questions to deter- whether, mine given what she had already learned concerning case, the she presume could defendant in- that, nocent. Smeets had stated based on what she had case, heard and read about she believed defendant probably guilty was but that she could judge the case based on the presented facts the courtroom. In addi- tion, of her one Smeets responses, expressed opinion that it would be “nice” if defendant were understood that she his innocence but prove to required this. to do required he not was respect with abuse of discretion find no We reverse any further engage refusal to circuit court’s or its refusal of Smeets Witherspoon questioning court the circuit agree cause. We with Smeets for excuse indicated adequately dire responses voir that Smeets’ the death penalty believed that, generally she although not murder, impose she would in cases of appropriate addition, Smeets indicated while every it in case. based guilt as to defendant’s opinion had formed an she courtroom, outside the she she received on information aside, this presume that she could set stated based on the evidence innocent, and make her decision Coleman, 168 People v. in the courtroom. See presented (a (1995) publicity juror’s exposure Ill. 2d as long so require disqualification a case does not about and base about case juror opinions can set aside The circuit court presented). her decision on evidence substantially impair not views would found Smeets’ and, the record and the juror, given as a her performance her responses to evaluate superior position circuit court’s (see (1997)), 2d we Hickey, v. 178 Ill. People decline to overturn its determination. Roop

5. John to the respect error with Defendant also asserts venireperson Roop to excuse circuit court’s refusal dire, “pretty that he had voir stated During Roop cause. He also the death penalty. in favor of strong” feelings he not such that stated, however, feelings that his were every case the death impose penalty would vote to murder. degree a conviction for first which there was on his views addition, that, personal he despite stated impartial be fair and he could capital punishment, death penalty. deciding impose whether heard that, on what he had also indicated based Roop “probably case, about the he believed defendant was guilty,” ability and that this information had affected his presume Upon question to ing, defendant innocent. further Hoop

however, stated that he believed he could set presume aside what he had heard and defendant in opportunity nocent. The circuit court had the to view Hoop’s during demeanor voir dire and assess his cred ibility meaning responses. and the of his Based on the record, we find that the circuit court’s denial of the challenge against defense for cause was not the manifest weight of the Coleman, evidence. See 168 Ill. 2d at 546- 47.

6. Laura Morse objections previous While defendant’s to the five jurors capital punishment, concerned their views on de- challenged venireperson fendant Morse for cause because County deputy she was married to a Will sheriff. Accord- ing improperly to defendant, the circuit court refused to permitted excuse Morse for cause because it the State’s challenges jurors relationships. During with similar dire, voir Morse stated that her husband was a Will County deputy prevent sheriff but that this would not being impartial juror her from a fair and and that she opinions guilt. had formed no about defendant’s She also informed the circuit court that her had husband no involvement in defendant’s case and that she would not discuss the case with him. responses despite that,

These indicate her relation ship employee department to an of the sheriffs in county Christopher’s body where found, Morse could impartial juror. serve as a fair and We hold that the denying circuit court did not abuse its discretion in challenge for cause to Morse. See (1992) (the App. Buie, 238 Ill. 3d circuit court properly challenge juror denied the defendant’s to a who although good police that, stated she awas friend of a of- it case and investigating department ficer in the could his she opinion, to listen to difficult not would be Johnson, also juror); as a see honor her oath (1992) (circuit not err court did 2d 136-38 149 Ill. brothers-in- whose juror a prospective to excuse refusing officers). police law were for the however, that it was unfair argues,

Defendant Morse, excuse yet challenge his court to refuse circuit Dur Michalak. and Sharon Albert Powell venirepersons clothing at a Powell, a salesman dire, voir Albert ing at one of defendant’s he had known store, stated that attorney had been torneys years for because peremp one of its of his. The State exercised customer jury. from the Subse to exclude Powell tory challenges peremptory to the State’s objected the defense quently, Bat it violated on the basis that against Powell challenge 69, 106 S. Ct. 79, 90 L. Ed. 2d 476 U.S. Kentucky, son v. (1986). challenged that it had responded The State defense counsel. relationship of his with Powell because Batson motion. court denied defendant’s The circuit that she worked jury selection during Michalak stated at the school where principal as an associate that this relation- a teacher and worked as stepmother consideration of the evi- a factor her ship play would the court responses, on these dence in the case. Based Michalak for cause. to excuse motion granted the State’s court’s the circuit disagree We with light cause was unfair Morse for refusal to excuse to excuse Powell the State permit decisions to the court’s matter, it is we believe As a preliminary and Michalak. the circuit court’s to compare for defendant improper deci- Morse to its against cause challenge on a ruling challenge a peremptory use of the State’s sion The standards violate Batson. Powell did not against different. entirely are determinations in these involved State, by for cause challenge evaluating 194

circuit court must determine whether the State has a juror shown that cannot be fair and impartial. See Williams, (1996). v. By contrast, 173 Ill. 2d Batson the deciding motion, circuit court determines whether the the only basis for State’s chal peremptory People Williams, lenge racially discriminatory. is See (1994). Thus, 164 Ill. 2d the circuit court’s denial of Batson defendant’s motion does not demonstrate that its refusal to excuse Morse for cause was unfair.

Defendant’s of the circuit comparison ruling court’s on the to challenge ruling defendant’s Morse with its on the challenge persuade State’s to Michalak also does not us by refusing that the court erred motion to defendant’s exclude for closely Morse cause. Michalak worked with a family member of and defendant stated that this rela- affect her of evidence in tionship would consideration the contrast, the case. no By Morse’s husband had involve- case, ment affirmatively the Morse stated that her employment husband’s would have no effect on her as a juror.

C. Conduct Voir Dire of dire, voir concerning In addition to these arguments that in which the claims the overall manner dire court conducted voir circuit resulted in the denial of his fair and right jury. constitutional to a De- impartial (1) questions fendant contends that the circuit court’s (2) the sufficiently were not court’s “open-ended,” (3) inadequate, were the court follow-up questions favored State in requests the granting follow-up ques- the voir dire result, contends, he tions. As a inade- quate. address objections type

We first to voir dire argues asked circuit court. He questions by many “yes” asked questions, the court too or “no” to of which was that the court failed elicit suf- result concerning jurors’ attitudes. ficient information leading court used that the circuit addition, he contends their to jurors change to induce follow-up questions defendant, to be jurors appeared According answers. answer. “right” court for the “reading” the ex- court should have Defendant asserts Our questions. felt with more jurors probing how plored record, the circuit however, indicates that review the infor- to elicit relevant questions court’s were sufficient most of possible respond mation. it was Although “yes” or “no” the court’s questions providing For answer, additional information. jurors provided often Pevion’s dur- responses Deborah example, venireperson nec- provided the information ing following colloquy for defense to her for cause: essary the excuse Now, you have heard

“THE would what read or COURT: require prove to himself the defendant innocent? well, Well, it’s

JUROR PEVION: I can’t understand — law, that, I the I to me like that a understand but feel any way— person present should himself in you THE And so feel that a then COURT: do prove charge required should to himself innocent of the be against him? Well, to himself prove

JUROR PEVION: not so much speak. but to any Okay. you against

THE hold it de- COURT: Would testify he in a fendant the fact that didn’t or she didn’t they charged trial the when were with crime? question.” JUROR PEVION:It would make me Also, juror during pre- not excused prospective each to narrative liminary questioning provide was required you to court’s “Can to us question, explain answer the your feelings imposition here in court are about the what generally Their responses gave of the death penalty?” For their toward this law. picture clear attitudes that, stated “As a Strenge Karl example, venireperson Christian, I difficult extremely I think would have an addition, time in favor of the death judging penalty.” court, by the questions circuit response follow-up Strenge say [my feelings against stated, “I would the ninety are] penalty probably percent strong. death I can say percent [szc] understanding I have a hundred or religious strong issue; of the for consideration but moral quite oppose.” reasons, I that, am assured of that I would Strenge Based on fact that the indicated that he could despite beliefs, follow the law circuit these court denied the State’s motion excuse him for cause.

Similarly, response question- circuit court’s ing feelings penalty venireperson about her on death eye eye. Laura Gunn stated: “I an an believe I’m sorry way but that’s the I in it. I in the believe believe penalty. penalty. I’m it, death for the I at death look person rights sorry, I had too. I’m that’s feel.” The how Gunn, court then “Are there asked circumstances under you penalty ap- which then that ply feel death wouldn’t replied, in the of a She case murder?” “Well person guilty, case of if I murder felt the then I would say yes penalty.” responses, for the death Based on these granted the circuit court defendant’s motion to excuse her for cause. examples illustrate,

As these the circuit court’s questioning prevent obtaining not did defendant from necessary concerning jurors’ information attitudes agree toward Nor do the law. we with defendant that the improperly record circuit demonstrates that the court jurors prospective “led” certain to a answer. “leading” questioning, of As evidence defendant cites venireperson Joseph the circuit of court’s examination Terlep. part, In relevant that examination was as fol- lows: Terlep, you

“THE Mr. can tell us what COURT: Now have, your feelings, feelings you any, if personal what regarding imposition penalty? of death Well, story. JUROR TERLEP: I like to hear the whole I nothing penalty. don’t about Death I like to know it. know is and I take it as being. what the truth how now, you you sit there you don’t—as So THE COURT: against the feelings for or any strong to have don’t seem penalty? death No, right. TERLEP: that’s JUROR murder he should be sentenced every case THE COURT: if *** Are your beliefs such ^[*] is found * * to death, guilty of that are those first you degree feel in your feelings? TERLEP: Yes.

JUROR * * * feelings about the death your And are THE COURT: always impose to you would vote penalty such that has been a every case where there penalty in murder death finding guilty? No, necessarily, not no. JUROR TERLEP: that you I think before indicated THE COURT: Now then? you way. you that Were confused did feel TERLEP: Somewhat. JUROR you penalty the death THE COURT: Do think every a defendant has been apply should to case where degree of first murder? convicted JUROR TERLEP: Yes. your feeling?

THE COURT: That’s feeling, yes. my TERLEP: That’s JUROR you feelings such that THE COURT: But are those every case and not follow always impose vote to it would the law? Oh, that’s no.”

JUROR TERLEP: he defendant, indicated that According Terlep to automatically penalty the death impose would vote that he murder “until he realized every degree first case satisfy the court.” say opposite was supposed court here plowed concludes that trial “[t]he Defendant every prospec- with questions the same 23 or so through qualify- chief having priority as its juror, apparently tive sacrificing the else, at the risk of the venire above all ing intel- fostering goal uncovering biases greater disagree. thereon.” We challenges exercise of based ligent convinces us of the record Our review merely “leading” as defendant describes questioning court by the circuit necessary attempt appropriate an clarify to the views of prospective jurors. Given Terlep’s statement that he did not have strong for feelings or against the death penalty and that he would to hear have story” “whole before determining whether the death penalty was appropriate case, a particular it was rea- sonable for the court to ask additional questions determine whether Terlep really intended to answer the court’s revers e-Witherspoon questions in the affirmative. Furthermore, his during examination by court, Ter- lep appeared to be confused due to the length court’s questions and due to his failure to pay attention to these questions. Indeed, the court asked at Terlep least once whether he understood the court’s question commented, also “I don’t if you know were listening here, to me so I’m going to ask you this question again.” Under these circumstances, we do not believe it was an abuse of discretion for the circuit court verify the cor- rectness of Terlep’s its revers e-Witherspoon responses questions. respect With to other prospective jurors whose examination defendant also claims was improperly “lead- ing,” we also find no error for similar reasons.

Next, we address the voir argument defendant’s that dire conducted the circuit court was inadequate because the circuit court did not ask sufficient follow-up questions of prospective jurors. Defendant asserts that the circuit court should have asked prospective jurors to elaborate on their responses to revers e-Witherspoon ques- tions. Specifically, he claims that the circuit court erred in refusing defense requests follow-up questions (1) concerning under what jurors circumstances would automatically impose the death penalty for first degree (2) murder and whether a juror would consider mitiga- tion evidence.

The arguments defendant makes with respect to the circuit court’s refusal to ask these follow-up questions, however, are essentially arguments same he makes ques- to include those court’s refusal to the respect

with we the same reasons voir dire. For in its general tions it was error for contention rejected defendant’s in its questions to include these to refuse circuit court argument reject we voir dire inquiry, questions asked these same court should have the circuit did ask. the court questions to the follow-up as a the circuit court con- also that argues Defendant granted manner it dire in an unfair because ducted voir while follow-up questioning, for requests the State’s of the defense. As evidence by similar denying requests dire of the court’s voir compares defendant practice, this Gunn, Sr., of Laura Boles, to that George venirepersons Af- Michalak, Douglas. and Keith Coleman, Sharon Todd jurors, of these we the court’s examination reviewing ter to be completely claim of favoritism find defendant’s merit. without dire, stated, “I don’t believe voir Boles

During vote for I don’t think I could—I couldn’t penalty. death to further anyone.” response questioning the death of that his were court, feelings the circuit Boles indicated conscience, signing not consider on his he could based circum- any to death verdict to sentence being him from stances, prevent and his views would the death impose with to whether impartial respect the circuit responses, definitive Because these penalty. follow-up questions denied defendant’s for request court his views aside and whether Boles could set to determine Boles for cause. the State’s motion to excuse granted states that he juror unequivocally A who prospective impose could not or could not follow the law and she may be excused any death under circumstances penalty (1997). 2d 296 v. 178 Ill. People Hickey, for cause. See not asked whether Here, although specifically Boles was law, clearly he and follow he could set aside his views and would not impartial he could not be indicated that impose the death penalty under any circumstances. Given statements, these the circuit court was not required him question further and properly granted the State’s motion for Brown, cause. See 2d Ill. (additional (1996) not inquiry required when prospective juror’s responses unambiguously indicated that she would never vote for the death penalty any under circumstance). asserts,

Defendant however, the denial of his request for follow-up questioning of Boles was unfair light of the circuit court’s decision grant the State’s for requests follow-up questioning of venirepersons Gunn, Coleman, Michalak, and Douglas. Our review of record, however, demonstrates that defendant’s comparisons are First, ill-chosen. the State made no request for follow-up questioning venirepersons Gunn and Coleman. The circuit court’s examination of these jurors, therefore, two does not support claim the circuit court unfairly denied defense requests for follow-up questions while granting State requests the same.

Second, although the circuit court did grant the State’s request for follow-up Michalak, questioning questions these involved the unique circumstance of this venireperson’s employment relationship with defendant’s stepmother. The circuit court’s decision to ask additional questions not, of Michalak therefore, is comparable to the court’s decision not to conduct a further inquiry of Boles.

Finally, respect with to venireperson Douglas, defen- dant agreed with the State that he should be questioned further regarding the effect of his employment on his jury Thus, service. the circuit grant court’s decision to request State’s such questioning does not demon- strate bias against defense.

As for his support argument that the manner in

201 him an voir dire denied the court conducted which on the heavily Supreme relies jury, defendant impartial Williams, 113 in Jersey decision State Court of New (1988). Contrary to defendant’s A.2d 1172 N.J. 550 that we grant does not assertions, require this decision hearing sentencing trial and capital new in the voir dire. on deficiencies based state, a court another by was decided Williams holding. to follow its and, therefore, obligated we are not the Teachers' Retire See Gorham v. Board Trustees of (1963). Indeed, we note ment 27 Ill. 2d System, inconsistent with the Jersey this New decision is The court held that it of this state. Williams precedent ask error for the trial court that case to refuse to was jurors they automatically impose whether would conviction, ag if penalty particular death for murder contrast, held By factors existed. this court has gravating required in several cases that the circuit court is not Jackson, ask See prospective jurors questions. such 59-60; Brown, 30-31; Hope, Ill. 2d at 172 Ill. 2d at 168 Ill. 2d at 29-30. persuasive

We find that Williams has limited value as Illinois authority, only not because it conflicts with these decisions, nature of fact-specific but also because of the court holding. example, the Williams For Williams the trial court criticized the voir dire conducted (1) bases, fail including that case on several the court’s (2) ure adequately open-ended questions use “correct” suggest court’s use of leading questions Williams, 408-45, 113 N.J. at jurors. answers to See respect juror, A.2d at to one the Wil 1179-1200. With questioning liams court found that the trial court’s concerning so of substance inadequate “[njothing from juror’s [the] death views is ascertainable penalty . A.2d at 1187 Williams, record.” 113 N.J. at the record in contrast, explained, as have By we the voir dire conducted defendant’s case indicates by the circuit court sufficient was to discover which ven were “so irepersons closed bias and prejudice that they apply [could not] the law as instructed in accor Hope, dance with their oath.” See 168 Ill. 2d at 30. Based on these factual distinctions and the differences between Jersey law, Illinois and New we disagree with defendant that Williams holding that voir dire supports inad equate this case.

After reviewing defendant’s concerning contentions voir dire and the record, we find no abuse of discretion by the circuit court with to respect jury selection and no denial of defendant’s constitutional right impartial to an jury. we Accordingly, refuse to order a new trial or capital sentencing hearing on this basis.

II. Pretrial and Trial Issues In addition to his assertions of error with to respect selection, jury defendant the following contends pre- trial and trial errors that he receive a require new trial: (1) the circuit court erred in denying his motion to quash (2) evidence; arrest and suppress the evidence was insuf- felony murder, ficient his convictions for support ag- gravated kidnapping, aggravated restraint; unlawful (3) his failing object counsel was ineffective (4) witnesses; certain testimony by one the State’s fact that leg defendant wore shackles denied him a fair (5) trial; and the admission of evidence concerning identity of the found at Area body Hunting as well as death, evidence of the time and cause of Christopher’s denied him a fair trial. Quash Suppress Motion to Arrest and Evidence

A. trial, Prior to filed a motion to his quash resulting arrest and evidence from that arrest. suppress After a the circuit denied mo- hearing, court tion. The circuit court found that defendant was not ar-

203 10, 1995, police on when p.m. August rested until 12:30 free to attorney that defendant was not told defendant’s had police prob- leave the sheriffs department, Further, cause to arrest defendant at this time. able that, assuming illegal, court found even his arrest was the consent defendant for the search of his car was gave attorney his to consult with an opportunity valid because intervening this consent was an cause suf- prior giving any from being by ficient to the consent tainted prevent arrest. illegal argues

Defendant now that the circuit court’s denial suppress of his motion to arrest and evidence is quash defendant, According reversible error. did not police cause to him on 10 probable August have arrest until they searched his car his to that following consent search day. asserts, therefore, at 1:30 He that he p.m. was illegally attorney arrested when told his at 12:30 police that he not free p.m. depart- to leave sheriffs Alternatively, ment. defendant contends that he was ar- him Wilmington rested when confronted at the police Dam probable and that this arrest was without cause. addition,

In that certain evidence argues following suppressed obtained his arrest should be he illegal Although because it resulted from the arrest. car, to the he this consented search his contends and, therefore, illegal consent was a of the arrest product Thus, involuntary. he asserts that evidence recovered during suppressed. the search his car should have been him Henry’s He also that Chuck identifications of claims in court and at an 11 must be August lineup suppressed they illegal also from his arrest. because resulted not arrested responds The State that defendant was until 12:30 at time there was cause p.m., probable which State, for his arrest. to the defendant’s consent According was, therefore, valid, Henry’s to the search of his car identifications were admitted. properly 204

Both the United Constitution and the States Illinois Constitution individuals from protect unreasonable Williams, 1, searches and People seizures. v. 164 Ill. 2d (1994); Const., IV, 11 XIV; 1970, U.S. amends. Ill. Const. § I, art. 6. order for a arrest warrantless be lawful under these constitutional have provisions, police must “ ‘ “knowledge of facts which would lead a reasonable man to that a believe crime has occurred and that it has ’ ” Jones, committed People been defendant.” v. 225, (1993), quoting People 156 Ill. 2d 237 v. 111 Wright, 128, (1985), Eddmonds, Ill. 2d 145 quoting People v. (1984); Kidd, Ill. 2d 175 Ill. 2d “ ' *** (1996). cause, “In dealing probable with we deal technical; These are not probabilities. they with are everyday factual and considerations life on practical men, legal which reasonable and not technicians prudent ” Kidd, 24, [Citations.]’ act.” 175 Ill. 2d at quoting People (1985). 128, v. 111 Ill. 2d 146 Wright, determining arrest, whether had to make an police probable cause courts examine facts known to at the time the ar police Robinson, 397, People rest was made. v. 167 Ill. 2d 405 (1995). concert, are working probable “When officers can all information collec cause be established from tively received the officers even if that information is specifically not known to the officer who makes the ar (1997). Bascom, 124, People rest.” v. 286 Ill. 3d 127 App. A defendant has the burden of an ille demonstrating Kidd, search or 175 Ill. 2d at 22. In review gal seizure. reviewing on a motion to a court ing ruling suppress, evidence at trial as well as evi may presented consider presented suppression hearing. People dence at the v. (1995). Sims, 483, 167 Ill. 2d 500 When the circuit court’s on such a motion involves factual determinations ruling assessments, it reversed on credibility appeal will be Wright, erroneous. v. 183 only manifestly when (1998). 16, 2d 21 De novo review is appropriate, Ill. however, when there are no credibility factual or disputes. Wright, 21; Williams, 183 Ill. 2d at see also People (1998). Ill. 2d case, In this there were no such at the disputes hearing on the motion quash arrest and suppress evidence, we, therefore, a de apply novo standard of review to the circuit court’s ruling. begin by

We addressing legality ar rest. The circuit court found that defendant ar was not rested until 12:30 p.m. August on at which time the police had probable cause to may arrest him. We affirm the circuit court’s ruling on defendant’s motion to sup press any reason in record, regardless of whether the circuit court expressed this reason as a basis for its Sims, conclusion. 167 Ill. 2d at 500-01. While we agree the police had probable cause defendant, to arrest we find that probable cause existed before 12:30 on p.m. August 10. Our review of the record convinces us that police had probable cause to arrest defendant they when met with him at the Wilmington Dam at approximately 9 a.m. on August 10. Consequently, if, even as defendant argues, he was arrested dam, at the the circuit court properly refused to quash his arrest.

First, the record supports conclusion that po when lice spoke to defendant at the Wilmington Dam, they had probable cause to believe a crime had been committed. Defendant contends that probable cause was lacking because, on August 10, Christopher’s body had not yet found, been had police not eliminated the possibility that Christopher had drowned. When there is a question as to whether a crime has committed, been in "addition to whether the crime, defendant committed the more evi dence is required to demonstrate probable cause. In re (1991). D.G., 144 404, Ill. 2d However, 410 although po lice must have more than a mere suspicion to establish probable cause, “probability of criminal activity, rather than proof beyond doubt, a reasonable is the standard 206 cause is probable present.” whether determining

for (1990). House, v. 323, 370 141 Ill. 2d case, reasonable would have believed person In this time police ap- committed at the that a crime had been Christopher, Dam. Wilmington defendant at the proached old, missing had for almost years was been only who home from the boat riding He was last seen days. three was bicycle riding The he was bicycle. launch on his from the boat area across the river found a wooded found floating 8 and his shoes were August launch on had told Henry po- and 9. Charles August the river on a knife 7, had a man with that, lice on he seen August area where trunk of his car the by open standing 10, August on bicycle Although, was found. Christopher’s murdered, it Christopher not know had been did police was that his disappearance to conclude was reasonable criminal means. caused that, they ap difficulty finding no when also have

We cause dam, probable at the had police defendant proached the one responsible that defendant was to believe po argues Defendant disappearance. Christopher’s defendant linking” evidence lice had no “concrete probable This is not Christopher’s disappearance. reasonable standard, only Police needed however. cause a crime. defendant committed to believe that grounds 2(c) Sims, 500; 725 ILCS 2d at see also 167 Ill. 5/107 — (West 1994). establishing factors relevant Among the (1) of the defendant’s proximity are cause probable Hendricks, v. (People of the crime residence to scene (2) (1993)); fact that 79, 3d 88-89 253 Ill. App. (Hen in the past a similar crime committed (3) 88-89); whether defendant dricks, 3d at App. 253 Ill. My v. (People the victim alive the last to see among (4) (1995)); from flight rick, 3d App. 274 Ill. 3d 459-60 Wright, App. 286 Ill. police (People (1996)).

Before approaching defendant at the Wilmington Dam, had police information that defendant fit the de- scription of the last person seen with before Christopher his death. Three individuals, Waselewski, Beth Jason Forbes, and Buckner, Paul told police they had seen Christopher at the boat launch that afternoon in the company of a man and gave police description of this man and In addition, his car. Buckner told police that he had talked about fishing man, with the man had said that he had only bait, salt water that he had grown up area, the Aroma Park and that recently he had returned from Florida. Police also had spoken to Charles Henry, that, who said during 7, the afternoon of August he had seen a man with a filet knife in his pocket back standing by the open trunk of his car in the area where Christopher’s bicycle was found. Henry also gave police a description of the man and his car.

As of 9 10, a.m. on August police had reason to believe defendant was the man by described these witnesses. Po- lice knew that defendant had previously been convicted of a murdering another missing child. In when de- fendant years old, was 13 he murdered five-year-old Tara Sue Huffman, whose body was found several hours after she was reported He missing. was in prison for this mur- der until approximately years two prior to Christopher’s disappearance.

Police were also aware that defendant was originally from the Aroma area, Park that he had recently moved from Joliet, Florida to and that his father lived a mile from the boat launch. Police had learned that defendant drove a car similar to that described the witnesses with they whom had spoken. addition, of de- pictures fendant that police had obtained from the Depart- Illinois ment of Corrections and information from defendant’s parole officer indicated that defendant matched the de- scription police had of the man seen at the boat launch and on Birchwood Drive on August 7.

Further, conducting were surveillance police while August on de- p.m. around apartment apartment from his by driving away them fendant eluded alley an without through rate of high speed at a building de- that, evening, later that Police learned headlights. his P near the Wil- B and Motel checked into the fendant Benson. In the name of Jim using Dam the mington out of as he checked observed defendant morning, police dumpster, in the motel motel, of boots pair the placed ap- Dam. When officers Wilmington drove to the and nervous, did dam, the he appeared defendant at proached circles, and shielded his contact, eye make walked not Based on the his taken. having picture to avoid face August 9 a.m. on these facts at had of knowledge police arrest defen- cause to 10, they probable that had we find Dam. Wilmington dant at the however, discrepan- that certain asserts, Defendant demonstrate police descriptions provided in the cies him. For cause to arrest had no probable that police saw at the boat the man she Waselewski said example, thirties, late while in his mid- to launch was not addition, Henry did in his late twentiés. was man he saw of the description in his include a mustache Notwith- “dark-complected.” man as described this descrip- the inconsistencies, we believe standing these as a witnesses, viewed when by these provided tions In general, cause. probable whole, finding supported by Henry Wa- described characteristics physical the by other those described with were consistent selewski physical appearance. matched defendant’s witnesses and defendant’s did not describe Also, although Waselewski Moreover, defendant did. accurately, Buckner age Henry the man launch and at the boat to the man linked ap- also but saw, just by physical appearance, not Buckner he told drove and what the car he pearance facts, we will not overturn these Based on about himself. the circuit determination that had police prob court’s able for Christopher’s cause to arrest defendant disap Starks, pearance. See, e.g., App. 190 Ill. 3d People (1989) (a of a general description suspect plus of time and can constitute sufficient proximity place arrest). or cause to stop reject

We also suggestion defendant’s that State did probable not establish cause to him arrest because they Sims and Mitchell that they testified believed did not have sufficient to arrest evidence defendant at the Dam. Wilmington objective Probable cause is an stan dard, and an officer’s belief subjective as to existence of probable cause is not determinative. v. Moody, (1983). 94 Ill. 2d As have explained, we facts police demonstrate that probable had cause arrest de fendant Dam, at the Wilmington subjective and their beliefs to contrary do alter not that conclusion.

Having determined circuit court properly refused to quash arrest, defendant’s we now address arguments the circuit court erred in certain denying request his to suppress Defen- evidence. dant that contends circuit court should have sup- pressed Henry’s of him identifications in court and at a on 11 lineup August because these identifications addition, resulted from his In illegal arrest. defendant argues that evidence from was recovered his car improp- erly because, admitted his consent notwithstanding, search of car on his 10 was August product also the of his illegal arrest. Given our that holding defendant’s ar- lawful, rest reject was we these contentions. also argues, however,

Defendant the search that of his car illegal was because he suffered a language- from based learning disability which caused his consent to the not, search involuntary. however, to be Defendant did raise this at the on issue the motion to hearing suppress. Nor did he it in include his motion. post-trial making 210 now, sentencing testimony he relies argument

this on the learning disability. of a this expert concerning defense trial, failed to issue we Because defendant raise this at People McClellan, find it See 232 Ill. 3d App. waived. (1992) (finding that a defendant waived review his that his were fail argument of statements coerced v. Robin to raise it in his motion to ing suppress); (1995) (a son, 397, 404 is 167 Ill. 2d defendant waives an it sue for of he fails to raise purposes appeal when motion). a through objection post-trial both an and Sufficiency B. the Evidence of now errors at arguments We turn to defendant’s that sepa- trial that we reverse convictions. In his require his se pro brief, rate that there insuf- contends felony mur- support ficient evidence his convictions der, unlawful aggravated kidnapping, aggravated argument, restraint. In a related he asserts motion for directed circuit court erred his a denying matter, As we observe that defen- preliminary verdict. a of murder. charge felony dant was not convicted only The murder on which the circuit degree charge first intentional, felony, court entered involved not judgment to his respect aggravated kidnapping murder. With convictions, we find that aggravated unlawful restraint the evidence and the sufficiency his to the challenges are ruling circuit on his directed verdict motion court’s without merit. an argues,

As defendant secret confinement is es aggravated of the offense kidnapping sential element 2(a) ILCS charged. with which he was See 5/10 — (West 1994). restraint occurs when Aggravated unlawful authority detains an “knowingly legal without person deadly while ILCS using weapon.” other 5/10 — 3.1 1994). (West failed to establish

Defendant asserts the State ag- kidnapping the elements of aggravated essential gravated unlawful restraint the evidence was because to show either secret confinement or deten- insufficient tion He no one Christopher. argues of saw Christo- secretly by him, confined the evidence was pher physical confinement, and, to prove although insufficient secret car, hair found in the blood and were Christopher’s his State to at failed show was alive the Christopher body transported time his was in the car. According defendant, have, therefore, the circuit court should granted his motion a directed verdict and his convic- tions must be We disagree. reversed.

Circumstantial evidence is sufficient to sustain a beyond conviction where it satisfies proof a reasonable doubt of elements of the crime charged. People v. (1998). Williams, 182 Ill. 2d a chal reviewing evidence, lenge sufficiency a reviewing court whether, asks in viewing after all of the evidence light most favorable to the prosecution, any rational trier of fact could have found the essential of the elements beyond crime a People McLaurin, reasonable doubt. v. (1998).

184 Ill. 2d 58 Similarly, a motion for a directed may granted only if, verdict be law, as a matter of the ev idence is insufficient to a support guilty verdict. (1989). Robinson, 199 Ill. 3d App. 37-38 According testimony trial, at Christopher last was leaving seen the boat launch at approximately the same time traveling as and was direc- same tion as Christopher defendant. was supposed riding to be launch, home from the boat but he never made home. it body His was found week later in shallow grave county. bicycle another His in a found wooded area across river from the boat launch. Two match- hairs ing Christopher’s were found in the front seat car, blood Christopher’s was found defendant’s trunk. evidence, on

Based this it jury was reasonable for the 212 secretly Christopher that defendant confined

to conclude location, him at that driving killing him to a secluded by to location, Christopher’s body and transporting then addition, the trunk his car. In Hunting Area 7 the of like killed with a knife Christopher evidence that was a that de- by supports finding one owned defendant time Christopher, only if for a short fendant detained death, deadly Accord- by weapon. to his the use of a prior to convictions reject challenge we his ingly, re- aggravated and unlawful aggravated kidnapping mo- court’s denial of his circuit uphold straint verdict. tion for directed C. Assistance Counsel of Ineffective se, counsel argues, pro that his trial

Defendant also trial to to Gail Kienast’s failing object ineffective for was he on boots testimony there was blood found that P Because in the of B and Motel. dumpster placed this blood as human blood identify Kienast was unable his that type, blood asserts or ascertain the testimony on to her objected counsel have trial should of relevancy. the basis counsel, of a defen ineffective

To establish assistance performance dant must demonstrate both counsel’s er he counsel’s by deficient and that was prejudiced was 668, 687, 80 L. Washington, ror. Strickland v. 466 U.S. (1984). 674, 2052, 2064 Counsel’s 693, 2d 104 S. Ct. Ed. trial of sound product be the presumed is performance Coleman, 183 v. incompetence (People strategy not of and no Strickland violation (1998)), will 366, Ill. 2d 397 are so seri professional errors found unless counsel’s be “ as the “counsel” functioning was not ous that ‘counsel the Sixth Amendment’” the defendant guaranteed (1998), Erickson, 183 Ill. 2d 213, quot 223-24 (People v. 693, 104 Strickland, 687, L. Ed. 2d at U.S. at 80 466 ing 2064). prong of the satisfy prejudice at To S. Ct. that, but test, must demonstrate Strickland a defendant

213 for defense counsel’s deficient performance, the result of the proceeding Strickland, would have been different. 694, U.S. at 80 L. 2d Ed. at 104 S. Ct. at If 2068. court reviewing finds that the defendant did not suffer prejudice, it need not decide whether counsel’s perfor mance was constitutionally Bull, deficient. (1998). Ill. 2d

We hold that defendant has failed satisfy either prong the Strickland test. Defendant has not overcome presumption his counsel’s performance was the product sound trial strategy. Defense counsel could have reasonably concluded that Kienast’s testimony about the blood on the boots helpful to the defense. While the State argued at trial that Kienast’s to inability the identify of blood type on the boots was consistent theory with its that defendant them, had washed the fact that she could not the identify blood as human also the helped defense to rebut the argument State’s that the boots were involved in the murder. If defendant had worn the boots when he killed or Christopher disposed of his one body, would expect to find human blood on the boots, yet Kienast was identify unable to the blood. In addition, during closing argument, the defense reminded jury the that defendant was a fisherman and suggested that the source of the blood the was fish he caught. have, Defense counsel may therefore, chosen not object to to Kienast’s testimony because it permitted the defense to an suggest innocent use for the boots and undermined the State’s argument that the boots were involved the Thus, murder. defendant has established neither deficient performance nor prejudice.

D. Shackling In addition to the preceding alleged errors, trial de- fendant asserts that the fact he wore leg shackles during voir dire and trial requires that his convictions be re- versed. Prior trial, to defendant filed a motion requesting during jury leg to wear shackles required he not be that motion, defense this presenting and trial. selection it “past he understood stating that began by counsel shackled, bring to legs a defendant’s keep practice” him the and seat jury, courtroom before him into the jury so that the constructed table a specially behind Defense counsel of the shackles. not become aware would to the State stated, acceptable “If that’s all further if we objection I have no Court, I would guess to the that responded The circuit court way.” that proceeded the require and that it would acceptable this would be shackles. dire, voir objected during

Subsequently, being present him from prevented shackles because the court and the circuit between at certain conversations necessary to consult with it became attorneys. the When juror, a prospective attorneys presence outside attorney with court held conversations the circuit Because of the courtroom. outside hallway Based not leave the courtroom. shackles, defendant could court agreed the circuit to this objection procedure, on his would be on, jurors that, prospective that point from that de- necessary so when from the courtroom excused conversations between any present could be fendant it stated that Defense counsel attorneys. the court jurors questioning necessary repeat was not “at this only He said already had occurred. to be at present wanted on” defendant from now point jurors. prospective presence the outside conversations effect of the shackles trial, issue of the to the Prior arose. trial during at sidebars presence on defendant’s stated, counsel defendant, defense consulting with After Buss’s or Mr. record, not our intention it is for the “[J]ust of the the course the bench to approach during intention if were sidebars.” trial there to the agreed that defendant argues The State shackling procedures used at trial and cannot now complain addition, about those In procedures. the State asserts that the shackling deny did not defendant fair trial. Defendant that he responds preserved the shackling by issue filing pretrial motion to preclude shackling and by the including issue his post-trial motion. Alternatively, argues he may we review the shackling issue under the doctrine plain error or that his counsel was ineffective for to failing properly preserve issue the for review.

We choose to review the shackling issue on its merits (see (1998)) Kliner, v. 185 Ill. 2d 126-27 and conclude that no error occurred as a result of defendant’s shackles wearing during proceedings in this case. People Boose, 66 (1977), Ill. 2d 261 this court re versed a defendant’s conviction on the basis that he was shackled at the hearing to determine his competency to stand trial. This court stated in Boose that shackling is “(1) generally disfavored because it tends to prejudice (2) jury against accused; it ability restricts his (3) assist his counsel trial; during and it offends the dignity of the judicial process.” Boose, 66 Ill. 2d at 265. Nevertheless, the court explained, a may be shackled if there is an indication that may try he escape, pose a threat to the safety of courtroom oc cupants, or disrupt the order in the courtroom. The Boose court listed a number of factors a circuit court should consider determining whether to defendant, shackle a including: “ ‘[T]he present seriousness of charge against

defendant; temperament character; his age attributes; physical record; past past his escapes or attempted escapes, present and evidence plan of a escape; disturbance; threats to harm others or cause a self- tendencies; destructive the risk of mob violence or of at- tempted revenge by others; possibility of rescue other large; offenders still at the size and mood of the audi- 216 courtroom; security

ence; physical and the nature availability reme of alternative adequacy and the and ” 266-67, Tolley, Boose, quoting State v. 66 Ill. 2d at dies.’ (1976). 353, 368, 349, 226 S.E.2d 368 290 N.C. is a determina a should be shackled Whether defendant However, circuit court. of the tion within the discretion should its place the circuit court this court stated the record and a defendant on shackling for reasons an opportunity defense counsel with should provide not be shackled. the defendant should why offer reasons Boose, 66 Ill. 2d at 266. Boose, court for gave reason the circuit only crime nature of his was the

shackling the defendant juvenile at a deten an inmate (murdering guard a while center). this record, this court found Based on the tion the defen justify shackling alone insufficient reason Boose, 66 conviction. and reversed the defendant’s dant 2d at 267-69. Ill. (1977), 33, Staley, in In re 67 Ill. 2d 35-36 Similarly, “ courtroom” in the security’ held that ‘poor

this court a defen itself, shackling basis for was, an inadequate case, this court jury no there was Although dant. explained This court defendant’s conviction. reversed the jury, a a defendant before that, prejudice even absent by negatively a fair trial may deny a defendant shackling ability to his hindering dignity on his impacting 37; also Ill. 2d at see Staley, 67 with counsel. consult (1996) Bennett, (plain 825 Ill. 3d People v. App. security on courtroom defendant based error to shackle alone). no have found hand, Illinois courts other

On the a defendant when shackling of discretion abuse for a reason single more than has expressed circuit court Starks, 287 Ill. v. e.g., People See, a defendant. shackling (defendant’s (1997) was seri charge 3d App. indicated risk, conviction prior ous, flight he was revenge from violence, a potential there was victim’s and the courthouse serious se family, presented curity Henderson, 223 Ill. 3d problems); People App. (1991) (based 131, 133 on the fact that defendant was serving a sentence for murder and had 248 prison violations, the disciplinary circuit court determined that risk); an safety v. Mc escape (1988) (defendants Cue, 175 Ill. 3d App. 766-67 were properly where, shackled at their trial for. a prison escape alia, they inter strong enough were had a rec escape, ord of escape, and the circuit court was familiar with courtroom). nature of security In bar, the case at the circuit court did not state its reasons for requiring at the time it shackling initially denied motion, defendant’s presumably because defense counsel indicated that defendant did not object to leg shackles so as the long jury did not see them. ruling on defendant’s post-trial motion issue, however, on this the circuit court explained that the basis for its denial of (1) (2) the motion was security; courtroom the extremely serious nature of the offense with which defendant was (3) charged; audience in large the courtroom. In addition, the circuit court observed that the tables in the courtroom had been skirted so that the shackling of the defendant was “never jurors” obvious to the and that ability to consult with counsel had not been by hindered the shackling.

Based on record, this we find no abuse of discretion in the circuit court’s requirement defendant wear leg shackles during trial. Two of the three reasons is shackling disfavored are not issues in this case: there is no evidence that the jury was aware of the or shackles that defendant’s ability to consult with af counsel was fected. Although the of dignity judicial is process always concern, the circuit court provided reasons for shackling which this court has may outweigh held this Boose, concern. Moreover, See 66 Ill. 2d at 266-67. an given opportunity present defense counsel was We, why reasons defendant should not be shackled. therefore, find was not denied a fair trial that defendant leg that he wear requirement the circuit court’s no er- shackles. Based on our conclusion that there was defendant, need ror from the of we resulting shackling error and arguments concerning plain not address his ineffective assistance of counsel. Time,

E. and Cause Evidence Identity, that he was denied a claiming As another basis for Blum’s, trial, challenges fair the admission Pavlik’s, identity testimony concerning and Haskell’s Hunting found in Area the time body of the death, of his death. Before and the cause Christopher’s identity of the trial, defendant offered to stipulate Christopher’s to the time and cause of body, as well as limine, in which he death. He also made a motion to these is- that, stipulate based on his offer to argued from evi- sues, precluded presenting the State should be to the agree related to them. The State did not dence the motion in and the circuit court denied stipulation, limine. offense, the not to an pleads guilty

When a defendant offense, every to element of that prove State is entitled facts or if not the relevant dispute even a defendant does Bounds, v. People Ill. 2d them. 171 offers to to stipulate (1995). he brief that does 1, 46 Defendant states his Instead, argues he not take issue with this rule. testimony should have Pavlik’s, Blum’s, and Haskell’s Accord unduly prejudicial. it was been excluded because by failing erred defendant, the circuit court ing its against value of this evidence the weigh probative to require this court urges effect. Defendant prejudicial availability of alternative courts to consider the circuit of offered, part he as evidence, as the stipulation such weighing process. the does contrary, his assertion to the

Despite the rule that a defen challenging indeed to be appear the from facts prevent proving dant cannot State relevant Nevertheless, de by offering stipulate to those facts. that, fendant correct to admit determining is whether evidence, weigh a circuit court must its value probative Williams, its effect. v. against potential prejudicial People (1998). 181 Ill. 2d The circuit court is not evidence, however, just to exclude relevant required may because it be to the defendant or prejudicial might “arouse of horror or in the feelings indignation jury.” Williams, 181 Ill. 2d at 314. It is the function of the admissibility evidence, circuit court to determine the of and its will not be rulings reversed absent an abuse of (1997). Reid, discretion. 2d 179 Ill. We hold that the circuit court did not abuse its discre- Blum, Pavlik, tion permitting testify and Haskell to concerning identity and the time and cause of Christo- pher’s First, death. disagree we with defendant’s asser- tion that the circuit court to weigh failed the probative value of this against evidence its prejudicial effect. ruling on in limine, defendant’s motion the circuit court stated that expressly the relevant standard was whether the effect of prejudicial particular evidence exceeded its probative value. It concluded testimony that the of these was not experts merely intended to inflame the passions Instead, of jury. testimony this of probative facts death, State was entitled to such prove, as time of death, identity, injuries, cause of nature of the and the type weapon used. As the circuit court’s statements indicate, necessary the court did perform balancing of probative against value effect. prejudicial reject

We also argument circuit court erred by failing availability to consider (i.e., evidence stipulate) alternative defendant’s offer to when it value ef- weighed probative against prejudicial normally of alternative evidence will availability feet. The the probative into this because weighing process factor necessarily in will be dispute value of the evidence may place. if evidence be admitted its diminished other can- case, however, In defendant’s offer to stipulate this considered available alternative evidence. Without not be stipulation there was no available agreement, the State’s evidence, and, as we have explained, to be admitted into to these facts. the was not to required stipulate State Blum’s, Pavlik’s, testimony Haskell’s was not and jury. inflame of the It was solely passions admitted the identity body to the of the highly probative respect with 7, the time of Christo- Hunting precise found in Area death, and the death, the manner and cause of his pher’s addition, court limited the In the circuit weapon used. Blum testimony by preventing effect this prejudicial Christopher the of time testifying concerning length from by not publish- have suffered to his death may prior jury admitting the after body of the ing photographs evidence. them into of this prejudicial the effect argues

Defendant (1) juror the fact that one was demonstrated testimony was available counseling asked the circuit court whether (2) mother Christopher’s the fact that jurors testimony Blum’s and was during the courtroom exited hallway outside the courtroom. screaming heard ques- who asked this juror The record indicates that testimony curiosity and stated tion did so out of addition, ability to serve. with affecting not his mother, the circuit court respect Christopher’s left the courtroom the record that she observed for hallway noises subsequent and that discreetly to her. be attributed necessarily outside could not expert of the State’s value probative Because and cause of identity and the time testimony concerning effect, find no abuse we prejudicial death its outweighed testimony. See in the admission of this of discretion of the victim were Bounds, 171 Ill. 2d at 46 (photographs and cause of though identity admitted even properly 41 Ill. citing People Speck, not disputed), death were (1968). 2d 201-04 Sentencing

III. of concerns issues de- The remainder our discussion to the of respect sentencing portion fendant raises with He that he must receive a new sentenc- argues his trial. (1) factors aggravating because one of the ing hearing (2) unconstitutional; the by jury considered was defective; eligibility stage verdict forms used at the were (3) admitting the circuit court erred in certain photo- (4) at the circuit court graphs stages hearing; both of certain by refusing jury by erred instructions submitted (5) defendant; regarding State misstated law (6) rebuttal a death sentence is mercy argument; its because the State failed to defen- inappropriate provide (7) care; dant with and the Illinois adequate psychiatric death statute is unconstitutional. penalty 1(b)(7)

A. Section Constitutionality 9 — of begin sentencing We our discussion of these issues addressing argument ag that one of the gravating factors the jury considered was unconstitu jury tional. The found eligible defendant the death penalty following statutory aggravat based on the three (1) “the of ing factors: defendant has been convicted (720 or more individuals” ILCS murdering two 5/9— 1(b)(3) (West (2) 1994)); “the murdered individual was felony” (aggravated killed the course of another (720 1(b)(6) (West (3) 1994)); and ILCS kidnapping) 5/9 — years “the murdered individual under 12 of age was from or heinous exceptionally the death resulted brutal (720 ILCS cruelty” indicative of wanton behavior 5/9— 1(b)(7) (West 1994)).

Defendant or argues “brutal heinous” statu 1(b)(7) tory aggravating factor contained section 9 — penalty unconstitutionally the death statute is on vague face. Although, pursuant Jury its to Illinois Pattern (Illinois Instructions, Criminal, 7B.07 Pattern Jury No. (3d 1996)) Instructions, Criminal, No. 7B.07 ed. Supp. (hereinafter 7B.07), jury IPI Criminal 3d meanings “heinous,” instructed as to the of “brutal” claims that these definitions were insufficient to cure the vagueness statutory aggravating this fac According defendant, tor. he must be resentenced because the found him for the jury eligible penalty death on based this unconstitutional factor and considered this factor at the aggravation-mitigation stage.

In involving challenge other cases the same defen 1(b)(7), makes to section repeatedly up dant we have 9 — e.g., See, of validity aggravating held the this factor. Jackson, People People v. v. Pul 30, (1998); 182 Ill. 2d 63 liam, Odle, People v. 261, (1997); Ill. 2d 128 176 272 Ill. Redd, v. 111, People (1988); 1, 2d 140-41 173 Ill. 2d 45-46 (1996). Oaks, v. People (1996); 169 Ill. 2d 460 We also previously rejected argument have the definitions of “brutal” and “heinous” contained IPI Criminal 3d 7B.07 do not define these adequately (1996). Redd, terms. See 173 Ill. 2d 46 Defen dant us with no reason to reconsider presents persuasive these and we decline to do so. We find no error holdings jury’s aggravat with to the consideration of this respect ing factor.

B. Verdict Forms Eligibility Defective argues Defendant also that he must receive new jury’s eligibility verdicts sentencing hearing because forms insufficient. He claims that the verdict legally were necessary omitted the mental eligibility stage used at the statutory three aggravat- state with to two respect on which his was based. ing eligibility factors under section penalty for the death eligible To be the intent have “acted with 1(b)(6), a defendant must 9 — knowledge or murdered individual with to kill the great of death or strong created a probability that his acts or another.” harm to the murdered individual bodily 1(b)(6)(b) (West 1994). Similarly, eligible be ILCS 5/9 — been 1(b)(3), the defendant must have under section 9 — with the two or more individuals murdering convicted kill that his acts would knowledge intent or with the of death or strong probability “cause death or create a 1(b)(3) (West 1994). bodily harm.” 720 ILCS great 5/9 — case, mental states omitted from this these were under relating eligibility the verdict forms to defendant’s 1(b)(3) 1(b)(6). section The forms section and 9 — 9 — stated:

“We, jury, unanimously beyond find a reasonable Timothy eligible doubt that the defendant Buss is for a unanimously beyond find death sentence under the law. We a reasonable doubt that: years

The defendant was 18 old or older at the time of case; the murder for which he was convicted this following statutory aggravating The factor exists: murdering The defendant has been convicted of two or persons. more

* * * We, beyond jury, unanimously find a reasonable Timothy eligible for a doubt that the defendant Buss is unanimously beyond sentence under the law. find death We a reasonable doubt that: years

The old or older at the time of defendant was case; the murder for which he was convicted this following statutory aggravating The factor exists: ag- person The killed in the course of murdered was gravated kidnaping.” that forms are invalid pur

Defendant is correct these Mack, in 167 Ill. 2d 525 People suant to our decision v. (1995). case, In that held that a defendant was we the verdict sentencing hearing entitled to a new because the form, eligible he found pursuant which was mental In death omitted the state. penalty, requisite Mack, case, in this as the defendant’s eligibility was based 1(b)(6). form Mack provided: on section The verdict 9 — “ ‘We, jury, the find unanimously beyond a reasonable doubt that the following aggravating factor exists in rela tion to this Larry Murder: Mack killed Kolar in Joseph ” Mack, of an Armed Robbery.’ course 167 Ill. 2d at 529-30. the verdict Mack was

We found that insuf legally ficient because verdict form had omitted the mental state for a required finding eligibility under section 1(b)(6)(b). We that a explained verdict need not set 9 — forth specific elements of an offense so it long as is a general verdict. For a verdict that example, provides only that a defendant is for the “eligible” penalty death based on the existence of a “statutory aggravating factor” is a Mack, general 538; verdict. 167 Ill. 2d at IPI see also Criminal 3d No. if hand, 7B.10. On the other the verdict form sets out some of the elements of an offense as Mack, form specific findings, must do so completely. 167 Ill. 2d at 537-38.

We held Mack that the verdict at issue could not a general be considered verdict because the verdict form specified certain elements aggravating of the factor. it for the Consequently, necessary was verdict form to contain all essential aggravating elements factor. requisite Because it omitted the mental state for eligibil 1(b)(6), ity under section the verdict form legally was 9 — insufficient, and the verdict could not stand. Given that eligibility solely was based on section Mack, 1(b)(6), a new sentencing hearing required. 9 — 167 Ill. 2d at 538. us, argues

In the case before the State Mack because they under verdict forms were not invalid attempt ag did not to set forth all of the elements of the argument, factors. of this the State gravating support McNeal, relies on our decision in 175 Ill. 2d 335 (1997). however, not, support does in McNeal

Our decision verdict held that the McNeal, we position. State’s the found the defendant jury the to which pursuant forms just defective not murder were degree of first guilty the nature of the they described because, in parentheses, at 359- McNeal, 175 Ill. 2d charges. murder degree first “ ‘We, the provided, form one verdict example, 62. For McNeal, of the of Guilty defendant, Aldwin find the jury, acts created (knowing his murder degree of first fense harm) Corey of bodily great of strong probability “ ” find ‘We, jury, the another Gerlach,’ provided, while McNeal, of the offense defendant, Guilty Aldwin the ” kill) (intended Corey Gerlach.’ murder to first degree in case The defendant McNeal, Ill. 2d at 359-60. defective under the forms were verdict complained the es not all of they contained some but Mack because however, that, found, of the We sential elements offenses. in Mc Mack, forms form in the verdict unlike the verdict statutory forth the essential attempt did not set Neal in material the Instead, the parenthetical elements. name the first by merely in McNeal identified forms form. on a charge particular murder at issue degree consid in McNeal could be verdict Therefore, jury’s McNeal, 175 and was not invalid. general ered a verdict Ill. 2d at 362. language McNeal, distinguished in we

Although, legally found language we in the forms from verdict make such a Mack, unable to in we are insufficient difference significant is no in this case. There distinction in Mack form at issue of the verdict language between in Mack The form case at bar. at issue and the two fac to the aggravating case refer and the forms this therefore, jury’s Mack, terms. Under tors similar under section eligibility defendant’s concerning verdicts 1(b)(6) 1(b)(3) insufficient. legally are section 9 — 9 — is hearing required. Nevertheless, sentencing no new Although the verdict forms relating defendant’s 1(b)(3) eligibility 1(b)(6) under section and section 9 — 9 — were defective due to the omission of the requisite mental state, the third form, verdict relating eligibility under section 1(b)(7), did not suffer from 9 — this flaw. It is well established our recent case law that when a defendant is found eligible for the death penalty under multiple statutory aggravating factors, the eligibility finding may stand despite the invalidation factors, one of those so long as there is a separate, valid aggravating factor that the supports eligibil Macri, v. ity. See 1, 185 Ill. 2d People v. (1998); 58 Jackson, 182 (1998), Ill. 2d citing People Brown, v. v. Ill. 2d 165 (1996); People Williams, 181 Ill. 2d (1998). 297, 321 In addition to finding defendant eligible for the death penalty based on the felony-murder and factors, multiple-murder the jury found him eligible under the separate “brutal and heinous” aggravating factor. As we have explained, is a this valid aggravating factor and supports the defendant’s eligibility for the death penalty, notwithstanding the invalid verdicts based on the other two aggravating factors.

We reject defendant’s contention that, even if we were to find him eligible under section 1(b)(7), we must 9 — him grant a new second stage sentencing hearing because the jury was improperly influenced at aggravation- the mitigation stage by the improper two aggravating fac tors. We have previously rejected argument by this the (1998). in People Williams, 181 Ill. 2d 297 In case, that one, as in this the defendant was found eligible for the death penalty based on multiple fac aggravating tors. We determined that his under eligibility felony- the murder aggravating factor was invalid because the neces sary mental state was omitted from the verdict form and Williams, the involving instructions factor. 181 Ill. 2d at 320. We nevertheless held that no new second stage jury’s as a of the hearing result sentencing required was Even factor. aggravating invalid consideration this due to statutory factor is eliminated aggravating when a instructions, jury the is in the verdict form and a defect conduct relevant to consider the defendant’s entitled sentence. Wil appropriate deciding that factor 2d liams, 181 Ill. at 321-22. case, sufficiency dispute there no as to

In this is and felony-murder of the to support evidence Williams, Under factors. multiple-murder aggravating therefore, to these relating properly evidence factors hearing no new is jury, sentencing considered required. found for the eligible

Defendant was death properly penalty 1(b)(7), and, although the pursuant to section 9 — 1(b)(3) based on section eligibility verdicts 9 — 1(b)(6) from invalid, jury precluded were was not 9 — factors at the considering evidence these pertaining sentencing of the hearing. aggravation-mitigation phase a new not Accordingly, sentencing hearing required. is addition, finding our verdict de given holding under section eligible penalty fendant for the death 1(b)(3) need not stand, cannot we consider defendant’s 9 — multiple-murder the of the argument application statutory aggravating factor his case violated the amendment the United States Constitution. eighth to Photographic

C. Evidence Admission of resentencing Defendant further contends is because three the circuit court photographs required jury during into to the published admitted evidence and Dur- sentencing unduly were proceedings prejudicial. the hearing, sentencing of the two ing eligibility phase the torso, and a of a front view Christopher’s photographs to view, published rear were admitted into evidence notes, the circuit court described jury. the As defendant it gruesome things” had the as the “most photographs 228

ever seen. The and slash to pictures show stab wounds body, as well as The decomposition. photograph depicting the Christopher’s front of torso shows the lower of face, his which part including his are exposed teeth to due His decomposition. genital area is not visible the photographs.

At the sentence selection phase, circuit court admitted into evidence these two of photographs Christo- as well pher, body as a of the of Tara photograph Sue Huffman, the young girl defendant had killed previously. naked, This picture lying shows her in a a except field for pushed her up legs shirt around chest. Her are spread, and there ap- is a wooden stick from protruding what to be her pears rectum. There are no obvious or wounds injuries other body. jury’s to the At the request, these photographs jury were to the provided during delibera- tions. begin

We by discussing admission of the two of at of photographs Christopher eligibility phase sentencing. Defendant that he was contends denied a fair sentencing by the hearing admission of these photographs they because were cumulative other evidence pre- hearing, prejudicial sented at and their effect outweighed their probative value.

The first to phase sentencing hearing is intended determine, the jury improper to without influence permit evidence, potentially inflammatory from whether a de fendant is the death eligible penalty. People v. Edges (1993). ton, 157 2d 224 Consequently, Ill. only evi dence that directly pertains statutory aggravating People factors is at this v. stage. Hooper, admissible (1996). 2d 64, Ill. that are Photographs introduced solely are jury inflame the not admissible. (1995). However, if

Rissley, 165 Ill. 2d photo are graphs proving eligibility relevant factor, they may under a be admit- statutory aggravating disgust or inflammatory, gruesome, if are ted, they even the function of 2d at It is the Ill. 405. Rissley, 165 ing. be evidence should court to determine which circuit not be decision will stage, at and its admitted this Edgeston, abuse discretion. an of overturned absent 2d at 224. Ill. body of demonstrated photographs Christopher’s

The from the stab nature, location, and force of wounds the therefore, were, highly They died. Christopher which factor aggravating of and heinous” the “brutal probative 1(b)(7). Although, in as the circuit contained section 9 — is stated, this “gruesome,” were photographs court the jury gruesome, the crime was because primarily of crime consider the character was entitled to for the death determining eligibility penalty (720 1(b)(7) (West 1(b)(7) ILCS under section 5/9 — 9 — 1994)). of record that the

Moreover, our review the indicates The this was minimized. effect of evidence prejudicial a third jury had view originally proposed State body, depicting groin his Christopher’s of photograph court this area. After the circuit concern expressed State unduly inflammatory, be would photograph two to the other respect With photograph. withdrew found that their probative the circuit court photographs, result, the their effect. As a prejudicial outweighed value body, only photographs Christopher’s saw two jury photo- some is visible these decomposition and while body was of the insects with which the none graphs, when it was discovered were evident. infested Furthermore, contrary argument, to defendant’s required photographs court not to exclude the circuit testimony merely they because were cumulative This Christopher manner died. concerning the which evi- has that “demonstrative previously explained court than oral may persuasive clearer and more dence be 230

testimony covering the exactly points same and al has lowed jury the to view photographs of crime victim even when simply the photographs depict what witnesses v. Simms, 143 Ill. 2d People have described.” orally 154, (1991). 176-77 Accordingly, photographs at submitted the eligibility need phase not be excluded merely because v. Edges they are cumulative of other evidence. ton, (1993). 201, 157 Ill. 2d 225-26

The of photographs Christopher were not admitted at eligibility solely to inflame the of passions the jury, and we agree with the circuit court probative their value their outweighed prejudicial effect. Accordingly, it an not abuse of discretion for the circuit court Simms, (circuit admit them. See 143 Ill. 2d at 175-79 court properly admitted of decedent photographs and in her apartment bloodstains at the of stage first the sentencing hearing; prejudicial their effect did not Rissley, outweigh probative value); their 165 Ill. 2d at victim, 405 (autopsy photographs of even depicting some insect of infestation the were body, properly admitted at the stage of eligibility sentencing eligibility under show 1(b)(7); section their effect did prejudicial not 9 — their outweigh probative value and the fact they were excluded). cumulative not did them to be require find no respect We also error with admission the of these photographs, plus two of Tara photograph Sue Huffman, at the aggravation-mitigation stage of the sentencing hearing. These three were photographs admit- ted into published evidence and to the jury. addition, at the jury’s request, they jury were sent to the during jury’s deliberations. of the Following receipt photo- it returned graphs, imposing verdict death penalty.2

The rules of evidence to trials do not applicable apply jury just 2 Defendant asserts that the returned a verdict 10 receiving pictures. minutes after these We been unable to have of a sentenc capital aggravation-mitigation portion to the “must sentencing fact at the trier of hearing because ing concerning information possible the fullest possess record, cir character, and the life, criminal Burton, People v. offense.” particular cumstances of (1998). of evi sentencing, 2d At phase 184 Ill. this reliable. long so as it is relevant and dence is admissible (1998). de 130, 152 The 183 Ill. 2d People Armstrong, evi reliability to the relevance termination as judge. of the trial the sound discretion dence is within (1995). Bounds, 171 Ill. 2d People v. criminal a defendant’s violent prior

Evidence of on because it bears aggravation is relevant behavior ad committing defendant’s character likelihood Simms, Consequently, 143 Ill. 2d at 179. ditional crimes. cases, has that the in several different this court held are by of crimes committed previous details defendant of aggravation-mitigation admissible the phase at 421, sentencing. See, People Hope, v. Ill. 2d e.g., (1995) another of (testimony concerning autopsy the of the victims admitted at properly defendant’s murder was aggravation-mitigation stage sentencing); Edgeston, of 2d of murder (tape by previous 157 Ill. at 238 911 call Simms, admitted); of the victim properly 143 Ill. 2d at defendant’s (testimony previous 178-79 admitted). assault properly sexual victims not that the dispute photographs Defendant does at rele- aggravation-mitigation stage admitted the were Instead, they argues he that again vant and reliable. too they should not have been admitted because were testimony concerning the and cumulative of prejudicial we of and Tara Sue’s bodies. As Christopher’s condition photo- to the admission of explained respect have with fact that stage, at the eligibility evidence graphic does not cumulative of other evidence are photographs support claim in the find for this record.

require they be excluded. This applies principle with at equal force the aggravation-mitigation stage, espe cially given evidentiary relaxed at standards this stage. jury The had seen already the two of photographs at Christopher eligibility stage. these Only two and the photographs of Tara were photograph Sue admit ted at the second stage of the sentencing hearing. These were relevant show photographs the violent nature of acts, defendant’s criminal and we find that the circuit court did not abuse in admitting its discretion them. Franklin, (1990) (murder 2d Ill. 110-11 scene photographs previous victim were admitted). properly We find no also error in circuit court’s to grant jury’s decision to view the request Bounds, photographs during deliberations. See 171 Ill. (no 2d at jury 46-47 abuse of photo discretion to send People v. graphs deliberations); during victims trial Mitchell, (1992) (no 152 Ill. 2d 338-39 abuse of permit discretion to life jury to view and death photo deliberations). graphs during aggravation-mitigation D. Instructions at Aggravation-Mitigation Defendant claims that he was denied a fair sentenc- ing the additional reason hearing circuit court to give refused the jury nonpattern instructions he result, submitted. As a argues he that a sentencing new required. hearing is

If the IPI an applicable instructions contain instruc subject tion on a about which the circuit court determines jury instructed, the be the should circuit court must use instruction, that court determines that unless the the 134 accurately instruction does not state the Ill. 2d law. 451(a). R. is within It the circuit court’s discretion to decide to give jury nonpattern whether the instruction. Gilliam, (1996). 2d If the Ill. of subject matter the refused instruction is nonpattern or by covered instruction other instructions pattern given found. be court, of discretion will the circuit no abuse by Gilliam, 172 Ill. 2d at 519. Mercy

1. for the circuit to it was error According defendant three with provide jury refuse his to the request court to to concerning jury’s power the nonpattern instructions the sentence mercy determining appropriate consider instructions, proposed him. In one of these to IPI Criminal following paragraph the addition the 3d No. 7C.01: affording nothing prevents you

“There is that from Timothy proceedings; and that such mercy Buss in these if of the of- mercy, particular based on the circumstances Timothy Buss, and the Defendant can constitute a fense preclude imposition of mitigating factor sufficient to the death sentence.”

The circuit court to use requests also refused mercy. other instructions One nonpattern concerning two jury informed the “In the death considering penalty, that so, ifmay, you wish do consider or not you whether The you mercy wish to extend to the Defendant.” other provided: mitigating

“A the of- circumstance is fact about either defendant, mercy, fense or about the which in fairness or extenuating degree may reducing be as or considered justifies culpability of moral or which a sentence less death, the of- although justify than it does not or excuse fense. mercy is itself a appropriateness

The of the exercise of mitigating may determining whether you factor consider proved penalty the State has the death is warranted. that any mitigating You are also consider as circumstances you find concerning other factors the defendant to be relevant.” nonpattern court these instructions

The circuit refused IPI on the basis instructions tendered sufficiently jury subject. on the State instructed defendant, failed to According circuit court recognize its discretion to modify the IPI or, instructions 451(a) to the extent Supreme Court Rule prevented the circuit court from modifying the pattern instructions case, this it is because, unconstitutional without modification, defendant was denied a fair sentencing hearing. Alternatively, defendant asserts that the circuit court abused its discretion in his refusing instructions. argues He that the instructions he submitted should have been provided jury to the because the IPI instructions failed to inform the jury that it could consider mercy and to how do so. He that, contends without his instructions on mercy, jury was left “without adequate guidance as to the proper role of its mercy power.” result, As de- fendant argues, he was denied his to right due process and the protections against cruel and unusual punish- ment under the fourteenth and eighth amendments to the United States addition, Constitution.

asserts that his counsel was ineffective for failing renew request defendant’s for a mercy instruction after this request was denied at the instruction conference.

As a matter, preliminary we cannot agree with suggestion that the circuit court failed to recognize its discretion to IPI modify the instructions. At conference, instructions defense argued counsel it was within the court’s discretion to accept modifi- cations proposed by defendant. The circuit court re- sponded, “I’m going deny I Defendant’s one. stick will with the IPI 7C.01. It’s consistent with the Illinois Pat- Jury tern Instructions that have by been set forth the Il- linois Court. I Supreme will follow them.” These state- ments indicate that the court recognized power its modify the pattern instructions but chose not to do so because the subject matter of the refused instruction was covered IPI by the instructions. This was a proper by exercise of discretion the court. jury

While a may consider as a properly mercy factor must considered mercy be hearing, sentencing capital at a factors. mitigating all aggravating context of it is well Consequently, 46-47. Ill. 2d at Hope, no specific this court that precedent established jury is when mercy required is concerning instruction all circumstances consider that it “should instructed other than a sentence for imposing reasons provide 46-47). See, People v. e.g., 168 Ill. 2d at (Hope, death” (1996); v. Suther 167, People 198-99 Miller, 173 Ill. 2d Simms, 143 Ill. 2d (1992); v. People 2d land, 155 Ill. 138, 151 Lear, 143 Ill. 2d (1991); 182-83 (1991). case, the instructed: jury

In this (cid:127) be sentenced deciding the defendant should “In whether aggravating factors death, consider all the you should to mitigating factors and all the supported the evidence Mitigating factors include: by the evidence ***. supported why the defendant Any supported by the evidence reason is evidence death. Where there not be sentenced to should factor, mitigating factor mitigating the fact that such of a does specifically listed in these instructions is not a factor IPI See your of the evidence.” preclude not consideration Criminal 3d No. 7C.06. mercy, jury the to consider

This instruction permitted con therefore, additional instructions and, specific no re factor were nonstatutory mitigating this cerning (1996) 1, 50 Kidd, 175 Ill. 2d People v. quired. See at rejected repeatedly that this court has (observing nonstatutory mitigating specify defendants to tempts by stage). aggravation-mitigation factors at the we the cases which asks us to overrule Defendant required. instruction is mercy that no separate have held cases, those reasoning agree to with We continue not do however, arguments find that defendant’s Thus, the authority. line of of that support rejection our refusing its discretion circuit court did not abuse mercy. concerning instructions proposed defendant’s no instructions holding specific our that addition, given concerning mercy were required, we find no merit to 451(a) arguments that Rule unconstitution- ally restricted the circuit court’s ability give such instructions and that defense counsel was ineffective for failing renew defendant’s request these instruc- tions.

2. Unanimity Defendant claims that the instructions at aggravation-mitigation stage were also defective because of the circuit court’s refusal to give jury two instruc tions he proposed concerning the unanimity requirement (see (West 1994)). 1(g) ILCS He asked that 9 — jury be instructed as follows: “There is no requirement you reach a unanimous decision at this stage If proceedings. one or more of you have decided the de fendant death, should not you receive may sign the verdict form without debate.” The second unanimity instruction defendant proposed provided: “If the jury or any juror determines there are mitigating factors sufficient preclude imposition of the death sen tence, then the Court shall not Defendant, sentence the Timothy Buss, to death.”

The circuit court refused to use these nonpattern Instead, instructions. gave it the jury following the IPI instruction: law,

“Under the the defendant shall be sentenced to death if you unanimously mitigating find that there are no factors sufficient preclude imposition to of a death sentence.

If you are unanimously unable to find that there are no mitigating factors preclude imposition sufficient to of a sentence, impose death the court will a sentence of natural imprisonment, life person serving and no a sentence of imprisonment paroled released, natural life can be or except through an order the Governor for executive clemency.” See IPI Criminal 3d No. 7C.05.

The jury was also may instructed: not sign “[Y]ou verdict a death imposing you sentence unless unani- (see mously vote for it” IPI 7C.07), Criminal 3d No. “If you do not unanimously your find from consideration of all the evidence that there are no mitigating factors sufficient to preclude sentence, of a death imposition you then sign should the verdict the requiring court to (see impose sentence other than death” IPI Criminal 7C.06). 3d No. defendant,

According the circuit court’s refusal the unanimity instructions he denied him a proposed fair sentencing hearing because the IPI instructions provided jury did not give jury a clear understanding of the unanimity rule. Defendant that, asserts because circuit court instructions, refused his jury was left with the mistaken belief that verdict any against imposition of the death penalty also had to be unani- mous.

Defendant’s challenge to the court’s refusal to give his unanimity instructions is without merit for several First, reasons. given that there were IPI instructions subject, addressed this it was not an abuse of discre tion for the court to refuse defendant’s nonpattern instructions. Gilliam, See Indeed, 172 Ill. 2d at 519. after the IPI comparing instructions provided jury to the with instructions, defendant’s proposed we are unable to discern any clarification of the unanimity rule made by addition, instructions. this court has rejected the argument IPI existing instructions concerning the unanimity jury rule mislead the by sug that a verdict gesting against the death penalty must be Macri, unanimous. 185 Ill. 2d at 70. The refusal of defendant’s unanimity instructions did not deny defen dant a fair sentencing hearing.

3. Standard of Proof Defendant’s third challenge the instructions provided jury to the at the aggravation-mitigation stage is that these failed to correctly instructions state the not to jury may impose under which the choose standard is argument penalty. Although the death it that his understand, appears difficult to somewhat in his case is that provided to the instructions objection “ under state mitigation required overstate they [d] jury to inform the that of death” and failed acquit law whether determining discretion” it had “unfettered that the circuit He contends penalty. the death impose instruction to the following given court should have any the defendant’s life for reason may spare “You jury: satisfactory.” you appropriate deem that, if the jury court instead instructed The circuit factors suf mitigating there were “no it did not find that sentence,” a death preclude imposition ficient other the defendant to a sentence court would sentence addition, See IPI Criminal 3d No. 7C.05. than death. mitigating that a jury the circuit court instructed why by the evidence “[a]ny supported reason factor to death” not be sentenced the defendant should “[wjhere factor, mitigating there is evidence of specifically factor is not a factor mitigating such fact that your preclude does not in these instructions listed IPI Criminal 3d No. evidence.” See consideration of the instructions ac held in the these past, 7C.06. As we have to the respect quantum the law with curately state Gilliam, hearing. See aggravation-mitigation at the proof no abuse of discre we find Accordingly, 172 Ill. 2d at 520. of defendant’s instruction. in the court’s refusal tion E. Rebuttal Argument denied a fair that he was arguing In addition to the refusal of his hearing by sentencing second-stage that a defendant asserts concerning mercy, instructions because, during its hearing required is sentencing new stage, aggravation-mitigation at the argument rebuttal consider jury could not suggested the State Specifically, factor. mercy mitigating as

239 complains about the following portion of the State’s rebuttal argument: quite

“[Defense counsel] talked a bit about sufficient mitigation, and he also talked at the same time about mercy. I you And want keep to understand and clear in your this, minds a distinction. And the distinction is process weighing mitigation is in applying involved legal standards to deciding this case and whether there is sufficient or mitigation. your insufficient And that’s factual job [Defense to do. pleaded mercy counsel] on behalf of his client. nothing That has to do with the laws of the State of right Illinois. That is his right, to do. It’s his right, Defendant’s basically you, Jury, to ask in effect forget to about the law. give mercy. Please me So there is things going They two legitimate. on. are legiti- both Both they mate. But separate things are you keep have to in mind being requested that are you. why That is I briefly want to talk mitigation about legal and the stan- you dards which apply weighing must in the of whether or not the mitigation is sufficient or insufficient. Then I will talk mercy about and whether it’s appropriate.” According defendant, to the State misstated the law when it said that mercy “has to do nothing with the law[ ]” and that, by asking jury to him give mercy, the defen- dant was asking it to “forget about the law.”

The State responds that defendant has waived this issue for review to failing object to these comments at trial and by in failing raise them his post-trial motion.

We agree with the State that defendant has waived this (1998) issue. See People Williams, 181 Ill. 2d (an objection at the sentencing hearing and reference to the error in a post-sentencing motion are necessary to review). preserve a sentencing issue for Defendant replies may that we nevertheless review the issue pursuant the doctrine of plain addition, error. In argues he that his counsel was ineffective for failing object to these com ments and that the circuit court should have corrected the prosecution’s misstatement of the sponte. law sua

Under the error, doctrine of plain reviewing court if the at trial not properly preserved consider issues may or if the error is so fundamen closely is balanced evidence Macri, 185 Ill. a fair trial. it denies the defendant tal that 615(a). case, defendant In this 40; 134 Ill. 2d R. 2d at these requirements. neither of satisfies was stage at the aggravation-mitigation The evidence aggrava- presented The evidence closely not balanced. that, defendant was testimony when tion included for no with a wire fifth-grader he choked a grade, eighth when Subsequently, reason. apparent in the old, disappearance, he involved was years Sue five-year-old Tara assault, and murder of sexual missing, reported after she was Huffman. Several hours Objects home. from her was found two blocks body her During anus. his her and vagina inserted into had been of Tara Sue for the murder juvenile as a incarceration of a in Huffman, possession was found defendant weight a blade, 25-pound and “shank,” a hacksaw cell. the wall of his through a hole using punch he was Tara Sue Huffman’s from prison After his release A in fall of 1993. Florida murder, defendant moved to that, in she defendant testified former girlfriend sup- in To in house Sarasota. lived a crack and defendant shop- from themselves, money gained relied on they port from the govern- received girlfriend checks the lifting and and mental disabilities. of her physical ment because sexually abused defendant girlfriend, to this According her. testified of defendant girlfriend

A subsequent old and work- years she was met defendant when she defendant stated that She Sarasota. ing prostitute as and cocaine money selling made job could not hold that defen- testimony indicated Her fishing poles. stolen this In addition to her. abused physically dant also Christopher’s from statement impact testimony, a victim jury. to the was read mother As mitigation, presented defense testimony by stepmother, father, defendant’s and grandmother. They explained that defendant’s mother left the family when defendant was in kindergarten. She did not seek custody and, when visits were arranged children, with the she would often fail to come for those visits. Defendant was by loved his father and grandmother, but had they both jobs, full-time and the children were often left in the care baby-sitters. different Defendant’s childhood baby-sitters and teachers described defendant quiet, violent, as not below-average academically, and immature as a child. Defendant also skills, lacked social was teased other children. They also testified concerning the negative effects of defendant’s mother’s abandonment on him. According to elementary school one principal, month before defendant killed Tara Huffman, Sue defendant and his siblings went to a court at hearing which their mother said that she did not want the children. One baby-sitter also testified that that, told her left, before she his mother had locked the children their rooms and had chased them with a knife.

Personnel from the Illinois Youth Joliet, Center in where defendant was incarcerated for the murder of Tara Sue Huffman, also described defendant and, as quiet general, not a disciplinary problem. Instructors and a guard defendant knew after his transfer from juve- nile division to the adult division described him as im- mature but a not disciplinary problem. he Although was a student, slow he received his GED in while prison and became trained in automotive mechanics and welding.

When defendant Florida, moved to he first lived with a former baby-sitter and her husband for six months. She described defendant as immature but caring responsible. He moved out because he ran out of money and could not pay his rent. in probation

Defendant’s officer Florida stated that but, participated defendant because he counseling, counseling provide had to for this himself and his pay he out finances and transportation, dropped own when a problem. only became He worked transportation She did not know defendant to become vio- sporadically. in her he did not “tools” lent, but, opinion, have the and, result, for himself as a right make the decisions A provided would become frustrated. social worker who that he did counseling sex offender for defendant stated violent but immature and had low self- not seem esteem. Ziporyn,

Dr. Marvin testified he psychiatrist, defendant when defendant first evaluated of the juvenile Department entered the division Illinois Ziporyn diagnosed depres- of defendant with Corrections. rage, tremendous and hostil- accompanied by anger, sion According emotionally defendant was ity. Ziporyn, and, met, not when his emotional needs were deprived or turn- likely by acting out his respond anger he would his first becoming depressed. During it inward ing division, juvenile attempted in the he suicide years few Ziporyn recommended that defendant several times. a par- months of with therapy receive medication and six three months therapist. only Defendant received ticular By 1984, defendant had therapy. of the recommended Ziporyn and his medication was stopped. improved however, because he therapy, recommended further To Zi- problems core remained. believed that defendant’s was not knowledge, recommendation fol- poryn’s his a scale defendant as a 12 on described Ziporyn lowed. have recom- dangerousness 10 for and would not he is admitted that no Ziporyn mended his release. Dr. as a doctor Illinois. longer licensed Zoot, psychologist clinical who inter- Randy Dr. family his after and members viewed Christopher’s murder, testified that defendant suffered from parental neglect, skills, a lack of social dif- learning ficulties, and abnormal brain functioning because of a injury head an as infant. problems These left him with a ability limited to cope solve, and problem especially emotionally charged circumstances. She that, observed although received some counseling medication when he first juvenile entered the division, it not as much as the Department of Corrections’ own psychologist had recommended. In Zoot’s al- opinion, though defendant was able to function in the structured environment of the prison, he left prison with the same problems he had when he entered in 1982. Due to these problems, although defendant did not intend to harm anyone, he was unable to withhold inappropriate respon- ses.

Dr. Michael Gelbort, a neuropsychologist who also evaluated defendant after Christopher’s murder, testified that defendant had a language-based learning disability, some dysfunction, brain and attention deficit disorder. As result, reasoning and judgment were distorted, especially under ambiguous or cir- confusing cumstances. Although these neuropsychological defects could not be changed, defendant would have been “more likely” to lead a if, normal life at an early age, he had received treatment and been placed an environment which his choices were limited.

Based on record, this we do not believe that the evi- dence at the aggravation and mitigation stage of the sentencing hearing was closely balanced. Although evi- dence of defendant’s childhood is certainly tragic, it does not begin explain why defendant committed the brutal crimes of which he has been convicted. In addition, even the purportedly evidence mitigating presented at the hearing indicates that there is little chance that defen- dant could be rehabilitated. Within the years first few from for Tara

following prison release Sue Huffman’s his activities, murder, he involved in exhibited illegal became his violent behavior toward committed girlfriends, identical to the one for which he had previ- crime almost Also, defendant exhibited ously although been convicted. incarcerated, testimony by little violent behavior while explanation own indicates for this his experts is of the controlled environment apparent improvement he is According to even defendant’s own prison. experts, himself and others and suffers from neuro- dangerous to that cannot be remedied. psychological problems of the error prong plain With to the second respect doctrine, deny find that the error did not de we State’s are sentencing hearing. fendant Prosecutors fair arguments, in closing latitude their permitted wide result in closing comments will not during argument cause to a de they prejudice reversal unless substantial (1995). 1, In 2d 26 Hope, fendant. v. 168 Ill. People closing that remarks evaluating arguments claims erroneous, must these reviewing were courts consider arguments of as a parties’ comments in the context the (1997). 289, Ill. 319 The People Burgess, whole. v. 2d matter the closing argument is a within propriety of court, of the and its determina sound discretion circuit an abuse of tion will overturned absent discretion. not be (1995). 2d v. 165 Ill. 294-95 People Wiley, the portion that of agree We with In this improper. he cites is argument State’s rebuttal makes a distinction of its the State portion argument, jury’s mitigating evidence weighing between such mercy. There is no distinction its consideration held, mercy is a relevant because, Illinois as we have 46-47; See, 168 Ill. 2d at e.g., Hope, mitigating factor. (1991). Thus, to the 143 Ill. 2d Simms, jury that argument suggested extent that the State’s factor, or that mercy mitigating could not consider as a mercy factors, differed from other it was er- mitigating ror.

Nevertheless, our review of the record convinces us that this error did not result prejudice substantial defendant. While certain prosecution comments may suggested jury have to the it should not mercy factor, consider as a mitigating these comments were isolated and the remainder of its rebuttal argument made it mercy clear that awas relevant consideration. The stated prosecution repeatedly mercy “legit- is a imate” and potentially “appropriate” consideration. For it “In example, end, stated: although mercy is an ap- propriate thing the Defense to ask in every case, it’s appropriate, your job jurors it’s as to decide whether the object is a legitimate object Indeed, of mercy.” the fact that the defense argument was focused on mercy and the fact that the State devoted a substantial of its part rebut- tal argument to explaining why defendant did not deserve mercy indicated to the jury that it had the power to fac- tor mercy into its sentencing determination. addition, jury was instructed that mitigating

factors are “[a]ny reason supported by the evidence why the defendant should not be sentenced to death” and that “any statement or argument by the attorneys which is not based on the evidence should be disregarded.” See Hope, 168 Ill. 2d at In 26-27. the context of the parties’ arguments aas whole and instructions, these we find that the State’s improper remarks did not deny defen dant a fair For sentencing hearing. reasons, these we find no plain Richardson, error. See People v. 123 Ill. 2d (1988) (the 322, 361 State’s rebuttal argument at sentencing did not in plain result error where the evi dence was not closely balanced and justice substantial denied). was not

Alternatively, defendant that argues his counsel was ineffective for failing object to the State’s argument of ineffective assistance mercy. Defendant’s

concerning he has not dem claim is without merit because counsel failure from his counsel’s resulting onstrated prejudice argument of the State’s rebuttal object portion to the Bull, 185 Ill. 2d at 203. As we have at issue. See by the State were remarks improper explained, of the the remainder Also, in the context of isolated. and the circuit argument, defense State’s argument, not leave the instructions, these comments did court’s not consider that it could the mistaken belief jury with for defen sentence determining appropriate in mercy of ineffec defendant’s claim reject we Accordingly, dant. of counsel. tive assistance the circuit court asserts that

Finally, defendant error its sponte, sua corrected the State’s have, should mercy. of jury’s consideration concerning argument however, cites no observes, defendant As the State Accordingly, it is waived. argument. this authority for Madej, Ill. 2d People v. 341(e)(7); 155 Ill. 2d R. (1997). Care Psychiatric Inadequate F. is penalty that the death

Next, defendant contends or negligently the State in his case because inappropriate treatment the psychiatric failed to recklessly provide As a result of recommended. Dr. had Ziporyn treatment, this provide failure State’s and anger his through” to “work he was unable argues, not control his he could because Christopher murdered instant “[t]he fact, defendant asserts emotions. short, except been case, prevented could have On this of Corrections.” the Department negligence death sentence. that we vacate his basis, he requests to bal- sentencing jury capital function of a It is the at the second mitigation aggravation ance factors not be its decision “will sentencing, stage is where that decision lightly, particularly overturned 247 amply supported by People the record.” v. 172 Hooper, (1996). 64, Ill. 2d 77 “Mitigation evidence of defendant’s cognitive abilities and mental health does not preclude of a imposition death sentence when that evidence is by Pulliam, outweighed aggravating People evidence.” v. (1997). 176 Ill. 2d 286 case,

In this deciding before the death impose penalty, jury heard the evidence that defendant received less than all of the treatment recommended Ziporyn. Dr. Other evidence presented at the aggravation- mitigation however, stage, indicated that defendant did receive counseling some and that additional treatment may value, have been of limited given that treatment could not rectify dysfunction brain from which defen dant addition, suffered. jury heard evidence concerning the details of defendant’s brutal murders of two children and his for propensity violence. Based on record, this we will not overturn the jury’s decision to sentence defendant See, to death. e.g., Madej, 177 Ill. 2d at 139-40 evidence (mitigating of the defendant’s cogni difficulties, tive health, mental and abuse did not outweigh evidence in aggravation); Pulliam, 176 Ill. 2d (the at 286 death penalty was appropriate murder and sexual abuse of a child despite ev mitigating idence of the defendant’s depression, child, abuse as a anti-social personality disorder, IQ). and low G. Constitutionality Death Penalty Statute

Lastly, defendant argues that the Illinois death statute penalty is In previous cases, unconstitutional. we have repeatedly rejected the arguments defendant makes (1) here: the death penalty statute “requires sentencer to adhere to an impermissibly high standard of acquittal (see, of death” Macri, 77-78; 2d e.g., Ill. at (2) Jackson, v. (1998)), Ill. 2d 93-95 the statutory scheme arbitrary results imposition (see, the death penalty e.g., People Williams, 181 Ill. Brown, 1, Ill. 2d 62-63 297, (1998); v. 172 People

2d 333 (3) the statute is unconstitutional (1996)), ag jury “vague” it to consider permits because why reason” the defen “any factor of other gravating Johnson, (see, v. e.g., People to death put dant should be 1, (1998); 168 Ill. 2d People Hope, 112-13 v. 182 Ill. 2d (1995)). any with new present Defendant fails to us decisions previous us to overturn our persuade reason We, therefore, reject his constitutional on these issues. penalty to the Illinois death statute. challenge

CONCLUSION reasons, the circuit judgment of foregoing For the The of this court is affirmed. clerk County court of Will Tuesday, setting September is directed to enter an order the sentence of death 14, 1999, as the date on which carried out. Defen in the circuit court is to be entered by law. provided executed in the manner dant shall be (West 1996). this court The clerk of 725 ILCS 5/119 — 5 in of the mandate this case copy send a certified shall Tamms Corrections, to the warden of the Director of of the institution Center, and to the warden Correctional is now confined. where

Judgment affirmed. and dis- HARRISON, concurring part JUSTICE senting part: up should be Timothy Buss’ convictions

I agree my forth in dissent held. For the reasons set however, state’s (1998), present this Bull, 185 Ill. 2d 179 of the not meet the requirements law does penalty death the United States amendments and fourteenth eighth XIV) (U.S. I, VIII, or article Const., amends. Constitution (Ill. Const. 2, of the Illinois Constitution section 2). death vacate Buss’ I, Accordingly, § we should art. circuit court the cause to the and remand sentence ILCS imprisonment. sentence imposition 5/9— (West 1994). the circuit is, however, no need for There 1(j) sentencing hearing. court to conduct another Under the case, only disposi circumstances of this authorized tion is a term of natural life 730 ILCS imprisonment. (West 8—1(1)(b) 1994). 5/5 — (No. 82106.

THE PEOPLE OF THE ILLINOIS, STATE OF Appel

lee, WARD, v. JERRY Appellant. Opinion Rehearing June denied October 1999. filed 1999.

Case Details

Case Name: People v. Buss

Court Name: Illinois Supreme Court

Date Published: Apr 15, 1999

Citation: 718 N.E.2d 1

Docket Number: 81911

Court Abbreviation: Ill.