People v. Caffey

thе trial court them of their requested relieve their Second, attorneys also conceded appointments. statutory of knowledge provisions lack of the Illinois for hearings taking psy fitness defendants providing for Third, by as noted Chief Justice chotropic medications. over unexpectedly guilty Harrison, pled counsel, yet there is no objection explanation any could not or concessions why procure counsel did guilty plea, for such from the in return defendant’s State See agreement penalty. as an not to seek death (2001) (Harrison, C.J., Burt, 28, 41 dissent 205 Ill. 2d deficiency com ing). examples type Each of these is ad system thoroughly monly tolerated under old tried, the new rules. Since defendant dressed the benefit of to death without convicted sentenced rules, I dissent. respectfully the new

(No. 86975. ILLINOIS, THE OF Appel- THE OF STATE PEOPLE CAFFEY, lee, FEDELL Appellant. Rehearing

Opinion denied October filed 2001 . February 2002. HARRISON, C.J., KILBRIDE, J., dissenting. Pelletier,

Michael J. Deputy Defender, and Patricia Defender, of the Office of Mysza, Appellate Assistant Defender, Chicago, appellant. of for Appellate State (Joel General, of Ryan, Attorney Springfield James E. Bertocchi, General, and L. Browers D. Solicitor William General, Hoffmann, Attorneys and Paul Assistant Jay counsel), People. for the Chicago, of of the opinion delivered JUSTICE FREEMAN court: 16, 1995, fatally Evans was shot

On November Debra where she lived apartment and stabbed in the Addison children, Samantha, and her with James Edwards nine Joshua, pregnant. and Jordan. Debra was months from her carrying, Elijah, was cut baby The she was her apartment killed in the with womb. Samantha was apart- taken from the Elijah mother. Joshua and were in the with his apartment ment. Jordan was left alone found day, police The next dead mother sister. Police ar- body alley Maywood. in an Joshua’s dead In connection defendant, Caffey, night. Fedell rested the members of the kidnappings with the murders defendant, Jacqueline family, girlfriend his live-in Evans were Williams, and her cousin Laverne Ward Annette degree of first murder indicted on several counts jointly They separately. tried kidnapping. were aggravated Page of Du trial in the circuit court Following jury degree of the first defendant was convicted County, Samantha, and daughter and her murder of Debra Evans son and murder of Debra’s kidnapping the aggravated (West 1994). 2(a) At 1(a), Joshua. See 720 ILCS 10— 5/9 — jury found sentencing hearing, same separate and further penalty for the death eligible defendant circumstances mitigating were no determined that there Ac- sentence. preclude imposition sufficient death on the trial court sentenced cordingly, 30-year and to a consecutive convictions the murder term prison aggravated kidnapping on the conviction. direct stayed pending The death sentence has been VI, 4(b); § review this court. Ill. Const. art. 609(a).

Ill. 2d Rs. affirm. We

BACKGROUND essentially State’s evidence at trial was as fol- 16, 1995, lows. On November Debra Evans was nine pregnant baby, months with her whom she had named Elijah. Debra was scheduled to hospitalized be to have labor induced on November 19. had three ad- Debra ditional children: Samantha, age 10; Joshua, 7; and age Jordan, 2. age Debra and her children in apart- lived an ment in Addison with James Edwards.

Edwards worked across street from his and De- apartment. bra’s On 16, 1995, November at around 5:30 p.m., he left the apartment and went to work. He returned home after leaving job his at 2:30 a.m. on November 17. The back door to the apartment was unlocked. When opened door, Edwards Jordan greeted him. Edwards found Debra on the lying living room floor completely covered aby blanket. Edwards lifted the blanket and large saw a wound to her stomach. Elijah had been cut from Debra’s womb. Edwards ran to the children’s bedroom. He found Samantha lying on the floor completely covered a blanket. He lifted the blanket and saw Samantha’s neck had been slashed. Joshua was missing. telephoned Edwards 911. Several missing items were from the apartment, Ed- including wards’ Grambling State University Tigers jacket starter and a pair poultry shears.

Also on November midnight a.m., between and 1 Williams went to the apartment of Patrice in Scott Villa Park. Scott lived with Dwight Pruitt and her three daughters; her youngest daughter, Alexis, only IV2 was months old. friends; Williams and Scott were they had known each other for years. two to three Approximately

one month to that had told Scott prior night, Williams and that pregnant going she was Williams was baby have the November. arose, He

Williams’ knock at the door awoke Pruitt. door, and Pruitt boy. went to the and saw Williams Scott, returned to and told the door. bed who answered gray parked Scott saw a automobile outside. Williams wearing jacket was Edwards’ starter and a white sweater T-shirt, coat, wearing with blood. Joshua was spotted boots; wearing he socks or pants. told that Joshua’s mother had been Williams Scott shot, her in the going and that Williams was visit spend Scott if Joshua could hospital. Williams asked night apartment; at Scott’s Scott assented. Williams in the morning. would retrieve Joshua Williams also given bring claimed to have birth and would new baby with her. left,

After Williams Joshua used bathroom put coat and him to bed on the removed his boots. Scott living whimpering room couch. She heard Joshua night. crying during the daybreak, Scott heard Joshua morning,

Later that living arose with Alexis and entered the crying. Scott He told Scott that he had to upset. room. Joshua was alone, there and return to his home because Jordan was he, Joshua, not know where was. because Edwards would burglars had entered his explained Joshua four and sister. and cut his mother thrоugh home window burglars, the and Joshua Joshua who were Scott asked Fedell,” “Annette, and and a [sic] Levern answered repeated “Boo-Boo.” Joshua this Joshua called person hiding that he was explained more than three times. He ran leaving, he outside and, burglars as the were into bumped Williams. watching television in the bedroom

Pruitt was awake name the He Joshua lowered. overheard with volume burglars: “Annette”; “Vern”; a name that sounded four “Vedelle,” “Adelle,” “Ladelle”; and a fourth name like or point, Pruitt understand. At that that Pruitt could not living greeted Joshua, room, and returned entered the daughters arose and two older bedroom. Scott’s prepared They greeted Joshua; them one of for school. they school, told Scott read to him. After left for Joshua burglars might comeback.” “to lock the door because the apart- a.m., Around 9 returned to Scott’s Williams gray ment. Williams drove the same automobile previous night. told what Scott saw Scott Williams very upset Joshua had said. became with Williams lying, Joshua. She accused him of she told him that “he much,” talked too ordered him “to shut his damn she response, repeatedly mouth.” In Joshua asserted that he telling truth, and that Williams he was knew telling the truth because she was there. told that he had take

Williams Joshua the medicine replied his mother had left for him. Joshua that he did any glass not take medicine. Williams asked Scott for a water, which Scott from retrieved the kitchen. Wil- liams took the water and led into the Joshua kitchen. gagging, Joshua came out of the kitchen went to the bathroom and vomited. gifts

Williams said she had for Alexis and wanted to baby. check on her own Scott asked Pruitt to watch apartment Alexis, he but refused. So Scott left the with Alexis, Williams, and Joshua. alone,

Home Pruitt continued to watch television. On midday report regarding news, he saw a the murders. report photograph included a Debra and her recognized photograph. children. Pruitt Joshua in the apartment, dressed, Pruitt left the and looked for a telephone. He could not find one that worked and eventu- ally returned home. nearby to the

Williams first drove to store then Schaumburg town house she shared with defendant. It was a three-level garage laundry residence: and room floor, on the living bottom room and kitchen on floor, middle and top bedrooms on the floor. Williams drove into the garage. They left the car and went up living Williams’ room. Williams invited Scott “to look around,” since it was her first time in Williams’ home. stayed Joshua with Alexis in the room. On living being by Williams, called upstairs Scott went and into a lying “really bedroom. Defendant was on a bed with a pale” baby, who had “streams of blond hair coming down from and cap” “tape his across his navel.” living room, gave

Scott returned to the where she Later, Alexis a bottle of milk. Scott heard voice Williams’ instructing bring laundry her to Joshua to the downstairs room. room, In defendant,

Scott did so. Scott saw Wil- liams, and an unidentified man thereafter who soon departed. denied that this man Bo Scott was Wilson. directed to sit on a daybed. Joshua was Defendant asked why brought Williams she had Scott to the house and why projects” she had not taken Joshua to “the as defendant had instructed her. Williams answered that Joshua “talked too much” and that he knew their names: defendant, Williams, and he knew Ward. cord. ordered picked up

Williams white Joshua was Williams, to lean Defendant and each on pulling forward. cord, began strangle an end of the Joshua. He and screamed and clutched at the cord. Scott screamed Williams, who released her end. pushed neck, crying rubbing As Joshua was his Williams room, knife, laundry placed left the returned with it on the bed. Scott and asked to take screamed Williams her and Joshua to Scott’s home. Williams directed Scott upstairs. to retrieve Alexis. Scott took Joshua went door, it through tried to leave the front but She locked. Joshua,

Scott, Alexis and returned downstairs. with else, or ac- say anything, Scott not to warned Scott, my and cording “get daughters.” to he would me all They Defendant directed to take Scott home. Williams got the and in the car. Scott sat in the garage went to with Alexis. Joshua sat in the back- passenger front seat on the side. Defendant entered the car on passenger seat rear looked in the back of the car the driver side. Scott and defendant Joshua. repeatedly saw stab Williams the the and along appeared stood driver’s side of car reaching holding inside the car and Joshua. He was be kicking and front gasping the seat. seat, sat in the and defendant told

Williams driver’s her that go.” They May- “she knew where drove wood, where defendant and took Joshua from Williams helped the car and him walk to the rear of a building. Defendant and Williams returned without Joshua. Wil- liams left defendant in her Maywood drove Scott to apartment.

At approximately p.m., 12:15 Williams and Scott returned to Scott’s At apartment. request, Williams’ gave cleaning Scott her for her car. supplies Scott denied helping Greeting Scott, Williams clean the car. Pruitt door, told her to lock the and that he would telephone police. left, When Pruitt he cleaning saw Williams her car. Eventually, away. Williams drove

Pruitt found a and contacted telephone Addison police. Several police departments joined investiga- police tion. A car Pruitt picked up returned him to apartment. his Scott and Pruitt subsequently left the apartment police. with Scott led to the police building where defendant and Williams had dumped Joshua. corpse. Police recovered Joshua’s admitted that Scott she initially did not tell Joshua had named police defendant and “Boo-Boo” burglars. as two She explained that she feared defendant.

At 10:45 p.m., police went to defendant’s and Wil- They home, liams’ town house. were not but Williams’ there, children and their friends her were with oldest At daughter, age baby-sitting. p.m., or 11:45 returned home. Police arrested Williams them they dwelling. carry- as entered Williams was ing Elijah, had a bloody piece gauze taped who over wearing his navel. Defendant was starter Edwards’ jacket, right Elijah’s cuff of which was stained with blood. following

Police recovered evidence. In Debra’s room, in the a vehicle test apartment, living emissions bloody fingerprint. notice addressed to Debra had a State’s it expert opined fingerprint. was Williams’ vanity it; The bathroom had blood on the blood was subsequently Elijah’s. missing determined to be shears were found on the sidewalk in front of the poultry shears, There was on the and one of its apartment. blood handles tests revealed that the blood was broken. DNA to belonged Samantha. apart- from

Police also recovered evidence Scott’s in the Investigators empty ment. found an iodine bottle garbage. kitchen bag garage

In a in the of defendant’s garbage townhouse, coaxial cable police found a white Williams’ it. the blood with blood on DNA tests revealed Scott identified the cable as the one belonged to Joshua. strangle Joshua. In the and Williams used dishwasher, “rusty wooden handled police found knife,” identified as the knife that butcher which Scott carpet defendant used to stab Joshua. On backseat car, found blood that police defendant’s and Williams’ revealed that had treated with cleaner. DNA tests been closet, In a belonged police to Joshua. bedroom blood it. baby lotion with a stain on DNA found a bottle body mixture of the the stain was a tests revealed counter, fluids from Joshua and On Elijah. the kitchen police found two counterfeit birth certificates indicating, alia, baby inter that a was born to Williams and defendant at a hospital on November 1995. The had documents been on typed typewriter. Vikki Iacullo’s

Also, bedsheet, on police November found a blood, stained with Joshua’s seven from blocks where his body found. A matching sheet and were pillowcase found defendant’s and Williams’ town house. On 2, Iaeullo Dorothy December Hale directed police Wheaton, Herrick Lake in they where found .25-caliber pistol. Police determined that the gun had fired the bul- let that was recovered from Debra’s head. presented

The State following forensic evidence. Dr. performed Shaku Teas autopsies on Debra Sa- mantha. The cause of Samantha’s death was multiple stab wounds. Samantha had seven stab and incised wounds to the neck. Dr. Teas explained that a stab wound deeper is than it long, is and an longer incised wound is than it is deep. Samantha also had several incised wounds arm, the left which Dr. opined Teas were defense wounds.

Dr. Teas determined that Debra was shot in the back of the head. The bullet though traveled the right side of the brain to the area behind the forehead. This was the main cause of death. Debra also had four incised wounds to the neck. These wounds contributed to Also, her death. 13-inch, there was a jagged, horizontal wound across the lower abdomen. The umbilical cord was protruding therefrom. This wound deep penetrated the abdominal cavity and the small bowel. The had uterus been sliced open. Dr. Teas opined that all of the stab and incised wounds to Debra, Samantha and including the wound to abdomen, Debra’s could have been poultry caused the shears found in front of Debra’s apartment. Christopher

Dr. Olson was Debra’s obstetrician- gynecologist. spatters body around The blood Debra’s suggested presence pressure. to Dr. Olson the blood opined beating Eli- He that Debra’s heart was still when jah was cut out of her womb. explained persons are

Also, Dr. Olson three appropriate required perform medi- a Caesarean an minimum, are cal manner. At a more than two hands Elijah’s opined Dr. Olson removal from De- needed. required person. more than one bra’s womb Joseph Cogan performed autopsy an on Joshua. Dr. strangula- ligature marks, had which indicated by His neck wrapped tion. The marks caused a cord around were neck had several stab his neck at least twice. Joshua’s aspira- Also, wounds, wounds. and he had no defensive occurred, i.e., had inhaled his own vomit. tion had Joshua strangled Cogan opined first Dr. that Joshua was aspiration after he stabbed, and the occurred then stabbed. ligature the marks consistent with white

The were garage. found in defendant’s and Williams’ coaxial cable knife were consistent with the butcher stab wounds damage to The unusual found in their dishwasher. lung aspirated the stomach contents Joshua’s tissue from ingestion died of iodine. Joshua was consistent with injuries: strangulation, multiple the stab from aspiration contents. wounds, of the stomach immediately from his died Joshua would not have injuries, than 30 have lived for more he would not but minutes. circumstances of evidence describes the

The above kidnappings of members of Evans the murders and presented family. addition, evidence concern- In the Statе preced- ing in the months defendant, Williams, and Ward relationships ing with crimes, and of their evidence family. the Evans relationship since had in a and Edwards been

Debra it again again.” 1989. Debra’s sister described as “on off They 1995, had In March separated several times. Debra reconciled, and Edwards and he moved in their back apartment. Debra separated,

While and Edwards had been Lá- veme Ward lived with Debra. When Debra and Ward together lived he beat her more than once. Ward biological was the father of Jordan. Debra told her sister Elijah, that Edwards fathered which Edwards believed to However, be the case. subsequent DNA tests revealed biological Elijah. Ward was the father of Killeen neighbor Dawn was a of defendant and Wil- defendant, liams. Killeen was well acquainted with Wil- liams, and Ward. Killeen’s husband and defendant sold drugs together. Killeen and Ward were crack cocaine ad- drugs dicts and took together. Also, Ward was courier for defendant. May 1995,

In Killeen went to apartment defendant and Williams to borrow a vacuum cleaner. Among those in the apartment was Vikki Iacullo. Ward entered the apartment screaming that Debra was not al- lowing him to see Jordan. According Killeen, to Ward “said that he was tired of her shit and he wanted to end it. He wanted to problem. solve the He wanted to kill the bitch.” Defendant asked if Ward wanted a knife or a gun. Williams advised Ward to calm down because he would likely be the most suspect. In September 1995, Williams told Killeen that she was pregnant.

During last few prior murders, weeks to the Ward telephoned Debra several During times. these conversa- tions, Edwards overheard Debra arguing with Ward.

Approximately one week prior murders, Wil- liams went Debra’s apartment and asked for her. Wil- liams and spoke briefly. Edwards She asked Edwards about his work schedule. Edwards told Williams that he went to work at about 6 p.m. and returned home at about 2:30 a.m. John Pett-

On the afternoon of November Williams, cousin, defendant, and away, saw Williams’ driving were together. Pettaway As Ward Ward and asked Pett- Wheaton, around Ward saw defendant were in an away stop. Williams Pettaway’s in a lot. left car parked automobile Ward 10 to approximately and Williams for spoke to defendant and Pettaway’s they returned to car 15 minutes. Ward Pettaway’s went to the home of Pettaway left. and Ward had to find defen- Pettaway that he brother. Ward told house, they encountered they left the dant. When driving down a street. Defendant defendant and Williams left Pett- again one side. Ward pulled and to Williams and for and with defendant Williams away’s spoke car and Williams then 20 minutes. Defendant approximately afternoon, again told Pett- Later that Ward away. drove drove to Pettaway meet defendant. away that he had to him, to where, unbeknownst Williams’ the school did not find defendant. They children attended. sister, a house with Martin, shared

Tina Williams’ 1995, told In Williams April in their mother Wheaton. 16, at On November pregnant. was Martin Williams There, Martin’s house. went to p.m., around 6:50 Ward Martin with Debra. telephone had a conversation Ward conversation, during which of the portion overheard a left it mine?” Ward “Is it his or is asked Debra: Ward p.m. at around 8:10 Martin’s home in and Williams had met defendant Turner Kasandra was Turner that Williams 1995; then told Williams April p.m., 5:30 and between On November pregnant. Turner told Turner. telephoned baby. the to have going were that he and Williams p.m., and 9:30 Jacci 8:30 between On November heard complex, apartment in Debra’s Sullivan, who lived who also Clay, Tennie p.m., At 9:15 a about gunshot. a standing on persons saw four complex, in the lived talking sidewalk other. believed that three of each She African-American them and hght-skinned were one was a Hispanic. One of them was a wearing dark-colored starter jacket, black, the wearing and others hooded sweat- were jackets. shirts or Wilson, evening, Joy Tiffany Wilson,

That and age age 16, baby-sitting Tiffany were house. Tiffany’s was Joy’s and aunt also cousin of Ward and a Williams. Tiffany Joy watching p.m. were news when Ward entered the He carrying plastic house. was grocery bag that contained went something. Ward directly ato bathroom.

According Tiffany, emerged Ward from the bath- room wearing pants different carrying and still grocery bag. He Joy left the apartment. later Ward returned to home Tiffany’s the bag. without

Joy saw more. According Joy, when Ward entered house, pants his knee, had hole his pants and T-shirt had emerged bloodstains. Ward When from bathroom, clothes, he wearing different and the grocery bag appeared fuller. family dog

The frightened Joy then and caused her to run outside. She saw a four-door gray automobile with persons three inside —two men in the front and seat a woman in the back Joy seat. identified them all—two of them were Williams and They defendant. were sounding the car and calling horn for Carrying bag, Ward. he car, in got and they left.

Mohammid Siddiqui was a clerk at a Seven-Eleven store at Road Golf and Walnut Lane Schaumburg. He saw defendant and matching a woman the description of Williams enter the on store between November 1:30 and a.m. Defendant bought baby and wipes candy. register The store records a tape sale 1:49 a.m. for one $1.99, item at which of price baby wipes, was and one item at $0.99 cents. a.m., telephoned

At 3:30 Williams her approximately sister, Martin, she, Williams, Tina and her that had told spoke then to to just birth. Iacullo Martin given Vikki then asked to confirm Williams’ announcement. Martin if baby speak with defendant. She asked defendant there, in the affirma- really were and defendant answered tive. and mother drove Iacullo’s house.

Martin her then Williams, Iacullo, There, Martin and her mother saw defendant, Martin and baby. explained and a Iacullo and her mother that Williams came Iacullo’s house then into Iacullo said she rushed Wil- went labor. Iacullo hospital, gave gave to a where she birth. liams presence. baby’s this in defendant’s explanation Iacullo, Martin who light was so asked complexion Caucasian, baby hers. was if the were Martin’s mother baby belonged that she did not believe that declared defendant, then to leave. The to Williams and and asked only approximately visit Martin and her mother lasted of three to five minutes. afternoon, Pettaway saw and two

That John Williams daughters children at a car wash. One Williams’ her her vacuuming area of car. the backseat Defendant, Williams, charged jointly were Ward first degree in a 24-count indictment: counts of and one murder, aggravated kidnapping, two counts of individuals robbery. charged armed The three count of Williams, 193 Ill. 2d See separately. were tried case, In defendant’s the State entered 314-15 murder counts and prosequi nolle on 10 of the case, the robbery At the close of the State’s armed count. on one of the guilty a verdict of not trial court directed Defendant was aggravated kidnapping counts. remaining knowing murder the intentional ultimately tried for (720 1(a)(1), Samantha, ILCS Debra, Joshua 5/9 — (a)(2) (West on the felony their murder based 1994)), robbery felonies of and armed aggravated kidnapping (720 1(a)(3) (West 1994)), aggravated ILCS and the 5/9 — (720 2(a)(3) (West of Joshua kidnapping ILCS 5/10 — 1994)). essentially case The defense was as follows.

theory of the defense possessive was Williams was jealous of defendant. planned Williams cement relationship her with defendant be claiming to Williams, Ward, pregnant. ‍‌​‌​​​‌​​‌​​‌‌‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌​​‌​‌​‌‌‌‌​​​‌‍conspired and Iacullo to take Elijah. charged Those three committed offenses. Defendant part rather, was not of their conspiracy; he purpose was the of it.

Defendant in quit was born 1973. In job his drugs. United Parcel Service to sell Defendant began dating Williams of 1994. had spring She three children. others, Unbeknownst to defendant and Williams had a tubal ligation in longer 1986 and could no have children.

Shortly after defendant and began dating, Williams Williams learned that defendant had one-year-old daughter by girlfriend his former Latrina Montgomery. Defendant continued to have a sexual with relationship Montgomery and other women he while was with living Williams. Because jealous she was of Montgomery’s relationship defendant, with physical Williams had verbal Montgomery altercations with through from 1994 1995.

In February Williams told defendant that she рregnant. She previously feigned had pregnancies. 1995, defendant, In June Williams, her children moved to their Schaumburg town house. p.m.

At around 7:15 on the evening of November 1995, defendant, Williams, and her children returned from a home school game. shortly basketball Williams left thereafter. admitted that he telephoned Kasandra However, evening. denied an-

Turner earlier that he to nouncing going to that he and Williams were have her explained bought drugs a that Turner baby. Defendant day from him and for them with a previous paid the to her telephoned check. Defendant Turner inform that arrest, police had After his found check bounced. car. glove check in the box of defendant’s to p.m., Joyce Between 6:30 and 7 Holtz went bought and cocaine from defendant. defendant’s home three minutes. Between 8 stayed approximately She for program a television with p.m., and 9 defendant watched Christina, daughters. When she went to one of Williams’ bed, p.m., defendant was sometime between 8:05 still home. on defendant was worried

At 1:30 a.m. November He yet had not returned home. went because Williams phone. a He nearby pay Seven-Eleven store to use at time. Defendant buying baby wipes denied her to page Tina Martin and asked Williams. telephoned home. telephoned Iacullo and returned Defendant then a.m., Iacullo drove into At 2:30 approximately car; driveway. Defendant went to Iacullo’s defendant’s Indoors, told holding baby. Iacullo Williams was inside when she Iacullo’s house Williams a hospital drove went into labor. Iacullo Williams leave the baby. Williams had to where she had she did not have health insurance. hospital because of initially Williams’ skeptical Defendant was it However, began he to believe because story. Iacullo’s took the three them there at 2:30 a.m. The baby was car. At the house to retrieve Williams’ baby to Iacullo’s and, Tina described telephoned Martin as house, Williams baby. her of the earlier, informed and drove to the left Iacullo Defendant and Williams was earlier. where defendant same Seven-Eleven store register at that time. The store bought baby wipes He records a 4:49 item tape purchase costing a.m. an $1.99, baby wipes. They which was the returned price at around 5 a.m. next lay baby home to the and fell asleep. noon,

Defendant awoke at around an er- performed rand with Williams and baby, returned home 2 p.m. pick between 1:30 and then left up Williams her stayed children from school. Defendant home with the baby. Williams returned p.m. between 4:30 and 5

At approximately Iacullo p.m., paged 8:50 defendant. He, Williams, and the baby went to Iacullo’s house. Iac- gave Tigers ullo defendant a Grambling jacket, calling it a “Daddy’s Day present.” Defendant had left home without a coat sufficiently because their car was heated. They home, returned they arrested, where were with defendant wearing the jacket, and Williams carrying the baby.

Iacullo was charged justice with obstruction of regarding her involvement in these crimes. the Invoking amendment, fifth she refused to testify defendant’s trial.

The defense attacked the credibility of the State’s suggested witnesses and inconsistencies and contradic- in their tions testimony. any denied involve- in ment these crimes.

At the evidence, close of the jury the general returned verdicts of guilty of the degree Debra, first murders of Samantha, and Joshua. The jury general also returned a guilty verdict of aggravated of the kidnapping of Joshua. In eligibility the phase of the death sentencing hear- ing, jury the separate returned seven eligibility verdicts. The jury beyond found presence reasonable doubt the of following statutory the aggravating factors. Regarding murder, Debra’s jury the found that defendant was convicted of murdering two or persons. more See 720 1(b)(3) (West 1994). ILCS Regarding Samantha’s 5/9 — of murder, that: defendant was convicted jury found or more and the murder of Sa- murdering persons; two 12, of mantha, age who under was brutal (West 1994). (b)(7) 1(B)(3), heinous. See 720 ILCS 5/9 — murder, that: defen- Regarding jury found Joshua’s or more murdering persons; of two dant was convicted felony, either killed in the course of another Joshua was of robbery; the murder or armed aggravated kidnapping 12, of Joshua, age who was under was brutal him heinous; prevent defendant murdered Joshua to the State. See giving from material assistance 1994). (b)(8) (West (b)(6), (b)(7), 1(b)(3), ILCS 5/9 — hearing, sentencing the death stage At the of second following aggravation included the the State’s case in defen- trooper stopped In March a state evidence. pat-down A search protective dant for speeding. a box of ammunition. Defendant was defendant revealed and traf- of ammunition possession for unlawful arrested supervision. court fic offenses. Defendant received speeding. for July stopped In defendant police under Hidden driving passengers. He was with two a loaded pistol seat was passenger left side the front cartridges. freshly discharged with two Weaver, high February school In Nakia defendant, defendant and another witnessed girlfriend day, After a classroom. school fight student sitting in the front Weaver, who was found down the window. of a car. Weaver rolled passenger side in Weaver fight, slapped for the defendant Blaming her herself, punched and defendant the face. Weaver defended the attack reported and then left. Weaver her in the face battery. with police, charged and defendant was in because she However, appear did not court Weaver date. of defendant’s court was not notified defendant, standing in the middle September In from a rounds street, multiple a fired of residential handgun. particular day, It was noontime on that and children were on the street. One walking playing an bullet shattered automobile windshield. Defendant was convicted of apprehended subsequently criminal firearm, a damage property, possession unlawful of a weapon. unlawful use of He was sentenced to one year discharge days community of conditional and 10 service.

In December police encountered defendant and another man in a parked automobile. Defendant sit- was in ting passenger the front A seat. consensual search of car revealed a handgun loaded under defendant’s A charge seat. of weapon ultimately unlawful use a was dismissed. January 1995,

In defendant Gregory struck Flowers bottle, in the head with a beer him a accusing stealing part from defendant’s automobile. Flowers received a three-inch laceration. He did a sign not criminal com- plaint, and defendant was charged. July

In police officer saw defendant chase vehicle down a street. The officer then defendant saw return to and enter another car. The officer approached; sitting was in the passenger front seat. The of- ficer knew that there was a warrant for defendant’s ar- for rest failure to appear in The court. officer ordered defendant out of the car, car. As defendant exited the officer observed a handgun, small a pillowcase, and a digital scale on the floor in the area where defendant was seated. gun The was a BB gun, pillowcase and the contained in coins. $125.78 Defendant also had on his person in currency. Defendant $235 volunteered that the his, coins were but he denied knowledge of the BB gun, scale, or the He charged on $235. the warrant for appear failure to court. lastly presented State impact victim evidence. Evans,

Sam father; Wendy Williams, Debra’s Debra’s father, Gilbert, each read a sister; and Scott Samantha’s impact statement. victim following mitigation in included the

Defendant’s case great Glover, aunt, defendant’s testified evidence. Sonia childhood, In defendant lived with his as follows. his Caffey; grandmother, grandfather, James his maternal Elaine; Winifred; mother, and his uncle David. his identity Although they to know the defen- claimed acknowledged father, man defendant as dant’s never his son. dysfunctional grew up in a household.

Defendant schizophrenic regularly a and was was chronic Winifred hospitalized At the time of the at several institutions. hearing, permanent sentencing in facil- a death shе was ity. attempted suicide several times both before Winifred presence, In defendant’s defendant was born. and after things voicesthat were there. and hear she would see mentally ill. She took LSD Also, mother was defendant’s gave defendant. after she birth to before and relationship grandfa- good a with his had In 1991, role model. male ther, who was defendant’s Caffey home, in with defendant cancer, his James died there. began relationship high school,

While daughter, Montgomery.They Vanessa. had with Latrina children. Defendant David also had Defendant’s uncle temper his with lost for these children never cared them or struck them. “very positive” thoughts were of defendant

Glover’s Noting through up grew “[h]e difficult times.” because home, believed childhood Glover defendant’s also a victim.” Glover been defendant has “somewhat high school, he had reached that when defendant noted According gang. joined “This intro- to Glover: living, a street money, lifestyle fast of fast him to a duced hell.” absolute

Defendant’s uncle David much of Glover’s amplified following. He added the He was raised as testimony. years he four only defendant’s brother because older grand- than defendant. Both defendant’s mother paranoid They mother schizophrenics. always were argued, which caused defendant to become withdrawn quiet. and David never defendant temper saw lose his daughter with his or David’s three children. grandfather

Defendant’s treated defendant like a son. grandfather’s His death affected and deeply defendant upset the entire household. David added defendant became gang drugs. However, involved a street and sold these activities were not connected. teacher,

Defendant’s grade White, fourth Neacy testi- fied that in her classroom defendant quiet, helpful, and respectful, obedient. She believed that defendant knew the right difference between and wrong and, to her knowledge, placed defendant was not in learning dis- ability special or education classes. cousins Gary

Defendant’s Smart and Ronalda Robin- son each regarding testified loving defendant’s attitude toward his family. Smart, to According defendant never violently acted toward family. his cared always mother; for always his he her gave money as needed. When defendant teenager, grew became a he more independent from his family. extended Defendant “all of a sudden, he had things, you’d and wonder got where he them from.”

According Robinson, defendant was the same age as her two older sons. Defendant visited her home often spent time much with them. He played also her with younger children. very Defendant was loving caring daughter toward his Vanessa. Robinson never saw children; reаct violently these he never lost his patience with them or hit He them. also attended Robinson, church with services who awas church elder. Savarese, Ph.D., a clinical social George licensed worker, Evalua- prepared “Psychosocial Developmental Dr. evaluation, In this Sa- preparing tion” of defendant. members, defendant, family his varese interviewed birth, reviewed various neighbors, and teachers. He also medical, psychiatric, purpose and school records. there the evaluation was to determine whether were in defendant’s stressors” that occurred “developmental “developmental life. described a stressor” Dr. Savarese occurred in any person’s as event or circumstance that Dr. development. life is an to normal Savar- obstacle through stages for all possible ese searched stressors Dr. life, to his Savarese including prior defendant’s birth. opinion then formed an as to how those stressors functioning, emotional impacted defendant’s behavioral cognitive coping, ability. extensively

In Dr. referred testimony, his Savarese testimony His included of the written evaluation. all his mitigation supplied by information the above-mentioned witnesses. child- regarding testified defendant’s

Dr. Savarese testimony additional supplied hood household. His mother, her Elaine: regarding information defendant’s alcohol, and her illness, drugs and mental her abuse of all Essentially, to care for defendant. resulting inability if substances, were and abuse she sleep she could do was hospitalized. regarding further details provided Dr. Savarese illness, her mental Winifred: grandmother, defendant’s abuse, her attempts, her suicide repeated her substance mother, and fights defendant’s physical with repeated example, For of her bizarre behavior. examples several strip naked teenager, she would defendant was a when dress room; have to defendant would and walk into his her. regard- information supplied additional

Dr. Savarese ing the men in defendant’s household. Defendant’s grandfather, provided James, awith model of cope how to with this chaotic household. James would occasionally girlfriend. to live leave household with However, James would return take Elaine or Winifred hospital to a as needed. Defendant’s uncle David sold crack cocaine from their home.

Also, life, in later his defendant confronted the man family However, members claimed was his father. man told defendant that he and several other men had group sex with Thus, his mother. Dr. testified, Savarese [defendant’s] the man “disavowed he his was father and *** really said no one was clear on who his father was [a]nd no onе was, fact, would take credit for in who his father.” opinions regarding

Dr. Savarese formed several how defendant’s childhoodhousehold affected him. toDue his dysfunctional chaotic and household, defendant had the being sense of not cared for and a fear of abandonment rejection. or The substance abuse the household impacted normalized that behavior for defendant and his drugs. began drugs decision to sell to sell exposure gangs escalated his to street because there was no one at home to limit that behavior. regarding

Dr. Savarese testified defendant’s adult relationships. Defendant became involved with two Montgomery, women at the same time: Latrina daughter mother of his Vanessa, and Williams.Dr. Savar- opined triangle ese that defendant in the same between two women as he was between his mother and grandmother. very manipulative, threatening,

Williams was attempts violent. She used suicide to control defendant’s example, For behavior. when defendant once tried gave her, leave she her slit Dr. wrists. Savarese additional examples of Williams’ She conduct. stabbed defendant him a hospital. over She crashed vigil

and then stood police that defendant had crashed his car and then told that if and had hit her. Williams told defendant the car her, her children be on the street without a he left would children. felt for her responsible father. Defendant sentencing hearing, jury found At the close sufficient to mitigating no circumstances that there were The court penalty. of the death trial preclude imposition on the verdict. judgment entered motion, trial denying post-trial After defendant’s ag- hearing defendant’s sentencing held a on court There, made defendant kidnapping conviction. gravated sympathy expressed in allocution. Defendant a statement he in- However, complete claimed family. for the Evans any in these crimes. nocence; he denied involvement to death on the The trial court sentenced defendant also sentenced degree first murder convictions. court term on the 30-year prison to a consecutive conviction. aggravated kidnapping facts will be pertinent Additional appeals. Defendant appeal. the issues raised on in the context of discussed

DISCUSSION Phase Guilt Statements Hearsay Exclusion of I. erred the trial court contends (A) (B) Ward, Wil

excluding out-of-court statements (C) these Defendant contends liams, and Iacullo. trial that theory at supported have his statements would she believing that him into Williams deceived in Ward’s and participate he and that did pregnant, “Hearsay evidence these crimes. plan commit Williams’ prove offеred to the truth is an out-of-court statement due asserted, it is inadmissible generally the matter exception an reliability it falls within unless lack of its Ill. 2d hearsay People Olinger, rule.” to the 89 (1997). that these fell argues 357 Defendant statements against rule exceptions hearsay. within various to the of initially as to our parties disagree standard review. The State contends that we should review deferentially testimony. the trial exclusion of court’s this Defendant, however, that de contends we should review hearsay novo trial court’s exclusion of these state Evidentiary ments. rulings are within the sound discre tion of the trial court and will be reversed unless the Reid, trial court has abused that v. 179 People discretion. 297, (1997); Ward, 443, Ill. 2d v. People 313 101 Ill. 2d (1984). 455-56 An will only abuse of discretion be found ruling fanciful, where the trial court’s arbitrary, is unreasonable, or person where no reasonable would take adopted by view the trial court. 145 People Illgen, v. (1991). 353, Ill. 2d Reviewing 364 courts generally use an abuse-of-discretion standard to evidentiary review rul ings rather than review de them novo. v. Chil People (1994). dress, 275, 158 Ill. 2d 296 argues evidentiary that rulings at is sue here were uniquely legal rulings, may which we de reviewing review novo. It is true that courts sometimes evidentiary rulings review de novo. This exception to the general rule deference applies cases where “a trial court’s exercise of has been discretion frustrated an Williams, erroneous rule of v. People law.” 188 Ill. 2d 365, (1999); see, e.g., 369 v. People Aguilar, App. 265 Ill. (1994). 3d 109 reject argument

We defendant’s and review these evidentiary rulings with deference to the trial court. The decision whether to admit made in evidence cannot be isolation. The trial must court consider a number issue, including circumstances that bear on that ques reliability Childress, tions of prejudice. See 158 Ill. 2d In case, trial 295-96. this court exercised discre tion in making evidentiary rulings, i.e., these the court specific these on the this rulings

based circumstances broadly applicable People rule. See case not on (2000); Williams, 181 Ill. Hall, 2d Ill. 2d

A. Hearsay Excluded Statement Ward’s testified that on the afternoon of November Pettaway Ward, he 16, 1995, Pettaway who told he was with Ward, to find The State theorized had defendant. defendant, On plan and Williams met to these crimes. cross-examination, asked Pett- defendant’s trial counsel he wanted you “Did Mr. ever indicate to that away: Ward 16th, to on 1995?” buy drugs [defendant] from November “Yes, he objection, Pettaway answered: Over the State’s objection The court the State’s on did.” trial sustained The not allow defendant’s hearsay grounds. court would hearsay elicit remainder of Ward’s trial counsel to the buy find to Ward needed to defendant statement —that from him. drugs initially that defendant waived responds

The State object to ruling he failed both this because review motion. post-trial and to include issue in his trial the sidebar, a trial that, during record defendant’s shows hearsay exceptions unsuccessfully asserted the counsel will consider this issue even on he now relies. We which it in mo post-trial failed to include his though defendant trial and the raised the issue at tion because defendant a right present to defendant’s due process concerns issue 63, 99-100 McCallister, v. 193 Ill. 2d People defense. See (1988); Enoch, 176, 122 Ill. 2d 190 (2000), v. citing People (1995). 1, 10 Keene, v. 169 Ill. 2d hearsay the state- proffered argues excep- fell within two it ment was admissible because ‘completion rule. “Under the hearsay to the tions by related doctrine,’ of a conversation is portion when a the right bring to out witness, party has a opposing a the trier of to the prevent that conversation remainder being People Ward, fact misled.” v. 154 Ill. 2d from (1992); People Weaver, 2d accord Ill. 556-57 (and therein). (1982) testimony- However, cases cited misleading. regarding actually must be conversation right portions “A no of a defendant has to introduce necessary jury statement which are not to enable the properly portions by evaluate introduced the State.” People Olinger, 112 Ill. 2d present Pettaway’s testimony case,

In the did prejudice misleading. Pettaway defendant, i.e., it was not never indicated that Ward with wanted meet plan Pettaway Further, and Williams to these crimes. testified that: he and together; had Ward smoked crack cocaine drug dealer;

he knew that defendant was a he bought previously drugs had defendant; from had and he buy drugs seen from Thus, Ward defendant. there was testimony by Pettaway abundant from which defendant’s argue meetings trial counsel could that the between Ward buy drugs. and defendant were motivated desire Moreover, that, defendant himself testified at the first meeting Pettaway related, defendant and Ward left parking nearby apartment lot, went to the of Ward’s girlfriend, completed drug transaction. Conse quently, proffered hearsay statement was not neces sary prevent jurors being by Pettaway’s to from misled testimony. e.g., People See, Ward, 312; Ill. 154 2d at v. (1992). App. Harris, 236 Ill. 574, 3d 580-81 argues proffered hearsay Defendant that the state ment was admissible also because it fell within the exception hearsay “state-of-mind” to rule. State that ments indicate the declarant’s of state mind are exceptions hearsay admissible as to the rule when the testify, declarant is unavailable to a there is reasonable probability proffered hearsay that the are statements truthful, and are to a statements relevant material People Floyd, issue in the 541, case. v. Ill. 2d (1984). points to cоrrobora- the above-mentioned Pettaway’s testimony of for the portions support

tive as of These facts do hearsay truthfulness Ward’s statement. from possibly buy drugs indicate that Ward wanted to However, they reliability defendant. do not indicate they not a Pettaway; up of Ward’s statement to do add to of of state- probability reasonable the truthfulness Ward’s hand, it a inherently likely ment. On the one is that drug a drug would tell the truth to fellow user about user buy hand, On the other it be wanting drugs. to must jointly charged with defen- remembered that Ward was likely these It committing inherently dant of crimes. is that a want to conceal from another person would fact to murder meeting plan that he was with others obviously greater Ward had a reason kidnapping. tell finding to lie his motive for defendant than to about no probability the truth. There was reasonable hearsay Ward’s was truthful. statement event, hearsay if statement admis any In Ward’s was mind, of the exclusion the state sible to show his state hearsay Error in the exclusion ment was harmless. is the excluded evidence testimony is harmless where merely presented cumulative of other evidence 294, Bartall, 2d 318-20 v. 98 Ill. parties. People See (1982). (1983); Kline, 92 Ill. 2d 503-04 v. People itself case, Pettaway’s testimony In this contained argue from defendant could significant evidence which buy drugs. to wanted find defendant Ward subject mat Further, testified to the actually testified that hearsay statement. Defendant ter of Ward’s meeting at the first he crack cocaine Ward sold further a conclu Pettaway supports testified. This which harm testimony sion that the exclusion Ward’s Ill. 3d 580-81 App. less. Nyberg, See Hudson, 198 Ill. 3d 923-25 (1995); People App. drug regarding his relation- Pettaway’s testimony ship Ward, own testi- with combined with defendant’s strong mony drugs Ward, sold to was at least as that he any hearsay Therefore, as er- Ward’sexcluded statement. ror in its exclusion was harmless. Hearsay

B. Excluded Statements Williams’ Young separate Kimberly that, testified on three oc- falsely casions, Williams told her that was Williams pregnant. Young if Defendant’s trial counsel asked Wil- why liams told her pregnant. needed to tell a man she was Williams trial the court then sustained State’s objection hearsay grounds. on Defense made an counsel Young’stestimony. proof Young offer of told Williams falsely would tell a man she Williams was pregnant keep argues him. that Williams’ hearsay Young fell statement into the same two hearsay exceptions hearsay as Ward’s statement: the completion exception. doctrine and the state-of-mind hearsay applies exception comple

Neither here. The apply Young tion doctrine does not because was defen Young’s testimony prof dant’s All witness. and her testimony presented during fered defendant’s direct clarifying Thus, examination of her. is there no issue of partial misleading testimony opposing elicited rule). party. (stating Ward, See 154 Ill. 2d exception apply Also, state-of-mind does not here. hearsay As statement, with Ward’s excluded there is no probability hearsay reasonable that this statement any Williams was truthful. The record does not disclose regard among reason casual conversation these acquaintances inherently as reliable. exception apply

If the did state-of-mind to Williams’ hearsay Young, statement to exclusion of state- presented ment was harmless. Defendant much ad- regarding deceiving others, ditional evidence Williams In being defendant, pregnant. her lies of with including Turner, persons Martin, at least three case State’s — himself so Moreover, defendant testified. and Killeen —so additional evidence presented Defendant also testified. him. See regarding nature possessive jealous her 318-20; App. 275 Ill. 3d Bartall, Nyberg, 2d at 98 Ill. 580-81.

2 former the mother of defendant’s Randle was Pauline fol- testified as Montgomery. Randle Latrina girlfriend, calls telephone 15 to 20 early In she received lows. heard the had never woman. Randle from the same calls, had spoken to these nor she prior woman’s voice the result- objected. During The State person. Williams proof. offer of following made the sidebar, defendant ing call, the woman that, in the first testify Randle would In subsequent mother. as Williams’ identified herself Also, Ran- herself as Williams. calls, identified the woman from Wil- that the calls came ID” indicated dle’s “caller pregnant told Randle that she was liams’ home. Williams her tell child, that Randle should with defendant’s trial court away from defendant. stay daughter no show- there was testimony, finding excluded calls. phone to who made ing as to the is are relevant conversations Telephone laid. is if a foundation proper competent sues at trial are or her as to his person the other by A mere assertion as a sufficient cannot be taken being hearsay, identity, Poe, 121 identity. People person’s the other showing of Graham, & Cleary (1984); accord M. 457, 460 App. Ill. 3d (7th § ed. Evidence 901.7 of Illinois Handbook Graham’s 1999). between to a conversation Testimony telephone as in the is inadmissible person and another a witness knows that he or she the witness a claim absence or voice identify person’s or can person the other the caller from which circumstances other corroborative can be identified person as the who talked to the witness. (1986) (and Ill. 3d Abrego, App. 981-82 therein); cases cited accord J. Strong, McCormick on (5th 1999). § Evidence at 52 ed. (“caller ID”)

Caller identification information is one suсh corroborative circumstance. the admissibility While ID caller evidence appears to be an issue of first impression in Illinois, other courts have considered the issue. The displayed information on a caller ID device is (see not hearsay ‍‌​‌​​​‌​​‌​​‌‌‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌​​‌​‌​‌‌‌‌​​​‌‍because there is no out-of-court asserter “ Olinger, 176 Ill. 2d at (stating hearsay rule)); ‘the caller ID display is based computer generated on informa tion and not simply the repetition of prior recorded hu ” man input or observation.’ State, Culbreath v. 667 So. (Ala. 2d 162 1995), Crim. App. quoting Tatum v. Commonwealth, 17 App. 585, 588, Va. 440 S.E.2d agree We with this reasoning and hold that only requirement necessary for the admission of caller ID evidence is that the caller ID proven device be Culbreath, reliable. See 162; So. 2d at Tatum, 17 Va. App. 588-89, at 440 S.E.2d at 135-36.

The reliability of a caller ID device must be made on a case-by-case basis in light of the specific facts and circumstances. In other words, it would not be appropri- ate to find particular that a type or brand of caller ID device always is reliable. Reliability may be established when the witness testifies that when he or she received calls, telephone the witness checked the caller ID and the same always number appeared for the same caller. Culbreath, See 667 So. 2d at 162.

In case, this Randle’s caller ID displayed Williams’ name for each of the 15 to 20 telephone from calls same woman. We hold the reliability of Randle’s caller ID was established in this case. The circumstance of Randle’s ID, caller with the other circumstances described in defendant’s offer of proof, provided a suf- regarding the testimony for Randle’s

ficient foundation Its exclusion conversations. telephone content of the constituted error. there harmless because was

However, this error was animosity and jealousy other evidence of Williams’ testi Indeed, Montgomery herself Montgomery. toward with physical and altercations that she had verbal fied to corroborate Wil Thus, testimony there was Williams. of Randle’s threats the time jealousy and liams’ Therefore, harm any error was conversations. telephone Bartall, Ill. 2d at 318-20. less. See Hearsay Excluded Statements C. Iacullo’s police led and Williams The arrest of defendant on police statements gave Iacullo. She question thereafter, which 18, 1995, and several times November on Williams Early November following. included the baby’s umbili- baby. a Iacullo’s house with arrived at blood, gave Iacullo Williams so dripping cal cord was wearing light-colored tape. Williams gauze her had a fresh cut on on it and she that had blood shirt Grambling Tigers gave Iacullo Edwards’ hand. Williams it to defendant as give her to jаcket and told starter to Williams’ Iacullo drove Williams daddy present.” “new baby There, Iacullo showed house. gave Iacullo also Fedell, Jr.” Baby “surprise, said behest, Iacullo Also, at Williams’ to defendant. jacket it to gave Williams certificate a false birth prepared presence. of defendant’s outside justice obstruction Iacullo with charged State the Invoking crimes. in these her involvement relating to testify on defendant’s amendment, refused to she fifth Iacullo’s statements. excluded The trial court behalf. fell within Iacullo’s statements argues to the exception statement-against-penal-interest the hearsay Generally, extrajudicial rule. an unsworn declara tion that the declarant crime, committed the the hearsay, though trial, defendant on is inadmissible even against penal the declaration is the declarant’s interest. (1986). People Bowel, Ill. 2d However,where rights directly constitutional affect the ascertain guilt implicated, hearsay may ment of mechanically applied are rule not be justice.

to defeat the ends of hearsay testimony persuasive Therefore, where bears as surances of trustworthiness and is critical to the ac deprives defense, cused’s its exclusion the defendant of a process. People fair trial in accord with Thomas, due (1996), citing 171 Ill. 2d 215-16 Chambers v. Missis sippi, 284, 302, 410 U.S. 35 L. Ed. 297, 313, 2d 93 S. Ct. testimony may 1038, 1049 Such be admissible statement-against-penal-interest exception under the hearsay Bowel, rule. 111 Ill. 2d at 66. Chambers help reliability established four factors to determine the (1) hearsay spontane of a ously statement: the statement was acquaintance shortly made to a close after the (2) occurred; crime the statement is corroborated (3) other self-incriminating evidence; the statement is against (4) interests; declarant’s there was adequate opportunity for cross-examination of the declar ant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311- presence 12, 93 S. Ct. at 1048-49.The of all four factors admissibility. question is not a condition of Rather, deciding admissibility be considered in of such an extrajudicial statement is whether it was made under provide circumstances which considerable assurance of reliability by objective its indicia of trustworthiness. Thomas, 171 Ill. 2d at 216.

Iacullo’s statements were not made under circum- provide reliability. stances that considerable assurance of The first Chambers factor was not established. Iacullo’s spontaneous statements were neither nor made ato close acquaintance.

98 Rivera, v. F.2d 282 People 915

Defendant cites to (7th to court referred 1990), appeals where a federal Cir. reason for exclud the first Chambers “silly” factor as a of that court’s Regardless ing party’s a third confession. factor, on federal of the first Chambers passing in opinion only by deci this court is bound questions, constitutional Court. Decisions Supreme the United States sions of courts, not conclusive on state federal courts are lower of the lower federal court as the decision except insofar the, Kokoraleis, 132 v. People the law of case. may become affirmed Illinois courts have Ill. 2d 293-94 based, the fact part, upon in hearsay the exclusion of than made to the rather police were the statements Thomas, 2d at See, 171 Ill. e.g., acquaintance. to a close (1980) Black, 116, 121 v. App. 80 Ill. 3d People 216; more friend or confidant admissions to (spontaneous to a police made than calculated statements likely reliable officer). Anderson, 291 Ill.

Also, Rivera, People as well as Kokoraleis, Ill. (1997), App. 3d 843 cites, are defendant also (1986), to which 3d 1000 App. cases, the In each of those from this case. distinguishable to the same an actual confession was hearsay statement and there charged, that defendant was crime for which to attempting the declarant was no indication Anderson, Rivera, 915 F.2d at 281; liability. limit his own Kokoraleis, App. Ill. 3d at 847; 3d at App. 291 Ill. in those cases the declarants The statements 1017. confes their trustworthy to because likely more be were others, would implicate did not sions, they in which lead and, fact, possibly in would them clearly not benefit Kokoraleis, at Ill. 3d App. prosecution. to criminal 2d Chambers, 410 U.S. at 301, 35 L. Ed. 1020-21, citing 1048; Anderson, 3d at App. 291 Ill. at 312, 93 S. Ct. 851. did case, statements Iacullo’s

However, present in the not constitute a confession the same crimes for which charged, defendant was nor was it a confession which implicated she others. Iacullo’s statements indicated that gave Williams Iacullo the jacket give told her to it to defendant; that Iacullo and drove together Williams Williams’ home where Iacullo the baby showed defendant; and that Williams was also involved in the of preparation the false birth certificate. The indicia of by trustworthiness reflected the first Chambers factor are not present.

The second Chambers factor was established. There is evidence to corroborate Iacullo’s statements.

The third Chambers factor was not established. a Whether statement actually against is the declarant’s interest must be determined from the circumstances of each case. For example, a statement admitting guilt and implicating person, another made while in custody, may well be motivated by a curry desire to favor with the and, authorities accordingly, fail to qualify against as interest. See Williamson v. States, 594, United 512 U.S. 601-02, 476, 129 L. Ed. 2d 484, 114 S. Ct. 2436 (1994) 804(b)(3)). (interpreting Fed. R. Evid. case,

In this almost all of Iacullo’s statements werе not self-incriminating against her interests. There is no crime in: allowing into one’s home a friend who claims just given have birth; helping to bandage baby; driv- ing that friend to her home presenting the baby to the alleged father; giving or jacket. someone a While Iac- ullo’s statement regarding the false birth certificate was somewhat self-incriminating, it not against was her inter- Rather, est. it against the interests of Williams. The statement implicated Williams figure. as central Ac- cording statement, to the it was Williams who initiated the quest for the false paperwork.

The fourth Chambers factor is not established. Invok- ing fifth amendment, Iacullo was not available for 100 “Although general the State.

cross-examination unavailability of the wit speak loosely is to of practice ness, unavailability of actually the critical factor is be testimony. may physically Witnesses witness’ testimony in court but their nevertheless present § McCormick on Evidence Strong, unavailable.” J. 1999). (5th of to avoid privilege ed. “The exercise us, example in the case before is a classic testifying, as witness’] in but not being person [the available witness Gronkowski, App. 9 Ill. 3d testimony.” Naylor v. is unavailability privilege of a witness based on 306) Ill. 3d at (Naylor, App. at common law recognized 804(a) Rule of the the Federal Rules of Evidence. provides: Evidence Federal Rules of “(a) ‘Unavailability as a unavailability. wit- Definition in the declarant— ness’ includes situations which (1) ground on the exempted by ruling of the court is concerning subject mat- testifying privilege from statement; or ter of the declarant’s (2) testify concerning the refusing persists despite declarant’s statement an subject matter of the so; court to do or order of the (3) subject mat- memory of of the to a lack testifies statement; or ter of the declarant’s (4) testify at the hear- present or to is unable to be or existing physical of death or then ing because infirmity; or or mental illness (5) of hearing proponent the and the absent from is procure the declarant’s has unable to a statement been (or hearsay exception under in the of a case attendance (4), at- (b)(2), (3), the declarant’s or subdivision testimony) by process or other reasonable or tendance means. exemption, if as a witness is not unavailable

A declarant is due memory, inability, or absence refusal, lack of claim of a proponent wrongdoing or procurement to the from preventing witness purpose for statement testifying.” attending or

101 804(a) adopted an Rule as this court has not While “unavailability” under Illinois definition of exhaustive general principles law, court embraced the this has reflected therein: rule makes clear that ‘unavail general

“The thrust оf the subject rigorous ability’ concept, a to a standard. is narrow under unavailability acceptable for which are The reasons contemptuous privilege, persistent Federal Rule 804 — illness, etc.— testify memory, failure of death or refusal to People legally cognizable.” are and therefore v. substantial (1987). 501, Johnson, 118 Ill. 2d 509 require privilege A of a satisfies the witness’ exercise 804(a)(1). unavailability. ment of Fed. R. Evid. Accord ingly,a declarant who asserts his or her fifth amendment right testify not to is not available for cross-examination People in the context of the fourth Chambers factor. v. (1996) (collecting Swaggirt, App. 692, 282 Ill. 3d cases); (1988); People, App. Carter, v. 174 Ill. 3d People Rice, 166 Ill. 2d see argues that Iacullo was available for cross- though

examination, even had her fifth she invoked rights, granted amendment because the could have State immunity. People App. Rivera, her In 260 Ill. 3d (1994), appellate accepted argument court in this finding that the fourth Chambers factor was established in that case: (1976), 616, 621-22, App.

“In v. Ireland 38 Ill. 3d 277, 281-82, 348 N.E.2d this court ruled that the State had effectively prevented cross-examining itself from a declar by refusing grant ant the fifth amendment who invoked immunity the declarant and that the declarant therefore could not been held to have been unavailable. The have precedent applicable present in Ireland is to the case. The by refusing [the witness] State effect made unavailable grant immunity.” him right However,a defendant does not have constitutional immunity compel upon to confer State witness privilege against who has exercised his or her self- 102 Carter,

incrimination. Ill. App. citing 174 3d at (7th United States v. Ramsey, F.2d Cir. People Cunningham, 1974); Ill. App. 3d 264-65 (1984). To the extent that Rivera and Ireland hold to the contrary, are those cases overruled. We find that fourth Chambers factor has not been met.

Defendant has failed to establish three of the four Chambers factors. that- say We cannot the trial court excluding hearsay abused its discretion in Iacullo’s state- they reliability. ments because lacked sufficient indicia of claim, In a related that during contends closing argument made three prosecutor improperly regarding remarks defendant’s failure to call Iacullo aas witness, remark A regarding one Iacullo’s race. prosecutor you Vicky remarked: “Don’t on get hung up Iacullo. This isn’t about her trial she is not [sic] because on trial. This is the defendant’s trial. Don’t let that red hearing you day throw off. Her in court will come.” [sic] rebuttal, In remarked: prosecutor Dorothy being

“You heard Hale about about involved just disposing gun. you of this What heard that was raised counsel], may You [defense what was her motive? never any Why know. You won’t know. You didn’t hear evidence. got Vicky Why [sic] she involved in this. Iacullo. she in this?” involved

Subsequently, prosecutor remarked: “Ladies you all the in this case gentlemen, based on evidence cannot and that ridiculous ludicrous you accept must Iacullo for we have explanation Vicky [sic] reasons can presented never been for circumstances that no one on him.” Defendant comprehend planted this evidence following as error remark assigns prejudicial also argument: in the early closing State’s *** of the [defendant] “Look at he said. The actions what morning, in the statements defendant at 3:00 o’clock his girlfriend just from hav- and his actions. His comes home baby you packs I’m are exhausted. He ing a new ***. sure kid, at 3:00 up, and and drives back to Wheaton new wife morning call to come see them at o’clock in the to relatives Well, party’s this third house in Wheaton. that’s ridiculous. person does. And it’s because That’s not what reasonable legitimize police he knew he had to his lie because yet things happening. there these are hadn’t been when Elijah off to the rest of the world as passing His little he Jr., Fedell, going way better than happen. was still to What grandma pass [sic] to be the test if can have witness we legitimize my way this off to the world. better to lies What party, [sic] then to have this third white woman that nobody Vicky there [sic] has ever seen before named be help and describe this miracle birth ***.” However, the record shows that defendant’s trial object remarks, counsel either failed to at trial to these specific post- or failed to raise these issues in defendant’s is, therefore, Enoch, trial motion. This issue waived. 186; Jackson, Ill. 2d at 350, v. 84 Ill. 2d 358-59 (1981); People App. Buckner, 121 v. Ill. 3d (1984). plain exception

Defendant invokes the error to the 615(a). waiver rule. 134 Ill. 2d R. Plain error is a limited exception rule, and narrow only to the waiver to be invoked closely where the evidence is so balanced that it might jury’s may said that the be verdict have resulted error, from the or the error is so substantial it deprived People Herrett, the defendant of a fair trial. (1990); People Carlson, 137 Ill. 2d 209-10 79 Ill. 2d 576-77 plain exception error to the waiver rule does not closely First,

save this issue. the evidence not so was bal- jury’s guilty may anced that the verdict have resulted previously from the evi- these remarks. We recounted repeat trial; dence adduced at need not it in detail. we presented trial, defendant an alibi defense at he While against does not now contend that the him evidence beyond guilt insufficient establish reasonable doubt. According testimony, Scott’s Joshua stated “burglars” defendant was one of the who “cut” his mother Joy sister. Wilson saw defendant his Ward, wearing automobile with Williams who was clothing. Subsequently, bloodstained Patrice Scott saw Elijah defendant with defendant kill brutally saw eyewitness testimony Joshua. This was corroborated compelling evidence, circumstantial including forensic crime, and other evidence. physical prior Months asked Ward whether he wanted a knife or a gun when said that he to kill Ward wanted Debra. telephone in the call to Tina participated Martin at morning 3:30 a.m. after the crimes. The blood, bedsheet stained in the area with Joshua’s found body, of his came from defendant’s town Williams’ arrest, house. At the time of wearing his defendant was jacket only home, that not stolen from Debra’s but was Elijah’s say was stained with blood. cannot that the We jury’s guilty verdict would have been otherwise had the See, made the e.g., prosecutor challenged not remarks. Jackson, 360; Buckner, 84 Ill. 2d at 121 Ill. 3d at App. 396-97.

Second, not so improper the claimed remarks were a fair trial. they deprived substantial that defendant misconduct, reviewing allegations prosecutorial “In closing arguments of both the State and the defen entirety, in their and the dant must be examined proper must be in their complained-of placed remarks (1994). Kitchen, v. People 1, 159 Ill. 2d context.” A remarks challenged prosecutorial review of the aimed at the lack of evidence they shows were in the Iacullo’s and Hale’s involvement case regarding not aimed generally; specifically the remarks were Keene, defendant’s failure to call Iacullo as a witness. See (State remarks properly kept 169 Ill. 2d at 22-23 its stray did not into the the “what” of the evidence and issue). “who” of the event,

In the record shows that the defense any trial, injected by testimony, Iaeullo into the defendant’s by opening closing defense counsel’s statement argument. injected name into Where Iacullo’s case, prosecutor’s regarding comments the lack Kubat, of such evidence not v. improper. People was See (1983). 437, 94 Ill. 2d 496-98 to a “red prosecutor’s herring” reference error, In plain reversible much less error. the context argument,

of this entire an phrase was allowable reference credibility. to relevance and See v. Phill People (1989). ips, 127 Ill. 2d the prosecutor’s While reference to Iacullo’s race was unnecessary offensive, and potentially it was not intended to incite prejudice, racial nor did it have that effect for First, several reasons. the remark was isolated. The prosecutor did not dwell on the issue of race. remark This is distinguishable from prosecutorial arguments con demned in cases such as v. People Lurry, App. 77 Ill. 3d Second, 113-14 the trial court instructed the jury that it was to only consider the evidence and not remarks, counsels’ and also instructed the jury that it could not be influenced say race. We cannot guilty verdict would likely have been different had the prosecutor not See, made the remark. e.g., People Thomas, 137 Ill. (1990); 2d Johnson, 543-44 (1986). 114 Ill. 2d 199 Accordingly, we find no plain error, and defendant’s default of procedural this issue is not excused.

We note defendant’s alternative assertion that he was denied the effective of assistance counsel when his trial counsel failed preserve to this issue for review. To demonstrate counsel, ineffective assistance of a defendant (1) must attorney’s show that: performance fell below (2) an objective standard reasonableness, of the at- torney’s performance deficient prejudiced the defendant. satisfy prongs

Because the defendant must both of this test, fatal to the claim. the failure to establish either is Washington, 668, 687, 697, v. 80 L. Strickland U.S. (1984). 674, 693, 699, 2052, 2064, Ed. 2d 104 S. Ct. dispose case, In can this we defendant’s assertion “prejudice” of ineffective assistance of counsel on the challenged prong have concluded that alone. We error. The trial remarks did not constitute reversible rightfully rejected any court would have defense chal lenge Consequently, defendant’s to the remarks. had alleged brought these errors to the attention of counsel court, no different the trial the result would have been purported than the effect of his failure to do so. This prejudice trial did not ineffective assistance of his counsel e.g., People See, Kuntu, 196 Ill. 2d defendant. (2001);People Shaw, 186 Ill. 2d 129-30 say sum, that the trial court abused its In we cannot excluding hearsay discretion in these statements. Hearsay and Hale II. Statements: Iacullo Admissible points hearsay made Defendant next statements by Iacullo and Hale that the trial court ruled would be admissible. the ef- Defendant claims that he was denied trial counsel failed fective assistance of counsel when his statements at trial. to introduce these various following.Ryan hearsay included the statements Berger 16, 1995, a could testified that on November have prior murder, asked him to Debra’s Iacullo few hours fingerprints gun. Also, between to clean off how midnight telephoned 17, Iacullo and 4 a.m. on November Berger, asking powder off her burns him how clean Iacullo have testified that hand. Patricia Mitchell could gun front under the seat told her that Iacullo saw fingerprints that her car and was concerned Iacullo’s gun. might be on that early that in the fall have testified

David Drenk could gun. day One him to loan her a 1995, Iacullo asked crimes, prior one week to these Iacullo asked Drenk if he could obtain a false birth certificаte and he said no. On 16, 1995, Drenk apartment November was Iacullo’s 17, and saw Williams there. On Iacullo asked November Drenk in help obtaining for a birth certificate. On 18, November Iacullo told Drenk that she would alter birth certificate whiting making out information and photocopy days with false information. A few subsequent crimes, to these Iacullo told Drenk that she going to throw the in gun the Fox River. Iacullo told get Hale to cleaner from under kitchen sink to wipe fingerprints off a gun.

Lastly, Detective Lullo could Joseph have testified that he 1, interviewed Hale on December 1995. She told him that on November Iacullo told Hale to use and a vinegar cloth diaper wipe fingerprints off a gun, bullets, six and a magazine.

Defendant characterizes these hearsay statements as exculpatory, or at least corroborative of the defense theory of the case. He contends that his trial counsel’s failure to present them was constitutionally deficient and prejudicial.

We can dispose of this assertion on the prejudice prong of Strickland alone. None of these hearsay state ments exclude defendant from in participating these most, crimes. At they implicate Iacullo and in Hale planning or up cover of these crimes. Implicating Iacullo and Hale exculpate defendant, does not or diminish the strong evidence of defendant’s active participation these Further, crimes. the jury knew that Iacullo and Hale were involved gun with the and the birth certificate. Accordingly, defendant prejudice suffered no in terms of See, Strickland. e.g., West, People 187 Ill. 2d (1999); Ward, 431-34 Ill. 2d 257-58

III. Hearsay Joshua’s Statements trial, Prior to the State petitioned the trial court to under the statu- admit Joshua’s out-of-court statements for child declarants found at sec- tory hearsay exception Procedure of 1963. tion 115 —10 of the Code of Criminal 1994). (West of- 725 ILCS State also See 5/115 —10 declaration spontaneous fered the statements under the At the close of a hearsay pretrial to the rule. exception the trial court found that all of hearing petition, on the 115 —10. the admissible under section statements were that, for denial that he except The court also found his medication, Joshua’s statements were also admis- took common declaration spontaneous sible under the law rule. exception hearsay to the that: Joshua’s statements were contends (B) (A) or as under section 115 —10 not admissible (C) failed to declarations; the trial court spontaneous of 115 —10 jury regarding the the use section instruct recently discussed this issue statements. This court only trial. need refer the direct from Williams’ We appeal to that dеcision.

A. Section 115—10 to the trial an abuse of discretion standard Applying Williams, 193 Ill. 2d at (see 342-44), we ruling court’s that statements were with the trial court Joshua’s agree conform to sec They under section 115 —10. admissible (West 10(a)(2) 10(a)(2) (725 ILCS tion 5/115 — 115 — 1994)) act, matter, or detail related an because Joshua of an offense an act that was an element pertaining to Williams, Ill. 2d at See against committed Joshua. of Also, time, and circumstances the content 344-49. safeguards provided sufficient Joshua’s statements section introduction under reliability permit to their court considered finding, In the trial 115 —10. so hearing at the the witnesses credibility the weighed Williams, do See position in the so. and was best disposi in our at 349-51. For the reasons discussed Ill. 2d reject argu- defendant’s we also appeal, tion of Williams’ of defendant as one ment that Joshua’s identification “burglars” the was unreliable. Spontaneous

B. Declaration trial state correctly court decided that Joshua’s apartment about the events in the were ments Evans the spontaneous exception admissible under declaration hearsay that reject argument the rule. We defendant’s “so had passed much time the excitement of the Williams, had 193 Ill. 352- dissipated.” events See 2d at 56.

C. Jury Instruction by Defendant also contends that the trial court erred to instruct failing jury required as section 115— 10(c), provides: which Section,

“If a pursuant statement is admitted to this jury court shall is for jury instruct it the'weight credibility given determine to be the state- that, ment and in making determination, it shall *** age maturity child, consider the of the the nature statement, of the the circumstances under which the state- made, any ment was other relevant factor.” 725 ILCS 10(c) (West 1994). 5/115 — (3d Pattern Jury Instructions, Illinois Criminal No. 11.66 1992) (hereinafter 3d) ed. IPI Criminal tracks this statu- tory language. case,

In this in Williams, as Joshua’s statements about the in events the Evans apartment were admis sible under the spontaneous declaration exception to the rule, hearsay well as as under section IPI 115—10. 3d Criminal No. 11.66 ‍‌​‌​​​‌​​‌​​‌‌‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌​​‌​‌​‌‌‌‌​​​‌‍is not required when statements are admitted under the spontaneous excep declaration tion. we Accordingly, conclude that the trial court’s give failure to deprive this instruction did not defendant of a fair trial. Williams, See 193 Ill. 2d at 356-58. Prior

IV Consistent Statements Defendant next that the trial contends court errone- 110

ously prior improp admitted consistent statements (B) (A) testimony Pruitt. erly the Scott bolstered the prior of statements made to trial for Evidence corroborating testimony trial is inadmis purpose it suggested unless has been witness sible testify has a motive to testimony fabricated or recently the mo prior and the statement was made before falsely Henderson, People 142 Ill. 2d 310 tive arose. Emerson, Ill. 2d The (1990); prior nature of evidence of consistent state prejudicial Henderson, case-by-case on a basis. judged ments is evidentiary rulings Ill. 311. are within 2d at These of the trial court and will not be sound discretion Childress, Ill. absent an abuse discretion. reversed 2d at 296.

A. Scott testimony improp- claims that Scott’s ways. of these assertions erly in three None bolstered reversal. warrant in laundry room

First, Scott testified that she was shortly house before she at defendant’s and Williams’ A prosecutor kill saw defendant and Williams Joshua. say anything asked whether she heard Williams Scott Scott answered: “She about what Joshua said. knows their too and that he said that he talked much her, He Fedell and Vern.” names. named trial counsel record that defendant’s shows nor included this issue objected testimony this neither Therefore, is the issue post-trial motion. defendant’s Enoch, 122 Ill. 2d at 186. waived. exception to plain of the error

Defendant’s invocation discussed, previously we unavailing. rule As waiver is closely that at trial was not so balanced the evidence this alleged resulted from may have jury’s guilty verdicts record, say cannot Further, we reviewing after error. of a fair trial. deprived defendant this statement he Second, defendant contends that was prejudiced unresponsive Detective gave allegedly when David Wall testimony. and incorrect On November Detective Wall At tape-recorded conducted interview Scott. interview, said that named as burglars Scott Joshua only Ward; Williams and she did not tell that Joshua Wall cross-examination trial, during named defendant. At Scott, to attempted impeach the defense her with that The statement. defense called subsequently Detective as part During testimony, Wall its case. his Wall referred the transcript of the November 18 interview of Scott. Defense counsel “And did asked Wall: who Pa- say you trice to her apart- Joshua said was at the ment?” “Three Verne, Wall answered: people: Annette Attempting answer, Fedell.” to elicit the correct defense counsel again asked Wall had what Scott said about who Joshua had named. Wall answered: “Directly gave he Verne, two He names. knew the name and he knew the name Indirectly Annette. later in this state- she gives ment us Fedell.” Defendant contends that these answers the jury “left with the impression that during the interview Scott said that Joshua had Fedell, named which simply was not true.”

Defendant’s trial did object any counsel way to these inaccurate Accordingly, statements. the issue is Enoch, 186; Carlson, waived. 122 Ill. 2d at Ill. 2d at 576.

Defendant’s plain invocation of the error exception to the waiver rule is trial unavailing. evidence at closely not so balanced that the jury’s guilty verdicts may Also, have resulted from this error. we cannot say excerpt that this from Wаll’s testimony denied defendant a fair trial. after Directly testimony, Wall’s incorrect following exchange occurred:

“Q. say you Did Patrice Scott ever that Joshua Evans Annette, said that apartment Verne and Fedell were directly? directly give name.

A. Not —she did not us Fedell’s Annette; Q. Verne and that correct? She said is A. Yes.” find no plain

We error.

Third, testimony defendant claims that Scott’s was from her improperly prior bolstered with a statement that defendant stabbed Joshua. November 18 interview earlier, attempted impeach As noted defense counsel that asked Scott whether Scott with interview. Counsel “the name Fedell on November 18th.” police she told not remember. On Scott that she could responded examination, the trial court allowed State redirect from the inter- prior elicit Scott’s consistent statement that Joshua. view defendant stabbed question court found that defense counsel’s trial that may jury misimpression have left with the Scott during at all the November had not mentioned defendant trial say cannot that court abused interview. We allowing in the State to rebut that infer- its discretion ence.

B. Pruitt testimony improp- that Pruitt’s Defendant claims ways. assertion warrants erly bolstered two Neither reversal. tell

First, any Pruitt did not on November he him that had police officers who questioned trial, At Pruitt testi- “burglars.” name the heard Joshua say he overheard Joshua fied on direct examination that home, whose names were burglars four came into his Annette, Vern, sounded like Adelle or a name that not under- Ladelle, name that Pruitt could and a fourth impeached cross-examination, On defense counsel stand. On the police. with his November 17 omission Pruitt examination, objection, over defense redirect State’s on November an interview during Pruitt testified burglars, named four police he told that Joshua including “Vadelle,Adelle, one like whose name sounded Ladelle.”

Defendant has waived this issue for review. Defense questioned counsel, in re-cross-examination, further regarding police Pruitt on his contact with November police and the interview on November 18. Counsel at tempted may to raise the inference that Pruitt have prior consulted with Scott to the November 18 interview. objects testimony When a defendant to certain on direct questions examination, but then the witness on cross- concerning allegedly examination that inadmissible testimony, any purposes appeal. error is waived for See People App. (1992); Hernandez, v. 546, 229 Ill. 3d 558 People App. (1980);People Bost, 933, v. 80 Ill. 3d 951-52 (1979). App. Lewis, 259, v. 75 Ill. 3d Further, 287 after reviewing record, the we conclude that issue this does plain not warrant our consideration under the error doctrine. objection, played

Second, without defense the State jury tape recording police. to the a 911 Pruitt’s call to provide The State did not a admission, for its reason give jury limiting the trial court did not the a instruction concerning nonhearsay purpose. a Defendant concedes nonhearsay purposes. that the call was admissible for e.g., See, Williams, 181 Ill. 2d at However, 312-13. that contends reversible error occurred when give jury limiting the trial court to failed the a instruc prosecutor tion “and when the the used evidence substantively closing argument prove in the truth of during the matter asserted the call and bolster Pruitt’s testimony.” in-court accept prosecutor

We cannot this contention. When a permission play tape asked the and distribute tran- scripts jury, to the the trial court called for a sidebar. The specifically court asked defendant’s trial if counsel there any response request, were to the State’s and counsel Thus, record Judge.” shows replied: objection, “No of this the admission acquiesced that defendant invites, procures, acquiesces or party evidence. When evidence, though the evidence is in the admission of even on ap that cannot contest admission improper, party (and (1983) Ill. 2d cases People Payne, 98 peal. Williams, therein); 192 Ill. 2d accord cited Clothing Testimony Regarding Soiled V erred in next the trial court contends testimony she found Doelker’s excluding Susan room of Scott’s laundry apartment in the clothing soiled following was ad- after the crimes. The building soon of the presence outside separate hearing duced at a building as apartment lived in the same jury. Doelker 17, 1995, or she saw November November Scott. On found, laundry in the room. She garbage in a can clothing sweatshirt, pair one of men’s alia, a black hooded inter jeans. clothing jeans, of women’s On pair and one bad. women’s slimy, fluid that smelled colorless area, but did on the inside of the crotch jeans had blood have on the outside them. blood testify about that Doelker could The trial court ruled had because there been black hooded sweatshirt hooded sweat- possible offenders wore testimony that the regarding However, the court found that evidence shirts. and, therefore, not pairs jeans of the were relevant both inadmissible. principles are settled: controlling

The “ it admissibility is of the of evidence whether ‘The test charged’ [cita prove particular the offense fairly tends to tion], as evidence will be what is offered whether it tends to upon whether depends admitted or excluded i.e., probable; guilt or question the of more less make reject may A of [citation]. it trial court is relevant whether irrelevancy if it has little grounds on fered evidence remoteness, or uncertainty its to its probative value due [Citations.] unfair admis possibly prejudicial nature. sion of evidence is within the sound of the trial discretion court, ruling and its should not be reversed absent a clear showing Ward, of abuse that discretion.” 101 Ill. 2d at 455-56.

According to “It is infer defendant: reasonable to that the clothes Doelker found belonged to Ward and Williams.” judge reasons: “The found that the hooded sweatshirt sufficiently was connected to the sweatshirt; crime. The other clothes were found with the thus, they must have been left there the same person.” agree

We with the argument State that this reaches far many clear, too for slimy may reasons. The fluid not have been birth; associated with or pregnancy it could have been number any Further, of other smelly liquids. there no testimony was that the pair jeans of men’s had However, blood on them. Joy wearing Wilson saw Ward bloodstained pants; she never said anything regarding a clear, slimy, Also, smelly liquid. pair jeans women’s only had on blood the inside crotch area. Blood that came from Elijah Debra or would have on the been outside of pants. criminal’s Lastly, clothing suf- ficiently connected to Scott. It could put have been there by anyone. There testimony was no laundry room was ever locked. We conclude that the connections jeans between the and the crime jeans and between the and Scott were so remote and speculative that the trial court could find that Doelker’s testimony would have probative little value.

Defendant adds that the trial court’s exclusion of this evidence was particularly prejudicial his trial because counsel told the in his jury opening they statement would hear regarding evidence soiled clothes found laundry Scott’s jury However, room —but the did not. trial court ruled that testify Doelker could regarding the hooded sweatshirt. Defendant’s trial counsel not to chose

116 testimony regarding Thus, her that item. it cannot offer prejudiced defendant. We ruling be said the trial court’s in trial court abused its discretion say cannot that the excluding this evidence. Witness-Accomplice Instruction: Scott

VI. in next contends that the trial court erred testimony as an refusing jury to instruct on Scott’s jury conference, defendant accomplice. At the instruction instruction: pattern accomplice-witness tendered in the commission says “When a witness he was involved defendant, testimony that wit- of a crime with the subject to and should be considered suspicion ness is carefully light be examined in you with caution. It should in IPI Criminal 3d No. of the other evidence the case.” there insufficient court ruled that 3.17. The trial to warrant the instruction. еvidence ac determining a is an The test for whether witness accomplice-witness for instruc complice purposes that probable tion there is cause believe is whether of the offense issue as guilty the witness was accountability an accessory or as an under principal, Thus, instruction should theory. accomplice-witness an all and the reasonable if the evidence given jury be cause to believe probable establish inferences therefrom and failed to present the witness was merely crime, the witness participated of the but that disapprove If probable of the crime. planning or commission established, given be the instruction should cause is he or she did not despite protestations the witness’ a trial reviewing A court will not overturn so participate. instruction accomplice-witness an give court’s refusal Kirchner, Ill. People an abuse discretion. absent Harris, Ill. (2000); 2d 2d 144-45 could have case, argues that Scott

In this accountability murder on an Joshua’s charged with been theory. However, the that the trial court found evidence probable did not to show cause believe that Scott was guilty principal offenses, of or an ac- these either as a as cessory. finding. supports of Our review the record participated

There is no evidence in the that Scott planning or commission of Joshua’s murder. Defendant points to evidence that Joshua: stated that Williams was burglars sister; one of the who “cut” mother and his gave vomited after Williams him “medicine” that he However, claimed he did not take. we see no reason to reject reasoning the trial court’s that Scott had no reason her Williams, Joshua, disbelieve friend who said that just lying, met, whom Scott had and that he was on medication. presence

Mere at the of a scene crime is insufficient person to render one liable for the acts of A another. being conscious that a crime is committed in or her his presence merely failing will not be held accountable for oppose stop People App. or the crime. Jones, v. 86 Ill. (1980); People App. 3d Tillman, 130 Ill. 2d (1971). accomplice 743, 750 Rather, an take must some part, perform duty person act, or some owe some to the danger in that makes it incumbent on him or her to prevent commission Henderson, the crime. 142 Ill. 2d at 314. that, There is evidence in most, the record at accessory makes an Scott to these crimes after the fact. accomplice-witness However, instruction be need not given any way where the witness in was not involved until after the Turner, commissionof the crime. (1980) (and therein). App. 92 Ill. 3d cited cases say We cannot that the trial court abused its discretion refusing accomplice-witness regarding in instruction testimony. Scott’s

VII. Cumulative Error Defendant next contends that even if no individual conviction, error warrants reversal of his the cumulative errors him of a previously alleged deprived effect of the rejected all one of disagree. fair trial. We have but We trial. guilt phase claims of error at the of his defendant’s all, either that no error occurred We have concluded occurred not rise to the any may or error have did Accordingly, defendant is not entitled plain level of error. See, e.g., trial on the of cumulative error. new basis Hall, People v. 2d 350-51 194 Ill. Phase

Eligibility Jury VIII. Instructions verdicts, found death-eligibility jury, separate statu- presence a reasonable doubt seven beyond five challenges now tory factors. aggravating cor- in their verdicts, language complaining of these he entitled to He claims that is jury relative instructions. hearing. sentencing a new death However, in instructions did any jury error the five sentencing hearing. a fair death deprive not defendant of remain, the statu- death-eligibility based on Two verdicts in the was killed tory factor Joshua aggravating 1(b)(6) (West (720 felony ILCS of another course 5/9 — 1994)) from him prevent that Joshua was killed (720 ILCS to the State giving material assistance 5/9— (West 1994)). 1(b)(8) of complain not does Defendant It settled that the instructions. is jury their correlative place special not statute does Illinois death penalty and does not factor any single aggravating on emphasis aggravating multiple any significance accord added factor. single aggravating as to a opposed factors eligibility at the statutory aggravating factor finding may be persons the who to narrow class of serves phase death; proved, one such factor is once sentenced other factors regardless of whether eligible, is is found Thus, a defendant where proved. have been statutory aggravating or more two eligible upon based may factors, the fact that one those factors later be generally impair eligibility invalidated will not find ing long separate aggravating sup as as valid factor ported eligibility.People Brown, 169 Ill. 2d 164-65 (1996); Williams, 362-63; accord 2d Ill.

Page, 156 Ill. 2d 268-69 reject We likewise defendant’s ineffective assistance argument. brought of counsel had Even defense counsel alleged pertaining death-eligibility errors to the five verdicts to the attention of court, the trial two such Thus, verdicts remained. the result would have been no different from the effect of his failure to act. This purported ineffective assistance of trial his counsel did prejudice e.g., See, not Williams, defendant. 2d at Ill. 320-22. additionally argues: it “Because cannot be beyond jury’s

concluded a reasonable doubt that the er statutory ag roneous consideration five out of seven gravating jury’s factors did not contribute to the verdict, [defendant’s] death sentence should be vacated and the sentencing hearing.” case remanded for a new We disagree. Resentencing necessary is where sentencer, penalty phase sentencing hearing, at the of the death might aggravating have considered an factor that was supported Assuming arguendo the evidence. death-eligibility jury five invalid, factors were was, any aggravating nevertheless, entitled to consider including evidence, conduct, defendant’s same deter mining defendant’s sentence. The elimination of those statutory aggravating factors did not that evi reduce jury dence. An in error those instructions did not dimin weight support ish the of the evidence to defendant’s 1(b)(6) 1(b)(8) eligibility death under sections 9— 9— penalty e.g., of the death See, Williams, statute. Ill. People 321-22; 2d at Pasch, 152 Ill. 2d 188-90 (1992). (b)(8) 1(b)(6),

EX. Verdict Forms: Eligibility Sections 9— each next contends of the seven Defendant some, all, not death-eligibility verdict forms set forth but statutory fac aggravating of the elements of the relevant jury the of the question propriety tor. Defendant does on for verdicts based death-eligibility instructions the (b)(8) 1(b)(6) of the death penalty sections 9— Thus, two verdict only we need examine those statute. eligible remain for the death forms. Defendant would factors, statutory aggravating penalty under these two statutory factors were aggravating even if the other Cole, 172 Ill. 2d 102-03 invalid. See has this The record shows that defendant waived is his trial counsel failed to offer for because sue review forms, object or at least to the forms alternative verdict in challenges, or include the issue that defendant now 134-35; Kuntu, Ill. 2d at motion. post-sentencing However, invokes the Redd, Ill. 2d at 41. 451(c). R. hold that of error. 134 Ill. 2d We plain doctrine required omit the forms under review did not the verdict 1(b)(6) under eligibility for death sections elements 9— (b)(8). no error. See Wil Accordingly, plain we find Keene, 169 Ill. 2d at 17. 2d liams, citing 193 Ill. statutory for ag- verdict form death-eligibility The 1(b)(6) found, jury stated that gravating factor 9— killed in the course of alia, Evans was inter that “Joshua in of the Second paragraph [4] another as set forth felony Degree the First Murder concerning Proposition for the form death-eligibility verdict Joshua Evans.” 1(b)(8) stated that factor statutory aggravating 9— killed alia, found, inter that “Joshua Evans jury giving material assistance to from Joshua Evans prevent State, as set forth paragraph ^[3] Second Degree the First Murder concerning Proposition Joshua Evans.” verdict form is deficient that each argues element of defendant’s required it omits

because

121 1(b)(6), for mental statе the offense. See 720 ILCS 5/9 — (b)(8) (West 1994). Mack, In v. 167 Ill. 2d People 525 (1995), court to purports this held where a verdict out it specific findings, set the elements the offense as Mack, completely must do so or be held insufficient. 167 Ill. 2d at The Mack court that the verdict 538. concluded form at attempted issue was defective because it to set statutory factor, aggravating forth but did incom so pletely by omitting the mental state element under sec 1(b)(6). Williams, tion Ill. See 193 2d at 364-65 9— Mack). (discussing

We cannot accept argument. defendant’s The test of sufficiency the of a verdict is whether the intention of jury the can be ascertained with certainty reasonable language from the In determining meaning used. the aof verdict, parts all the record be searched will interpreted together. McNeal, People Ill. 2d 175 (1997), citing Mack, 167 Ill. 2d (1995). Here, each verdict form expressly directed the to jury the corresponding instruction, form’s of which defendant does complain, not which completely and ac curately sets forth all of the elements of the statutory ag gravating Williams, factor. See 193 Ill. 2d at By 362-68. referring “paragraph ^[4] of the Second Proposition concerning the First Degree Murder of Evans,” Joshua felony-murder the eligibility verdict form in defendant’s case incorporated necessary elements under section 1(b)(6), including required mental state 9— Williams, defendant’s infliction on injuries Joshua. See Ill. 2d at 368. The applies same eligibility 1(b)(8). verdict form for factor aggravating 9— We concluded in appeal: Williams’ Mack, result,

“As a unlike a conclusion in defendant’s jury case that the necessary found the elements under sec- 1(b)(6) tion speculation. need be based on When we 9— consider the verdict forms in the context of the record in case, defendant’s can certainty we conclude with reasonable jury Accordingly, found we hold these elements. eligible for death properly that defendant found aggravating felony-murder statutory on the penalty based Williams, 193 premised on murder.” Ill. 2d factor Joshua’s at 368. case, applies conclusion to defendant this as

This 1(b)(6) and statutory aggravating both factors 9— 1(b)(8). 9— at two we find no error all these death-

Since forms, of eligibility additional contentions verdict First, defendant necessarily indepen defendant fail. was eligible penalty grounds for the on the dently death felony, in the of another and that he killed Joshua course giving he him from material prevent murdered Joshua to on Thus, jury’s any the reliance the State. assistance finding did not affect its aggravating other factors penalty. for the death See Wil eligible defendant was 321; 368; Williams, Ill. 2d liams, 2d at 181 at 193 Ill. (1989). Second, Coleman, 2d v. 129 Ill. 345-46 People any aggravating other factor the consideration of jury’s hearing did sentencing at of the death penalty phase the Williams, Ill. 193 2d require resentencing. not See 321-22; Coleman, Ill. Williams, 2d at 129 368-73; 181 Ill. in terms Third, prejudiced not 2d at 347. was McCallister, 193 Ill. 2d See, e.g., People of v. Strickland. (2000). 63, 107-08

Penalty Phase Mitigation Evidence X. Failure Present receive effec- that he did not next claims the penalty phase at the of of counsel tive assistance He that his trial hearing. contends sentencing death mitiga- certain investigate present counsel failed tion evidence. two composed test is

The familiar Strickland First, the defendant deficiency prejudice. prongs: seriously performed that counsel erred so prove must

123 deficiently functioning so that he or she as the guaranteed by sixth amendment. A court “counsel” performance by objective an measures counsel’s standard prevailing professional competence under norms. To deficiency, the establish defendant must overcome strong presumption challenged inac that the action or might strategy. tion have been the result of sound trial (1999). People Accordingly, Evans, Ill. 2d strategic investigating choices, counsel’s made after unchallengeable. virtually facts, law and the are Richardson, 2d Ill. prejudice.

Second, the defendant must establish prove prob defendant must ability that there is a reasonable unprofessional that, errors, but for counsel’s proceeding result would have A been different. probability probability reasonable is a sufficient to prejudice undermine confidence in the- outcome. The prong of Strickland more an entails than “outcome- determinative” test. The defendant must show that performance counsel’s deficient rendered the result of proceeding fundamentally the trial or unreliable the Richardson, unfair. 189 Ill. 2d at 411. case,

In this defendant to refers the record of Ward’s Wesley trial. and Ward Rozema were incarcerated in the Page County jail. They spoke respec- Du and met of their predicaments. tive Rozema testified that made Ward inculpatory specifically statements. Ward told Rozema “rappies” that he and two the committed Ac- crimes. cording “rappie” Rozema, to is “someone that shares rap you, the with like a codefendant.” Ward identified rappies According his as Williams and a friend. Roz- to ema, in Ward confessed that he shot Debra the and head Elijah Samantha, stabbed cut Williams out of De- bra’s stomach. argues

Defendant now that his trial counsel constitutionally failing present deficient for Rozema’s sentencing the death

testimony penalty phase at the of hearing. According defendant, testimony this “was significant mitigating [defen- evidence that lessened аny did inflict dant’s] since it showed he not culpability injuries two decedents.” on

However, that trial counsel was deficient assuming Strickland, first of defendant must still prong under the In of under the second the context prejudice prong. show sentencing hearing, prove a defendant must that a death that, absent counsel’s probability there is a reasonable conduct, the sentencer would have concluded deficient circum aggravating mitigating the of that balance Coleman, 183 Ill. death. stances did warrant 65, 87 People Griffin, (1998); 178 Ill. 2d 2d realistically based prejudice A court must assess Accordingly, improper the it totality the evidence. is on solely potential mitigating to focus on the evidence. extent Rather, must consider the nature and a court also Richardson, Ill. 2d at aggravation. of the evidence 416. case, never presented

In the evidence this State or harmed Debra Samantha. personally defendant had determined that defendant jury Yet the nonetheless Therefore, is no the there penalty. receive death should that, had trial counsel defendant’s probability reasonable have testimony, jury would presented Rozema’s mitigating aggravating balance concluded did death. circumstances not warrant Mitigation Testimony XI. Limitation of improp trial court Defendant next contends that Dr. We examination Savarese. erly limited direct failed issue, though even consider this will motion, because the issue post-trial in his include it raised right and defendant a constitutional concerns Keene, McCallister, 99-100; at trial. See Ill. 2d 193 issue Ill. 10. 169 2d at

To standards, meet constitutional a capital sentenc ing hearing must allow for individualized consideration of the offender and the In conjunction offense. with this requirement, the sentencer in a capital may case not be precluded from considering, or refuse to consider as a law, matter of any mitigation relevant evidence offered by the Allowing defense. the sentencer to consider all mitigation relevant evidence requirement satisfies the sentencing individualized in capital cases. v. Hud People (1993). son, 157 Ill. 2d Accordingly, the ordinary rules of evidence are relaxed at the aggravation/mitigation stage of a capital sentencing hearing. necessary This is because it is important that the sentencer possess the fullest informa possible tion respect with to the life, defendant’s character, record, criminal and the circumstances of the particular Kliner, offense. People 185 Ill. 2d (1993). (1998); People v. Edgeston, 157 Ill. 2d As a result, the only requirement for the admissibility of evidence at stage this of a capital sentencing hearing is that the evidence be relevant and reliable. Edgeston, 157 Ill. 2d at 236. This determination rests within the sound discretion of the trial Hall, court. 195 Ill. 2d at 20-21 (and cases therein); cited Johnson, ‍‌​‌​​​‌​​‌​​‌‌‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌​​‌​‌​‌‌‌‌​​​‌‍146 Ill. 2d 109, 152

After hearing an proof offer of regarding his testi- mony, the trial court went through Dr. Savarese’s writ- ten evaluation and ruled on subjects what to which he could and could not testify. The court ruled that Dr. Sa- varese could not testify regarding psychiatric hospitalizations grandmother, defendant’s Winifred, that occurred prior to defendant’s birth. Dr. Savarese also was not allowed testify regarding the schizo- phrenic behavior of defendant’s mother unless defendant was exposed to such Finally, behavior. the court ruled that because Dr. Savarese was not a psychiatrist, he could testify to anything that appeared to be a diagnosis.

126 upheld that have similar previously

We note we v. People testimony. Dr. See limitations on Savarese’s (1998). Armstrong, 183 130, Additionally, Ill. 2d 152-54 information from the heard much of the excluded jury witnesses, rendering the mitigation defendant’s other merely Dr. cumulative. testimony excluded of Savarese (1996). Brown, 1, can People v. Ill. 2d 50-51 We See 172 in mak trial court abused its discretion say that the Johnson, determinations. Ill. 146 ing relevancy these See 2d at 152. Mercy

XII. occurred at the claims that four errors Defendant hearing that sentencing of the death penalty phase mercy mitigat as jury’s restricted the consideration factor for consideration at Mercy factor. is a relevant ing the to be considered within sentencing hearing, a death mitigation. aggravation of all factors context (1995). v. 1, 2d People Hope, 168 Ill. 46-47 error de purported should review each suggests we below, However, reject we novo. for the reasons stated this assertion. Testimony Mitigation

A. improp that the trial court First, defendant contends great testimony the defendant’s erly mitigation limited of whether this The determination aunt Sonia Glover. admissible, reliable, and hence is relevant and evidence trial court. See of the lies within the sound discretion v. Kliner, People (1998); v. 81, 2d 171 185 Ill. Bounds, Ill. 2d “Ma’am, are trial counsel asked Glover:

Defendant’s mercy to consider you asking jury you asking —are the trial court objected, and for The State [defendant]?” “How is this The court reasoned: a brief sidebar. held This is an issue sentence? appeal specific not an for for them to decide.” question and a jury before the objection. court sustained agree We with the trial court. A witness’ opinion a defendant should not be sentenced to death is not admissible at a death sentencing hearing. The decision of whether impose penalty death rests with the sentencing authority. The testimony of or aggravation mitigation witnesses the nature concerning and circum stances of the offense and the оffender is relevant See, sentencer’s decision. Howard, e.g., People 147 Ill. 2d (1991), adopting Tennessee, Payne 501 U.S. (1991) (victim 808, 115 L. Ed. 2d 111 S. Ct. 2597 admissible). impact However, evidence opinions witnesses regarding what sentence should be imposed Howard, are not. 147 Ill. 2d at 162. “Such opinions are not evidence and therefore are irrelevant and inadmis (1994). Williams, sible.” v. People 1, 161 Ill. 2d 70 Moreover, the sustaining objection of this in way no told defendant’s trial counsel that he could argue not for mercy or told the jury that it could not consider mercy. We cannot say that the trial court abused its discretion. Jury

B. Instruction Second, defendant contends the trial court improperly refused his tendered nonpattern jury instruc tion regarding mercy. If the Illinois Pattern Jury Instruc (3d 1992) (hereafter tions, Criminal ed. IPI 3d), Criminal contain applicable an instruction on a subject about which the trial court determines the jury should be instructed, the trial court must use that instruction, un less the court determines that the instruction does not 451(a). accurately state the law. 134 Ill. 2d R. The deci sion give whether a nonpattern instruction rests within the sound discretion of the trial court. A trial court does not abuse its discretion by refusing to give nonpattern instruction if the subject matter of the nonpattern refused instruction is pattern covered given instruction or other Buss, instructions. People v. 144, Ill. 187 2d (1999); Gilliam, 232-33 v. People 172 Ill. (1996). 2d 519 nonpattern jury following

Defendant tendered mitigating “Mercy proper non-statutory instruction: is a why jury may a reason factor that the consider as However, to death.” defendant should not be sentenced jury 7C.06, of received IPI Criminal 3d No. which complain. pattern does not That instruction defendant *** “Mitigating Any part: in factors include: other reads why supported by the evidence the defendant reason repeat has sentenced to death.” This court should be mercy reason[ ].” edly held that is one such “other (1992);People Lear, Sutherland, Ill. v. 2d 29 (1991). permit pattern 138, 151 This instruction Ill. 2d mercy, jury and, therefore, ad no ted the to consider nonstatutory concerning specific this ditional instruction necessary. e.g., mitigating See, Buss, Ill. factor 2d at 235. present

Additionally, defendant was allowed to mitigation discuss, evidence, and, we will next as mercy closing argued for in his defendant’s trial counsel position argument. jury Thus, the was in a to consider mercy, any mitigating See, factor, as it saw fit. or other e.g., People Miller, 2d 198-99 We 173 Ill. say its discretion that the trial court abused cannot refusing nonpattern instruction. defendant’s Closing Argument:

C. Defense the trial court Third, contends closing argument regarding his trial counsel’s restricted style mercy. regulation of clos of the substance and ing argument discretion; the trial court’s within the lies propriety the remarks the determination of court’s a clear abuse discretion. absent will not be disturbed (1995); People Peоple Byron, Ill. 2d Ramey, 151 Ill. 2d closing argument, trial counsel defendant’s

In his following During mercy. argued col- remarks, the his for loquy occurred: you you

“If decide in dispense this case that should mercy, you it isn’t because he deserves it. It’s because have you decided your that’s what want to do. That’s within your morality. conscience. That’s It isn’t within about deserving. mercy But is blessed about two times over. It’s giver blessed to the and it’s to the blessed receiver. saying you There’s a most of are familiar and that with is, merciful, are the they mercy. blessed for shall If have you mercy decide that you going dispense, is what are you badly should not feel your about that. That indi- is vidual, your particular conscious decision in this matter. Objection analysis.

[Prosecutor]: to the THE Approach please. COURT: the bench

* * * [Prosecutor]: an inappropriate argument It’s line of ask an individual hold their personal own moral standards for what the appropriate may verdict be. counsel],

THE COURT: your [Defense response. [Defense counsel]: I objection. don’t understand the My follows, THE ruling COURT: jurors is as the are to decide this matter upon based applying facts and facts, law to the they bring courtroom, what into the their experiences in they’re life. But to decide this matter ac- cording law, to the according that is not to their own religious beliefs, individual or moral superseding the law in any way they when decide this matter ***. Also, you are not jury to call for the impose mercy upon based they, fact, fact that themselves endorse benefit, some mercy upon whether that be themselves or means, others in this life or another life any or some or kind any of benefit jurors whatsoever at time. The are not deciding this matter upon they might based some benefit any receive in kind of context type whatsoever. That argument proper. is not * * *

[Addressing jury] gentlemen, you Ladies and are to decide this matter upon based the facts and applying the law to the appropriately. yourself facts upon No effect is to be considered.”

Defendant’s trial counsel then concluded his discussion of mercy by arguing jury could appropriately mercy consider as a mitigating factor.

130 ruling. the trial court’s As stated agree with

We earlier, in context of all mercy ag must be considered the Ill. 46- mitigating factors. 168 2d at gravating Hope, 47. The trial court did not tell defendant’s trial counsel and did not tell the argue mercy that he could not for Rather, mercy. that it not consider the court jury could that the its decision properly explained jury must base with explanation on the facts. This correct oral accords 7C.01, 7C.02, jury the IPI Criminal 3d Nos. which complain. received and of which defendant does not We the trial court its discretion. say cannot that аbused D. State Closing Argument: Fourth, State, during contends that its equated the defense argument, “improperly rebuttal jury ignore a for the request mercy request for as com specifically its oath.” Defendant law violate remarks, his trial counsel of four three of which plains Therefore, object any complaint failed to to at trial. Moore, Ill. 2d waived. See 171 regarding these counts is (1993). 118; v. 155 Ill. 2d 495-96 People Peeples, to the waiver plain exception invokes the error doctrine, However, considering plain error rule. before at all. any People error occurred we determine whether Ill. Sims, (2000); Precup, 192 Ill. 2d 2d argument, prosecutor rebuttal

During State’s remarks: following made the duty your oath you ignore your “Counsel asks you have taken— Objection. [Defense counsel]: Argue the evidence ***. THE COURT: psychology of ask- Do not be fooled [Prosecutor]: being defendant as born ing mercy, referring for to the garbage. basically piece he into a situation where you to you bring that with your common sense. So do Keep too, your experi- life your sense and phase this common ences.

* * * you mercy through The defendant asks for his counsel. something Debra, That is he did not show to Samantha or Mercy blessing Joshua. is a is an act divine favor compassion. a compassionate It’s treatment of those in stress.

Mercy in a courtroom guilty has to be earned. Do not feel guilt refusing and do not feel for to afford this defendant mercy. by choices, forgone op- Because his he has portunity to mercy by [sic] receive from him his actions by guilt fulfilling your his conduct. Do not feel for obligations under the law. jurors

You as took an oath to follow the law that this gives you. court You being want follow that law without swayed by sympathy prejudice. or

The law in defendant[’]s this horrific conduct and ac- tions you [sic] do any mercy. allow to show him Show this defendant the mercy same he showed Joshua Evans.

This you, through counsel, defendant stands before his and asks for the minimum sentence. There are two choices in you this case. He asks for the Mercy minimum sentence. cannot let him avoid appropriate justice his measure of in defendant, this The by actions, case. his has not earned a sentence, minimum mercy. based on law, But based on the the defendant’s conduct in the requires you [sic] law to return a sentencing verdict of this defendant to death.”

Prosecutors are afforded wide latitude in closing argument, and a prosecutor’s in closing comments argu ment will result only reversible error they when engender substantial prejudice against a defendant the extent that it is impossible to determine whether the jury’s verdict was caused the comments or the Closing evidenсe. arguments must be reviewed in their entirety, and the challenged remarks must be viewed in (1998) (and context. People Macri, 185 Ill. 2d therein). cases cited Since mercy is a relevant mitigating factor, a prosecutor’s argument suggesting that jury could not consider mercy as a mitigating factor, or that

mercy mitigating factors, differed from other constitutes Buss, error. 187 Ill. 2d at 244-45.

Examining challenged context, remarks in we they determine that do not constitute reversible error. previously quoted closing argument. We from defendant’s essentially argued jury Defendant’s trial counsel mercy nothing mitigation evidence, that had to do with jury dispense mercy regard and that the should with no to the facts of the case. prosecutor responded closing to defendant’s

argument challenged If with the remarks. the State’s argument suggested jury that the could not consider mercy mitigating factor, it would be erroneous. See as a prosecutor Buss, However, the did 187 Ill. 2d at 244-45. argue mercy mitigating factor, not mercy was not a or mitigating Rather, the

differed from other factors. argued jury dispense prosecutor properly that the was to mitigation mercy aggravation evidence, on the based mitigation that evidence was absent in this case. may “During sentencing hearing, prosecutor the the weight significance the of the defendant’s contest required agree mitigating the evidence, and is not that mitigation by defendant is indeed offered in evidence mitigating.” Macri, Indeed, 2d at 63. the fact 185 Ill. argued jury the could trial counsel that that defendant’s mitigating mercy appropriately factor, consider as argued in that defendant fact the State rebuttal the that mercy, jury the that it had indicated to did not deserve sentencing mercy power determina to factor into its that 245. Because we find Buss, 187 Ill. 2d at tion. See challenged prosecutorial remarks do not constitute plain Keene, find no error. See error, we also reversible errors). (all plain errors are reversible 169 Ill. 2d at 17 prosecutorial remarks are if these note that even We they say constituted erroneous, cannot that as we viewed mitigating jury plain fac- was instructed error. The “[a]ny supported by why tors are reason the evidence the defendant should not be sentenced to death” and “any argument attorneys statement or made on evidence which is based should be disre garded.” Hope, See 168 Ill. 2d at 26-27. In the context of parties’ arguments instructions, as a whole and these deny we find that the State’s remarks did not sentencing hearing. Buss, a fair See 187 Ill. 2d at 245. alternatively asserts that he was denied the effective assistance of trial counsel when his counsel object challenged failed to to most of the remarks. We disagree. challenged haveWe concludedthat the remarks did not constitute reversible error. The trial court would rightfully any objection have overruled defense thereto. Consequently, objected, had defense counsel the result would have no been different from the effect of his failure object. prejudiced Thus, defendant was not in terms of e.g., See, Strickland. Kuntu, 129-30; 196 Ill. 2d at Shaw, 186 Ill. 2d at 332.

Additional Contentions Disparate XIII. Sentences Following separate trials, Williams was sentenced to prison death, and Ward was sentenced to a term of natural life. Defendant contends that his sentence was unreasonably disparate to the sentence of Ward.

Comparative proportionality penalty review death required by cases is not the United States Constitution penalty and is not a feature of the Illinois death statute. duty Nonetheless, this court has the constitutional imposed determine whether a death sentence has been arbitrarily capriciously, unduly or severe, or is consider- ing the circumstances of the offense and the character prospects guaran- and rehabilitative of the defendant. To sentencing eighth tee the individualized that the amend- requires, compared ment this court has a defendant’s an ac death sentence to the sentence of a codefendant or complice. This court has focused on the nature of of fense, involvement, each individual’s relative his charac background, potential ter and his criminal record Easley, v. 2d People for rehabilitation. 192 Ill. Bean, (2000); People 137 Ill. 2d 133-35 case, In this defendant that is at as argues Ward least defendant, if not culpable points as more so. Defendant testimony According to Rozema’s at Ward’s trial. to Roz- ema, confessed that he shot Debra in the head and Ward Samantha, Elijah stabbed and Williams cut out of De- trial, contrast, In the State bra’s stomach. defendant’s any no evidence that defendant inflicted presented According to defen- injuries upon Debra or Samantha. dant, culpable is more because he killed two of the Ward Also, generally notes that three victims. defendant Ward significant had a criminal record. accept cannot this contention. We view defen-

We not participation significantly dant’s these crimes as notes, than less that of Ward. As State killing in a and a that participated planned kidnapping and her two pregnant resulted in the murder of mother helped killed personally children. Defendant Joshua alley the child in an to die. dump may quantita criminal record be Although Ward’s defendant’s, only that one fac tively more severe than is Towns, 174 Ill. 2d tor in our evaluation. See (1996). Further, that defendant and Williams 453, 480 “persuades a death sentence us that each received arbitrary capri neither nor defendant’s sentence was Byron, 164 Ill. 2d at 303. We conclude cious.” unreasonably dispar defendant’s death sentence was prison natural life sentence. ate to Ward’s Penalty Death Statute Constitutionality XTV the Illinois death lastly contends Const., amends. U.S. statute is unconstitutional. penalty

135 VIII, XIV; 1970, I, 2,§§ Ill. Const. art. 11. Defendant are argues procedural safeguards inadequate that current penalty ap to minimize the risk that the death will be to innocent it plied persons, because is inevitable people that innocent will be executed. This court has Kirchner, repeatedly rejected arguments. these 194 Ill. 558-59; Hall, 305, 2d at v. Ill. 2d People 194 357-58 (2000); Bull, 179, People v. 185 Ill. 2d 211-20 not persuaded has us to overturn these deci sions.

We note Chief Justice’s belief that this court has inflicted harm on the “integrity justice of the criminal system” by refusing acknowledge “to deficiencies so that a egregious Republican governor was forced step in and suspend implementation every of sentence of death approved.” (Harrison, C.J., we 205 Ill. 2d at 137-38 dissenting). again, Once the Chief Justice has impugned integrity See, of this court. v. e.g., People Simpson, (2001) 536, 204 Ill. (Harrison, C.J., 2d dissenting) (accusing this court having ways” “found to uphold cases); convictions in capital Simms, 192 Ill. 2d (2000) (Harrison, C.J., dissenting) (stating that “our court no longer any felt compunction illegally about dismissing death row appeal having inmate’s him summarily put death”); Bull, 185 Ill. 2d at 221-22 statements). (Miller, J., specially concurring) (collecting The Chief Justice’s regarding statement the Gover- nor’s motives for the moratorium imposing lacks factual support. The Governor in no way publicly has stated that the moratorium was any based on action or omission this court. Release, Press Ryan Governor Declares Executions, Moratorium on Appoint Will Commission to Review Capital System (George Ryan, Punishment H. Governor) Jan. 2001.

Further, the Chief legal Justice’s statement also lacks In support. People Hickey, (2001), 204 Ill. 2d acknowledged the morato- recently this court Governor’s rium on future executions: certainly

“While we are aware those cases which death, defendant had been convicted and sentenced to but prison, later was exonerated and released from we do not system collapsed. infer the entire has from these cases that declared a moratorium on future executions Governor defendants do after several death row were exonerated. We moratorium, however, every capital not infer from the all appellate trial has been unreliable review has haphazard.” been the again,

Once we must remind Chief Justice people disagree honorable over whether this state should the penalty. deeply against have a death His held view him the penalty give death does not license misstate of court. See impugn integrity facts so as to the this (Freeman, J., People Simpson, 204 Ill. 2d at 579 J.). McMorrow, concurring, joined by specially

CONCLUSION reasons, circuit foregoing judgment For the the of the County of Du affirmed. The clerk of this Page court is Thursday, an setting court is directed to enter order 24, 2002, the January as the date on which sentence The imposed. death entered in the circuit court is to be provided shall be executed in the manner 1998). (West clerk of his ILCS law. 725 5/119 —5 in of the mandate this copy court shall send certified Corrections, the warden of Tamms case to the Director of the institution Center, and the warden of Correctional confined. where defendant is now

Affirmed. HARRISON, dissenting: CHIEF JUSTICE direct Caffey’s appeal This matter is before us on During death. from convictions and sentence of his compre- Caffey’s adopted our court pendency appeal, of all the conduct governing hensive set of new rules

137 in State the death seeking penalty. cases which the is took certain the new rules effect March exceptions, With 2001, review, on to all cases direct apply pending commenced rules were enacted. including cases before the (2001) (Harrison, Ill. 2d People Hickey, 204 631-36 C.J., Bakalis, also Birkett v. dissenting); see ex rel. Ill. 2d 513 nature, rules are

Although procedural new they innovations introduce are not mere technicalities. They indispensable safeguards achieving are for an ac curate guilt. they determination innocence or Whether will eliminate all of the constitutional defects in the present penalty yet say. death law we cannot That must await the test of time and What can experience. say we any now is that and sentence obtained conviction without cannot the aid of the rules new be deemed reliable and must be set Hickey, (Harrison, aside. Ill. 2d C.J., dissenting).

Presently, some defendants face death sentences in this state. The task of retrying those defendants will formidable, be but it is no more formidable than dealing with the direct appeals and post-conviction challenges involving existing convictions and sentences. Ad- dressing problems permeated which have those and convictions sentences has imposed heavy burdens on the courts. The morass of attendant litigation to the present system capital has punishment become a significant court, drain on the resources of this the circuit courts, general, the attorney public the defenders and local Attorneys. State’s go beyond

The costs budgets manpower. cost, fact, may dearest in to nothing have do with human or finаncial may resources. It in harm be inflicted on integrity of justice system by the criminal the court’s acknowledge refusal egregious deficiencies so that a Republican governor in step was forced to and suspend every ap- implementation death we sentence of

the proved. judiciary court that the is work- Protestations this truly pointless. ing our If we believed as it should are working punishment system capital should, as it was empowered to consider a committee we would not have adopted and we would have new rules for death cases proposed. comprehensive that committee new rules represent adopted fundamental have as The rules we any procedure change Illinois in ‍‌​‌​​​‌​​‌​​‌‌‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌​​‌​‌​‌‌‌‌​​​‌‍recent in criminal as foresight courage history. Having possessed duty adopt from our rules, must not now shrink those we Caffey Accordingly, put effect. because them into of the the benefit tried, and sentenced without convicted should be and death sentence rules, new his convictions remanded to the circuit vacated, cause should be and the for a new trial. court Caffey trial in ac not entitled to new if were

Even rules, of death could the new his sentence cordance with my partial concur in the reasons set forth not stand. For People partial Bull, Ill. 2d 179 in dissent rence (1998), penalty and unen death law is void the Illinois eighth and fourteenth it violates the forceable because (U.S. United States Constitution to the amendments XIV) I, 2, of VIII, and article section Const., amends. 2). (Ill. § I, 1970, art. Absent Const. Constitution Illinois altering that conclu for rules, there is no basis the new Caffey’s minimum, of death should sentence At a sion. ato vacated, and he should be sentenced therefore be 1994). (West l(j) imprisonment. 720 ILCS term of 5/9 — murdering more than one convicted of Because he was imprisonment natural life. must be victim, the term of 1994). 8—l(a)(l)(c)(ii)(West 730 ILCS 5/5 — dissenting: KILBRIDE, also JUSTICE my forth in dissents reasons set For the (2001) (Kilbride, J., Hickey, dis- 585, 636-40 204 Ill. 2d

139 v. Ill. senting), 536, 204 2d 581-85 Simpson, (2001) (Kilbride, J., dissenting), I with Chief Justice agree Harrison that defendant’s convictions sentence be set because the proceedings should aside trial were not conducted in the new supreme accordance with court governing capital procedures capital rules cases. The prior cases to this court’s of the new adoption rules were inherently and did adequately protect unreliable rights. Consequently, defendant’s constitutional since the new rules promulgated were to address the deficiencies dimension of constitutional that regularly occurred under system, the old the rules must be applied retroactively capital currently all cases on direct pending appeal. See People Hudson, 117, (2001), Ill. 2d citing Grif 314, 661, L. Kentucky, 328, 649, 479 U.S. Ed. 2d fith 107 S. Ct. reasons, For I respect those fully dissent.

(No. 87134. THE PEOPLE THE OF STATE ILLINOIS, OF Appel-

lee, v. MOSS, SANANTONE Appellant.

Opinion Rehearing October denied filed 2001 . February 2002.

Case Details

Case Name: People v. Caffey

Court Name: Illinois Supreme Court

Date Published: Oct 18, 2001

Citation: 792 N.E.2d 1163

Docket Number: 86975

Court Abbreviation: Ill.