Docket No. 86049–Agenda 3–May 2000.

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

								WILLIAM BRADLEY KIRCHNER, Appellant.

Opinion filed December 1, 2000.

	JUSTICE McMORROW delivered the opinion of the court:

	During the early morning hours of August 8, 1997, Charles

Brewer, his wife, Doris Jean Brewer, and their daughter Bonnie

Brewer were fatally stabbed at their home in rural Douglas County.

A jury found defendant, William Bradley Kirchner, guilty of the

first degree murders of the three Brewers. The same jury

determined that defendant was eligible for the death penalty. After

hearing evidence in aggravation and mitigation, the jury found that

there were no mitigating factors sufficient to preclude the

imposition of the death penalty. The circuit court of Macon County

sentenced defendant to death. Defendant’s death sentence has been

stayed pending direct review by this court. Ill. Const. 1970, art. VI,

§4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we

affirm defendant’s convictions and sentence.

BACKGROUND

	In August 1997, Charles and Doris Jean Brewer lived in a

house outside the small towns of Garrett and Atwood,

approximately 28 miles east of Decatur. On August 8, 1997, a

postal worker found Charles Brewer’s body outside of the

Brewers’ house.

	When the police responded to the postal worker’s 911 call,

they observed a trail of blood leading from the front yard of the

house, across the driveway, and around the side of the house,

where Charles Brewer lay. Mr. Brewer had a fatal stab wound to

the front of his neck. Police also found a cigarette butt with

defendant’s DNA on it in the front yard.

	There were no signs of forced entry to the Brewer house.

Inside the front door, in the living room of the house, was Mrs.

Brewer’s body. Mrs. Brewer had 16 stab wounds to her face, head,

and neck. Under one of these wounds, her skull had been fractured. Like her husband, Mrs. Brewer was in her sixties and had mobility

problems.

	Bonnie Brewer’s body was found in the bathroom of the

Brewers’ house. Bonnie, who was in her late thirties, had been

staying with her parents while recuperating from jaw surgery. She

had been stabbed or cut 20 times and had wounds to her face,

neck, head, legs, arms, and hands. The tip of a knife was found

embedded in her skull. There were black scuff marks on the floor

of the bathroom.

	Mr. Brewer’s wallet was found in the bathroom, and Mrs.

Brewer’s and Bonnie’s purses were in the kitchen. Mr. Brewer had

cashed a check for $100 on August 7, but there was no money in

the wallet, purses, or anywhere else in the house. Also missing

from the house was a beige table top telephone the Brewers kept

in the living room. Police learned that three calls had been made

from the Brewer house shortly after 3 a.m. on August 8.

	There were only a few fingerprints on surfaces in the Brewer

house. The State’s fingerprint expert testified that none of these

fingerprints matched fingerprint samples from the three Brewers,

defendant, or his friends Dyno Warner, Randy Merriman, and Chris

Brown.

	Several witnesses testified that, at the time of the Brewer

murders, defendant was looking for money to pay a drug dealer to

whom defendant owed money. Defendant had purchased crack

cocaine three times from this dealer in Decatur on August 7, 1997.

The first two times, defendant paid for the drugs. The third time,

however, defendant bought about three grams of crack cocaine and

did not pay the dealer. Around 10 p.m., the drug dealer followed

defendant and his friend Randy Merriman to a house in Atwood,

where defendant had indicated that he could obtain the money he

owed. Defendant was driving his girlfriend Vicki Cox’s blue 1990

Oldsmobile. The dealer waited outside the house with Merriman

for some time, but did not see defendant exit the house and

eventually returned to Decatur. Before the dealer left, he told

Merriman to tell defendant to “have [his] money or [he would] kick

his tail.”

	Defendant left the house in Atwood without being seen by the

drug dealer or Merriman and drove with Jeff Peeler and Chris Brown to their friend Dyno Warner’s house in Garrett. Warner

testified that they all smoked crack cocaine at his house and that

defendant used a knife Warner owned to cut the cocaine. Warner

further testified that defendant said he owed some money to

someone waiting in Atwood and asked Warner if he knew of

anyone who would buy some drugs. Warner replied that he knew

a girl who might want to buy drugs. Warner testified that defendant

paced back and forth, mentioned his need for money several times,

and said he would do whatever was necessary to get money.

Warner further testified that defendant asked him if he had any

handguns “for money,” but Warner refused to give him a handgun.

	According to Warner’s testimony, defendant then left his

house with Peeler and Brown. Defendant returned to Warner’s

house with Merriman around midnight. Defendant again “said that

he needed money and he would do anything it took to get it,” and

asked Warner if he knew anyone who would buy drugs. Warner

said that he knew someone who might be interested in buying

drugs. Defendant, Warner, and Merriman drove to the gas station

where this person worked, but they did not obtain any money from

her.

	Warner stated that, after they returned to his house, defendant

paced for a while and then exited the house, saying he would be

back. Warner and Merriman watched television. Twenty minutes

after defendant left, Warner noticed that his knife, the one

defendant had used to cut cocaine, was missing from the place

where Warner had hidden it under a pillow on the living room

couch. Warner hid the knife from defendant after he observed

defendant put the knife in his pants.

	Warner further testified that, after an hour, defendant returned

to Warner’s house and asked Warner to go to the back door.

Warner estimated that defendant returned at about 1:30 a.m. or 2

a.m., but he was not sure of the time. Outside, the lighting was

poor, but Warner saw spots on defendant’s shirt. Defendant asked

Warner for a garden hose and towel and used water from the hose

to rinse his head and face. He vomited, swore, and yelled, “What

have I done.” Defendant was frantic and asked Warner for a pair

of shorts. Warner gave defendant a pair of his shorts and asked

defendant if he wanted any shoes, but defendant declined the offer. Defendant removed the blue jeans, T-shirt, and black boots he was

wearing and threw them into a fire that was burning in a pit in

Warner’s backyard. Before burning his jeans, defendant transferred

a roll of money from the jeans to the shorts.

	Warner then asked defendant for his knife, and defendant gave

it to him. According to Warner, there were maroon spots on the

sheath, there was blood all over the knife, and there was a white

hair on the knife. In addition, the tip was missing from the knife.

The tip was not missing when defendant had used the knife to cut

cocaine on August 7. Defendant told Warner that he had stabbed

a dog. After defendant changed clothes, he and Merriman drove to

Decatur.

	Warner admitted that, during the evening of August 8, he

threw the knife into the Kaskaskia River because he knew it had

been used in a crime and did not want “anything to come back” to

him. Warner stated at trial that he had been charged with

obstruction of justice but that he had been given no promises with

respect to this charge in exchange for his testimony.

	Merriman’s description of defendant’s activities was consistent

with Warner’s. Merriman testified that defendant left Warner’s at

about 3 a.m. on August 8. After about an hour, Merriman heard a

car, and Warner went outside. Twenty to 30 minutes later,

Merriman followed Warner outside. He saw Cox’s car parked in

front of Warner’s house. In the back of the house, defendant was

rinsing his head with a garden hose. Defendant told Merriman to

stay by the car because he had been sick. Later, Merriman saw

defendant and Warner talking next to a fire in the backyard.

Defendant was wearing shorts and a T-shirt instead of the jeans, T-

shirt, and work boots he had worn before leaving Warner’s house.

	Merriman further testified that, after defendant changed his

clothes, he and defendant drove to Decatur in Cox’s car. Merriman

fell asleep in the car but awakened to see defendant throwing a

beige table top telephone into Lake Decatur. When Merriman and

defendant arrived in Decatur, defendant bought alcohol and

cocaine, which he and defendant smoked.

	Merriman also described events that occurred near the time of

defendant’s arrest on August 15. Merriman testified that on August

14, he and defendant learned that Warner had been arrested. According to Merriman, defendant stated that he would have to

“do” Warner because defendant did not know if Warner would

“talk.” Merriman admitted that he did not tell police of defendant’s

statement that he would have to “do” Warner until the week before

trial.

	William Hayes testified that, around 6 a.m. on August 8, he

saw defendant and Merriman at a friend’s house in Decatur.

Defendant asked Hayes where to buy some crack cocaine, and

Hayes observed defendant buy drugs and alcohol. Defendant

smoked crack cocaine at Hayes’ apartment and stole Hayes’

sandals.

	Cox testified that she lived with defendant in August 1997.

During the evening of August 7, defendant took her car. According

to Cox, defendant did not return home the night of August 7 or the

next morning. Merriman returned her car at about 7 a.m. in the

morning of August 8, but Cox did not see defendant until the

afternoon of August 8. Defendant told her that he had stayed at the

house of some friends. When Cox saw defendant on August 7,

defendant was wearing steel-toed black boots and jeans. On

August 8, he was wearing a pair of denim shorts and sandals.

	Cox testified that, on August 14, defendant gave her a

notebook containing the following note:

		“Vicki, baby, listen. You know I love you with all my

heart. Some shit has happened concerning what I told you

about. If a cop comes past, we have been fighting, and I

left for a few days. I will have someone call tomorrow and

tell you where to come. Take Saturday off work. We are

camping. This will all be over in a few days. Please do as

the letter says, okay, baby? I’ll explain. Don’t tell lawyer

dick nothing. Bring the dog. Bring clothes, coats, my

[C]at boots, and all the money. Bring hamburger and pork

and beans. I love you. Brad. Bring this notepad with this

letter.”

Cox gave the notebook to police, who found defendant’s prints on

it.

	Jeff Peeler testified that he smoked crack cocaine with

defendant at Warner’s house on August 7. According to Peeler, when Warner said that he knew someone who might be interested

in buying drugs, defendant said, “Well if she don’t want to buy

none, we’ll just rob her and kill her.” Peeler also testified that, on

August 9, defendant asked Peeler for money because, he said, he

owed money for drugs. Defendant also asked Peeler if he had any

knives for defendant to “go rob somebody.” Peeler said that he had

no knives.

	With respect to the circumstances of defendant’s arrest, Peeler

testified that, during the evening of August 14, he and his wife

drove defendant and Merriman from Atwood to Decatur to buy

drugs. At defendant’s request, defendant and Merriman rode in the

trunk of the Peelers’ car until they had traveled outside of Atwood.

On their return from Decatur, the Peelers stopped outside of

Atwood to comply with defendant’s request that defendant and

Merriman reenter the trunk for the trip through Atwood.

	The next morning, defendant and Merriman accompanied the

Peelers and their children to Tuscola. The Peelers notified police

that defendant was in their car, and police stopped the car.

Defendant was hiding in the back seat of the car with a knife, but

police arrested defendant apparently without incident.

	Police interviewed defendant after his arrest. In a tape-

recorded statement, defendant admitted that he had been in

Atwood between 4:30 and 8 p.m. on August 7 but denied that he

was in Garrett on August 7 or 8. Defendant stated that he had put

Cox’s daughter to bed around 8:30 or 9 p.m. on August 7 and that

he had spent the entire night with Cox.

	On August 14, 1997, Warner showed police where he had

dropped his knife into the Kaskaskia River. Police recovered the

knife a few feet from this location on August 15. According to the

State’s experts at trial, the metal fragment embedded in Bonnie

Brewer’s skull matched the knife from the river, and there was

human blood on the knife. In addition, the physician who

performed the autopsies of the Brewers testified that all of their

wounds could have been made with this knife.

	On August 20, 1997, Merriman showed police where

defendant had thrown the telephone into Lake Decatur. Police

recovered the telephone near that location the next day. One of the Brewers’ daughters testified that this telephone looked like the one

her parents kept in their living room.

	Police searched the house defendant shared with Cox. In the

basement was the pair of Warner’s shorts that defendant had

borrowed, as well as the sandals he had stolen from Hayes. When

police searched Warner’s house, they found a garden hose and a

fire pit in the backyard. In the remains of the fire pit, there was a

towel and two steel toe pieces. The State presented evidence that

the size of the steel toe pieces was consistent with defendant’s shoe

size. In addition, defendant’s supervisor at the Macon County

Landfill, where defendant worked from December 1996 to May

1997, testified that defendant wore black “engineer” boots with a

black sole.

	Police also searched Warner’s car and Cox’s car. They found

no evidence in Warner’s car. In Cox’s car, however, they found

spots of blood on the dashboard. DNA analysis revealed that some

of the blood on the dashboard belonged to defendant. Other blood

on the dashboard was a mixture that included Bonnie Brewer’s

blood. In addition, in the glove compartment, there was the front

page of the Decatur Herald and Review from August 9, 1997. The

front page contained a story about the Brewer murders, and a star

was written under the headline. Defendant’s fingerprint was found

on this newspaper.

	The defense presented only two witnesses at trial. A police

officer testified that Warner had said that he, not defendant, had

thrown the clothes into the fire pit. A forensic scientist from an

Illinois State Police laboratory testified that, among the hairs found

on Bonnie Brewer’s shirt, there was one hair that did not match the

hair samples from defendant, Warner, Bonnie Brewer, Charles

Brewer, or Doris Jean Brewer. Also, among the hairs found on the

towel from the fire pit, there was one hair that did not match the

hair samples from defendant, Warner, Bonnie Brewer, Charles

Brewer, or Doris Jean Brewer. The forensic scientist testified that

he was not given a hair sample from Merriman.

	Following the presentation of this evidence, the jury found

defendant guilty of the first degree murders of Charles Brewer,

Doris Jean Brewer, and Bonnie Brewer. After a hearing, the same

jury found defendant eligible for the death penalty under sections 9–1(b)(3), (b)(6), and (b)(11) of the Criminal Code of 1961 (720

ILCS 5/9–1(b)(3), (b)(6), (b)(11) (West 1996)).

	At the aggravation-mitigation stage of sentencing, the State

presented victim impact statements from the Brewers’ relatives and

certified copies of defendant’s previous convictions. In 1989, he

was convicted of the unlawful use of weapons. In 1992, he was

convicted of disorderly conduct, burglary, intimidation, and

battery. In 1993, he was convicted of residential burglary and theft.

	A deputy sheriff testified that defendant’s disorderly conduct

convictions stemmed from bomb threats he had made to a local

elementary school and a local high school. Defendant’s burglary

convictions resulted from his burglary of the same local high school

and a service station. The deputy sheriff further testified that

defendant was convicted of intimidation and battery based on his

former girlfriend’s complaint that he had beaten her, held her

against her will, and said that if she pressed charges against him, he

would not kill her but would hit her and watch her bleed.

	According to the deputy sheriff, defendant’s residential

burglary and theft convictions were based on his entry into the Lust

family residence, which was in Piatt County eight miles from the

Brewer house. Like the Brewer house, it was outside of town and

surrounded by farm fields. In addition, a cigarette butt was found

outside the house, there were no signs of forced entry, and no

fingerprints were found inside the house. When police interviewed

defendant in the course of investigating this crime, defendant

admitted that he had parked his car in the driveway of the house,

his codefendant knocked on the front door, and, when there was

no answer, defendant entered through an unlocked door.

Defendant explained that no fingerprints were found in the Lust

residence because he and his codefendant had worn gloves.

Defendant took money and three handguns from the residence. His

codefendant kept one of the guns, and defendant said that he threw

two of the guns into the Kaskaskia River. Police recovered no guns

from the river but, in 1996, one of the guns defendant said he had

thrown in the Kaskaskia River was recovered by police in Chicago.

	The State also presented evidence concerning defendant’s

behavior in jail while awaiting trial in this case. According to this evidence, in February 1998, defendant threatened to “blacken” the

eyes of a jail inspector.

	In mitigation, one of defendant’s cousins testified that

defendant was small and shy in school, and other children would

tease him. He was tested for a learning disability. He was involved

in BMX bicycle racing, had played Little League baseball until he

was knocked unconscious by a baseball, and had played football in

high school. The death of defendant’s infant brother when

defendant was eight or nine years old was very hard on defendant.

Defendant was very close to his cousin’s 12-year-old daughter and

supported his cousin during her divorce. He was very artistic and

drew pictures for the children of friends and relatives. In addition,

defendant had a Christian background and changed his nickname

from Patches to Pages after “receiv[ing] God.” Another of

defendant’s cousins also testified that her daughter was close to

defendant and that defendant had learning difficulties. A relative of

Vicki Cox testified that defendant was good with Cox’s daughter

and that the child called defendant “Dad.”

	One of defendant’s high school teachers testified that

defendant was below-average academically, but he had made a

unique cake decorated like a Jeep in the home economics class she

taught. Defendant’s probation officer testified that he had had no

problems with defendant, and defendant had successfully

completed probation for his unlawful use of weapons conviction.

The probation officer also testified that defendant’s father and

grandfather were members of the Veterans of Foreign Wars, and

defendant had helped with fundraisers for this organization.

Defendant’s supervisor at the Macon County Landfill testified that

defendant was a good worker, whom the supervisor recommended

be hired full-time. Defendant did not return to work, however,

after May 1997. His girlfriend said that defendant had hurt his

hand, and the supervisor had heard that defendant had been in a

knife fight.

	In addition, several individuals who had contact with

defendant in prison during the early nineties testified on his behalf.

A correctional officer testified that he supervised defendant on a

work crew. According to this officer, defendant was a good

worker, related well to the other inmates and did not cause problems. The officer had given defendant a good recommendation

so that defendant could transfer to a different Illinois Department

of Corrections facility. A counselor testified that defendant

performed charity work while in prison in conjunction with a

veterans group. The counselor described him as “one of the very

easy people to deal with,” who related well to the other inmates.

	Other individuals testified concerning defendant’s behavior in

prison while awaiting trial for the Brewer murders. The pastor of

a church defendant had attended with his parents testified that he

visited defendant in prison six times after 1997, and defendant was

receptive to his visits. According to this pastor, defendant

continued to be distraught over the death of his little brother. A

prison chaplain testified that defendant participated in Bible study

through correspondence. Correctional officers testified that they

had no problems with defendant and that defendant had given other

inmates soap, shampoo, and cigarettes.

	Dr. Jonathan Hess, a neuropsychologist, testified that

defendant had suffered one or more traumatic brain injuries. Dr.

Hess’ evaluation of defendant indicated that defendant had damage

to the frontal lobes of his brain and that this damage was more to

the left than the right side of the brain For example, defendant had

a very modest verbal IQ, was poor in solving sequential thinking

problems, and had attention and retention problems. According to

Dr. Hess, the damage to defendant’s brain could have been caused

by being hit in the head with a ball, by falling off of a bike, or by

playing football.

	Dr. Hess explained that among the effects of defendant’s brain

damage were an inability to control anger, irritability, a volatile

disposition, a quick temper, a susceptibility to rage upon

provocation, a failure to estimate the consequences of actions, and

impulsivity. Dr. Hess further testified that these problems could be

treated with medication.

	After hearing this evidence, the jury found no mitigating

factors sufficient to preclude the imposition of the death penalty.

The circuit court sentenced defendant to death.

ANALYSIS

I. Voir Dire

A. Juror Rentfro

	Defendant first argues that resentencing is required because

the circuit court erred in excluding prospective juror James Rentfro

for cause. During voir dire, Rentfro responded to the circuit court’s questions as follows:

			“THE COURT: Do you have any religious or moral

beliefs that would prevent you from serving in this type of

criminal case?

			JUROR RENTFRO: I don’t believe in the death

penalty, let’s put it that way.

			THE COURT: In other words, are you basically saying

under no circumstances could you impose the death

penalty?

			JUROR RENTFRO: No.

			THE COURT: Then I will excuse you for cause. You

may step down.”

Subsequently, defense counsel requested a side bar, after which

defense counsel was permitted to question the prospective juror.

The following colloquy occurred:

			“[Defense counsel]: Mr. Rentfro, I am just going to ask

you some questions in regard to the last answer you gave.

			JUROR RENTFRO: Okay.

			[Defense counsel]: Do you understand that we are a

society of laws?

			JUROR RENTFRO: Yes, sir.

			[Defense counsel]: And do you also understand the duty

of citizens to follow the law even if they don’t agree with

it?

			JUROR RENTFRO: Correct.

			[Defense counsel]: If you are selected as a juror in this

case, Mr. Rentfro, the Judge will instruct you and your

fellow jurors as to the law in this case and that you must

set aside your personal opinions and follow the law. You would be able to listen to the Judge and follow the law as

he told you that the law applies to the case?

			[State]: I object to leading.

			THE COURT: Sustained as to the form of the question.

			[Defense counsel]: Would you be able to follow the law

as the Judge instructs you and your fellow jurors?

			JUROR RENTFRO: Yes.

			[Defense counsel]: So then, in spite of your personal

feelings regarding the death penalty, would you be able to

fill your duty as a citizen to fairly, without prejudice,

weigh the evidence in this case and follow the law in the

trial, and if there is a sentencing, in the sentencing also?

			JUROR RENTFRO: Yes. To follow the instructions,

yes.

			[Defense counsel]: Thank you, Your Honor.

			THE COURT: That gets me back to the original

question. Does your original answer still stand?

			JUROR RENTFRO: Yes, sir.

			THE COURT: Then I will excuse you for cause.”

	Defendant argues that the circuit court should not have

excused Rentfro for cause because, viewed in their entirety, his

responses indicated only a “general disbelief in the death penalty

rather than an unambiguous statement that he would automatically

vote against the death penalty.” According to defendant, it was a

violation of Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), to excuse Rentfro for cause because

he did not unambiguously state that he would automatically vote

against the death penalty. Defendant asserts that this error requires

a new sentencing hearing.

	Under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and its progeny, prospective jurors

who express only general objections to the death penalty may not

be excluded for cause. People v. Gilliam, 172 Ill. 2d 484, 509-10 (1996). Removal for cause is proper only if “ ‘the juror’s views

would “prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his oath.” ’ ” People v. Shaw, 186 Ill. 2d 301, 316 (1998), quoting Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980). Jurors

who would not vote for the death penalty in any case are not

impartial jurors and may be removed for cause. People v. Jackson, 182 Ill. 2d 30, 58 (1998), citing Morgan v. Illinois, 504 U.S. 719, 726-34, 119 L. Ed. 2d 492, 500-06, 112 S. Ct. 2222, 2228-32

(1992).

	In determining whether a prospective juror should be excused

for cause, the circuit court “need not follow a set formula in posing

questions on voir dire.” People v. Cole, 172 Ill. 2d 85, 99 (1996). A potential juror’s remarks must be considered as a whole (People v. Taylor, 166 Ill. 2d 414, 423-24 (1995)), and the circuit court may properly remove a prospective juror for cause even if the

individual does not express his or her views with “meticulous

preciseness” (People v. Rissley, 165 Ill. 2d 364, 402 (1995)). However, it must be clear that a prospective juror is willing to “set

aside his or her own beliefs in favor of the rule of law.” Taylor, 166 Ill. 2d at 424; see also People v. Williams, 161 Ill. 2d 1, 54 (1994); People v. Pitsonbarger, 142 Ill. 2d 353, 386 (1990), citing Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149-50, 106 S. Ct. 1758, 1766 (1986). Whether to excuse a juror for cause

is within the sound discretion of the circuit court, which is in a

“ ‘superior position to determine not only from a venireperson’s

responses as a whole but also from a venireperson’s demeanor

whether that person’s views toward capital punishment would

substantially prevent or impair the venireperson’s performance of

his or her duties as a juror in accord with the oath a juror is

required to take.’ ” Shaw, 186 Ill. 2d at 318, quoting Taylor, 166 Ill. 2d at 424.

	After reviewing Rentfro’s responses, we hold that the circuit

court did not err in excluding Rentfro for cause because of his

opposition to the death penalty. Rentfro initially stated that he did

not believe in the death penalty. Subsequently, he answered “no”

to the circuit court’s question, “In other words, are you basically

saying under no circumstances could you impose the death

penalty?” Because of the manner in which the circuit court phrased this question, we cannot determine from the cold record whether,

by answering “no,” Rentfro meant, “I am not saying that under no

circumstances I could impose the death penalty,” or whether he

meant, “Under no circumstances could I impose the death penalty.”

Immediately after Rentfro answered this question in the negative,

however, the circuit court stated that Rentfro would be excused for

cause. It is clear, therefore, that the circuit court interpreted

Rentfro’s answer to mean that he would not impose the death

penalty under any circumstances. The circuit court was in a

superior position to ascertain the meaning of Rentfro’s responses,

and deference to the circuit court’s judgment is appropriate in

these circumstances. See, e.g., Williams, 161 Ill. 2d at 52-56.

	Contrary to defendant’s argument, Rentfro’s responses to

defense counsel’s subsequent questions do not indicate that he

could set aside his personal views against the death penalty and

vote in favor of the death penalty if the law required it. Defense

counsel asked Rentfro, generally, whether he could follow the law

and whether he could set aside his personal beliefs regarding the

death penalty and follow the law. Rentfro responded that he could.

We agree with the State, however, that it is significant that defense

counsel did not explain to Rentfro that the law may require the

imposition of the death penalty under certain circumstances. In

light of this omission, Rentfro’s responses to defense counsel’s

inquiry do not demonstrate that he could vote in favor of the death

penalty in spite of his personal opposition to it. Indeed, following

defense counsel’s inquiry, Rentfro reiterated that he could not

impose the death penalty in any circumstances by reaffirming his

negative answer to the circuit court’s earlier question. We decline

to overturn the circuit court’s determination that prospective juror

Rentfro’s views on the death penalty would substantially interfere

with his ability to serve as an impartial juror.

B. Newspaper Article in Jury Assembly Room

	Defendant argues that he was denied due process of law and

his right to trial by an impartial jury when jurors were exposed to

a prejudicial newspaper article on May 18, 1998, the first day of

jury selection. Prior to voir dire, defendant requested that prospective jurors be questioned individually outside the presence of other venirepersons. The circuit court denied this request and

decided instead that, in the interest of time, jurors would be

questioned in panels of four. During the examination of the second

panel of four jurors, a prospective juror revealed that he had read

about defendant’s case in a newspaper that was in the jury

assembly room, where prospective jurors waited to be called for

voir dire.

	The circuit court had the newspaper removed from the jury

assembly room, and defendant moved for a mistrial. Defense

counsel stated that he had seen two or three copies of the May 18,

1998, issue of the Decatur Herald & Review in the jury assembly

room. According to defense counsel, the jury pool was tainted by

its exposure to an article on the front page of this issue.

	That article had the headline, “Jury selection begins in triple

slaying,” and a picture of defendant in handcuffs and an orange

jumpsuit. The article described, inter alia, the “general feeling of unease” and fears of Douglas County residents as a result of the

murders, the victims’ employment histories and their good

characters, the victims’ survivors, the impact of the murders on

Bonnie Brewer’s coworkers, defendant’s criminal record, and the

State’s assertion at a bond hearing that defendant had a “ ‘great

motivation’ ” to flee. The article also contained information

Warner had given police, such as the fact that defendant had come

to Warner’s house with blood on his clothing and a bloody knife

with a broken tip. The circuit court denied the motion for a mistrial

but stated that it would ask, and permit counsel for both sides to

ask, prospective jurors whether they had read or heard anything

about the case that would prevent them from being impartial. After

defendant’s motion for mistrial was denied, defense counsel made

a continuing objection based on the newspaper article.

	Before and after the defense motion for a mistrial, the circuit

court’s questioning of jurors about pretrial publicity was essentially

the same. The circuit court asked prospective jurors whether

“Without saying what [they] might have read or might have heard,

[had they] read or heard anything about this case before today.” If

jurors responded affirmatively to this question, the circuit court

asked them whether they could be impartial, despite what they had

read or heard about the case. The circuit court asked some jurors when they had read or heard about the case but did not ask the

jurors specifically what they had learned about the case from

pretrial publicity.

	Defense counsel and the State also questioned prospective

jurors about their exposure to publicity about the case. Like the

circuit court, neither defense counsel nor the State asked

prospective jurors to give details of what they had read or heard

about the case. Instead, both before and after defendant’s motion

for mistrial, the inquiry focused on the timing of the exposure and

the jurors’ ability to base their decision only on evidence presented

at trial.

	The circuit court removed jurors who stated that they thought

they could not be impartial based on their outside knowledge of the

case. It did not remove jurors who stated that they had read or

heard about the case but that they could nevertheless be impartial.

Defense counsel used only 5 of defendant’s 14 initial peremptory

challenges and none of his three additional peremptory challenges

available for alternate jurors.

	Two of the 12 jurors ultimately selected to serve on

defendant’s jury stated that they had not read or heard anything

about the case. Only one of the jurors selected indicated that she

had seen the Herald & Review in the jury assembly room. Juror

Nunn stated that she saw the headlines about defendant’s case in

a newspaper that someone had in the jury assembly room and had

read the first paragraph of an article. She asserted, however, that

what she had read would not affect her ability to be impartial. In

addition, she said that she understood that information in the media

was not evidence and that the only evidence she could consider

was that presented in the courtroom. She also stated that she could

keep the newspaper reports out of her mind while deliberating.

	Three other jurors, juror Althoff, juror Snapp, and juror

Mowery, said that they had seen an article about defendant’s case

in the newspaper on May 18, but did not indicate which newspaper

or where they had seen the newspaper. Juror Althoff testified that

he had merely glanced at the article and did not form any opinions

about the case. Juror Snapp testified that she had skimmed the

article but did not remember much of it. All three of these jurors

stated that what they had read would not affect their ability to be impartial and that they would consider only evidence presented in

court. Juror Snapp further testified that she could keep information

from the newspaper out of her mind during deliberations.

	Juror Smith testified that he had not read anything about the

case, but his mother had asked him if he had read the May 18

newspaper and had told him that the jury was being selected in

defendant’s case. According to Smith, he did not know what his

mother was talking about because he does not read the paper. He

asserted that the information he had learned from his mother would

not prejudice him in defendant’s case, he understood that facts in

newspaper reports are not evidence, and he could keep these facts

out of his mind in deciding the case.

	Three other jurors, juror Blankenship, juror Jones, and juror

Bailey, read about defendant’s case at the time the Brewer murders

occurred but did not read or hear about the case near the time of

trial. Juror Jones stated that, although she had read about the case,

she did not know much about the murders and did not form an

opinion about the case. All three of these jurors said that they

could be impartial despite what they had learned about the case

outside of court, they understood that information presented in the

media was not evidence, and they would decide the case based only

on matters presented in court.

	With respect to the two remaining jurors, juror Bean stated

that she had not read or heard “ much” about the case and that this

information would not cause her to be biased against either side. In

addition, she stated that she could put aside what she had learned

outside of court. Juror Muth stated that she had read or heard

about the case when it happened and around the time of trial but

that she could nevertheless be impartial. She had developed an

opinion that “it was very terrible.” However, when asked whether

she would put what she had heard aside and listen to the evidence,

she replied, “I would certainly try to, yes.”

	Defendant now asserts that he was denied due process of law

and his right to a trial by an impartial jury when jurors saw the

Herald & Review article on the morning that jury selection began.

In particular, defendant claims prejudice based on the newspaper

picture of him in handcuffs, and the information in the article

concerning his prior convictions, the victims’ positive attributes, the impact of Bonnie’s death on her coworkers, the fears of

Douglas County residents, and defendant’s motivation to escape.

According to defendant, jurors’ assertions that they could be

impartial cannot be believed due to the inflammatory nature of this

publicity.

	In addition, defendant contends that the transfer of the case

from Douglas County to neighboring Macon County was

inadequate to reduce the prejudicial effect of publicity, and the

circuit court should have delayed jury selection until jurors who

had not seen the May 18 article could be found. Defendant asserts

that only 10 of the 44 prospective jurors examined stated that they

had not read newspaper stories about the case. Defendant argues

that he must be granted a new trial by a jury not prejudiced by

inflammatory publicity. In the alternative, he requests a new

sentencing hearing.

	Under both the United States and the Illinois Constitutions, a

criminal defendant is entitled to a jury that is impartial, which

means “ ‘a jury capable and willing to decide the case solely on the

evidence before it.’ ” People v. Olinger, 176 Ill. 2d 326, 353 (1997), quoting Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 86, 102 S. Ct. 940, 946 (1982). Exposure to publicity about a

case is not enough to demonstrate prejudice because jurors need

not be totally ignorant of the facts and issues involved in a case.

People v. Sutherland, 155 Ill. 2d 1, 15-16 (1992), citing Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961). This court has previously recognized that “[c]rimes, especially heinous

crimes, are of great public interest and are extensively reported. It

is unreasonable to expect that individuals of average intelligence

and at least average interest in their community would not have

heard of any of the cases which they are called upon to judge in

court.” People v. Taylor, 101 Ill. 2d 377, 386 (1984). A juror must, however, be capable of disregarding his or her impressions

or opinions and decide the case based solely upon the evidence

presented in court. People v. Coleman, 168 Ill. 2d 509, 547 (1995). In evaluating a defendant’s claim that his jury was

prejudiced due to pretrial publicity, a reviewing court must review

the entire record, including voir dire testimony, to determine independently whether the defendant was denied a fair trial. People v. Sanchez, 115 Ill. 2d 238, 263 (1986).

	In an analogous case, People v. Sutherland, 155 Ill. 2d 1 (1992), this court rejected a defendant’s claim that he was denied

a fair trial by extensive media coverage in his case. In Sutherland, as in the instant case, a change of venue was granted to a nearby

county. The defendant argued that transferring the case only 75

miles from the scene of the murder was essentially no change of

venue. The defendant asserted that media coverage of the case

affected residents of the county where the case was tried in the

same way that it had affected residents in the county where the

murder occurred. The defendant observed that 92% of the

veniremen stated that they had read or heard about the case, and

34% of that group stated that they believed the defendant was

guilty and that they could not put aside this opinion. Sutherland, 155 Ill. 2d at 15.

	This court refused, however, to grant the defendant a new trial

in Sutherland based on pretrial publicity. It noted that the 12 jurors selected for the case stated that they had not formed an opinion

based on what they had read or heard and that they could decide

the case based only on evidence presented in court. In addition, this

court rejected the defendant’s argument that “a juror’s good faith

cannot counter the effect of exposure to prejudicial extrajudicial

pretrial information.” Sutherland, 155 Ill. 2d at 16. Although 10 of the 12 jurors had heard about the case, their awareness of the case

was “general” and “minimal,” and came only from local papers. In

addition, none remembered information prejudicial to defendant.

Based on these facts, the Sutherland court concluded that the defense was able to select a fair and impartial jury, and the change

in venue was sufficient to protect the defendant’s rights.

Sutherland, 155 Ill. 2d at 16.

	As in Sutherland, our review of the record in the case at bar leads to the conclusion that “the level of awareness of the case on

the part of the venire and the jury ultimately selected was not so

great as to establish partiality and to deny the defendant a fair trial”

(Sanchez, 115 Ill. 2d at 263). Of the 12 jurors selected, 10 had read or heard about the case, and the record indicates that their

knowledge was based only on newspaper reports. All of the 10 expressed a willingness to put aside what they knew of the case

and decide it based only on the evidence presented in court. They

also averred that they could be impartial despite what they had

learned of the case outside the courtroom. More than half of the 10

who had read or heard of the case indicated that they had minimal

familiarity with the case, having merely “skimmed” or “glanced” at

newspaper reports. Furthermore, we note that defendant only used

5 of his 14 peremptory challenges, a factor that, while not

conclusive, weighs against a finding of jury bias. As in Sutherland, we find that pretrial publicity did not deny defendant a fair trial.

See Sanchez, 115 Ill. 2d at 264-65 (holding that defendant was not denied a fair trial as a result of pretrial publicity; coverage was

extensive but typical for a case of its nature and not

“unprecedented” in intensity).

	Defendant asserts that the circuit court’s failure to ask jurors

precisely what they had read and recalled about the case precludes

a determination that his jury was impartial. He also claims that the

circuit court’s failure to grant his request for individual voir dire prevented defense counsel from making such an inquiry. In

Mu’Min v. Virginia, 500 U.S. 415, 425, 114 L. Ed. 2d 493, 506, 111 S. Ct. 1899, 1905 (1991), however, the United States

Supreme Court approved of voir dire conducted in the manner chosen by the circuit court in defendant’s case. In Mu’Min, as in the instant case, the circuit court denied the defendant’s request for

individual voir dire and instead examined jurors in panels of four. See Mu’Min, 500 U.S. at 419, 114 L. Ed. 2d at 501-02, 111 S. Ct. at 1902. In addition, in Mu’Min, the circuit court refused to ask jurors questions about the content of pretrial publicity to which

they were exposed. Instead, the court asked jurors whether the

information they had learned outside of court would affect their

abilities to be impartial.

	The Supreme Court approved of this procedure. The Court explained: “Whether a trial court decides to put questions about

the content of publicity to a potential juror or not, it must make the

same decision at the end of the questioning: is this juror to be

believed when he says he has not formed an opinion about the

case?” Mu’Min, 500 U.S. at 425, 114 L. Ed. 2d at 506, 111 S. Ct. at 1905-08. The Court held that questions about the content of publicity are not constitutionally required and that the voir dire conducted was sufficient to protect the defendant’s right to a fair

trial by an impartial jury. Mu’Min, 500 U.S. at 425-32, 114 L. Ed. 2d at 506-10, 111 S. Ct. at 1905-08; see also Coleman, 168 Ill. 2d at 547-48. Based on this authority, we conclude in the case at bar

that the circuit court was not required to ask jurors to detail their

recollection of media coverage of defendant’s case. The voir dire in this case was sufficient to determine whether jurors could decide

defendant’s case based on the evidence presented in court.

	We also reject defendant’s argument that pretrial publicity was

so pervasive and prejudicial that it created “ ‘such a presumption

of prejudice in [the] community that the jurors’ claims that they can

be impartial should not be believed’ ” (Coleman, 168 Ill. 2d at 548, quoting Patton v. Yount, 467 U.S. 1025, 1031, 81 L. Ed. 2d 847, 854, 104 S. Ct. 2885, 2889 (1984)). In support of this contention,

defendant relies on this court’s decision in People v. Taylor, 101 Ill. 2d 377 (1984), in which this court granted a defendant a new

trial on the basis that the jury was prejudiced by pretrial publicity.

The Taylor court described the media coverage of the case in the county where the crime occurred and surrounding counties as

“unprecedented.” Detailed coverage began on the day of the crime

and continued through trial. There were daily reports on the radio

and television, as well as extensive coverage in two local

newspapers. Details about the crime and the defendant were

provided by the media, as well as information that a codefendant

had been released after “passing” a lie detector test, whereas the

defendant “did not pass” and was not released Taylor, 101 Ill. 2d at 383-84. A public opinion poll conducted by defense counsel

indicated that 378 of 382 registered voters surveyed had heard of

the case, and 72% believed police had arrested the right person.

Taylor, 101 Ill. 2d at 382-83.

	This court held in Taylor that the circuit court erred in refusing to grant the defendant’s challenges for cause and motion

for change of venue based on the pretrial publicity. Although jurors

stated that they could set aside what they had read or heard about

the case and base their verdict only on evidence in the courtroom,

the Taylor court determined that these assertions were insufficient based on the extent and nature of the publicity about the case. The record indicated that at least three, and possibly six, jurors were

aware of facts indicating that the defendant had performed poorly

on a lie detector test. The Taylor court held that the defendant’s challenges for cause to five of these jurors were improperly denied,

and the defendant had exhausted his peremptory challenges. The

Taylor court concluded that, although the jurors may have been sincere in stating that they could disregard such outside knowledge

of the case,

		“[t]he concern is that this information about polygraphs,

by its nature, is unlike other factual details. This is not the

type of information which the average juror can easily

ignore. Its effect is subtle and unconscious, but at the

same time potent. Whether or not the juror is aware of it

or can express his feelings accurately, exposure to this

type of highly inflammatory material is enough to raise the

presumption of partiality.” Taylor, 101 Ill. 2d at 393.

	In holding that the defendant was denied his right to a fair trial

by the denial of his challenges for cause and his motion for change

of venue, the Taylor court repeatedly emphasized the unique facts of the case. According to the Taylor court, its holding was not based merely on the sheer volume of publicity or the “bare

potential for bias.” Rather, it was based on the documented

“unprecedented volume of publicity” combined with the jurors’

exposure to the polygraph information, which was particularly

persuasive and highly prejudicial. Taylor, 101 Ill. 2d at 395.

	We disagree with defendant that, under Taylor, the jurors’ assertions in defendant’s case that they could be impartial despite

what they had learned about the case outside the courtroom should

be disregarded. The record contains no indication that this case

received the “unprecedented” amount of coverage that existed in Taylor. Evidence in the record of media coverage of defendant’s case is limited to the May 18, 1998, issue of the Decatur Herald &

Review and several newspaper reports in August and September

1997.

	While some of the information in these news reports was

prejudicial to defendant and inadmissible, it was not of the

peculiarly inflammatory nature of the polygraph results disclosed

in Taylor. The newspaper reports about defendant’s case generally described the circumstances of the murders and defendant’s arrest,

the charges against defendant and Warner, Warner’s description of

defendant’s actions on August 8, defendant’s criminal record, fears

of Atwood and Garrett residents after the murders, the police

investigation, and the victims’ lives before the murders. Unlike the

polygraph details in Taylor, press coverage of these facts in defendant’s case does not require a finding that defendant was

denied a fair trial despite the juror’s assertions that they would

decide his case based only on the evidence presented in court. For

example, this court has stated that “[a] juror’s knowledge of the

accused’s prior convictions for other offenses does not create a

presumption of prejudice.” Coleman, 168 Ill. 2d at 547, citing Murphy v. Florida, 421 U.S. 794, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975). In addition, “[b]ecause television and the media

regularly depict criminal defendants in handcuffs, a juror’s viewing

a defendant in handcuffs can no longer be regarded as having a

shocking effect on a prospective juror’s sensibilities.” People v. O’Toole, 226 Ill. App. 3d 974, 985 (1992). We hold that the circuit court did not err in denying defendant’s motion for a mistrial based

on pretrial publicity. We also decline defendant’s request that we

find that the circuit court abused its discretion by not delaying the

trial so that the jury could be selected from a venire that did not see

the article. There was no request for a continuance, and, as stated,

defendant was not denied a fair trial by the jurors who were

selected on May 18 and 19, 1998.

II. Trial

	In addition to his challenges to voir dire, defendant raises three issues with respect to the guilt-innocence phase of the

proceedings in his case. Defendant does not challenge the

sufficiency of the evidence to support his convictions. He claims,

instead, that his convictions must be reversed because (1) the

circuit court refused to order a psychiatric evaluation of Merriman;

(2) the circuit court excluded evidence of Warner’s possession of

the murder weapon several months before the Brewer murders; and

(3) the circuit court refused to give an accomplice witness

instruction to the jury.

A. Psychiatric Evaluation of Merriman

	Before trial, defendant requested that the circuit court order

a psychological and psychiatric evaluation of Randy Merriman. In

addition, defendant asked the court to require the State to disclose

Merriman’s mental health treatment records. The circuit court

denied defendant’s request for an examination of Merriman but

ordered the State to submit records of Merriman’s mental health

treatment for an in camera inspection by the court. After examining the records, the circuit court granted defense counsel’s

request to use eight documents for purposes of impeaching

Merriman’s testimony. At trial, Merriman testified on direct and

cross-examination concerning his history of substance abuse,

mental illness, and memory problems.

	Defendant acknowledges that the jury was presented with

information concerning Merriman’s mental health, but he contends

that “a current psychiatric evaluation was needed to allow the

defense to investigate and possibly present defense evidence to the

jury as to how Merriman’s mental problems affected his credibility

as a witness as well as his ability to perceive reality at the time of

the crime.” According to defendant, Merriman’s credibility was

critical to the State’s case against defendant, and the circuit court’s

refusal to order an evaluation of Merriman deprived defendant of

his right under the sixth amendment to the United States

Constitution to confront witnesses and present a defense.

	A criminal defendant’s right to confrontation under the sixth

amendment includes the right to cross-examine witnesses against

him. People v. Kliner, 185 Ill. 2d 81, 130 (1998), citing Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110 (1974). “Any permissible matter which affects the witness’s

credibility may be developed on cross-examination.” Kliner, 185 Ill. 2d at 130. However, “[a] defendant’s rights under the

confrontation clause are not absolute. Rather, ‘the Confrontation

Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’ ” (Emphasis in original.) People v. Jones, 156 Ill. 2d 225, 243-44 (1993), quoting Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985). The latitude allowed on cross-examination is within the sound discretion of the circuit court, and a reviewing court will

not interfere unless there has been a clear abuse of discretion

resulting in manifest prejudice to the defendant. People v. Frieberg, 147 Ill. 2d 326, 357 (1992); People v. Sandoval, 135 Ill. 2d 159, 194 (1990).

	Because of the information made available to the defendant

through Merriman’s mental health treatment records, we cannot

conclude that the circuit court abused its discretion by denying

defendant’s request for a psychological and psychiatric evaluation

of Merriman. The defense received copies of records from June

1997 through March 1998. These records, which included

psychiatric and mental health evaluations, indicated that Merriman

had sought treatment for depression and substance abuse several

times in 1997 and 1998. Records of evaluations on June 3, 1997,

and July 30, 1997, showed that Merriman had been diagnosed with

major depression with psychotic features. He had been prescribed

Risperdal and Serzone in May 1997, which improved the

symptoms of his depression. Also according to these records,

Merriman said he had suicidal thoughts, described his thoughts as

“jumbled up,” and stated that he had problems with his memory

and concentration. In addition, he reported a history of cocaine

dependence but stated that he had not used cocaine since April

1997.

	In October 1997, Merriman told mental health workers that he

had not used cocaine since April 1997. In December 1997,

however, Merriman sought treatment for substance abuse. At that

time, he admitted smoking $50 of crack cocaine a day and reported

hallucinations of people hiding behind trees in front of his parents’

house. According to the December evaluation, Merriman’s use of

drugs appeared to aggravate his psychiatric symptoms. Other

mental health treatment records provided to the defense indicated

that, following Merriman’s release from a drug rehabilitation

program in 1998, he relapsed and entered drug treatment again in

February 1998 after using $600 of crack cocaine on one day.

	These records permitted the defense to conduct an effective

cross-examination of Merriman. At trial, Merriman testified on

direct examination that he was a drug addict and that he had been

diagnosed with a severe major depressive disorder with psychotic features. He stated that he ingested medication for this mental

illness on August 7. Merriman acknowledged that he sometimes

had problems remembering things but asserted that he recalled the

events of August 7, 8, 14, and 15 “pretty well.” On cross-

examination, Merriman stated that he had been treated for cocaine

addiction in 1997 and 1998 and sought mental health treatment in

1997 on several occasions. He admitted that, on July 30, he had

complained of jumbled thought, bad memory, and hallucinations

and had indicated that his cocaine addiction made his symptoms

worse. He had been on medication since May 1997 and used crack

cocaine on the morning of August 8.

	 As this testimony demonstrates, the defendant was able to

provide the jury with ample information from which to evaluate

Merriman’s credibility and ability to perceive and recall the events

surrounding the Brewer murders and defendant’s arrest.

Accordingly, the circuit court’s refusal to order a psychological

and psychiatric examination of Merriman was not an abuse of

discretion resulting in manifest prejudice to defendant, and

defendant was not denied his rights under the sixth amendment.

B. Exclusion of Evidence of Warner’s Possession of the Murder Weapon

	Defendant also argues that he must receive a new trial as a

result of the circuit court’s exclusion of evidence that Dyno Warner

possessed the knife used to kill the Brewers when he was stopped

by police several weeks prior to the Brewer murders. The State

filed a motion in limine, in which it requested that the circuit court bar evidence relating to the June 20, 1997, police stop of Warner’s

car. At the time, Warner was riding in the passenger seat of the car.

During a search of the vehicle, police found the knife later used in

the Brewer murders between the driver’s and passenger’s seats.

Warner was not arrested or charged as a result of this stop, but

another passenger in the car was arrested for possession of

marijuana. The court granted the motion in limine.

	Defendant argues that evidence that Warner had the knife on

June 20, 1997, was relevant and admissible because it “made it

more probable that he was the one who used the knife to murder

the Brewers ***, and that he was lying about Brad taking the knife.” In addition, defendant asserts that evidence that Warner had

the knife in his car in June 1997 indicated that Warner used the

knife to commit drug offenses instead of merely keeping it in his

home. According to defendant, the exclusion of this evidence

prevented him from asking Warner if, at the time of the murders,

he was also using the knife to get drugs, and prevented defendant

from relying on this evidence to support his theory that Warner and

Merriman rather than defendant killed the Brewers. Defendant

contends that he was thereby denied his rights under the sixth

amendment to confront witnesses and to present a defense.

	It is the function of the circuit court to determine the

admissibility of evidence, and a reviewing court will not reverse the

circuit court’s ruling on a motion in limine absent an abuse of discretion. People v. Williams, 188 Ill. 2d 365, 369 (1999); People v. Buss, 187 Ill. 2d 144, 219 (1999). In order to be admissible, evidence must be legally relevant, that is, it must tend “ ‘to make

the existence of any fact in consequence to the determination of the

action more or less probable than it would be without the

evidence.’ ” People v. Hope, 168 Ill. 2d 1, 23 (1995), quoting People v. Peeples, 155 Ill. 2d 422, 455-56 (1993). Although a defendant in a criminal case may offer evidence that tends to show

that someone else committed the offense with which he is charged,

such evidence should be excluded on the basis that it is irrelevant

if it is too remote or too speculative. People v. Whalen, 158 Ill. 2d 415, 430-31 (1994); People v. Ward, 101 Ill. 2d 443, 455 (1984).

	In the case at bar, the circuit court properly excluded the

evidence of Warner’s possession of the knife as irrelevant to the

murder charges against defendant. Evidence that Warner was in

possession of the knife on June 20 was too remote to demonstrate

that Warner, rather than defendant, possessed the knife at the time

of the Brewer murders. There was no dispute in this case that the

knife used to murder the Brewers belonged to Warner and was in

his possession prior to August 8. Warner testified, however, that

defendant stole the knife from his house on August 8 before

leaving to kill the Brewers. Evidence that Warner possessed the

knife on June 20 did not undermine Warner’s claim that defendant

stole the knife.

	Defendant asserts that Warner’s use of the knife on June 20 in

a drug offense supports a conclusion that he was the one who used

it to obtain drug money from the Brewers on August 8. There was

no evidence, however, that Warner was involved in a drug offense

on June 20. Thus, there is no connection between Warner’s

possession of the knife during the traffic stop on June 20 and the

Brewer murders on August 8. The conclusion that because Warner

possessed the knife on June 20 he was the one who used it to kill

the Brewers on August 8 is speculative. Accordingly, we decline

to find an abuse of discretion or a constitutional violation in the

circuit court’s exclusion of this evidence.

C. Accomplice Witness Instruction

	Defendant also claims error at trial based on the circuit court’s

refusal to give the jury the “accomplice witness instruction”

contained in Illinois Pattern Jury Instructions, Criminal, No. 3.17,

which provides:

			“When a witness says he was involved in the

commission of a crime with the defendant, the testimony

of that witness is subject to suspicion and should be

considered by you with caution. It should be carefully

examined in light of the other evidence in the case.”

Illinois Pattern Jury Instructions, Criminal, No. 3.17 (3d

ed. 1992) (hereinafter IPI Criminal 3d).

Defendant proposed this instruction at the instruction conference,

but the State objected, and the circuit court refused the instruction.

	The test for determining whether a witness is an accomplice

for purposes of the accomplice witness instruction is whether there

is probable cause to believe that the witness was guilty of the

offense at issue as a principal or as an accessory under a theory of

accountability. People v. Harris, 182 Ill. 2d 114, 144 (1998).

			“Thus, an accomplice-witness instruction should be

given to a jury if the totality of the evidence and the

reasonable inferences that can be drawn from the evidence

establish probable cause to believe not merely that the

person was present and failed to disapprove of the crime,

but that he participated in the planning or commission of the crime; if probable cause is established the instruction

should be given despite the witness’ protestations that he

did not so participate.” People v. Henderson, 142 Ill. 2d 258, 315 (1990).

A reviewing court will not overturn a circuit court’s refusal to give

an accomplice witness instruction absent an abuse of discretion.

Harris, 182 Ill. 2d at 144.

	Defendant argues that the accomplice witness instruction

should have been given because Warner could have been indicted

for the Brewer murders as a principal or under an accountability

theory. Defendant relies on evidence that the murder weapon

belonged to Warner, defendant had asked Warner for a weapon

and had said he would do whatever it took to get money, Warner

helped defendant burn his bloody clothing, Warner threw the knife

into the Kaskaskia River, and Warner did not speak to police for

five days after the murders. Defendant claims that Warner’s actions

in covering up the crime suggest a consciousness of guilt and that

Warner’s version of events could have been an effort to frame

defendant. In addition, defendant contends that the evidence of his

DNA on the cigarette butt at the murder scene was not inconsistent

with a conclusion that Warner was an accomplice. According to

defendant, Warner could have planted the cigarette butt at the

scene, defendant could have been at the scene after the murders

occurred, Warner could have transferred defendant’s DNA onto

the cigarette butt because he and defendant had shared a crack pipe

before the murders, or the cigarette butt could have fallen out of a

car driven by Warner at the murder scene. Defendant also argues

that Warner could have left Bonnie Brewer’s blood in defendant’s

car.

	After carefully reviewing the record in defendant’s case, we

find that the circuit court properly denied defendant’s request for

an accomplice witness instruction. Although Warner admitted

helping defendant to conceal evidence related to the Brewer

murders after they occurred, defendant’s entitlement to an

accomplice witness instruction was dependent on a showing of

probable cause that Warner aided or abetted defendant in planning

or committing the Brewer murders. There was no such evidence.

	According to Warner’s uncontradicted testimony, he did not

give defendant permission to use his knife and was not present at

the murder scene. Based on defendant’s statements on August 7

and August 8, Warner may have thought that defendant planned to

commit a crime when he left Warner’s house in the early morning

hours of August 8, but mere knowledge that a crime is to be

committed is not enough to show that a witness was an

accomplice. See Henderson, 142 Ill. 2d at 314. Similarly, admitted participation in a related but distinct offense, such as Warner’s

admission to performing acts that constituted obstruction of

justice, does not make a witness an accomplice. See Henderson, 142 Ill. 2d at 314. Furthermore, defendant’s suggestions that

Warner could have left Bonnie’s blood in defendant’s car and could

have been responsible for the cigarette butt found in the Brewers’

yard are based on speculation and do not support a finding that

Warner was an accomplice. For example, although the State’s

expert testified that the DNA of one person could be transferred to

the lips of another who shared a crack pipe, Warner was excluded

as a source of the DNA found on the cigarette butt. Accordingly,

the evidence was insufficient to support giving the accomplice

witness instruction, and the circuit court did not abuse its

discretion in denying defendant’s request for such an instruction.

See, e.g., Harris, 182 Ill. 2d at 144-45. We affirm defendant’s convictions.

III. Sentencing

	Defendant does not challenge the jury’s verdict finding him

eligible for the death penalty. He argues, however, that several

errors that occurred during the second stage of his sentencing

proceedings require that his sentence be vacated and that he

receive a new sentencing hearing. Defendant contends that he was

denied a fair second stage sentencing hearing (1) by remarks the

State made during its opening statement and closing argument; (2)

by the circuit court’s refusal to permit defense counsel to argue

residual doubt; and (3) by the circuit court’s refusal to instruct the

jury as to his potential for rehabilitation.

A. Opening Statements and Closing Arguments

1. Statement Regarding Chicago Homicide

	During the State’s opening statement at the second stage of

defendant’s sentencing hearing, one of the prosecutors made the

following reference to the recovery of a gun defendant took in his

1993 burglary of the Lust residence:

		“You are going to hear how he took revolvers from that

particular house; how when the heat was on, he threw the

revolvers again into the–a body of water–in this case–by

his own statement, into the Kaskaskia River. That’s what

he told police. *** But we are also going to learn that one

of the weapons he said he threw into the river, at that time

the police were unable to recover, was later found during

an investigation in 1996 in Chicago, Illinois into another

homicide, and the weapon itself was used in a homicide.”

Defendant made no objection to this argument. Later that day,

however, defense counsel asked the circuit court to bar any

reference to the gun or to what happened to it in Chicago. The

circuit court ruled that the State could present evidence that the

gun was recovered but not that it was used in a homicide in

Chicago.

	Defendant now argues that the State’s reference to the

homicide in Chicago was irrelevant, unreliable, and prejudicial

because it left the jury with the impression that defendant

committed a murder in Chicago or bore some responsibility for it.

As the State observes, defendant has waived this issue for review

by failing to make a timely objection to the portion of the State’s

opening statement that he now challenges. See People v. Brown, 185 Ill. 2d 229, 252 (1998). Defendant does not argue that any of

the recognized exceptions to the waiver doctrine apply and does

not claim ineffective assistance of trial counsel. We, therefore,

decline to address the merits of defendant’s argument.

2. Argument That the Jury Could Not Consider Mercy

	Defendant also claims prejudice at the second stage of

sentencing based on the State’s argument regarding the jury’s consideration of mercy. During closing arguments at the

aggravation-mitigation stage, defense counsel argued:

			“The last thing that I need to speak to you about is of

mercy. I think certainly many of you may have the desire

to be merciful to Brad, and I think that is sufficient

mitigation. *** Mercy is what we show our enemies. It’s

kindness where it’s most difficult to be kind. *** And

mercy is mitigation.”

In its rebuttal argument, the State responded as follows:

			“Counsel for the defendant talked to you about mercy,

and the Court is going to read to you that ‘You are not to

be swayed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion, or public feeling.’ And

I am not going to suggest to you that –[well] mercy

clearly falls within that. I am not going to suggest–

			[Defense counsel]: Objection.

			THE COURT: The objection shall be overruled. This is

comments of counsel, counsel’s argument. I shall allow

counsel to respond.

* * *

			[State]: Mercy falls within the definitions of sentiment,

sympathy or passion. I would suggest to you that her

argument is not based on the law.

			[Defense counsel]: I object.

			THE COURT: The objection shall be overruled. This is

the arguments of counsel, and the Court is going to allow

the arguments.

			[State]: Not based upon the law the Court will read to

you.”

The circuit court denied defendant’s request that the jury receive

instructions informing it that it could consider mercy in determining

the appropriate penalty at aggravation-mitigation. See, e.g., Buss, 187 Ill. 2d at 235 (defendant’s instructions regarding the jury’s

consideration of mercy were properly refused); Hope, 168 Ill. 2d at 46-47 (same).

	Defendant contends that the State misstated the law in its

argument by suggesting that jurors could not consider mercy and

that, when the circuit court overruled defendant’s objections to this

argument, it indicated to jurors that the State was correct in

asserting that the defense argument regarding mercy was not based

on the law. According to defendant, he must receive a new

sentencing hearing because “[t]he defense appeal for mercy by any

single juror, resulting in a natural life sentence based on

[defendant’s] good prison behavior, his good work record, his

generally non-violent criminal history, and his brain damage was

devastated by the prosecutor’s argument in conjunction with the

Court’s overruling of the defense objections.”

	At oral argument, the State conceded that its argument

regarding mercy at the second stage of the sentencing proceedings

was improper. The State asserts, however, that its argument was

not so prejudicial as to require vacation of defendant’s sentence

and a new sentencing hearing.

	Under the precedent of this court, mercy is a relevant

mitigating factor, and the prosecution may not argue that the jury

may not consider mercy. See, e.g., Buss, 187 Ill. 2d at 244-45. Nevertheless, we agree with the State that its argument regarding

the jury’s consideration of mercy does not require that defendant

receive a new sentencing hearing. In People v. Hall, No. 86168 (December 1, 2000), this court found that any error resulting from

the circuit court’s explanation to the jury regarding its

consideration of mercy at the aggravation-mitigation phase was

harmless. In Hall, the circuit court sustained the State’s objections to defense counsel’s argument that the jury could consider mercy.

In doing so, the circuit court stated: “ ‘Mercy  is, as defined in the

case law, the part that says you can consider it, its defined as that

natural feeling of sympathy for something that may arise from

certain evidence ***. That is a natural reaction. Feeling those kinds

of feelings are appropriate to consider. Showing mercy is a

different thing.’ ” Hall, slip op. at 22. This court concluded that, to the extent the circuit court’s explanation indicated that mercy

differed from other mitigating factors the jury could consider, it

was error. However, we held that any such error in the court’s oral explanation was harmless in light of the fact that the jury received

proper written instructions at sentencing.

	As in Hall, the jury in defendant’s case was properly instructed according to IPI Criminal 3d No. 7C.01 (“You are not to be

swayed by mere sentiment, conjecture, sympathy, passion,

prejudice, public opinion, or public feeling”) and No. 7C.06

(“Mitigating factors include: *** Any other reason supported by

the evidence why the defendant should not be sentenced to death”).

A reasonable juror interpreting these instructions would disregard

the emotion of sympathy yet appropriately base his or her

sentencing decision on the mitigating evidence and any feelings of

sympathy or mercy it elicited. People v. HHall, slip op. at 21-22. No. 86168 (adopted at September term). Given these instructions, as well as the circuit court’s instruction to the jury

that arguments not based on the evidence should be disregarded,

we hold that, under Hall, any error resulting from the State’s argument about mercy was harmless.

3. Argument That Defense Counsel Tried to “Dupe” the Jury

	Defendant also contends that he was deprived a fair sentencing

hearing when, during its closing argument at aggravation-

mitigation, the State accused defense counsel of deceiving the jury.

Defendant bases this argument on two portions of the State’s

argument. In the first portion, the State argued as follows:

		“We go to the Lust house and we find out again he is

wearing gloves. Let me talk to you about duty, about

misdirection in a case. The defendant through his counsel

suggested to you days ago in the guilt phase of this trial

the lack of fingerprint evidence. They say the lack of

fingerprint evidence would show you that there is a

reasonable doubt as to the defendant’s guilt. What did we

finally learn? We learned what we knew all along. That the

lack of fingerprint evidence alone is reason to believe this

defendant is guilty.

			[Defense counsel]: I object, Judge.

			THE COURT: The objection shall be overruled. Both

counsel may make what they consider to be reasonable

inferences of the evidence.

			You may proceed, counsel.

			[State]: He told his co-defendant in the Lust case, put

on your, quote, God damn gloves when they were in the

house. The argument that because there were no

fingerprints in the Brewer house, therefore, it’s – there is

a reasonable doubt as to this defendant’s guilt, when you

paint it in light of this particular defendant’s knowledge of

the use of gloves and how it will not leave prints, is less

than remarkable. It’s another example of what I showed

you in People’s Exhibit 12,1 his desire to make you believe there is something that is just simply not true.”

Subsequently, the State argued:

			“Ladies and gentlemen, just as I suggested to you, the

lack of fingerprint evidence in their earlier argument was

an attempt to dupe you because we now know the truth

about it–

			[Defense counsel]: I object, Judge.

			THE COURT: The objection shall be overruled.

			[State]: –so is the evidence from Ph.D. Hess that he has

a brain injury, and therefore, we should feel sympathy for

him because he got hit in the head with a baseball by his

own statement back in grade school. What else do we

know about that? Is there any evidence that he was in

trouble from the time he was in grade school, from 9 to 12

years of age, until he hit the age of 20 and 21 as he began

to choose to engage in this life of crime?”

	Defendant contends that these arguments were improper and

prejudicial because they diminished defense counsel’s credibility

and shifted the jury’s attention from the evidence to defense

counsel’s objectives. In addition, defendant contends that the

State’s comments were inaccurate because the absence of

fingerprint evidence at the Brewer house supported defense

counsel’s argument that someone other than defendant committed

the murders.

	Prosecutors are afforded wide latitude in closing argument.

People v. Redd, 173 Ill. 2d 1, 44 (1996). A “prosecutor’s comments in closing argument will result in reversible error only

when they engender ‘substantial prejudice’ against the defendant

to the extent that it is impossible to determine whether the verdict

of the jury was caused by the comments or the evidence.” People v. Macri, 185 Ill. 2d 1, 62 (1998). Challenged remarks must be viewed in the context of closing arguments as a whole. People v. Burgess, 176 Ill. 2d 289, 319 (1997).

	The State may challenge a defendant’s credibility and the

credibility of his theory of defense in closing argument when there

is evidence to support such a challenge. People v. Hudson, 157 Ill. 2d 401 (1993). It is well established, however, that “ ‘[u]nless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a

defense theory, attempted to free his client through trickery or

deception, or suborned perjury are improper. [Citations.]’ ”

(Emphasis in original.) Jackson, 182 Ill. 2d at 81, quoting People v. Emerson, 97 Ill. 2d 487, 497 (1983).

	In this case, after carefully reviewing the State’s remarks in

context, we find that they were a proper comment on the credibility

of the defendant and his theory of defense rather than an

impermissible attack on defense counsel. In a case involving a

similar argument by the State, People v. Hudson, 157 Ill. 2d 401 (1993), this court rejected the defendant’s contention that the

State’s remarks were an improper attack on defense counsel. The

State argued:

			“ ‘You know, this whole defense of insanity on these

facts would be laughable if we weren’t dealing with such

a serious case, such an important case. This whole theory

the defense has concocted to present to you here in court

would be laughable. But it’s not laughable.’ ” Hudson, 157 Ill. 2d at 442.

This court determined that because these comments did “not

sufficiently refer to defense counsel or attribute any particular

wrongdoing to him,” they did not suggest that defense counsel

fabricated a defense. Hudson, 157 Ill. 2d at 443. Instead, this court decided that the State’s argument was a comment on the credibility

of the defendant. Hudson, 157 Ill. 2d at 443.

	As in Hudson, the challenged portions of the State’s argument in defendant’s case do not sufficiently refer to defense counsel. In

the first portion of the challenged argument, the prosecutor

attributed “misdirection” to “defendant through his counsel.” In the

second portion, the prosecutor stated that “their argument” was an

attempt to “dupe” the jury. A central theme of the State’s

argument was that defendant was attempting to present to the

jurors an image of himself that was not the truth. For example, the

State argued that defendant had changed his appearance between

the time of his arrest and the time of trial to become more clean-cut

and that, although defendant presented testimony that he

performed well in a high school home economics class, defendant

had made bomb threats to the high school. In this context, we

interpret the challenged comments as a criticism of defendant’s

credibility rather than an attack on defense counsel. See also People v. Hope, 137 Ill. 2d 430 (1990) (in context, the State’s argument was a comment on the implausibility of the defense

theory rather than an accusation against defense counsel of

fabrication or trickery).

	In support of his argument that the State’s remarks require

that he receive a new sentencing hearing, defendant cites several

cases in which this court has found reversible error based on

closing arguments in which the State has accused defense counsel

of trickery or deception. For example, in People v. Kidd, 147 Ill. 2d 510 (1992), this court held that the defendant was entitled to a

fair trial based on the State’s argument that defense counsel was

attempting to trick the jury. In one portion of the argument, the

State argued:

			“ ‘In reality, ladies and gentlemen, the defense attorneys

in this case, the real defense is to create as much side

issues, to create as much confusion as possible so that

when you go into the jury room, you are diverted from the

real facts, the real issues *** and you chase after all these

loose ends or side issues or side defenses that [defense

counsel] just tried to raise in his closing argument.

			I submit to you, ladies and gentlemen, that the defenses raised in this case are similar to a smoke screen.’ ” (Emphasis in original.) Kidd, 147 Ill. 2d at 541.

This court found the “smokescreen” argument particularly

prejudicial because the defendant was accused of arson resulting in

the deaths of 10 children. In addition, the fact that the State made

eight “smokescreen” comments distinguished the case from others

in which this court had declined to find reversible error based on

“passing references” to a smokescreen theme. Kidd, 147 Ill. 2d 510; see also, e.g., Emerson, 97 Ill. 2d at 497 (finding reversible error based on the State’s argument that “defense counsel had laid

down a smokescreen ‘composed of lies and misrepresentations and

innuendoes’ ” and that “all defense attorneys try to ‘dirty up the

victim’ to distract the attention of the jury from the defendant’s

crime”); People v. Monroe, 66 Ill. 2d 317, 323 (1977) (finding reversible error based on the State’s argument that “ ‘[defense

counsel’s] closing argument is fraudulent’ ” and that defense

counsel did not believe his own argument).

	Unlike defendant’s case, the cases on which defendant relies

involved direct references to defense counsel and repeated

accusations of deceit. By contrast, the challenged comments in

defendant’s case were brief and properly directed against the

credibility of defendant and his theory of defense. Thus, under

Hudson, no new sentencing hearing is required.

4. Prohibiting the Defense From Arguing Residual Doubt

	Defendant raises a second argument based on these same two

portions of the State’s argument. According to defendant, the

circuit court erred by refusing to permit him to argue residual

doubt as a response to the State’s comments about the strength of

the evidence supporting his murder convictions. Defendant asserts

that this error requires resentencing.

	During closing arguments at the aggravation-mitigation stage

of sentencing, the circuit court sustained the State’s objection to

defense counsel’s residual doubt argument:

			“Now the other thing that is mitigation is any bit of

doubt that remains with you–

			[State]: Objection. Objection if we are going to argue

reasonable doubt. It is an improper argument.

			THE COURT: You may complete your statement, and

I will hear the objection.

			[Defense counsel]: That if there is doubt that remains

with you about what happened–

			[State]: Objection.

			THE COURT: Let her complete her question.

			[Defense counsel]:–on the night in question, then you

can consider that.

			THE COURT: The objection shall be sustained.

			[Defense counsel]: You know, your decision today,

whatever it is, can’t be changed. And if in time you learn

something about this that’s different, you are going to

have to live with that.

			[State]: Same objection.

			THE COURT: Sustained.

			[State]: I ask that they be instructed on that.

			THE COURT: It shall be stricken.”

	Defendant acknowledges that a defendant ordinarily has no

right to argue residual doubt. Both this court and the United States

Supreme Court have held that a defendant is not entitled to present

evidence of residual doubt at the penalty phase of sentencing

proceedings. See, e.g., Franklin v. Lynaugh, 487 U.S. 164, 172-75, 101 L. Ed. 2d 155, 165-66, 108 S. Ct. 2320, 2327-28

(1988); People v. Emerson, 189 Ill. 2d 436, 503 (2000); People v. Terrell, 185 Ill. 2d 467, 500-01 (1998); People v. Hooper, 172 Ill. 2d 64, 79 (1996); People v. McDonald, 168 Ill. 2d 420, 454-55, (1995). The rationale for these holdings is that “[r]esidual doubt is

not relevant to the circumstances of the offense or to the

defendant’s character and, as a result, is not relevant to the

imposition of the death penalty.” Hooper, 172 Ill. 2d at 79.

	Defendant contends, however, that an otherwise improper

argument may be permitted if it is invited by the other party.

According to defendant, the circuit court in this case erred by

prohibiting defense counsel’s residual doubt argument because it was a proper response to the State’s improper argument

concerning the sufficiency of the evidence. As defendant observes,

this court has held that otherwise improper argument by the State

will not be considered error when invited by the defendant’s

argument. See, e.g., Kliner, 185 Ill. 2d at 153; People v. Brown, 172 Ill. 2d 1, 43 (1996); People v. Mahaffey, 128 Ill. 2d 388, 423- 25 (1989). Defendant has provided us with no authority for the

proposition that an improper argument by defense counsel must be

permitted when invited by the State’s argument. Even assuming,

however, that in some cases fairness may require that a defendant

be permitted to make such a response to the State’s argument, we

do not believe that this is such a case.

	During closing argument at the second stage of sentencing, the

State is entitled to argue that the nature and circumstances of a

defendant’s crimes are aggravating. See, e.g., People v. Cloutier, 178 Ill. 2d 141, 168 (1997). Thus, the State was entitled to argue

at the aggravation-mitigation stage in this case that defendant’s

previous use of gloves in a burglary and the lack of fingerprint

evidence at the Brewer house suggested that he used gloves when

committing the Brewer murders. The State’s comment on the

sufficiency of the evidence supporting defendant’s convictions,

however, did not pertain to the circumstances of the offense or to

defendant’s character or record and were consequently not relevant

to the imposition of the death penalty. See Hooper, 172 Ill. 2d at 79. Nevertheless, this irrelevant argument by the State did not

require that the circuit court permit defendant to argue residual

doubt.

	The circuit court is able to observe trial proceedings and is in

the best position to evaluate the prejudicial effect of remarks in

closing argument. People v. Howard, 147 Ill. 2d 103, 168 (1991). Reviewing courts, therefore, afford the circuit court discretion to

determine the proper character and scope of argument and indulge

every reasonable presumption that the circuit court properly

exercised its discretion. People v. Cloutier, 156 Ill. 2d 483, 507 (1993).

	In the case at bar, little, if any, prejudice resulted from the

State’s brief reference to the strength of the evidence to support

defendant’s convictions, particularly in light of the fact that the jury had already decided to convict defendant of the Brewer murders.

Thus, we do not believe defendant was denied a fair sentencing

hearing when the circuit court refused to permit him to respond by

arguing residual doubt. As stated, a defendant is not entitled to

argue residual doubt, and we hold that the circuit court did not

abuse its discretion in failing to make an exception to this rule in

defendant’s case as a result of the State’s irrelevant arguments.

B. B. Failure to Instruct the Jury Regarding Defendant’s Potential for Rehabilitation

	Defendant also claims reversible error based on the circuit

court’s refusal, at the second stage of the sentencing proceedings,

to instruct the jury that mitigating factors include that “[t]he

defendant may be rehabilitated or restored to useful citizenship.”

IPI Criminal 3d No. 7C.06 provides in relevant part:

			“Mitigating factors include:

			First: [(Any or all of the following) (The following)] if

supported by the evidence:

* * *

				The defendant may be rehabilitated or restored to

useful citizenship.

			Second: Any other reason supported by the evidence

why the defendant should not be sentenced to death.

			Where there is evidence of a mitigating factor, the fact

that such mitigating factor is not a factor specifically listed

in these instructions does not preclude your consideration

of the evidence.”

The instructions proposed by the prosecution followed the

language of IPI Criminal 3d No. 7C.06, except that no mitigating

factors, such as defendant’s potential for rehabilitation, were

enumerated. The prosecution’s instruction stated only that

mitigating factors included “any other reason supported by the

evidence why the defendant should not be sentenced to death.”

	At the instruction conference, defense counsel objected to this

omission but did not tender an alternative instruction. The circuit court overruled defendant’s objection and gave the jury IPI

Criminal 3d No. 7C.06 in the form proposed by the State.

	Defendant now contends that the circuit court’s failure to

instruct the jury that defendant’s potential for rehabilitation was a

mitigating factor violated the eighth amendment to the United

States Constitution, as well as article I, section 11, of the Illinois

Constitution, which provides that “[a]ll penalties shall be

determined both according to the seriousness of the offense and

with the objective of restoring the offender to useful citizenship.”

According to defendant, there was significant evidence of his

potential for rehabilitation, including his charity, good behavior,

and good work record in prison; his artistic talent, his interest in

religion, his positive relationship with his girlfriend’s daughter, and

the availability of medication to treat the problems associated with

his brain damage. Defendant asserts that the failure of the circuit

court to instruct the jury to consider his potential for rehabilitation

“diminished, if not eliminated, the jury’s consideration of that type

of mitigation” and “handicapped counsel’s ability to advocate the

mitigation evidence in those terms.” As a result, defendant argues,

he is entitled to a new sentencing hearing.

	It is well established that a defendant is entitled to have the

jury instructed on the theory of his case. Gilliam, 172 Ill. 2d at 519. If there is some basis for such an instruction in the evidence,

it is an abuse of the discretion for the circuit court to refuse the

instruction. See, e.g., People v. Crane, 145 Ill. 2d 520, 526 (1991).

	The State asserts that the circuit court properly refused to

instruct the jury concerning defendant’s potential for rehabilitation

because the evidence at the aggravation-mitigation stage did not

support such an instruction. However, “[v]ery slight evidence upon

a given theory of a case will justify the giving of an instruction.”

People v. Jones, 175 Ill. 2d 126, 132 (1997). Defendant presented evidence that he was a good worker and had been involved in

charitable activities both in and out of prison; he had been kind to

other inmates and children; and he had sincere religious beliefs. In

addition, Dr. Hess testified that the symptoms of defendant’s brain

damage could be treated with medication. Based on this evidence,

we find that the circuit court erred in refusing defendant’s request that the jury be instructed that mitigating factors included his

potential for rehabilitation and useful citizenship.

	Nevertheless, we disagree with defendant that this error

requires that he receive a new sentencing hearing. “An error in a

jury instruction is harmless if the result of the trial would not have

been different if a proper instruction had been given.” People v. Alvine, 173 Ill. 2d 273, 290 (1996). In the case at bar, the circuit court’s instructional error was harmless.

	This court has previously explained:

			“It is well established that at the aggravation/mitigation

stage of sentencing, the sentencer may not be precluded

from considering, and may not refuse to consider, any

constitutionally relevant mitigating evidence. [Citations.]

The standard for determining whether jury instructions

violate the protections of the eighth and fourteenth

amendments is ‘ “whether there is a reasonable likelihood

that the jury has applied the challenged instruction in a

way that prevents the consideration of constitutionally

relevant evidence.” ’ ” Terrell, 185 Ill. 2d at 517-18, quoting Buchanan v. Angelone, 522 U.S. 269, 276, 139 L. Ed. 2d 702, 710, 118 S. Ct. 757, 761 (1998), quoting

Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 329, 110 S. Ct. 1190, 1198 (1990).

	In defendant’s case, although the jury was not specifically

instructed that defendant’s potential for rehabilitation was a

mitigating factor, it was instructed that mitigating factors included

“[a]ny other reason supported by the evidence why the defendant

should not be sentenced to death.” In addition, both the

prosecution and the defense argued defendant’s potential for

rehabilitation to the jury. The State argued that the evidence did

not indicate that defendant could be rehabilitated, while the defense

contended that the evidence showed a “real hope” for defendant’s

rehabilitation. Thus, we find no reasonable likelihood that the jury

believed it could not consider evidence of defendant’s potential for

rehabilitation and restoration to useful citizenship.

	In addition, this court has held that failing to instruct the jury

at the second stage of a capital sentencing hearing to consider a

defendant’s potential for rehabilitation and restoration to useful citizenship does not violate article I, section 11, of the Illinois

Constitution of 1970, provided that the jury is instructed that it can

consider “any other reason” why the defendant should not be

sentenced to death. See People v. Free, 94 Ill. 2d 378, 420-21 (1983).

	Further, defendant had a significant criminal history, involving

bomb threats to schools, burglaries, threats of violence, and actual

violence. He continued to commit criminal offenses, even after

completing sentences of probation and imprisonment. Ultimately,

he approached the Brewer household, apparently at random,

seeking money to support his cocaine habit. In order to get the

money he wanted, defendant brutally murdered an elderly couple

with mobility problems and their daughter, who was recovering

from surgery, in the middle of the night. He stabbed Charles

Brewer, dragged him across the lawn of his house, and left him

lying by the side of his house. He stabbed Doris Jean Brewer 16

times, fracturing her skull, and stabbed Bonnie Brewer 20 times.

Given the strength of the aggravating evidence, as well as the

arguments and instructions at the second stage of defendant’s

sentencing hearing, we believe that the jury’s sentencing decision

would have been the same, even if the circuit court had not failed

to instruct the jury concerning defendant’s potential for

rehabilitation and restoration to useful citizenship. Accordingly, we

hold that defendant is not entitled to a new sentencing hearing on

this basis.

IV. Constitutionality of the Death Penalty

	Defendant also raises several constitutional challenges to his

sentence. He first argues that this court should hold the Illinois

death penalty statute unconstitutional because current procedural

safeguards are inadequate to minimize the risk that innocent people

will be executed and because it is inevitable that such executions

will occur. These are essentially the same arguments as those

rejected in this court’s recent decision in People v. Bull, 185 Ill. 2d 179, 211-20 (1998), and we decline to reconsider that holding. See

also People v. Williams, 192 Ill. 2d 548 (2000); People v. Moore, 189 Ill. 2d 521 (2000); People v. Brooks, 187 Ill. 2d 91, 141 (1999); Brown, 185 Ill. 2d at 260. This court has also previously held that the death penalty statute is not unconstitutional on the

basis that it (1) precludes meaningful consideration of mitigating

evidence (see, e.g., Kliner, 185 Ill. 2d at 177-78); (2) permits the sentencing body to consider the “vague” aggravating factor of “any

other reason” the defendant should be sentenced to death (see,

e.g., Hope, 168 Ill. 2d at 48); (3) fails to sufficiently minimize the risk of arbitrarily and capriciously imposed death sentences (see,

e.g., Kliner, 185 Ill. 2d at 177-78); (4) gives prosecutors unrestricted discretion to seek capital punishment (see, e.g., People v. Fair, 159 Ill. 2d 51, 96 (1994)); (5) does not require prosecutors to give defendants pre-trial notice of intent to seek the death

penalty (see, e.g., People v. Armstrong, 183 Ill. 2d 130, 162 (1998)); (6) provides limited comparative proportionality review

of death sentences (see, e.g., People v. Harris, 164 Ill. 2d 322, 351 (1994)); (7) does not require the sentencing body to make written

findings (see, e.g., Emerson, 189 Ill. 2d at 514); (8) permits the sentencing body to consider nonstatutory aggravating factors (see, e.g., People v. Collins, 106 Ill. 2d 237, 285 (1985)); (9) does not limit aggravating evidence to matters disclosed before trial (see,

e.g., Harris, 182 Ill. 2d at 161); (10) does not place a burden of proof on the prosecution (see, e.g., Cloutier, 178 Ill. 2d at 173- 74); (11) contains language that places a burden of proof on the

defendant (see, e.g., Kliner, 185 Ill. 2d at 177-78; People v. Johnson, 182 Ill. 2d 96, 112 (1998)); and (12) does not permit the sentencing body to consider the exact range of sentences available

if the death penalty is not imposed (see People v. Childress, 158 Ill. 2d 275, 318 (1994)). Defendant has not persuaded us to

overturn these decisions. We also reject his contention that,

together, these features of the death penalty statute render it

unconstitutional. As this court stated in Childress, “ ‘[i]f all of the individual aspects are constitutional, we stand by the conclusion

that the whole is also constitutional.’ ” Childress, 158 Ill. 2d at 318, quoting People v. Phillips, 127 Ill. 2d 499, 542-43 (1989); see also, e.g., People v. Woolley, 178 Ill. 2d 175, 215 (1997); People v. Edgeston, 157 Ill. 2d 201, 247 (1993).

CONCLUSION

	For the foregoing reasons, the judgment of the circuit court is

affirmed. We direct the clerk of this court to enter an order setting

Wednesday, March 21, 2001, as the date on which the sentence of

death, entered by the circuit court of Macon County, shall be

carried out. Defendant shall be executed in the manner provided by

law. 725 ILCS 5/119–5 (West 1996). The clerk of this court shall

send a certified copy of the mandate in this case to the Director of

Corrections, the warden of Tamms Correctional Center, and the

warden of the institution where defendant is confined.

Affirmed.

	CHIEF JUSTICE HARRISON, concurring in part and

dissenting in part:

	I agree that Kirchner’s murder convictions should not be

disturbed. In my view, however, his sentence of death cannot be

allowed to stand.

	Contrary to the majority, I would hold that the circuit court

abused its discretion when it excused James Rentfro from the jury

for cause. A trial court may not exclude a prospective juror for

cause because the juror voices general religious or conscientious

reservations about capital punishment. Removal for cause is

permissible only if the juror’s views would prevent or substantially

impair the performance of his duties as a juror in accordance with

his instructions and his oath. People v. Shaw, 186 Ill. 2d 301, 316 (1998). That standard does not appear to have been met here.

	Juror Rentfro specifically stated that in spite of his personal

feelings regarding the death penalty, he would be able to fulfil his

duty to weigh the evidence and follow the law as instructed by the

court. Although the court’s follow-up question raised uncertainty

about that answer, Rentfro’s views are, at most, ambiguous. Based

on the record before us, we cannot say with any certainty what

Rentfro’s answer to the follow-up question actually meant.

	The majority resolves the ambiguity by deferring to the trial

judge. In my view, however, such deference is unwarranted under

the circumstances present here. Yielding to the trial judge would be appropriate only if he saw or heard something not reflected in

the written record. The majority does not explain what that

something might be, and I am at a loss to understand it. No matter

what Rentfro’s demeanor might have been, no matter what

inflection his voice might have possessed, the meaning of his terse

response would still be unclear.

	Given the ambiguity created by the trial judge’s follow-up

question, the appropriate course would have been to seek further

clarification from Rentfro. Such an approach would not have

caused any undue delay and would have ensured that the jury-

selection process was free from taint. To have excluded Rentfro

without taking this simple measure constitutes error, entitling

Kirchner to a new sentencing hearing. People v. Shaw, 186 Ill. 2d 301, 360-61 (1998) (Harrison, J., concurring in part and dissenting

in part).

	Kirchner is also entitled to a new sentencing hearing based on

the trial judge’s mishandling of the issue of mercy. Our court has

specifically held that a jury may properly consider mercy as a

mitigating factor at a capital sentencing hearing. People v. Buss, 187 Ill. 2d 144, 234-35 (1999). Defense counsel in this case,

however, was not permitted to argue mercy to the jury. When he

attempted to broach the issue of mercy, the trial judge sustained

the State’s objections, then gave an explanation to the jury which

suggested that mercy was not an appropriate factor for it to

consider.

	There is no merit to my colleague’s assertion that the court’s

erroneous oral discussion of mercy was cured by IPI Criminal 3d

No. 7C.06. Under that instruction, mitigating factors which the

jury is entitled to consider include “[a]ny other reason supported

by the evidence why the defendant should not be sentenced to

death.” IPI Criminal 3d No. 7C.06. This language has been found

sufficient to advise the jury that it may take mercy into account in

reaching its decision. If IPI Criminal 3d No. 7C.06 is given, no

separate, additional instruction on mercy is required.  Buss, 187 Ill. 2d at 235. Where our court has found IPI Criminal 3d No. 7C.06

sufficient, however, we have also observed that defense counsel

was allowed to argue for mercy in his closing statement. See

People v. Miller, 173 Ill. 2d 167, 199 (1996); People v. Pitsonbarger 142 Ill. 2d 353, 405 (1990); People v. Sanchez, 115 Ill. 2d 238, 269-70 (1986). As previously indicated, defense

counsel here did not have that opportunity. When he argued to the

jury that mercy is a relevant, mitigating factor, “one of those any

other reasons supported by the evidence,” the State objected and

its objection was sustained.

	By sustaining the State’s objection, the court told the jury, in

effect, that mercy does not fall within the mitigating factors it could

consider under IPI Criminal 3d No. 7C.06. Because the jury was

told that mercy was not one of the mitigating factors defined by IPI

Criminal 3d No. 7C.06, submitting IPI Criminal 3d No. 7C.06

could not possibly have sufficed to advise the jury that it could

properly take mercy into account as a mitigating factor. To the

contrary, because of the court’s ruling on the State’s objection to

defense counsel’s explanation, the effect of IPI Criminal 3d No.

7C.06, with respect to the issue of mercy, was specifically negated.

After hearing the judge’s remarks, no reasonable juror could would

have thought that mercy could still be considered. That is not

harmless error. It is grounds for a new sentencing hearing.

	Even if the foregoing errors did not entitle Kirchner to a new

sentencing hearing, his death sentence could not be allowed to

stand. For the reasons set forth in my partial concurrence and

partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments

to the United States Constitution (U.S. Const., amends. VIII, XIV)

and article I, section 2, of the Illinois Constitution (Ill. Const. 1970,

art. I, §2). Kirchner’s sentence of death should therefore be

vacated and he should be sentenced to a term of imprisonment. 720

ILCS 5/9–1(j) (West 1998). Because Kirchner was found guilty of

murdering more than one victim, the term of his imprisonment

must be natural life. 730 ILCS 5/5–8–1(a)(1)(c)(ii) (West 1998).