Docket No. 86408–Agenda 7–March 2000.

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

								DANIEL J. EDWARDS, Appellant.

Opinion filed January 29, 2001.

	JUSTICE MILLER delivered the opinion of the court:

	The defendant, Daniel J. Edwards, brings this appeal from an

order of the circuit court of Kankakee County dismissing, without

an evidentiary hearing, his amended post-conviction petition.

Because the defendant received the death sentence for the

underlying first degree murder conviction, the present appeal lies

directly to this court. 134 Ill. 2d R. 651(a).

	Following a jury trial in the circuit court of Kankakee County,

the defendant was convicted of first degree murder and aggravated

kidnapping. The same jury found the defendant eligible for the

death penalty because of his commission of first degree murder

during the course of another felony, aggravated kidnapping. See Ill.

Rev. Stat. 1985, ch. 38, par. 9–1(b)(6). At the conclusion of the

sentencing hearing, the jury determined that there were no

mitigating circumstances sufficient to preclude a sentence of death,

and the trial court therefore imposed the death sentence for the

conviction for first degree murder. On direct appeal, this court

affirmed the defendant’s convictions and death sentence. People v. Edwards, 144 Ill. 2d 108 (1991). The United States Supreme Court denied the defendant’s petition for a writ of certiorari. Edwards v. Illinois, 504 U.S. 942, 119 L. Ed. 2d 204, 112 S. Ct. 2278 (1992).

	The defendant commenced the present action for post-

conviction relief in the circuit court of Kankakee County in

November 1992. With the assistance of counsel, the defendant filed

an initial and later an amended post-conviction petition, raising a

number of challenges to the trial and sentencing proceedings. The

State moved to dismiss the defendant’s amended petition. The

circuit court granted the State’s motion and dismissed the amended

petition without an evidentiary hearing. This appeal followed. 134

Ill. 2d R. 651(a).

	We will briefly summarize the evidence presented at trial. The

defendant was charged with first degree murder and aggravated

kidnapping for the abduction and death of Stephen Small of

Kankakee. Small had been buried alive in a wooden box, where he

was being held for payment of a $1 million ransom.

	Around 12:30 a.m. on September 2, 1987, someone claiming

to be a Kankakee police officer called the Small home and told

Stephen Small that a burglary had occurred at his office. Small got

dressed and left the house. Around 3:30 that morning someone

called the Small residence and told Stephen’s wife, Nancy, “We

have your husband.” Nancy then heard her husband say that he had

been handcuffed inside a box underground. Small told his wife to

obtain $1 million in cash. The caller directed Mrs. Small not to

report the matter to the police.

	The matter was reported to the authorities, however, and

devices were connected to the Smalls’ telephone line to record

incoming calls and to determine their origins. At 5:03 that

afternoon, the same person called again, asking Mrs. Small how

much money had been collected. This call was placed from a

telephone located at a Phillips 66 gas station in Aroma Park. The

defendant was seen there at that time, in the company of a blonde-

haired woman.

	At 5:40 p.m., Jean Alice Small, Stephen Small’s aunt,

telephoned the Small residence to tell them of a call she had just

received. Jean said that the caller had told her that he knew that

Nancy Small’s telephone was tapped. After telling Jean that the

victim was buried, the caller threatened to kill Jean’s husband.

	Nancy Small received another telephone call from the

kidnapper at 11:28 that night. This call originated from a telephone

at a Sunoco station in Aroma Park, where an FBI agent saw a

white male at a telephone, and a blonde-haired woman in a car that

was later identified as belonging to Nancy Rish, the defendant’s

girlfriend; Rish had blonde hair. The caller played a tape recording

of Stephen Small’s voice. On the tape, Stephen provided

instructions for delivering the ransom. After audio enhancement,

a voice in the background could be heard threatening Small.

	Nancy Small received one more telephone call from the

kidnapper, at 11:46 that night. The call was placed from a

Marathon service station in Kankakee. The caller accused Nancy

of having notified the police and refused her offer of the ransom.

Minutes later, at 11:50 p.m., an Illinois state police officer saw

Rish’s car, with its trunk partly open, driving from Kankakee

toward Aroma Park.

	Law enforcement officers then placed the defendant’s home

under surveillance. They saw a dark-colored Buick, with its trunk

partly open, arrive at the house in Bourbonnais where the

defendant and Rish lived. The defendant and a white woman with

blonde hair left the car and went inside.

	Officers carried out a search of the residence later that

morning, on September 3, and the defendant was arrested at that

time. Later that day, the defendant led law enforcement officers to

the site where the victim was buried. There, officers dug up a

wooden box and found the victim’s body inside. The box measured

about six feet long and three feet wide, and was constructed of

plywood.

	A medical examiner later determined that the victim died of

asphyxiation caused by suffocation. The medical examiner believed

that the victim would not have survived more than three or four

hours inside the enclosed box. The medical examiner noted that the

pipe extending from the box into the open air was too long for its

diameter to serve as an adequate air-exchange system.

	The State presented other evidence connecting the defendant

to these offenses. On the night of the victim’s disappearance,

around midnight, a neighbor of the defendant heard the defendant

say, “Let’s go, let’s hit it,” get into his car, and drive off. Also, two

neighbors of the Small family saw the defendant’s van, or one

similar to it, parked in their neighborhood after midnight on

September 2. One neighbor also noticed a mid-sized car at that

time, heard two car doors slam, and saw the car and the

defendant’s van drive away with their lights off.

	Several witnesses saw the defendant constructing a wooden

box in his garage during summer 1987, preceding the offenses

here. The defendant gave various explanations for the project, saying that it would be used for a lemonade stand, or by his brother

for transporting things, or at his brother’s pool in Florida. A

neighbor of the Smalls had seen a white van similar to the

defendant’s van driving through an alley next to the Small’s home

about 10 times that summer. While the defendant and Rish were

visiting a boat store that summer, the defendant saw Stephen Small

leaving the store in a sports car; the defendant was heard to say,

“Boy, it sure would be nice to afford stuff like that.”

	The search of the defendant’s residence at the time of his

arrest turned up a Kankakee telephone book with the name “Small”

circled. The defendant’s boots were found behind a washer and

dryer at the residence, and soil on the boots matched a sample from

the location where the box was buried. Soil in the defendant’s van

also matched the sample. White caulking material on gloves found

in the defendant’s trash had the same chemical composition as the

caulking material used to fill in the seams of the wooden box in

which the victim had been buried. The defendant’s fingerprints

were found on PVC pipe and duct tape recovered from the box.

	A person who owed the defendant money had had a pair of

handcuffs stolen from him, and the same pair was later discovered

on the victim. Another person who owed the defendant money had

had a gun stolen, and it was found by investigators in the

countryside near Aroma Park. The defendant purchased a battery

that was found in the wooden box. Bolt cutters belonging to a

company owned by the defendant’s brother were found at a point

between where the box was uncovered and where the victim’s car

was found, and they could have been the implement used to cut the

chain connecting the handcuffs on the victim’s wrists.

	At the close of evidence, the jury found the defendant guilty

of first degree murder and aggravated kidnapping. A capital

sentencing hearing was then conducted. At the first stage of the

hearing, the jury found the defendant eligible for the death penalty

because of his commission of murder during the course of another

felony, aggravated kidnapping. See Ill. Rev. Stat. 1985, ch. 38, par.

9–1(b)(6). At the second stage of the hearing, the parties presented

evidence in aggravation and mitigation. At the conclusion of the

hearing, the jury determined that there were no mitigating

circumstances sufficient to preclude a sentence of death. The trial judge accordingly sentenced the defendant to death for the

conviction for first degree murder.

I

	The Post-Conviction Hearing Act (725 ILCS 5/122–1 through

122–7 (West 1994)) provides a method by which a defendant may

challenge a conviction or sentence for violations of federal or state

constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997); People v. Thompkins, 161 Ill. 2d 148, 157 (1994). An action for post-conviction relief is a collateral proceeding rather than an

appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a

defendant must demonstrate a substantial deprivation of federal or

state constitutional rights in the proceedings that led to the

judgment being challenged. 725 ILCS 5/122–1 (West 1994);

People v. Morgan, 187 Ill. 2d 500, 528 (1999). Principles of res judicata and waiver narrow the range of issues available to a post- conviction petitioner “to constitutional matters which have not

been, and could not have been, previously adjudicated.” People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will ordinarily be deemed waived.

People v. Tenner, 175 Ill. 2d 372, 378 (1997); People v. Coleman, 168 Ill. 2d 509, 522 (1995).

	The defendant raises a number of contentions in this appeal,

arguing generally that the post-conviction court erred in dismissing

the petition without an evidentiary hearing. A court considering a

post-conviction appeal will conduct a de novo review of a petition that has been dismissed without an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 389 (1998). With several exceptions, we will discuss these issues in the same sequence in which the

defendant has presented them in his brief before this court.

II

	The defendant argues that the affidavit submitted by Master

Sergeant William Willis of the Illinois State Police in support of the search warrant was defective in various respects. On direct appeal,

this court considered a number of the same or related contentions

involving the affidavit and the issuance of the search warrant.

Edwards, 144 Ill. 2d at 129-33. At that time, the court held that various misstatements in the affidavit would not have affected the

judge’s decision to issue the requested warrant. The defendant

renews here a number of the same allegations, and supplements

them with an additional circumstance that he believes entitles him

to an evidentiary hearing. Specifically, the defendant argues that

Willis should have stated in the affidavit that Mrs. Small heard a

tape recording of her husband’s voice, rather than his actual voice,

during the kidnapper’s first call to her; that the victim said that “he

was handcuffed, instead of being handcuffed”; that the 11:50

telephone call originated from a Marathon gas station in Kankakee,

not from a Sunoco station in Aroma Park; and that FBI agents did

not see a white male go to Rish’s home after leaving the pay

telephone at 11:40.

	On direct appeal, the defendant also raised the discrepancy in

the origin of the 11:50 telephone call, and a number of other issues

concerning the affidavit. Edwards, 144 Ill. 2d at 129-33. Despite those matters, this court concluded that the warrant was valid and

that the defendant was not entitled to a hearing into the accuracy

of the affidavit under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). We adhere to that decision. Even

with the changes urged by the defendant, the Willis affidavit would

still have provided sufficient information to justify the issuance of

the search warrant.

	In renewing his challenge to the affidavit in this appeal, the

defendant places special emphasis on a comment made by Officer

Willis that appears in a transcript of remarks by Officer Willis for

a television program called “Top Cops.” According to the

defendant, on that occasion, in May 1990, after the trial, Willis told

the reporter on the program:

			“Wanted the warrant to stand up in case we’re right. We

know Edwards is it. We have no proof, but we know by

cop instinct this guy is involved. He made the second

phone call. Got to know where he’s at. Small might be at the house. So we made the decision to get the search

warrant.”

	The defendant argues that the comment “We have no proof”

shows that Willis intentionally made material misstatements in the

affidavit he submitted in support of the warrant. Rejecting this

argument, the post-conviction judge characterized the officer’s

comment as “theatrics.” We agree with the judge’s assessment.

The remark “We have no proof” is belied by the extensive

discussion preceding it in the transcript, in which Willis detailed the

steps in the investigation and the events leading to the decision to

focus on the defendant as a suspect in the case.

	In addition, we question the relevance of the comment. The

officer made the remark several years after the issuance of the

warrant. We do not believe that Officer Willis’ later

characterization of the case is relevant to the determination of

probable cause made earlier by the judge who issued the warrant.

Even without the items criticized by the defendant, the affidavit

contained sufficient grounds to justify the issuance of the warrant.

III

	The defendant next argues that the prosecution presented

hypnotically refreshed testimony at trial, in violation of state law,

without first disclosing the nature of the evidence to the defense.

According to the defendant, the evidence in question was

introduced during the testimony of Deputy Sheriff Jan Krizik,

which, the defendant alleges, was enhanced through hypnosis. The

defendant complains specifically that Krizik’s identification of the

defendant’s van was the product of hypnosis the witness underwent

before trial. At trial, Krizik testified that she identified the

defendant’s van as having been on the street near the Small

residence, and outside her own home, in the early morning hours

of September 2 by the presence of decals on one of its rear

windows. The defendant argues that Krizik acquired this detail–the

presence of the decals–as a result of hypnosis. The defendant

maintains that the State’s failure to disclose the occurrence of the

hypnosis denied him his right to confront the witness. Apparently, the defense did not become aware of the hypnosis until Krizik

testified at the trial of codefendant Rish.

	Assuming that the hypnotically induced portion of a witness’

testimony should have been excluded from evidence at the time of

the defendant’s trial (see People v. Zayas, 131 Ill. 2d 284 (1989); People v. Wilson, 116 Ill. 2d 29 (1987)), we do not believe that the defendant has shown what portion of Krizik’s testimony was

affected by hypnosis. The defendant has not established in what

respect the hypnosis altered or influenced Krizik’s recollection of

the events in question. In support of this contention, the defendant

submitted to the post-conviction court an affidavit from the person

who performed the hypnosis, Joseph Tremonti, a priest. Father

Tremonti stated in his affidavit that during hypnosis Krizik “related

further facts [ ] not related initially.” The affidavit does not specify,

however, what the new information consisted of.

	As further proof that the witness’ description of the decals was

enhanced through hypnosis, the defendant points to a report of an

interview of Krizik conducted by another law enforcement officer,

Officer Hancock. In relating what Krizik said, the report does not

mention the presence of decals on the van’s windows. The

defendant believes that the absence of this information from the

report shows that the decals were a detail that the witness did not

describe initially but mentioned later only as a consequence of

hypnosis.

	In testimony at trial, however, Krizik said that she told

Hancock about the decals when he questioned her on September

2. In the absence of evidence that it was in fact the presence of the

decals that Krizik recalled through hypnosis, we are unable to

conclude that the testimony was altered in a material way.

	Even if Krizik’s testimony on this point should have been

barred because it was hypnotically induced or refreshed, exclusion

of the testimony would not have made a difference in the case.

There existed other, substantial evidence connecting the defendant

to the offenses charged here. As noted earlier, in the summary of

evidence presented at trial, the defendant led law enforcement

officers to the site where the box was buried. The defendant had

been seen constructing a similar box in the weeks preceding the

victim’s abduction, and the defendant’s fingerprints were found on materials in the box. The defendant was seen in the places from

which telephone calls were made to the victim’s family. Assuming

that Deputy Krizik’s testimony was erroneously admitted, we do

not believe that the error had any effect on the outcome of the trial,

given the strong evidence establishing the defendant’s guilt for

these offenses.

IV

	The defendant next argues that the State failed to disclose

before trial certain information that it was required to reveal to the

defense under the principles announced in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny.

The defendant contends that the information would have supported

the defendant’s theory that other persons also took part in the

commission of these offenses and that the defendant’s own role in

the crimes was the product of compulsion. The defendant’s brief

and amended post-conviction petition refer to a number of items of

evidence, and we will briefly consider these.

	The defendant first refers to a statement by Officer Willis that

is included in the transcript of remarks made by Willis for the

television program “Top Cops,” discussed earlier. The defendant

cites Willis’ comment, “Danny built the box with a ventilation

system, candy bars and water, to keep this guy alive.” The

defendant believes that this remark was favorable to the defense,

showing that he made efforts to assist the victim. The cited remark,

however, was made by Willis after, rather than before, the

defendant’s trial on these charges, and thus was not a matter

withheld from the defense.

	The defendant also cites a report showing that the federal

government declined to prosecute, in an unrelated case, a person

about whom the defendant was supplying information. According

to the report, the prosecution was dropped because the defendant’s

credibility would be seriously undermined by his involvement in the

present offenses. The defendant contends, however, that disclosure

of this report would have lent weight to his theory that the federal

suspect arranged the commission of these crimes as a way of

discrediting the defendant.

	The defendant offers no credible evidence in support of his

theory that the present offenses were the work of the suspect in the

federal investigation. Relief is not available under Brady unless the defendant can establish that the evidence improperly withheld was

material to the defense. In this context, favorable evidence is

material “ ‘if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.’ ” People v. Coleman, 183 Ill. 2d 366, 393 (1998), quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). We fail to see how

the report regarding the decision not to bring the federal

prosecution was material to the present case.

	The defendant also mentions the destruction of a “drug list,”

apparently referring to items of evidence seized following the arrest

of the defendant for a drug-related offense. The defendant does not

explain the relevance of that inculpatory evidence to the present

case or how its suppression would be a violation of Brady.

	The defendant’s other Brady-related claims are also unavailing. An FBI report stated that nothing of known value was

found in a search of the defendant’s home, even though at that time

investigators found a telephone book with the name “Small”

circled. The report merely states one writer’s opinion, however,

and does not amount to a violation. See People v. Mack, 128 Ill. 2d 231, 247-48 (1989). The defendant says that he did not perform

many of the acts the prosecution attributed to him at trial, but he

does not elaborate on that point. He contends further that the

prosecution did not provide information about a witness named

Thad Wells, who testified at codefendant Rish’s trial that he saw

two white males and one black male in a light-colored van in the

vicinity of St. Anne around the time the box was buried in the

ground. The defendant fails to allege, however, how that bit of

information is favorable to him. The defendant also says that the

State did not provide records showing that someone named Kathy

Goodrich called his home in Bourbonnais at the same time the

kidnapper placed one of the calls. The prosecution did not allege

that the defendant made the calls from his own home, however,

and therefore we question how this information would have

assisted the defendant. The defendant also refers to flights made over the area, during the investigation of these offenses, by an FBI

reconnaissance airplane known as “Night Stalker.” The defendant

does not explain what information might have been revealed, or

how that would have assisted the defense. Finally, the defendant

alleges that the prosecution altered a store receipt by adding the

names “Edwards and Rish” so that it would identify the purchasers

of a quantity of wire ties. The State was not allowed to introduce

the wire ties into evidence at the defendant’s trial, however

(Edwards, 144 Ill. 2d at 170-71), and therefore we fail to see the significance of the allegedly altered receipt. In sum, the defendant

has not established, whether through the record or affidavits, his

entitlement to a hearing on this claim.

V

	The defendant next argues that trial counsel and appellate

counsel were ineffective in numerous ways. The competence of

counsel is measured against the standard announced by the

Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of

ineffective assistance, a defendant must show both a deficiency in

counsel’s performance and prejudice resulting from the alleged

deficiency. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

	To show a deficiency in counsel’s performance, a defendant

must establish “that counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel’s

performance is highly deferential, and a court considering a claim

of ineffective assistance “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

	To demonstrate prejudice resulting from an alleged deficiency

in counsel’s performance,“[t]he defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

	Because a defendant’s failure to satisfy either part of the

Strickland test will defeat a claim of ineffective assistance, a court is not required to “address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. Accordingly,

a court considering a claim of ineffective assistance “need not

determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

	Allegations of ineffective assistance of appellate counsel are

resolved under the same standard that governs the performance of

trial counsel. People v. West, 187 Ill. 2d 418, 435 (1999). Thus, a defendant who alleges that appellate counsel was ineffective must

establish both a deficiency in counsel’s performance and prejudice

resulting from the asserted deficiency. People v. Flores, 153 Ill. 2d 264, 283 (1992). Appellate counsel is not required to brief every

conceivable issue on appeal, however, and it is not incompetence

for counsel to refrain from raising issues that counsel believes are

without merit. People v. Johnson, 154 Ill. 2d 227, 236 (1993). For these reasons, unless the underlying issue is meritorious, a

defendant cannot be said to have incurred any prejudice from

counsel’s failure to raise the particular issue on appeal. People v. Childress, 191 Ill. 2d 168, 175 (2000).

A

	The defendant complains of several acts and omissions by

counsel during the pretrial proceedings. The defendant first argues

that counsel was ineffective for failing to examine more closely the

affidavit submitted by Officer Willis in support of the request for

a search warrant. The defendant believes that closer inspection of

the affidavit would have brought to counsel’s attention the alleged

alterations to the document and would have enabled counsel to

successfully challenge the issuance of the warrant on the basis of

the alterations. There is no evidence that the alterations were made after the warrant was issued. As we have already concluded in this

opinion, however, as well as in the opinion on direct appeal, we do

not believe that the deficiencies alleged by the defendant, even if

they had been called to the attention of the judge who issued the

warrant, would have precluded its issuance.

	The defendant next argues that trial counsel erred in failing to

seek the suppression of tape recordings of calls made to Nancy

Small by the kidnapper and by Jean Small. The defendant contends

that the calls to the Small residence were recorded in violation of

the state eavesdropping statute, section 108A–1 of the Code of

Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par.

108A–1). On direct appeal, this court found that the defendant’s

objection to the introduction of the evidence was waived by his

failure to raise the issue in the trial court. Edwards, 144 Ill. 2d at 163-64. The defendant now argues that counsel was ineffective for

failing to properly preserve the question.

	We do not agree with the defendant that the calls were

recorded in violation of the statute. In People v. Beardsley, 115 Ill. 2d 47 (1986), and People v. Herrington, 163 Ill. 2d 507 (1994), this court determined that authorization is not required under that

provision when recordings are made with the consent of one of the

persons taking part in the conversation. In the present case, the

calls were recorded with Nancy Small’s consent. Thus, we must

conclude that no statutory violation occurred in these

circumstances. Counsel cannot be considered ineffective for failing

to make or pursue what would have been a meritless objection.

	In a further challenge to his lawyer’s pretrial actions, the

defendant argues that counsel was ineffective for failing to seek to

limit the times when the wooden box in which the victim had been

buried was present in the courtroom. Apparently it was there

throughout the defendant’s trial. The defendant notes that a motion

to that effect was made and granted in the prosecution of his

codefendant, Nancy Rish. The defendant contends that trial counsel

should have made a similar motion in his case.

	Even if the defendant’s motion had been granted, the

defendant still could not have been able to exclude the box entirely.

It still would have been present at various times during trial, for

identification by witnesses who saw the defendant building it, and for identification by officers who were present when it was

discovered in the ground. Moreover, the presence of the box does

not appear to have been an element in the jury’s determination of

guilt. As the State observes, Rish was also convicted of these

offenses, though the wooden box was not in the courtroom during

every moment of her trial. Thus, it does not appear that the

presence of the box was an influential consideration in the jury’s

guilty verdicts here.

	The defendant also argues that the first lawyer appointed to

represent him in this case was ineffective for failing to obtain, in a

timely manner, the appointment of another lawyer to assist him in

the case.

	Before trial, the defendant’s appointed attorney asked for the

appointment of co-counsel. The trial court at first denied the

request, but when the motion was raised again, the court

authorized the appointment of another lawyer. After that person

withdrew from the case, the court appointed another person,

several weeks before the beginning of trial. Thus, the defendant

was represented by two lawyers at both the guilt phase and the

sentencing phase of the proceedings.

	We find no merit in the defendant’s complaint. First, it appears

that counsel did all that could have been expected of him in seeking

the appointment of a second lawyer in the case. Counsel persisted

in his requests for the appointment of co-counsel and was

ultimately successful, obtaining the services of a second lawyer

before trial. Moreover, the defendant has failed to show that the

appointment of co-counsel was necessary at an earlier point in the

proceedings, that the court’s delay in authorizing the appointment

of another lawyer was prejudicial in any manner, or that co-

counsel’s earlier appearance in the case would have been helpful or

beneficial to the defendant.

B

	The defendant next raises a series of challenges to counsel’s

performance during the guilt phase of the proceedings. The

defendant first argues that trial counsel should have presented to

the jury evidence that would have supported a defense of compulsion. With respect to that defense, section 7–11(a) of the

Criminal Code of 1961 provides:

			“A person is not guilty of an offense, other than an

offense punishable with death, by reason of conduct which

he performs under the compulsion of threat or menace of

the imminent infliction of death or great bodily harm, if he

reasonably believes death or great bodily harm will be

inflicted upon him if he does not perform such conduct.”

Ill. Rev. Stat. 1985, ch. 38, par. 7–11(a).

The defendant contends that trial counsel was ineffective for failing

to present this defense to the jury. The defendant acknowledges

that compulsion is not a defense to a felony punishable by death,

but he asserts that it would have been a defense to the charges of

aggravated kidnapping.

	In support of this claim, the defendant’s petition mentions that

the sheriff believed that a “hit” had been placed on the defendant,

and that after his arrest in this case the defendant told Rish and law

enforcement officers that this had been something he had had to do

or Rish and her son would have been killed. We do not see the

connection between the supposed “hit” and the defendant’s

conduct in this case. Moreover, the defendant’s fears regarding

Rish and her son, even if supported by the record or by affidavit,

would not establish the defense of compulsion, which by definition

is shown only by threats of harm to the actor.

	The defendant next refers to this court’s statement on direct

appeal that the defendant waived his right to ask for an instruction

limiting the jury’s consideration of what have been referred to as

“the house tape” and “the road tape.” These were the tape

recording of calls made by the kidnapper to the Small residence

(“the house tape”), and a tape recording made by the kidnapper of

the victim’s voice, played during calls to the Small residence and

later found along a country roadside (“the road tape”). Edwards, 144 Ill. 2d at 163. In this post-conviction appeal, the defendant

argues that trial counsel was ineffective for waiving an objection to

the State’s use of this evidence, and that appellate counsel was

ineffective for failing to challenge trial counsel’s performance.

	The trial court ruled that the tapes were admissible as evidence

of the corpus delicti in this case. Edwards, 144 Ill. 2d at 166. On direct appeal, this court found that there was sufficient proof for

the admission of the tapes as evidence of the defendant’s guilt in

this case. Edwards, 144 Ill. 2d at 168. Regarding the house tape, this court noted that the defendant was seen at places where two

of the kidnapper’s calls were made, at the times when they were

made. With respect to the road tape, the court cited Mrs. Small’s

testimony that the voice that can be heard speaking to her husband

on that tape was the same voice that she spoke with on all four

ransom calls. Given this court’s determination of the proper use of

this evidence, we believe that any effort by the defense counsel to

exclude the tapes or limit their use would have been unsuccessful.

	The defendant next argues that trial counsel was ineffective for

failing to object to the prosecutor’s suggestion during trial that the

defendant was trying to keep damaging information from the jury.

This occurred during the direct examination of a prosecution

witness, when, in response to an objection by the defendant, the

prosecutor stated, “Well, judge, you know, he opens this up and

then when I clarify it everything is objectionable. He doesn’t want

it to come out.”

	Contrary to the defendant’s argument, defense counsel

objected, and the trial judge sustained the objection and instructed

the jury to disregard the line of questioning. The judge’s favorable

ruling striking the entire line of questioning included within its

scope the particular comment made by the prosecutor. Generally,

a ruling sustaining a defense objection is sufficient to cure any

prejudice (People v. Baptist, 76 Ill. 2d 19, 30 (1979)), and we see no reason to reach a different conclusion in this case.

	The defendant also contends that counsel rendered ineffective

assistance by failing to point out on cross-examination of a State

witness the presence of 12 unidentified fingerprints in the wooden

box in which the victim was buried.

	The defendant does not dispute that his fingerprints were

found on materials inside the box. The unidentified prints could

have belonged to any number of persons who had been in contact

with the box and its materials while it was being constructed or

after it was discovered. We do not see how the introduction of evidence of the unidentified prints would have assisted the

defendant. As we have previously noted, the defendant can marshal

only vague assertions in support of a compulsion defense; the

existence of unidentified prints on the box, of unknown age and

provenance, is too remote to be of help here.

	The defendant next argues that counsel was ineffective at trial

for failing to impeach several witnesses with certain information.

First, the defendant cites an FBI report that an employee of the

service station where the 5 p.m. call originated believed that a

black male made a telephone call at that time, after getting out of

a car that contained another black male and a black female. Next,

the defendant refers to FBI reports describing the interview with

Deputy Jan Krizik, which do not mention the decals that she

claimed to see in the van’s windows. Finally, the defendant cites an

FBI report that said that a search of the defendant’s home did not

turn up anything of value, even though other evidence showed that

officers found a local telephone book with name “Small.”

	In response to these contentions in the circuit court, the State

argued that the defendant had failed to develop them with the

required specificity. The defendant’s amended petition presented

this issue in summary fashion, stating only that trial counsel was

ineffective for failing to impeach witnesses with information that

counsel knew or should have known. The petition then cited a

lengthy summary of the police investigation. We agree with the

State that an evidentiary hearing is not warranted on these

allegations, for the materials submitted by the defendant fail to

make a substantial showing of a violation of his constitutional

rights. See People v. Maxwell, 173 Ill. 2d 102, 107 (1996); People v. Owens, 129 Ill. 2d 303, 308 (1989). In any event, we do not believe that the impeachment value of this material was great.

	Finally, the defendant challenges trial counsel’s failure to

preserve objections to certain comments made by the prosecutor

during closing argument at the guilt phase of the proceedings. The

defendant first cites the prosecutor’s statement, “He–by his own

words, he has said 48 hours of air existed if you believe him and I

don’t for a second.” The prosecutor was referring to one of the

kidnapper’s calls to Mrs. Small, in which the kidnapper said that

her husband would be able to breathe for 48 hours. The defendant argues that the prosecutor improperly stated his own opinion

regarding the evidence in this case.

	Defense counsel objected to that comment, and the trial judge

sustained the defense objection and instructed the jury to disregard

the remark. We believe that any error in the prosecutor’s comment

was cured by the trial judge’s action in sustaining the objection and

instructing the jury to disregard the comment. This should have

been sufficient to cure any prejudice.

	The defendant also challenges the prosecutor’s argument that

a neighbor said that the defendant looked proud when he built the

wooden box. Even if this comment was not supported by the

evidence, we do not believe that it denied the defendant a fair trial.

This was a brief comment, and we do not believe that it would

have affected the jury’s determination here.

	The defendant next takes issue with the prosecutor’s statement

in closing argument that the victim scratched, clawed, and pulled

in an effort to escape from the wooden box in which he had been

placed. The defendant contends that there was no evidence to

support the prosecutor’s comment.

	Contrary to the defendant’s view, we believe that the comment

finds support in the evidence. Chemical analysis of the wood inside

the box showed contact with human skin. Also, the medical

examiner reported finding abrasions on the victim’s forehead, right

hand, and elbow. This was sufficient to support the inference that

the victim struggled while inside the box, in an effort to free

himself.

	The defendant also challenges the prosecutor’s remark that the

kidnapper, in his call to Jean Small, told Jean that he would kill

Jean’s husband “too”; the defendant contends that the evidence

showed that the kidnapper said only that he would kill Jean’s

husband, without using the word “too.” Given the defendant’s

conduct in causing the victim’s death, we do not see how the

defendant could have incurred any prejudice as a result of the

prosecutor’s paraphrase of the testimony.

C

	The defendant also argues that counsel rendered ineffective

assistance at the capital sentencing hearing conducted in this case.

In this context, the inquiry into prejudice under Strickland requires an examination of the effect of counsel’s error on the sentencer’s

decision. People v. Tenner, 175 Ill. 2d 372, 384 (1997); People v. Sanchez, 169 Ill. 2d 472, 491 (1996); People v. Ashford, 168 Ill. 2d 494, 505 (1995); People v. Coleman, 168 Ill. 2d 509, 536 (1995). The relevant question here, then, is “whether there is a

reasonable probability that, absent the errors, the

sentencer–including an appellate court, to the extent that it

independently reweighs the evidence–would have concluded that

the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

	At the second stage of the sentencing hearing, defense counsel

sought to introduce into evidence videotapes of the defendant’s

two children, in which they spoke of their feelings for their father.

The State objected to the evidence, arguing that the children might

not be competent to testify and observing that their videotaped

comments were not made under oath and were not subject to

cross-examination. The trial judge sustained the State’s objection

to the evidence. On direct appeal, this court upheld the judge’s

ruling. Edwards, 144 Ill. 2d at 174-75. This court also noted that the defendant had declined an offer by the prosecution to stipulate

to the substance of the children’s statements on the tapes. The

defendant now argues that trial counsel was ineffective for failing

to accept the State’s offer to stipulate to the evidence.

	We believe that defense counsel’s decision not to stipulate to

the evidence was essentially a matter of trial strategy and therefore

will not support a claim of ineffective assistance of counsel. At the

sentencing hearing, in refusing the State’s offer to stipulate to the

children’s statements, defense counsel explained that he believed

that the tapes were admissible and that the stipulation was not an

adequate substitute for their contents. The decision whether to

accept the State’s offer was in essence a matter of trial strategy,

and a reviewing court generally will not second-guess a decision of

that nature. Strickland v. Washington, 466 U.S. 668, 690-91, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066 (1984); People v. Franklin, 167 Ill. 2d 1, 22 (1995); People v. Palmer, 162 Ill. 2d 465, 479 (1994). We see no reason to do so here.

	The defendant next argues that trial counsel was ineffective for

failing to offer, as mitigation, evidence that the defendant had

previously cooperated with police following his arrest in a prior

drug-related case. Counsel might have believed that the evidence

would have focused more attention on the defendant’s prior

misconduct, and also that the jury would simply think that the

defendant had been acting out of self-interest at that time. We

believe that this was essentially a question of strategy, and we will

not further consider counsel’s decision here.

	The defendant also contends that counsel was ineffective for

failing to have a police officer testify at the sentencing hearing

about the defendant’s reaction at the site where the victim’s body

was found. The defendant suggests that Detective Robert

Anderson would have testified that the defendant was frantic and

started digging in the ground with his hands.

	We do not believe that counsel can be deemed ineffective for

failing to offer this evidence. The additional testimony proposed by

the defendant would have been cumulative of testimony already

admitted into evidence. Counsel had already presented similar

testimony from two other law enforcement officers. Officer John

Gerard testified that the defendant cried, “Oh, no, oh, no,” when

told that the victim was dead. Sergeant Maurice Mietzner testified

that the defendant got down on his knees to help dig up the victim

and cried out, “Oh, no, oh, no, he can’t be dead,” when informed

of the victim’s death. The witnesses also said that the defendant

seemed to quickly resume his prior behavior shortly after that.

Defense counsel was not required to present a third witness to

testify about what two other witnesses had already described to the

jury, and we do not believe that any particular advantage would

have been gained by offering this additional testimony.

	The defendant next argues that trial counsel was ineffective at

the sentencing hearing because he failed to call as a witness Mary

DeSloover, who had prepared a report about the defendant that

was admitted into evidence as mitigation. The defendant argues

that the witness’ testimony could have helped establish, as mitigation in this case, the defendant’s history of psychological

problems. In the report, DeSloover provided information about the

defendant’s history of drug abuse and cited evidence that heavy

drug use can lead to psychological problems.

	We believe that counsel’s failure to present DeSloover as a

witness was essentially a matter of trial strategy. DeSloover’s

report was admitted into evidence over the State’s objection. In

objecting to the report, the State challenged both the witness’

qualifications and her conclusions. Although the trial court

admitted the report into evidence, the defendant chose not to

present her live testimony also. Defense counsel could have viewed

this arrangement as advantageous to the defendant, for the report

was admitted into evidence, but its author was not subjected to

cross-examination by the State. Defense counsel’s decision not to

call DeSloover to testify was essentially a question of strategy, and

we will not attempt to second-guess that choice here.

	The defendant also argues that counsel was ineffective for

failing to raise compulsion at the capital sentencing hearing

conducted in this case. The defendant notes that although

compulsion is not a defense to a crime punishable by death, it may

qualify as a mitigating circumstance at a capital sentencing hearing.

See Ill. Rev. Stat. 1985, ch. 38, par. 9–1(c)(4).

	As we noted earlier in this opinion, in rejecting the companion

argument that counsel should have presented a compulsion defense

during the guilt phase of the proceedings, the defendant has failed

to provide any evidence in support of this theory of the case. The

defendant, in his brief, refers only to the defendant’s own statement

that he told Rish that he had to do what he was doing to protect his

family, her, and her son from some undefined harm. In addition, the

defendant makes vague references to the possible involvement of

others in these offenses. We do not believe that the defendant has

presented sufficient grounds that would warrant a hearing or other

relief on these allegations.

	The defendant also complains that trial counsel and appellate

counsel failed to preserve objections to certain comments in the

prosecutor’s closing argument at the second stage of the capital

sentencing hearing. On direct appeal, this court found a number of

objections waived. Edwards, 144 Ill. 2d at 175-76. The defendant first cites the prosecutor’s comment that evidence of the

defendant’s good family background, offered by the defense in

mitigation, was actually aggravating. We consider this to be a fair

comment on the evidence, and therefore counsel cannot be

considered ineffective for failing to object to the remark. The State

is not required to accept the defendant’s characterization of

evidence offered in mitigation. In this case, one could argue that

the defendant’s later criminal conduct shows that he rejected his

upbringing, and that he turned to crime despite his favorable

background.

	The defendant also complains of the prosecutor’s comment

that the jury should not consider sympathy in making its decision.

We find no error in this remark, and therefore counsel cannot be

deemed ineffective for failing to object to it. The prosecutor’s

statement was entirely consistent with a jury instruction, previously

approved by this court, advising jurors that sympathy should not

influence their sentencing decision. See People v. Walker, 109 Ill. 2d 484, 507 (1985); People v. Stewart, 104 Ill. 2d 463, 493-94 (1984).

	The defendant also takes issue with the prosecutor’s argument

urging the jury to imagine the feelings of the victim as he was

placed in the wooden box. A defense objection to this comment

was overruled. The State concedes that the comment was improper

(see People v. Henderson, 142 Ill. 2d 258, 321-22 (1990); People v. Spreitzer, 123 Ill. 2d 1, 37-38 (1988)) but contends that appellate counsel’s apparent failure to preserve the issue does not

constitute ineffective assistance. We agree. The remark was

isolated and fleeting, and we do not believe that it affected the

outcome of the sentencing hearing.

	Finally, the defendant contends that trial counsel was

ineffective for failing to object to comments by the prosecutor that

called his actions here less than human. The prosecutor stated,

“What Danny Edwards did was not the actions of a human being,

a civilized human being. They are the actions of something less.”

The defendant asserts that the prosecutor’s argument was improper

because it effectively equated him with an animal, and that counsel

was ineffective when he did not preserve an objection to this part

of the State’s closing argument.

	Even if the prosecutor’s characterization of the defendant was

improper, we do not believe that the comment was prejudicial to

the defendant, or that counsel was ineffective for failing to preserve

an objection to it. Comments like the one challenged here do not

warrant reversal unless they result in substantial prejudice to the

defendant. People v. Coleman, 129 Ill. 2d 321, 347 (1989). The prosecutor’s remark here was brief and isolated, and we do not

believe that it could have denied the defendant a fair sentencing

hearing.

VI

	The defendant also challenges, on two separate grounds, the

manner in which the jury was selected for trial and sentencing. The

defendant first argues that the prosecutor improperly exercised

peremptory challenges against prospective jurors who expressed

reservations about the death penalty but who were not removable

for cause under the principles announced in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and its progeny. The defendant contends that the State may not

exercise a challenge against a prospective juror because of his or

her views regarding capital punishment. Rejecting the same

argument, this court has previously held that the Witherspoon line of authority does not limit the prosecution’s power to exercise

peremptory challenges against prospective jurors whose views

about the death penalty would not support a challenge for cause.

See People v. Coleman, 168 Ill. 2d 509, 548-49 (1995); People v. Williams, 161 Ill. 2d 1, 55-56 (1994); People v. Howard, 147 Ill. 2d 103, 136-38 (1991); People v. Stewart, 104 Ill. 2d 463, 481-82 (1984). The defendant has presented no reason to depart from

those decisions, and therefore we must reject the defendant’s

argument here.

	The defendant next challenges the State’s exercise of

peremptory challenges against four black members of the venire,

arguing that the prosecutor’s actions violated the rule announced

in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Although this court addressed the identical issue on

direct appeal, finding no violation of Batson, the defendant contends that the question must now be reconsidered in light of the Supreme Court’s decision in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), which held that defendants of

any race have standing to challenge the race-based exclusion of

jurors. Contrary to the defendant’s contention, however, this court

did discuss Powers in the course of resolving the Batson question on direct appeal. Edwards, 144 Ill. 2d at 150-54. We see no reason to revisit this issue, and we adhere to our earlier decision.

VII

	The defendant, in his final post-conviction argument, contends

that his death sentence is the product of an impermissible double

enhancement of his conviction for aggravated kidnapping. This

argument is without meritThe

State contends that the defendant has waived onconsideration of this

issue because he failed to include the point in his post-conviction

petitions. We agree. See People v. Johnson, 154 Ill. 2d 227, 233 (1993); 725 ILCS 5/122--–33 (West 1994). In any event, the

argument is without merit.. First, it is not clear that double

enhancement occurred in this case. The defendant was charged

with first degree murder and aggravated kidnapping under multiple

theories, and the jury returned general verdicts of guilty for each

offense. Multiple theories of aggravated kidnapping would have

supported both conviction on that offense and the establishment of

a statutory aggravating circumstance for the death penalty. See

People v. Terrell, 132 Ill. 2d 178, 221 (1989).

	Second, this court has held that double enhancement is

permitted under the statutory aggravating circumstance used to

establish the defendant’s eligibility for the death penalty in this

case. This court has explained that section 9–1(b)(6) of the

Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par.

9–1(b)(6)), murder in the course of another felony, contemplates

that the enhancement of certain felonies may also result in a

defendant’s eligibility for the death penalty. People v. Rissley, 165 Ill. 2d 364, 392 (1995). In this case, then, the defendant’s eligibility

for the death penalty may stand, even if one assumes that it was the

product of a double enhancement.

*   *   *

	For the reasons stated, the judgment of the circuit court of

Kankakee County is affirmed. The clerk of this court is directed to

enter an order setting Wednesday, May  16, 2001, as the date on

which the sentence of death, entered in the circuit court of

Kankakee County, is to be carried out. The defendant shall be

executed in the manner provided by law. 725 ILCS 5/119–5 (West

1998). The clerk of this court shall send a certified copy of the

mandate in this case to the Director of Corrections, to the warden

of Tamms Correctional Center, and to the warden of the institution

where the defendant is now confined.

Judgment affirmed.

	CHIEF JUSTICE HARRISON, concurring in part and dissenting in part:

	I agree that Edwards’ convictions should not be disturbed. In

my view, however, his sentence of death cannot 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). Edwards’ sentence of death should therefore be vacated,

and the cause should be remanded to the circuit court for

imposition of a sentence of imprisonment. Ill. Rev. Stat. 1985, ch.

38, par.  9–1(j).