Docket No. 89704–Agenda 7–November 2001.

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

								ARLIE RAY DAVIS, Appellant.

Opinion fiOpinion filed February 22, 2002.oedled February 22, 2002.

	JUSTICE GARMAN delivered the opinion of the court:

	Defendant was convicted after a jury trial in Henry County of

multiple counts of first degree murder (720 ILCS 5/9–1(a) (West

1994)), and of other crimes in connection with the killing of Laurie

Gwinn. After the jury found defendant eligible for the death

penalty, he waived his right to a jury for the second phase of the

sentencing hearing. The circuit court imposed the death penalty for

the murder. In addition, the circuit court imposed prison sentences

for some of the convictions and vacated others as lesser-included

offenses. Defendant filed a motion for a new trial and sentencing

hearing, which the circuit court denied.

	On direct appeal, this court affirmed the convictions and the

prison terms, but vacated the sentence of death and remanded for

a new sentencing hearing only, there being no question that

defendant was eligible for the death penalty. People v. Davis, 185 Ill. 2d 317 (1998). The basis for vacating the death sentence was

the circuit court’s apparent refusal to consider certain evidence in

mitigation. We held that although the sentencer may give little

weight to evidence properly offered in mitigation, it may not

entirely exclude such evidence from consideration. Davis, 185 Ill. 2d at 346. Specifically, defendant offered evidence of his good

behavior while incarcerated pending and during trial. The circuit

court commented that it did not care “how great a prisoner he is,

the real test is ... what’s going to happen upon release.” We agreed

with defendant that this statement expressed the judge’s categorical

belief that such evidence is never relevant to the capital sentencing

decision. Davis, 185 Ill. 2d at 347. Consequently, defendant was deprived “of the individualized consideration required by the eighth

and fourteenth amendments,” and resentencing was required.

Davis, 185 Ill. 2d at 347.

	On remand, defendant’s request that the original sentencing

judge recuse himself was granted and a new judge was assigned. Defendant again waived a jury and the circuit court again imposed

the death penalty. Because defendant was sentenced to death, his

appeal lies directly to this court. 134 Ill. 2d R. 651(a). As the facts

of his crimes are set out in detail in our earlier opinion (Davis, 185 Ill. 2d 317); we will summarize here only the testimony at the

second sentencing hearing.

THE SECOND SENTENCING HEARING

	The State presented the testimony of four women, all of them

admitted former prostitutes. Each woman told of being assaulted

between January 1993 and the summer of 1994 by a man who

picked her up in the Madison Square area in the north end of

Peoria. None of the women reported the attack at the time.

Between November 1994 and January 1995, however, each

woman gave a statement to the police describing the attack and

identifying defendant as her attacker. Laurie Gwinn was killed in

August 1995.

	Kari B. testified that on a summer afternoon in 1993, she

agreed to perform a sex act for money and entered a man’s car. He

drove into the country and stopped near what she described as “an

abandoned farmhouse.” She noticed that the door handle and the

window crank were torn out from the passenger side door. The

man turned to her and said “Bitch, I’m gonna kill you,” and he put

his hands on her throat. She struggled and was able to climb

through the open car window. She fell to the ground, then got up

and ran to the road, with him chasing her. A passing driver gave

her a ride back into town. Kari admitted that she had been using

cocaine at the time of the attack and had been “up for a few days.”

She also acknowledged a criminal record that included prostitution,

possession of a controlled substance, and robbery. At the time she

testified, she was on parole. She first told the story of her attack to

the police in January 1995, when she was being interviewed after

one of her arrests. When asked why she did not report the attack

when it occurred, she said she “was on cocaine bad” and “just

didn’t want to get involved with the police.” In addition, she

“didn’t really think that they would listen” to her because of her

“background.” Kari identified the defendant from a photo array in

January 1995. She also identified him in the courtroom, stating that she had “no doubt whatsoever” that he was the man who attacked

her and that she could “never forget his face.”

	On cross-examination, Kari admitted that in 1993 she had been

addicted to crack cocaine. She stated that when she first reported

the attack to police, she told Peoria police officer Terry Pyatt that

the car’s inside door handle was missing. However, she also

admitted telling Pyatt that she opened the car door and that both

she and her attacker fell out of the car. When asked if her memory

had improved in the five years since the incident, she said, “I was

on a lot of narcotics back [then].” Kari also acknowledged that she

told Pyatt she had been arrested later that same night. However,

when defense counsel produced a list of her five arrests in the

summer and fall of 1993, she could not pinpoint the date of the

attack.

	Denise T. testified that she had been employed as a roofer for

about a year and a half, but that she had previously worked as a

prostitute. In addition to arrests for prostitution, she had also been

convicted of obstruction of justice and three counts of retail theft.

About 10 p.m. one day in late April 1994, she agreed to pose for

nude photographs in exchange for money and entered a man’s car.

She identified the car as defendant’s, based on a photograph of his

car that was admitted into evidence. He drove to a remote wooded

area. She felt “dazed” and explained that she thought the man

struck her in the back of the head. When she came to, she was in

the back seat of the car with her hands handcuffed behind her. The

man was strangling her with an orange extension cord, which he

would loosen until she regained consciousness and then tighten

again. This went on for several hours, until morning, with

defendant repeatedly masturbating and ejaculating onto her chest.

The pressure from the cord being pulled tight around her neck

caused one of her eyes to “pop out” of its socket. She has a

permanent injury as a result. After she told the attacker that her

husband had seen her get into his car, he took her to a Peoria hotel,

took her up in an elevator, pushed her out, and fled. Denise did not

immediately seek medical attention for her injuries, because she

was afraid of going to jail. She explained that there were “a

couple” of outstanding warrants for her arrest and she did not want

the police to be contacted. When her condition did not improve after a few days, she went to the emergency room for treatment.

She eventually spoke to the police in November 1994 and

identified defendant from a photo array. She admitted to using

drugs in April 1994, but testified that there was “no doubt” in her

mind that defendant was the man who attacked her.

	On cross-examination, Denise could not explain why she

initially told Pyatt that the attack occurred in January. She

acknowledged that she arrived at the April date only after her

hospital records showed a May 1, 1994, emergency room visit for

treatment of her eye injury. Defense counsel also questioned her

recollection of the time of day at which the attack occurred. Denise

insisted it had happened at night and that she had been picked up

“at the Mexican store on Perry.” She denied telling Pyatt that she

had been picked up at 12:30 in the afternoon or telling Officer Rod

Huber that she had been picked up outside a bar called Mulvaney’s.

Denise said she was not sure what defendant hit her with and was

not sure if she had told the police it was something metal. She

stated that she told Pyatt about defendant’s masturbating on her,

but she could not recall if she told him about car’s missing door

handle.

	The State also called a nurse from Methodist Hospital in

Peoria who verified Denise’s eye injury and explained that it could

have been caused by excessive pressure on the blood vessels of the

neck.

	Michelle U. testified that a man picked her up in a blue car at

about 11 a.m. one day in the summer of 1994. She was a cocaine

user at the time, but had not used any drugs that morning. He

drove her to a secluded area at the end of a dead-end street. The

door handle and window crank were missing from the passenger

door. She performed the sex act they had agreed upon, but he

demanded more. She insisted that he pay her more money. He then

grabbed her throat, pushed her down on the seat, and completed

the act. He got out of the car, went around to the passenger side,

opened her door, and threw her out. He called her “bitch” and

“whore.” Her pimp, who had followed them, arrived and took her

back to town. She did not report the attack because she was

“scared” and “embarrassed.” She wanted to avoid contact with the

police and did not think she would be believed. Michelle’s record includes “a drug case” in addition to arrests for prostitution. She

told her story to the police in December 1994 and identified

defendant from a photo array. In court, she expressed certainty that

“[h]e’s the one.”

	On cross-examination, Michelle acknowledged that she

previously had been addicted to crack cocaine and had made her

initial identification of defendant while undergoing rehabilitation at

an inpatient treatment facility.

	Maria N. was a prostitute before she began working as a food

service worker in a nursing home. Her record includes charges of

prostitution, driving under the influence, possession of a controlled

substance, and obstruction of justice. She got into a car with a man

at 2 a.m. one day in January 1993 and he drove down a back road

to a wooded area behind a furniture warehouse. He told her to

remove her blouse while he got into the back seat to undress. Then

he reached from behind her, put a belt around her neck, and started

choking her. She passed out. When she came to, she was on the

floor of the back seat and it was daylight. She got her clothing

from the front seat, left the car, and walked to the road, where she

found a ride. She did not go to the police because she knew that

what she was doing “was wrong.” She gave a statement to Pyatt

in January 1995 and identified the defendant from a photo array.

Maria admitted that she told Pyatt she woke up naked on the

ground rather than in the car, but insisted that her testimony was

accurate.

	On cross-examination, Maria described the car as a “brownish

colored station wagon with wood on the sides.” She again

acknowledged telling Pyatt that she regained consciousness on the

ground, not in the car.

	The State called Officer Pyatt to testify regarding his

investigation of these attacks. He stated that he was present in

February 1995 when defendant’s “older blue Dodge” was

searched. Among the items recovered from the car were an orange

extension cord and a set of handcuffs. In addition, the inside door

handle and the mechanism to roll the window up and down were

missing from the passenger-side door.

	Without objection by the defense, he also testified regarding

the statements made to him by the four women. His testimony

generally confirmed that they testified consistently with their earlier

statements as recorded in his notes. However, Maria N. did tell him

that she had been “dumped nude with her clothing.”

	On cross-examination, Pyatt acknowledged that during his first

interview with Denise, she indicated that the attack had occurred

in late January 1994. When police investigation of hospital records

revealed her emergency room visit on May 1, 1994, the date was

revised to late April 1994. There was no mention in his written

report and he did not recall Denise mentioning that the door or

window handles were missing from the car. His report says that

Denise claimed to have been picked up at 12:30 in the afternoon,

not at night. His report did not contain any mention of the

attacker’s masturbating on her, but he stated that he did recall

Denise talking about this. Pyatt acknowledged that defendant was

charged with aggravated battery based on this incident, but that the

matter was dismissed with leave to refile. Pyatt also stated that

Kari described a “big green car” and that neither the missing door

handles nor the threat “Bitch, I’m gonna kill you” were mentioned

in his report.

	The State agreed to defense counsel’s request to stipulate that

Huber, if called to testify, would say that Denise told him the

attack occurred after she was picked up outside Mulvaney’s bar at

around 10 p.m.

	In addition to the testimony summarized above, the State also

presented the testimony of the victim’s father, who read a short

statement; two Henry County deputies, who testified regarding

defendant’s conduct while confined in the county jail awaiting

resentencing; several correctional officers, who testified to his

conduct while in state custody; and the records custodian from the

Department of Corrections, who testified regarding defendant’s

disciplinary record. Because the circuit court gave little, if any,

weight to this information, we need not detail it here.

	Evidence in mitigation included the testimony of defendant’s

uncle, the transcript of defendant’s late mother’s testimony at the

first sentencing hearing, and a written statement prepared by Dr.

George L. Savarese, a mitigation specialist. In addition, defendant’s driving abstract, which reveals one conviction for

driving under the influence and citations for speeding and driving

without a valid license, was admitted as evidence of defendant’s

minimal prior criminal history.

	Because defendant argues that the circuit court failed to

properly consider a statutory mitigating factor, specifically the lack

of a significant history of criminal activity, we find it necessary to

quote at length from the circuit court’s remarks upon sentencing.

The court first acknowledged its “duty to make a diligent inquiry

to find mitigating factors that are sufficient, individually or

collectively, to preclude the death penalty, if they indeed exist.”

The court noted the aggravating factors that the State had proven

at the eligibility stage, in accordance with section 9–1(b) of the

Criminal Code of 1961: that defendant “actually and personally

struck and strangled Laurie Gwinn, intentionally committing

murder while in the course of committing three forcible felonies:

robbery, aggravated criminal sexual assault, and aggravated

kidnapping.” 720 ILCS 5/9–1(b) (West 1994). In addition, the

court noted:

		“[T]he State has supplemented the record during the

course of this hearing by presenting the testimony of four

women who describe similar savage attacks *** by Arlie

Davis, similar to each other and similar to the factual basis

of this case.

			In this manner the State attempts to demonstrate that

the lack of a history of criminal convictions, a clean record

except for a driving under the influence charge and ...

traffic charges, ... belies Arlie Ray Davis’ true character,

a character the State contends is sinister, violent, and

perverse.

			Now I find that I must comment on the testimony of

[the four women]. Each is a cocaine addict, plunged deep

into a life of prostitution, theft, and prevarication. Each

has accumulated a deplorable criminal record. Each took

the witness stand and looking directly at the defendant

presented testimony in an emotional, blunt, and convincing

manner about incidents in their lives that are likely to be

indelibly fixed for a lifetime.

			Individually their credibility is certainly questionable,

suspect, and enigmatic. But, having assessed their

emotion, their grim determination, their manner while

testifying, and considering how their experiences coincide

in many respects with the facts and circumstances

surrounding the killing of Laurie Gwinn, the Court finds

these women believable and their testimony relevant.

			Additional significance is attached to the curious manner

in which they are corroborated by evidence in the State’s

case-in-chief, namely handcuffs in the glove compartment,

an orange extension cord in the back seat, manipulation of

his victims to lonely, secluded places, and a penchant for

strangulation of his victims followed by perverse sexual

attacks.

			The Court has determined that collectively their

testimony reveals an intentional evil mindset of the

defendant and portrays a pattern of criminal behavior that

is appropriately considered in this Court’s sentencing

decision. Let there be no mistake, however, this Court will

impose sentence for the murder of Laurie Gwinn, not for

charges that have not been filed.

			The testimony of these women is considered for the

narrow purpose of understanding Arlie Ray Davis’

character, the likelihood that he can be restored to useful

citizenship, and his potential for rehabilitation in or out of

prison.”

	The court observed that Laurie Gwinn was unlike these four

earlier victims in that “Laurie Gwinn would be expected to identify

and prosecute her assailant. Arlie Davis knew she had no fear of

authorities.” Thus, the court implied, defendant killed Laurie

Gwinn, but allowed the prostitutes he attacked to live, because he

thought he could count on them not to report the crime, or perhaps

not to be taken seriously if they had.

	The court then turned to its “quest to find one or more

mitigating factors which would preclude imposition of the death

penalty.” Using the statute (720 ILCS 5/9–1(c) (West 1994)) as a

guide, the court considered each of the statutory factors individually, finding only section 9–1(c)(1) applicable: “the

defendant has no significant history of prior criminal activity.” With

regard to this factor, the court commented:

		“While defendant has minor traffic violations including a

conviction for DUI, I find that the events which occurred

in Peoria in 1993 and 1994 establish a significant recent

history of prior criminal activity, thus this is not a

mitigating factor.”

	In its “quest” to find mitigation, the court then considered the

13 statutory mitigating factors that are applicable to minimizing a

sentence of imprisonment. 730 ILCS 5/5–5–3.1 (West 1994). None

of these factors offered any support for mitigation.

	The Court also considered the evidence presented at the first

sentencing of defendant’s model behavior while incarcerated prior

to and during trial and the evidence presented at this hearing of his

breaches of prison discipline. The court stated that it was “not

willing to disregard” the evidence of earlier good behavior “simply

because he misbehaved on seven occasions in the past three-and-a-

half years.”

	The testimony of defendant’s uncle and mother revealed some

positive relationships with family members, but also a “dark side”

to defendant, the court found. The report of the mitigation expert

described defendant’s “dysfunctional family” and a “wretched,

misdirected life.”

	In the end, the court concluded that although there “are

glimmers of mitigation in the life of Arlie Davis,” the court could

“not find that any factors in mitigation are sufficient to preclude the

imposition of the death penalty.”

ANALYSIS

	Defendant claims that the trial court abused its discretion by

considering the testimony of four prostitutes, none of whom was

“worthy of belief, as the stories they told were incredible and

motivated by self interest.” In support of this assertion, he notes

that each of the four women was a convicted felon and an admitted

drug addict and that none of the women reported the alleged

assault at the time it occurred. Although defendant raised this issue in a post-sentencing motion, the State responds that this argument

is waived for failure to make a contemporaneous objection. People v. Mahaffey, 166 Ill. 2d 1, 27 (1995). We will not address the State’s waiver argument because this issue can so readily be

disposed of on the merits. We agree.  Our case law clearly requires that to avoid procedural default, the defendant

must make a contemporaneous objection and raise the issue in a

post-trial motion.  In the alternative, the defendant must

demonstrate plain error or another exception to the rule of

procedural default.  See People v. Enoch, 122 Ill. 2d 176, 190 (1988).  The defendant has not attempted to do so.

	In any event, even if defendant had argued plain error, he

could not have prevailed because there was no error. 

	Defendant

admits that the testimony of the four women was relevant and

admissible. Therefore, his argument really goes to their credibility.

Defense counsel cross-examined each witness and pointed out any

discrepancies between her testimony and her earlier statements to

the police. Defense counsel also made a forceful argument in

closing that these witnesses’ memories were unreliable because

they were impaired by drug use at or near the time of the attacks

and their frequent arrests might make them eager to shape their

testimony to fit the State’s case. The circuit court considered their

testimony, their demeanor, and the arguments of counsel, and, in

the end, determined that the testimony was credible.

	We must defer to the sentencing judge in this matter. When

the defendant has waived a jury for the sentencing phase, assessing

the witnesses’ credibility is exclusively within the province of the

circuit court as the trier of fact. People v. Oaks, 169 Ill. 2d 409, 467 (1996). In the present case, the court was aware of several

reasons to regard the witnesses’ testimony with skepticism. On the

other hand, their demeanor was apparently quite convincing. Some

details of their testimony were corroborated by physical evidence.

And their encounters with defendant were chillingly similar to the

manner in which he abducted and killed Laurie Gwinn. The trial

court was well within its discretion to credit the testimony of these

witnesses.

	Before we address defendant’s second issue, we pause to

comment on the tenor of defendant’s brief. Although we appreciate

that appellate counsel must zealously represent the client, we find

counsel has stepped very close to the line between zealous advocacy and incivility toward the court and opposing counsel. For

example, counsel charges that the State, “lacking any legitimate

evidence in aggravation to present, elected to present the testimony

of criminals and drug addicts to sway the fact finder toward a

verdict of death” and, further, that the circuit court “was beguiled”

by this evidence. The brief asserts that the court’s comments reveal

that the court did not find the witnesses “worthy of belief

individually, but because the prosecution managed to find four

prostitutes to testify, the testimony suddenly became believable.”

In that same vein, counsel argues that “the fact that the prosecution

could find no witness who had allegedly been attacked by Mr.

Davis other than prostitutes, known to curry favor with the police,

is significant in its omission.”

	Counsel’s tone, which mocks the trial court and witnesses that

it found credible, does not assist this court in addressing the merits

of the issues, a duty which we take most seriously. The comments

of the circuit court reveal the court’s understanding that the State

found no living witness, other than these four women, who had been attacked by defendant because the very traits that made them

vulnerable to attack–their work as prostitutes, their drug use, and

their run-ins with the law–meant that they did not pose a threat to

defendant and, thus, he could allow them to survive. Laurie Gwinn

might have made a compelling witness, one whose credibility

would not have been in question, had she survived her encounter

with defendant.

	Defendant’s second argument is that counsel was ineffective

for failing to object to the testimony of police officer Pyatt.

According to defendant, Pyatt’s testimony was hearsay and

cumulative and merely bolstered the testimony of the four women

who accused him of assault. As a result, he argues, the testimony

would not have been allowed if counsel had made a timely

objection.

	Claims of ineffective assistance of counsel are evaluated under

the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068

(1984), which requires the defendant to demonstrate both that

counsel’s performance fell below an objective standard of

reasonableness and a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reviewing court assesses counsel’s performance using

an objective standard of competence under prevailing professional

norms. To establish deficient performance, the defendant must

overcome the strong presumption that counsel’s action or inaction

was the result of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). As a result, counsel’s strategic choices that are

made after investigation of the law and the facts are virtually

unassailable. People v. Richardson, 189 Ill. 2d 401, 413 (2000).

	In the present case, the transcript makes it clear that counsel

did not object to Pyatt’s testimony because counsel’s strategy was

to impeach the credibility of the four earlier witnesses by showing

numerous discrepancies between their testimony at the sentencing

hearing and their earlier statements to the officer. Indeed, when the

State called only one of the two investigating officers to testify, the

defense requested that the State stipulate to the testimony of the

absent officer so that it, too, could be used to expose an

inconsistency in the testimony of one of the women. The strategy

was not unreasonable, even though it was ultimately unsuccessful.

Because defendant cannot meet the first prong of the Strickland test, he cannot prevail on a claim of ineffective assistance of

counsel.

	Defendant’s third argument is based on our opinion in his first

appeal, in which we concluded that the “dispositive inquiry” was

whether the sentencing judge refused, as a matter of law, to

consider certain mitigating evidence. Davis, 185 Ill. 2d at 346. We cited Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), for the firmly established rule that “while a capital

sentencer ‘may determine the weight to be given relevant

mitigating evidence,’ the sentencer ‘may not give it no weight by

excluding such evidence’ from its consideration.” Davis, 185 Ill. 2d at 346, quoting Eddings, 455 U.S. at 114-15, 71 L. Ed. 2d at 11, 102 S. Ct. at 877. Defendant argues that the judge in his second

sentencing hearing committed precisely the same error that resulted

in the need for a second hearing–outright refusal to consider

relevant mitigating evidence. In particular, defendant asserts that

the circuit court refused to consider evidence that he had “no

significant history of prior criminal activity” (720 ILCS 5/9–1(c)(1) West 1994)), other than insignificant traffic offenses. As a result,

defendant seeks a third sentencing hearing. His argument hinges on

a single sentence from the trial court’s lengthy remarks upon

sentencing:

		“While defendant has minor traffic violations including a

conviction for DUI, I find that the events which occurred

in Peoria in 1993 and 1994 establish a significant recent

history of prior criminal activity, thus this is not a mitigating factor.” (Emphasis added.)

	We reject defendant’s argument that these few words

demonstrate that the resentencing judge committed the same error

as the original sentencing judge. The flaw in defendant’s first

sentencing hearing was that “the judge expressed the categorical

belief” that evidence of defendant’s positive adjustment to

incarceration was “never relevant to a capital sentencing decision.

The judge’s comments thus demonstrate[d] that he did not

consider defendant’s proffered mitigating evidence *** based upon

the judge’s mistaken belief that such evidence is not mitigating.”

Davis, 185 Ill. 2d at 347. At the second sentencing hearing, the judge did not categorically refuse to consider evidence of

defendant’s lack of a significant criminal record.

	Defendant also raises several other arguments with respect to

this statutory mitigating factor. He argues that: (1) only a

significant history of prior criminal convictions, as opposed to prior

criminal activity, may be used to “negate” this factor, (2) when

evidence of lack of a history of criminal convictions is presented,

the court must make a specific finding that this mitigating factor is

present, even if it then considers evidence of uncharged crimes as

a nonstatutory aggravating factor, and (3) due process requires any

fact that increases the maximum penalty for a crime must be proven

to a jury beyond a reasonable doubt, citing the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63

(2000).

	Defendant cites People v. Lewis, 88 Ill. 2d 129, 144 (1981), in which this court considered whether the statutory phrase “ ‘no

significant history of prior criminal activity’ ” is impermissibly

vague. We held that while this phrase “can, perhaps, be construed or applied by courts so as to render it overly broad, there is no

reason to assume it will be. *** We believe the phrasing of section

9–1(c)(1) is not a constitutionally impermissible basis for calling to

the jury’s attention the absence of significant criminal convictions.” (Emphasis added.) Lewis, 88 Ill. 2d at 144-45. He notes that we later decided a case in which evidence of a prior juvenile

proceeding that did not result in an adjudication of delinquency and

of a prior criminal charge that did not result in a conviction were

considered by the sentencing court, holding that:

		“Even if these two dispositions were improperly

considered by the trial judge, the error was harmless

because the defendant still had a significant history of

criminal activity; i.e., convictions for two burglaries, misdemeanor theft, possession of a controlled substance,

and two for unlawful-use-of weapons charges.” People v. Stewart, 101 Ill. 2d 470, 494 (1984).

	Reading Lewis and Stewart together, defendant concludes that only prior criminal convictions, or the lack thereof, may be

considered by the sentencer to determine whether the mitigating

factor is present and, further, any error resulting from

consideration of other criminal activity is harmless only if the

defendant also has a significant history of criminal convictions.

Thus, he concludes, it was error for the circuit court to find that

the mitigating factor did not exist based on evidence of criminal

activity that did not result in conviction and, further, the error

could not have been harmless because he had no other significant

criminal convictions on his record.

	The State responds that the trial court’s single comment that

“this is not a mitigating factor” must be read in the context of the

court’s lengthy remarks, and that the court did, in fact,

acknowledge that defendant did not have a significant history of

criminal convictions before concluding that this fact was

outweighed by the existence of a nonstatutory aggravating factor,

that is, substantial evidence of uncharged criminal activity.

	Defendant does not attempt to argue that the circuit court

erred by admitting and considering evidence of uncharged criminal

conduct. To do so would have been futile in any event. See People v. Smith, 176 Ill. 2d 217, 255 (1997) (“the sentencer may consider in aggravation evidence of a defendant’s prior misconduct,

including juvenile delinquency, ‘although the misconduct may not

have resulted in prosecution or conviction’ ”), quoting People v. Lego, 116 Ill. 2d 323, 346-47 (1987).

	Upon careful reading of the circuit court’s comments, we note

that the court referred to the evidence of uncharged crimes as the

State’s having “supplemented the record,” a clear reference to the

court’s understanding that this evidence was offered as a

nonstatutory aggravating factor, presented in the State’s case in

chief to supplement the aggravating factors proven at the first stage

of sentencing.

	The court also stated that defendant’s lack of criminal history,

as reflected by his record of convictions, was “belied” by the

evidence of his attacks on the four women. To “belie” a fact is to

demonstrate its falsity. See B. Garner, Dictionary of Modern Legal

Usage 102 (2d ed. 1995) (“belie = (1) to disguise, give a false idea

of; (2) to leave unfulfilled; or (3) to contradict or prove the falsity

of”). When a defendant offers evidence in mitigation, the State is

permitted to offer evidence to “belie” its factual basis. The State

did so, for example, in People v. Ramirez, 98 Ill. 2d 439, 467 (1983), by having its own psychiatric expert testify after the

defendant offered evidence that he committed the murder while

“under the influence of extreme mental or emotional disturbance”

(720 ILCS 5/9–1(c)(2) (West 1994)). We found that “[s]ince the

defendant himself raised the issue of his mental condition at the

time of the offense, it was not improper for the State to try to

disprove his assertion.” Ramirez, 98 Ill. 2d at 467.

	In People v. Flores, 153 Ill. 2d 264, 296 (1992), the defendant presented mitigating evidence that his prior adjudications for

delinquency were for nonviolent crimes, for which he received

probation. While we did not “discount the significance” of this

mitigation evidence, we also found it significant that between the

murder of Gilbert Perez, for which he faced the death penalty, and

his arrest, defendant shot Louis Rosero five times, rendering him

a paraplegic. Flores, attempting to minimize the significance of

Rosero’s testimony at the sentencing hearing, argued that “he was

never convicted of the Rosero shooting.” Flores, 153 Ill. 2d at 296. We noted that “this evidence was admissible, for, certainly, prior uncharged criminal conduct is relevant in a sentencing

determination. [Citation.] If believed, the jury may have considered

that defendant’s mitigation evidence was insufficient to overcome

the aggravating factors.” Flores, 153 Ill. 2d at 296.

 	In the present case, defendant pointed to his lack of a criminal record as evidence that he had “no significant history of prior

criminal activity” (720 ILCS 5/9–1(c)(1) (West 1994)). He

introduced the record of his traffic offenses, including a DUI, as

evidence of that any prior law-breaking on his part was not

“significant.” The State, anticipating that he would rely on this

particular mitigating factor, put on evidence of quite significant

criminal activity in the two years immediately preceding the

murder. The circuit court, considering all of the evidence,

commented: “In this manner the State attempts to demonstrate that

the lack of a history of criminal convictions, a clean record except

for a driving under the influence charge and *** traffic charges,

*** belies Arlie Ray Davis’ true character, a character the State

contends is sinister, violent, and perverse.”

	We conclude, based on the record of the circuit court’s

comments, that the court did find that the statutory mitigating

factor was present, but that its significance was clearly outweighed,

or “belied,” by the evidence of uncharged crimes properly

introduced by the State. This conclusion is supported by the circuit

court’s statement that it was considering the other-crimes evidence

“for the narrow purpose” of understanding defendant’s “character,

the likelihood that he can be restored to useful citizenship, and his

potential for rehabilitation.”

	Defendant acknowledges that it would have been entirely

appropriate for the circuit court to find that the statutory mitigating

factor was present, but that the evidence of nonstatutory

aggravating factors “reduced the impact of this factor.” He argues,

however, that the court’s remark that “this is not a mitigating

factor” demonstrates that it was not engaging in this kind of

balancing and, without citation to authority, he asserts that the

circuit court was required to make an express finding that the

factor was present before finding it outweighed by other factors.

The State responds that “[w]hile the court’s language may not have

been as precise” as it could have been, this court has previously permitted a sentencing court to weigh the lack of a prior criminal

record against evidence of prior uncharged criminal activity. Both

parties cite Smith, in which we found “no error where the trial court first found the presence of the statutory mitigating factor,

and then ‘tempered’ that finding by noting evidence of defendant’s

juvenile misconduct.” Smith, 176 Ill. 2d at 255.

	We also find Stewart instructive. In that case, the defendant argued that the trial judge failed to consider, or improperly

considered, certain factors in mitigation, including his lack of a

significant history of prior criminal activity. Stewart, 101 Ill. 2d at 493-94. The judge made a remark quite similar to the disputed

comment in this case when he concluded that there was “ ‘nothing

to mitigate the offense committed here.’ ” Stewart, 101 Ill. 2d at 494. As in the present case, the judge’s remark was made in the

context of describing his consideration of all of the evidence

presented: “ ‘I have indulged in many hours of reflective

introspection seeking to find some factors in mitigation. *** I have

searched my conscience and my soul and I cannot find any basis in

law or in fact that would preclude the death penalty in this case.’ ”

Stewart, 101 Ill. 2d at 494-95. We found that the record in Stewart, despite the single comment relied on by the defendant, did not

demonstrate that the judge failed to consider factors in mitigation. Stewart, 101 Ill. 2d at 494-95. Similarly, in the present case, the judge’s remarks, taken as a whole, reflect careful consideration of

all of the statutory and nonstatutory factors offered by the parties

and the reluctant conclusion that the death penalty was proper.

Implicit in the single, isolated comment that “this is not a mitigating

factor” is the judge’s conclusion that the mitigating factor was not

sufficient to outweigh the aggravating factors.

	Defendant’s final argument with regard to this mitigating

factor is that the trial court’s reliance on allegations of criminal

conduct that were not proven at trial violates the constitutional

guarantee of due process as interpreted in Apprendi. This argument is entirely without merit. Apprendi held that any fact that increases the statutory maximum penalty for a crime, other than the fact of

a prior conviction, must be submitted to a jury and proven beyond

a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Supreme Court in Apprendi expressly excluded death penalty proceedings from its reach.

Apprendi, 530 U.S. at 496, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.

	In the present case, when evidence of uncharged crimes was

offered during the second stage of sentencing, defendant had

already been proven eligible for the death penalty based on the

presence of three aggravating factors. Thus, the maximum sentence

he faced was death. No fact that was offered at the second stage of

sentencing could have had the effect of increasing the maximum

penalty. Apprendi concerns are, thus, not implicated here.

	In the end, defendant’s arguments with regard to this

mitigating factor are nothing more than an invitation to “assign

greater weight to the mitigation evidence than did the trial court.”

People v. Turner, 156 Ill. 2d 354, 366 (1993). We will not engage in such reweighing. “The trial court reviewed the evidence and

observed the witnesses. The court expressly cited the factors in

aggravation and mitigation which it considered in arriving at its

sentencing determination. Our review of that determination is

weighted with a heavy measure of deference.” Turner, 156 Ill. 2d at 366.

	Defendant also argues that what he calls the “Illinois Death

Penalty Statute,” actually sections (b) through (j) of the statute

defining first degree murder (720 ILCS 5/9–1(b) through (j) (West

1994)), is unconstitutional because it does not require the

sentencer to find beyond a reasonable doubt that aggravating

factors outweigh mitigating factors. He bases this argument on

Apprendi as well. Defendant acknowledges that the Court stated that the rule it was announcing in Apprendi would not “render invalid state capital sentencing schemes requiring judges, after a

jury verdict holding a defendant guilty of a capital crime, to find

specific aggravating factors before imposing a sentence of death.”

Apprendi, 530 U.S. at 496, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, citing Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). Nevertheless, he argues that the Apprendi rule should be applied to Illinois’ death penalty sentencing scheme

because it differs from the scheme described by the Court in

Apprendi. He notes that “there is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder.” People v. Brownell, 79 Ill. 2d 508, 524 (1980). Thus, he argues, because he was found guilty of “murder,” but not “capital

murder,” any further findings of fact permitting imposition of a

sentence in excess of the 60-year statutory maximum for murder

(730 ILCS 5/5–8–1(a)(1)(a) (West 1994)) must be proved by the

State beyond a reasonable doubt, including a finding that the

aggravating factors are not outweighed by mitigating factors.

	The State responds that defendant has waived this argument

by failing to raise it in his first appeal. However, Apprendi was decided more than a year after his first appeal, while his

resentencing was pending, so this argument was not available to

him at that time. In addition, this proceeding is a direct appeal,

albeit a second one. The doctrine of waiver does not bar a

defendant from raising a constitutional issue on direct appeal, even

if he failed to raise it at trial. See People v. Wagener, 196 Ill. 2d 269, 280 (2001).

	Defendant’s argument hinges on the underlying proposition

that the statutory maximum sentence for murder is established in every case by section 5–8–1(a)(1)(a) of the Code of Corrections. 730 ILCS 5/5–8–1(a)(1)(a) (West 1994) (stating that the sentence

for first degree murder, absent a finding of fact regarding certain

aggravating factors, shall be a determinate term “not less than 20

years and not more than 60 years”). If this is so, then imposition of an extended-term sentence (730 ILCS 5/5–5–3.2(b)(2),

5–8–2(a)(1), (b) (West 1994)), or the death penalty (720 ILCS

5/9–1(b) through (j) (West 1994)), would always implicate the due

process concerns addressed in Apprendi. But what of the case in which the defendant who, after being convicted of murder, is found

eligible for the death penalty? This question has already been

addressed by this court in People v. Ford, 198 Ill. 2d 68 (2001), and our holding in that case forecloses defendant’s argument.

	Eric Ford was convicted of first degree murder after a bench

trial. When the State sought the death penalty, he waived a jury for

both phases of the capital sentencing hearing. The trial court found

him eligible for the death penalty on two separate bases: the

murder was committed in the course of another felony and the

murder was intentional and involved the infliction of torture. Ford, 198 Ill. 2d at 71. Following receipt of mitigating evidence, the trial court declined to impose the death penalty, based on Ford’s youth,

his lack of a significant history of criminal activity, his confession,

and his cooperation with the police. Nevertheless, because the

murder “ ‘was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty,’ ” the trial court imposed an

extended-term sentence of 100 years, rather than the 60-year

sentence that would have been proper absent the aggravating

factor. Ford, 198 Ill. 2d at 71. Ford argued that his 100-year extended-term sentence was unconstitutional under Apprendi because the maximum sentence for the offense of murder is a 60-

year prison term. The State’s position was that Apprendi does not ever apply to sentencing under Illinois’ first degree murder statute

because the maximum penalty authorized by that statute is death. Ford, 198 Ill. 2d at 71-72.

	The first degree murder statute permits the State to seek

imposition of the death penalty for any defendant found guilty

under the statute by proving that the defendant is at least 18 years

of age and that one or more of the listed aggravating factors is met.

720 ILCS 5/9–1(b) (West 1994). The State must meet this burden

by proving the existence of the aggravating factor or factors

beyond a reasonable doubt. 720 ILCS 5/9–1(f) (West 1994). Once

the State has met this burden, the maximum sentence facing the

particular defendant is death.

	As applied to Ford, because he had been found eligible for the

death penalty, a 100-year sentence, even though it was an

“extended-term” sentence, did not exceed the statutory maximum

he was facing–death. The trial court’s finding that the murder

“ ‘was accompanied by exceptionally brutal or heinous behavior

indicative of wanton cruelty,’ ” although a finding of fact “did

nothing to increase the penalty” that he was facing. Ford, 198 Ill. 2d at 74.

	In the present case, the jury found the defendant guilty of

murder and of the three felonies that served as aggravating factors

(720 ILCS 5/9–1(b)(6)(a) (West 1994)). The jury also found,

beyond a reasonable doubt, that he was eligible for the death

penalty. “At this point, and based exclusively upon facts that were

proved beyond a reasonable doubt, defendant faced a prescribed

statutory maximum sentence of death.” Ford, 198 Ill. 2d at 74. Consideration of mitigating factors, or even consideration of

nonstatutory aggravating factors, at the second stage of sentencing

cannot increase the penalty for the crime beyond that maximum.

Indeed, mitigating factors can only reduce the likelihood that the

maximum penalty will be imposed. The remaining question at this

stage–whether sufficient mitigating factors exist to preclude

imposition of the death penalty–thus need not be submitted to the

jury and proven beyond a reasonable doubt.

	We, therefore, conclude that the rule announced in Apprendi is not applicable in the mitigation phase of a death penalty

sentencing hearing.

	Defendant raises another Apprendi-based claim–that his indictment was flawed because it did not set forth all of the

elements of the crime. The omitted elements, according to

defendant, are that he was over the age of 18 at the time of the

commission of the crime, that he actually killed Laurie Gwinn, that

the killing occurred in the course of one or more of the specified

felonies, and that mitigating factors are not sufficient to preclude

the imposition of the death penalty. Thus, he contends that he may

not constitutionally be sentenced to death.

	Defendant’s brief also states in its summary of the “Nature of

the Case” that “no issue is raised concerning the sufficiency of the

charging instruments.” Perhaps this language is just boilerplate, or

perhaps it reflects counsel’s recognition that the time for raising

any challenge to the sufficiency of the indictment is long past.

“When an indictment or information is attacked for the first time on

appeal, it is sufficient that the indictment or information ‘apprised

the accused of the precise offense charged with sufficient

specificity to prepare his defense and allow pleading a resulting

conviction as a bar to future prosecution arising out of the same

conduct.’ ” People v. Thingvold, 145 Ill. 2d 441, 448 (1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976). In other words, the question on appeal is “whether the defect in the

information or indictment prejudiced the defendant in preparing his

defense.” Thingvold, 145 Ill. 2d at 448.

	In the present case, defendant did not challenge the indictment

at trial or in his first direct appeal. Thus, unless he demonstrates

that he was prejudiced in preparing his defense, this issue is waived. Defendant makes no claim of prejudice, however. Instead,

he packages his challenge to the indictment in Apprendi wrapping and raises it as a constitutional claim that was not available to him

at the time of his first appeal.

	Defendant’s attempt to create an Apprendi issue is unavailing because the Supreme Court, in Apprendi, specifically excluded capital sentencing schemes in which eligibility for the death penalty

must be proven to a jury beyond a reasonable doubt from its scope:

		“ ‘ Neither the cases cited, nor any other case, permits a

judge to determine the existence of a factor which makes

a crime a capital offense. What the cited cases hold is that,

once a jury has found the defendant guilty of all the

elements of an offense which carries as its maximum

penalty the sentence of death, it may be left to the judge to

decide whether that maximum penalty, rather than a lesser

one, ought to be imposed ... . The person who is charged

with actions that expose him to the death penalty has an

absolute entitlement to jury trial on all the elements of the

charge.’ ” Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, quoting Almendarez-Torres v. United States, 523 U.S. 224, 257 n.2, 140 L. Ed. 2d 350,  377 n.2, 118 S. Ct. 1219, 1237 n.2 (1998) (Scalia, J.,

dissenting, joined by Stevens, Souter and Ginsburg, JJ.).

	Defendant argues that this dicta in Apprendi regarding capital sentencing applies only to those states with criminal laws that

distinguish between the offenses of murder and capital murder.

Because Illinois’ criminal code defines only one offense of first

degree murder, he argues that a charge of first degree murder does

not adequately inform the accused that he may face the death

penalty. He claims that Apprendi implicitly overturns our decision in People v. Brownell, 79 Ill. 2d 508 (1980).

	In Brownell, the defendant argued that a capital sentencing hearing, conducted after his conviction for first degree murder,

violated double jeopardy principles. He characterized his trial as

having convicted him of the “lesser included offense of murder,”

and his sentencing hearing as having tried him again for the offense

of “capital murder.” Brownell, 79 Ill. 2d at 523. He also made an eighth amendment argument that his indictment was defective because the prosecutor could initiate a death penalty hearing

without having charged him with “aggravated murder.” Brownell, 79 Ill. 2d at 526-27. We noted that “there is only one offense of

murder in Illinois; no distinction is made between capital and non-

capital murder.” Brownell, 79 Ill. 2d at 524. Further, “[t]here is no offense of ‘aggravated,’ as opposed to simple, murder, in Illinois.

There is simply one murder statute, which includes within it a

provision for the imposition of the death sentence.” Brownell, 79 Ill. 2d at 527. Thus, an indictment for murder is sufficient if it sets

out “with such specificity or particularity that the accused is

informed of the offense with which he is charged and enabled to

prepare his defense and, further, that he is protected against being

later prosecuted for the same crime.” Brownell, 79 Ill. 2d at 524. In addition, when the indictment contains allegations that the

defendant murdered the victim in the course of committing certain

other felonies, such as aggravated kidnapping or rape, the

defendant is “fully apprised, from indictment on, that he could

potentially receive the death sentence.” Brownell, 79 Ill. 2d at 525.

	We relied on Brownell in People v. Davis, 95 Ill. 2d 1 (1983), in which the defendant argued that the indictment was insufficient

to support a death sentence because it failed to allege a statutory

aggravating factor. Davis, 95 Ill. 2d at 28. After again noting that there is only one offense of murder under Illinois law, and that the

defendant did not assert that the necessary elements of that crime

were insufficiently alleged in the indictment, we stated:

		“The aggravating factors are not necessary elements of the

offense, and are relevant only to a determination of the appropriate punishment. Therefore, the real question concerns defendant’s knowledge that the death penalty

would be sought, and his ability to adequately prepare a

defense.” (Emphases in original.) Davis, 95 Ill. 2d at 29.

	As in Davis, this defendant “does not allege that he was unaware of the aggravating factors upon which the State would

rely.” Davis, 95 Ill. 2d at 29. Indeed, in the present case, defendant was also charged with three separate felonies, any one of which, if

proven, would have provided an aggravating factor to make him

eligible for the death penalty. “This is not, therefore, a situation in which the indictment either failed to specify aggravating factors or

defendant received no pretrial notice.” Davis, 95 Ill. 2d at 29-30.

	We recognized in Wagener that “Apprendi contains isolated statements which on their face might appear to support the

conclusion that the jury must find beyond a reasonable doubt each

and every fact which might have any real-world impact on the

length of time the defendant might spend in prison.” Wagener, 196 Ill. 2d at 286. Nothing in Apprendi, however, causes us to reconsider our holdings in Brownell and its progeny. Aggravating factors are not elements of the offense of murder. They are

sentencing factors. When the State is considering seeking the death

penalty, the defendant must be put on notice of this possibility

either by the inclusion of specific aggravating factors in the

indictment or some other form of pretrial notice, so that he may

adequately prepare his defense. Davis, 95 Ill. 2d at 29-30. If such notice is provided, the defendant can show no prejudice and the

indictment is a sufficient basis upon which to predicate the death

penalty. Davis, 95 Ill. 2d at 30.

	Defendant’s final arguments are that the Illinois death penalty

statute is unconstitutional because it places a burden of proof on

defendants to show that mitigating evidence outweighs aggravating

evidence; allows sentencers to weigh a vague aggravating factor,

namely, “any other reason” beyond the statutory factors why a

defendant should be sentenced to death (see 720 ILCS 5/9–1(c),

(e) (West 1994)); and fails to sufficiently minimize the risk of

arbitrarily imposed death sentences. This court has repeatedly

addressed these claims; indeed, we did so in defendant’s first

appeal (Davis, 185 Ill. 2d at 351-52) . He offered no reason then, and offers no reason now, why we should reconsider our prior

decisions. Therefore, we again reject these claims.

CONCLUSION

	For the foregoing reasons, we affirm the judgment of the

circuit court. We direct the clerk of this court to enter an order

setting Tuesday, May 13, 2002, as the date on which the sentence

of death entered by the circuit court of Henry County shall be

carried out. Petitioner shall be executed in the manner provided by law. 725 ILCS 5/119–5 (West 2000). 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 petitioner is now confined.

Affirmed.

	CHIEF JUSTICE HARRISON, dissenting:

	When this matter was last before the court, I did not take issue

with the validity of Davis’ convictions. People v. Davis, 185 Ill. 2d 317, 352 (1998) (Harrison, C.J., concurring in part and dissenting

in part). My view has now changed. During the pendency of Davis’

appeal, our court adopted a comprehensive set of new rules

governing the conduct of cases in which the State is seeking the

death penalty. For the reasons set forth in my dissenting opinion in People v. Hickey, No. 87286, slip op. at 35 (September 27, 2001) (Harrison, C.J., dissenting), the procedures contained in those rules

are indispensable for achieving an accurate determination of

innocence or guilt and are applicable to all capital cases now

coming before us. Because Davis was tried, convicted and

sentenced without the benefit of the new rules, his convictions and

death sentence should be vacated, and the cause should be

remanded to the circuit court for a new trial.

	Even if Davis were not entitled to the benefit of the new rules,

his sentence of death could not stand. As I wrote when this matter

was last before us, and 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 is void and unenforceable

because it 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). Absent the new rules, there is no basis for altering that

conclusion. At a minimum, Davis’ sentence of death should

therefore be vacated, and he should be sentenced to a term of

imprisonment. 720 ILCS 5/9–1(j) (West 1994).

	JUSTICE KILBRIDE, also dissenting:

	For the reasons set forth in my dissents in People v. Hickey, No. 87286, slip op. at 39 (September 27, 2001) (Kilbride, J.,

dissenting), and People v. Simpson, No. 85084, slip op. at 35 (September 27, 2001) (Kilbride, J., dissenting), I believe this cause

should be remanded for a new trial conducted in compliance with

the new rules governing capital cases. As I stated in my dissents, 

the procedures in capital cases prior to this court’s adoption of the

new rules were inherently unreliable and did not sufficiently protect

a defendant’s constitutional rights. For this reason, I believe that

the new rules should be applied retroactively. See People v. Caballero, 179 Ill. 2d 205, 220-21 (1997). Therefore,  I  respectfully dissent.