Docket No. 87134–Agenda 4–March 2001.

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

								SANANTONE MOSS, Appellant.

Opinion filed October 18, 2001.

	JUSTICE GARMAN delivered the opinion of the court:

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

defendant was convicted on two counts of first degree murder for

the deaths of his ex-girlfriend, Emma Renee Jones (Renee), and her

11-year-old daughter, Diandra Jones. The same jury found

defendant eligible for the death penalty and found no mitigating

factors sufficient to preclude its imposition. The circuit court

sentenced defendant to death. Defendant appeals his convictions

and death sentence directly to this court. 134 Ill. 2d R. 603. For the

reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

	The murders of Diandra and Renee occurred in November

1991, while defendant was incarcerated and awaiting trial on

charges that he sexually assaulted Diandra. Subsequent to the

murders, the State proceeded to trial on the alleged sexual assault.

Defendant was convicted of aggravated criminal sexual assault and

sentenced to 60 years’ imprisonment. In connection with the

murders, defendant was initially charged with four counts of first

degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9–1(a)(1),

(a)(2)), two counts of conspiracy to commit first degree murder

(Ill. Rev. Stat. 1991, ch. 38, par. 8–2(a)), two counts of solicitation

of murder (Ill. Rev. Stat. 1991, ch. 38, par. 8–1.1(a)), and one

count of intimidation (Ill. Rev. Stat. 1991, ch. 38, pars. 12–6(a)(1),

(a)(3)). The State nol-prossed all charges except those for first

degree murder. Defendant’s mother, Sandra Major, his aunt,

Danita Best, and his sister, Kerrie Major, were also charged with

the murders. Sandra died of natural causes while awaiting trial.

Danita pled guilty to first degree murder and agreed to testify

against defendant in exchange for a sentence of natural life. Kerrie

was found guilty after a bench trial and received a sentence of

natural life.

	At defendant’s murder trial, his sister, Orvette Davis, testified

that defendant telephoned her collect several times while he was

incarcerated during the fall of 1991. In a September 1991

conversation, defendant asked her to “get rid of” Diandra and

Renee because he did not want them to testify at his upcoming

sexual assault trial. He did not want to “get the boot,” meaning the

electric chair. Defendant made the same request in October 1991,

which Orvette understood as a request to kill Diandra and Renee.

Orvette refused to help her brother. She told Danita Best about

defendant’s first request.

	 Danita Best testified that she was also charged with the

murders of Diandra and Renee. She pleaded guilty and agreed to

testify against defendant in exchange for a sentence of natural life.

Danita had approximately 15 telephone conversations with

defendant from August to November 1991. Danita accepted

defendant’s collect phone calls in Sandra Major’s apartment, where

Danita lived at the time. During their first conversation in August

1991, defendant told Danita that he wanted her to help Sandra “get

rid of” Diandra and Renee so they could not testify against him.

Danita understood this to mean that defendant wanted them killed.

She told defendant that she could not help him because she was on

parole after a conviction for voluntary manslaughter and theft.

Defendant threatened that if she did not, the same thing that had

happened to one of his girlfriends would happen to her. Danita

thought he was referring to a woman named Cora whom defendant

had beaten on the head with a hammer. Danita believed that she

needed to do as she was told or something would happen to her.

In the past, defendant had attempted to throw her out of a ninth-

floor window. However, she testified that she did not decide to

participate in the murders until the day they occurred. Defendant

reiterated during their remaining conversations that Danita had to

help Sandra get rid of Diandra and Renee because of the upcoming

trial. Danita believed that defendant’s requests were serious.

	Danita further testified that Diandra and Renee lived in an

apartment below Sandra’s. On November 22, 1991, the date of the

murders, Sandra told Danita to get cocaine from her room, mix it

with rat poison, and go to Renee’s apartment and let her smoke the

mixture. When Renee was “knocked out,” they were going to kill her. Danita mixed the cocaine and poison; she then went to the

store at Sandra’s request to buy cigarettes, gin, and wine. Danita

brought these items to Renee’s apartment. Renee and her children,

13-year-old Matthew, 11-year-old Diandra, and 2-year-old Troy,

were in the apartment. Later in the evening, Matthew left to go to

a friend’s house. Renee attempted to smoke the cocaine but it

would not burn. Danita returned to her apartment where Sandra

gave her more cocaine that was not laced with rat poison. Back in

Renee’s apartment, Danita and Renee began drinking and smoking

the cocaine. In time, Sandra and Kerrie Major joined them.

	When the cocaine ran out, Kerrie and Renee left the apartment

to buy more. Once they left, at Sandra’s instruction, Danita

retrieved a knife from the kitchen, went to the couch where

Diandra was sleeping, and stabbed her in the chest, neck, and upper

face several times until she was dead. Sandra stood over Danita

and told her to make sure that Diandra was dead. When Renee and

Kerrie returned, Renee did not realize that Diandra was dead

because her body had been covered with a blanket to make it

appear as though she was still sleeping. Shortly thereafter, Sandra

gestured to Danita that it was time to kill Renee. Sandra and Kerrie

wrapped a cord from an iron around Renee’s neck and began

choking her. Danita started stabbing Renee in the upper part of her

chest, and in her throat and face. Danita stated that she stabbed

Renee “[t]hirty, forty, a lot of times.” Renee pleaded with Sandra

that she would not testify, but Sandra told her it was too late.

Kerrie then broke a wine bottle over Renee’s face and began

stabbing her with it and with a screwdriver.

	According to Danita, although Renee’s youngest son, Troy,

was in the apartment at the time of the murders, his life was spared

because Sandra thought he was defendant’s son and her grandson.

After Renee was dead, Sandra told Kerrie and Danita to gather up

the bottles, glass, and sheets. Sandra left the apartment and

returned shortly with her husband, James Patterson. At some point,

defendant’s sister Cecelia joined them. Sandra told Cecelia to take

the glass and knives to her apartment. The bodies were loaded into

Patterson’s car; then Sandra, Patterson, Danita, Kerrie, and Cecelia

drove to an empty lot and discarded the bodies. They left Troy next to a garbage can in an alley near a hospital. On their way home,

they stopped to buy gin and cigarettes.

	Upon returning to her apartment, Sandra instructed her

daughter Rosaline to take their clothes to the laundromat. The day

after the murders, Sandra told Danita to stay at Patterson’s house

for a while because Matthew could place her at the crime scene on

the day of the murders. Danita complied. About one week later,

Danita flagged down a police officer on the street and told him that

she had witnessed a murder. In her testimony, Danita

acknowledged that she first lied to the police about her

involvement in the murders but stated that she eventually

confessed.

	On cross-examination, Danita admitted that she made

numerous false statements to the police regarding the events of

November 22, 1991. In several statements, Danita told the police

that she did not take part in the murders and fabricated several

persons that were involved. Later, in a written statement, Danita

admitted that she was involved in the crime but minimized her level

of participation. Ultimately, she acknowledged to the police the

extent of her involvement and implicated defendant for the first

time in a court-reported statement. The defense attorney further

elicited that Danita had been smoking cocaine for three days prior

to the murders and that she believed her life depended on whether

her testimony made “the prosecutors happy.”

	Eliza Warner, Renee’s mother, testified that on the morning of

November 23, 1991, she tried to telephone her daughter. When no

one answered, she went to her daughter’s apartment. She entered

the apartment with her key and noticed that all the windows were

open and the television was on but no one was home. In the back

bedroom, she discovered blood on the floor, the walls, draperies,

and clothing. She also found a bloody screwdriver. Eliza left the

apartment and went to a neighbor’s apartment to call the police.

	Matthew Warner testified that on the evening of November

22, 1991, he left his mother’s apartment around 10 p.m. to spend

the night at a friend’s house. Danita Best had been at the apartment

on that day. The following morning, Matthew had been expecting

a phone call from his mother to let him know when to return home. When she did not call, Matthew went home and learned that his

mother and sister were missing.

	Daniel Pierce testified that on the morning of November 23,

1991, he heard a car stop abruptly by the window of his apartment.

The car door opened and he heard some rumbling near a garbage

can outside the window. The car then sped away. Pierce heard

whimpering and crying outside the window. He went outside and

found a baby boy later identified as Troy Jones.

	Detective Guy Habiak testified that on the morning after the

murders, he was called to Renee’s apartment to investigate a

missing persons incident. Upon entering the apartment, he

observed a large amount of blood on the couch, a trail of blood

leading to a bedroom, and blood spattering on the walls, drapes,

and mattress covers. He also noticed a broken bottle and a bloody

screwdriver. The following day, he was called to a location where

two bodies were found. The bodies were later identified as Renee

and Diandra. Habiak also learned during his investigation that a

child was discovered in an alley the day after the murder.

	Habiak further testified that he personally interviewed Danita

three times. Danita gave several statements to investigators,

including a handwritten statement. She later admitted that parts of

her statements were untrue. Danita gave a court-reported

statement on December 6, 1991. Subsequent to this statement,

Danita was charged with two counts of first degree murder.

	Dr. Edmond Donoghue testified that he performed an autopsy

on Diandra and Renee. Donoghue noted that there were over 74

evidences of injury on Renee’s body, including 29 stab wounds to

the face and 10 stab wounds to the chest that were deep and

entered body cavities or involved vital organs. Diandra’s body

contained 22 evidences of injury.

	The State entered into evidence the telephone records of

Orvette Davis and Sandra Major. Both records contained several

collect telephone calls from the Cook County jail from August to

November 1991.

	The only evidence presented by the defense was the autopsy

protocol for the body of Fred Herndon, Jr., who was killed by Danita in 1996. The report showed that the body had suffered 30

stab wounds.

	The jury found defendant guilty of the first degree murders of

Diandra and Renee Jones. At the first stage of defendant’s

sentencing hearing, the jury considered the evidence presented at

trial. In addition, the State presented evidence that defendant’s date

of birth was August 10, 1966, and Diandra’s date of birth was

February 21, 1980. The jury returned three separate eligibility

verdicts. The jury found defendant eligible for the death penalty

based on the statutory aggravating factors of multiple murder,

brutal and heinous murder of a child under 12, and murder to

prevent an individual from testifying in a criminal prosecution. Ill.

Rev. Stat. 1989, ch. 38, pars. 9–1(b)(3), (b)(7), (b)(8).

	At the second stage of sentencing, the State presented

evidence of defendant’s criminal history. This included evidence

that defendant had been adjudicated delinquent for the offense of

robbery in 1982 and was sentenced to the Department of

Corrections. In 1985, defendant was convicted of battery and

received supervision. In August 1985, defendant was arrested for

aggravated arson but was released. In January 1986, he was again

convicted of battery and served two days in the Cook County

Department of Corrections. Additionally, he was arrested in May

1986 for threatening to kill his girlfriend, Magnolia Williams, and

threatening to set her apartment on fire.

	The State presented the testimony of Alvina Anderson. On

April 30, 1987, while outside her house, defendant came up to

Anderson, put a knife to her back, and told her that if she moved

he would kill her. Defendant took Anderson up the street and in

between two buildings. There he beat and raped her. Defendant

threatened that if she told anyone, he would kill her and her

mother, father, and sister. He then raped Anderson again. She was

15 at the time. After he was finished, defendant robbed her of

$1.50. Defendant plead guilty to aggravated criminal sexual assault

and armed robbery. He was sentenced to six years’ imprisonment.

	Magnolia Williams was unavailable to testify at defendant’s

sentencing hearing. The State, however, read into the record her

testimony from defendant’s 1992 aggravated criminal sexual

assault sentencing hearing. There, Williams testified that she had a relationship with defendant for eight years. In 1987, after defendant

learned that Williams wanted to end the relationship, he butted her

in the face with his head, took a sharpened screwdriver, and

stabbed her in the arm three times and once in the chest. Williams

further testified that, during their relationship, defendant “brutally

beat” her. She remained in the relationship because there “was no

way out.” Defendant was convicted of aggravated battery and was

sentenced to five years’ imprisonment to be served consecutively

to the six-year sentence already imposed for the aggravated

criminal sexual assault and armed robbery of Alvina Anderson.

	The State presented further evidence that, while defendant was

incarcerated from 1988 to 1990, he received 25 disciplinary tickets.

These included tickets for insolence, intimidation, and threats.

During his incarceration from 1992 to 1994, defendant received 19

disciplinary tickets, including tickets for assault. Defendant was

charged with bribery and extortion while in prison. In addition,

during a routine search of his cell, officers found a homemade

knife. As a result, defendant was charged with possession of

dangerous contraband.

	 Rosaline Major, defendant’s sister, testified that when she was

seven or eight, defendant began fondling her and repeatedly forced

her to have sex. Defendant threatened to hurt her if she told

anyone. Rosaline further testified that defendant was physically

abusive to her. The sexual abuse ended when Rosaline was 14 after

she told her mother who, in response, put defendant out of the

house “for a couple of hours.”

	Orvette Davis testified that when she was 12 years old,

defendant held a fork to her neck, threatened to kill her, and then

raped her. At the time of the rape, her sisters were in the

apartment. Orvette did not tell her sisters about the rape because

“they already knew what was happening.” Defendant raped her

again when she was 14. Orvette told her mother about the incident,

but Sandra said nothing. Later, when Orvette asked her mother

why she did not do anything, her mother responded that

“[defendant] just got a little problem.”

	Cecelia Major testified that, during her childhood, defendant

repeatedly raped her at gunpoint or knifepoint and threatened to

kill her if she told anyone. She eventually told her mother about the rape, but her mother did nothing. Cecelia further testified that she

had witnessed defendant hit Magnolia Williams in the head with a

bed rail and, on another occasion, stab Williams with an ice pick.

Cecelia also witnessed defendant beat and push a man named

Booker Singleton through a ninth-story window and threaten to

drop him.

	In conclusion, the State entered into evidence a certified copy

of defendant’s conviction and sentence for the aggravated criminal

sexual assault of Diandra Jones, and presented the victim impact

statements of Doyle Warner, Renee’s brother, Eliza Warner, and

Matthew Warner.

	In mitigation, defendant presented the testimony of Sarah

Hodges, the sister of Magnolia Williams. She stated that defendant

had voluntarily agreed to terminate his parental rights to his two

children.

	Dr. Daniel Hardy, a psychiatrist, testified for the defense that

he had diagnosed defendant with schizo-affective disorder of the

bipolar type that is aggravated or caused by a history of brain

injury. This disorder is comprised of paranoia and bipolar mood

disorder. Tests revealed that defendant had frontal and temporal

lobe abnormalities in his brain. The frontal and temporal lobes

govern judgment and impulse control respectively. Hardy opined

that defendant has suffered for many years from a significant

condition that has resulted in extreme emotional and mental

disturbance.

	Dr. Jonathan Pincus was qualified as an expert in neurology.

Pincus interviewed defendant and reviewed various records and

reports regarding defendant’s condition. He testified that defendant

was psychotic and exhibited signs of paranoia and delusional

behavior. A physical examination revealed that defendant had

frontal lobe abnormalities.

	The jury found no mitigating factors sufficient to preclude the

imposition of the death penalty, and the circuit court sentenced

defendant to death based on his first degree murder convictions.

Defendant’s death sentence was stayed by this court pending direct

review. 134 Ill. 2d R. 609(a).

ANALYSIS

I. Trial

	Prior to defendant’s trial, the State filed a motion “to allow

proof of other crimes evidence.” This motion sought to introduce

certain evidence of the December 2, 1990, sexual assault of

Diandra to establish defendant’s motive in ordering his family to

kill Diandra and Renee. Over defendant’s objection, the circuit

court granted the motion. Subsequently, defendant filed a motion in limine to bar as hearsay out-of-court statements made by Diandra regarding the alleged sexual assault. The State had

indicated that it would introduce Diandra’s statements through the

testimony of four witnesses. The circuit court rejected defendant’s

motion.

	The State introduced the following evidence regarding the

alleged sexual assault at defendant’s murder trial.

	Matthew Warner testified that on the afternoon of December

2, 1990, he was at home baby-sitting his younger brother and sister

while his mother was at a neighbor’s apartment. Around 12 p.m.,

defendant came by the apartment to sleep off a hangover. Later on,

defendant asked Matthew to do some push-ups and told Matthew

to change his clothes so he could do the exercises better. Matthew

went to his bedroom to change; when he returned to the living

room, he noticed that Diandra was “abnormally quiet” and did not

want to be near defendant. Diandra asked defendant to leave

several times. Defendant replied that he would leave if Diandra

would get his jacket and cigarette lighter from the back room.

Diandra tried to find the items without success. Defendant told her

to try again, and this time “really look.” When Diandra was again

searching for the items, defendant announced that he would get his

own things. About 20 minutes later, Diandra came running from

the back of the apartment with defendant chasing her. Matthew

testified that Diandra was hysterical and scared; she was screaming

for defendant to leave her alone. Diandra ran to the front door but

defendant put one foot against the bottom of the door and one

hand against the door. Diandra started screaming for her mother.

At some point, her mother forced her way into the apartment and

Diandra exclaimed that defendant had tried to have sex with her.

When her mother asked her to repeat what she had said, Diandra stated: “he tried to have sex with me.” Renee then told defendant

to leave and subsequently called the police.

	Matthew further testified that after defendant left, Diandra

went to the bathroom and called out for her mother. Matthew later

learned that Diandra had shown her mother some “white stuff” that

she had found.

	Officer Steve Martin testified that he responded to a criminal

sexual assault call on December 2, 1990. He arrived at Renee’s

apartment and spoke directly with Diandra. She informed him that

defendant took her to a back room of the apartment, removed her

clothing, and threw her on a bed. Defendant then removed his

clothing and had sexual intercourse with her. Diandra told Martin

that she broke free and tried to get out of the apartment. She

struggled with defendant at the front door and, eventually, her

mother pushed open the door. Diandra immediately told her

mother about what had happened. Martin testified that Diandra

was shaking and scared when she spoke with him.

	The physician who examined Diandra after the sexual assault,

Dr. Kinga Jokay, testified that Diandra informed her that defendant

had coaxed her into a room, undressed her below the waist,

undressed himself, and attempted to have sex with her. Diandra

stated that defendant had not placed his penis into her vagina, but

he had rubbed himself on her and ejaculated. Due to this

information, Jokay did not conduct an internal examination. An

external examination revealed a dried white secretion, consistent

with sperm, on the inner part of Diandra’s thighs and external

genitalia. Jokay’s medical opinion was that Diandra had been

sexually assaulted.

	Finally, the State presented the testimony of Lieutenant

Edward Griffin, who, along with another detective, interviewed

Diandra at the hospital. Diandra told Griffin that, as soon as her

mother left for the neighbor’s apartment, defendant began to ask

her questions about sex. Defendant asked her if she had “whiskers”

on her vagina. He also asked if he was making her uncomfortable

and if she wanted him to leave. Diandra answered yes. Defendant

said he would leave if Diandra brought him his jacket and cigarette

lighter from the rear bedroom. She did this and defendant followed

her to the bedroom, where he forced her onto the bed, removed her clothes, and had intercourse with her. When he was finished,

Diandra tried to leave the apartment but defendant stopped her.

While she was struggling with defendant, Diandra’s mother pushed

open the door of the apartment. While Griffin was interviewing

Diandra, she appeared very nervous, frightened, and apprehensive.

A. Evidence of Another Crime

	We begin by addressing defendant’s contention that the circuit

court erred by admitting evidence of another crime. Evidence of

other crimes is inadmissible if it is relevant merely to show a

defendant’s propensity to commit crime. People v. Kliner, 185 Ill. 2d 81, 146 (1998). However, this evidence may be properly

admitted when it is relevant to prove a defendant’s motive to

commit the crime for which he is being tried. People v. Enis, 163 Ill. 2d 367, 388 (1994). The circuit judge must weigh the probative

value of the evidence against its prejudicial effect, and may exclude

the evidence if its prejudicial effect substantially outweighs its

probative value. People v. Illgen, 145 Ill. 2d 353, 365 (1991). A circuit court’s ruling on the admissibility of other-crimes evidence

will not be disturbed absent an abuse of discretion. Kliner, 185 Ill. 2d at 146.

	Defendant acknowledges that the testimony pertaining to the

alleged sexual assault was admissible to establish his motive;

however, he maintains that the circuit court failed to weigh the

probative value of the evidence against its prejudicial effect. He

further argues that the evidence should have been limited. Motive

could have been established simply by informing the jury of his

conviction for aggravated criminal sexual assault or that he was

awaiting trial on the sexual assault at the time of the murders.

Alternatively, the court should have limited the number of

witnesses on this issue as each witness established the same facts.

According to defendant, this testimony prejudiced him because it

focused the jury’s attention on the alleged sexual assault and away

from the State’s evidence on his involvement in the murders. This

prejudice was compounded by the use of the word “rape”

throughout the trial to refer to the sexual assault.

	The State responds that its theory of the case was that

defendant was awaiting trial on the sexual assault charges at the

time of the murder. Defendant feared that the evidence against him

was sufficient to convict; therefore, he solicited his family to kill

the principal witnesses against him. The State argues that the four

witnesses demonstrated the strength of the State’s sexual assault

case and the fact that much of its case depended upon Diandra.

The witnesses established the consistency of Diandra’s story, her

credibility as a witness, and, as such, defendant’s motive to prevent

her from testifying.

	As stated, the admissibility of other-crimes evidence is within

the discretion of the circuit court. Contrary to defendant’s

argument, the circuit court did weigh the probative value of this evidence against its prejudicial effect. In ruling on the State’s

pretrial motion to allow proof of other crimes, the court explicitly

stated that the evidence would not unduly prejudice defendant.

Both parties acknowledge that this evidence was relevant and

probative of defendant’s motive. Although motive could have been

established in the way suggested by defendant, the method chosen

by the State and approved by the circuit court was within the

court’s discretion. We agree that the testimony established the

consistency of Diandra’s description of the events of the sexual

assault, and, with the exception of Matthew Warner, the testimony

was primarily limited to this description. Also, the prejudicial effect

of the evidence was minimized when the trial court properly

instructed the jury as to the limited purpose of other-crimes

evidence. See Illinois Pattern Jury Instructions, Criminal, No. 3.14

(3d ed. 1992). We find that the probative value of the evidence was

not substantially outweighed by its prejudice. The circuit court did

not abuse its discretion in admitting this evidence under the

circumstances of this case.

	Defendant further contends that the prejudice of the testimony

was compounded by the use of the word “rape” to refer to the

alleged sexual assault. The circuit court originally sustained a

defense objection to the use of the word. The court apparently

changed its decision after the State argued the word was admissible

under section 115–11.1 of the Code of Criminal Procedure of 1963

(Code). This section provides that the use of the word “rape” “by any victim, witness, State’s Attorney, defense attorney, judge or

other court personnel in any prosecutions of offenses in Sections

12–13 through 12–16 of the Criminal Code of 1961, as amended,

is not inadmissible.” (Emphasis added.) 725 ILCS 5/115–11.1 (West 1998). Defendant is correct that first degree murder is not

one of the crimes listed in section 115–11.1; however, this fact is

not dispositive. Section 115–11.1, by specifically allowing the use

of the word “rape” in certain prosecutions, does not thereby limit

its use in other prosecutions. We conclude that the use of this word

did not result in prejudice to defendant.

B. Admission of Diandra’s Statements

	With respect to the testimony regarding the alleged sexual

assault, defendant also argues that the circuit court erred by

admitting, through this testimony, several out-of-court statements

made by Diandra. In his motion in limine, defendant argued that the witnesses’ statements were hearsay and were not admissible

under any exception to the hearsay rule. The circuit court rejected

defendant’s argument and allowed the testimony pursuant to

section 115–10 of the Code, which provides in relevant part:

			“(a) In a prosecution for a physical or sexual act

perpetrated upon or against a child under the age of 13,

*** including but not limited to prosecutions for violations

of Sections 12–13 through 12–16 of the Criminal Code of

1961 and [various other sections] of the Criminal Code of

1961, the following evidence shall be admitted as an

exception to the hearsay rule:

				***

				(2) testimony of an out of court statement made by

such child *** describing any complaint of such act or

matter or detail pertaining to any act which is an

element of an offense which is the subject of a

prosecution for a sexual or physical act perpetrated

upon or against a child ***.” 725 ILCS 5/115–10(a)(2)

(West 1996).

	Here, defendant argues that the circuit court erroneously

allowed this testimony pursuant to section 115–10 of the Code. Defendant maintains that section 115–10 provides an exception to

the hearsay rule only in sexual assault cases; therefore, this

testimony was improperly admitted at his murder trial. The State

disagrees, arguing that the testimony was admissible under the

section 115–10 exception and certain statements were admissible

under traditional or other statutory hearsay exceptions. We need

not resolve this question because we conclude that the testimony

was not hearsay.

	Hearsay is an out-of-court statement offered to prove the truth

of the matter asserted. People v. Heard, 187 Ill. 2d 36, 65 (1999). When an out-of-court statement is offered for some purpose other

than to establish the truth of the matter asserted, the statement is

not hearsay and is admissible. Kliner, 185 Ill. 2d at 150. As stated, the State’s theory was that defendant ordered members of his

family to murder the victims to prevent them from testifying at his

upcoming sexual assault trial. Both Danita Best and Orvette Davis

testified that defendant called them collect while he was

incarcerated and either asked or told them to “get rid of” Diandra

and Renee so they could not testify. As such, Diandra’s out-of-

court statements concerning the alleged sexual assault were not

offered to prove that the sexual assault actually occurred; they

were offered to prove defendant’s motive. Accordingly, since

Diandra’s out-of-court statements were not offered to prove the

truth of the matter asserted, defendant’s argument that the

statements were improperly admitted as hearsay must be rejected.

See United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993) (testimony of out-of-court statements indicating that defendant

stole from murder victims was not hearsay because it was offered

to prove defendant’s motive for hiring a hitman and not to prove

the matters asserted in the statements); Heard, 187 Ill. 2d at 66 (testimony offered to prove defendant’s motive to commit murder

was not offered for the truth of the matter asserted). In addition,

we reiterate that the probative value of this testimony was not

substantially outweighed by its prejudicial effect.

C. Sufficiency of the Evidence

	Defendant next contends that the evidence was insufficient to

establish his accountability for the murders of Diandra and Renee. Defendant was convicted of first degree murder pursuant to section

5–2 of the Criminal Code of 1961 (herein Code), which provides,

in pertinent part, that “[a] person is legally accountable for the

conduct of another when *** [e]ither before or during the

commission of an offense, and with the intent to promote or

facilitate such commission, he solicits, aids, abets, agrees or

attempts to aid, such other person in the planning or commission

of the offense.” Ill. Rev. Stat. 1991, ch. 38, par. 5–2(c). The State

maintains that defendant’s act of solicitation of murder made him

legally accountable for the completed murders. According to

section 8–1.1 of the Code, a person commits solicitation of murder

“when, with the intent that the offense of first degree murder be

committed, he commands, encourages or requests another to

commit that offense.” Ill. Rev. Stat. 1991, ch. 38, par. 8–1.1(a).

Defendant points out that he was initially charged with solicitation

of murder but that charge was nol-prossed prior to trial.

	Defendant’s argument can be divided into two parts. First, he

maintains that section 5–2(c) of the Code requires more than the

unilateral act of requesting, commanding, or encouraging another

to commit a crime; it requires evidence of an agreement or an act

on the part of a defendant that evidences a common plan or

scheme. Second, he argues that the State failed to produce

evidence of an agreement or a common scheme or plan;

consequently, the State failed to prove that defendant was

accountable for the murders. We understand defendant’s first

argument to be that solicitation within the meaning of section

5–2(c) of the Code concerning accountability differs from the type

of solicitation found in section 8–1.1(a) of the Code concerning the

inchoate offense of solicitation of murder. Thus, defendant is

arguing that the jury could not hold him legally accountable for the

murders based on the inchoate offense of solicitation of murder.

Because this issue raises a legal question, our review is de novo. Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill. 2d 214, 218 (1998).

	In support of his argument, defendant relies on certain

language found in People v. Hairston, 46 Ill. 2d 348 (1970). In Hairston, the accused was charged with murder, attempted murder, and solicitation to commit murder. The State sought to convict the defendant of murder and attempted murder on an

accountability theory based solely on the allegation that the

defendant solicited another to kill the victim. Hairston, 46 Ill. 2d at 355-56. The defendant was acquitted of the murder and

attempted murder charges, but he was found guilty of solicitation

to commit murder. Hairston, 46 Ill. 2d at 356. On appeal to this court, the defendant maintained that, because the proof necessary

to convict him of the principal crimes was identical with the proof

necessary to convict him of solicitation, the verdicts were

inconsistent and he was placed in double jeopardy. Hairston, 46 Ill. 2d at 357. This court rejected the defendant’s argument.

	In addressing the defendant’s double jeopardy argument, we

held that because the defendant was tried for the charges of

murder, attempted murder, and solicitation of murder in a single

prosecution, the defendant was not twice placed in jeopardy.

Hairston, 46 Ill. 2d at 357. Following this conclusion, we explained that the proof necessary to obtain a conviction for solicitation and

the proof necessary to obtain convictions for the principal crimes

were not identical:

		“The crimes charged, viz. solicitation on the one hand and murder and attempted murder on the other hand, were

separate and distinct crimes predicated upon different

statutes, even though both arose out of the same act of

defendant. But whereas proof that defendant had

commanded or requested the principal crimes with the

requisite intent was all that was necessary to establish his

guilt of the crimes of solicitation[,] to establish his guilt of

the principal crimes it was necessary to prove the

additional fact that the principal crimes had in fact been

committed.” Hairston, 46 Ill. 2d at 359.

	In support of his argument, defendant relies on language

immediately following the above passage. This language reads:

		“While the use of the word ‘solicit’ in the accountability

statute would appear to be grammatically out of harmony

with its purport, we are constrained to remark that section

5–2 (accountability) and section 8–1 (solicitation) relate to

different conduct and as a consequence entail different

elements of proof. Section 5–2, in its full context, contemplates an accessorial act which ‘promotes’ or

‘facilitates’ another person in ‘the planning or commission’

of an offense; section 8–1, on the other hand, encompasses

only conduct whereby an accused ‘commands, encourages

or requests another’ to commit an offense.” Hairston, 46 Ill. 2d at 359.

	Defendant urges this court to adopt the distinction drawn in

Hairston and hold that accountability requires more than the unilateral act of commanding, encouraging, or requesting another

to commit a crime. Defendant maintains that a review of cases in

which the accused was found accountable by means of solicitation

reveal that the accused must take a “step beyond” the solicitation.

See, e.g., People v. Smith, 177 Ill. 2d 53, 63-64 (1997) (defendant solicited the murder, participated in the acquisition of the murder

weapon, and provided her car to the principals); People v. Smith, 278 Ill. App. 3d 343, 347 (1996) (incarcerated defendant solicited

a murder and lured the victim to the location of the attempted

murder by instructing the victim to go there to pick up money);

People v. Martinez, 264 Ill. App. 3d 807, 815-16 (1994) (incarcerated defendant solicited a murder and provided a

telephone number to the principal in the event the principal could

not locate a gun).

	Defendant’s argument is unpersuasive. Nothing in the cited

cases suggests that an act of solicitation alone, as defined in section

8–1.1, is insufficient to establish accountability. Further, we conclude that the explanation in Hairston is dictum. See People v. Crews, 191 Ill. App. 3d 228, 233 (1989). Even so, in that dictum, this court made it clear that the only additional fact necessary to

establish accountability beyond the act of solicitation is the fact that

the principal crimes had been committed. Hairston, 46 Ill. 2d at 359. The plain language of section 5–2(c) clearly states that a

person may be held legally accountable for the conduct of another

if he “solicits, aids, abets, agrees or attempts to aid” another in the planning or commission of the offense. (Emphasis added.) (Ill. Rev.

Stat. 1991, ch. 38, par. 5–2(c)). Legislative intent is best

determined by examining the plain and ordinary meaning of the

statutory language, and, if that language is clear, we apply the

statute without further aids of statutory construction. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). We reject defendant’s first contention and hold that a person may be held legally accountable

for first degree murder if he, either before or during the

commission of an offense, and with the requisite intent, commands,

encourages, or requests another to commit the offense of first

degree murder. See also 2 W. LaFave & A. Scott, Substantive

Criminal Law §6.1, at 14 (1986) (“it is generally true that if A

solicits B to commit a crime and B then proceeds to commit the

crime in response to A’s solicitation, then A is liable as an

accomplice for the crime which B has committed”).

	We must now address the second part of defendant’s

argument–that the evidence was insufficient to hold him legally

accountable for the murders. When a defendant challenges the

sufficiency of the evidence supporting his conviction, a reviewing

court must determine whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. People v. Young, 128 Ill. 2d 1, 49 (1989), citing Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is the function of the jury to assess the

credibility of witnesses, weigh the evidence presented, resolve

conflicts in the evidence, and draw reasonable inferences from the

evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000). The jury’s determination is entitled to great deference and, when the

sufficiency of the evidence is challenged, this court will not retry

the defendant. People v. Boclair, 129 Ill. 2d 458, 474 (1989). We will not reverse a defendant’s conviction unless the evidence is so

improbable or unsatisfactory that it raises a reasonable doubt of

defendant’s guilt. Williams, 193 Ill. 2d at 338.

	After a review of the record in the light most favorable to the

prosecution, we conclude that a rational trier of fact could have

found beyond a reasonable doubt that defendant was accountable

for Diandra’s and Renee’s murders. Evidence presented at trial

indicated that defendant called Orvette Davis and Danita Best

collect several times while he was incarcerated. Telephone records

were introduced to corroborate this testimony. Defendant asked

Orvette on two separate occasions to “get rid of” the victims. He

made the same request of Danita during a number of phone conversations. Danita testified that defendant’s requests were

serious. As a result, Danita, along with Kerrie Major and Sandra

Major, murdered Diandra and Renee. We hold that the evidence

supports the jury’s guilty verdict.

	Defendant further challenges the sufficiency of the evidence on

the grounds that the testimony of Danita Best lacked credibility in

that she was contradicted with four pretrial statements in which she

lied repeatedly; she had a strong motive to lie because she believed

she had to please the prosecution to save her own life; she was a

drug addict; she had previously been convicted of manslaughter;

and because Orvette’s testimony that defendant did not ask Orvette

to participate in the murders after she refused casts doubts on

Danita’s statements that defendant repeatedly solicited her to kill

the victims after her own refusal.

	The jury in this case was fully aware of Danita’s drug use and

prior conviction. The jury was also cognizant of Danita’s plea

agreement with the State where, in exchange for a plea of guilty

and testimony against defendant, the State would seek natural life.

The court fully instructed the jury that the testimony of an

accomplice is subject to suspicion and should be considered with

caution. See Illinois Pattern Jury Instructions, Criminal, No. 3.17

(3d ed. 1992). Further, on cross-examination, defendant elicited

the details of Danita’s prior statements to the police and Danita

admitted that she lied in those statements. Finally, we believe that

Orvette’s testimony corroborates rather than casts doubt on

Danita’s statements as suggested by defendant. Certainly, the jury

had in front of it all this information. It was in the best position to

weigh the evidence and to determine the credibility of Danita Best.

We will not substitute our judgment for that of the jury on

questions involving the credibility of witnesses. Accordingly,

defendant’s contention that the evidence was insufficient to

establish his guilt beyond a reasonable doubt is without merit.

D. Closing Arguments

	Next, defendant claims that the cumulative effect of several

improper statements made by the prosecutor during closing argument deprived him of a fair trial. First, at the outset of his

closing argument, the prosecutor commented:

		“[L]ittle Matthew Warner could not know on December

2nd, of 1990[,] that that was the beginning of the end for

his sister and for his mother. And he could not know in

December of 1990, when the defendant got locked up for

the rape of his sister that no one in the Jones family would

be safe from [defendant]. And he could not know that on

November 22, of 1991, when he left home that night at

about 10 [p.m.] that he would never see his sister and his

mother again.”

	In his rebuttal argument, the prosecutor further commented on

the victims’ family and stated: “Mrs. Warner[,] who no longer has

a daughter or a granddaughter. Matthew and Troy no longer have

a mother and a sister. Now, thank God Troy was so young back

then because he can’t remember what happened that night. Thank

God.”

	Defendant also maintains that the following remark deprived

him of a fair trial:

		“[T]he defendant has had his trial. The defendant doesn’t

have one, he’s got [three] lawyers and he’s got a Judge

who has protected his rights every step of the way. Who

protected [Diandra and Renee’s] rights? How come they

couldn’t get a trial? The defendant and his evil family

violated every one of their rights. And *** every

prosecutor in this courtroom, in this building, in this state,

we can’t tell our reluctant witnesses, don’t worry about it

any more. [objection overruled] He caused that. But I

don’t want you to do it for any prosecutor, ladies and

gentlemen, I don’t want you to do the right thing for any

prosecutor in this country. I want you to do it, ladies and

gentlemen, for [Renee] and Diandra. Ladies and

gentlemen, you are in a unique position right now. You

and only you can give [Renee] and Diandra the only thing

they wanted. A chance to be heard. Your verdicts can be

their testimony. You can speak for them. Today is their

day in Court. Today is their day in Court. Give it to them.

Give them their day in Court. If you don’t speak for [them], no one will. And they will forever be silenced.

Don’t let that happen. You speak for them. And you say

[it] with one word, you say it with guilty.”

	Finally, the prosecutor made the following comment regarding

Diandra’s thwarted day in court:

		“[She] would have woken up and put on her suit, her

mother would have helped her put her little pigtails in her

hair, put the bows on her pigtails [objection overruled]

[a]nd come down to the courthouse and she would have

squared her shoulders, taken a deep breath and walked

into the courtroom of Judge Schreier holding her mother’s

hand. She would have gone up on that witness stand, her

feet barely touching the floor. She would have raised her

right [hand] and [objection overruled] swore to tell the

truth, the whole truth and nothing but the truth. She

would have pointed to that man right there [objection

overruled] [a]nd said that’s the man who raped me and her

mother would have done the same. But because of that

man, he made sure neither she nor her mother would ever

get the chance to do that. He made sure that neither she

nor her mother would ever walk into a Court of law. He

made sure, he made sure that Diandra Jones would never

lace her shoes up again, never square her shoulders and

never ever walk out that door into a Court of law to tell

the truth about what happened on December 2, of 1990.”

	Defendant does not dispute that he failed to object to the first

three of these statements and thereby waived these issues for

review. Nonetheless, he urges this court to review the statements

under the plain error rule. The State, however, argues that

defendant has waived review of all the statements. We agree. To preserve an issue for review, a defendant must raise an objection

at trial and in a written post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). While defendant objected to the last comment

at trial, his written post-trial motion alleged generally that the

prosecutor “made prejudicial[,] inflammatory[,] and erroneous

statements in closing argument designed to arouse the prejudices

and passions of the court.” Defendant’s general allegation of error is insufficient to preserve this issue for review. See People v. Simpson, 172 Ill. 2d 117, 150 (1996).

	The plain error rule serves as an exception to the rule of

waiver. 134 Ill. 2d R. 615(a). Plain error exists only if (1) the

evidence is closely balanced; or (2) the errors are of such

magnitude that defendant was denied a fair and impartial trial and

remedying the error is necessary to preserve the integrity of the

judicial process. People v. Nieves, 192 Ill. 2d 487, 502-03 (2000). Defendant makes no effort to argue that the evidence at his trial

was closely balanced nor does he maintain the alleged errors were

so fundamental that they denied him a fair and impartial trial. This

failure results in waiver. See Nieves, 192 Ill. 2d at 503. Although defendant has twice waived this argument, we conclude that no

plain error resulted from the prosecutor’s comments. As our

discussion of defendant’s sufficiency of the evidence argument

demonstrates, the evidence in this case was not closely balanced.

Further, these comments did not rise to the level whereby

defendant was denied a fair and impartial trial. Accordingly,

defendant’s arguments are without merit.

II. Sentencing

	We now turn to defendant’s assertions of error at the

sentencing proceedings.

A. Prosecutors’ Comments

	Similar to the preceding argument, defendant contends that

certain comments made by the prosecutors during the

aggravation/mitigation stage of sentencing were improper and

inflammatory and denied him a fair sentencing hearing. During his

testimony, Dr. Daniel Hardy attempted to locate a reference in his

notes. The prosecutor commented: “So again you have to search

through your records, you don’t know this, do you, off the top of

your head?” Defendant’s objection was overruled. The following

dialogue, to which defendant did not object, then occurred:

			“Q. Would it be correct, Doctor, the longer it takes you

to look through the records the more money you’re going

to make here today?

			A. The longer I’m on the witness stand, yes.

			Q. Okay. So the answer to that question would be yes?

			THE COURT: He answered it.

* * *

			THE COURT: Move on.”

	Next, after Hardy stated his diagnosis that frontal lobe

abnormality was a factor in defendant’s behavior, the prosecutor

asked: “Are you actually telling us that [defendant’s] criminality is

caused by some boo-boo to the head?” The court admonished the

prosecutor to “stop that.”

	Additionally, in closing arguments, the prosecutor urged the

jury to weigh the evidence in aggravation against a “boo-boo to the

brain.” “[W]e heard about [defendant’s] problems, *** we’ve

heard about his medication, we’ve heard about his brain ad

nauseum from psycho-babble that went on and on and on.” “When

you consider all [the evidence in aggravation] and you weigh it

against those [two] cash for trash doctors ***, you’ll see that there

are no mitigating factors sufficient to preclude imposition of the

death penalty.”

	In rebuttal argument, a different prosecutor stated:

“[Defendant] has the audacity to suggest to you that we, the

People of the State of Illinois[,] are doing the same thing now that

he did behind his jail cell. You know, I don’t care about a criminal

defense lawyer trying to insult me, but don’t let him insult you.

Because he’s suggesting to you that you’re killing him now too.

Shame on him.” The prosecutor went on to say that “[g]iving him

natural life is an American Express Gold Card for this defendant to

assault correctional officers, prison staff, cafeteria workers,

possessing shanks, sharpened to a point to stab anybody who

makes him angry.”

	Again, defendant failed to object to all but the first of these

comments at trial and did not include an objection to any of the

comments in his post-trial motion, thereby waiving review of the

issue. Enoch, 122 Ill. 2d at 186. In his argument, defendant does not acknowledge his waiver, nor does he request this court to

address the issue under the plain error rule. Therefore, we conclude

that defendant has waived any challenge to these remarks. This conclusion should not be interpreted in any way as condoning

improper prosecutorial remarks that have become all too frequent

in criminal trials. The prosecutor’s use of sarcasm to describe Dr.

Hardy’s diagnosis as a “boo-boo to the head” and reference to both

expert witnesses as “cash for trash doctors” is completely

unacceptable. Although a new trial is not always a necessary

sanction for improper remarks of a prosecutor, comments

denigrating defendant’s witnesses must be strongly condemned.

B. Danita Best’s and Kerrie Major’s Sentences

	Defendant also contends that his death sentence is

unconstitutionally disproportionate to the natural life sentences of

his codefendants Danita Best and Kerrie Major. In support,

defendant claims that both Danita and Kerrie are more culpable

than he because they physically stabbed the victims and actively

participated in the cover-up while his role in the murders was

minimal.

	A disparity in the sentences of codefendants does not, by itself,

show a violation of fundamental fairness. To be impermissible, the

disparity must be arbitrary and unreasonable. People v. Caballero, 179 Ill. 2d 205, 216 (1997). In comparing the sentences, this court

considers the nature of the offense, each individual’s relative

involvement, character, background, criminal record, and potential

for rehabilitation. People v. Burt, 168 Ill. 2d 49, 80 (1995).

	Defendant has not established an unconstitutional disparity

with respect to either Danita’s or Kerrie’s sentence. Danita pleaded

guilty and agreed to testify against defendant in exchange for

natural life. A sentence imposed pursuant to a plea of guilty does

not provide a valid basis of comparison to a sentence imposed

subsequent to trial and conviction. Caballero, 179 Ill. 2d at 217. A court may grant dispositional concessions to defendants who

enter a guilty plea when the public’s interest in the effective

administration of justice would thereby be served. People v. Sivels, 60 Ill. 2d 102, 105 (1975). By pleading guilty and testifying against

defendant in exchange for a sentence of natural life, Danita (1)

acknowledged her guilt; (2) made a public trial unnecessary; and

(3) gave cooperation which resulted in the successful prosecution of another offender engaged in equally serious or more serious

criminal conduct. See Sivels, 60 Ill. 2d at 105.

	With respect to Kerrie Major, defendant argues only that his

sentence is unconstitutionally disproportionate because Kerrie is

more culpable for the murders. He does not provide this court with

evidence or argument regarding Kerrie’s character, background,

criminal record, or potential for rehabilitation. While Kerrie did

actively participate in the murders, defendant could not participate

because he was incarcerated at the time the murders took place.

Nevertheless, the murders would not have occurred but for

defendant’s solicitation of them. Additionally, the evidence

presented at defendant’s sentencing hearing indicates that

defendant has a significant criminal record, including convictions

for battery, aggravated battery, aggravated criminal sexual assault,

and armed robbery. The evidence showed that defendant had

repeatedly raped three of his sisters, beat his former girlfriend, and

pushed a man through a ninth-story window. Further, defendant

adjusted poorly to incarceration as evidenced by his possession of

weapons and his receipt of 44 disciplinary tickets while in prison.

Based on this evidence, we reject defendant’s contention that his

death sentence is unconstitutionally disproportionate to the

sentence of natural life imposed on Kerrie Major.

C. Death Penalty Eligibility Based on Accountability

	Defendant next challenges the constitutionality of section

9–1(b)(7) of the Code as applied to him on the basis of

accountability. That section provides for death penalty eligibility if

“the murdered individual was under 12 years of age and the death

resulted from exceptionally brutal or heinous behavior indicative of

wanton cruelty.” Ill. Rev. Stat. 1989, ch. 38, par. 9–1(b)(7).

Defendant argues that sentencing him to death based on the

manner in which other individuals carried out the killing violates

the eighth amendment’s guarantee of individualized consideration

of the defendant’s culpability.

	The jury found defendant eligible for the death penalty under

three separate aggravating factors. “ ‘[W]here a defendant is found

eligible based upon two or more statutory aggravating factors, the fact that one of those factors may later be invalidated will not

generally impair the eligibility finding as long as a separate, valid

aggravating factor supported eligibility.’ ” People v. Jackson, 182 Ill. 2d 30, 64 (1998), quoting People v. Brown, 169 Ill. 2d 132, 165 (1996); see also People v. Cole, 172 Ill. 2d 85, 102-03 (1996). Even if we did invalidate defendant’s eligibility verdict based on the

brutal or heinous murder of a child under 12, defendant would

continue to be eligible for the death penalty based on the multiple-

murder and murder to prevent an individual from testifying in a

criminal prosecution aggravating factors.

D. Constitutionality of Illinois Death Penalty

	Finally, defendant makes four constitutional challenges to the

Illinois death penalty statute. This court has previously considered

and rejected the challenges raised by defendant, including his

arguments that the death penalty statute (1) will inevitably be

applied to innocent persons (see, e.g., People v. McCallister, 193 Ill. 2d 63, 114 (2000); People v. Brown, 185 Ill. 2d 229, 260 (1998); People v. Bull, 185 Ill. 2d 179, 211-20 (1998)); (2) places a burden of proof on defendants that precludes meaningful

consideration of mitigation (see, e.g., Williams, 193 Ill. 2d at 376; Nieves, 192 Ill. 2d at 504; Bull, 185 Ill. 2d at 220; (3) allows the sentencer to weigh the vague aggravating factor of “any other

reason” why a defendant should be sentenced to death (see, e.g., People v. Sims, 192 Ill. 2d 592, 637-38 (2000); People v. Nielson, 187 Ill. 2d 271, 300 (1999); People v. Buss, 187 Ill. 2d 144, 248 (1999)); and (4) does not sufficiently minimize the risk of

arbitrarily or capriciously imposed death sentences (People v. Armstrong, 183 Ill. 2d 130, 162 (1998)). Defendant provides no persuasive reason for our reconsideration of these holdings.

CONCLUSION

	For the foregoing reasons, the judgment of the circuit court is

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

Wednesday, January 30, 2002, as the date on which the sentence

of death, entered by the circuit court of Cook County, shall be

carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119–5 (West 1996). The clerk of this court shall

send a certified copy of the mandate in this case to the Director of

Corrections, the warden of Tamms Correctional Center, and the

warden of the institution where defendant is confined.

Affirmed.

	JUSTICE McMORROW, specially concurring:

	Like Justice Freeman, I believe that the remarks made by the

prosecutors during closing argument at defendant’s sentencing

hearing must be strongly rebuked. Capital sentencing proceedings

impose upon the jury the intellectually and emotionally demanding

task of determining whether or not a defendant is eligible for and

deserving of death, the most severe of all state-sanctioned

punishments. In such a proceeding, where the outcome is literally a

matter of life or death, there can be no place for sarcasm or

improper name-calling. The matter is far too portentous, and the

risk that the jury might be swayed by passion or prejudice is far too

real, to conclude otherwise.

	Given the horrific nature of capital offenses, it is

understandable that a prosecutor’s emotions may run high. But, “[n]o matter

how deplorable the crime in issue or how inadequate the defense

theories may be perceived by the prosecution, the larger policies of

fair trial and proper courtroom decorum inveigh against the type of

prosecutorial remarks and conduct that occurred here. Such

behavior benefits no one, not the people of Illinois who are

represented by the prosecutor, not the victim’s families, and certainly not the individuals whose sole transgression

was to give testimony on behalf of the defense.” People v. Kidd, 175 Ill. 2d 1, 58-59 (1996) (McMorrow, J., specially concurring,

joined by Freeman, J.).

	The prosecutorial remarks in this case were unprofessional and

debased the sentencing proceeding. Nevertheless, having carefully

considered the remarks in the context of the entire proceeding, I

am constrained to conclude, like 	JUSTICE McMORROW, specially concurring:

	I join Justice Freeman’s opinion to the extent it holds that

customary plain error analysis should be applied to defendant’s

arguments concerning prosecutorial misconduct at trial and

sentencing.

	Also, like Justice Freeman, I believe that the remarks made by

the prosecutors during closing argument at defendant’s sentencing

hearing must be strongly rebuked. Capital sentencing proceedings

impose upon the jury the intellectually and emotionally demanding

task of determining whether or not a defendant is eligible for and

deserving of death, the most severe of all state-sanctioned

punishments. In such a proceeding, where the outcome is literally

a matter of life or death, there can be no place for sarcasm or

improper name-calling. The matter is far too portentous, and the

risk that the jury might be swayed by passion or prejudice is far too

real, to conclude otherwise.

	Given the horrific nature of capital offenses, it is

understandable that a prosecutor’s emotions may run high. But,

“[n]o matter how deplorable the crime in issue or how inadequate

the defense theories may be perceived by the prosecution, the

larger policies of fair trial and proper courtroom decorum inveigh

against the type of prosecutorial remarks and conduct that

occurred here. Such behavior benefits no one, not the people of

Illinois who are represented by the prosecutor, not the victim’s

families, and certainly not the individuals whose sole transgression

was to give testimony on behalf of the defense.” People v. Kidd, 175 Ill. 2d 1, 58 (McMorrow, J., specially concurring, joined by

Freeman, J.).

	The prosecutorial remarks in this case were unprofessional and

debased the sentencing proceeding. Nevertheless, having carefully considered the remarks in the context of the entire proceeding, I

am constrained to conclude that the comments do not rise to the

level of plain error.  Thus, I join the majority in holding that

defendant’s death sentence should not be disturbed. I emphasize,

however, my strong disapproval of the remarks at issue in this

case. I caution prosecutors not to make these comments again, and

I urge judges to vigorously guard against such unprofessional

conduct.the majority, that the comments do not rise to the level of

reversible error. I emphasize, however, my strong disapproval of

the remarks at issue in this case. I caution prosecutors not to make

these comments again, and I urge judges to vigorously guard

against such unprofessional conduct.

	JUSTICE FREEMAN, concurring in part and dissenting in

part:

	I respectfully concur in part and dissent in part from today’s

decision. 

	With respect to the issues raised by defendant concerning the

guilt phase of his trial, I agree with my colleagues in the majority

that the convictions must be affirmed. I do take issue, however,

with the analysis used to resolve defendant’s argument concerning

the propriety of the prosecution’s closing argument at this phase of

the trial. Defendant maintains that the prosecutors engaged in

improper argument during the closing of the guilt phase of the trial.

The court holds, correctly, that the issue was waived because it

was not properly preserved. The court then states that defendant

“urges this court to review the statements under the plain error

rule.” Slip op. at 21. After noting the plain error exception to the

waiver rule, the court observes:

		“Defendant makes no effort to argue that the evidence at

his trial was closely balanced nor does he maintain the

alleged errors were so fundamental that they denied him a

fair and impartial trial.” Slip op. at 22.

The court concludes that defendant’s failure to so argue results in

waiver. Slip op. at 22.

	Our plain error doctrine is based upon Supreme Court Rule

615(a), which provides the following:

		“Any error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded. Plain errors

or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial

court.” 134 Ill. 2d R. 615(a).

We have consistently interpreted Rule 615(a) to allow a court of

review to consider those errors that have not been properly

preserved when (i) the evidence is closely balanced or (ii) the

purported error is of such magnitude so as to deny the defendant

a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363 (1996) (and cases cited therein.). If one of these prongs is met, the

procedural default is excused.

	The court’s determination that defendant “makes no effort” to

argue plain error results from the narrow and restrictive reading the

court accords to defendant’s briefs. On page 47 of his opening

brief, defendant invokes this court’s Rule 615(a), which, as noted

above, is the plain error rule. Defendant then goes on to cite cases

that he believes support his view that the argument deprived him

a fair and impartial trial. Defendant further contends that the

State’s closing argument was designed to “divert the jury’s

attention from the weakness of the State’s murder case.”

Defendant also maintains on page 50 of his brief that another

comment also served “to muddy the waters because the evidence

against [defendant] was so weak and their key witness was so

completely lacking in credibility.” Defendant reasserts these same

arguments in his reply brief. In light of these contentions, I cannot

join the court in its summary conclusion that defendant has made

“no effort” to demonstrate plain error. Defendant is clearly arguing

that (i) the evidence of his guilt was weak, and (ii) the errors were

of such a nature so as to deprive him of a fair and impartial trial.

For these reasons, I do not believe that defendant has, in any way,

“twice waived this argument.”

	Our precedent dictates that, unless plain error exists by which

to excuse a procedural default, the bar must be honored. People v. Keene, 169 Ill. 2d 1, 17 (1995). I have reviewed the remarks defendant claims were improper and find no reason to excuse the

procedural default. The evidence adduced at the guilt phase of the

trial was not closely balanced, as the court correctly notes.

Moreover, none of the complained of remarks were of the nature

to undermine the fairness of the guilt phase of the trial. In all other respects, I join in the court’s opinion as to the guilt phase of

defendant’s trial.

	Notwithstanding my agreement that defendant’s convictions

must be affirmed, I am unable to join in the court’s disposition of

defendant’s argument concerning remarks made by the prosecution

during closing argument at the death sentence hearing. I, therefore,

respectfully dissent from that portion of today’s opinion.

	Defendant maintains that certain comments made by the

prosecutors during the aggravation/mitigation stage of his death

sentencing hearing were improper and inflammatory and denied

him a fair sentencing hearing. In resolving the issue, the court notes

that defendant failed to object to most of the comments and did not

include the issue in his post-trial motion. As a result, the court

holds that the issue is precluded from review on appeal. Slip op. at

23. The court states that defendant failed to acknowledge his

procedural default and failed to request that the court address the

issue under the plain error rule. Slip op. at 23. Accordingly, the

court concludes:

		“[d]efendant has waived any challenge to these remarks.

This conclusion should not be interpreted in any way as

condoning improper prosecutorial remarks that have

become all too frequent in criminal trials. The prosecutor’s

use of sarcasm to describe Dr. Hardy’s diagnosis as a

‘boo-boo to the head’ and reference to both expert

witnesses as ‘cash for trash doctors’ is completely

unacceptable. Although a new trial is not always a

necessary sanction for improper remarks of a prosecutor,

comments denigrating defendant’s witnesses must be

strongly condemned.” Slip op. at 23-24.

Thus, the court holds that defendant’s failure to argue plain error

in his brief precludes review. Although purporting not to address

the issue, the court takes the position that, while the prosecutor’s

use of sarcasm was “completely unacceptable,” a new trial is not

a proper sanction in this case. I strongly disagree with the court’s

approach to this issue for several reasons.

	As an initial matter, the court again, as it did in addressing the

guilt phase improper argument issue, takes defendant to task for failing to define just how the defaulted error constitutes “plain”

error. This happens because, once again, the court reads the briefs

much too narrowly and much too restrictively. In his opening brief,

defendant argues that several remarks made in closing arguments

by the prosecutors during the aggravation-mitigation phase of the

sentencing hearing were improper and necessitated reversal. I note

that, in so doing, I note that defendant cites to at least one case in

which this court held that comments similar to those at issue in this

case constituted plain error. People v. Holman, 103 Ill. 2d 133 (1984). Therefore, it appears to me that defendant has, in fact,

couched his presentation in terms of plain error. I believe that the

better approach to this issue is for the court to address the

argument under the traditional plain error analysis that I noted in

the foregoing section of this separate opinion.

	Additionally, I do not understand why, after having concluded

that defendant’s failure to invoke the plain doctrine results in a

waiver of the issue, the court feels compelled to assert that “its

conclusion [that the issue is waived] should not be interpreted in

any way as condoning improper prosecutorial remarks that have

become all too frequent in criminal trials” (slip op. at 24) or that

comments denigrating a defendant’s witnesses “must be strongly

condemned” (slip op. at 24). If the issue has been waived due to

deficiencies in briefing (see 155 Ill. 2d R. 341(e)(7)), then I do not

see the point in making these statements. The reason for this

seemingly contradictory treatment is that the court wants to have

it both ways. The court takes this approach in order to “send the

message” that the type of conduct that occurred in this trial should

not really be tolerated. This approach, however, will not serve as

a substitute for addressing the argument in depth because this court

has sent these types of “messages” before. See People v. Kidd, 175 Ill. 2d 1 (1996). Our past “messages” appear to go unheeded as

this case more than amply demonstrates. I am further troubled by

the fact that the court’s handling of this issue does nothing that

would serve to diminish the likelihood of such conduct from

recurring in our courtrooms. In fact, I see quite the contrary:

Today’s opinion reveals that this court (i) will not concern itself

with improper argument in the courtroom if a defendant’s brief

does not conform with the court’s own notions of an articulate argument and (ii) will not, even in the face of conduct that is, by

the court’s own admission, both “condemnable” and “all too

frequent in criminal trials” attempt to discipline or even name those

who engage in conduct that this court has prohibited. Why then

should any prosecutor re-adjust his or her argument to conform to

our holdings when nothing happens to those who do not? In light

of these facts, I am more than confident that such conduct will be

repeated in the future because there are simply no adverse

consequences for those prosecutors whose behavior crosses the

line, which is what happened in this case. As I explain more fully

below, the plain error rule is satisfied here because the complained-

of conduct served to deny defendant a fair and impartial sentencing

hearing.

	At the second stage of the sentence hearing, the State

presented evidence in aggravation which consisted of, inter alia, defendant’s (i) lengthy and violent criminal history, (ii) extensive

disciplinary record while incarcerated in the Department of

Corrections, and (iii) abusive behavior towards friends and family

members. The State did not present any medical or psychiatric

experts. The defense case in mitigation consisted of an attempt to

establish, as the sole mitigating factor, that defendant suffered from

an extreme mental or emotional disturbance when he committed

the crimes in the fall of 1991. To that end, the defense presented

the testimony of Dr. Daniel Hardy and Dr. Jonathan Pinkus.

	Dr. Hardy, a forensic psychiatrist, evaluated defendant and

found that he suffered from a schizo-affective disorder that was

either aggravated or caused by a history of brain injury documented

by previous physicians. Dr. Hardy was aware that other doctors

had examined defendant closer in time to the events in question and

had diagnosed defendant as a “malingerer.” However, Dr. Hardy

disagreed with these diagnoses. Dr. Hardy acknowledged that the

other doctors had examined defendant closer in time to the events

in question and had concluded that defendant did not have a mental

illness. These facts did not cause Dr. Hardy to change his opinion

because a significant personality disorder and mental disturbances

had been documented in defendant’s medical records, which

predated the murders in question.

	Dr. Pinkus, a professor of neurology, also evaluated

defendant. Based upon his own observations and the reports of

other professionals, Dr. Pinkus stated that defendant suffered from

a brain dysfunction. Dr. Pinkus testified that his diagnosis was

confirmed by Dr. Hier, the chairman of the department of

neurology at the University of Illinois, who concluded that

“cerebral organicity could be a contributing factor in either

excessively aggressive behavior or failure to inhibit anti-social or

aggressive behavior.”

	The cross-examination of Dr. Hardy, by Assistant State’s

Attorney Laura Morask, was vigorous and oftentimes intense. At

one point, the following exchange occurred.

			“Q. Doctor let me ask it a different way. Did he ever tell

you in the 2 hours and 10 minutes that you spent with him

that he suffered any childhood abuse?

			A. That’s the reference that I’m trying to locate, please.

			Q. So again you have to search through your records,

you don’t know this, do you, off the top of your head?

			Mr. Mullane [defense counsel]: Objection, Judge.

			THE COURT: Overruled.

			MS. MORASK:

			Q. Would it be correct, Doctor, the longer it takes you

to look through the records the more money you’re going

to make here today?

			A. The longer I’m on the witness stand, yes.

			Q. Okay. So the answer to that question would be yes?

			THE COURT: He answered it.

			MS. MORASK: Thank you Judge.

			THE COURT: Move on.”

The cross-examination continued until the following colloquy:

			“Q. [by Ms. Morask]: Are you actually saying the

defendant’s criminal conduct is the result of a physical

abnormality, is that what you’re saying?

			A. Well that he has an abnormal brain that has

contributed to it, absolutely.

			MR. McKAY [prosecutor]: Objection, Judge, not

responsive again.

			MR. LEVITT [defense attorney]: You already

admonished counsel once about that.

			THE COURT: Mr. McKay, Mrs. Morask is the attorney

questioning.

			MR. MCcKAY: Can you instruct the witness to answer

the question Judge, for once.

			THE COURT: Mr. McKay, the attorney questioning

him has not required it or asked for it.

			MS. MORASK: Judge, I’m asking for this particular

question once again.

			THE COURT: Ask the question again.

			MS. MORASK:

			Q. Are you actually telling us that Sanantone Moss’

criminality is caused by some boo-boo to the head?

			THE COURT: All right, Miss Morask, stop that.

The cross-examination concluded shortly thereafter.

	Notwithstanding the circuit court’s admonitions during cross-

examination, Morask returned to these very themes during closing

argument. The record reveals that Morask began her summation by

pointing out the suffering defendant had caused, not only to the

victims in this case, but to his past victims. She then argued:

		 “And your job is to weigh that and balance that against

what? A boo-boo to the brain. That’s what they want you

to find precludes imposition of the death penalty.

			Ladies and gentlemen, do not forget over the last 2 days

we’ve heard about his life, we heard about his problems,

we’ve heard about his jail cell, we’ve heard about his

medication, we’ve heard about his brain ad nauseum [sic] from psycho-babble that went on and on and on. Do not

forget the face of 10 year-old Diandra Jones. Do not

forget the face of her mother, Emma Renee Jones and her

baby brother, Troy Jones. And her other brother, Matthew

Warner. Do not forget what this case was all about in the

beginning.

			You may and you must and you shall consider all of the

evidence that you have already heard. All of the evidence

at the trial, all of the evidence at the eligibility phase.

			When you consider all of this evidence and you weigh

it against those 2 cash for trash doctors *** you’ll see that

there are no mitigating factors sufficient to preclude

imposition of the death penalty.”

At this point, the argument turned toward detailing the evidence

that had been adduced regarding defendant’s past crimes. Morask

then addressed defendant’s case in mitigation:

		“Then we come to the good doctors. They told you in

opening statement that these doctors, that the mitigation,

would not be presented as excuses for his behavior. But

that’s exactly what it is. It’s excusing, they’re trying to

excuse his responsibility for his own criminal conduct.

That is what those doctors were trying to do. Doctor

Hardy. Doctor, ‘I can’t answer a question straight if my

life depends on it,’ Hardy. Doctor ‘I can’t give a one word

answer when 50 words will make me more money.’ ***

He’s a bought and paid for witness.

			If you do the math, his 2 hours and 10 minutes with the

defendant was charged at four dollars a minute. What he

made here in the time he was on the witness stand was far

more than you folks make in a day of jury service. This is

outrageous. 

* * *

			Psycho-babble folks, it was all psycho-babble. He

discounts, throws away and disregards what was the real

evidence, the real findings, from doctors who examined

the defendant closest to the time of the crime. And who

were they? Doctor Kaplan, Doctor Reifman, Doctor

Messina. No evidence of mental illness, no psychosis.

What did they find? They found he [defendant] was a

malingerer, he’s a liar. Doctor Pinkus prefers to call that

delusions and Doctor Hardy prefers to call them schizo-

affective disorder. If it walks like a duck, it’s a duck. They

are lies.

			They aren’t even consistent with their own findings,

with each other. Doctor Hardy says there is no childhood

abuse, Doctor Pinkus says, oh, well there is overwhelming

childhood abuse but he didn’t tell me about it and the fact

that he didn’t tell me about it is a delusion, not a lie. It’s

all psycho-babble.

			And what do they both rely on? This boo-boo to his

brain. This is what they want you folks to rely on to

excuse, to justify his criminal conduct, to explain as they

say, to take away his responsibility for his criminal

conduct.”

Morask concluded her argument by pointing out that defendant had

preyed upon children and had chosen a life of violent crime. She

asked the jury to sentence defendant to death for all the evil he had

done and to protect future children as well as society.

	Defendant argues that Morask’s comments on the testimony

of the two defense experts were improper. According to defendant,

the comments did not explain, modify or discredit the substance of

their testimony. Rather, their only purpose was to denigrate the

witnesses in the eyes of the jury. 

	Under our plain error analysis, in order to determine whether

an alleged error amounts to “plain error,” we must first determine

whether error even occurred. See People v. Keene, 169 Ill. 2d 1, 17 (1995); People v. Sims, 192 Ill. 2d 592, 621 (2000). Generally, courts allow prosecutors great latitude in making closing

arguments. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). The State may, during closing, comment on the evidence presented and

draw reasonable inferences from that evidence. People v. Pasch, 152 Ill. 2d 133, 184 (1992). Nevertheless, argument that serves no

purpose other than to inflame the jury constitutes error. People v. Tiller, 94 Ill. 2d 303, 321 (1982). Closing arguments must be viewed in their entirety and the purported improper argument must

be taken in context. Cisewski, 118 Ill. 2d at 176. 

	After reviewing the proceedings as a whole, it becomes clear

to me, at least, that a good portion of Morask’s cross-examination

and the argument that followed it was intended to degrade and

insult the defense witnesses in an attempt to weaken the impact their testimony might have had on the jury and to inflame the

passions of the jury against defendant’s case in mitigation. This

court has held that “cross-examination which is designed to harass,

annoy or humiliate a witness should not be tolerated.” People v. Lyles, 106 Ill. 2d 373, 402 (1985), citing Smith v. Illinois, 390 U.S. 129, 133, 19 L. Ed. 2d 956, 959-60, 4488 S. Ct. 748, 750-51

(1968). Although the trial judge, during the actual cross-

examination, admonished Morask to move on, which should have

been enough to cure the problem, Morask proceeded to disregard

the trial judge’s admonition and to inject the term “boo-boo” not

once, but twice, into her closing remarks. These comments were

exacerbated by Morask’s (i) continued references to the doctors’

testimony and opinions as “cash for trash,” “bought and paid for,”

and “psycho-babble” and (ii) use of derisive, sarcastic names to

refer to the doctors. This type of rhetoric serves no purpose other

than to inflame the passions of the jury and denigrate and belittle

the defense witnesses in its eyes. Prosecutorial remarks which serve

no purpose but to inflame the emotions of the jury are highly

improper and have no place in the sentencing phase of a capital

trial. People v. Albanese, 102 Ill. 2d 54, 81 (1984). This court has repeatedly warned that prosecutors “must exercise the utmost

caution in capital cases to avoid the use of such comments.” Lyles, 106 Ill. 2d at 406.

	The complained-of remarks take on added significance when

viewed against the fact that the defense called both Dr. Pinkus and

Dr. Hardy to testify as expert witnesses regarding their opinion of defendant’s mental condition, and the State did not call any such

expert witnesses to testify to a contrary opinion. Instead, the State

relied solely–during cross-examination–on the reports of others in

order to contradict and discredit the defense experts’ opinions. I

note that in this respect, Morask argued to the jury that Dr. Hardy

“discounted,” “threw away,” and disregarded the “real evidence”

and

		“the real findings, from doctors who examined the

defendant closest to the time of the crime. And who were

they? Doctor Kaplan, Doctor Reifman, Doctor Messina.” 

I must point out that Doctors Kaplan, Reifman, and Messina did

not testify in this case so the reference to their opinions as the “real

evidence” is misleading.1

	Morask’s vouching for the credibility of these doctors was

also an improper expression of personal opinion: “It is

unprofessional conduct for the prosecutor to express his or her

personal belief or opinion as to the truth or falsity of any testimony,

or evidence ***.” 1 ABA Standards for Criminal Justice 3–5.8(b)

(2d ed. 1980). In the commentary to this rule, the ABA notes that

prosecutorial conduct in argument “is a matter of special concern

because of the possibility that the jury will give special weight to

the prosecutor’s arguments, not only because of the prestige

associated with the prosecutor’s office, but also because of the

fact-finding facilities presumably available to the office.” 1 ABA

Standards for Criminal Justice 3–5.8(b), Commentary, at 3.88 (2d

ed. 1980). See also ABA Model Rules of Professional Conduct, R.

3.4(e) (2001) (prohibiting a lawyer in a trial from “assert[ing]

personal knowledge of facts in issue except when testifying as a

witness ***, or stat[ing] a personal opinion as to *** the credibility of

a witness  ***”). The United States Supreme Court has

acknowledged similar concerns: “[T]he prosecutor’s opinion

carries with it the imprimatur of the Government and may induce

the jury to trust the Government’s judgment rather than its own

view of the evidence.” United States v. Young, 470 U.S. 1, 18-19, 84 L. Ed. 2d 1, 14, 105 S. Ct. 1038, 1048 (1985). Put another

way, the prosecutor “ostensibly speaks with the authority of his

office. The prosecutor’s ‘personal status and his role as a

spokesman for the government tend to give what he [says] *** the

ring of authenticity *** tend[ing] to impart an implicit stamp of

believeability.’ ” Commonwealth v. De Christoforo, 360 Mass. 531, 550, 277 N.E.2d 100, 112 (1971) (Tauro, C.J., dissenting),

quoting Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969). For these reasons, I believe Morask’s remarks were

improper.

	Having determined that the challenged remarks constituted

error, the question turns to whether defendant’s procedural default

can be excused. See Keene, 169 Ill. 2d at 17 (noting that if the error is found not to rise to the level of plain error, the procedural

default must be honored). As I noted previously, this court has

interpreted Rule 615(a) so as to excuse a procedural default if

either the evidence was closely balanced or the error affected

substantial rights. We have explained the latter prong of the

analysis to mean that “what must be affected by the asserted error

must be something ‘fundamental to the integrity of the judicial

process.’ ” Keene, 169 Ill. 2d at 17, quoting People v. Green, 74 Ill. 2d 444, 456 (1979) (Ryan, J., specially concurring). In essence,

the fairness of the proceeding must be undermined. Keene, 169 Ill. 2d at 17. In a similar vein, I note that the United States Supreme

Court has recognized that plain error occurs when the error is said

either (i) to have created an “unacceptable danger of prejudicial

influence on the jury’s verdict,” or (ii) to have “seriously affect[ed]

the *** integrity or public reputation of [the] judicial proceedings.”

United States v. Atkinson, 297 U.S. 157, 160, 80 L. Ed. 555, 557, 56 S. Ct. 391, 392 (1936).

	I believe that the argument conducted by Morask in this case

created an “unacceptable danger of prejudicial influence on the

jury’s verdict” such as to excuse defendant’s procedural default.

This court has recognized:

		“It is axiomatic that parties in closing argument may not

go beyond the scope of the evidence presented and facts

fairly inferable therefrom [citation], misstate the law

[citation], or express their personal opinions on the

evidence [citation] or on defendant’s guilt [citation].

Further, arguments which are calculated to play upon the

jurors’ emotions are clearly improper. A penalty of death that may have been imposed under the influence of

passion or prejudice cannot stand.” (Emphasis added.) People v. Williams, 161 Ill. 2d 1, 78 (1994).

In my view, it is impossible in this case to say what impact

Morask’s continued sarcastic characterizations of the defense witnesses and their testimony–as well as her vouching for the

credibility of experts who did not testify–may have had on the jury

as it deliberated on the question of whether the mitigation

precluded the imposition of the death penalty. The record in this

case demonstrates that the prosecution chose to respond to the

defense’s case in mitigation with derision, sarcasm, and rudeness.

At times, McKay would “object” that the witness’ responses were

“nonresponsive” even though his partner, Morask, was conducting

the cross-examination. This was done despite repeated

admonishments from the trial judge to refrain from the behavior

and, unfortunately, added to what was a generally caustic and

inflamed atmosphere during cross-examination. Compounding this

problem of juvenile behavior on the part of the prosecution team

was Morask’s tendency to bolster her case by vouching for the

credibility of witnesses that she did not call to the stand. This leads

me to conclude that the prosecutors’ conduct in this matter

consisted of “a calculated course of action to play upon and incite

the emotions *** of the jury.” Williams, 161 Ill. 2d at 81. Thus, I cannot say that Morask’s argument did not divert the jurors’

attention from considering, dispassionately, the mitigation offered

by the defendant in this case, and I am unable to conclude that the

misconduct did not serve to increase the likelihood that the jury’s

decision at the aggravation-mitigation portion of the hearing was

based on emotion rather than reason.

	In addition, the prosecutorial improprieties of the sort present

here appear to indicate a recurring problem in capital proceedings.

I must point out that a pattern and practice of intentional

prosecutorial misconduct that has not been deterred through other

remedies, such as admonishment and condemnation, “may well so

seriously undermine the integrity of judicial proceedings as to

support reversal under the plain-error doctrine.” Young, 470 U.S. at 33 n.16, 84 L. Ed. 2d at 24 n.16, 105 S. Ct. at 1055 n.16

(Brennan, J., concurring in part and dissenting in part, joined by

Marshall and Blackmun, JJ). This court has repeatedly held that the

conduct at issue here is improper and is to be avoided. Lyles, 106 Ill. 2d at 402-03 (denigration of defense witnesses); Williams, 161 Ill. 2d at 80 (expressions of personal opinion); Holman, 103 Ill. 2d at 172-73 (same). These cases are the established precedent of this court. It must be remembered that this court, by virtue of

constitutional mandate, reviews every capital sentence imposed in

this state. As such, when we issue an opinion that holds that certain

types of arguments are to be avoided and that certain types of

arguments are improper, we expect those who practice in our

courtrooms to heed our rulings and conform their behavior to our

mandates. When members of the bar, who are officers of the court,

fail to follow our holdings–designed to ensure the fairness of

capital proceedings–the result serves to compromise the very

integrity and public reputation of this court’s administration of

justice.

	As I alluded to earlier, this court has attempted to police this

type of argument before by admonishing against its future

commission. In People v. Kidd, 175 Ill. 2d 1, (1996), the court was confronted with very similar conduct occurring, as in this case, in

a capital trial in Cook County. The prosecutor in Kidd engaged in the same type of juvenile name-calling and sarcasm that is present

in the case at bar. We upheld the sentence, noting that the trial

judge had taken steps to lessen the prejudicial effect of the

improper remarks and conduct, a fact that is absent in this case.

Nevertheless, we specifically warned that prosecutors “violate the

trust reposed in them by the public when they risk reversal of an otherwise proper conviction or death sentence for unprofessional conduct of this nature.” (Emphasis added.) Kidd, 175 Ill. 2d at 54. More pointedly, two justices specially concurred in order to

strongly condemn the conduct and to advise against its future

occurrence:

		“Unless the trial and reviewing courts rebuke such

egregious misconduct, there is little incentive in future

cases for others to refrain from improper jibes, sarcasm,

and outright distortions of the law. No matter how

deplorable the crime in issue or how inadequate the

defense theories may be perceived by the prosecution, the

larger policies of fair trial and proper courtroom decorum

inveigh against the type of prosecutorial remarks and

conduct that occurred here. Such behavior benefits no

one, not the people of Illinois who are represented by the

prosecutor, not the victim’s families, and certainly not the individuals whose sole transgression was to give testimony

on behalf of the defense.

			In my opinion, the conduct described herein borders on

constituting reversible error. For these reasons, I write

separately to emphasize my strong disapproval of the prosecutorial remarks in the instant case and to caution

lawyers and judges to vigorously guard against such

unprofessional conduct.” (Emphasis added.) Kidd, 175 Ill. 2d at 58-59 (McMorrow, J., specially concurring, joined

by Freeman, J.).

Kidd was issued on December 19, 1996. The oral argument conducted in the present case was held on October 30, 1998,

nearly two years later. Nevertheless, the juvenile name-calling here

is very similar to that condemned in Kidd as improper and unprofessional. It is obvious to me that our admonishments–that

such behavior risks reversal–have not been heeded. Indeed, the

sarcasm in this case was worsened by the fact that the prosecutor

improperly bolstered her case by vouching for the credibility of

witnesses who did not testify. Thus, the conduct that we urged

prosecutors to refrain from in Kidd was not only repeated here, but was compounded by even more improper conduct. For this reason,

the result that obtained in Kidd, an affirmance, cannot be obtained in this case.

	Unfortunately, the kind of courtroom tactics which occurred

in this case does not appear to be an isolated occurrence. This court recently cited the conduct of two assistant State’s Attorneys

as lacking in maturity and professionalism, once again in a Cook

County courtroom during a capital trial. See People v. Blue, 189 Ill. 2d 99, 142 (2000). The frequency with which this court is

seeing such behavior is not only alarming, but causes legitimate

public concerns regarding the fairness and integrity of these

proceedings. At a capital sentencing hearing, the trier of fact is

given the duty of determining whether the ultimate punishment is

to be inflicted upon the defendant. As such, the proceeding is a

solemn one. Courtroom decorum and dignity must be vigorously

guarded. In this regard, I believe that the United States Supreme

Court’s observation in Young is particularly relevant in this case.

			“The kind of advocacy shown by this record has no

place in the administration of justice and should neither be

permitted nor rewarded; a trial judge should deal promptly

with any breach by either counsel. ***

* * *

			We emphasize that the trial judge has the responsibility

to maintain decorum in keeping with the nature of the

proceeding; ‘the judge is not a mere moderator, but is the

governor of the trial for the purpose of assuring its proper

conduct.’ [Citation.]” Young, 470 U.S. at 9-10, 84 L. Ed. 2d at 8-9, 105 S. Ct. at 1043-44. 

I agree with this sentiment and urge our trial judges to deal

promptly with actions that serve to debase our criminal

proceedings and jeopardize their fairness.

	Although I find the remarks of Morask to constitute reversible

error, in and of themselves, I also wish to address the other

comments that defendant identifies on appeal as being plain error.

In this regard, I note that the court states that Morask’s use of

sarcasm was “completely unacceptable” but does not speak to the

comments made during rebuttal by Assistant State’s Attorney

James McKay. I believe the court errs greatly by not mentioning

these other remarks because they are equally as egregious and

improper as those made by Morask.

	In rebuttal closing argument, McKay told the jury, among

other things, that “[g]iving [defendant] natural life is an American

Express Gold Card for this defendant to assault correctional

officers, prison staff, cafeteria workers, possessing shanks,

sharpened to a point to stab anybody, who makes him angry.”

McKay further argued that “[t]he bed on death row was reserved

for him. Natural life is the minimum. Natural life is the minimum

sentence. You know, just killing Diandra, just killing a girl under

the age of 12, just killing one witness to prevent her from testifying

gets the minimum. Are we suggesting that Emma’s murder was a

freebe? He’s asking you for the minimum. What in the world has

he done in his life to deserve the minimum.”

	This court has, in the past, allowed arguments regarding a

defendant’s future dangerousness when those arguments are based on the evidence. See People v. Kidd, 175 Ill. 2d 1, 51 (1996); People v. Bounds, 171 Ill. 2d 1, 66 (1995), People v. Johnson, 146 Ill. 2d 109, 148-49 (1991). Indeed, the United States Supreme

Court has held that a jury may determine a defendant’s future

dangerousness in weighing whether to impose a sentence of death.

See Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976). McKay’s argument, however, did more than ask the

jury to consider the defendant’s potential, as shown by the

evidence, for future violence. McKay told the jury that it would be

providing the means for defendant to commit such acts if it chose

to impose a sentence of natural life. In today’s culture, an

American Express Gold card has certain connotations that are

unmistakable, among which are the freedom and the privileges

bestowed upon the holders of a such a card. In this case, McKay

subtly told the jurors that they would be giving defendant the

freedom to commit future violent acts and that, as a result, they

would bear the responsibility for those acts if the jury were to

choose to impose a sentence of natural life. Rather than emphasize

the jury’s responsibility in deciding whether defendant should live

or die, McKay emphasized the jury’s responsibility for future

criminal acts that might be committed at defendant’s hands if he

were not sentenced to death. This type of argument serves no

function other than to increase the likelihood of a verdict reached

by emotion rather than reason, which is unacceptable.

	Moreover, I note that McKay’s use of the term “freebe” to

characterize the murder of Emma Jones was also improper. See

People v. Kuntu, 196 Ill. 2d 105, 144-47 (2001). McKay’s argument was not an accurate statement of the law as we explained

in Kuntu. The use of the term “freebe,” in this context, improperly conveys to the jury the notion that, if it did not return a sentence

of death, defendant would be “getting away” with something. See Kuntu, 196 Ill. 2d at 145-46 (holding that such an argument is an improper statement of law which warrants reversal of death

sentence). Although I acknowledge that defendant did not identify

this remark as error, the precedent of this court nevertheless

dictates that we reverse on this basis. The court today does not

honor this precedent and, in so doing, calls into question whether Kuntu, an opinion decided just four months ago is still good law. My concern in this area is more than just rhetorical–we have taken

under advisement People v. Morris, No. 87645, which raises

questions concerning yet another closing argument in which a

prosecutor speaks in terms of “freebies.” The law of this court,

particularly in capital cases, cannot be seen by the bar and the

public to be one that is constantly “in flux,” changing from opinion

to opinion with respect to the same issue.

	In voicing my dissent, I am mindful that closing arguments

“are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and

meaning less than crystal clear” and that a court “should not lightly

infer that a prosecutor intends an ambiguous remark to have its

most damaging meaning or that a jury, sitting through lengthy

exhortation, will draw that meaning from the plethora of less

damaging interpretations.” Donnelly v. De Christoforo, 416 U.S. 637, 646-47, 40 L. Ed. 2d 431, 439, 94 S. Ct. 1868, 1873 (1974).

This cannot be said of the complained-of comments in the present

case. 

	The United States Supreme Court has noted the importance

of a prosecuting attorney as 

“the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern at all;

and whose interest, therefore, in a criminal prosecution is not that

it shall win a case, but that justice shall be done. As such, he is in

peculiar and very definite sense the servant of the law, the two-fold

aim of which is that guilt shall not escape or innocence suffer. He

may prosecute with earnestness and vigor – indeed, he should do

so. But, while he may strike hard blows, he is not at liberty to

strike foul ones. It is as much his duty to refrain from improper

methods *** as it is to use every legitimate means ***.” Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935). This court has echoed the same concerns by

reminding that an assistant State’s Attorney “is the representative

of all the people, including the defendant, and it is as much his duty

to safeguard the constitutional rights of the defendant as those of

any other citizen.” People v. Oden, 20 Ill. 2d 470, 483 (1960). Moreover, we have stated that a prosecutor “has an obligation to

comport himself in a manner which not only ensures that the defendant receives a fair sentencing hearing but which inspires

respect for the administration of justice.” Lyles, 106 Ill. 2d at 412. It is very difficult to see how either of these objectives were

achieved in this case.

	Notwithstanding the court’s words of condemnation (slip op.

at 24) nor the concurring justice’s reiteration of her strong

disapproval of this type of courtroom behavior (see slip op. at 27-

28 (McMorrow, J., specially concurring), my colleagues’

disposition of this issue will serve only to embolden those who

would engage in such highly charged rhetoric and confuse the trial

judges who have to deal with it. This court cannot expect the trial

judges to vigorously guard against improper conduct if we

ourselves fail to address the problem with any consistency. I note

that this court, in 1999, established a Special Supreme Court

Committee on Capital Cases in order “to study the trial and

sentencing processes in capital cases in Illinois.” M.R. 15833 (April

6, 1999). Both the executive and legislative branches of our state

government likewise established similar committees designed to

review the state’s administration of capital punishment. Each of

these committees focused, inter alia, on the role of improper prosecutorial conduct in death penalty cases and ways to improve

upon the trial processes which lead to capital convictions and

sentences. In some cases, recommendations were made from these

committees. The committees serve noble goals; however, they do

not and cannot replace the responsibility of this court to take action

against improper conduct when confronted with such conduct on

appeal. The notions of reform ring hollow when this court, faced

with conduct which requires reversal, fails to acknowledge it.

	In light of the above, I would vacate defendant’s death

sentence and remand the matter for a new second phase of the

death sentencing hearing. See People v. Thompkins, 191 Ill. 2d 438, 477 (2000).

	JUSTICE KILBRIDE joins in this partial concurrence and

partial dissent.

	CHIEF JUSTICE HARRISON, dissenting:

	While this matter was pending on direct review, our court

adopted a comprehensive set of new rules governing the conduct

of cases in which the State is seeking the death penalty. With

certain exceptions, the new rules took effect March 1, 2001.

Official Reports Advance Sheet No. 6 (March 21, 2001). For the

reasons set forth in my dissenting opinion in People v. Hickey, No. 87286, slip op. at 31-36 (June 21, 2001) (Harrison, C.J.,

dissenting), the procedures contained in the new rules are

indispensable for achieving an accurate determination of innocence

or guilt and are applicable to all capital cases now coming before

us on direct review. Because this defendant was tried, convicted

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

and sentence should be vacated, and the cause should be remanded

to the circuit court for a new trial in conformity with our new rules.

	Even if defendant were not entitled to a new trial, I still could

not join in the majority’s opinion. 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). At a minimum,

defendant’s 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. 1989, ch. 38, par. 9–1(j).

	JUSTICE KILBRIDE, also dissenting:

	I respectfully join with Justice Freeman in his partial dissent

concerning the prosecution's closing arguments. Additionally, for

the reasons set forth in my dissents in People v. Hickey, No. 87286, slip op. at 39-43 (September 27, 2001) (Kilbride, J.,

dissenting), and People v. Simpson, No. 85084, slip op. at 35-38 (September 27, 2001) (Kilbride, J., dissenting), I agree with Chief

Justice Harrison that defendant’s convictions and sentence should

be set aside because the trial proceedings were not conducted in

accordance with the new supreme court 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. Consequently, since the new rules were

promulgated to address the deficiencies of constitutional dimension

that regularly occurred under the old system, the rules must be

applied retroactively to all capital cases currently pending on direct

appeal. See People v. Hudson, 195 Ill. 2d 117, 126 (2001), citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716 (1987). For those reasons, I respectfully

dissent.