Docket No. 88885–Agenda 32–May 2001.

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

								MARK BALLARD, Appellant.

Opin

Opinion filed Auguxtst 29, 202002.2002.–Modified Upon Denial of

 Rehearing

  December 2, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	Following a bench trial held in the circuit court of Du Page

County, the trial judge found defendant, Mark Ballard, guilty of

first degree murder (720 ILCS 5/9–1(a) (West 1996)); robbery

(720 ILCS 5/18–1(a) (West 1996)); concealment of a homicidal

death (720 ILCS 5/9–3.1(a) (West 1996)); unlawful possession of

a stolen motor vehicle (625 ILCS 5/4–103(a)(1) (West 1996)); and

armed robbery (720 ILCS 5/18–2(a) (West 1996)). After finding

the defendant eligible for the death penalty and hearing aggravation

and mitigation testimony at the subsequent sentencing hearing, the

trial judge sentenced defendant to death for the first degree murder

conviction. In addition, the trial judge imposed a 5-year sentence

for the concealment of a homicidal death, a 7-year sentence for

unlawful possession of a stolen motor vehicle, and a 60-year

sentence for armed robbery; sentences to be served concurrently.

The death sentence has been stayed pending direct appeal to this

court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

For the reasons that follow, we affirm both the convictions and the

sentences.

BACKGROUND

	This case involves the murder of Patty Noland. The primary

evidence used by the State against defendant came from

defendant’s own admissions to his family, friends and to police,

which can be summarized as follows. In October 1997, defendant

was living at a residence owned by John McGuire. Noland had

previously lived at this residence, but had recently moved out and

was living with her boyfriend. However, Noland had left some of

her clothes at McGuire’s house and had yet to retrieve them. While

McGuire normally resided at his home, he was staying with his

girlfriend from approximately October 25, 1997, through the

beginning of November 1997, but left the care of his dog with

defendant.

	On October 29, 1997, around 8 p.m., defendant wanted a car

and money so that he could go to Elgin and buy drugs. Defendant

thought of Noland. Knowing that Noland would not lend defendant

her car and money, he thought of robbing her by first luring her to

McGuire’s house under the pretense that she could pick up her

remaining clothes. Once there, defendant would knock Noland out

with chloroform and handcuff her down in the basement. However,

thinking that Noland could later identify him, defendant’s thoughts

ultimately turned to murder. To that end, defendant called Noland

at the restaurant where she was a waitress working the 5 p.m. to

midnight shift. Defendant told her to come over to McGuire’s

house to pick up her clothes after she was done with work, but

requested that she call him before coming so that he would know

when to expect her. Noland agreed.

	While defendant waited for Noland’s call, he retrieved a bottle

of chloroform from McGuire’s room and put it in a box next to the

front door so that Noland would not recognize it. Defendant then

wrapped a hammer in a bath towel and placed it in the

entranceway. Defendant also laid a blanket out on the floor in the

front living room so that he would have something to wrap the

body in. In addition, defendant retrieved a pair of handcuffs from

McGuire’s room and put them in his back pocket.

	Noland called defendant around 10:30 p.m. to let him know

that she was on her way to pick up her clothes. Defendant asked

her to bring him a soda.

	After Noland’s call, defendant soaked a rag with the

chloroform. When Noland arrived in the driveway, defendant

grabbed the rag and held it in his hand. Upon Noland’s entrance

into McGuire’s house, defendant asked her for his soda. Noland

responded that she had left the soda in her car and for defendant to

get it himself. As Noland proceeded to walk further into the house,

defendant grabbed her and put the chloroform-soaked rag over her

face. There was a struggle and both fell to the ground onto the

blanket that defendant had previously laid down. When defendant

realized that the chloroform was not having an effect on Noland,

he held her down while he grabbed the hammer and began to hit

her on the head. Defendant continued to keep the chloroform rag

over Noland’s face as he hit her on the head with the hammer.

After hitting Noland approximately 30 times, defendant got up to

wash the blood off his hands. As he was washing his hands,

defendant heard Noland mumbling. Defendant then attempted to stab Noland with a knife in order to “finish [her] off” and to

“prevent her from suffering any more,” but the blade bent on

impact. Defendant then retrieved a three-foot long screwdriver or

pry bar and hit Noland in the side/rib area a couple of times.

Defendant next proceeded to take a number of McGuire’s things,

such as a TV, two VCRs, and a stuffed owl. He put the items in

Noland’s car. Defendant went back into the house and put

McGuire’s dog in McGuire’s room. Worried that Noland’s

boyfriend might come looking for her, defendant wrapped Noland

up in another blanket and dragged her body in front of the couch

and out of view from the window. Noland was still mumbling so

defendant put the handcuffs on her, thinking she might get away.

Defendant then set white plastic bags filled with clothes next to

Noland and leaned two bikes against her to conceal her body.

Defendant took money from Noland’s purse which she had left in

the car, and before leaving in Noland’s vehicle, defendant turned

off the lights and locked up the house.

	McGuire testified that he received a telephone call on October

31, 1997, from defendant. McGuire asked defendant for a ride to

the store. Defendant drove McGuire to and from the store in

Noland’s car. McGuire asked defendant how he had possession of

Noland’s car and defendant responded that he had dropped Noland

off at work.

	On November 4, 1997, McGuire became concerned about his

dog because McGuire had been unable to contact defendant for a

few days. McGuire asked a friend to drive him to his house. When

he entered his house, he detected a foul odor. McGuire found his

dog in his room and noticed that his dog had lost a lot of weight.

McGuire had his friend drive him to the store to buy some dog

food. After returning to the house, McGuire looked around and

noticed some items missing from his home. McGuire also saw

blood under a rug that he normally kept by the front door and

proceeded to lift up a corner of the blanket covering Noland’s body

and saw a large mass of blood. At this point, McGuire dialed 911.

	Sergeant Jeffrey A. Driskill of the Hanover Park police

department responded to the scene. When he arrived, he detected

an odor he recognized and associated with decaying human flesh.

Noland’s body was discovered underneath the bikes, clothes, and

blankets; exactly how defendant had left her. Sergeant Driskill

carefully noted where each item was placed in and around Noland while the items were being removed and inventoried. In fact,

Sergeant Driskill videotaped the scene of the crime before and after

the items were taken off the body.

	Detective John Dossey of the Hanover Park police department

was also at the crime scene and was the lead detective in the

investigation. On November 5, 1997, Detective Dossey observed

the autopsy of the body and received confirmation that the body

was that of Patty Noland. The autopsy revealed that Noland had

died from craniocerebral injuries due to multiple blunt-force trauma

with the chloroform exposure, and the handcuffed wrists playing

a part. Detective Dossey instructed officers to look for defendant.

	On November 7, 1997, at approximately 8:15 p.m., officers

from the Broadview police department saw Noland’s car in a

parking lot of a strip mall and detained defendant after a foot

pursuit. Defendant was arrested based on a warrant for unlawful

possession of a stolen motor vehicle and taken to the Broadview

police department, where he remained until Detective Dossey and

Detective Edward Piacenza, also from the Hanover Park police

department, arrived to escort defendant back to the Hanover Park

police station. Upon meeting defendant, Detective Dossey

introduced himself and Detective Piacenza as detectives with the

Hanover Park police department. Defendant immediately stated

that he was “glad it was over” and that he was “tired of running.”

Detective Dossey told defendant that they would talk later at the

Hanover Park police station.

	By 9:45 p.m. Detectives Dossey and Piacenza had returned

with defendant to the Hanover Park police station. The detectives

placed him in a room to conduct an interview. At approximately

9:50 p.m., Detective Dossey gave defendant Miranda warnings, reading verbatim from a preprinted Miranda warning and waiver form. After defendant indicated that he understood his rights and

signed the form, he admitted to murdering Patty Noland as detailed

above. He also admitted to having committed a number of

burglaries.

	While Detectives Dossey and Piacenza were interviewing

defendant, Sergeant Driskill inventoried Noland’s car, and upon

finding various items in the vehicle, including bloody clothing and

a pair of tennis shoes, coordinated his efforts with those of the

investigators who were interviewing defendant. Defendant

identified the clothing and shoes to be those he had worn while murdering Noland.

	In the early morning hours of November 8, 1997, Assistant

State’s Attorney Timothy Diamond met with defendant and

informed him that he was not his attorney, but was an attorney for

the State. Defendant responded that he understood the

prosecutor’s role. Diamond reviewed defendant’s signed Miranda form with defendant, confirming defendant’s understanding of his

rights. Defendant then relayed the facts of Noland’s murder and the

burglaries to Diamond and signed a written confession.

	At defendant’s trial, defendant’s biological father, Charles

Stophlet, defendant’s cousin, Walter Petersen, Jr., and McGuire’s

girlfriend, Judy Mullins, each testified that prior to defendant’s

arrest, he had contacted them and admitted to having killing

someone. Additionally, via stipulation, forensic examinations of the

physical evidence found at the crime scene and in Noland’s car

revealed that the stains on the pants and shoes defendant admitted

to wearing during the murder were indeed human blood, and the

sample of liquid taken from the scene was chloroform. Detective

Dossey and Assistant State’s Attorney Diamond both testified to

the circumstances and substance of defendant’s confession.

	Defendant presented his case through one very short

stipulation concerning the testimony of Judy Mullins and Walter

Petersen, Jr. Namely, that if called to testify, Detective Edward

Piacenza would state that he interviewed Judy Mullins on

November 13, 1997, and that Mullins did not want McGuire to

find out that defendant had gone with her to her apartment on an

occasion prior to the murder of Noland. In addition, if called to

testify, Detective Dossy would testify that on November 7, 1997,

he and Assistant State’s Attorney Diamond spoke with Walter

Petersen, Jr., and Petersen stated that on November 1, 1997,

defendant told him that he was feeling bad for what he had done.

Defendant waived closing argument. A theft charge against

defendant was nol-prossed. As mentioned at the outset of this

opinion, the trial judge entered judgment on his finding defendant

guilty of all remaining charges.

	After admonishments from the court, defendant waived a jury

for both the eligibility and penalty phases of the sentencing hearing.

All evidence presented at defendant’s trial was readmitted at the

eligibility phase. Upon completion of the first stage of the

sentencing hearing, the trial judge found defendant eligible for the death penalty (720 ILCS 5/9–1(b)(6), (b)(11) (West 1996))

because defendant was 18 years of age, the murdered person was

killed in the course of another felony, the murdered person was

actually killed by defendant, and in performing the acts which

caused the death of the murdered person, the defendant acted with

the intention to kill the murdered person or with the knowledge

that his acts created a strong probability of death or great bodily

harm, and that another felony or more was committed, and the

murder was committed in a cold, calculated, and premeditated

manner, pursuant to a preconceived plan, scheme, or design to take

a human life by unlawful means, and the conduct of defendant

created a reasonable expectation that a death of a human being

would result therefrom.

	At the second stage of the sentencing hearing, all of the

evidence presented at defendant’s trial and eligibility phases was

readmitted at the penalty phase. After considering evidence in

aggravation and mitigation, evidence which we will later discuss in

more detail, the trial court found no mitigating factors sufficient to

preclude imposition of the death penalty and sentenced defendant

to death for the murder of Patty Noland. In addition, the trial court

imposed a 10-year sentence for concealment of a homicidal death,

a 14-year sentence for unlawful possession of a stolen motor

vehicle, and a 60-year sentence for armed robbery; the sentences

to be served concurrently.

	The trial court denied defendant’s motion to reconsider

sentences pertaining to defendant’s sentence of death and his

sentence of 60 years for armed robbery. However, pursuant to

defendant’s motion and agreement by the State and the trial court,

the sentences imposed for concealment of a homicidal death and

unlawful possession of stolen motor vehicle were modified to five

and seven years respectively. Additionally, the trial court denied

defendant’s motion for judgment notwithstanding the verdict or a

motion for a new trial. Defendant appeals directly to this court

pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

Additional pertinent facts will be discussed in the context of the

issues raised in this appeal.

ANALYSIS

I. Suppression of Statements

	Prior to trial, defendant filed three motions to suppress his

incriminating statements, which the trial court denied. In these

motions, defendant claimed that the State: (A) denied his sixth

amendment right to counsel (U.S. Const., amend. VI; Ill. Const.

1970, art. I, §8) and (B) his statutory right to be presented to a

judge “without unnecessary delay” (725 ILCS 5/109–1(a),

109–2(a) (West 1996)). Defendant assigns error to the trial court’s

denial of his motions to suppress.

	We address at the outset defendant’s argument that we should

review this contention de novo. At a hearing on a motion to suppress, it is the function of the trial court to determine the

credibility of the witnesses, the weight to be given to their

testimony, and the inferences to be drawn from the evidence.

People v. Galvin, 127 Ill. 2d 153, 163 (1989). Accordingly, the trial court’s ruling on a motion to suppress generally will not be

overturned unless it is manifestly erroneous. Galvin, 127 Ill. 2d at 162; People v. Evans, 125 Ill. 2d 50, 78 (1988). “Manifestly erroneous means arbitrary, unreasonable and not based on the

evidence.” People v. Wells, 182 Ill. 2d 471, 481 (1998). However, de novo review is appropriate when neither the facts nor the credibility of witnesses is questioned. People v. Williams, 181 Ill. 2d 297, 309 (1998).

	Defendant argues that we should review this contention de novo because the facts are undisputed. We disagree. This contention turns on the credibility of witnesses. Therefore, we must

review this contention based on the manifest error standard. See

Williams, 181 Ill. 2d at 309.

	Evidence at the suppression hearing adduced the following

facts. On November 5, 1997, a Hanover Park police officer

charged defendant in a criminal complaint, which was reviewed by

a prosecutor, with possession of a stolen motor vehicle. Based on

this charge, a warrant was issued for defendant’s arrest. It was

stipulated that at approximately 8:15 p.m. on Friday, November 7,

1997, Broadview police officers arrested defendant based upon the

warrant for unlawful possession of a stolen motor vehicle.

Defendant was taken to the Broadview police department. No

Broadview police officer questioned defendant on any matter.

	Detective Dossey testified as follows. He was the lead

detective in the investigation. He was assigned to the case on

November 4, 1997, the night that Noland’s body was found. On

November 7, shortly after 8 p.m., Detective Dossey was at home

when he received a telephone call from Detective Piacenza

regarding defendant. Detective Dossey went to the police station,

where he met with Detective Piacenza, other investigators assigned

to the case, and Assistant State’s Attorney Diamond. Detective

Dossey was informed that defendant was in custody in Broadview.

He and Detective Piacenza were instructed to go to the Broadview

police department and return with defendant.

	Detectives Dossey and Piacenza went to the Broadview police

department, arriving at approximately 9 p.m. They were taken to

defendant. Detective Dossey introduced himself and Detective

Piacenza as detectives with the Hanover Park police department.

According to Detective Dossey, defendant immediately stated that

he was “glad it was over” and that he was “tired of running.”

Detective Dossey told defendant that they would talk later at the

Hanover Park police station.

	During the drive back to Hanover Park, the detectives did not

question defendant, and defendant did not indicate that he wanted

an attorney or wished to remain silent. Initially, there was no

conversation at all. Eventually, defendant again volunteered

comments such as he “was glad it was over,” he “was tired of

running,” and he “was tired of looking over his shoulder all the

time.”

	By 9:45 p.m. Detectives Dossey and Piacenza had returned

with defendant to the Hanover Park police station. The detectives

placed him in a room to conduct an interview. At approximately

9:50 p.m., Detective Dossey gave defendant Miranda warnings, reading verbatim from a preprinted Miranda warning and waiver form. Defendant indicated that he understood his rights and signed

the form. Detective Dossey then asked defendant if he would be

willing to talk with him and Detective Piacenza. According to

Detective Dossey, defendant responded that “he would tell us

everything.”

	Detective Dossey “then basically just asked [defendant] what

happened.” Defendant then related the events of October 29, 1997.

The interview was essentially defendant’s narrative, which the

detectives interrupted only to ask questions for clarification. Defendant was calm and very cooperative. Defendant also told the

detectives that he was not under the influence of drugs or alcohol.

	At approximately 10:20 p.m., defendant requested and

received a cigarette, which he smoked during the interview. At

10:30 p.m., food arrived for defendant. They relocated to another

room. The three of them ate and engaged in “casual, small-talk”

having nothing to do with the case.

	After their meal, Detective Dossey asked defendant if he

would be willing to speak with Assistant State’s Attorney

Diamond. Detective Dossey explained that Diamond was a

prosecutor and not a defense lawyer. Defendant responded that he

would talk with Diamond.

	The interview resumed. At approximately 12:15 a.m. on

November 8, Detective Dossey left the interview room to get

Diamond. At approximately 12:26 a.m. Detective Dossey returned

to the room. Diamond was already there with defendant and

Detective Piacenza. Diamond explained to defendant that he was

not his attorney. Defendant responded that he understood the

prosecutor’s role. Diamond then reviewed with defendant the

signed Miranda form, confirming defendant’s understanding of his rights.

	Diamond proceeded to take an oral statement from defendant,

which concluded at approximately 1:30 a.m. During the oral

statement, defendant indicated that he knew what he had done was

wrong and that he should die for it. Diamond then asked defendant

if he would be willing to put his statement in writing; defendant

responded in the affirmative. Defendant dictated his statement to

Diamond, who transcribed defendant’s words. During this time,

defendant was allowed to use the restroom. Defendant then

reviewed the written statement. Defendant indicated to Diamond

portions of the statement that were inaccurate and told Diamond

exactly what he wanted to say. Diamond then rewrote those

sections according to defendant’s instructions. Defendant then

signed his written statement. The written statement concluded at

4:30 a.m.

	The detectives believed that they could go no further until

daylight, when they could search for physical evidence that

defendant threw away. Defendant was placed in a cell and allowed

to sleep. The detectives agreed to meet back at the station later Saturday morning.

	At approximately 10:30 a.m., defendant was given breakfast.

Detectives Dossey and Piacenza read defendant his rights from a

preprinted Miranda warning and waiver form, which he signed. As he ate breakfast, defendant stated that he remembered what he had

done with the hammer and some of the other items that the

investigators sought. Defendant volunteered to take the

investigators to where the items were located. Defendant was

allowed to take a shower.

	At approximately 1:10 p.m., defendant, Detectives Dossey and

Piacenza, and Assistant State’s Attorney Diamond drove to

Broadview. Defendant led them to where he had dumped some of

the evidence. They stopped for lunch. They returned to the police

station at approximately 3 p.m. At his request, defendant was

allowed to use the restroom. Defendant then voluntarily assisted

the investigators in identifying items recovered from Noland’s car.

	At approximately 4 p.m., Detective Dossey asked defendant

if he would be willing to make a videotaped statement at the crime

scene; defendant responded that he would. Defendant, the

detectives, and the assistant State’s Attorney again left the station.

While en route to the crime scene, defendant offered to show them

some houses that he had burglarized. Defendant made a videotaped

statement at the crime scene. At the conclusion of the video,

Diamond again reviewed the Miranda warning with defendant.

	They returned to the police station at approximately 4:43 p.m.

Waiting for them were law enforcement officers from two other

jurisdictions. They wanted to speak with defendant regarding some

burglaries that occurred in their communities. Detective Dossey

advised defendant that he did not have to talk with those officers.

However, defendant stated that he wanted to talk with them to

make sure that stolen property was returned to the proper people.

	Sometime after 4 p.m., a criminal complaint charging

defendant with first degree murder was prepared, and Detective

Dossey served defendant. At that point, the officers had completed

their investigation and no longer attempted to elicit any statements

from defendant. According to Detective Dossey, in the course of

defendant’s interview, from approximately 9:50 p.m. on Friday,

November 7, 1997, through approximately 4 p.m. on Saturday,

November 8, defendant “continually divulged information regarding the investigation.” Detective Dossey did not know of any

press release from the Du Page County State’s Attorney issued

earlier Saturday afternoon.

	Du Page County Assistant State’s Attorney Diamond testified

as follows. On the night of November 4, 1997, Diamond and

several other assistant State’s Attorneys were called to the crime

scene to offer legal assistance to the Hanover Park police

department. That night, Diamond first became aware that

defendant was being investigated for Noland’s murder. From that

evening until the evening of November 8, he offered legal and

other assistance to the Hanover Park police department during the

course of its investigation.

	On the evening of Friday, November 7, Diamond was at the

Hanover Park police station. He and the police investigators

assigned to the case were informed that defendant was in custody

in Broadview. He accompanied the investigators to Broadview.

Detectives Dossey and Piacenza were in one car and Diamond and

another officer were in another. If defendant had remained with the

Broadview police department, Diamond likewise would have

remained there to assist those officers. He returned with the

Hanover Park investigators, with defendant riding with Detectives

Dossey and Piacenza.

	At the Hanover Park police station, Diamond waited to learn

what defendant had told the detectives. He did not speak to anyone

at the State’s Attorney’s office during this time. At approximately

12:26 a.m. he entered the room where defendant was being

interviewed and did not leave it until 4:30 a.m. He remained at the

police station for about an hour thereafter and then drove home.

	At 6 a.m., Diamond telephoned his supervisor, Michael Wolfe.

Diamond informed Wolfe that defendant gave a written statement

admitting his involvement in the murder, and Diamond related the

details of that statement to Wolfe. Diamond also told Wolfe that

investigators hoped to recover the murder weapon and would

attempt to corroborate the burglaries to which defendant had

confessed. Wolfe did not give Diamond any explicit instructions

regarding defendant’s charge. Rather, the timing of the charge was

left up to Diamond when he thought the investigation was

complete. Wolfe took information from Diamond for the purpose

of preparing a press release, which the office does in all murder

cases. Diamond had nothing to do with preparing the release.

	According to Diamond, when he, the detectives, and defendant

returned from videotaping defendant’s statement at the crime

scene, “I had determined at that point that we had pretty much

dotted all of our I’s and crossed all of our T’s and the investigation

was as tight at that point as it needed to be.” Diamond then

approved the murder charge against defendant.

	The testimony of Wolfe, Du Page County State’s Attorney

Joseph Birkett, and First Assistant State’s Attorney John Kinsella

was presented by stipulation. The parties stipulated that if Wolfe

were called to testify, he would testify as follows. He received a

telephone call from Diamond in the early morning of Saturday,

November 8, 1997. It was only during that telephone conversation

that Wolfe actually authorized Diamond to charge defendant. They

further discussed when charging would occur and whether

additional evidence, specifically the videotaped crime scene

statement, would be sought. Very soon after Wolfe’s conversation

with Diamond, Wolfe telephoned State’s Attorney Birkett and

informed him of the status of the case and related the conversation

with Diamond. Birkett agreed to charge defendant with murder and

to hold a press conference later that afternoon.

	According to the stipulation of State’s Attorney Birkett, he

received a telephone call from Wolfe in the early morning on

Saturday, November 8, 1997. Wolfe informed Birkett of the status

of the investigation, and Birkett approved the decision to charge

defendant with first degree murder. They also discussed the

content and scheduling of a press conference later that afternoon.

Birkett then had a telephone conversation with his first assistant,

John Kinsella, in which they discussed the press conference.

	Laura Pollastrini, the public information manager at the

Du Page County State’s Attorney’s office, testified as follows. At

approximately 9:30 a.m. on Saturday, November 8, 1997,

Pollastrini received a telephone call from Kinsella informing her

that the office would conduct a press conference that day. She

received information from Wolfe and completed the press release

at approximately 1 p.m. She showed it to the State’s Attorney,

who approved it. Sometime shortly after 1 p.m. the press release

issued to the media and was read at the press conference.

	The press release stated: “Joe Birkett, State’s Attorney of

Du Page County *** announced today that First Degree Murder

charges have been filed this afternoon against Mark C. Ballard, 37, of 5712 Bedford Court, Hanover Park. He is charged in connection

with the death of Patricia A. Noland, 43, of that same address.”

(Emphasis added.) In his stipulation, Birkett conceded that the

press release erroneously stated that charges had been filed that

afternoon. In fact, charges had not yet been filed. According to

Birkett, the press release should have indicated that first degree

murder charges against defendant were expected to be filed that

afternoon.

	Defendant was presented to a Du Page County judge on

Sunday morning, November 9, 1997; a criminal complaint charging

defendant with first degree murder was filed.

A. Sixth Amendment Right to Counsel

	Prior to trial, defendant filed a motion to suppress alleging that

the State intentionally delayed bringing him before a judge to

prevent attachment of his right to counsel under the sixth

amendment to the United States Constitution (U.S. Const.,

amends. VI, XIV) and article I, section 8, of the Illinois

Constitution (Ill. Const. 1970, art. I, §8). In his motion, defendant

claimed that his right to counsel attached when the State had

committed itself to prosecute him “at least as early as the issuance

of the press release, and perhaps earlier.” Defendant sought

suppression of any statements that he made subsequent to the

attachment of his right to counsel. The trial court denied this

motion.

	Before this court, defendant focuses his claim. He relies solely

on the sixth amendment. He alleges specifically that the State’s

“commitment to prosecute was made in the early morning hours of

Saturday, November 8, but the filing of charges was intentionally

delayed.” Accordingly, defendant now claims that only the

videotaped statement that he gave on the afternoon of November

8, 1997, should have been suppressed. Defendant seeks a new trial.

	The controlling principles are established. The sixth

amendment, applicable to the states through the fourteenth

amendment, guarantees in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right *** to have the

Assistance of Counsel for his defense.” U.S. Const., amends. VI,

XIV. The purpose of the sixth amendment is to assure that, in any

criminal prosecution, the accused shall not be left to his or her own devices in facing the prosecutorial forces of organized society. “By

its very terms, it becomes applicable only when the government’s

role shifts from investigation to accusation. For it is only then that

the assistance of one versed in the ‘intricacies ... of law’ [citation]

is needed to assure that the prosecution’s case encounters ‘the

crucible of meaningful adversarial testing.’ ” [Citation.] Moran v. Burbine, 475 U.S. 412, 430, 89 L. Ed. 2d 410, 427, 106 S. Ct. 1135, 1146 (1986).

	The sixth amendment right to counsel attaches at or after the

initiation of adversarial judicial proceedings–whether by way of a

formal charge, preliminary hearing, indictment, information, or

arraignment. United States v. Gouveia, 467 U.S. 180, 187-88, 81 L. Ed. 2d 146, 153-54, 104 S. Ct. 2292, 2297 (1984), quoting

Kirby v. Illinois, 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82 (1972) (plurality opinion). In Gouveia, the Court explained:

			“Thus, given the plain language of the Amendment and

its purpose of protecting the unaided layman at critical

confrontations with his adversary, our conclusion that the

right to counsel attaches at the initiation of adversary

judicial criminal proceedings ‘is far from a mere

formalism.’ [Citation.] It is only at that time ‘that the

government has committed itself to prosecute, and only

then that the adverse positions of government and

defendant have solidified. It is then that a defendant finds

himself faced with the prosecutorial forces of organized

society, and immersed in the intricacies of substantive and

procedural criminal law.’ [Citation.]” Gouveia, 467 U.S. at 189, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298.

As the plurality in Kirby concluded: “It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which

alone the explicit guarantees of the Sixth Amendment are

applicable.” Kirby, 406 U.S. at 690, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.

	In this case, when defendant gave his videotaped statement on

the afternoon of November 8, 1997, there had been no formal

charging proceeding, preliminary hearing, indictment, information,

or arraignment accusing defendant of murder. It has never been

held that an arrest, by itself, triggers the sixth amendment right to

counsel. Gouveia, 467 U.S. at 190, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298, cited in People v. Wilson, 116 Ill. 2d 29, 50 (1987). Here, the fact that an arrest warrant was obtained prior to defendant’s

arrest was not sufficient to create trial-like confrontation

contemplated by the sixth amendment. See People v. Hayes, 139 Ill. 2d 89, 126 (1990) (“Where the extent of the prosecutor’s

involvement in the procurement of the warrant is no more than in

the assistance and preparation of the complaint *** the arrest must

be characterized as purely investigatory without any commitment

by the State at this point to pursue prosecution”), citing People v. Boswell, 132 Ill. App. 3d 52, 59-60 (1985).

	Further, custodial interrogation, by itself, does not trigger the

sixth amendment right to counsel. Moran, 475 U.S. at 431-32, 89 L. Ed. 2d at 427-28, 106 S. Ct. at 1146; People v. Evans, 125 Ill. 2d 50, 79 (1988). These sixth amendment principles apply even if

the investigation has focused on or targeted the defendant. United States v. Hayes, 231 F.3d 663, 674 (9th Cir. 2000); State v. Register, 323 S.C. 471, 477, 476 S.E.2d 153, 157 (1996); State v. McCormick, 778 S.W.2d 48, 53 (Tenn. 1989).

	However, this court has held that “the level of prosecutorial

involvement may be considered in determining whether a

defendant’s sixth amendment right to counsel has attached.”

People v. Garrett, 179 Ill. 2d 239, 248 (1997) (collecting cases). In this case, therefore, “defendant has a sixth amendment right to

counsel only if there has been significant prosecutorial involvement

at the time of the questioned action or if the government has

committed itself at that time to prosecute defendant.” Garrett, 179 Ill. 2d at 250. Accordingly, our inquiry is into the degree of

prosecutorial involvement at the time of the videotaped crime

scene statement.

	In this case, prior to or at the time of defendant’s videotaped

crime scene statement, there was not such a constitutionally

significant degree of prosecutorial involvement as to trigger

defendant’s sixth amendment right to counsel. Diamond’s initial

involvement in the case was solely to assist law enforcement

officers in their investigation. Diamond’s role was one of

investigation and not accusation. Indeed, it was not until Diamond

spoke with Wolfe on the morning of November 8, 1997, that

Diamond actually received from Wolfe the authority to charge

defendant.

	Further, having the authority to charge defendant is not the same as deciding to charge him. Diamond was authorized to charge defendant when Diamond believed that the investigation

was complete. Wolfe never instructed Diamond to charge

defendant at a particular time.

	Defendant contends that “[t]he press release is one of the

totality of the circumstances that demonstrates that the charging

decision had been made in the early morning hours of November

8.” According to defendant, the press release “is significant

evidence that the decision had been made and paperwork was

deliberately delayed while the police succeeded in getting a

videotaped statement at the scene of the crime, and a tour of

houses [defendant] had burglarized.”

	We disagree. Although the press release supports defendant’s

contention, it is only one of the many factors considered and is not

conclusive. The press release should have announced that charges

were expected to be filed against defendant. We agree with the

State that, in the course of a criminal investigation, there likely

exists an expectation that charges will be filed pending its conclusion. However, this does not mean that whenever the police

or prosecutors investigate criminal activity and announce that

charges are expected to be filed “the government has committed

itself at that time to prosecute defendant.” See Garrett, 179 Ill. 2d at 250.

	Defendant protests that “[t]here was no investigation that

needed to be done to get sufficient evidence to charge [him],” and

that “further investigation could yield little that would be relevant

to the charging decision.” Describing this argument as “novel and

paradoxical,” the United States Supreme Court rejected it as

follows:

		“There is no constitutional right to be arrested. The police

are not required to guess at their peril the precise moment

at which they have probable cause to arrest a suspect,

risking a violation of the Fourth Amendment if they act

too soon, and a violation of the Sixth Amendment if they

wait too long. Law enforcement officers are under no

constitutional duty to call a halt to a criminal investigation

the moment they have the minimum evidence to establish

probable cause, a quantum of evidence which may fall far

short of the amount necessary to support a criminal

conviction.” Hoffa v. United States, 385 U.S. 293, 310, 17 L. Ed. 2d 374, 386, 87 S. Ct. 408, 417 (1966).

In this case, the investigators did not violate defendant’s sixth

amendment right to counsel by failing to cease their ongoing

investigation. See, e.g., United States v. Craig, 573 F.2d 455, 475 (7th Cir. 1977).

	The trial court heard the testimony of Diamond, as well as that

of Detective Dossey and Pollastrini. The court observed their

demeanor and assessed their credibility. Based on their testimony

and the other evidence, the court found that prosecutors did not

intentionally and unreasonably delay charging defendant in order to

deny him his sixth amendment right to counsel. Rather, the court

found that police and prosecutors wanted to continue their ongoing

investigation. We cannot say that the trial court’s finding was

manifestly erroneous.

	B. Presentment

	Defendant filed two additional pretrial motions to suppress,

alleging violations of sections 109–1(a) and 109–2(a), respectively,

of the Code of Criminal Procedure of 1963 (725 ILCS 5/109–1(a),

109–2(a) (West 1996)). Section 109–1(a) requires in pertinent part

that “[a] person arrested with or without a warrant shall be taken

without unnecessary delay before the nearest and most accessible

judge in that county ***.” 725 ILCS 5/109–1(a) (West 1996). In

his motion, defendant claimed that the State violated section

109–1(a) by presenting him before a judge approximately 36 hours

subsequent to his arrest. Defendant sought suppression of “[a]ll

statements made by [him] after the time he should have appeared

before a judge.”

	Section 109–2(a) requires in pertinent part:

			“Any person arrested in a county other than the one in

which a warrant for his arrest was issued shall be taken

without unnecessary delay before the nearest and most

accessible judge in the county where the arrest was made

or, if no additional delay is created, before the nearest and

most accessible judge in the county from which the

warrant was issued.” 725 ILCS 5/109–2(a) (West 1996).

In his motion, defendant noted that he was arrested at

approximately 8:15 p.m. on Friday, November 7, 1997, in

Broadview, which is located in Cook County. Defendant also submitted affidavit evidence that bond court in Cook County was

in session that night from 6:30 to 10:45 p.m. in Chicago and on the

following morning from approximately 9 to 10 a.m. in Maywood.

Defendant claimed that the State violated section 109–2(a) by not

presenting him to a Cook County judge, rather than to a judge in

Du Page County, where he was ultimately taken. Defendant sought

suppression of “[a]ll statements made by [him] after the time he

should have appeared” before a Cook County judge.

	The trial court denied these motions. Before this court,

defendant seeks a new trial.

	The committee comments to article 109 of the Code succinctly

identifies the practical concern:

			“The most tedious and perplexing problem in the area is

what happens between arrest and taking before a [judge]

for a judicial hearing on probable cause. In practice, the

time between arrest and hearing is that in which police

officers question the accused and obtain, if possible, a

confession. If the case is weak, there is a tendency to

delay. If a confession is obtained during such delay, should

it be admissible in evidence at the trial?

			Illinois continues to look at the confession cases solely

in the light of the voluntary-involuntary test.” 725 ILCS

Ann., art. 109, Committee Comments–1963, at 3 (Smith-

Hurd 1992).

Article 109 was drafted to assure an accused all necessary rights

inherent in a preliminary examination and, at the same time, to

continue Illinois statutory and case law pertaining to the time

within which the accused must be presented to a judge for such

hearing. 725 ILCS Ann., art. 109, Committee Comments–1963, at

3 (Smith-Hurd 1992).

	Although section 109–1(a) of the Code (725 ILCS 5/109–1(a)

(West 1996)) requires that an arrestee be presented to a judge

“without unnecessary delay,” noncompliance therewith does not,

by itself, obviate a confession or render an otherwise voluntary

confession inadmissible at trial. Rather, such delay is merely a

factor to be considered on the question of voluntariness. People v. House, 141 Ill. 2d 323, 380 (1990); People v. Brooks, 51 Ill. 2d 156, 164-65 (1972). This is also true for a violation of section

109–2(a). People v. Pittman, 55 Ill. 2d 39, 56-57 (1973).

	The test of voluntariness is whether the defendant made the

statement freely, voluntarily and without compulsion or

inducement, or whether the defendant’s will was overcome at the

time he or she confessed. A determination of voluntariness requires

consideration of the totality of the circumstances of each case.

Factors to consider when determining voluntariness include: the

defendant’s age, intelligence, background, experience, mental

capacity, education, and physical condition at the time of

questioning; the legality and duration of the detention; the duration

of the questioning; whether defendant was advised of his

constitutional rights; and whether defendant was subjected to any

physical or mental abuse. The question of the competency of a

confession is for the trial court alone to decide by a preponderance

of the evidence, and its determination will not be disturbed on

review unless it is against the manifest weight of the evidence.

People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996); House, 141 Ill. 2d at 376.

	In the trial court, defendant expressly clarified that he was not

claiming any police coercion or duress that caused him to

involuntarily make the statements. Rather, defendant claimed solely

an “unnecessary delay” in violation of sections 109–1(a) and

109–2(a). Accordingly, we turn to that factor of voluntariness.

	While statutes such as sections 109–1(a) and 109–2(a) require

presentment “without unnecessary delay,” some latitude is allowed.

Presentment to a judge need be performed only with such

reasonable promptness as the circumstances permit. Whether there

was or was not unnecessary delay must be determined from all the

facts and circumstances of each case. People v. Jackson, 23 Ill. 2d 274, 278 (1961). Although “no arbitrary rule may be judicially

fixed” (Jackson, 23 Ill. 2d at 278), Illinois decisions suggest a delay of 24 to 36 hours prior to presentment is usually not considered to

be unnecessary. People v. Shannon, 149 Ill. App. 3d 525, 530 (1986); People v. Martin, 121 Ill. App. 3d 196, 208 (1984) (collecting cases).

	Further, once a defendant in lawful custody has knowingly

waived his or her Miranda rights and indicated a willingness to talk to police, section 109–1(a) does not obligate police to interrupt

their interrogation as long as its length is not unreasonable and the

defendant’s statements continue to be voluntary. The “delay”

involved in taking a voluntary statement from a defendant under these circumstances is “necessary” within the meaning of section

109–1(a). See People v. Groves, 294 Ill. App. 3d 570, 578 (1998); People v. Smith, 203 Ill. App. 3d 545, 563 (1990). The legislative directions that an accused be presented to a judge “ ‘without

unnecessary delay’ ” “cannot mean that police officers must

forsake all other duties to comply, and neither can they mean that

the police do not have reasonable latitude to fully investigate a

crime.” Jackson, 23 Ill. 2d at 280; accord House, 141 Ill. 2d at 380. These principles apply to section 109–2(a) as well. See

Pittman, 55 Ill. 2d at 56-57.

	In this case, the trial court expressly considered all of the

factors pertaining to the voluntariness of defendant’s statements.

Regarding the factor of delay, the court found: defendant willingly

cooperated with police from the beginning of his interview;

defendant’s cooperation extended throughout his prearraignment

detention; and the length of the interrogation was not

unreasonable. After considering the evidence, the trial court

concluded that defendant’s statements were voluntary and denied

his motions to suppress based on sections 109–1(a) and 109–2(a)

of the Code of Criminal Procedure. The trial court’s determination

was not manifestly erroneous.

II. Sufficiency of Mitigation Evidence

	Defendant claims that the trial court erred when it found no

mitigating factors sufficient to preclude the imposition of the

sentence of death. Defendant contends that he was suffering from

extreme emotional disturbance at the time of the crime; that he has

significant rehabilitative potential; and that he has taken full

responsibility for his actions. Defendant argues that one or all of

these factors is sufficient mitigation to preclude the imposition of

the death sentence. Defendant asks this court to vacate his death

sentence and remand for a sentence other than death.

	In determining whether a sentence of death is proper, we must

consider “the character and record of the individual offender and

the circumstances of the particular offense.” People v. Pitsonbarger, 142 Ill. 2d 353, 388 (1990), citing Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (1976). “[E]ach capital case is unique and must be

evaluated on its own facts, focusing on whether the circumstances of the crime and the character of the defendant are such that the

deterrent and retributive functions of the ultimate sanction will be

served by imposing the death penalty.” People v. Johnson, 128 Ill. 2d 253, 280 (1989). “A death sentence is appropriate if the

sentence is commensurate with the seriousness of the offenses and

gives adequate consideration to relevant mitigating circumstances.”

Pitsonbarger, 142 Ill. 2d at 388. After careful consideration of the circumstances of the crime in this case and the character of

defendant, we agree with the trial court that there are no sufficient

mitigating factors to preclude the imposition of the death penalty

and find no error.

	The defendant presented the following evidence in mitigation.

Six family members, consisting of defendant’s sister, step-sister,

aunt, cousin, great-aunt, and a cousin of defendant’s biological

mother, related that defendant had been raised by his mother and

step-father. Defendant’s step-father brought three of his own

children into the marriage and adopted defendant and defendant’s

sister. Soon after their marriage, defendant’s mother and step-

father had two children. Furthermore, these witnesses stated that

incidents of physical abuse towards defendant and his siblings while

defendant lived with his mother and step-father were heard of

and/or witnessed. Defendant’s step-sister testified that there was

a lot of rage, violence, and anger in the household and defendant’s

cousin stated that it was “like hell” when he lived in the Ballard

home for a time. In addition, on a number of occasions not only did

defendant run away from home but five of his siblings ran away,

with three never to return. Furthermore, defendant’s aunt, cousin,

and the cousin of defendant’s biological mom stated that

defendant’s step-father was very distrustful and a con artist. The

witnesses testified that defendant was always respectful, obedient,

and did anything asked of him.

	Defendant’s ex-wife, Susan Ballard, testified that she was

married to defendant for 10 years and still maintains regular

contact with him while he is in jail. Throughout their marriage,

defendant would periodically discuss with Susan the physical abuse

he suffered as a child at the hands of his step-father. Susan

described defendant’s mother and step-father as domineering and

controlling. In addition, Susan stated that she was aware of

defendant’s drug and alcohol dependencies during their marriage

and that when defendant was on drugs and alcohol, he was violent, argumentative, and not nice to be around. But when defendant was

clean and sober, he was very helpful, pleasant, and loving. Susan

also told of incidents where defendant had physically assaulted her

and stole from her. Furthermore, Susan testified that she met with

defendant a few days after he had murdered Noland and that

defendant was crying when he told her that he had killed someone.

	A minister who counseled defendant 10 or so times in the past

six to eight years prior to Noland’s murder testified that he thought

defendant was unstable and needed help.

	Eight individuals, including a clinical social worker, minister,

and a jail chaplain, who volunteer their time supervising various

classes and helping inmates with their issues at the jail testified on

behalf of defendant. Defendant participated in the following

classes: Men’s Issues Group; AA; Bible Study; Anger

Management, Relapse Management, and Addiction Education;

Healing Our Losses, Job Readiness, and Commitment to Change;

and Parenting. Those eight individuals collectively thought that

defendant was an active member in class and was well liked by

others. Defendant brought other inmates to the classes, and some

considered him their mentor. One inmate testified that he met

defendant in one of the classes above and felt that defendant played

an outstanding role in his recovery. In addition, the volunteers who

supervise these classes stated that defendant was sincere, honest,

and always searching for answers. Furthermore, defendant

admitted in class to killing Noland and discussed his feelings of

remorse and guilt. The minister specifically believed that defendant

has accepted reality and understands the choices he has made.

	Dr. Albert Stipes, a forensic psychiatrist, testified as a

mitigation witness. Dr. Stipes evaluated defendant and based on his

review, found that defendant suffers from Bipolar II disorder.

Bipolar II is a disorder of the mood. There are many types of

bipolar disorders, but they are all characterized by extremes of

mood, i.e., elated moods, depressed moods, and sometimes delusions and hallucinations accompany one of these. Additionally,

Dr. Stipes noted that defendant suffered from alcohol and cocaine

dependency and that, sometimes, people with bipolar disorder use

substances to control their own symptoms. For example, people

use cocaine when they are feeling depressed and alcohol when

feeling agitated. Furthermore, Dr. Stipes stated that cocaine has a

very short life and when put into someone with Bipolar II disorder can promote rapid cycling–frequent changes from depression to

elation or agitation. Dr. Stipes concluded that defendant was

suffering from Bipolar II disorder when defendant, as discussed

later herein, assaulted fellow inmates and when he killed Noland.

	Defendant testified on his own behalf as a mitigation witness.

Defendant related his past physical abuse at the hands of his step-

father and the number of times he ran away. Defendant stated that

he started drinking alcohol when he was nine years old and started

using cocaine when he was 18. Defendant admitted to committing

over a hundred burglaries in order to fund his drug and alcohol

habits. Defendant testified that any time the police caught him, he

would readily confess. Being in and out of jail his whole life, there

were times when defendant tried to clean himself up, but would

ultimately revert back to drugs and alcohol.

	On the morning of Noland’s murder, defendant was 37 years

old and was on one of his drug binges. That day, defendant smoked

cocaine from approximately 2 to 8 p.m. and wanted some more,

which is when Noland came to his mind. Initially, defendant only

intended to rob Noland, but thinking that she would later identify

him, his thoughts turned to murder. Defendant wrestled with the

idea of whether or not to kill Noland for over an hour and decided

that he was not going to kill her, but essentially snapped when

Noland left his soda in her car. Defendant stated that at one point

he had wanted to stop hitting Noland with the hammer, but knew

that if he had stopped, she would probably be a vegetable for the

rest of her life. Defendant believed that what he had done was

horrible and readily admitted that he deserved to die as a

consequence. Defendant further admitted that at the time of his

arrest, he felt relieved to be away from drugs and ashamed and

irritated at himself for what he had done and unmindful if he lived

or died. Defendant testified that he now cares and wishes to live.

	Furthermore, while in jail, defendant attended the classes

mentioned above, actively sought psychiatric help because he

though he had a chemical imbalance, and put God into his life.

Defendant began taking medication for his psychological problem

in December of 1997.

	In addition, defendant told the court that he physically

assaulted fellow inmates because (1) the first inmate slammed a

mentally ill person against the wall, (2) the second inmate was

homosexual and had made a pass at him, and (3) a third inmate was calling him names.

	In contrast to this mitigating evidence, the State presented the

following evidence in aggravation. The State introduced all of the

evidence produced at trial regarding Noland’s murder, including a

videotape of defendant walking through the murder scene and

defendant’s oral and written confessions. In addition, evidence of

defendant’s extensive criminal record was admitted, which included

convictions for: aggravated battery; battery; burglary; residential

burglary; attempted residential burglary; criminal trespass; theft;

assault; and violation of a court order. It appears defendant has

been in and out of jail since his early 20s.

	Further evidence of defendant’s background was presented

through a number of witnesses, the majority of which are as

follows. The State presented defendant’s step-father, step-brother,

half-sister, and a family friend; all of whom stated that there was no

abuse in the family while defendant was growing up and, in

particular, that defendant was not abused as a child by his step-

father.

	Colonel Steve Connolly, from the United States Army

Reserve, testified that defendant joined the army in 1978 and

received a counseling statement within three weeks of his arrival.

In the army, a counseling statement is received for some type of

misconduct. Defendant’s counseling statement stated that

defendant was “unmotivated, lacked self-discipline, won’t

cooperate with his peers in doing his share of the work and will not

perform without direct supervision.” In addition, defendant

received two “Field Grade Article 15s.” An Article 15 gives a

commander an option to impose a sentence for a criminal violation

instead of sending a matter to court. A Field Grade Article 15 has

a more severe sentencing option than an Article 15 because it is for

a higher ranking officer who has greater authority to impose a

more significant sentence. Defendant’s first Field Grade Article 15

pertained to an incident where defendant unlawfully hit another

soldier in the wrist and body with a broomstick. The second

pertained to defendant intimidating and threatening witnesses to a

third party’s court martial. In the end, defendant received an

honorable discharge from the army after being reviewed and for

receiving the two Field Grade Article 15s.

	Six witnesses, including defendant’s biological father and ex-

brother-in-law, testified that their homes were burglarized by defendant. In 1981, defendant’s biological father came home from

vacation to find that his home had been burglarized. A year later,

defendant told his biological father that he committed the burglary

and that he sold the stolen items.

	In addition, 12 police officers testified in relation to the above

burglaries and other burglaries committed by defendant that they

were investigating. Officer Carlton Perry of the Bartlett police

department stated that he was investigating a burglary on

September 28, 1981, to a home belonging to defendant’s biological

father. That on that same date, he interviewed defendant and

defendant admitted to burglarizing his biological father’s home.

	Also, Officers Mike Gartner and Robert Christ of the Elgin

police department testified that on August 8, 1981, they responded

to a break-in at a local bar. Officer Gartner found defendant in the

basement and defendant was subsequently charged with burglary.

	In December 1983, Kenneth Piletic testified that he was home

sleeping when he heard his doorbell ringing. Upon going

downstairs, Piletic saw a shadow of a figure go around his house

so he went to the back of his home to look through a window. By

the time Piletic reached his back door, the window in the door was

broken and someone was trying to get in. Piletic called the police,

who apprehended defendant in Piletic’s neighbor’s yard. Defendant

received a nine-year sentence for attempted residential burglary of

Piletic’s home.

	Detective Norman Landwehr of the Elgin police department

testified that on January 18, 1984, defendant confessed to

committing 41 burglaries and was subsequently charged for a

number of them. Defendant also told Detective Landwehr that he

had a severe drug problem and that he committed the burglaries to

purchase drugs.

	Lieutenant Steve Schinkel of the Algonquin police department

testified that on January 21, 1984, defendant admitted to

committing well over a hundred burglaries within the last year,

some within Algonquin. After the interview, defendant was

charged with residential burglary. In addition, defendant told

Lieutenant Schinkel that he wanted to confess everything so that

he could start his life over when he got out of prison.

	Sergeant Randy Johnson of the North Aurora police

department testified that on January 26, 1984, defendant confessed that on December 13, 1983, he had stolen a television and traded

it for cocaine in Elgin.

	In November 1997, Officer Shawn Talluto of the West

Frankfort police department responded to a call made by

defendant’s grandmother on November 6, 1997. Defendant’s

grandmother told Officer Talluto that defendant had been at her

home and had tried kicking in her door, demanding to be let in.

After refusing to let defendant in, she called the police. Scared for

her safety, she spent the night with a friend. The next day, Officer

William Troutt, also of the West Frankfort police department, met

defendant’s grandmother and she asked Officer Troutt to search

her home before she went back in to make sure defendant was not

there. In addition, both officers responded to and investigated

burglaries in the area.

	Detective Sergeant Bruce McVety of the Bureau County

sheriff’s department stated that he interviewed defendant on

November 8, 1997, with another officer at the Hanover Park police

station. Defendant confessed to committing four burglaries.

Detective McVety testified that defendant told him he committed

the burglaries to buy cocaine and that he felt bad about committing

the fourth burglary because the home belonged to his friends.

	Detective Dossey testified that after discussing Noland’s

murder with defendant, he admitted to committing a number of

burglaries in South Elgin, Princeton, and West Frankfort between

the dates of November 4, 1997, and November 6, 1997.

Furthermore, Detective Dossey stated that defendant told him that

he had wished he had killed McGuire because McGuire was an

“asshole and had a drug problem and would blame other people for

things, and that he just didn’t care for [McGuire].” Defendant

stated that he was going to “chop [McGuire’s] head off with an

axe.” At no time during Detective Dossey’s interview did

defendant say he was sorry for murdering Noland.

	Detective Driskill testified that he searched Noland’s car.

There, he found items defendant had stolen from the homes he

previously had burglarized.

	In addition, four witnesses gave testimony relating to incidents

where defendant physically assaulted them. The four police officers

who took the reports of the physical assault incidents also testified

and stated that all parties involved, with the exception of one, named defendant as the wrongdoer. One of these witnesses,

Baldemar Santana, testified that on October 28, 1979, he was

walking through a packed bar in Elgin when he heard someone

yelling at him. Santana did not hear what was said. As he started

to walk back to his seat, he was hit over the head with a beer

bottle. Santana testified that he did not know the person who hit

him and had never seen him before. Later, witnesses at the bar told

him and police that defendant was the culprit. Another of these

witnesses, Brenda Kusch, defendant’s half-sister, testified that on

July 24, 1991, defendant picked her up by the ears, threw her to

the ground, and hit her over the head with a beer bottle. Kusch

reported the incident to police and filed a complaint against

defendant for battery. Also, on August 23, 1991, defendant tried

to break into Kusch’s home.

	Additionally, two inmates testified that defendant physically

assaulted them while defendant was in jail awaiting trial for the

murder of Noland. Eight officers and one registered nurse testified

to their involvement pertaining to the two incidences in jail with

one officer stating that he saw defendant fighting a third inmate on

another occasion.

	Dr. Jerry Wolfe, a psychologist, interviewed defendant after

defendant’s second physical assault on an inmate. Dr. Wolfe

testified that defendant displayed no sense of remorse, regret, or

apology for the assaults. He further stated that defendant had been

on a number of different medications up to that point, which was

unusual.

	Lastly, the State presented victim impact testimony from five

of Noland’s family members.

	Section 9–1(h) of the Illinois death penalty statute provides

that “once the State has proved the existence of any of the

aggravating factors [720 ILCS 5/9–1(b) (West 1996)], beyond a

reasonable doubt [720 ILCS 5/9–1(f) (West 1996)], a *** court

must weigh the mitigating factors against the aggravating factors

and must conclude that no mitigating factors sufficiently preclude

the imposition of the death sentence.” People v. Brownell, 79 Ill. 2d 508, 534 (1980); 720 ILCS 5/9–1(h) (West 1996). A balancing

process of the aggravation and mitigation evidence presented is

required of the sentencing authority. Brownell, 79 Ill. 2d at 534. “ ‘While the various factors to be considered by the sentencing

authorities do not have numerical weights assigned to them, *** the sentencing authority’s discretion is guided and channeled by

requiring examination of specific factors that argue in favor of or

against imposition of the death penalty, thus eliminating total

arbitrariness and capriciousness in its imposition.’ ” Brownell, 79 Ill. 2d at 534, quoting Proffitt v. Florida, 428 U.S. 242, 258, 49 L. Ed. 2d 913, 926, 96 S. Ct. 2960, 2969 (1976).

	The trial court in this case considered the evidence that was

presented, the testimony of the witnesses, their credibility, their

believability on the stand, and the law that applies to cases

involving whether the death penalty should or should not be

imposed. In addition, the trial court considered the nature and

circumstances of the offense; the history, character and condition

of defendant; and whether or not defendant can be restored to

useful citizenship.

	As pertaining to defendant’s mitigation evidence, the trial

court considered defendant’s childhood and upbringing; whether

the murder was committed while defendant was under the influence

of extreme mental or emotional disturbance, although not such as

to constitute a defense to the prosecution; whether or not

defendant may be rehabilitated or restored to useful citizenship at

some future point; and if there were any other reasons supported

by the evidence in the record as to why defendant should not be

sentenced to death. The trial court ultimately found that none of

these matters were sufficient to preclude the imposition of the

death sentence.

	Defendant contends that the trial court erred in finding no

sufficient mitigation to preclude the imposition of death.

Specifically, defendant believes that he has significant rehabilitative

potential, which he demonstrated by actively pursuing help in jail

for his addictions, anger, and psychological problems. However,

good behavior in prison need not offset otherwise substantial

aggravating evidence against the defendant. See People v. Emerson, 189 Ill. 2d 436, 495 (2000); People v. Madej, 177 Ill. 2d 116, 162 (1997); People v. Turner, 156 Ill. 2d 354, 361 (1993) (“ ‘[O]ne arrested for a capital crime, and particularly a convicted

defendant awaiting sentencing, has every incentive to behave

flawlessly in prison if good behavior might cause the sentencing

authority to spare his life. Good behavior in those circumstances

would rarely be predictive as to the conduct of the prisoner after sentence has been imposed’ (emphasis in original)”), quoting Skipper v. South Carolina, 476 U.S. 1, 14-15, 90 L. Ed. 2d 1, 13, 106 S. Ct. 1669, 1676 (1986) (Powell, J., concurring, joined by

Burger, C.J., and Rehnquist, J.) .

	Defendant also contends that his violent behavior in and out

of prison was directly attributable to his drug and alcohol

dependencies and bipolar disorder and that, because of these

dependencies and disorder, defendant was under an extreme

emotional disturbance at the time he murdered Noland and

physically assaulted his fellow inmates. However, this court has

recognized that “a history of substance abuse is a double-edged

sword at the aggravation/mitigation phase of the penalty hearing.”

Madej, 177 Ill. 2d at 138. “ ‘[S]imply because the defendant views his drug abuse history as mitigating does not require the sentencer

to do so.’ ” Madej, 177 Ill. 2d at 138, quoting People v. Shatner, 174 Ill. 2d 133, 159 (1996). Accordingly, the sentencing judge was

free to conclude that defendant’s dependencies and disorder were

aggravating and simply had no mitigating value. Furthermore, with

respect to the defendant’s psychological disorder, this court has

repeatedly held that “ ‘information about a defendant’s mental or

psychological impairments is not inherently mitigating.’ ” Madej, 177 Ill. 2d at 139, quoting People v. Tenner, 175 Ill. 2d 372, 382 (1997). This court explained in Tenner, “[a]t sentencing, a judge or jury considering evidence of this nature might view the

information as either mitigating or aggravating, depending, of

course, on whether the individual hearing the evidence finds that it

evokes compassion or demonstrates possible future

dangerousness.’ ” Tenner, 175 Ill. 2d at 382. “Even if we were to consider defendant’s alleged psychological and neurological

impairments as mitigating factors, ‘[m]itigation evidence of a

defendant’s cognitive abilities and mental health does not preclude

imposition of a death sentence when that evidence is outweighed

by aggravating evidence.’ ” Madej, 177 Ill. 2d at 139-40, quoting People v. Pulliam, 176 Ill. 2d 261, 286 (1997).

	Similarly, the remainder of the evidence offered by defendant

carries little, if any, weight in terms of mitigation. As to

defendant’s somewhat troubled childhood, the trial court in this

case was free to conclude “ ‘that it simply had no mitigating value

but may have been, in fact, actually aggravating.’ ” Madej, 177 Ill. 2d at 140, quoting People v. Ward, 154 Ill. 2d 272, 337 (1992). Moreover, “ ‘evidence that a defendant has been physically or sexually abused *** does not invalidate a death sentence when

outweighed by aggravating evidence.’ ” Madej, 177 Ill. 2d at 140, quoting People v. Pulliam, 176 Ill. 2d 261, 286 (1997). Further, we note that defendant never held a job for very long, often

quitting as a result of his drug and alcohol dependencies or because

of incarceration. It appears that for more than 20 years, defendant

was either in jail or committing burglaries to fund his drug and

alcohol habits. Finally, although defendant took full responsibility

for his crime and may have showed some sense of remorse by

saying “I deserve to die for what I did,” which may be viewed as

mitigating, we do not consider that evidence sufficiently offsetting

in light of the aggravating circumstances in this case.

	In view of the foregoing, we hold that the trial court

considered and weighed all the evidence presented before it. In

addition, we find that the evidence presented in aggravation and

mitigation not to be closely balanced; therefore, we decline to grant

defendant a new sentencing hearing.

III. Other-Crimes Witnesses: Improper Testimony

	Defendant next argues that he is entitled to a new sentencing

hearing because the trial court erred in allowing the State to

present victim impact evidence from the victims of prior crimes.

Specifically, defendant raises issue with two of the State’s

aggravation witnesses, Nicole Stieber and Lisa Trone. Trone’s

home was burglarized by defendant. Trone merely described what

it was like entering her home on November 6, 1997, after it had

been burglarized. Trone found the front door jarred open and saw

large muddy footprints on her white carpet. Due to seeing exactly

where the burglar had traveled throughout her home, Trone

testified to having an eerie feeling.

	Since defendant failed to object to Trone’s testimony in his

post-trial motion, as required by the Code of Criminal Procedure

of 1963 (725 ILCS 5/116–1 (West 1996)), the State argues that

defendant waived this issue as it pertains to Trone. We agree. This

court has stated the general rule that the failure to raise an issue in

a written motion for a new trial results in a waiver of that issue on

appeal. People v. Enoch, 122 Ill. 2d 176, 185-86 (1988). To preserve an issue on appeal, a defendant must object to the

purported error at trial and include it in his written post-trial motion. Enoch, 122 Ill. 2d at 186. A defendant must follow this same procedure if he wishes to raise errors which occurred at

sentencing or risk waiving them on appeal. People v. Mahaffey, 166 Ill. 2d 1, 27 (1995). In this case, defendant failed to raise

Trone’s testimony in his post-sentencing motion; therefore,

defendant waived the issue. Defendant does not raise the issue of

plain error and, as noted above, the aggravation evidence was

overwhelming and not closely balanced. See People v. Simpson, 172 Ill. 2d 117, 147 (1996) (stating that the defendant did not raise

the issue of plain error and noticing that the evidence at trial was

overwhelming and not closely balanced).

	We now turn to defendant’s properly raised contention

concerning Nicole Stieber’s testimony. Stieber testified that she

dated defendant in 1992 and that he bragged about previous

burglaries he had committed. After four months of dating, Stieber

tried to break the relationship off with defendant. Even though

Stieber invoked restraining orders and orders of protection,

defendant would always come back and break into her home. On

August 26, 1992, defendant was drunk when he called Stieber at

her home, and later that evening, defendant went to Stieber’s

house. Defendant yelled at Stieber and began hitting her with

anything he could put his hands on, including a ceramic cup.

During the assault, Stieber protected her face with her hands. Due

to this incident, Stieber’s right hand was severely damaged and

remains crippled. Stieber further told the trial court that she

underwent seven surgeries on her hand, gave details of the

procedures performed, and stated how the injury has affected her

life. In addition, continuing therapy requires Stieber to wear a

brace for six hours every night on her hand to help with mobility.

	It is well established that “at the second stage of a capital

sentencing hearing, the standard for admissibility of evidence is

relevance and reliability, and that evaluation is left to the sound

discretion of the trial judge.” People v. Hope, 184 Ill. 2d 39, 51 (1998). Defendant contends that Stieber’s detailed testimony

concerning the after effects of defendant’s offense was neither

reliable nor relevant and that it is victim impact testimony that is

barred by the Rights of Crime Victims and Witnesses Act (725

ILCS 120/1 (West 1996)). The State responds that Stieber’s

testimony was relevant and reliable and that the trial court’s

decision to admit the evidence was not an abuse of discretion. The State contends that Steiber’s detailed account regarding the extent

of her hand injury was relevant because it highlighted defendant’s

taste for violence. We disagree.

	“While the details of prior crimes are considered relevant

aggravation because they illuminate the character and record of a

capital defendant [citation], the unforseen effects of those prior

crimes on their victims are of no such assistance.” Hope, 184 Ill. 2d at 52. In this case, Stieber testified to her encounters with

defendant, which included the assault upon her and the injury

resulting therefrom. However, upon further questioning by the

State, Steiber went into detail concerning the unforseen

consequences of the injury and its effect on her life. We find

Stieber’s detailed account regarding defendant’s offense to be

irrelevant victim impact testimony. However, we conclude the

State’s introduction of this victim impact evidence not to be so

unduly prejudicial that it renders the capital sentencing hearing

fundamentally unfair. At the second stage of the sentencing

hearing, the State presented evidence in aggravation, through 47

witnesses, of, inter alia, defendant’s criminal background, his numerous burglaries and assaults, and his misconduct in prison.

Stieber’s impact testimony covered approximately four pages in the

record. Considering the voluminous amount of aggravation

evidence presented, we conclude that the State’s error was

harmless and not so egregious as to deprive defendant of a fair

sentencing hearing. See, e.g., People v. Hall, 195 Ill. 2d 1, 19 (2000) (significant evidence in aggravation compelled finding that,

even if the brief answer given by the aggravation witness violated Hope rule, supra, such error was harmless beyond a reasonable doubt).

IV. Constitutionality of Death Penalty Statute

	Defendant lastly contends that the Illinois death penalty statute

(720 ILCS 5/9–1 (West 1996)) is unconstitutional for several

reasons. Defendant asks us to vacate his death sentence and

remand the cause for imposition of a sentence other than death.

	A. Excessive Number of Eligibility Factors

	Defendant claims that the Illinois death penalty statute has a

constitutionally excessive number of statutory aggravating factors. Defendant argues that the statute is “unconstitutional because it

fails to adequately limit the class of individuals eligible for the

death penalty.”

	The constitutional principles are quite established. The eighth

amendment death penalty jurisprudence of the United States

Supreme Court addresses “two different aspects of the capital

decisionmaking process: the eligibility decision and the selection

decision.” Tuilaepa v. California, 512 U.S. 967, 971, 129 L. Ed. 2d 750, 759, 114 S. Ct. 2630, 2634 (1994). The eighth

amendment’s concern that the death penalty be both appropriate

and not randomly imposed requires a state to perform two

somewhat contradictory tasks to impose the death penalty.

Romano v. Oklahoma,512 U.S. 1, 6, 129 L. Ed. 2d 1, 9, 114 S. Ct. 2004, 2009 (1994).

	First, a capital sentencing scheme must genuinely narrow the

class of individuals eligible for the death penalty and must

reasonably justify imposition of a more severe sentence on the

defendant compared to others found guilty of murder. A state’s

sentencing procedure must suitably direct and limit the discretion

of the sentencing body so as to minimize the risk of completely

arbitrary and capricious action. Romano, 512 U.S. at 7, 129 L. Ed. 2d at 9, 114 S. Ct. at 2009, quoting Zant v. Stephens, 462 U.S. 862, 874, 77 L. Ed. 2d 235, 248, 103 S. Ct. 2733, 2741 (1983),

quoting Gregg v. Georgia, 428 U.S. 153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932 (1976).

	Accordingly, to render a defendant eligible for the death

penalty, the trier of fact must first convict the defendant of murder

and find one “aggravating circumstance” or its equivalent at either

the guilt or the penalty phase of the trial. The aggravating

circumstance may be contained in the definition of the crime, a

separate sentencing factor, or both. The aggravating circumstance

must meet two requirements. First, the circumstance must apply

only to a subclass of defendants convicted of murder; it may not

apply to every defendant convicted of a murder. Second, the

aggravating circumstance may not be constitutionally vague.

Tuilaepa, 512 U.S. at 971-72, 129 L. Ed. 2d at 759, 114 S. Ct. at 2634-35 (and cases cited therein).

	Second, a state must ensure that a capital sentencing decision

rests on an individualized inquiry, under which the character and

record of the defendant and the circumstances of the particular offense are considered. A state cannot limit the sentencing body’s

consideration of any relevant circumstance that could cause it to

decline to impose the penalty. The state cannot channel the

discretion of the sentencing body, but must allow it to consider any

relevant information that the defendant offers. Romano, 512 U.S. at 7, 129 L. Ed. 2d at 10, 114 S. Ct. at 2009, quoting McCleskey v. Kemp, 481 U.S. 279, 306, 95 L. Ed. 2d 262, 287, 107 S. Ct. 1756, 1774 (1987).

	Accordingly, this is a separate requirement for the selection

decision, where the sentencing body determines whether a

defendant who is eligible for the death penalty should receive that

sentence. The requirement of an individualized determination is

met when the sentencing body can consider all relevant mitigating

evidence of the character and record of the defendant and the

circumstances of the crime. Tuilaepa, 512 U.S. at 972, 129 L. Ed. 2d at 759-60, 114 S. Ct. at 2635.

	In sum: “The eligibility decision fits the crime within a defined

classification. *** The selection decision, on the other hand,

requires individualized sentencing and must be expansive enough

to accommodate relevant mitigating evidence so as to assure an

assessment of the defendant’s culpability.” Tuilaepa, 512 U.S. at 973, 129 L. Ed. 2d at 760, 114 S. Ct. at 2635.

	Procedure under the Illinois death penalty statute is familiar.

A death penalty hearing in Illinois consists of a two-stage process.

During the first phase, it is determined whether a defendant is

eligible for the death penalty. A defendant who has been found

guilty of murder is eligible if: (1) he or she has obtained the age of

18; and (2) the jury has found the existence of at least one listed

aggravating factor. 720 ILCS 5/9–1(b) (West 2000). The first

phase is a nonweighing statutory scheme to determine death

eligibility. The statute does not place special emphasis on any

single aggravating factor and does not accord any added

significance to multiple aggravating factors. People v. Coleman, 129 Ill. 2d 321, 344-45 (1989); People v. Todd, 154 Ill. 2d 57, 75 (1992). “So long as the sentencing body has found at least one

valid aggravating factor, the fact that it also may have considered

an invalid aggravating factor does not infect the formal process of

deciding whether death is an appropriate penalty.” Todd, 154 Ill. 2d at 75. The aggravating factors distinguish and narrow the group

of persons who are death eligible. In the absence of one of these limiting factors, the offense of murder qualifies the defendant for

a term of imprisonment. People v. Britz, 123 Ill. 2d 446, 484 (1988).

	If it is determined that the defendant is eligible for the death

penalty, then, during the second phase of the death penalty hearing,

the jury or court weighs any relevant aggravating and mitigating

factors and determines whether there are any mitigating factors

sufficient to preclude the imposition of the death penalty. 720 ILCS

5/9–1(c), (g), (h) (West 2000). Also, this court provides

meaningful appellate review of every death sentence. 720 ILCS

5/9–1(i) (West 2000); Coleman, 129 Ill. 2d at 345; Britz, 123 Ill. 2d at 484.

	Courts have consistently upheld the above-described

procedure under the Illinois death penalty statute as constitutional.

“It is this process, in conjunction with the requirement of proof

beyond reasonable doubt of any aggravating factor, as well as

mandatory review [citation], which sufficiently circumscribes the

class or persons eligible for the death penalty.” People v. Williams, 147 Ill. 2d 173, 267-68 (1991); accord People v. Young, 128 Ill. 2d 1, 64-65 (1989); Britz, 123 Ill. 2d at 484-85; Williams v. Chrans, 742 F. Supp. 472, 501 (N.D. Ill. 1990), aff’d, 945 F.2d 926 (7th Cir. 1991) (“In sum, the Illinois death penalty statute properly and

clearly guides the sentencing jury to narrow the risk of arbitrariness

without preventing the jury from considering and giving effect to

any relevant mitigating circumstances”)

	However, over the years, the legislature has added to the list

of aggravating factors in subsection (b) of the Illinois death penalty

statute (720 ILCS 5/9–1(b) (West 2000)). When originally enacted

in 1977, the statute listed seven aggravating factors. Ill. Rev. Stat.

1977, ch. 38, par. 9–1(b). By 1981, the list had grown to eight. Ill.

Rev. Stat. 1981, ch. 38, par. 9–1(b). By 1989, the listed

aggravating factors totaled 10. Ill. Rev. Stat. 1989, ch. 38, par.

9–1(b). By 1991, the list contained 11 aggravating factors (Ill. Rev.

Stat. 1991, ch. 38, par. 9–1(b)), 12 aggravating factors by 1992

(720 ILCS 5/9–1(b) (West 1992)), 14 aggravating factors by 1994

(720 ILCS 5/9–1(b) (West 1994)), 15 aggravating factors by 1996

(720 ILCS 5/9–1(b) (West 1996)), 19 aggravating factors by 1998

(720 ILCS 5/9–1(b) (West 1998)), and 20 aggravating factors by

2000 (720 ILCS 5/9–1(b) (West 2000)).

	Defendant contends that the death penalty statute is unconstitutional because it contains too many aggravating factors.

Defendant argues:

		“The number and breadth of these factors do not

sufficiently narrow the class of persons eligible for the

death penalty. Indeed, the high number of aggravating

factors so greatly expands the class of death eligible

defendants that it is difficult to imagine a first degree

murder defendant who does not qualify under at least one,

if not several factors.”

According to defendant, this statutory sentencing scheme fails to

genuinely narrow the class of persons eligible for the death penalty.

	We cannot accept defendant’s contention for at least two

reasons. First, on a literal and practical level, defendant’s

contention is incorrect. Looking at the entire universe of first

degree murders and murderers, the Illinois death penalty statute

genuinely narrows the class of individuals eligible for the death

penalty and reasonably justifies imposition of a more severe

sentence on those defendants compared to others found guilty of

first degree murder. See Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 249-50, 103 S. Ct. 2733, 2742 (1983).

	Initially, the statute limits its application to persons older than

18 years of age. Persons younger than 18 can commit first degree

murders yet will never be eligible for the death penalty.

	Further, there are innumerable examples of first degree

murders that do not fit within any of the statute’s eligibility factors.

Each provision is narrowly tailored to fit a specific set of facts and

circumstances, e.g., murder of an emergency medical technician or paramedic (720 ILCS 5/9–1(b)(12) (West 2000)), murder of a

disabled person (720 ILCS 5/9–1(b)(17) (West 2000)), murder of

a community policing volunteer (720 ILCS 5/9–1(b)(18) (West

2000)), or murder of a person subject to an order of protection

(720 ILCS 5/9–1(b)(19) (West 2000)). Each provision genuinely

narrows the class of persons who can be eligible for the death

penalty. Further, the requirements of proof beyond a reasonable

doubt of any aggravating factor and automatic appellate review

direct and limit the discretion of the sentencing body so as to

minimize the risk of completely arbitrary and capricious action. See

Romano, 512 U.S. at 7, 129 L. Ed. 2d at 9, 114 S. Ct. at 2009, McCleskey v. Kemp, 481 U.S. 279, 302-03, 95 L. Ed. 2d 262, 285, 107 S. Ct. 1756, 1772-73 (1987).

	A second reason for rejecting defendant’s contention is more

conceptual. Even assuming that a death penalty statute could have

“too many” aggravating factors rendering a first degree murder

defendant eligible for the death penalty, how many aggravating

factors are “too many”? In a thorough decision, a trial court in

Delaware, a state whose death penalty statute has a number of

death-eligibility factors comparable to that of Illinois, thoughtfully

reasoned:

			“While the Court does not dispute that at first blush the

defendant’s argument appears logical, it is disturbed by the

prospect of how one determines the point at which the

number of aggravating circumstances causes the death

penalty statute to be generally unconstitutional. Is the

Court to engage in some mathematical calculation as to

who might be covered by the statute and who is not; and

if so, what would be reasonable and logical factors to

include in the formula? Can the Court arbitrarily declare

that fifty aggravating circumstances is too many but forty-

nine is permissible? Even assuming one could ever create

a tool that would measure the percentage of defendants

eligible for capital punishment, where is the dividing line

of constitutionality and who makes that decision?” State v. Steckel, 708 A.2d 994, 1000 (Del. Super. 1996).

Affirming this reasoning, the Delaware Supreme Court concluded

that, absent factual substantiation, the remaining inquiry was

whether an individual aggravating factor could apply to any first degree murder defendant, not whether all aggravating factors

combined apply to virtually all defendants convicted of first degree murder. Steckel v. State, 711 A.2d 5, 12-13 & n.11 (Del. 1998) (noting that although too many aggravating factors may violate

constitutional principles, the defendant had not shown that such a

limit had been reached in Delaware), citing Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188, 200, 113 S. Ct. 1534, 1542

(1993).

	We lastly observe that “ ‘defendant has not demonstrated on

this record, or through sources of which we might take judicial

notice, that his claims are empirically accurate, or that, if they were

correct, this would require the invalidation of the death penalty

law.’ ” (Emphasis omitted.) People v. Crittenden, 9 Cal. 4th 83, 155, 885 P.2d 887, 930, 36 Cal. Rptr. 2d 474, 517 (1994), quoting

People v. Wader, 5 Cal. 4th 610, 669, 854 P.2d 80, 114, 20 Cal. Rptr. 2d 788, 822 (1993). Defendant does not substantiate this

contention in any way. “As we are presently informed” (Pulley v. Harris, 465 U.S. 37, 54, 79 L. Ed. 2d 29, 42, 104 S. Ct. 871, 881 (1984)), we cannot say that the Illinois death penalty statute is

unconstitutional in this regard.

B. Remaining Challenges

	Defendant makes several additional constitutional challenges

to the Illinois death penalty statute. However, this court has

previously rejected the argument that the Illinois death penalty

statute is unconstitutional because: (1) it does not require, at the

second phase of the death sentencing hearing, the State to prove

beyond a reasonable doubt that there are no mitigating factors

sufficient to preclude imposition of the death penalty (People v. Davis, No. 89704, slip op. at 18-21 (February 22, 2002)); (2) it places a burden of proof on a defendant that precludes meaningful

consideration of mitigation evidence (People v. Williams, 193 Ill. 2d 306, 376 (2000)); (3) it permits the sentencing body to weigh

the “vague” aggravating factor of “any other reason” a defendant

should be sentenced to death (People v. Kirchner, 194 Ill. 2d 502, 558-59 (2000)); (4) it fails to sufficiently minimize the risk of

arbitrarily imposed death sentences (Gilliam, 172 Ill. 2d at 522- 23); and (5) the death eligibility factor for murder committed in a

“cold, calculated and premeditated manner pursuant to a

preconceived plan, scheme or design” (720 ILCS 5/9–1(b) (11)

(West 1996)) is unconstitutionally vague (People v. Hall, 194 Ill. 2d 305, 358 (2000)). Defendant has not persuaded us to overturn

these decisions.

	CONCLUSION

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

Du Page County is affirmed. We direct the clerk of this court to

enter an order setting Tuesday, January 14, 2003, as the date on

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

Du Page 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.

\	Supplemental Opinion Upon Denial of Rehearing

	In his petition for rehearing in this case, defendant raises but

a single issue. It concerns his argument that the Illinois death

penalty statute is unconstitutional because it does not require the

State to prove beyond a reasonable doubt that there are no

mitigating factors sufficient to preclude imposition of the death

penalty. He contends that a recent decision by the Supreme Court,

which we did not address in our original disposition of the case,

calls our resolution of this issue into question. See Ring v. Arizona, 536 U.S. __, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). We find

the case distinguishable.

	In Ring the Court considered the constitutionality of Arizona’s death penalty scheme, and found it wanting. In doing so, the Court

reversed an earlier decision which upheld the constitutionality of

death penalty procedure in Arizona, and disavowed a related

portion of Apprendi. See Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990); Apprendi, 530 U.S. at 496- 97, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, quoting Almendarez- Torres v. United States, 523 U.S. 224, 257 n.2, 140 L. Ed. 2d 350, 377 n.2, 118 S. Ct. 1219, 1237 n.2 (1998) (Scalia, J., dissenting,

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

	The constitutional infirmity the Court identified in Ring was that the Arizona death penalty scheme removed from the jury the

determination of facts required to establish the defendant’s

eligibility for a death sentence–specifically, the finding of

aggravating factors. “Because Arizona’s enumerated aggravating

factors operate as ‘the functional equivalent of an element of a

greater offense,’ Apprendi, 530 U.S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury.” Ring, 536 U.S. at ___, 153 L. Ed. 2d at 577, 122 S. Ct. at 2443.

	Defendant contends that his sentence was unconstitutional

according to the reasoning of Ring. He argues that under the Illinois first degree murder statute, lack of mitigating factors

sufficient to preclude death is a fact, which must be found

unanimously by a jury before a defendant can be sentenced to

death. See 720 ILCS 5/9–1(g), (h) (West 1996). Defendant

contends that it is inaccurate to conclude that the death penalty is

authorized by the facts found by the jury after the first stage of

death penalty proceedings, because this second finding must still be

made, unanimously, before that penalty can be imposed.

	This argument appears to find some support in Ring. There, one of Arizona’s arguments was that the defendant was “sentenced

within the range of punishment authorized by the jury verdict”

because he “was convicted of first-degree murder, for which

Arizona law specifies ‘death or life imprisonment’ as the only

sentencing options.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 573, 122 S. Ct. at 2440. The Court rejected this argument, stating that

the Arizona statutory scheme “ ‘authorizes a maximum penalty of

death only in a formal sense’ ” (Ring, 536 U.S. __, 153 L. Ed. 2d at 573-74, 122 S. Ct. at 2440, quoting Apprendi, 530 U.S. at 541, 147 L. Ed. 2d at 486, 120 S. Ct. at 2389 (O’Connor, J., dissenting,

joined by Rehnquist, C.J., Kennedy and Breyer, JJ.)) because a

finding of an aggravating circumstance was a necessary

prerequisite to any death sentence. “Because Arizona’s enumerated

aggravating factors operate as ‘the functional equivalent of an

element of a greater offense,’ Apprendi, 530 U.S., at 494, n.19, the Sixth Amendment requires that they be found by a jury.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 577, 122 S. Ct. at 2443. The inquiry

“ ‘is one not of form, but of effect.’ [Apprendi, 530 U.S.] at 494. If a State makes an increase in a defendant’s authorized

punishment contingent on the finding of a fact, that fact–no matter

how the State labels it–must be found by a jury beyond a

reasonable doubt.” Ring, 536 U.S. at __, 153 L. Ed. 2d at 572, 122 S. Ct. at 2439.

	However, we do not find Ring dispositive. As a threshold matter in terms of Apprendi analysis, it is not beyond question that the finding at issue in the instant case–“that there are no mitigating

factors sufficient to preclude the imposition of the death sentence”

(720 ILCS 5/9–1(g), (h) (West 1998))–is properly characterized as

“factual.” The second stage of Illinois capital sentencing

proceedings clearly bears a marked resemblance to the balancing

of factors in which trial courts traditionally engage in determining what sentence to impose within a statutory range, a practice of

which Apprendi explicitly approved. Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449-50, 120 S. Ct. at 2358.

	Moreover, this case diverges from Ring because defendant’s complaint concerns mitigating, not aggravating, factors. See

Apprendi, 530 U.S. at 490 n.16, 147 L. Ed. 2d at 455 n.16, 120 S. Ct. at 2363 n.16 (noting “the distinction the Court has often

recognized [citation] between facts in aggravation of punishment

and facts in mitigation”). We note that the statute at issue in Ring provided that the court “shall impose a sentence of death if the

court finds one or more of the aggravating circumstances

enumerated in subsection G of this section and that there are no mitigating circumstances sufficiently substantial to call for

leniency.” (Emphasis added.) Ariz. Rev. Stat. Ann. §13–703 (F) (West Supp. 2001). However, the Court only discussed the

extension of Apprendi to the finding of aggravating circumstances. The Court specifically noted that the defendant Ring was making

no claim with respect to mitigating circumstances, and noted that

in Apprendi there had been a distinction drawn between facts in aggravation and facts in mitigation (Ring, 536 U.S. at __ n.4, 153 L. Ed. 2d at 569 n.4, 122 S. Ct. at 2437 n.4, quoting Apprendi, 530 U.S. at 490 n.16, 147 L. Ed. 2d at 455, n.16, 120 S. Ct. at

2363 n.16), suggesting that a different result might obtain if an

Apprendi challenge were raised in a mitigating factor context.

	Ring is distinguishable. Also, as we noted in our original disposition of this case, this court has previously decided this

question. See People v. Davis, No. 89704, slip op. at 18-21 (February 22, 2002). As we have previously stated in the Apprendi context,

			“We are bound to follow the United States Supreme

Court’s interpretation of the Constitution of the United

States. People v. Gersch, 135 Ill. 2d 384, 398 (1990); People v. Loftus, 400 Ill. 432, 436 (1948). See also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816). But we are not bound to extend the

decisions of the Court to arenas which it did not purport

to address, which indeed it specifically disavowed

addressing, in order to find unconstitutional a law of this

state. This is especially true where, as here, to do so

would require us to overrule settled law in this state.”  People v. Wagener, 196 Ill. 2d 269, 287 (2001).

The above remains an accurate expression of the philosophy of this

court.  The motion for rehearing is denied.

	JUSTICE McMORROW, specially concurring:

	I agree with the majority that defendant’s convictions and

sentences should be affirmed. I write separately to comment on

defendant’s argument that the Illinois death penalty statute is

unconstitutional because it fails to adequately narrow the class of

defendants eligible for the death penalty.

	In Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), the United States Supreme Court held

unconstitutional the death penalty statutes of Georgia, Texas and

other states, which left the decision of whether to impose a

sentence of death for a capital offense to the unfettered discretion

of a judge or jury. Although there was no majority opinion in

Furman, each of the justices who made up the Furman majority and, in particular, Justices Stewart, White and Douglas, voiced

concern about the infrequent1 and arbitrary manner in which the death penalty was then imposed under the existing discretionary

sentencing schemes. The relative infrequency with which the death

penalty was then being administered, and the lack of any limits on

the sentencer’s discretion to impose the death penalty, led Justice

Stewart to conclude that the death penalty schemes at issue in

Furman allowed the death sentence to be “wantonly” and “freakishly imposed.” Furman, 408 U.S. at 310, 33 L. Ed. 2d at 390, 92 S. Ct. at 2763 (Stewart, J., concurring). Thus, according

to Justice Stewart, the death sentences in Furman were

			“cruel and unusual in the same way that being struck by

lightning is cruel and unusual. For, of all the people

convicted of [capital offenses], many just as reprehensible

as [the offenses at issue], the petitioners are among a capriciously selected random handful upon whom the

sentence of death has in fact been imposed.” Furman, 408 U.S. at 309-10, 33 L. Ed. 2d at 390, 92 S. Ct. at 2762

(Stewart, J., concurring).

The views of Justice White were similar to those expressed by

Justice Stewart. In his concurrence, Justice White observed that,

under the death penalty statutes at issue in Furman, “the death penalty is exacted with great infrequency even for the most

atrocious crimes and that there is no meaningful basis for

distinguishing the few cases in which it is imposed from the many

cases in which it is not.” Furman, 408 U.S. at 313, 33 L. Ed. 2d at 392, 92 S. Ct. at 2764 (White, J., concurring); see also Furman, 408 U.S. at 253, 33 L. Ed. 2d at 357, 92 S. Ct. at 2734 (Douglas,

J., concurring) (“Under theses laws no standards govern the

selection of the penalty. People live or die, dependent on the whim

of one man or of 12”).

	Four years after Furman, the Supreme Court again addressed the constitutionality of Georgia’s death penalty statute in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). The Georgia statute at issue in Gregg, which had been amended in response to Furman, narrowed the range of offenses for which the death penalty was available. Much like Illinois’ current death

penalty statute, the amended Georgia statute provided that a

defendant would be eligible for the death penalty only if the

circumstances of the murder met one of several statutorily defined

aggravating or eligibility factors.

	The Supreme Court upheld the amended Georgia statute. As

in Furman, there was no majority opinion in Gregg. However, the two concurring opinions of the Court, authored by Justice Stewart

and Justice White, understood the meaning of Furman in similar terms:

			“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination

of whether a human life should be taken or spared, that

discretion must be suitably directed and limited so as to

minimize the risk of wholly arbitrary and capricious

action.” Gregg, 428 U.S. at 189, 49 L. Ed. 2d at 883, 96 S. Ct. at 2932 (opinion of Stewart, Powell and Stevens,

JJ.).

		“In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose

the death penalty for murder, the penalty was being

imposed discriminatorily, wantonly and freakishly, and so

infrequently that any given death sentence was cruel and

unusual”). Gregg, 428 U.S. at 220-21, 49 L. Ed. 2d at 901, 96 S. Ct. at 2947 (White, J., concurring, joined by

Burger, C.J., and Rehnquist, J.).

	With this understanding of Furman, the Court in Gregg concluded that the amended Georgia statute eliminated the

constitutional problem of arbitrariness. Critical to this decision was

the fact that, under the new statute, the statutory aggravating

factors limited the number of capital offenses. By narrowing the

number of offenses for which the death penalty was available to a

select few, the amended statute necessarily reduced the risk of

arbitrary and capricious sentencing. Justice White explained:

		“As the types of murders for which the death penalty may

be imposed become more narrowly defined and are limited

to those which are particularly serious or for which the

death penalty is peculiarly appropriate *** it becomes

reasonable to expect that juries–even given discretion not to impose the death penalty–will impose the death penalty

in a substantial portion of the cases so defined. If they do,

it can no longer be said that the penalty is being imposed

wantonly and freakishly or so infrequently that it loses its

usefulness as a sentencing device.” (Emphasis in original.) Gregg, 428 U.S. at 222-23, 49 L. Ed. 2d at 901-02, 96 S. Ct. at 2947-48 (White, J., concurring, joined by Burger,

C.J., and Rehnquist, J.).

	This principle–that a narrowly drawn death penalty statute

reduces the risk of arbitrary and capricious sentencing–was later

explained in these terms:

			“[T]he risk of arbitrariness condemned in Furman is a function of the size of the class of convicted persons who

are eligible for the death penalty. When Furman was decided, Georgia included virtually all defendants

convicted of forcible rape, armed robbery, kidnapping, and

first-degree murder in that class. As the opinions in

Furman observed, in that large class of cases race and other irrelevant factors unquestionably played an unacceptable role in determining which defendants would

die and which would live. However, the size of the class

may be narrowed to reduce sufficiently that risk of

arbitrariness, even if a jury is then given complete

discretion to show mercy when evaluating the individual

characteristics of the few individuals who have been found

death eligible.” Walton v. Arizona, 497 U.S. 639, 715-16, 111 L. Ed. 2d 511, 568, 110 S. Ct. 3047, 3090 (1990)

(Stevens, J., dissenting).

	In cases following Gregg, the United States Supreme Court has continued to reaffirm the principle that death penalty statutes

must be narrowly circumscribed:

		“To avoid [the] constitutional flaw [of arbitrary and

capricious sentencing], an aggravating circumstance must

genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a

more severe sentence on the defendant compared to others

found guilty of murder.

			***

			Our cases indicate, then, that statutory aggravating

circumstances play a constitutionally necessary function at

the stage of legislative definition: they circumscribe the

class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877-78, 77 L. Ed. 2d 235, 249- 50, 103 S. Ct. 2733, 2742-43 (1983).

See also Pulley v. Harris, 465 U.S. 37, 50, 79 L. Ed. 2d 29, 40, 104 S. Ct. 871, 879 (1984) (noting the “constitutionally necessary

narrowing function of statutory aggravating circumstances”);

McCleskey v. Kemp, 481 U.S. 279, 305, 95 L. Ed. 2d 262, 287 , 107 S. Ct. 1756, 1774 (1987) (state may not impose death unless

it has “rational criteria that narrow the decisionmaker’s

judgment”); Tuilaepa v. California, 512 U.S. 967, 972, 129 L. Ed. 2d 750, 759, 114 S. Ct. 2630, 2635 (1994) (narrowing

circumstances “must apply only to a subclass of defendants

convicted of murder”).

	In the case at bar, defendant argues that the Illinois’ death

penalty statute is unconstitutional because, when the statutory

aggravating factors are considered in the aggregate, the statute fails

to “genuinely narrow the class of persons eligible for the death penalty.” Zant, 462 U.S. at 877, 77 L. Ed. 2d at 249, 103 S. Ct. at 2742. Defendant’s argument is an attack on the death penalty

scheme as a whole and is essentially the same argument addressed by the Supreme Court in Furman. Defendant argues that all, or nearly all, of the first degree murders in Illinois are rendered death

eligible by the large number of aggravating factors contained within

our death penalty statute. Because each statutory aggravating

factor potentially subjects a defendant to the same penalty, i.e., death, it follows that the circumstances of the murders covered by

the various aggravating factors must be considered equally

reprehensible. Yet, only a small percentage of first degree murder

defendants actually receive the death penalty. Thus, at root,

defendant’s argument is that Illinois’ current death penalty scheme

is no different from the schemes held unconstitutional in Furman. In essence, defendant is contending that his death sentence is “cruel

and unusual in the same way that being struck by lightning is cruel

and unusual” (Furman, 408 U.S. at 309, 33 L. Ed. 2d at 390 92 S. Ct. 2762 (Stewart, J., concurring)), for of all the defendants

eligible for the death penalty in Illinois, many convicted of murders

just as reprehensible as the murder at issue in this case, defendant

is “among a capriciously selected random handful upon whom the

sentence of death has in fact been imposed” (Furman, 408 U.S. at 309-10, 33 L. Ed. 2d at 390, 92 S. Ct. 2762 (Stewart, J.,

concurring)).

	The current Illinois death penalty statute contains 20

aggravating factors which render a first degree murder death

eligible. These factors are:

			(1) The murder victim was a police officer or firefighter

killed in the course of performing his official duties, to

prevent the performance of official duties, or in retaliation

for performing official duties.

			(2) The murder victim was an employee of an institution

or facility of the Department of Corrections or any similar

local correctional agency and was killed in the course of

performing official duties, to prevent the performance of

official duties, or in retaliation for performing official

duties. Or the victim was an inmate at such an institution

or facility.

			(3) The defendant has been convicted of the first degree

murder of two or more individuals, regardless of whether the deaths were the result of the same or several acts.

			(4) The murder victim was killed as a result of the

hijacking of an airplane, train, ship, bus or other public

conveyance.

			(5) The defendant committed the murder pursuant to a

contract, agreement or understanding by which he was to

receive money or anything of value in return for

committing the murder, or the defendant procured another

to commit the murder for money or anything of value.

			(6) The defendant murdered the victim in the course of

one or more predicate felony offenses. The defendant must

have actually killed or injured the victim, and the

defendant must have acted with the intent to kill or with

the knowledge that his acts created a strong probability of

death or great bodily harm to the murdered individual or

another. The predicate felonies for this factor are: armed

robbery, armed violence, robbery, predatory criminal

sexual assault of a child, aggravated criminal sexual

assault, aggravated kidnapping, aggravated vehicular

hijacking, forcible detention, arson, aggravated arson,

aggravated stalking, burglary, residential burglary, home

invasion, calculated criminal drug conspiracy, streetgang

criminal drug conspiracy, or the attempt to commit any of

the foregoing felonies.

			(7) The murder victim was under 12 years of age and

the death resulted from exceptionally brutal or heinous

behavior indicative of wanton cruelty.

			(8) The defendant committed the murder to prevent the

victim from testifying in a criminal prosecution or giving

material assistance to the State. Or the defendant

committed the murder because the victim was a witness in

a prosecution or gave material assistance to the State.

			(9) The defendant, while committing one of several drug

offenses, or while engaged in a conspiracy or solicitation

to commit such an offense, murdered the victim or

commanded the murder.

			(10) The defendant, while incarcerated, and while

committing a felony offense or while engaged in a

conspiracy or solicitation to commit a felony offense, murdered the victim or commanded the murder.

			(11) The murder was committed in a cold, calculated

and premeditated manner pursuant to a preconceived plan,

scheme or design.

			(12) The murder victim was an emergency medical

technician, paramedic, ambulance driver, or another

medical assistance official, employed by a municipality or

other governmental unit and was killed in the course of

performing official duties.

			(13) The defendant was the leader of a criminal drug

conspiracy and caused or commanded the victim’s murder.

			(14) The murder was intentional and involved the use of

torture.

			(15) The defendant shot the murder victim with a

firearm fired from a motor vehicle.

			(16) The murder victim was 60 years of age or older

and the death resulted from exceptionally brutal or heinous

behavior indicative of wanton cruelty.

			(17) The murder victim was a physically or mentally

disabled person and the defendant knew or should have

known that the victim was disabled.

			(18) The murder was committed by reason of any

person’s activity as a community policing volunteer or to

prevent any person engaging in activity as a community

policing volunteer.

			(19) The murder victim had an order of protection

against the defendant.

			(20) The murder victim was known by the defendant to

be a teacher or other person employed in any school and

the victim was on or near school grounds.

See 720 ILCS 5/9–1(b)(1) (West 2000).

	As the foregoing list shows, the Illinois death penalty statute

appears on its face to be quite extensive. Indeed, the current

number of aggravating factors is almost three times what it was

when the statute was first enacted and is one of the highest in the

country. See Fixing the Death Penalty, Chi. Trib., December 29, 2000, at 22 (noting that, in 2000, only the death penalty statutes in

Delaware and California, with 22 aggravating factors each, had more aggravating factors than Illinois); see also A. Chambers,

Political Aggravation, Ill. Issues, October 2001, at 30, 32-33. Not only is the total number of aggravating factors high but, in

addition, some of the aggravating factors are individually broad.

The felony-murder factor (720 ILCS 5/9–1(b)(6) (West 2000)), for

example, contains some 15 predicate felonies. Thus, while that

factor is narrowly drawn in the sense that it requires both actual

participation in the killing by the defendant and intent, the long list

of felonies makes a large number of first degree murders death

eligible. The “cold, calculated and premeditated” factor (720 ILCS

5/9–1(b)(11) (West 2000)) also has a broad reach. To establish

death eligibility under this factor, the State must prove that the

murder was “deliberated or reflected upon for an extended period

of time.” People v. Williams, 193 Ill. 2d 1, 37 (2000) (plurality op.). This court has held that the period of deliberation may be as

little as three hours. See People v. Brown, 169 Ill. 2d 132, 166-67 (1996); Williams, 193 Ill. 2d at 33 (plurality op.), citing Brown, 169 Ill. 2d at 166-67. Thus, for a first degree murder not to be death eligible in Illinois, the murder must be of a single individual,

the victim must not be one of those listed among the aggravating factors (e.g., community policing volunteer, teacher), the murder must be unaccompanied by any of the 15 felonies contained in the

felony-murder aggravating factor, and the murder must be

deliberated upon for less than three hours. Considering these facts, one would be tempted to conclude that, in Illinois, “it is virtually

impossible to find a murder case that is not potentially death-

eligible.” T. Sullivan, Repair or Repeal–Report of the Governor’s Comm’n on Capital Punishment, 90 Ill. B.J. 304, 306 (2002).

	Furman and its progeny can be read as providing guidelines for determining how narrowly a death penalty statute must be

drawn to satisfy constitutional concerns. See S. Shatz & N.

Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y. L. Rev. 1283 (1997). Regardless of where the line is ultimately drawn, however, the question of whether the

constitutional requirement of narrowing has occurred is a factual

one. 72 N.Y. L. Rev. at 1318. In other words, to determine

whether the Illinois death penalty statute is actually narrowing the

pool of death-eligible defendants, we must know what the scope of

the statute is with respect to actual cases. We must have some idea,

for example, what percentage of first degree murder defendants are potentially death eligible and what percentage of those defendants

actually receive the death penalty. Defendant, however, has not

supplied us with this information. Although one might suspect that

relatively few first degree murders in Illinois are not death eligible,

suspicion is not a substitute for evidence. We cannot answer

defendant’s argument without the pertinent empirical data.

Accordingly, defendant’s contention that the death penalty statute

is unconstitutional fails in this case, not as a matter of law, but

rather, as the majority notes, because defendant has failed to

“substantiate [his] contention in any way.” Slip op. at 40.

	The court’s rejection of defendant’s constitutional argument

in this case should not be viewed as diminishing the importance of

the general policy issue which he has raised. Among the numerous

organizations which have examined the scope of the Illinois death

penalty statute, there is unanimous agreement that, as a matter of

legislative policy, the Illinois death penalty statute is overbroad.

Foremost among these organizations is Governor Ryan’s

Commission on Capital Punishment. This 14-member commission,2 created by Governor Ryan to study the capital punishment system

in Illinois, was charged with making “recommendations to the

governor ‘designed to further ensure the application and

administration of the death penalty in Illinois is just, fair and

accurate.’ ” 90 Ill. B.J. at 304. The commission has recently issued

its report. One of the commission’s principal, and unanimous,

recommendations is that the number of aggravating factors in the

Illinois death penalty statute should be reduced:

			“It appeared to the members of the Commission that to

the extent that the death penalty was to remain an effective

statute in terms of achieving its constitutional objective of

narrowing the class of cases to which the penalty should

be applied, the number of eligibility factors should be

reduced. *** The Commission members unanimously

expressed the view that the current proliferation of eligibility factors, as found in the Illinois death penalty

statute, was unwise.

			***

			Reducing the number of eligibility factors should lead to

more uniformity in the way in which the death penalty is

applied in Illinois, and provide greater clarity in the

statute, while retaining capital punishment for the most

heinous of homicides. The scope of the statute should be

narrowed.” Report of the Governor’s Commission on

Capital Punishment, ch. 4, at 67 (April 2002).

The Illinois Attorneys General Association, in response to the

report of the Governor’s commission, has expressed agreement

that our death penalty statute is overly broad and has

recommended that the number of aggravating factors be cut in half.

See J. Crimmins, Prosecutors Object to Quarter of Death Penalty Reforms, Chi. Daily L. Bulletin, May 17, 2002, at 1, 24. The assembly of the Illinois State Bar Association has also recently

voted in favor of reducing the number of aggravating factors. See

J. Brunts, ISBA Supports Execution Hold, Case Review, Chi. Daily L. Bulletin, June 24, 2002, at 1. Even before the commission’s

report, both opponents and advocates of the death penalty in the

academic community had recognized the need to reconsider and

reduce the scope of current death penalty statutes. See, e.g., R. Blecker, Among Killers, Searching for the Worst of the Worst, Wash. Post, December 3, 2000, at B1 (“Execution is society’s

ultimate sanction, to be threatened rarely and applied even more

rarely. We must rethink the death penalty, revise and refine our

statutes. If we *** rethink it right, I am convinced we will end up

converting the sentences of thousands of murderers presently on

death row. The remaining few hundred monsters we should

execute”); D. McCord, An Open Letter to Governor George Ryan Concerning How to Fix the Death Penalty System, 32 Loy. U. Chi. L.J. 451, 453 (2001) (“Aggravating factors in every jurisdiction are

over-inclusive. While they render almost all the absolute worst

murderers death-eligible, they also render defendants whose crimes

are not as egregious death-eligible”).

	Each time an additional aggravating factor is added to our

death penalty statute, the risk of arbitrary and capricious sentencing

is increased. As Governor Ryan noted last year in vetoing a twenty-first aggravating factor passed by the legislature,3 “as we continue to almost annually add eligibility factors to our death

penalty statute, we introduce more arbitrariness and discretion and

edge ever closer to our previous capital punishment system that

was effectively held unconstitutional by the United States Supreme

Court in 1972.” Governor George Ryan’s Veto Message, August

17, 2001, at 3. The federal constitution mandates that death

penalty statutes be narrowly drawn. As the legislature considers

proposed reforms to the Illinois death penalty statute (see A.

Chambers, The Future of Illinois’ Death Penalty System is Now in Lawmakers’ Hands, Ill. Issues, June 2002, at 6) reducing the breadth of the statute is a matter that should be given serious

consideration.

	CHIEF JUSTICE HARRISON, dissenting:

	The proceedings which culminated in Ballard’s convictions

and sentence of death were fatally flawed because they did not

comport with the new rules enacted by our court governing the

conduct of cases in which the State is seeking the death penalty.

For the reasons set forth in my dissenting opinion in People v. Hickey, No. 87286, slip op. at 34-39 (September 27, 2001) (Harrison, C.J., dissenting), the procedures contained in those rules

are indispensable for achieving an accurate determination of

innocence or guilt and are applicable to all capital cases now

coming before us. Because Ballard was tried, convicted and

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

death sentence should be vacated, and the cause should be

remanded to the circuit court for a new trial.

	Even if Ballard were not entitled to the benefit of the new

rules, his sentence of death could not stand. For the reasons set

forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth

amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois

Constitution (Ill. Const. 1970, art. I, §2). Absent the new rules,

there is no basis for altering that conclusion. At a minimum,

Ballard’s sentence of death should therefore be vacated, and he

should be sentenced to a term of imprisonment. 720 ILCS 5/9–1(j)

(West 1996).

	JUSTICE KILBRIDE, also dissenting:

	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), 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. The procedures in

capital cases prior to this court’s adoption of the new rules were

unreliable and did not adequately 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.