Docket No. 100983.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

JOSEPH BANNISTER, Appellant.

Opinion filed October 17, 2008.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Garman, Karmeier,

and Burke concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion. 

OPINION

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

defendant, Joseph Bannister, was convicted of first degree murder

(720 ILCS 5/9–1(a) (West 2000)), attempted first degree murder (720

ILCS 5/8–4, 9–1(a) (West 2000)), and home invasion (720 ILCS

5/12–11(a) (West 2000)). At a separate sentencing hearing, a jury

found defendant eligible for the death penalty. After considering

evidence in aggravation and mitigation, the jury concluded that death

was the appropriate sentence. 720 ILCS 5/9–1(g) (West 2006).

The trial court sentenced defendant to death on the murder

conviction. The trial court also sentenced defendant to concurrent

prison terms of 45 years on the attempted murder conviction and 30
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years on the home invasion conviction. The death sentence has been

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

§4(b); 134 Ill. 2d Rs. 603, 609(a). We affirm.

I. BACKGROUND

Because defendant does not challenge the sufficiency of the

evidence, we need not set forth a detailed recitation of the facts.

Defendant was charged in a multicount indictment with, inter alia,

the first degree murder of Henrietta Banks; the attempted murder of

Henrietta’s sister, Sharon Banks; and home invasion. Following

admonishments from the trial court, defendant waived a jury for the

guilt-innocence phase of the proceedings, and the court conducted a

bench trial.

The State’s evidence at trial was essentially as follows. Defendant

and Sharon met in September 1992. They were living together when

their daughter, Britnee Bannister, was born in 1993. Sometime in

1997, Sharon moved to 1904 N. Kedzie Avenue in Chicago, where

she lived with Britnee and her three other children. Also living with

Sharon and her children were Sharon’s mother, Arritta Banks;

Sharon’s sister, Henrietta; and Henrietta’s two children. Defendant

did not initially move into the Kedzie Avenue residence with Sharon,

but sometime in 1998, defendant lived there for six or seven months

as he and Sharon attempted to nurture their relationship. Defendant

contributed to Britnee’s support. However, defendant did not pay any

rent and his name was not on the lease.

A few months prior to his crimes, defendant had threatened

Sharon during several altercations. On August 21, 2000, Sharon was

driving east on Jackson Boulevard, with Henrietta in the front

passenger seat, when she encountered defendant driving westbound.

Defendant saw Sharon, turned his car around and followed her.

Defendant then rear-ended Sharon’s car twice, causing her bumper to

fall off. They stopped their cars. Defendant exited his car, approached

the driver’s side of Sharon’s car, banged on her window, and ordered

her to get out of her car. Sharon refused and called the police. Sharon

then moved her car out of the way of traffic. Defendant returned to

Sharon’s car and ordered her to get out of the car, saying that he was

going to kill Sharon. The next day, Sharon went to the circuit court,
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where she received an emergency order of protection and a court date

of September 12, 2000.

On September 12, 2000, Sharon, accompanied by Henrietta and

Arritta, went to court. Outside of the courtroom, in front of Henrietta

and a court advocate, defendant threatened Sharon, saying: “Bitch,

I’m going to kill you.” On September 16, 2000, Sharon and Henrietta

were with their children at a playground on West Harrison Street.

Defendant arrived and wanted to speak with Sharon, who told

defendant to leave them alone. Defendant warned Sharon that he was

going to “fuck her up,” which Sharon interpreted as defendant was

going to take her life. Sharon called out for someone to gather her

children and, as she telephoned police, defendant left the area.

On September 23, 2000, defendant committed the acts giving rise

to this prosecution. At approximately noon, Sharon, Henrietta, their

children, and Arritta were all at their Kedzie Avenue residence. It was

a duplex apartment with bedrooms on the second floor and the

kitchen and living room on the first floor. In addition to the front

door, their apartment had another door connecting to an outside

stairway on the side of the building. Defendant broke open this side

door, damaging the door and locks thereto. Defendant entered the

residence, wearing all black and holding a handgun.Sharon’s children

ran to her, but she ordered them to move away from her. Sharon was

looking into defendant’s eyes when he raised the gun and shot her.

The first bullet grazed Sharon’s face, entered her left shoulder, and

exited her back. Sharon collapsed on the floor.

Defendant stepped over Sharon and approached Henrietta, who

was sitting on a couch. Defendant shot Henrietta three times: in the

forehead, in the right side of the head over the ear, and in the right

upper back. Defendant returned to Sharon, stood over her, and shot

her again, saying, “Die bitch.” This bullet entered Sharon’s rib cage

and was still lodged there when she testified at trial. Defendant then

turned to Arritta, with his gun pointing at her. Britnee jumped into

Arritta’s arms and asked defendant whether he was going to kill all

of them. Defendant then ran out of the apartment. Emergency

personnel were summoned.

Sharon; Arritta; and Sharon’s children, Latoria Moore and Torie

Moore, each testified in court as to defendant’s acts in the apartment

that day. By stipulation, the trial court admitted into evidence the
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depositions of Britnee and Cedric Hunter, another of Sharon’s

children. In their depositions, Britnee and Cedric each related

defendant’s acts in the apartment in accord with each other and with

the in-court witnesses.

Anibal Alvarado’s father lived next to the Banks residence at

1906 N. Kedzie Avenue. At approximately noon on September 23,

2000, Alvarado was working on a car in the backyard of his father’s

residence. Alvarado saw defendant, who was wearing all black, walk

toward 1904 N. Kedzie Avenue, but did not see him enter the

building. Alvarado visited his father every day, and had seen

defendant in the past “with the kids and throwing out trash and all of

that.” Alvarado heard gunshots and children screaming; he then saw

defendant retrace his steps through the alley, get into a car parked on

Cortland Street near the alley, and drive away. Alvarado walked up

the outside stairway of the 1904 building into the apartment. He saw

Henrietta slumped over on a couch and Sharon lying on the floor.

Alvarado checked Henrietta for a pulse, could not find one, and

observed that she was not breathing. Alvarado assisted Sharon until

paramedics arrived.

Chicago Police Detective James DeLaFont was assigned to

investigate the shootings and arrived at the scene early that afternoon.

After interviewing witnesses,DetectiveDeLaFont learned that he was

looking for defendant, and received a photograph of defendant. On

the afternoon of February 11, 2001, Chicago Police Officer Robert

Walker and his partner, Officer Robert Burrell, responded to a report

of a wanted person. They proceeded to the alley behind 11594 S.

State Street, where Officer Walker saw defendant standing. Officers

Walker and Burrell exited their squad car, approached defendant, and

asked him for his name. Defendant identified himself as Robert

Wallace. During this time, additional officers arrived. The officers

arrested defendant as Joseph Bannister, transported him to the local

police station, and notified detectives. Defendant was subsequently

transported to Area Five police headquarters.

Defendant eventually gave the following statement. On

September 23, 2000, defendant responded to a page from Sharon. He

told her that he was coming to the apartment to take a television and

some furniture and clothing. Defendant also wanted to see his

daughter Britnee. Sharon replied that defendant could not have those
 

1Defendant was also charged with the attempted murder of Arritta, and the

trial court found defendant guilty as charged. However, the court

subsequently vacated that conviction. Also, defendant was charged with

aggravated battery with a firearm in relation to Sharon. The trial court found

that this charge merged with the conviction for Sharon’s attempted murder.

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items because they were for the family and not for him. Sharon also

informed defendant that he could not see Britnee without a court

order. Defendant told Sharon that he would wait until Britnee was old

enough to decide for herself if she wanted to see him. Defendant told

Detective DeLaFont and his partner that defendant was exasperated

with Sharon and the way she treated him. Defendant stated that he

went to Sharon’s apartment, used the outside stairs, let himself in

with his key, shot Sharon, and then immediately left the apartment.

Defendant noticed that Sharon’s mother, sister, and several children

were there, but nothing else happened.

Upon further questioning, defendant stated that he had said

enough and that he would say no more unless he received certain

guaranties. The detectives rejected defendant’s attempt to bargain

with them.

Defendant did not present evidence and, after receiving

admonishments from the trial court, elected not to testify. The defense

case was that the State failed to prove defendant guilty of the charged

offenses beyond a reasonable doubt. In closing argument, defense

counsel attacked the credibility of the State’s witnesses and described

purported discrepancies in their testimony. The trial court found

defendant guilty of the murder of Henrietta, the attempted murder of

Sharon, and home invasion.1

Following admonishments from the trial court, and against the

advice of defense counsel, defendant chose to have the death

sentencing hearing conducted before a jury. At the eligibility phase,

the State presented the in-court testimony of Sharon, Cedric, Latoria,

Arritta, Alvarado, and Detective DeLaFont, which was consistent

with their testimony at the guilt phase of the trial. By stipulation, the

trial court admitted into evidence Britnee’s deposition testimony. The

State also presented the testimony of additional witnesses.
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Chicago Police Officer Debra Woldeit testified that she and her

partner were among the first law enforcement officers to arrive at the

scene of the shooting, where she observed damage to the side door.

Dr. Michelle Mellett testified that she treated Sharon for multiple

gunshot wounds. One of the bullets caused a large graze wound

across Sharon’s left cheek, entered the area of the left collarbone and

exited out of the back. Another bullet entered the right side of

Sharon’s chest, broke the fifth rib, and lodged in the spine. Sharon

was in critical condition, having difficulty breathing, and required

insertion of a chest tube to save her life. Sharon was conscious and

repeatedly stated that the father of her child had broken into her home

and shot them, and that her sister was dead.

By stipulation, the trial court admitted into evidence a certified

copy of: (1) defendant’s conviction of the first degree murder of

Henrietta, the attempted murder of Sharon, and home invasion; and

(2) defendant’s birth certificate, bearing a birth date of December 11,

1966. Following admonishments from the trial court, defendant

elected not to testify or call any witnesses at the eligibility phase of

the death sentencing hearing.

After hearing closing arguments and receiving the trial court’s

instructions, the jury found beyond a reasonable doubt that: (1)

defendant was over 18 years old at the time of the murder; and (2)

defendant committed the murder in the course of another felony, i.e.,

home invasion. Thus, the jury found defendant eligible for the death

penalty. The trial proceeded to the second stage of the death

sentencing hearing.

The State’s evidence in aggravation included the testimony of

Wellington Rolle. In December 1984, Rolle was a member of a street

gang, and he knew defendant to be a member of a rival street gang.

Rolle was attending a party in an apartment. Hearing a “commotion,”

he stepped out of the apartment into the building’s “breezeway,”

which he described as a hallway on the exterior of the building. Rolle

heard a gunshot. He then saw defendant produce a handgun and aim

it at Rolle’s face. Defendant then shot Rolle in the face. Defendant

continued to shoot at Rolle as he ran to his mother’s apartment in the

housing complex. He was taken to a hospital where he was not

expected to live. The bullet struck Rolle’s jaw, grazed his windpipe,

and lodged in the back of his neck, two inches from his spine. In July
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1985, defendant was convicted of attempted murder, aggravated

battery, and armed violence. In August 1985, defendant was

sentenced to a 15-year prison term. Having violated his probation for

the 1984 robbery, defendant was sentenced on that conviction to

seven years’ imprisonment.

Sharon testified in aggravation. As recited earlier, defendant met

Sharon in September 1992, and they were living together when their

daughter Britnee was born in 1993. Sometime that year Sharon and

defendant had an altercation, and Sharon filed a child support claim

and obtained an order of protection. Sharon told defendant he could

no longer live with her family. In May 1993, defendant was arrested

for selling drugs and, in 1995, he pled guilty to possession of a

controlled substance with intent to deliver and was sentenced to four

years’ imprisonment. After defendant was imprisoned,Sharonmoved

to the Kedzie Avenue residence without informing defendant because

she was afraid of him. During this incarceration, defendant harassed

Sharon with letters and telephone calls from prison.

In January 1997, defendant was released from prison. He learned

that Sharon was living at the Kedzie Avenue address and went to see

her. Sharon did not allow defendant to move in with her and her

family, but allowed him occasionally to spend the night and to visit

Britnee.

In August 1997, the relationship, according to Sharon, became

“very violent.” Defendant took Britnee away from Sharon and kept

her for a week. According to Sharon: “I called the police constantly.

He comes back with the baby playing the baby game. I will give you

your baby if you will come and talk to me.” Defendant returned

Britnee. When he did so, however, he also pushed Sharon to the

ground. When Sharon attempted to defend herself, defendant struck

her head with his hands. Sharon’s mother, Arritta, intervened. Sharon

called the police; defendant was still there when they arrived.

Defendant told the officers that he was returning the baby. He was not

arrested and he left the residence.

Sharon testified regarding many subsequent encounters with

defendant. For several years, defendant repeatedly threatened Sharon

with violence if she did not speak to him. Indeed, one such encounter

resulted in defendant being convicted of domestic battery and phone

harassment, and ultimately sentenced to 130 days in the Cook County
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jail. This pattern continued until September 23, 2000, when defendant

committed the first degree murder of Henrietta, the attempted murder

of Sharon, and home invasion.

The State also presented evidence of defendant’s significant

disciplinary infractions while in the custody of the Illinois

Department of Corrections, from 1985 to 1992, and of Cook County

jail pending trial. The infractions included assault, intimidation, and

possession of narcotics and homemade weapons. The State rested in

aggravation.

At the outset of the mitigation portion of the death sentencing

hearing, defendant informed the trial court that he did not want to

present any evidence in mitigation. Despite this request, the trial court

allowed defense counsel to present mitigation evidence. Anita Henry,

defendant’s half-sister, and Michael Herring, defendant’s halfbrother, testified in mitigation. They testified essentially that

defendant maintained a relationship with Britnee and provided for

her. Herring never saw defendant hostile or angry at Sharon or

Britnee. However, Henry acknowledged that there were areas of

Sharon and defendant’s relationship about which she did not know,

including that Sharon had an order of protection against defendant.

At the close of the death sentencing hearing, the jury found that

death was the appropriate sentence. The trial court ultimately denied

defendant’s motions for a new trial and a new sentencing hearing.

The court entered judgment on the finding of guilt and sentenced

defendant to death. The court also sentenced defendant to a

concurrent 45-year prison term on the attempted murder conviction

and a concurrent 30-year prison term on the home invasion

conviction.

Defendant appeals. Additional pertinent facts will be discussed in

the context of the issues raised on appeal.

II. ANALYSIS

We will discuss defendant’s allegations of error in the sequence

in which the alleged errors occurred in the proceedings below.
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A. Jury Waiver for Guilt Phase

Defendant first contends that he did not knowingly and

voluntarily waive his right to trial by jury at the guilt/innocence phase

of the proceedings. Defendant argues that the trial court incorrectly

informed him of the minimum and maximum penalties for his several

charged offenses.

We initially observe that defense counsel failed to object to any

of the court’s allegedly erroneous admonitions at trial and failed to

include some of them in his posttrial motion. “Both a trial objection

and a written post-trial motion raising the issue are required for

alleged errors that could have been raised during trial.” (Emphases in

original.) People v. Enoch, 122 Ill. 2d 176, 186 (1988). Therefore,

this issue is procedurally forfeited.

Seeking our review, defendant invokes the plain-error doctrine of

Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The doctrine

serves as “ ‘a narrow and limited exception to the general [rule of

procedural default].’ ” People v. Szabo, 113 Ill. 2d 83, 94 (1986),

quoting People v. Pastorino, 91 Ill. 2d 178, 188 (1982). This court

will review unpreserved error when a clear and obvious error occurs

and: (1) the evidence is closely balanced; or (2) that error is so serious

that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d 551,

565 (2007); People v. Hall, 194 Ill. 2d 305, 335 (2000). When a

defendant fails to establish plain error, the result is that the

“procedural default must be honored.” People v. Keene, 169 Ill. 2d 1,

17 (1995). In addressing defendant’s plain-error contention, it is

appropriate to determine whether error occurred at all. People v.

Harris, 225 Ill. 2d 1, 31 (2007); People v. Sims, 192 Ill. 2d 592, 621

(2000).

The right to a trial by jury is a fundamental right guaranteed by

the federal Constitution (U.S. Const., amends. VI, XIV; Duncan v.

Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 496, 88 S. Ct. 1444,

1447 (1968)) and the Illinois Constitution of 1970 (Ill. Const. 1970,

art. I, §§8, 13). Indeed, based on our state constitution, an Illinois

criminal defendant’s right to a trial by jury includes the right to waive

a jury trial. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988).

However, to be valid, the defendant must make the jury waiver

knowingly and voluntarily. People v. Bracey, 213 Ill. 2d 265, 269
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(2004); People v. Wesley, 30 Ill. 2d 131, 133 (1964) (and cases cited

therein); accord United States ex rel. Williams v. DeRobertis, 715

F.2d 1174, 1178-79 (7th Cir. 1983).

Consistent with these constitutional requirements, section 103–6

of the Code of Criminal Procedure of 1963 provides: “Every person

accused of an offense shall have the right to a trial by jury unless ***

understandingly waived by defendant in open court ***.” 725 ILCS

5/103–6 (West 2006). To the same end, our decisions have imposed

on a trial court the duty of ensuring that a defendant waives the right

to a jury trial expressly and understandingly. People v. Smith, 106 Ill.

2d 327, 334 (1985) (collecting cases). However, a trial court need not

give any specific admonition or advice for a defendant to make an

effective jury waiver. In re R.A.B., 197 Ill. 2d 358, 364 (2001);

People v. Tooles, 177 Ill. 2d 462, 469 (1997); Smith, 106 Ill. 2d at

334. The determination of whether a jury waiver is valid cannot rest

on any precise formula, but rather depends on the facts and

circumstances of each particular case. Bracey, 213 Ill. 2d at 269

(collecting cases); Tooles, 177 Ill. 2d at 469. The statutory

requirement of a written jury waiver (725 ILCS 5/115–1 (West 2006))

does not define or give substance to the constitutional right to choose

whether to have a jury trial. Rather, a written jury waiver merely

memorializes the defendant’s decision, allowing a court to review the

record to ascertain whether a defendant’s jury waiver was made

understandingly. Tooles, 177 Ill. 2d at 468. Because the facts of this

case are not in dispute, the issue is a question of law and our review

is de novo. See Bracey, 213 Ill. 2d at 270; R.A.B., 197 Ill. 2d at 362.

In the present case, approximately one month prior to defendant’s

trial, the trial court explained to defendant the two phases of a death

penalty proceeding, with the first phase determining guilt or

innocence and the second phase determining the appropriate penalty.

The trial court also explained to defendant that, for the

guilt/innocence phase, “you’re entitled to a jury or you can waive the

jury, and the Court, myself, would be solely responsible for deciding

whether or not the State has proved you guilty beyond a reasonable

doubt.” The court further explained to defendant that, during the

second phase of the proceedings, if necessary, “you are also entitled

to a trial by jury, or if you waive the same, you place the fact finding,

the sentencing finding in that case, in the hands of the Court, myself.”
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The court explained to defendant the trial procedure and defendant’s

right to a jury so that defendant could “think about it” prior to the

commencement of trial.

On the date scheduled for jury selection, defense counsel stated

that defendant had signed a written jury waiver for the

guilt/innocence phase of the trial and signed a jury waiver for the

death sentencing hearing. The trial court then, sua sponte, delivered

an extended lecture, addressed to defendant individually, regarding

defendant’s charged offenses with their minimum and maximum

penalties. The record evinces the trial court’s difficulty with meshing

familiar sentencing ranges with the relatively recent “15/20/25-tolife” firearm sentencing enhancements. See generally People v.

Sharpe, 216 Ill. 2d 481 (2005) (discussing Pub. Act 91–404, eff.

January 1, 2000).

Defendant contends that the trial court erroneously informed him

of: (1) the minimum sentence he could receive for first degree

murder; (2) his possible minimum and maximum sentences for

attempted first degree murder and home invasion; and (3) the

possibility that he could receive concurrent sentences of

imprisonment.Defendantinvokesthe general constitutional principle:

“ ‘Waivers of constitutional rights not only must be voluntary but

must be knowing, intelligent acts done with sufficient awareness of

the relevant circumstances and likely consequences.’ ” People v.

Johnson, 75 Ill. 2d 180, 187 (1979), quoting Brady v. United States,

397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469

(1970). Citing Brady, defendant argues that his jury waiver was not

knowing in that he could not understand “the consequences of a

conviction after a bench trial where the trial court misinformed him

of the mandated sentencing requirements ***. The consequences of

a conviction, by either a jury or by the trial court, are the penalties to

which the defendant will be subjected.” (Emphases added.) We

cannot accept defendant’s argument.

Defendant does not even suggest how the completeness or

correctness of the sentencing information related by the trial court

would have caused him to make a different jury waiver decision. We

fail to see how such information could have had any bearing on his

jury waiver. “Defendant apparently attempts to equate a jury waiver

with a plea of guilty where concededly the potential sentence is a
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weighty consideration. Here, however, defendant had entered a plea

of not guilty ***.” People v. Taylor, 3 Ill. App. 3d 313, 316 (1972).

In hearings on pleas of guilty, or in any case where the defendant

offers to stipulate that the evidence is sufficient to convict, our Rule

402(a)(2) requires a trial court to inform a defendant of “the

minimum and maximum sentence prescribed by law, including, when

applicable, the penalty to which the defendant may be subjected

because of prior convictions or consecutive sentences.” 177 Ill. 2d R.

402(a)(2). This requirement “is based upon the assumption that notice

of both the minimum and maximum [sentence] will give the

defendant a more realistic picture of what might happen to him.”

(Emphasis added.) 177 Ill. 2d R. 402(a)(2), Committee Comments,

at lxxvii. “Contrary to the situation with a jury trial waiver,

sentencing is a consequence of the acceptance of a guilty plea.

Sentencing, however, is not a consequence of the election to waive a

jury trial.” Horsman v. State, 82 Md. App. 99, 104, 570 A.2d 354,

357 (1990); accord People v. McCleary, 353 Ill. App. 3d 916, 919-20

(2004) (distinguishing admonition required for guilty plea pursuant

to Rule 402(a)(2) from requirement that jury waiver be knowingly

and intelligently made). A defendant who pleads not guilty receives

a full and fair trial before either a jury or the court sitting without a

jury. Regardless of who serves as the trier of fact, the defendant’s

possible sentences would be the same.

Whether the general constitutional test of waiver is satisfied

depends on the particular right being waived. Brady, 397 U.S. at 748,

25 L. Ed. 2d at 756, 90 S. Ct. at 1469 (observing that constitutional

rights must be waived “with sufficient awareness of the relevant

circumstances”). When a defendant waives the right to a jury trial, the

pivotal knowledge that the defendant must understand–with its

attendant consequences–is that the facts of the case will be

determined by a judge and not a jury. State v. Conroy, 168 Ariz. 373,

376, 814 P.2d 330, 333 (1991); Williams, 715 F.2d at 1180.

In the present case, following the trial court’s sentencing

discourse, the following colloquy occurred:

“THE COURT: Okay. Again, on the guilt or innocence

phase, it’s your choice as to whether or not you wish a jury or

the bench trial, meaning I would decide whether the State has
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proven you guilty beyond a reasonable doubt of any or all of

these charges.

If there is a finding of guilt on any or all of these charges,

whether by jury or by the Court, you have a second election,

and that is, the death penalty phase of it.

* * *

If, however, you want [sic] you are entitled to a jury or a

bench in the death penalty phase as well. So you could elect

for a jury on the guilt or innocence and waive it for the death

penalty, or you could select a jury for both the guilty or

innocence [and] the death penalty phase, or you could take a

bench for the guilt or innocence and also demand a jury for

the death penalty phase, or you could waive the jury on both

the guilt or innocence and the death penalty phase. A lot of

options. You understand that?

THE DEFENDANT: When you say ‘the phase,’ if I take

a bench, and then the penalty phase, I could have you as the

impose [sic] or the jury?

THE COURT: Yes. You have two choices in each stage.

You don’t have to make the choice for the second phase at

this point ***. You can leave that in here until such time as

you have the trial on the guilt or innocence phase.

THE DEFENDANT: I’ll wait until that point come.

* * *

THE COURT: On the guilt or innocence phase, do you

wish to be tried by the jury or the Court?

THE DEFENDANT: That would be you?

THE COURT: That’s right.

THE DEFENDANT: All right.

THE COURT: And you wish to be tried by jury or by the

Court?

THE DEFENDANT: So I have to decide now?

[Defense Counsel]: For guilt or innocence.

THE DEFENDANT: For guilt or innocence, yeah, the

Judge.
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THE COURT: You’re sure?

THE DEFENDANT: Yeah.

THE COURT: Is anyone forcing you or threatening you

to give up your right to a jury?

THE DEFENDANT: No.

THE COURT: You’re doing that freely and voluntarily?

THE DEFENDANT: Yes.

THE COURT: Any promises made to you in the event

you gave up your right to a trial by jury, any promises made

to you?

THE DEFENDANT: No, no.

THE COURT: And this is your signature on the jury

waiver?

THE DEFENDANT: Yeah.

THE COURT: And that’s what you want to do, waive

your right to a trial by jury in the guilt or innocence phase?

THE DEFENDANT: Yeah.

THE COURT: Leave granted to file the jury waiver. The

Court finds the defendant knowing and intelligently, freely

and voluntarily executed a jury waiver on the guilt or

innocence phase.”

The record here establishes that defendant knew the difference

between a bench trial and a jury trial and voluntarily chose the

former. See People v. McGee, 268 Ill. App. 3d 582, 585 (1994);

People v. Geary, 8 Ill. App. 3d 633, 635 (1972).

Further, our earlier recitation of defendant’s criminal record

indicates that he was no stranger to the criminal justice system. For

example, we recall that defendant was convicted of several offenses

relating to the December 1984 shooting of Wellington Rolle. The

record in this case includes the report of proceedings of defendant’s

July 1985 trial for those crimes. Defendant chose a bench trial after

the court admonished him that he had the right to a jury trial, which,

the court advised, “takes place when twelve persons are selected by

the parties and sworn that they will hear the evidence and they make

the determination of questions of fact, including the ultimate question

of guilt or not guilty.” Therefore, in this case, when the trial court
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advised defendant, in the presence of counsel, of his constitutional

right to a jury trial, defendant was already familiar with this right and

the relevant consequence of waiving it–that he would receive a bench

trial. See, e.g., Tooles, 177 Ill. 2d at 471; Wesley, 30 Ill. 2d at 133-34.

We uphold the trial court’s finding that defendant knowingly and

understandingly waived his right to a jury trial at the guilt phase of

the proceedings and that there was no denial of his constitutional right

thereto. See, e.g., Tooles, 177 Ill. 2d at 470; People v. Steenbergen,

31 Ill. 2d 615, 617 (1964); Williams, 715 F.2d at 1180; Conroy, 168

Ariz. at 376, 814 P.2d at 333. Having found no error, there can be no

plain error. See, e.g., Harris, 225 Ill. 2d at 31-32.

B. Jury Waiver for Death Sentencing Hearing: Who Decides?

An Illinois criminal defendant has a statutory right to choose a

jury for the death sentencing hearing, even when convicted at a bench

trial. 720 ILCS 5/9–1(d) (West 2006); see People v. Brown, 169 Ill.

2d 132, 155-56 (1996). Defendant next contends that the trial court

erred in denying defense counsel’s request for a bench death

sentencing hearing and granting defendant’s demand for a jury to

determine his sentence. Defendant contends that defense counsel, as

a matter of trial strategy, should have made the ultimate choice of jury

or bench death sentencing hearing.

As we earlier recounted, prior to trial defendant signed a written

jury waiver for the death sentencing hearing. However, he

subsequently decided to postpone that decision until the conclusion

of the guilt-innocence phase of the trial. After defendant was

convicted of the charged offenses, the trial court explained to

defendant the two parts of a death sentencing hearing: determining

deatheligibility and weighing evidence in aggravation and mitigation.

The trial court repeated to defendant that he was entitled to have a

jury make the sentencing determination, or defendant could waive

that right and have the court decide the sentence. Defendant stated

that he understood the two-step nature of the death sentencing

hearing; he indicated that he had discussed his choice with his

attorneys; and he requested a jury for sentencing. Defense counsel

immediately asked for a recess.
-16-

When the proceedings resumed, defense counsel informed the

court: “Judge, the issue prior to our taking a break was whether

[defendant] was going to waive a jury for the sentencing phase after

having been found guilty ***. [Defendant] is not waiving jury. He is

requesting a jury.” The proceedings were continued for one week. At

the next court date, defense counsel told the court that defendant

wished to speak. However, before defendant could speak, the trial

court again described to defendant the two-step nature of the death

sentencing hearing, emphasizing that either a jury or the court,

whichever defendant chooses, will make the sentencing decision. The

trial court then advised defendant of the possible minimum and

maximum penalties for his convictions. Defendant then stated that he

wanted a jury for sentencing. The trial court asked defendant if he had

spoken with counsel about his choice and if he was sure that he

wanted a jury and not the court for sentencing. Defendant responded:

“I told her [trial counsel] a jury three times, your Honor, and I’m still

telling her a jury.” The court explained to defendant that once

selected, the jury would remain for both steps of the death sentencing

hearing, and defendant responded that he understood. Defense

counsel then asked defendant in open court: “Do you want the judge

or the jury to decide your sentence? That is what I’m asking you.”

Defendant answered: “The jury.”

The next day, prior to jury selection, defense counsel filed a

written “Motion for Bench Hearing on Eligibility and Sentencing

Phase of Above Cause.” In this motion, defense counsel requested the

trial court “to grant a bench hearing for the eligibility and sentencing

in the above cause not withstanding [sic] defendant’s desire for a jury

for the penalty phase.” Defense counsel asserted therein that “the

decision for either a bench or jury at this juncture is trial strategy and

lies with defendant’s attorney.” The trial court denied defense

counsel’s motion and defendant received a jury death sentencing

hearing.

While an Illinois criminal defendant has a constitutional right to

choose a jury at the guilt/innocence phase of the proceedings, the

defendant’s right to choose a jury at the death sentencing hearing is

wholly statutory. 720 ILCS 5/9–1(d) (West 2006); People v.

Strickland, 154 Ill. 2d 489, 517 (1992) (collecting cases). Defendant

does not, and based on this record, cannot, contend that the trial court
-17-

did not advise defendant of his option of sentencers at the death

sentencing hearing. Rather, defendant posits that “there are certain

decision[s] involving constitutional rights that are ultimately for the

defendant to decide.” According to defendant, since the right to a jury

at a death sentencing hearing is statutory and not constitutional, then

it is not “a personal decision left to the defendant.” Therefore,

defendant argues, the election or waiver of a jury at the death

sentencing hearing is a matter of trial strategy ultimately for defense

counsel to decide. We cannot accept this argument.

It is generally established that “certain decisions regarding the

exercise or waiver of basic trial rights are of such moment that they

cannot be made for the defendant by a surrogate.” Florida v. Nixon,

543 U.S. 175, 187, 160 L. Ed. 2d 565, 578, 125 S. Ct. 551, 560

(2004). Courts have affirmed that a criminal defendant has “the

ultimate authority” to decide one such basic trial right–whether to

waive a jury. Nixon, 543 U.S. at 187, 160 L. Ed. 2d at 578, 125 S. Ct.

at 560; People v. Segoviano, 189 Ill. 2d 228, 240 (2000).

Prevailing standards of practice elucidate this conclusion. Courts

have widely recognized the American Bar Association (ABA)

Standards for Criminal Justice as a guide for discerning professional

norms. See, e.g., Strickland v. Washington, 466 U.S. 668, 688, 80 L.

Ed. 2d 674, 694, 104 S. Ct. 2052, 2065 (1984); Canaan v. McBride,

395 F.3d 376, 384 (7th Cir. 2005); People v. Manning, 227 Ill. 2d

403, 417-18 (2008). The ABA Standards for Criminal Justice provide

that certain decisions relating to the conduct of the case are ultimately

for the defendant and others are ultimately for defense counsel. The

decisions that are for the defendant to make after full consultation

with counsel include: “(i) what pleas to enter; (ii) whether to accept

a plea agreement; (iii) whether to waive a jury trial; (iv) whether to

testify in his or her own behalf; and (v) whether to appeal.” ABA

Standards for Criminal Justice 4–5.2, at 199-200 (3d ed. 1993). The

commentary to this section advises:

“In making each of these decisions *** the accused should

have the full and careful advice of counsel. Although it is

highly improper for counsel to demand that the defendant

follow what counsel perceives as the desirable course or for

counsel to coerce a client’s decision through

misrepresentation or undue influence, counsel is free to
-18-

engage in fair persuasion and to urge the client to follow the

proffered professional advice. Ultimately, however, because

of the fundamental nature of decisions such as these, so

crucial to the accused’s fate, the accused must make the

decisions himself or herself.” (Emphasis added.) ABA

Standards for Criminal Justice 4–5.2, Commentary, at 201 (3d

ed. 1993).

We are hard-pressed to conceive of a decision more “crucial to the

defendant’s fate” than whether a single judge or a jury will determine

whether the defendant lives or dies.

Although not constitutionally required (see Spaziano v. Florida,

468 U.S. 447, 459-60, 82 L. Ed. 2d 340, 351-53, 104 S. Ct. 3154,

3161-62 (1984); People v. Erickson, 117 Ill. 2d 271, 289 (1987)), a

jury serves two significant functions in a death sentencing hearing.

First, the jury acts as a bulwark between the defendant and the State.

Spaziano, 468 U.S. at 462, 82 L. Ed. 2d at 354, 104 S. Ct. at 3163.

The right to trial by a jury composed of laypersons from the

community is a safeguard against a corrupt or overzealous

prosecution and against a compliant, biased, or eccentric judge.

Williams v. Florida, 399 U.S. 78, 100, 26 L. Ed. 2d 446, 460, 90 S.

Ct. 1893, 1905-06 (1970), cited in Spaziano, 468 U.S. at 462, 82 L.

Ed. 2d at 354, 104 S. Ct. at 3163. Second, in selecting between

imprisonment and death for a capital defendant, a jury maintains a

link between contemporary community values and the penal system.

Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, 20 L. Ed. 2d 776,

783 n.15, 88 S. Ct. 1770, 1775 n.15 (1968), cited in Spaziano, 468

U.S. at 462, 82 L. Ed. 2d at 354, 104 S. Ct. at 3163.

For the foregoing reasons, we uphold the trial court’s denial of

defense counsel’s motion for bench sentencing notwithstanding

defendant’s exercise of his statutory right to a jury for the death

sentencing hearing. See, e.g., Ware v. State, 360 Md. 650, 703-04,

759 A.2d 764, 792 (2000) (“Whether a defendant is to be sentenced

by the court or the jury is a decision for the defendant”).

C. “De Facto Natural Life” Imprisonment

Defendant next contends that the trial court denied him a fair

death sentencing hearing by giving the jury misinformation through
-19-

comments during voir dire and through written jury instructions. The

court told the jury that if the jury found that death was not an

appropriate sentence, the court would impose a sentence other than

death. Defendant characterizes this information as “incomplete” and

“misleading.” According to defendant, the trial court should have

instructed the jury that his convictions subjected him to a “mandatory

minimum” prison term of 107 years, which for defendant, who was

36 years old at the time of trial, was effectively “de facto natural life”

imprisonment.

The State initially responds that this contention is procedurally

forfeited. The record shows that defendant failed to object to the trial

court’s comments during voir dire, failed to offer an alternative jury

instruction, and failed to include this issue in his posttrial motion. To

preserve this issue for appeal, defendant was required to make a

contemporaneous objection at the sentencing hearing and to raise the

issue in a postsentencing motion. See Hall, 194 Ill. 2d at 352; Enoch,

122 Ill. 2d at 186. Likewise, a defendant generally forfeits review of

any purported jury instruction error if the defendant does not object

to the instruction, or tender an alternative instruction at trial, and does

not raise the instruction issue in a posttrial motion. People v. Herron,

215 Ill. 2d 167, 175 (2005); People v. Simpson, 172 Ill. 2d 117, 150

(1996). Accordingly, this contention is procedurally forfeited.

Seeking our review, defendant invokes the plain-error doctrine.

See 134 Ill. 2d R. 615(a); Piatkowski, 225 Ill. 2d at 565; Hall, 194 Ill.

2d at 352. Supreme Court Rule 451(c) (177 Ill. 2d R. 451(c)) likewise

provides a limited exception to the procedural forfeiture of purported

jury instruction error in criminal cases and is construed identically

with Rule 615(a). Piatkowski, 225 Ill. 2d at 564; People v. Durr, 215

Ill. 2d 283, 296-98 (2005). However, in addressing defendant’s plainerror contention, it is appropriate to determine whether error occurred

at all. Harris, 225 Ill. 2d at 31; People v. Durr, 215 Ill. 2d 283, 298-

99 (2005); Sims, 192 Ill. 2d at 621.

The trial court told jurors during voir dire that if the jury did not

conclude that death was an appropriate sentence, the court “would go

on to sentencing other than the death penalty” or “[i]t will be a

sentence of years in the penitentiary, and the death sentence will be

off the table.” Correspondingly, the court informed the jury in written

jury instructions that if the jury found that defendant was ineligible
-20-

for the death penalty, or subsequently concluded that death was not

an appropriate sentence, then the “court will impose a sentence other

than death.” See Illinois Pattern Jury Instructions, Criminal, Nos.

7B.01, 7C.05 (4th ed. 2000) (hereafter IPI Criminal 4th). According

to defendant, this information was incomplete and misleading

because his convictions subjected him to a “mandatory minimum”

prison term of 107 years, which for defendant, was “de facto natural

life” imprisonment.

Defendant invokes People v. Gacho, 122 Ill. 2d 221 (1988), in

which this court held that, in a multiple-murder case, the trial court

should instruct the jury that, if the jury does not sentence the

defendant to death, the defendant will be sentenced to natural life

imprisonment, and that no person serving a natural life term can be

paroled or released, except through executive clemency. Gacho, 122

Ill. 2d at 262. Indeed, a plurality in Simmons v. South Carolina, 512

U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), observed that in

assessing future dangerousness, the actual duration of the defendant’s

prison sentence is indisputably relevant to the sentencing

determination. Holding all other factors constant, it is reasonable for

a sentencing jury to view a defendant who is eligible for parole as a

greater threat to society than a defendant who is not. According to the

plurality, there may be no greater assurance of a defendant’s future

nondangerousness to the public than the fact that the defendant never

will be released on parole. Simmons, 512 U.S. at 163-64, 129 L. Ed.

2d at 142, 114 S. Ct. at 2194 (plurality op.). The plurality opinion

notes that, based on Gacho, Illinois is in accord with “a large majority

of States.” Simmons, 512 U.S. at 166-67 & n.7, 129 L. Ed. 2d at 144

& n.7, 114 S. Ct. at 2195 & n.7. Defendant argues that the sentencing

jury could have believed that he could be sentenced to probation or

to a minimal term of imprisonment, which would lead the jury to vote

for death to protect the public. According to defendant, the trial court

should have instructed the jury that defendant was subject to a prison

term that was so long that it was effectively “de facto natural life”

imprisonment. Had the jury been so informed, it might have found

that death was not appropriate.

This contention lacks merit. The United States Supreme Court

and this court have already rejected this “functional approach” and

have limited the protection recognized in Gacho and Simmons to
-21-

cases where defendants are ineligible for parole as a matter of law.

Ramdass v. Angelone, 530 U.S. 156, 169, 181, 147 L. Ed. 2d 125,

138, 145, 120 S. Ct. 2113, 2121, 2128 (2000) (plurality op.)

(“Simmons applies only to instances where, as a legal matter, there is

no possibility of parole if the jury decides the appropriate sentence is

life in prison”); Ramdass, 530 U.S. at 181, 147 L. Ed. 2d at 145, 120

S. Ct. at 2128 (O’Connor, J., concurring) (“Simmons entitles the

defendant to inform the capital sentencing jury that he is parole

ineligible where the only alternative sentence to death is life without

the possibility of parole”); Turner v. Quarterman, 481 F.3d 292, 296-

97 (5th Cir. 2007); Campbell v. Polk, 447 F.3d 270, 286-89 (4th Cir.

2006); Simpson, 172 Ill. 2d at 150-51 (“A defendant is not entitled to

have the jury informed that if defendant is not sentenced to death, he

is eligible for a range of possible alternate sentences, including

natural life imprisonment”). To accept defendant’s contention, in a

single-murder case, the jury would have to be informed of all the

sentencing alternatives possible under the determinative sentencing

system in Illinois. Such information would divert the jury’s attention

from the defendant’s character and the circumstances of the offense

and would invite the jury to speculate on possibilities that may or may

not occur. People v. Williams, 161 Ill. 2d 1, 70-71 (1994); People v.

Simms, 143 Ill. 2d 154, 180-82 (1991). Accordingly, we find no error

in the trial court’s failure to inform the jury that defendant was

subject to a “de facto natural life” term of imprisonment. Having

found no error, there can be no plain error. See, e.g., Harris, 225 Ill.

2d at 31-32.

Defendant alternatively contends that he was denied the effective

assistance of counsel when his trial counsel failed to preserve this

issue for review. Claims of ineffective assistance of counsel at a death

sentencing hearing are reviewed pursuant to the two-prong Strickland

standard. Hall, 194 Ill. 2d at 354. To demonstrate ineffective

assistance, a defendant must show that: (1) the attorney’s

performance fell below an objective standard of reasonableness, and

(2) the attorney’s deficient performance prejudiced the defendant in

that, absent counsel’s errors, there is a reasonable probability that the

sentencer would have concluded that death was not an appropriate

sentence. Because the defendant must satisfy both prongs of this test,
-22-

the failure to establish either is fatal to the claim. Strickland, 466 U.S.

at 687, 697, 80 L. Ed. 2d at 693, 699, 104 S. Ct. at 2064, 2069.

In the present case, we have already found no error in the

information that the trial court gave to the jury. Therefore, trial

counsel’s failure to object to such information cannot be deemed

deficient in terms of Strickland. See, e.g., Hall, 194 Ill. 2d at 354;

People v. Alvine, 173 Ill. 2d 273, 297 (1996).

D. Jury Instruction on Unanimity

Defendant next claims that certain jury instructions at the

aggravation/mitigation phase of his death sentencing hearing were

conflicting and misleading. Defendant contends that the trial court

committed reversible error in giving the State’s modified version of

IPI Criminal 4th No. 7C.06. According to defendant, the last

paragraph thereof contained confusing double-negative language that

rendered the paragraph unnecessarily difficult to read. Defendant

argues that this paragraph misstated the law regarding when and how

the jury was to enter a “no-death” verdict and conflicted with the

other instructions and verdict forms. Although the verdict forms

contained correct statements of law, defendant argues that “this could

not cure the confusion created by the double negative instruction.” As

such, defendant asks this court to reverse his death sentence and

remand the cause to the circuit court for a new death sentencing

hearing.

The purpose of jury instructions is to provide the jury with the

correct legal principles applicable to the evidence, so that the jury

may reach a correct conclusion according to the law and the evidence.

People v. Parker, 223 Ill. 2d 494, 501 (2006); People v. Ramey, 151

Ill. 2d 498, 535 (1992); People v. Hester, 131 Ill. 2d 91, 98 (1989).

Jury instructions should not be misleading or confusing. Their

correctness depends not on whether defense counsel can imagine a

problematic meaning, but whether ordinary persons acting as jurors

would fail to understand them. Herron, 215 Ill. 2d at 187-88. If IPI

instructions contain an applicable instruction on a subject about

which the trial court determines the jury should be instructed, the trial

court must use that instruction, unless the court determines that the

instruction does not accurately state the law. 177 Ill. 2d R. 451(a).
-23-

That is, where a pattern instruction does not accurately state the law,

Rule 451(a) authorizes the trial court to modify it. 177 Ill. 2d R.

451(a); Harris, 225 Ill. 2d at 43. The decision whether to give a

nonpattern instruction rests within the sound discretion of the trial

court. People v. Caffey, 205 Ill. 2d 52, 127 (2001); People v. Buss,

187 Ill. 2d 144, 232-33 (1999); People v. Bush, 157 Ill. 2d 248, 253

(1993). Whether a court has abused its discretion will depend on

whether the nonpattern instruction is an accurate, simple, brief,

impartial, and nonargumentative statement of the law. 177 Ill. 2d R.

451(a); People v. Pollock, 202 Ill. 2d 189, 211 (2002).

Under our death penalty statute, the second phase of a death

sentencing hearing requires the trier of fact to weigh and balance any

mitigating factors against the aggravating factors. People v. Macri,

185 Ill. 2d 1, 77 (1998); People v. Munson, 171 Ill. 2d 158, 185

(1996); People v. Brownell, 79 Ill. 2d 508, 533-34 (1980). Prior to

November 2003, subsection (g) of the Illinois death penalty statute,

which prescribes the procedure for a jury at a death sentencing

hearing, provided in pertinent part: “If the jury determines

unanimously that there are no mitigating factors sufficient to preclude

the imposition of the death sentence, the court shall sentence the

defendant to death.” 720 ILCS 5/9–1(g) (West 2002).

IPI Criminal 4th Nos. 7C.05 and 7C.06 correspond to former

subsection (g). For a defendant who has been convicted of a single

murder, No. 7C.05 provides:

“Under the law, the defendant shall be sentenced to death

if you unanimously find that there is no mitigating factor

sufficient to preclude imposition of a death sentence.

If you are unable to find unanimously that there is no

mitigating factor sufficient to preclude imposition of a death

sentence, the court will impose a sentence other than death.”

IPI Criminal 4th No. 7C.05.

Where a single murder is involved, No. 7C.06 provides in relevant

part:

“In deciding whether the defendant should be sentenced

to death, you should consider all the aggravating factors

supported by the evidence and all the mitigating factors

supported by the evidence.
-24-

Aggravating factors are reasons why the defendant should

be sentenced to death. Mitigating factors are reasons why the

defendant should not be sentenced to death.

* * *

If you unanimously find from your consideration of all the

evidence that there is no mitigating factor sufficient to

preclude imposition of a death sentence, then you should sign

the verdict requiring the court to sentence the defendant to

death.

If you do not unanimously find from your consideration

of all the evidence that there is no mitigating factor sufficient

to preclude imposition of a death sentence, then you should

sign the verdict requiring the court to impose a sentence other

than death.” IPI Criminal 4th No. 7C.06.

This court has upheld these instructions. See, e.g., People v. Simms,

192 Ill. 2d 348, 411-15 (2000); People v. Emerson, 189 Ill. 2d 436,

503-05 (2000).

Subsequent to the adoption of IPI Criminal 4th Nos. 7C.05 and

7C.06, the General Assembly amended the death penalty statute. See

Pub. Act 93–605, §10, eff. November 19, 2003 (amending 720 ILCS

5/9–1 (West 2002)). Subsection (g), which formerly provided that a

death sentence would be imposed if the jury found “no mitigating

factor sufficient to preclude imposition,” now includes the following

new language:

“If the jury determines unanimously, after weighing the

factors in aggravation and mitigation, that death is the

appropriate sentence, the court shall sentence the defendant

to death. ***

If after weighing the factors in aggravation and

mitigation, one or more jurors determines that death is not

the appropriate sentence, the court shall sentence the

defendant to a term of imprisonment under Chapter V of the

Unified Code of Corrections.” (Emphases added.) 720 ILCS

5/9–1(g) (West 2006).

However, IPI Criminal 4th Nos. 7C.05 and 7C.06 have not yet been

revised to track the amended statutory language. Thus, at the time of

defendant’s trial, the court was confronted with the amended death
-25-

penalty statute, which required the jury to apply a specific guideline

in making its determination (unanimously determining that death is

the appropriate sentence), and IPI Criminal 4th Nos. 7C.05 and

7C.06, which provided the jury with a different guideline in reaching

its verdict (unanimously finding that there is no sufficient mitigating

factor sufficient to preclude the death sentence). As such, it was

necessary for the trial court to use a modified IPI instruction in this

case. See Harris, 225 Ill. 2d at 43.

At the jury instruction conference, the State tendered its modified

version of IPI Criminal 4th Nos. 7C.05 and 7C.06. Defendant

objected and tendered his modified version. The trial court accepted

the State’s version and refused that of defendant. In refusing

defendant’s modified No. 7C.06, the trial court found that the State’s

version was “more in conformance with the I.P.I. book.” The trial

court instructed the jury with the following modified version of IPI

Criminal 4th No. 7C.05:

“Under the law, the defendant shall be sentenced to death

if you determine unanimously, after weighing the factors in

aggravation and mitigation, that death is the appropriate

sentence.

If, after weighing the factors in aggravation and

mitigation, you are unable to determine unanimously that

death is the appropriate sentence, the court will impose a

sentence other than death.”

The trial court also instructed the jury with the following modified

version of IPI Criminal 4th No. 7C.06, the last two paragraphs of

which instructed the jury as follows:

“If you unanimously find from your consideration of all

the evidence and after weighing the factors in aggravation and

mitigation that death is the appropriate sentence, then you

should sign the verdict requiring the court to sentence the

defendant to death.

If you do not unanimously find from your consideration of

all the evidence and after weighing the factors in aggravation

and mitigation that death is not the appropriate sentence,
 

2Defendant’s tendered version of this paragraph, which the trial court

refused, read: “If after weighing the factors in aggravation and mitigation,

one or more of you determine that death is not the appropriate sentence, then

you should sign the verdict requiring the court to impose a sentence other

than death ***.”

-26-

then you should sign the verdict requiring the court to impose

a sentence other than death.” (Emphasis added.)2

The trial court also gave to the jury modified verdict forms, one,

submitted by the State, reading: “We the jury unanimously find that

death is the appropriate sentence” (see IPI Criminal 4th No. 7C.08),

and the other, submitted by defendant, reading: “After weighing the

factors in aggravation and mitigation, one juror or more has

determined that death is not the appropriate sentence.” See IPI

Criminal 4th No. 7C.09 (hereafter “no-death verdict”).

In English grammar, a double negative refers to a “now

substandard syntactic construction containing two negatives and

having a negative meaning.” Webster’s Third New International

Dictionary 678 (1993). Defendant argues that the challenged

paragraph told the jurors that they must unanimously find that death

is not the appropriate sentence before they could sign the no-death

verdict. This would obviously be a misstatement of the law. As

reflected in the no-death verdict form, the jury need not unanimously

find that death is inappropriate before it signs the no-death verdict. In

other words, if even one juror found that death was inappropriate, the

jury was required to sign the no-death verdict.

Defendant’s argument rests on the premise that the apparent

double negative reverses the meaning of the challenged paragraph. “It

is a truism of traditional grammar that double negatives combine to

form an affirmative.” The American Heritage Guide to Contemporary

Usage and Style 148 (2005); see The World Almanac Guide to Good

Word Usage 78 (1989) (“The objection to such constructions is that

the negatives cancel each other out and reverse the meaning of the

sentence”). However, as a matter of grammar, the challenged

paragraph in modified No. 7C.06 does not contain “closely placed

self-cancelling negatives.” R. Burchfield, The New Fowler’s Modern

English Usage 227 (3d ed. 1996). A double negative “consists of
-27-

more than one negative *** for a single negation.” (Emphasis added.)

M. Steinmann & M. Keller, Good Grammar Made Easy 112 (1995).

A double negative “is a statement that contains two negative

modifiers, the second of which repeats the message of the first.”

(Emphasis added.) L. Troyka, Handbook for Writers 295 (2d ed.

1990). The two “nots” in the challenged paragraph were not used for

a single negation. The first “not” modifies the words “unanimously

find.” The second “not” does not repeat the message of the first, but

rather modifies the words “the appropriate sentence.” This is not the

forbidden, self-cancelling usage as exemplified in phrases such as “do

not have no money” or “do not hear nothing.”

Additionally, the challenged paragraph in modified No. 7C.06

correctly states the law. It begins: “If you do not unanimously find.”

This plainly refers to one or more, but less than all. Thus, if one juror

or more, but less than all jurors, find that death is not the appropriate

sentence, then the jury should sign the no-death verdict form. This is

almost exactly what the jury was instructed in the no-death verdict

form.

Further, we must not consider modified No. 7C.06 in an artificial

isolation. Rather, we examine the instruction in light of the overall

charge, and construe the instructions as a whole. See Parker, 223 Ill.

2d at 501; Ramey, 151 Ill. 2d at 537; Hester, 131 Ill. 2d at 98. It is

sufficient if the instructions given to the jury, considered as a whole,

fully and fairly announce the applicable law. Parker, 223 Ill. 2d at

501; Pollock, 202 Ill. 2d at 210. This court has recognized that to

“require absolute and technical accuracy in instructions would, as a

general rule, defeat the ends of justice and bring the administration of

the criminal law into disrepute and contempt. It is sufficient when

instructions, considered as a whole, substantially and fairly present

the law of the case to the jury.” People v. Banks, 7 Ill. 2d 119, 129

(1955) (collecting cases).

Construing the entire series of instructions as a whole, we

conclude that the jury was more than adequately instructed on how to

enter a no-death verdict. While the phrasing of the challenged

paragraph in modified No. 7C.06 was less than ideal, we have

concluded that the paragraph was legally correct. Further, the

challenged paragraph accords with the no-death verdict form,

modified by defendant, and which defendant concedes includes a
-28-

correct unanimity standard: “After weighing the factors in

aggravation and mitigation, one juror or more has determined that

death is not the appropriate sentence.” Thus, after weighing the

factors in aggravation and mitigation, had the jury chosen to sign a

no-death verdict, it would have signed a piece of paper recognizing

that one or more of the jurors had determined that death was not the

appropriate sentence. IPI Criminal 4th instructs: “Verdict forms are

included within the term ‘instructions.’ ” IPI Criminal 4th, User’s

Guide, at ix. When examining a challenged jury instruction in light

of the overall charge and construing the instructions as a whole, this

court’s review includes verdict forms. See, e.g., Harris, 225 Ill. 2d at

43 (concluding that “the instructions and verdict form” conveyed the

correct legal principle); People v. Shaw, 186 Ill. 2d 301, 329 (1998)

(reading instructions collectively and in their entirety, concluding that

jury was correctly instructed through “the several instructions and

verdict forms”); People v. Fields, 135 Ill. 2d 18, 71 (1990)

(concluding that “the verdict forms and the other instructions clearly

informed” jury of correct legal principles). Indeed, defendant

concedes that the instructions contained several correct statements of

the unanimity requirement. We cannot say that the trial court abused

its discretion by instructing the jury with the challenged instruction.

While defendant’s argument fails, our determination of this issue

should not be read as an endorsement of the challenged paragraph in

modified No. 7C.06 tendered by the State. Rather, defendant’s

version of No. 7C.06 should be used until this court’s Committee on

Pattern Jury Instructions in Criminal Cases formally revisesthisseries

of instructions to track the language of amended section 9–1(g) of the

Criminal Code (720 ILCS 5/9–1(g) (West 2006)).

E. Prosecution Comment on Defendant’s Lack of Remorse

Defendant next contends that the prosecutor, during the death

sentencing hearing, made several comments on defendant’s lack of

remorse that violated defendant’s constitutional right to remain silent.

The State responds that the prosecutor’s comments were proper

references to defendant’s lack of remorse and did not infringe upon

his right to remain silent.
-29-

A criminal defendant has a fifth amendment right not to testify as

a witness in his or her own behalf, and the prosecutor is forbidden to

make direct or indirect comment on the exercise of that right. Griffin

v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 110, 85 S. Ct.

1229, 1233 (1965); People v. Arman, 131 Ill. 2d 115, 125-26 (1989)

(collecting cases); 725 ILCS 5/115–16 (West 2006) (prohibiting

comment on criminal defendant’s failure to testify). The test for

determining if improper comment has been made on a defendant’s

failure to take the witness stand and testify is whether the reference

was intended or calculated to direct the jury’s attention to the

defendant’s neglect to avail himself of his legal right to testify. In

making this determination, a court should examine the challenged

comments in the context of the entire proceeding. Arman, 131 Ill. 2d

at 126 (and cases cited therein).

We earlier recounted that, at the second stage of the death

sentencing hearing, defendant presented as mitigation evidence the

testimony of his half-sister, Anita Henry. The prosecutor ended crossexamining Henry as follows:

“[Prosecutor]: Miss Henry, has the defendant ever told

you that he is sorry for what happened on September 23, of

2000?

[Defense Counsel]: Objection, Judge.

THE COURT: I will sustain the objection.

[Prosecutor]: Has he ever shown you any remorse?

[Defense Counsel]: Objection.

THE COURT: Objection sustained.

[Prosecutor]: Nothing else, Judge.

[Defense Counsel]: I have nothing further. Thank you,

Miss Henry.

THE COURT: Thank you. (Witness excused).”

During closing argument, the prosecutor remarked as follows:

“Look at his time when he’s in custody. What does being

in custody mean to Joseph Bannister because we got to look

at it because that’s one of the things you are going to consider.

The death sentence is appropriate in light of all the

aggravation you have before you, but if he doesn’t get a death
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sentence, he’s going to be in custody, so you might as well

look at what life is going to be for Joseph Bannister[,] In

custody, it’s not too bad. He gets to talk to people, he gets

mail, he gets to watch TV, and he gets to use gang

paraphernalia, he gets to be respected by guards. He gets to

beat up other prisoners and/or guards. He gets to hang with

his fellow GD’s, that’s Joseph Bannister’s life in prison, and

he’s not there contemplating the horror of what he did. He’s

not sitting there, ‘Say, you know what, I’ve done some wrong

in my life,’ have you heard that from Joseph Bannister?

[Defense Counsel]: Objection.

THE COURT: Sustained.

[Prosecutor]: ‘I’m sorry,’ have you heard any remorse

from Joseph Bannister?

[Defense Counsel]: Objection.

THE COURT: I will sustain the objection. Ask the jury to

disregard.”

The prosecutor further remarked:

“When we were questioning you during jury selection, we

told you that you would hear some bad things about Joseph

Bannister and some good things about Joseph Bannister. I

want–and you would hear some statutory factors. *** Each of

us gets to present any non-statutory factors we wish, and I’m

going to tell you and you’re going to even think of some more

because there’s a lot out there, you’ve listened to this

evidence for a bit, some of the non-statutory aggravating

factors that you can hold against Joseph Bannister when you

make your determination that he is more than deserving of the

death sentence. *** Henrietta Banks was defenseless. She’s

defenseless, and he shoots her in the head at close range.

Sharon was defenseless for that matter, and he shot her, put

that down as another aggravating factor. ***

* * *

Ladies and gentlemen, [in] this country we only survive

by obeying the laws. Put it down in bold letters in aggravation

that he killed people that had been in court willing to testify

against him earlier, that there had been an order of protection,
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a whole set of laws had been developed, to protect people

when people are in their violent cycles or violent period, and

he disobeyed it. *** Put that down in aggravation. *** [P]ut

down that he killed a woman that he knew had two small

children. *** Put down the other children were present.

Latoria, Cedrick [sic], you heard them. He couldn’t have

missed them being there, and they’re screaming, and he killed

Henrietta in front of small children, and them paying a price

for that forever, and put that down in aggravation.

And while you’re at it, put down his flight, that from

September 23, 2000 to February 11 of 2001, he’s at large. ***

Can you imagine the horror and the fear that Sharon Banks

felt every time she looked over her shoulder knowing that

Joseph Bannister was out there? *** Put that down in

aggravation; caught with his false I.D., there’s another one.

And while you are at it, put down all the abuse he gave to

Sharon all those years, off and on through those years, put that

down. Disobeying the Court orders, the judge’s order, bond,

counseling, domestic violence, having a handgun *** have

that down. *** Joseph Bannister doesn’t care about us, he

doesn’t care about the court system, put that in aggravation,

and no remorse, put that down.

[Defense Counsel]: Objection.

THE COURT: I’ll sustain the objection.”

Defendant now argues before this court: “By arguing to the jury that

it was a factor in aggravation that [defendant] had not taken the stand

during his trial and expressed remorse for his actions, the prosecutor

penalized [defendant] for exercising his Fifth Amendment right to

remain silent.” (Emphasis added.)

This contention lacks merit. The prosecutor did not say anything

about defendant’s failure to testify, and the above-quoted remarks

plainly were not intended or calculated to draw attention thereto.

Rather, the prosecutor’s remarks were fair comments on defendant’s

lack of remorse. In determining the appropriate sentence, the

sentencing body is to consider all matters that reflect upon the

defendant’spersonality, propensities, purposes, tendencies, and every

aspect of the defendant’s life relevant to the sentencing decision.
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People v. Barrow, 133 Ill. 2d 226, 281 (1989). “ ‘This court has

consistently held that a convicted defendant’s remorse or the absence

of it is a proper subject for consideration at sentencing.’ ” People v.

Burgess, 176 Ill. 2d 289, 317 (1997), quoting Barrow, 133 Ill. 2d at

281. The challenged remarks did not derive from defendant’s failure

to incriminate himself, but rather from defendant’s apparent lack of

remorse for the shooting, which resulted in Henrietta’s death,

Sharon’s severe injury, and the endangerment and traumatization of

their mother and children. See, e.g., Burgess, 176 Ill. 2d at 317;

Barrow, 133 Ill. 2d at 281.

Further, any improper inferences from the prosecutor’s comments

were cured by the trial court sustaining defense counsel’s objections

and the court’s instructions to the jury to disregard comments to

which objections were sustained. People v. Neal, 111 Ill. 2d 180, 196

(1985). Defendant argues that “any cure was nullified where the

prosecutor deliberately ignored the trial court’s ruling and continued

with the improper argument.”Defendant cites People v. Weinstein, 35

Ill. 2d 467 (1966), in which the prosecution represented to the jury

that it was the defendant’s burden to present evidence creating a

reasonable doubt of guilt. After five or six such statements, defense

counsel finally objected and the trial court sustained the objection.

“Undaunted by the court’s ruling, the prosecutor then immediately

continued ***. Over all, it appears that some seventeen objections

were made, and sustained, as the prosecutors argued to the jury.”

Weinstein, 35 Ill. 2d at 469. This court observed: “Such persistence

eliminates the salutary effect of the court’s ruling in sustaining

objections to the argument.” Weinstein, 35 Ill. 2d at 471.

However, unlike the obviously improper remarks in Weinstein,

the challenged comments in this case pertain to defendant’s lack of

remorse, which is a proper subject for consideration at sentencing.

See Barrow, 133 Ill. 2d at 281. Further, unlike the persistent improper

remarks in Weinstein, the challenged remarks in this case were few

and fleeting in the context of the entire death sentencing hearing. The

jury was instructed that closing arguments are not evidence and that

the jury should disregard arguments not based on the evidence. The

jury was also specifically instructed not to consider defendant’s

failure to testify in arriving at its verdict. Thus, any alleged error

resulting from the challenged remarks was cured. See, e.g., People v.
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Moore, 171 Ill. 2d 74, 105-06 (1996); People v. Baptist, 76 Ill. 2d 19,

30 (1979).

F. Apprendi and Ring

Defendant lastly contends that the Illinois death penalty statute,

as amended, violates the principles announced in Apprendi v. New

Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and

Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428

(2002), because the statute does not require the State, at the second

stage of the death sentencing hearing, to prove beyond a reasonable

doubt that aggravating factors outweigh mitigating factors. This court

has repeatedly rejected this argument. See, e.g., Harris, 225 Ill. 2d at

50; People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); People v. Mertz,

218 Ill. 2d 1, 93-94 (2005). Defendant has not persuaded us to

overturn these decisions.

III. CONCLUSION

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

Cook County is affirmed. The clerk of this court is directed to enter

an order setting Tuesday, January 13, 2009, as the date on which the

sentence of death entered in the circuit court is to be imposed. The

defendant shall be executed in the manner provided by law. 725 ILCS

5/119–5 (West 2006). 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 now confined.

Affirmed.

JUSTICE KILBRIDE, dissenting:

While I agree with the majority’s analysis of nearly all issues in

this case, I am compelled to dissent from its approval of the State’s

modified IPI Criminal 4th No. 7C.06. I am most disturbed by the

majority’s decision to obfuscate defendant’s true argument and focus

instead on an extended dissection of the argument’s grammatical

particulars. This unusual approach ignores, rather than seriously
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addresses, the underlying merits of the core assertion stated in

defendant’s brief, asserting that the instruction “was confusing and

misstated the law concerning when and how the jury was to sign a ‘no

death’ verdict.”

Moreover, the majority’s extensive reliance on highly technical

grammar treatises further illustrates the error in applying this

approach when reviewing jury instructions. As the majority notes,

“[t]he purpose of jury instructions is to provide the jury with the

correct legal principles applicable to the evidence, so that the jury

may reach a correct conclusion according to the law and the evidence.

People v. Parker, 223 Ill. 2d 494, 501 (2006); People v. Ramey, 151

Ill. 2d 498, 535 (1992); People v. Hester, 131 Ill. 2d 91, 98 (1989).

Jury instructions should not be misleading or confusing. Their

correctness depends not on whether defense counsel can imagine a

problematic meaning, but whether ordinary persons acting as jurors

would fail to understand them. [People v.] Herron, 215 Ill. 2d at 187-

88.” (Emphasis added.) Slip op. at 22. Thus, the critical consideration

is the layperson’s understanding of the law, as stated in the jury

instructions. Herron, 215 Ill. 2d at 187-88. While it is possible that

the jurors were all thoroughly trained in the identification and

interpretation of grammatical aberrations such as double negatives,

that assumption remains a highly unreliable basis for proper appellate

review. The jurors were also unaided by the six grammar references

guiding the majority’s analysis, leaving them ill-prepared to parse the

linguistic intricacies ofthe jury instruction ostensibly provided to lead

them to the no-death verdict form. Indeed, the highly abstracted and

artificial nature of the majority’s analysis of this issue should itself be

sufficient to give this court pause.

While the majority’s careful grammatical analysis has indeed

persuaded me that the precise source of the problem with the

instruction is not the presence of “the ‘now substandard syntactic

construction’ ” commonly known as a double negative (slip op. at 26,

quoting Webster’s Third New International Dictionary 678 (1993)),

that conclusion does not even purport to address the real problem

asserted by defendant. A careful analysis of the plain meaning of the

instruction reveals that it is inherently confusing and legally

inaccurate.

The problematic final paragraph of the instruction states:
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“If you do not unanimously find from your consideration

of all the evidence and after weighing the factors in

aggravation and mitigation that death is not the appropriate

sentence, then you should sign the verdict requiring the court

to impose a sentence other than death.” (Emphasis added.)

Defendant argues that this language is confusing and inaccurate

because, when read literally, it tells the jury it must unanimously find

that a death sentence is not appropriate before it may sign the nodeath verdict.

The majority rejects defendant’s interpretation and instead

declares the challenged paragraph to be a correct statement of the law

based only on a cursory examination of its first six words: “If you do

not unanimously find.” See slip op. at 27. The majority concludes that

these words “plainly refer[ ] to one or more, but less than all,” thus

instructing the jury to sign the no-death verdict form “if one juror or

more, but less than all jurors, find that death is not the appropriate

sentence.” Slip op. at 27. Unfortunately for defendant, this

abbreviated analysis fails to consider the remaining language in the

clause.

The problem with the majority’s interpretation is apparent when

the second “not” is eliminated from the instruction given. The

instruction would then state:

“If you do not unanimously find from your consideration

of all the evidence and after weighing the factors in

aggravation and mitigation that death is *** the appropriate

sentence, then you should sign the verdict requiring the court

to impose a sentence other than death.” (Emphasis added.)

Stripped to its barest bones, this instruction would say:

“If you do not unanimously find *** that death is *** the

appropriate sentence, then you should sign the verdict

requiring *** a sentence other than death.” (Emphasis

added.)

That is undeniably a complete and accurate statement of when the

jury is to sign the no-death verdict form. It defies both logic and

common sense for the majority to conclude, based solely on the initial

few words of the instruction, that it could convey the same meaning

both with and without the second “not,” located, not surprisingly, in
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the portion of the instruction remaining wholly unexamined by the

majority.

In addition, a comparison of instruction given and the relevant

language in the applicable statute further proves the point. The

applicable statute states:

“If after weighing the factors in aggravation and

mitigation, one or more jurors determines that death is not

the appropriate sentence, the court shall sentence the

defendant to a term of imprisonment under Chapter V of the

Unified Code of Corrections.” (Emphasis added.) 720 ILCS

5/9–1(g) (West 2006).

When reduced to its simplest form, the statute reads:

“If *** one or more jurors determines that death is not

the appropriate sentence, the court shall sentence the

defendant to a term of imprisonment under Chapter V of the

Unified Code of Corrections.” (Emphasis added.) 720 ILCS

5/9–1(g) (West 2006).

The statutory language is simple and clear. It provides an ideal basis

for drafting a proper jury instruction. Standing in stark contrast, the

instruction approved by the majority states, “[i]f you do not

unanimously find *** that death is not *** appropriate.” That clause

bears a markedly different meaning from that of the plain statutory

language. Thus, the instruction given to the jury does not correctly

state the applicable law, contrary to the majority’s conclusion. Slip

op. at 27.

Indeed, the majority’srecommendation ofthe instruction tendered

by defendant but rejected by the trial court acknowledges that it best

echoes the statutory language. Slip op. at 28. Defendant’s instruction

states:

“If after weighing the factors in aggravation and mitigation,

one or more of you determine that death is not the appropriate

sentence, then you should sign the verdict requiring the court

to impose a sentence other than death ***.” See slip op. at 25

n.2.

A direct comparison shows that defendant’s instruction clearly and

accurately reflects the statute’s simple terminology and structure.
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Nonetheless, the majority justifies affirming the trial court’s

rejection of defendant’s accurate instruction in favor of the State’s

flawed No. 7C.06 by looking at the jury instructions as a whole. The

majority specifically relies on the presence of the correct unanimity

standard in the no-death verdict form, noting that “had the jury

chosen to sign a no-death verdict, it would have signed a piece of

paper recognizing that one or more of the jurors had determined that

death was not the appropriate sentence.” (Emphasis added.) Slip op.

at 27-28. The hypothetical nature of the premise underlying this

rationale is the key to its undoing. The jury’s selection of a verdict

form is obviously dependent on its understanding of the verdictchoice instructions, the very instructions defendant maintains are

incorrect and confusing. Without the benefit of clear and accurate

instructions on the unanimity standard, the jury cannot reliably be

expected to review the no-death verdict form that mentions the

correct standard. Thus, the assertion that providing the correct

standard on the no-death form somehow overcomes the confusing and

legally inaccurate standard in the challenged instruction merely

creates the illusion of a causal connection when none properly exists.

We cannot assume that the jury ever examined the no-death verdict

form when the instruction leading to its selection was fatally flawed.

Finally, having approved the trial court’s decision to give the

State’s modified No. 7C.06 to the jury despite its acknowledgment

that the instruction was “less than ideal” (slip op. at 27), the majority

limits the damage done by its ruling only to the instant defendant. The

majority directs that

“our determination of this issue should not be read as an

endorsement of the challenged paragraph in modified No.

7C.06 tendered by the State. Rather, defendant’s version of

No. 7C.06 should be used until this court’s Committee on

Pattern Jury Instructions in Criminal Cases formally revises

this series of instructions to track the language of amended

section 9–1(g) of the Criminal Code [citation].” (Emphasis

added.) Slip op. at 28.

Thus, ironically, defendant’s appeal has ensured that other,

similarly situated, capital defendants will receive the “benefit” of

sentencing juries that have received clear and accurate instructions on

a key component of the deliberative process, namely, the selection of
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the proper verdict form. Defendant himself, however, fails to obtain

the benefit of having a properly instructed jury decide whether he

lives or dies.

Although defendant may well have erred in specifying the exact

grammatical source of the confusion and critical legal errors inherent

in the State’s modified No. 7C.06, he clearly argued that the

instruction was confusing and legally inaccurate. My examination of

that instruction reveals that he is correct; his sentence should be

vacated and the cause remanded for a new sentencing hearing before

a properly instructed jury. At a minimum, defendant’s core argument

deserves to be evaluated on its merits, with a complete examination

of the relevant language. Because the majority’s analysis has failed to

provide this minimal review, I must respectfully dissent.