Docket No. 98942.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

RICARDO HARRIS, Appellant.

Opinion filed February 1, 2007.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Karmeier concurred in the judgment and opinion.

OPINION

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

defendant, Ricardo Harris, was convicted of the first degree murders

of Dipak Patel and Ambalal Patel, the attempted first degree murder

and aggravated battery of Christina Chisnick, and the aggravated

battery of Helen Chisnick. At a separate sentencing hearing, the same

jury found defendant eligible for the death penalty for having

murdered two or more individuals. The jury also concluded, after

weighing the factors in aggravation and mitigation, that death was the

appropriate sentence. Defendant was sentenced to death for the

murders of Dipak and Amalal Patel and to consecutive 30-years terms

of imprisonment for the attempted murder of Christina Chisnick and

the aggravated battery of Helen Chisnick. Defendant’s death sentence

has been stayed pending direct review by this court. Ill. Const. 1970,
-2-

art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow,

we affirm defendant’s convictions and sentences.

Background

Evidence at trial established the following. On May 13, 1999, at

approximately 7:25 p.m., the Oak Lawn police department received

a report of a shooting at the Extra Value liquor store on Cicero

Avenue in Oak Lawn, Illinois. A dispatch was sent out and police

officers proceeded to the store. Once inside, the officers discovered

that four persons had been shot. Dipak Patel, the store manager, was

found lying on the floor, bleeding and struggling to get up. He had

been shot once in the back. Christina Chisnick, a customer in the store

at the time of the shooting, was found lying on her back in a store

aisle. She had been shot twice, once in the abdomen and once in the

groin. Christina’s sister, Helen Chisnick, was kneeling over Christina,

applying pressure to her wounds. Helen had been shot once in the

abdomen. In the rear of the store, the officers discovered another

employee, Ambalal Patel, seated on the floor and leaning against some

shelves. He had been shot once in the chest.

The police officers called for medical help and secured the store.

Paramedics arrived and transported the four victims of the shootings

to the hospital. Both Dipak and Ambalal died from their wounds.

Christina and Helen survived.

At trial, Christina testified about the events that took place on

May 13, 1999. Christina stated that she and her sister drove to the

Extra Value liquor store at approximately 7:15 p.m. When they

arrived, no other cars were in the store’s parking lot. As the two

sisters entered the store, Dipak Patel was standing behind the front

counter, talking with Ambalal Patel. No other customers or employees

were present. The sisters looked at various items, then moved toward

the back of the store, where there was an aisle of refrigerated coolers

containing cases of beer. Ambalal approached the women and spoke

with them for a few moments. Christina then opened the door to one

of the coolers, removed a case of beer, and turned.

Christina testified that, as she turned, she saw an AfricanAmerican man, whom she identified in court as defendant, and Dipak

walking toward the back of the store at the end of the cooler aisle.
-3-

Defendant was about a foot and a half behind Dipak and was holding

a gun. Christina stated that, as the two men were walking, defendant

shot Dipak in the back. Defendant then turned and fired once in the

direction of Ambalal, who was standing behind Christina. Defendant

then shot Christina twice. Christina testified that the force of the

second shot spun her around. As she turned, she saw Ambalal,

halfway into a shelf, his chest covered with blood. Christina then fell

to the ground.

Helen Chisnick offered testimony similar to Christina’s. Helen

stated that, at the time of the shootings, she was standing in the cooler

aisle, facing Christina. As Christina removed the beer from the cooler,

Helen heard a gunshot, and immediately saw that Ambalal had been

shot. Helen looked at Christina and watched as she was shot and fell

to the floor. Helen then turned to look in the direction from which the

shots were fired and saw a man, whom she identified in court as

defendant, standing about five feet from her. Helen also saw Dipak

lying on the floor and knew that he had been shot. Helen stated that

she looked defendant “right in the face,” looked at him “up and

down,” and saw that he was holding a gun in his right hand. Helen

testified that she looked at defendant for approximately five seconds.

Defendant then shot her. Helen testified that she threw her purse

across the aisle and fell to the floor, where she pretended to be dead.

Helen stated that, after a few seconds, she saw her sister’s leg

move. Helen whispered to Christina to stop moving because the

gunman might still be in the store. A few more seconds passed, and

Helen and Christina both stood up. Helen stated that she walked

toward the front of the store, saw a young blond woman at the front

counter, and told her to phone the police. Helen then returned to her

sister. Christina said she was growing weak and lay down on the floor.

Helen knelt over Christina, applied pressure to her wounds, and began

praying. Police and paramedics arrived and both women were taken

to the hospital.

Both Christina and Helen testified that they did not see defendant

enter or leave the store. The sisters agreed that defendant shot Dipak

first, followed by Ambalal, then Christina and, finally, Helen. Both

women also testified that defendant never spoke during the shootings.

As Christina stated, “He just came in and shot us.”
-4-

Oak Lawn Police Detective Michael Murray briefly interviewed

Helen in the hospital emergency room during the evening of May 13,

1999. Both Helen and Murray testified that Helen was being treated

for her injuries at the time, that medical personnel were moving

around her, and that Murray stood off to one side. Helen testified she

told Murray that the person who shot her was a black male, 5 feet 11

inches tall, that he weighed 170 pounds, and that he was wearing

black pants, black shoes, and a black, long-sleeved shirt or jacket. In

his testimony, Murray recalled Helen describing the offender as 5 feet

7 inches tall.

Murray interviewed Helen in the hospital at greater length the next

day and, with Helen’s assistance, prepared a composite sketch of the

gunman. Both Helen and Murray agreed that, during this second

interview on May 14, 1999, Helen described the gunman as 5 feet 11

inches, 170 pounds, and between the ages of 35 and 40. At the time

of trial, approximately five years after the murders, defendant was 6

feet 0 inches tall and weighed 185 pounds.

On May 15, 1999, Murray and a second detective visited Helen in

her home and showed her a photo array containing six pictures,

including one of defendant. Helen selected defendant’s photograph

because, as she stated, “that is who shot me.” On cross-examination,

Helen acknowledged that she told the officers she was 70% certain

about her selection. However, she explained her answer by stating that

she wanted to see the man in the photograph in person and that “it

wasn’t a picture that shot me. It was a real person that shot me.” After

Helen selected defendant’s photograph from the photo array, she

signed and dated it.

On August 7, 1999, Helen viewed a lineup at the Oak Lawn police

station. Helen acknowledged that, by this time, she had twice seen

television programs about the shooting at the liquor store. She stated,

however, that the television programs did not influence her viewing of

the lineup. At the lineup, the police officers told Helen that after she

looked at each person she could ask to see anyone a second time. The

men stood in a line and approached the viewing window individually.

Helen testified that, after viewing all the men, she knew that the first

person in the lineup, defendant, was the one who had shot her. She

stated that she asked to have defendant step forward a second time so

that he would know she had identified him. Then, according to an
-5-

officer present during the lineup, Helen said, “I think it’s number one.”

However, Helen testified that she told the police officers “it is number

one.” She also told the jury that she “picked him because that’s who

shot me” and that she was “positive” defendant was the man who shot

her.

Christina also testified regarding interviews she had with the

police. Christina stated that she briefly spoke to a uniformed officer in

the emergency room on May 13, 1999, before undergoing surgery.

Christina testified that she told the officer that the gunman was 5 feet

9 inches and in his mid-thirties. She also stated that he wore a black

shirt, black pants, and black shoes, and had short black hair in a

natural, afro hairstyle.

On May 23, 1999, Detective Murray visited Christina while she

was still recovering in the hospital. Murray showed Christina an array

of six photographs, including pictures of both defendant and his

brother. Christina testified that, because of her medical condition, she

had not seen any other pictures or media coverage related to the case

before she was shown the photo array. Christina selected defendant’s

photograph. In his testimony, Detective Murray recalled Christina

telling him during the interview on May 23 that she did not get a good

look at the gunman’s face but that she recognized the shape of

defendant’s head and his hairstyle. However, in her testimony,

Christina denied saying that she did not get a good look at the

gunman’s face. Christiana agreed that she had commented on the

shape of the gunman’s head and hairstyle, but stated that she also

recognized defendant’s “big round eyes,” “close ears” and complexion

when she selected his photograph.

Like Helen, Christina viewed a lineup at the Oak Lawn police

station on August 7, 1999. Prior to the lineup, she twice saw the

photograph of defendant she had selected from the photo array on

television programs. During the lineup, Christina identified defendant

as the man who shot her. Also like Helen, Christina stated that she

was certain of her identification of defendant as the gunman. Christina

told the jury that defendant was standing directly in front of her when

he began shooting and that the sight of him was “branded in [her]

memory.”

Dr. Otto MacLin, an experimental psychologist, offered expert

opinion concerning the reliability of eyewitness identifications. MacLin
-6-

discussed a phenomenon known as the “weapons focus effect,” in

which a victim may focus his attention on the weapon used to commit

the crime rather than the offender’s face. According to MacLin, a

body of academic literature indicates that when a weapon is involved

in a crime there “is a detriment or diminished capacity to recognize”

the offender. MacLin acknowledged, however, that it is difficult to

confirm this effect through experimentation because of the

impossibility of creating a laboratory experiment which mirrors an

actual crime involving a weapon. MacLin also acknowledged that

some people do make accurate identifications despite the presence of

a weapon.

MacLin also described the “cross-race effect,” a phenomenon in

which a person may have difficulty identifying a person of another

race. MacLin acknowledged, however, that some cross-racial

identifications are accurate.

Jeffrey Parise, a firearms expert, testified for the State. Parise

stated that he examined an unfired cartridge, a spent bullet, and five

cartridge casings recovered from the floor of the Extra Value liquor

store. He also examined a bullet that had been removed from Dipak

during his autopsy, and a bullet that had been removed from Christina

during surgery. Parise testified that the three bullets he examined were

.40-caliber, jacketed, Hydrashock hollow-point bullets, a distinctive

type of ammunition that is manufactured only by the Federal

Company. He also stated that the bullet recovered from Ambalal’s

body and the bullet found on the liquor store floor were fired from

“one gun to the exclusion of all others.” Parise further testified that

the cartridge cases recovered from the store could have been fired

from the same gun. In addition, each cartridge had an elliptical

impression left on it from the firing pin. According to Parise, only the

Glock Company manufactures a .40-caliber handgun that leaves the

type of impression found on the cartridge cases recovered from the

liquor store.

Pauline Zelko, a deputy sheriff from Genesee County, Michigan,

testified on behalf of the State. Zelko stated that defendant was in her

custody on May 7, 1999, six days before the shooting. On that date,

defendant took Zelko’s firearm and escaped. Zelko’s firearm was a

.40-caliber, semiautomatic Glock handgun. The gun was loaded with
-7-

13 rounds of .40-caliber, jacketed, Federal Hydrashock hollow-point

ammunition.

Frank Sarelli also testified for the State. In May 1999, Sarelli was

living in the Aloha Motel on Cicero Avenue, five blocks from the

Extra Value liquor store. Sarelli stated that he met defendant at the

Aloha Motel on May 11. On May 12, Sarelli sold crack cocaine to

defendant. Defendant then told Sarelli that he wanted to sell a gun.

According to Sarelli, defendant showed him a black, .40-caliber,

Glock handgun and said he wanted $200 for it. Sarelli called various

drug dealers but was unable to sell the gun for him.

Sarelli testified that, on Thursday, May 13, 1999, defendant came

to his room at approximately 11 a.m, asking for more cocaine. At that

time, defendant told Sarelli that his brother and cousin were coming

into town from Michigan, that they might want the gun, and that he

was no longer interested in selling it. The shootings at the Extra Value

liquor store occurred during the evening of May 13. Sarelli stated that

he did not see defendant on May 14.

On May 15, 1999, Sarelli phoned the Oak Lawn police department

and told them he had information about the shootings. Sarelli then

went to the police station and told them about defendant and the gun

he had been shown. Based on this information, and information

obtained at the Aloha Motel, the Oak Lawn police department was

able to obtain a picture of defendant from authorities in Michigan.

This picture was subsequently placed in the photo arrays shown to

Helen and Christina Chisnick.

During his cross-examination, Sarelli acknowledged that he was

a drug and alcohol abuser with prior criminal convictions. He also

acknowledged that he expected to receive a reward of $2,500 if

defendant was convicted. Sarelli stated that the offer of the award was

made four years after the murders, in 2003, by Oak Lawn police

officers. At that time, Sarelli was in prison in Danville, Illinois, and

was scheduled to be transferred to Stateville prison so that he could

testify in the instant case. Sarelli did not like conditions in Stateville

and was angry about the transfer. Sarelli told the Oak Lawn police

officers that he would not cooperate and that they were wasting their

time. At that point, the officers mentioned the reward.

On redirect, Sarelli testified that he did not know about any

reward when he first phoned the police on May 15, 1999. He stated
-8-

that he came forward with information about defendant because he

knew Dipak and Ambalal, had been in their store many times, and was

upset by their deaths. Sarelli also testified that the State’s Attorney

had not offered him anything for his testimony and that his testimony

was not being given solely to collect the reward money.

During the redirect examination of Sarelli, the State also

introduced a tape recording of the phone call Sarelli made to the Oak

Lawn police on May 15, 1999. In that recording, Sarelli told the

police “somebody in–in the area over there, a black guy, tried to sell

me a 40 caliber semiautomatic pistol. It was a Glock. A Glock 40

caliber semiautomatic pistol, 13 shot clip.” As the State later argued

to the jury, the tape recording was significant in establishing Sarelli’s

credibility because ballistics tests had not yet been conducted on May

15 and, at the time Sarelli called, the police did not yet know the make

of the weapon used in the shootings. Thus, the tape recording showed

that Sarelli was the first person to report to the police that a Glock

handgun had been used to commit the murders and that the gun had

a 13-shot clip.

Following closing arguments, the jury returned guilty verdicts

against defendant for the first degree murders of Dipak Patel and

Ambalal Patel (720 ILCS 5/9–1(a)(1) (West 2004)); the attempted

first degree murder (720 ILCS 5/8–4, 9–1 (West 2004)) and

aggravated battery (720 ILCS 5/12–4.2(a)(1) (West 2004)) of

Christina Chisnick; and the aggravated battery (720 ILCS

5/12–4.2(a)(1) (West 2004)) of Helen Chisnick.

At the eligibility phase of the death penalty hearing, the State

introduced defendant’s birth certificate and certified copies of

conviction for the first degree murders of Dipak and Ambalal Patel.

The jury found defendant eligible for the death penalty for having

murdered two or more individuals. 720 ILCS 5/9–1(b)(3) (West

2004).

At the aggravation-mitigation phase of the death penalty hearing,

the State introduced further details regarding defendant’s escape from

Deputy Sheriff Pauline Zelko in Michigan. The escape occurred after

Zelko transported defendant from the county jail to a doctor’s office

in Flint, Michigan. While Zelko was replacing defendant’s shackles,

defendant pushed Zelko’s head into his groin, leaned over her back,

and grabbed the deputy’s gun. Defendant turned the gun on a doctor
-9-

and started to flee. He then returned to Zelko, put the gun to her head

and said, “Bitch, give me the keys to the car.” Zelko gave defendant

the keys. Defendant then fled with Zelko’s gun and car.

Patricia Lazzio, a former Genesee County, Michigan, prosecutor,

described the charges that were pending against defendant at the time

he escaped from Zelko. In separate cases, defendant was facing three

counts of armed robbery, a “felony firearm” count and a “felon in

possession” count. He was also charged with resisting and obstructing

a police officer. Lazzio stated that, because of his record, the State of

Michigan had refused to plea bargain with defendant. In addition, all

pending charges against defendant had been consolidated and a trial

date had been set for May 19, 1999. Lazzio also testified that the

State of Michigan was seeking a life sentence for defendant on the

ground that he was an habitual offender and that defendant had been

informed of this fact.

Lazzio stated that one of the incidents for which defendant was

facing charges was the robbery of a convenience store in Flint,

Michigan, on October 7, 1998. In this incident, the robber entered the

store, reached across the counter and grabbed the store clerk’s clothes

around his neck. He then held a knife with a six- to seven-inch blade

to the clerk’s throat and demanded money. The clerk identified

defendant as the robber from a photo lineup and defendant was

subsequently arrested. The armed robbery was also recorded on a

video surveillance tape, which was played for the jury during the

sentencing hearing in the case at bar.

Lazzio stated that defendant was also facing charges for a second

armed robbery that occurred in Flint, Michigan, in the early morning

hours of October 14, 1998. In this incident, the robber entered a

convenience store and pulled out a .357 Magnum from his waistband.

He pointed the gun at a clerk’s head, cocked it, and said, “Give me the

cheese.” He then pointed the gun at a customer and indicated that he

was ready to shoot him, too. The robber took the money from the

store’s register and left. Following a chase on foot, police officers

apprehended defendant in a nearby area. They also recovered a

loaded, long-barrel, .357 Magnum that defendant had tried to discard

during the chase. After defendant was taken to the police station, he

admitted to police officers that he had robbed the store. Then, while

in a holding area, defendant struck a police officer in the head,
-10-

wrestled with him on the ground, and tried to grab the officer’s gun.

With the help of additional officers, defendant was eventually

subdued.

Evidence of other crimes defendant committed in Michigan was

also introduced. Defendant was convicted of breaking and entering

into an occupied dwelling in 1986 and was sentenced to a prison term

of 5 to 15 years. In 1988, defendant was seen in a stolen car and fled

when a police officer approached the vehicle. Defendant was

subsequently convicted of unlawfully driving away an automobile and

received a prison term of two to five years. In 1989, defendant was

convicted of attempted felony receiving and concealing of stolen

property. He received a sentence of one to two years’ imprisonment.

Defendant was incarcerated in Michigan in August of 1989 and

paroled in June of 1993. His parole was revoked, and he was

reincarcerated, in October of 1994. He was released again in August

of 1996, and his parole revoked a second time, in March of 1997.

Defendant was paroled a third time in February of 1998. By March of

1999, he had been charged with armed robbery and the other crimes

for which he was facing trial on May 19, 1999.

Evidence was also introduced at defendant’s sentencing hearing

regarding an armed robbery that occurred at a convenience store in

Charlotte, North Carolina, on July 21, 1999. In this incident, the

robber reached over the counter, grabbed the clerk and threatened to

shoot and kill him if he did not open the cash register drawer. The

clerk opened the drawer and the robber took the money. This incident

was also recorded on a video surveillance tape that was played for the

sentencing jury in the case at bar. After the videotape was recovered

by the police, it was released to the media and broadcast on a

television program called “Crime Stoppers.” Defendant was arrested

by the FBI in Charlotte on August 4. The store clerk subsequently

identified defendant as the robber from a photo array.

Dipak Patel’s son, Chirayu Patel, concluded the State’s case in

aggravation by reading a victim impact statement to the jury.

No evidence was offered by defendant in mitigation. Defendant

refused to attend his sentencing hearing, did not cooperate with trial

counsel in the preparation of mitigating evidence, and declined to

testify on his own behalf.
-11-

Following argument by the State and defense, the jury concluded

that death was the appropriate sentence for the murders of Dipak and

Ambalal Patel. The judge subsequently sentenced defendant to death

for the first degree murders and imposed consecutive 30-year terms

for the remaining convictions. This appeal followed.

Analysis

Defendant raises 10 issues on appeal, relating to both his trial and

sentencing. We address these issues in turn.

Defense Counsel’s Use of the Word “Jail”

Prior to trial, the State filed a motion in limine seeking to admit

evidence that defendant had escaped from custody in Michigan six

days before the shootings at the Extra Value liquor store and had

taken Deputy Sheriff Zelko’s .40-caliber Glock handgun. In its ruling

on this motion, the circuit court stated that the evidence tended “to aid

in the identification of the perpetrator of the subject crimes in that it

shows that the Defendant had access to or possession of a handgun,

or the .40 caliber Glock he’s alleged to have stolen from the Sheriff’s

Deputy, which is similar to the handgun used in the liquor store

crimes.” The circuit court conducted a balancing test and concluded

that the probative value of the evidence substantially outweighed its

potential prejudicial effect. Accordingly, the court granted the State’s

motion to admit the evidence.

At the same time, however, the circuit court also ruled that the

evidence of defendant’s escape “must not become the focal point of

the trial.” To that end, the court ordered that the State would “be

limited to establishing that the Defendant was in the custody of the

Sheriff Deputy, overpowered the Deputy, and fled from the Deputy

Sheriff’s custody with her gun.” The court further ordered that the

State would not be allowed to present details of the escape from

custody that were irrelevant to the identification issue, including “the

fact that the defendant was a jail inmate at the time of this other

offense.”

Thereafter, during the course of defense counsel’s opening

statement to the jury, counsel stated that “a person by the name of

Ricardo Harris had escaped from a jail in Michigan and he had
-12-

escaped with a gun.” In the next sentence, counsel again stated,

“Ricardo Harris did escape from a jail in Michigan.” Later, during the

cross-examination of Deputy Sheriff Zelko, defense counsel elicited

testimony that defendant was wearing “jail-jump greens” at the time

of his escape. The court sustained an objection by the State to the use

of the word “jail-jumps” but did not inform the jury that the objection

was sustained.

Before this court, defendant argues that defense counsel’s use of

the word “jail” during his opening statement, and the elicitation of the

word “jail-jumps” from a witness, amount to ineffective assistance of

counsel. Defendant contends that defense counsel’s errors revealed

that defendant “had at least allegedly committed prior bad acts and

that he had been arrested as a result.” According to defendant,

counsel’s errors were prejudicial and require reversal of his

convictions.

Claims of ineffective assistance of counsel are generally evaluated

under the two-part test set forth in Strickland v. Washington, 466

U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)

(adopted by this court in People v. Albanese, 104 Ill. 2d 504, 525-26

(1984)). To prevail under Strickland, a defendant must show that his

attorney’s assistance was both deficient and prejudicial. More

precisely, a defendant must show that his attorney’s assistance was

objectively unreasonable under prevailing professional norms, and that

there is a “reasonable probability that, but for counsel’s unprofessional

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

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 687, 694, 80 L.

Ed. 2d. at 693, 698, 104 S. Ct. at 2064, 2068. The failure to satisfy

either prong of the Strickland test will preclude a finding of ineffective

assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998).

In this case, defendant has not established prejudice. As noted, in

its ruling on the motion in limine, the circuit court held that the State

could introduce evidence that defendant escaped from the custody of

Deputy Sheriff Zelko. Defendant does not contest this ruling. Thus,

defendant’s contention regarding prejudice is quite narrow: he

contends he was prejudiced by the statements that he escaped from

custody in jail rather than from the custody of a deputy sheriff. This

is a de minimis distinction. The jury knew that defendant was in
-13-

custody and could infer, logically, that he was being held in custody

somewhere. Further, on the three occasions when the word “jail” was

mentioned it was not stressed or emphasized in any way. Finally, and

most important, the three mentions of the word “jail” occurred within

the context of a lengthy trial in which the jury heard extensive

ballistics evidence as well as the compelling testimony of two

eyewitnesses who repeatedly and unequivocally identified defendant

as the gunman. Given these facts, we conclude there is no reasonable

probability that, absent the appearance of the word “jail” and “jailjumps,” the result of defendant’s trial would have been different.

Accordingly, defendant’s claim of ineffective assistance of counsel

fails.

Defendant’s Flight to and Arrest in North Carolina and His Use of

an Assumed Name

Before trial, the State moved in limine to introduce evidence that

defendant fled to Charlotte, North Carolina, following the shootings

at the Extra Value liquor store and that, at the time of his arrest there

in August of 1999, he possessed identification bearing a false name.

During the hearing on the State’s motion, the State argued that both

defendant’s flight and his use of an assumed name were relevant and

admissible because they showed defendant’s consciousness of guilt for

the crimes committed in Illinois. The State asked the circuit court to

“allow the People to make [this] argument to the ultimate trier of

fact.”

In the alternative, the State contended that, if the circuit court did

“not allow the People to make this argument to the trier of fact, that

being flight and consciousness of guilt,” then evidence that defendant

was apprehended in North Carolina and was carrying false

identification was nevertheless admissible to show the circumstances

of his arrest. In particular, citing to People v. Hayes, 139 Ill. 2d 89,

130-31 (1990), the State maintained that evidence of defendant’s

arrest in North Carolina was admissible to explain why his

apprehension was delayed until three months after the crimes

occurred.

Following the hearing on the State’s motion, the circuit court

issued an order in which it reserved ruling on whether the State would

be allowed to argue that defendant’s flight to North Carolina showed
-14-

consciousness of guilt. In its order, the circuit court set forth a

“framework for a future determination of the issue,” explaining:

“The inference of guilt which may be drawn from flight

depends upon the knowledge of the suspect that the offense

has been committed and that he is or may be suspected. While

evidence that the Defendant was aware that he was a suspect

is essential to prove flight, actual knowledge of his possible

arrest is not necessary to render sufficient evidence admissible

where there is evidence from which such fact may be

inferred.”

The circuit court invited the State “to submit a pre-trial proffer of the

evidence that it would advance at trial that would show that the

Defendant had knowledge that the charged liquor store crimes had

been committed and that he was aware or [sic] may have been

suspected.” Thereafter, however, the State expressly declined to make

such a proffer and no further order was entered by the court on this

issue.

With respect to defendant’s possession of false identification at the

time of his arrest, the circuit court granted the State’s motion in

limine. The circuit court stated:

“Where the Defendant uses a different name from his own,

questioning regarding the defendant’s true identity is relevant

in that it serves to clarify the Defendant’s true identity.

Identification is clearly an issue in this case and evidence of

the Defendant’s use of an assumed name is equally clearly

relevant and material to the issue of the identity of the

offender. Also, evidence of the use of a false name after the

commission of a crime is commonly accepted as relevant and

admissible as to the issue of consciousness of guilt.”

Subsequently, at trial, the State introduced the testimony of FBI

Agent Raymond Duda. Duda briefly testified, without crossexamination, that he arrested defendant inside an apartment in

Charlotte, North Carolina, on August 4, 1999. Duda stated that, at the

time of his arrest, defendant possessed a social security card and a

North Carolina state identification card bearing defendant’s

photograph. Both cards were in the name of Joaquin Alexander

McCall.
-15-

In addition to Duda’s testimony, the State also briefly referred to

defendant’s arrest in North Carolina and his use of an assumed name

during its opening statement to the jury. And, during closing

argument, the prosecutor twice stated that defendant was using the

name Joaquin McCall at the time of his arrest.

Defendant now contends that the circuit court erred in admitting

evidence of defendant’s flight to and arrest in North Carolina and his

use of an assumed name. Defendant casts his argument solely in terms

of whether it was proper for the State to use this evidence to establish

his consciousness of guilt for the crimes at issue in this case.

Defendant acknowledges, as a general matter, that both evidence of

flight and the use of an assumed name may be admissible as proof of

consciousness of guilt. See, e.g., People v. Lewis, 165 Ill. 2d 305, 349

(1995); 2 K. Broun, McCormick on Evidence §263, at 217 (6th ed.

2006); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence

§801.3, at 632 (8th ed. 2004). Defendant maintains, however, that to

establish consciousness of guilt from flight and the use of an assumed

name, the State must show that the defendant knew he was being

sought in connection with the charged crime. Further, while defendant

concedes that there was “massive” nationwide publicity regarding the

shootings at issue in this case, he maintains that the State’s own

evidence establishes that defendant left immediately after the crimes

at the liquor store occurred and that he “was no longer in Oak Lawn

when the publicity barrage began.” According to defendant, “[n]ot

only did the state fail to establish that [defendant] knew he was a

suspect, it established that he left before he could have known that the

police suspected him.” Thus, defendant contends that “[t]he state

failed to lay the foundation necessary to admit evidence that

[defendant] had fled to and was arrested in North Carolina or that he

was using an assumed name, and it was improper to argue that was

evidence of his consciousness of guilt.”

The State, in response, correctly observes that this argument is

procedurally defaulted because defendant failed to include it in his

posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).

Nevertheless, pursuant to Supreme Court Rule 615(a) (134 Ill 2d R.

615(a)), “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial

court.” Before invoking the plain error exception, however, “it is
-16-

appropriate to consider whether error occurred at all.” People v.

Wade, 131 Ill. 2d 370, 376 (1989). The circuit court errs in admitting

evidence only if it abuses its discretion in doing so. People v.

Robinson, 217 Ill. 2d 43, 62 (2005).

With respect to the issue of flight, we note that, contrary to

defendant’s assertions, the State did not attempt to establish his

consciousness of guilt based on the fact he fled to North Carolina.

Although the State argued in pretrial proceedings that defendant’s

flight showed consciousness of guilt, the argument was not pursued

at trial. At no time did the State suggest to the jury that defendant fled

to North Carolina because he was conscious of having committed the

crimes at issue in this case.

Through the testimony of Agent Duda the State did introduce

evidence that defendant was arrested in North Carolina. However, the

State’s only noteworthy mention of defendant’s arrest came during its

opening statement to the jury, where the prosecutor suggested there

was a delay in apprehending defendant because he was in North

Carolina:

“The Oak Lawn police were now looking for Ricardo Harris;

but ladies and gentlemen, their search didn’t really turn up

much–not until August 4, 1999, when the defendant was

captured and arrested by the FBI. He was found in North

Carolina. He was found living under an assumed name. He

was found in possession of identification under that assumed

name, but with his photograph on it.”

Evidence that defendant was apprehended in North Carolina was

clearly admissible as a circumstance of his arrest. People v. Hayes,

139 Ill. 2d 89, 130-31 (1990). We conclude, therefore, that the circuit

court did not abuse its discretion in admitting that evidence.

Consequently, we also conclude there was no plain error. See People

v. Keene, 169 Ill. 2d 1, 17 (1995) (all plain errors are reversible

errors).

With respect to the false identification discovered with defendant

at the time of his arrest, we note that the circuit court offered two

rationales for its admission: the evidence was relevant to establishing

defendant’s identity and it was relevant to establishing his

consciousness of guilt. In two statements made during closing

argument, the State discussed defendant’s use of an assumed name,
-17-

but solely in terms of clarifying defendant’s identity. The first

statement came while the prosecutor was recounting Agent Duda’s

description of defendant and emphasizing the accuracy of the

composite sketch of the gunman prepared by Helen Chisnick:

“What did [Duda] say about the defendant’s weight? What did

he say about him? Oh, I know, he said that he had the

identifications, evidently he’s Joaquin McCall. That’s right,

he’s Joaquin McCall. But we’ll call him Ricardo Harris today,

okay, folks. But what did he say about him besides that he was

Joaquin McCall on that day? He said that he was six foot, a

hundred and eighty-five pounds. Boy, everything Helen had to

say about him is actually right on. The composite [sketch] was

right on, the weight and the height, everything is right on

about the defendant.”

During rebuttal, the prosecutor again mentioned the assumed

name within the context of discussing Helen’s identification of

defendant:

“And what about that information [which Helen provided to

the police]? Special Agent Duda told you that when Ricardo

Harris was taken into custody in North Carolina, he was six

foot tall, one inch different [than Helen’s description], hundred

and eighty-five pounds, fifteen pounds heavier [than Helen’s

description], and going under the name of Joaquin McCall.

You can read it. It’s got the information on there. Alexander

McCall. And issued June 1st, 1999. You will be able to see

that.”

The State discussed defendant’s assumed name only to clarify that,

although the identification found on defendant bore the name Joaquin

Alexander McCall, it was, in fact, defendant who was arrested, and

further, that it was defendant’s physical description which was on the

North Carolina state identification card. Evidence of defendant’s use

of an assumed name served to clarify defendant’s true identity. As

such, it was properly admitted. See, e.g., People v. Berlin, 75 Ill. 2d

266 (1979).

In his briefs to this court, defendant does not address the circuit

court’s ruling that the false identification was relevant to establishing

his true identity but, instead, asserts only that the State introduced his

use of an assumed name to prove his consciousness of guilt. Again,
-18-

however, the State did not make that argument to the jury. Further,

even if the admissibility of the false identification is viewed solely in

terms of establishing consciousness of guilt, and even if it is

considered under the standards for admission suggested by defendant,

there was no error.

In a supplemental pro se response to the State’s motion in limine,

defendant admitted that he knew he was a suspect in the shootings

“days” after they occurred. The pro se response states:

“[D]efendant did not become a suspect in the crime until May

15th which is when police learned of his identity. The

defendant was totally unaware of an armed robbery having

taken place, or of him having become a suspect until days

later.”

During the hearing on the State’s motion in limine, defendant again

told the court, “I didn’t know anything about any crime here in Illinois

until subsequently after leaving this State. Which was a couple days

later.”

Defendant expressly conceded to the circuit court that, at the time

the State established he was using an assumed name, i.e., when he was

arrested in August of 1999, he knew he was a suspect in the crimes at

issue in this case. Given these facts, we conclude that the circuit court

did not err in admitting evidence of defendant’s use of false

identification, either as a matter of establishing defendant’s identity or

his consciousness of guilt. Consequently, we find no plain error as

well.

Evidence That Defendant Purchased and Used Drugs

Before trial, defendant moved in limine to exclude any testimony

by Frank Sarelli that defendant purchased or used drugs with Sarelli

during the time defendant was staying at the Aloha Motel. The circuit

court denied the motion.

Subsequently, at trial, Sarelli testified regarding drug sales made

to defendant. Sarelli stated that when he first met defendant at the

Aloha Motel on May 11, 1999, defendant asked Sarelli where he

could buy drugs. Sarelli went to defendant’s room and allowed

defendant to try some of his crack cocaine. Defendant then asked

Sarelli if he would buy him some crack cocaine. Sarelli did so. Sarelli
-19-

also testified that he bought crack cocaine twice more for defendant

on the following day, May 12. According to Sarelli, after the second

drug purchase on May 12, defendant showed him a Glock, .40-caliber

handgun and asked whether Sarelli could sell it for him.

Before this court, defendant states that the circuit court admitted

Sarelli’s testimony regarding the drug sales and drug usage because

the testimony placed defendant five blocks from the Extra Value

liquor store around the time of the shootings. Defendant contends,

however, that it is improper for a witness to discuss other crimes to

establish a defendant’s proximity in time and place to the crime scene.

Defendant further claims that Sarelli could have testified that he had

seen defendant at the Aloha Motel without mentioning the drug sales

or drug usage, and “no violence would have been done to his

testimony.” Accordingly, defendant maintains that Sarelli’s testimony

regarding the drug sales and drug usage was irrelevant and prejudicial

and should have been excluded. We disagree.

“[E]vidence of other crimes committed by defendant may be

admitted if relevant to establish any material question other than the

propensity of the defendant to commit a crime.” People v. Stewart,

105 Ill. 2d 22, 62 (1984). “When such evidence is offered, it is

incumbent upon the trial judge to weigh the relevance of the evidence

to establish the purpose for which it is offered against the prejudicial

effect the introduction of such evidence may have upon the

defendant.” Stewart, 105 Ill. 2d at 62.

Contrary to defendant’s assertions, Sarelli’s testimony regarding

drug sales and drug usage was not admitted solely because of its

relevance to establishing defendant’s proximity to the crime scene.

During a brief hearing on defendant’s motion in limine, the State

contended that the drug transactions between defendant and Sarelli

were relevant and admissible because they showed “the credibility of

the relationship between Mr. Sarelli and the defendant.” The State

explained:

“[I]t is our position that it is because of that relationship,

because of the relationship that Mr. Sarelli had with the

defendant in that he would buy the drugs for the defendant

and do drugs with the defendant, that the defendant felt

comfortable enough to show Mr. Sarelli the gun that he was
-20-

in possession of and felt comfortable enough to ask Mr. Sarelli

to try and sell that gun.”

Immediately following the State’s argument, the circuit court issued

a ruling on defendant’s motion in which the court agreed with the

State:

“The Court finds that the witness’–that is, Frank Sarelli

supplying drugs to the defendant and the presence together of

the defendant and the witness for the negotiation of the

purchase of drugs and the usage of the drugs puts into context

the relationship and the extent and nature of the time the two

spent together and speaks to the witness’ opportunity to

observe the defendant and clearly goes to the issue of the

defendant’s identification and presence and proximity to the

crime scene.

The Court has conducted a balancing test and finds that

the probative value from the admission of this evidence would

substantially outweigh its prejudicial effect.

Therefore, your motion in limine is denied and the

evidence may come in.” (Emphasis added.)

The jurors were more likely to believe that defendant tried to sell

Sarelli the Glock handgun if they knew the nature of the relationship

between the two and, specifically, that Sarelli had shared drugs with

defendant and had obtained drugs for him on at least three occasions.

See, e.g., People v. Cole, 29 Ill. 2d 501, 504-05 (1963) (evidence of

prior drug transactions explained and gave credence to what was

otherwise unrealistic testimony regarding a drug sale between the

defendant and an undercover officer). The circuit court did not abuse

its discretion in admitting evidence of the drug transactions on this

basis.

References to the Victims’ Families

Defendant contends that the State impermissibly elicited references

to the victims’ families during the trial testimony of three witnesses.

The first such reference occurred during the direct examination of

Helen Chisnick. At the beginning of her testimony, Helen was asked

several background questions by the prosecutor, including how old
-21-

she was and what she did for a living. Helen was then asked what she

did on May 13, 1999, the day of the shootings. Helen replied:

“I took care of my mother. My mother was bedridden.

She’d had a stroke. So she was paralyzed on the one side of

her. So I–my routine would be I would get up in the morning.

I would have to change her, feed her breakfast, test her blood

sugar.”

The second reference that defendant contends was error took

place during the testimony of Christina Chisnick. At the beginning of

her direct examination, Christina was also asked several background

questions, including whether she was married and whether she had any

children. Helen answered that she was married and that she had a

nine-year-old son.

The third reference occurred during the testimony of Barul Patel,

Dipak Patel’s wife. Testifying primarily as a “life and death” witness

for the State, Barul stated that she opened the Extra Value liquor

store with her husband at 9 a.m., left to pick up her younger son from

school in the afternoon, and returned in the evening to find that the

shootings had taken place and that her husband had been taken to the

hospital. Like Helen and Christina, Barul was asked several

background questions at the beginning of her direct examination,

including whether she was married, whether she had any children, and

what the ages of the children were. Barul answered that she was

married to Dipak and that she had two sons who, at the time of trial

in February 2004, were 21 and 16 years old.

Citing to People v. Hope, 116 Ill. 2d 265, 274-79 (1986), and

People v. Bernette, 30 Ill. 2d 359, 371 (1964), defendant contends

that the references to family members of the victims described above

were improperly elicited by the State in an attempt to appeal to the

emotions of the jurors. He maintains that he was denied a fair trial on

this basis and, therefore, that his convictions should be reversed.

The State correctly observes that this argument is procedurally

defaulted because no objections were made to the witnesses’

testimony at trial and because defendant failed to include the issue in

his posttrial motion. SeePeople v. Enoch, 122 Ill. 2d 176, 186 (1988).

Defendant, in response, contends that the admission of the complained

of testimony amounts to plain error. In addressing defendant’s plain
-22-

error argument, we first consider “whether error occurred at all.”

People v. Wade, 131 Ill. 2d 370, 376 (1989).

“[W]here testimony in a murder case respecting the fact the

deceased has left a spouse and family is not elicited

incidentally, but is presented in such a manner as to cause the

jury to believe it is material, its admission is highly prejudicial

and constitutes reversible error unless an objection thereto is

sustained and the jury instructed to disregard such evidence.

In like manner, we have held that jury argument by the

prosecution which dwells upon the decedent’s family or seeks

to relate a defendant’s punishment to the existence of family

is inflammatory and improper.” People v. Bernette, 30 Ill. 2d

359, 371 (1964). “However, ‘[c]ommon sense tells us that

murder victims do not live in a vacuum and that, in most

cases, they leave behind family members.’ (People v. Free

(1983), 94 Ill. 2d 378, 415.) Thus, every mention of a

deceased’s family does not per se entitle the defendant to a

new trial. (People v. Bartall (1983), 98 Ill. 2d 294, 322.)”

People v. Hope, 116 Ill. 2d 265, 275-76 (1986).

In this case, several facts point to the admissibility of the three

witnesses’ testimony. First, unlike the testimony at issue in cases such

as Hope and Bernette, Helen’s and Christina’s testimony did not

involve the family members of a deceased victim. Rather, Helen and

Christina testified as surviving victims describing their own personal

backgrounds. See, e.g., People v. Wilson, 32 Ill. App. 3d 842, 847

(1975) (rejecting argument brought under Bernette, in part, because

the complained-of testimony did not involve family members of a

deceased victim). In addition, Barul’s testimony that she was married

to Dipak was necessary to establish her relationship to Dipak, and her

testimony that she had children was necessary to explain why she left

the liquor store in the afternoon. Both statements were a relevant part

of her “life and death” testimony. See, e.g., People v. Free, 94 Ill. 2d

378, 413-15 (1983); People v. Speck, 41 Ill. 2d 177, 201-02 (1968),

rev’d on other grounds, 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct.

2279 (1971). Finally, and most important, the brief testimony elicited

by the State from the three witnesses consisted solely of introductory,

background questions. The State did nothing to make it appear

material to establishing guilt or innocence. Thus, the testimony was
-23-

properly admitted. See, e.g., People v. Pasch, 152 Ill. 2d 133, 199

(1992) (rejecting challenge under Bernette, in part, because “many of

the complained-of questions consisted of merely introductory,

foundational questions pertaining to the witness’ back ground, which

was proper”); People v. Griffith, 158 Ill. 2d 476, 484-85 (1994).

Consequently, there also was no plain error.

In addition to challenging the testimony of Helen, Christina and

Barul, defendant also contends that he was denied a fair trial because

of comments the prosecutor made about the two deceased victims’

families during the opening statement to the jury. While recounting the

events that took place inside the liquor store during the shootings, the

prosecutor stated: “That bullet that struck Dipak in the back killed

him. Dipak Patel was both a father and a husband.” The prosecutor

also stated: “The defendant’s bullet struck Ambalal Patel in the chest

killing him. Ambalal Patel was also a husband and father.” A defense

objection at that point was sustained and the issue was subsequently

raised in defendant’s posttrial motion.

We agree with defendant that the prosecutor’s comments during

the opening statement were error. However, we cannot say the

comments were so improper as to warrant reversal of defendant’s

convictions. The comments were not dwelled upon by the State in any

way and no attempt was made to relate defendant’s punishment to the

existence of the victims’ family. See Bernette, 30 Ill. 2d at 371.

Further, defense counsel’s objection to the comments was sustained

and the jury was properly instructed that the arguments of counsel

were not evidence that it could consider in determining guilt or

innocence. Considered in the context of the entire trial, the comments

did not prejudice defendant. Accordingly, we conclude that the

comments do not amount to reversible error.

Excusal of Venireperson Smith for Cause

Defendant contends that the circuit court violated the principles

set forth in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776,

88 S. Ct. 1770 (1968), when it excused prospective juror Harvey

Smith for cause. The State initially responds that this argument is

forfeited because defendant did not include any reference to Smith’s

excusal in his posttrial motion. However, the failure to preserve an

error in a posttrial motion may be excused when a timely trial
-24-

objection is made and the purported error is one that can be raised in

a postconviction petition. People Keene, 169 Ill. 2d 1, 10 (1995).

Here, defendant objected when the circuit court excused Smith after

his voir dire examination, and a Witherspoon error can be asserted in

postconviction proceedings. See 725 ILCS 5/122–1(a)(1) (West

2004) (permitting claims of “substantial denial of *** rights under the

Constitution of the United States or of the State of Illinois); People v.

Jackson, 205 Ill. 2d 247, 271-72 (2001) (addressing a Witherspoon

argument raised in a postconviction petition). Accordingly,

defendant’s procedural default is excused.

Witherspoon and its progeny hold that a defendant’s right to an

impartial jury, guaranteed by the sixth and fourteenth amendments to

the United States Constitution, prohibits the removal of a prospective

juror for cause where the prospective juror voices only general

objections to the death penalty. People v. Gilliam, 172 Ill. 2d 484,

509 (1996). A prospective juror in a capital case may, however, be

excused for cause based on his beliefs regarding the death penalty

when those beliefs would “ ‘prevent or substantially impair the

performance of his duties as a juror in accordance with the law and his

oath.’ ” (Emphasis omitted.) Wainwright v. Witt, 469 U.S. 412, 420,

83 L. Ed. 2d 841, 849, 105 S. Ct. 844, 850 (1985), quoting Adams v.

Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526

(1980). Because the circuit court is in a “ ‘superior position to gauge

the meaning of the prospective juror’s responses,’ ” the court’s

decision to remove a prospective juror for cause is entitled to great

deference on review. People v. Tenner, 157 Ill. 2d 341, 363 (1993),

quoting People v. Emerson, 122 Ill. 2d 411, 439 (1987). The remarks

of a prospective juror during the voir dire examination must be

considered “not in isolation but as a whole.” Tenner, 157 Ill. 2d at

363. In addition, each voir dire is unique and the propriety of

dismissing a juror for cause must be considered on a case-by-case

basis. People v. Williams, 161 Ill. 2d 1, 54 (1994).

In this case, Smith was questioned extensively during his voir dire

examination regarding his views on the death penalty and his ability to

fairly decide defendant’s case. At the close of his examination, the

State moved to excuse Smith for cause. The State maintained that

both Smith’s responses to questioning and his physical demeanor

during questioning demonstrated his substantial inability to follow the
-25-

law and perform his duties as a juror. The State noted, in particular,

that Smith kept “shaking his head no” throughout the examination. 

The circuit court granted the State’s motion. The court stated:

“Well, the Court has been particularly mindful of this

juror’s responses in conjunction with his body conduct; his

body language, his demeanor as he sat in the chair, and the

Prosecution was correct when they said that. Even when the

juror indicated that he could possibly or at one point he even

got to the point of probably signing a verdict imposing death,

his head was shaking from side to side in a no fashion as it had

been throughout the course of this juror’s voir dire. The Court

finds that this prospective juror’s responses and demeanor

demonstrated to the Court’s satisfaction that his views on the

death penalty would prevent or substantially impair the

performance of his duties as a juror in accordance with the

Court’s instructions as to the law and his oath as a juror.

Accordingly, he’s excused for cause.”

Defendant contends that the circuit court erred in dismissing Smith

because there was “no ambiguity” in Smith’s answers during his voir

dire examination. In defendant’s view, Smith “repeatedly and

unambiguously stated that he could follow the law and impose a death

sentence.” Defendant acknowledges the circuit court’s finding that

Smith was shaking his head “no” throughout his questioning.

However, defendant contends that “[i]t simply is inappropriate to rely

upon a prospective juror’s demeanor to excuse him for cause where

he has repeatedly and unambiguously promise[d] to follow the law.”

Thus, according to defendant, the circuit court erred in dismissing

Smith for cause.

Unlike defendant, we believe there was considerable ambiguity in

Smith’s voir dire responses. Although, at times, Smith did state that

he could follow the law as instructed, there were several instances

when he stated that he could not. At the outset of Smith’s

examination, for example, the following exchange took place:

“Q. [by the court] Okay. Are your beliefs about the death

penalty such that regardless of the facts of the case and

regardless of the background of the Defendant that if the

Defendant were found guilty of first-degree murder, you

would automatically vote against imposing the death penalty?
-26-

A. It’s a possibility.

Q. Okay. Well, can you give that some thought and be a

little less equivocal. Would you be inclined to automatically

vote against the death penalty regardless of–

A. Yes.

Q. –regardless of the facts of the case and regardless of

the background of the Defendant?

A. Yes.”

Later, the following exchange took place:

“Q. [by the court] Sir, if you believe that after hearing all

of the facts, all of the aggravation, and all of the mitigation

that the death penalty was the appropriate sentence, would

you impose it?

A. If after I had heard everything; all the facts, and

everything is there, I don’t think so. This question here, man,

you know, sir, I mean, your Honor, that is something there.

***

Q. *** [A]ll we want to do is make sure that you could be

fair to both sides; keep an open mind in this case, set your

personal beliefs about the death penalty aside, and just follow

the law as I give it to you. That’s all we want to do, and my

question is very simple to you. Can you do that and in doing

that, consider all of the sentencing options and if after hearing

all of the facts, all of the aggravation, all of the mitigation, and

keep an open mind in the process, you determine that the

death penalty is the appropriate sentence, could you sign a

verdict form to that effect?

A. Your Honor, to be perfectly honest with you, I am not

100 percent sure. I am sort of split in between. I am not 100

percent sure that I could.” 

Asked whether his views regarding the death penalty would

substantially impair his ability to reach a fair and impartial decision

concerning the issue of defendant’s guilt, Smith replied, “Oh, yeah.

Yeah. Yes. Yes.” When asked for further clarification, however,

Smith stated that he could, in fact, fairly decide defendant’s guilt

without regard to potential punishment.
-27-

On another occasion, when the circuit court asked Smith whether

he could set his beliefs about the death penalty aside and follow the

law as the court instructed, Smith replied, “Yes, Yes.” Subsequently,

however, he told the court that because of his religious beliefs, he was

opposed to the death penalty in most situations and that he could not

put the law before those beliefs. Smith also stated:

“A. Put my beliefs aside? I could hear it, but I could never

put my beliefs aside and say–because what I believe in I

believe in.”

Finally, at the end of Smith’s examination, the following exchange

took place:

“Q. [by the court] *** Could you look at both of those

things [the death sentence and a term of imprisonment] with

an open mind and depending on the facts choose either

option?

A. There’s a possibility that I could look at them both with

an open mind, but making a decision to choose would be

maybe kind of hard. It all depends on the facts presented.

Q. It is hard, but could you do it?

A. It all depends on the facts.

Q. Right. And if you had the facts, could you do it?

A. And if those facts was true and I believe in these facts

and knew I had the right facts; knowing it’s the right thing and

if I knew it was the right facts, then I could probably make

some type of decision.

Q. Could you sign a verdict that called for the death

penalty if you were satisfied with the facts in front of you and

that they warranted that penalty?

A. It’s a possibility. It’s a possibility. I mean I would

probably sign it, you know.

Q. Can you see yourself doing it under the rights facts and

the right case?

A. Your Honor, like I said, if it’s the facts. I have to have

the facts.
-28-

Q. I know and let’s assume that you have the facts that

you believe are sufficient to justify the death penalty, would

you sign a verdict that provided for it?

A. Possibly so, your Honor. Like I said, you know, I mean

it’s a hard decision for me. My own personal opinion. It’s a

hard decision.”

As the State pointed out after this exchange had taken place, even

when Smith assumed the existence of facts that he, himself, believed

were sufficient to impose the death penalty, Smith still declined to say

that he would sign a death penalty verdict.

It is true, as defendant argues, that at times during his voir dire

examination Smith indicated he could follow the law and perform his

duties as a juror. At other times, however, Smith’s responses clearly

demonstrated that he could not “set aside his own beliefs in deference

to the rule of law.” Williams, 161 Ill. 2d at 54, citing Lockhart v.

McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149-50, 106 S. Ct.

1758, 1766 (1986). “[I]t is precisely in situations such as this, where

the cold record suggests an apparent contradiction, that we defer to

the circuit court’s discretion.” People v. Shaw, 186 Ill. 2d 301, 317

(1998), citing People v. Holman, 132 Ill. 2d 128, 148-49 (1989); see

also Wainwright, 469 U.S. at 434, 83 L. Ed. 2d at 858, 105 S. Ct. at

857.

Moreover, in making its decision whether to excuse Smith for

cause, the circuit court had to consider not only Smith’s ambiguous

responses, but also the fact that he had been shaking his head “no”

throughout the examination. “ ‘[T]he manner of the juror while

testifying is oftentimes more indicative of the real character of his

opinion than his words.’ ” Wainwright, 469 U.S. at 428 n.9, 83 L. Ed.

2d at 854 n.9, 105 S. Ct. at 854 n.9, quoting Reynolds v. United

States, 98 U.S. 145, 156-57, 25 L. Ed. 244, 247 (1879). Here, the

circuit court found that Smith’s demeanor indicated, along with his

responses, that he was unable to perform his duties. This finding must

be given deference. See, e.g., Wainwright, 469 U.S. at 426, 83 L. Ed.

2d at 853, 105 S. Ct. at 853 (“deference must be paid to the trial

judge who sees and hears the juror”).

Given the nature of both Smith’s responses to questioning and the

circuit court’s finding regarding his demeanor, we cannot say the

circuit court abused its discretion in concluding that Smith’s views
-29-

would have prevented or substantially impaired the performance of his

duties as a juror. Accordingly, we hold that the circuit court did not

err when it dismissed venireperson Smith for cause.

Jury Question Regarding the Imposition of the Death Penalty for

Two Murders

In Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S.

Ct. 2222 (1992), the United States Supreme Court held that a capital

defendant has a right to challenge for cause a juror who would

automatically vote to impose the death penalty upon conviction. See

generally People v. Buss, 187 Ill. 2d 144, 180 (1999). Pursuant to

Morgan, the circuit court in this case stated, prior to voir dire, that it

intended to ask each prospective juror the following question:

“Are your beliefs such that regardless of the facts of the

case or the background of the defendant, that if the defendant

were found guilty of first degree murder, you would

automatically vote to impose the death penalty, and would not

consider signing a verdict which would result in a sentence of

imprisonment?”

Defense counsel objected to the circuit court’s question. Counsel

moved to have the court’s question replaced with one which asked the

prospective jurors whether they would automatically impose the death

penalty if the “defendant were found guilty of two murders.” The

circuit court denied counsel’s motion, stating that the question

proposed by the court was “consistent with the state of the law.”

Thereafter, the circuit court’s question, as set forth above, was asked

of each prospective juror.

Defendant contends that the circuit court erred when it declined

to ask his proposed question. According to defendant, the court’s

refusal to ask the prospective jurors whether they would always

impose a death sentence if the defendant was convicted of murdering

two persons denied him his right to an impartial jury. Defendant

acknowledges that this claim has been forfeited because it was not

included in his posttrial motion. Defendant maintains, however, that

the circuit court’s rejection of his proffered question constitutes plain

error. We disagree.
-30-

The argument that defendant raises here has been rejected by this

court on several previous occasions. See People v. Buss, 187 Ill. 2d

144, 180-83 (1999); People v. Jackson, 182 Ill. 2d 30, 57-62 (1998);

People v. Brown, 172 Ill. 2d 1, 29-31 (1996); People v. Hope, 168 Ill.

2d 1, 28-31 (1995). Defendant presents no compelling reason to

depart from our holdings in these cases and we decline to do so. In

light of our prior decisions, we conclude that the circuit court did not

err when it declined to ask the prospective jurors defense counsel’s

proposed question. Accordingly, we also conclude that the circuit

court’s ruling did not constitute plain error. See Keene, 169 Ill. 2d at

17 (all plain errors are reversible errors).

Jury Instruction on Unanimity

Illinois Pattern Jury Instructions, Criminal, No. 7C.05 (4th ed.

2000) (IPI Criminal 4th), informs the sentencing jury that a unanimous

verdict is required to impose the death penalty. For a defendant who

has been convicted of multiple murders, IPI Criminal 4th 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 of natural life

imprisonment, and no person serving a sentence of natural life

imprisonment can be paroled or released, except through an

order by the Governor for executive clemency.”

Subsequent to the adoption of IPI Criminal 4th No. 7C.05, the

General Assembly amended the first degree murder statute. See Pub.

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

5/9–1(g). The murder statute, which formerly stated that a death

sentence shall be imposed if the jury finds “no mitigating factor

sufficient to preclude imposition,” now states, in pertinent part:

“(g) Procedure–Jury

*** If the jury determines unanimously, after weighing the

factors in aggravation and mitigation, that death is the
-31-

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 2004).

Recognizing this change in the statute, the circuit court in the case

at bar modified IPI Criminal 4th No. 7C.05 to state:

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

if you, after weighing the factors in aggravation and

mitigation, unanimously find that death is the appropriate

sentence.

If you, after weighing the factors in aggravation and

mitigation, are unable to find unanimously that death is the

appropriate sentence, the court will impose a sentence of

natural life imprisonment, and no person serving a sentence of

natural life imprisonment can be paroled or released, except

through an order by the Governor for executive clemency.”

In addition, the circuit court made similar changes to IPI Criminal 4th

No. 7C.06 and the verdict form prescribed by IPI Criminal 4th No.

7C.09A.

At the jury instruction conference, defense counsel did not

disagree with the circuit court’s replacement of the phrase “no

mitigating factor sufficient to preclude imposition” with “death is the

appropriate sentence” in the jury instructions and verdict form.

Counsel did, however, contend that additional modifications should

be made. Counsel argued that the instructions and the verdict form

should be further modified to state that, if “one or more jurors

determines that death is not the appropriate sentence, the Court will

impose a sentence of natural life imprisonment.” In other words,

defense counsel asked the court to modify the instructions and verdict

form to track the language found in the second paragraph of the

amended version of section 9–1(g) of the murder statute.

The circuit court rejected defendant’s additional modification. The

court stated:
-32-

“The [court’s] modification on this instruction and the

succeeding instructions are based on a change in the law as set

forth in Public Act 093-0605, *** [the modification] most

closely parallels the existing I.P.I. with the limited changes to

reflect the change in the status of the law.

So, it will be given in form and matter as presented by the

People over the Defense objection.”

Defendant now contends that the circuit court erred in refusing his

proposed modification. Defendant argues that his proposed

modification to the instructions and verdict form should have been

given because it “more clearly informed the jury that if any juror felt

that death was not appropriate, the jury could not sentence

[defendant] to death.” Defendant maintains that the circuit court’s

error warrants a new sentencing hearing.

We need not decide whether the circuit court erred by refusing to

incorporate the language of the statute in its entirety. Even if we

assume, as defendant contends, that the circuit court erred, defendant

was not prejudiced by that decision and therefore reversal is not

warranted.

Supreme Court Rule 451(a) states, in pertinent part:

“Whenever Illinois Pattern Jury Instructions, Criminal (4th

ed. 2000) (IPI Criminal 4th), contains an instruction applicable

in a criminal case, giving due consideration to the facts and the

governing law, and the court determines that the jury should

be instructed on the subject, the IPI Criminal 4th instruction

shall be used, unless the court determines that it does not

accurately state the law.” 210 Ill. 2d R. 451(a).

See also People v. Simms, 192 Ill. 2d 348, 412 (2000); People v.

Gilliam, 172 Ill. 2d 484, 519 (1996). When a pattern jury instruction

does not fairly state the law, the circuit court is authorized to modify

it. People v. Hester, 131 Ill. 2d 91 (1989).

In the case at bar, the circuit court modified the jury instructions

and verdict form to reflect what it concluded was a material change in

the first degree murder statute, i.e., the replacement of the phrase “no

mitigating factor sufficient to preclude imposition” with “death is the

appropriate sentence.” Defendant does not contest this modification.

However, no material change was made in the statute with respect to
-33-

the unanimity requirement; under either version of section 9–1(g), the

jury’s decision to impose the death sentence had to be unanimous.

A jury instruction is “ ‘to convey to the minds of the jury the

correct principles of law applicable to the evidence submitted to it.’ ”

People v. Salazar, 126 Ill. 2d 424, 464 (1988), quoting People v.

Gambony, 402 Ill. 74, 81-82 (1948). Here, the instructions and verdict

form given to the jury properly conveyed the principle that unanimity

was required for the imposition of a death sentence. Thus, even if the

circuit court erred by not incorporating the language of the statute

verbatim, that error had no effect on the outcome of defendant’s

sentencing hearing. Accordingly, the error was harmless. See, e.g.,

People v. Ward, 187 Ill. 2d 249, 265 (1999) (“An error in a jury

instruction is harmless if the result of the trial would not have been

different if the proper instruction had been given”).

Whether Defense Counsel Was Ineffective for Not Presenting

Certain Evidence During Mitigation Proceedings

Throughout both his trial and sentencing proceedings, defendant

refused to cooperate with his attorneys in the development and

preparation of mitigation evidence. He instructed his family members

not to speak with defense counsel and refused to help defense

investigators in their efforts to uncover potentially mitigating

information. Defendant also refused to undergo any testing with the

mitigation specialist appointed by the circuit court, clinical

psychologist Dr. Larry Heinrich.

Defendant was admonished by the circuit court on numerous

occasions regarding the importance of developing mitigation evidence

and the impact his refusal to cooperate with counsel would have on

his case. Nevertheless, defendant repeatedly told the court he had no

interest in cooperating with either counsel or Heinrich. Defendant

stated that he did not want his attorneys to present any mitigation

evidence and, more than once, affirmatively waived his right to

present mitigation evidence at the sentencing hearing.

Before this court, defendant does not challenge the adequacy of

the circuit court’s admonishments regarding mitigation or contend that

he did not understand the importance of presenting mitigation

evidence. Nor does defendant argue that defense counsel failed to
-34-

adequately investigate possible sources of mitigation. Instead,

defendant maintains that his attorneys were constitutionally ineffective

because they did not introduce into evidence certain medical records

which, despite defendant’s lack of cooperation, they were able to

uncover during the course of their investigation.

The medical records defendant points to are from a hospital in

Flint, Michigan. The records indicate that, in June of 1988, defendant

suffered head injuries when he was struck by a car, and that in May of

1992, he attempted suicide by leaving a car running in an enclosed

garage. Defendant contends that the only reason his attorneys failed

to introduce these records was because defendant instructed them not

to do so. Defendant further contends, however, that the decision to

introduce, or withhold, mitigation evidence is not a decision which is

left to a defendant in criminal proceedings. Instead, according to

defendant, the decision rests solely with trial counsel as a matter of

trial strategy. Because the decision to withhold the medical records in

this case was not defendant’s to make, defendant maintains that his

attorneys’ “deference to that decision, and consequent abdication of

their authority to make that decision, was substandard performance.”

Defendant also maintains that the medical records were mitigating and

that their omission from the sentencing proceeding was prejudicial.

Therefore, defendant contends that his attorneys were constitutionally

ineffective.

Defendant’s argument that counsel withheld the medical records

solely at his request is not supported by the record. On Friday,

February 6, 2004, just before the aggravation-mitigation phase of the

sentencing hearing was to begin, defense counsel requested a

continuance for “one last opportunity” to explain to defendant the

effect that his lack of cooperation had on his case. During the course

of discussing the request, the circuit court asked counsel to explain for

the record what had been done to obtain mitigation evidence. While

recounting the efforts that had been made and the difficulties

encountered because of defendant’s lack of cooperation, counsel for

defendant stated:

“The investigator also procured documents from several

hospitals in Michigan as well as there were some social

service–he was–Mr. Harris had been sentenced previously in

Michigan and he was given–he was sentenced to some I guess
-35-

you would call it like Haymarket here in Illinois, but some

social centers to be evaluated and things like that and we

obtained records from those places. There was a psychological

evaluation that was part of the discovery and we tendered all

of those materials to the mitigation expert Dr. Heinrich and

we prepared everything that we could outside of the fact that

Mr. Harris would not cooperate. He would not take any tests

and he made that clear on the record on several occasions.”

(Emphases added.)

On this same date, the circuit court admonished defendant regarding

his right to present mitigating evidence. Defendant formally waived

that right. Then, “out of an abundance of caution,” the court

concluded that it would be appropriate to give defendant the weekend

to, once again, consider his decision not to cooperate with his attorney

in the preparation of mitigation.

The following Monday, February 9, 2004, defendant was again

admonished. As before, defendant affirmatively waived his right to

present mitigation evidence during the sentencing hearing. The circuit

court then asked defense counsel to again set forth, for the record,

what mitigation evidence had been uncovered. Counsel stated:

“The investigator was able to determine there were

medical records, obtained medical records from several

hospitals, and locations in the Michigan and Ann Harbor

[sic] Flint area.

There was also records uncovered through the discovery

process in regards to several social service outposts that Mr.

Harris had been assigned to during the eighties, and on his

previous cases we had obtained a mitigation expert report, as

one was appointed to this case previously to our appointment,

Dr. Larry Heinric[h].

Dr. Heinric[h] did interview the defendant, had a meeting

with him, was unable to perform any tests on Mr. Harris, by

Mr. Harris’ choice not to do that.

We did give Dr. Heinric[h] all the information that we

had uncovered to incorporate into a report. I met with Dr.

Heinric[h] on numerous occasions, went over the report, went

over any possible opportunities or areas we could explore
-36-

outside of the defendant’s lack of cooperation to make that

report a mitigating report to be able to present mitigating

evidence to the jury or court, whichever we are going to do.”

*** 

Whatever was in there we tried to follow-up on, your

Honor, and what it led to was hospital records and different

things like that, where we were able to, in some cases, find,

and other cases we ran into dead ends, but we did everything

we could to get all that information as led to the mitigation

expert, which is all we had at the end.” (Emphases added.)

Thereafter, the circuit court stated:

“While we’re still outside the presence of the jury and at

sidebar, I want to ask the defense, I know that I asked the

defendant a series of questions last Friday, as well as this

morning, concerning his insistence and desire that you not

present any mitigation evidence on his behalf. In fact, he even

said he didn’t want you to argue for a penalty other than

death, but you have indicated in other sidebars, and I want to

make this a matter of record, that you also have strategic

reasons for your decisions not to present any mitigation

evidence, in addition to the defendant’s express desire not to

have any presented, is that true?

MR. McQUAID [Defense counsel]: That’s true.

MR. FAHY [Defense counsel]: That’s true, Judge.

THE COURT: Do you want to elaborate on that at all?

You don’t have to.

MR. McQUAID: Judge, it is just that Dr. Heinric[h], the

mitigation specialist, we’re in receipt of his report, and we

have tendered it to the state’s attorney prosecuting this matter,

and we have reviewed that, and as a trial lawyer, I see

absolutely no mitigation in that report, essentially because my

client refused to cooperate with Dr. Heinric[h].

It is just a strategic decision. As a trial lawyer I think it

best if you are going to put forth evidence, it be triable

evidence and evidence that is persuasive.
-37-

We don’t have that, Judge, so we’re not going to attempt

to just throw something up there that I think would backfire

and just become additional aggravation for the State.”

From the foregoing, it is clear that defendant’s attorneys gave the

medical records that defendant asserts should have been introduced at

the sentencing hearing to Heinrich, the mitigation specialist. Heinrich

prepared a report which incorporated that information, and counsel,

for strategic reasons, chose not to present it. Nothing in the record

suggests, as defendant contends, that his attorneys withheld the

medical records from the sentencing hearing because defendant told

them that was what he wanted done.

Moreover, it is apparent from the record why counsel chose not

to introduce the medical records. Although the records from 1988 do

indicate that defendant suffered serious physical injuries following an

automobile accident, there is no indication that defendant suffered any

neurological impairment and there is no indication of any causal

connection between the injuries and the shootings at the Extra Value

liquor store in 1999. Thus, the evidence of physical injury in

defendant’s medical records from 1988 would have been of no help to

counsel in the presentation of his case in mitigation.

As defendant notes, there is a statement in the medical reports

from 1992 that defendant had “Bipolar affective disorder, not

otherwise specified,” and that defendant had “antisocial personality

traits.” But this diagnosis was made seven years before the shootings

at the liquor store in 1999. Because defendant refused to undergo any

psychological testing near the time of trial, defense counsel would

have had no way to relate the diagnosis in 1992 to defendant’s mental

health at the time of the sentencing hearing or at the time of the

shootings. Thus, again, the evidence of psychological problems in

defendant’s medical records would have been of no help to counsel.

Further, the medical records from 1992 were, in certain respects,

clearly detrimental to defendant. The records state that defendant was

depressed at the time of his suicide attempt because, in his words, he

was “in big trouble with the law.” Defendant did not identify what that

trouble was. In addition, the records contain background information

regarding defendant which included the following:
 

1A “tether” is an electronic home monitoring device. See People v. Sheets,

223 Mich. App. 651, 653, 567 N.W.2d 478, 479 (1997).

-38-

“He just got out of jail in June of 1991 and has been on a

tether[1] and also on police hold. He was in jail for two years.

He was in two auto thefts and some other charges that got

him in prison. He was given an option of being in jail for four

years or for being in jail for two years and being on a house

arrest for two more years. He chose the second one.”

Given this information, the 1992 medical records could have been

used by the State to reinforce defendant’s prior criminal record.

“[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.”

Strickland v. W ashington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695,

104 S. Ct. 2052, 2066 (1984). In this case, the medical records at

issue contain nothing regarding defendant’s physical or mental

condition that defense counsel could have used in mitigation and, at

the same time, contain information that could have been used by the

State in aggravation. In light of this fact, we conclude that counsel’s

strategic decision to withhold the medical records from the sentencing

hearing did not fall below an objectively reasonable standard of care.

Accordingly, we reject defendant’s claim of ineffective assistance of

counsel.

Constitutionality of the Illinois Death Penalty Statute Under

Apprendi and Ring

Defendant argues that the Illinois death penalty statute violates the

principles set forth 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, at the

second stage of the sentencing proceedings, the State is not required

to prove beyond a reasonable doubt that aggravating factors outweigh

the mitigating factors before a death sentence may be imposed. We

disagree.

As we recently explained in People v. Thompson, 222 Ill. 2d 1, 54

(2006):
-39-

“[T]he rules announced in Apprendi and Ring are not

applicable to the second phase of a death penalty proceeding

in Illinois because the trier of fact has already found beyond a

reasonable doubt the necessary aggravating factor for

imposition of the death penalty and therefore cannot increase

the penalty beyond the statutory maximum of death.”

See also People v. Mertz, 218 Ill. 2d 1, 93-94 (2005); People v.

Harris, 206 Ill. 2d 293, 326-27 (2002); People v. Ballard, 206 Ill. 2d

151, 202-05 (2002); People v. Davis, 205 Ill. 2d 349, 372-75 (2002).

This case illustrates the principle. The jury found defendant eligible

for the death penalty after the State proved he had committed two or

more murders. At that point, based exclusively on factors proven

beyond a reasonable doubt before the jury, defendant faced a statutory

maximum sentence of death. The jury’s subsequent weighing of

aggravating and mitigating circumstances, and its decision that death

was the appropriate sentence, did not violate Apprendi or Ring

because it did not increase the maximum penalty already permitted by

the jury’s finding of death eligibility. Accordingly, we reject

defendant’s argument on this point.

Whether the Illinois Death Penalty Statue Is Arbitrarily Applied

Finally, defendant argues that Illinois’ death penalty statute “is

arbitrarily applied, based on race, geography, procedural evolution,

discretion and mistakes of fact.” We have twice previously rejected

this same argument. See Thompson, 222 Ill. 2d at 54; Mertz, 218 Ill.

2d at 95-98. Accordingly, we need not discuss this issue further

except to note, as we did in Thompson, that defendant does not argue

that race, geography or “procedural evolution” actually played any

part in the decision to seek or impose the death penalty in his case.

Conclusion

For the foregoing reasons, we affirm defendant’s convictions and

sentences. The clerk of this court is directed to enter an order setting

Wednesday May 9, 2007, as the date on which the sentence of death

entered in the circuit court of Cook County, is to be carried out.

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

5/119–5 (West 2004). The clerk of this court shall send a certified
-40-

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

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

institution where defendant is confined.

Affirmed.