Docket No. 84686–Agenda 8–September 1999.

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

								PARIS D. SIMS, Appellant.

Opinion filed June 15, 2000.

	JUSTICE McMORROW delivered the opinion of the court:

	Following a jury trial in the circuit court of St. Clair County,

the defendant, Paris D. Sims, was convicted of first degree murder,

attempted first degree murder and armed robbery. At a separate

sentencing hearing, the same jury found defendant eligible for the

death penalty. The jury also found that there were no mitigating

circumstances sufficient to preclude imposition of that sentence.

Defendant was sentenced to death for the murder and to

consecutive 30-year terms of imprisonment for the remaining

offenses. Defendant’s 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). For the reasons that follow, we affirm

defendant’s convictions and sentences.

BACKGROUND

	Testimony at trial established the following facts. On the

morning of October 24, 1994, at approximately 4 a.m., police

officers in Belleville, Illinois, received a call stating that a man had

been seen, covered in blood, running down the street in a Belleville

trailer park. When the officers responding to the call reached the

trailer park, they discovered this man, lying in a fetal position on

the ground near the trailers. The man was bleeding from the head

and face and was incoherent. Officers also discovered, in the

bedroom of one of the trailers, the dead body of 17-year-old JoAna

Bollinger.1 The man found injured on the ground, police later learned, was JoAna Bollinger’s 17-year-old husband, Jacob

Bollinger.

	At trial, Jacob testified about the events which took place

during the evening hours of October 23 and early morning hours

of October 24. Jacob told the jury that on the evening of October

23, at about 9:30 or 10 p.m., he and some friends left Belleville and

drove to the nearby town of Waterloo to pick up a pet snake.

Jacob explained that he had an interest in reptiles and that the

snake was a present from his wife, JoAna, for his upcoming

birthday. Jacob acknowledged that, while he was in Waterloo, he

smoked marijuana. He stated, however, that despite smoking the

marijuana, he remained aware of what was going on around him.

Jacob returned home from Waterloo, alone, at about 11:30 p.m.

	Jacob testified that when he arrived home, he began cleaning

the aquarium in which the pet snake was kept. JoAna was awake

and sitting on the couch in the front portion of the Bollingers’

trailer, which consisted of a combination living room and kitchen

area. The Bollingers’ infant daughter was asleep in her bedroom,

just to the rear of the living room. After Jacob finished cleaning the

aquarium, he and JoAna went to their bedroom at the back end of

the trailer and began to engage in sexual intercourse. Shortly

thereafter, they heard someone knocking on their front door. The

Bollingers tried to ignore the knocking, but after it had continued

for about 10 minutes, Jacob decided to answer the door. He put on

some sweatpants and returned to the living room.

	Jacob testified that when he opened the fr ont door, he saw an

African-American male, approximately 5 feet 11 inches or 6 feet

tall. The man had a much wider build than Jacob’s own build of

120 pounds. At the time, Jacob believed that the man at the door

was “Ice,” an individual whom he had met on two or three prior

occasions. In court, however, Jacob identified defendant as the

man who had knocked on the door. Jacob stated that defendant

asked if he could come in out of the rain and wait for a ride that he

had coming. Jacob let defendant in. Defendant did not appear to be

under the influence of alcohol or drugs. Jacob estimated that

defendant entered the trailer at about 12:30 a.m.

	After defendant entered the trailer, Jacob went back to JoAna

and told her that someone else was in the trailer and that she

should not leave the bedroom without her clothes on. When Jacob

came out of the bedroom, defendant confronted him, put a knife to his throat and forced him back into the bedroom. According to

Jacob, defendant threatened to kill the Bollingers if they screamed

or tried to get away. Jacob stated that defendant pressed the knife

against his throat and forced him to open some jewelry boxes and

pick through the belongings on top of the bedroom dresser.

Defendant then asked the Bollingers where their money was. When

JoAna told defendant that their money was in her purse in the

living room, defendant switched the knife to her throat and forced

both JoAna and Jacob into the living room. After Jacob gave

defendant about $80 from JoAna’s purse, they all returned to the

bedroom.

	Once in the bedroom, defendant pushed Jacob to the floor and

JoAna onto the bed. Defendant continued to search for money and

again threatened to kill the Bollingers. He then returned to the bed,

lowered his pants and forced JoAna to perform oral sex upon him,

as Jacob sat next to the bed watching. According to Jacob,

defendant then raped JoAna vaginally and anally. Jacob stated that,

during these acts, defendant slashed JoAna’s back with the knife

and that, in reaction, Jacob moved. Defendant then grabbed

JoAna’s hair, cut off a large piece, threw it at Jacob, and told Jacob

not to move, or he would cut JoAna’s throat.

	After defendant threw the hair at Jacob, he told Jacob to lie

down on the floor next to the bed. Jacob did so. Defendant

continued to rape JoAna. Defendant then got up, pulled Jacob up

from the floor, pushed him against the bed with a knee in his back

and tied a pair of long-johns around his throat. Jacob looked up

and saw that JoAna was lying on the bed, “white and real pale” and

that “she was alive, but she didn’t look alive.” Jacob then began to

fight back. Jacob grabbed the long-johns and started pulling on

them, trying to get air. Defendant then hit Jacob in the back of the

head.

	Jacob stated that the next thing he could remember was

coming out of the hallway and running for the front door. When he

got to the door, he discovered that it was locked. Defendant

caught up with Jacob and, as the two fought in the living room and

kitchen area, defendant hit Jacob several times in the head with a

heavy object. Jacob testified that he kept slipping on blood as

defendant continued to strike him, but that, eventually, he was able to get to the front door, open it, and escape. Jacob then ran to the

trailer of his neighbor, Ricky Harvey, and banged on the door.

Jacob did not wait for anyone to answer, however, but instead,

continued to run, jumped over a fence, and collapsed in some

weeds. He awoke to find a police officer standing over him. Jacob

was taken to the hospital where he was treated for cuts and large

gashes to his head and eye.

	In court, Jacob identified rings which were found in

defendant’s pocket at the time of his arrest as ones which belonged

to JoAna and which were taken by defendant during the attack.

Jacob also identified an adjustable wrench which was recovered

from a wooded area outside the trailer as one which he had kept in

a tool box in his bedroom. Jacob stated that the wrench was

consistent with the object defendant used to strike him in the head.

Jacob also identified a knife which was recovered outside the trailer

as the one which was used by defendant. Jacob stated that this

knife did not belong to the Bollingers.

	On cross-examination, Jacob explained how in the weeks

following the attack he gave several statements to the police, and

how, in each statement, he provided additional information to the

police as it returned to his memory. Jacob acknowledged that he

may have left both major and minor details out of his statements.

	Jacob also acknowledged that he had smoked marijuana with

his neighbor, Kathy Kunkle, on two or three occasions prior to the

attack. He denied using drugs with his neighbor Ricky Harvey or

with another neighbor with whom he was familiar, Anthony

Graham. Jacob stated that he had continued to smoke marijuana

since the time of the attack.

	Jacob was also cross-examined regarding his identification of

defendant as the assailant, in light of his initial belief that it was

“Ice,” known to Jacob at the time of trial as Willie Sims, who

appeared at his door on the night of the attack. Jacob testified that,

about six weeks before the attack, he gave a ride to a man he met

on the street, in the trailer park. Jacob spent about an hour with the

man, taking him to two stores. The man told Jacob that he was

called “Ice.” Jacob stated that he might have seen “Ice” previously

at Rickey Harvey’s trailer but that he was not certain that this was

the person he had seen. Jacob also stated that he did not know if the person he took to the stores was “Ice, ” i.e., Willie Sims, or defendant.

	On redirect, Jacob stated that he had heard that “Ice” might

have been defendant’s cousin. Jacob also said that he was certain

that defendant was the man who attacked him and murdered

JoAna. Referring to defendant, Jacob told the jury, “I know he did

it. I can look at him and know that’s the face I saw. That’s a face

I will never forget.”

	Vickie Jamison, a resident of the trailer park, also testified for

the State. Jamison stated that, at about 3:30 a.m. on October 24,

1994, a man knocked on her door and told her to “hurry up and let

him in.” In court, Jamison identified defendant, whom she had

known for about one month, as this man. According to Jamison,

once defendant was in the trailer, he kept looking out the window

and told Jamison, “If anybody comes to the door, don’t let them

in.” He then fell asleep. Jamison told the jury that she had seen

defendant earlier, at approximately 8 or 9 p.m., drinking with

friends. She also stated that on both occasions when she saw

defendant, he was wearing black boots, tan pants, a green and blue

shirt, and a cap. Jamison testified that defendant left her trailer at

about 8:30 or 9 a.m. on the morning of October 24. Before he left,

defendant asked Jamison for a change of shirt. Jamison complied,

and defendant left behind his blue and green shirt, and his cap.

Jamison threw the shirt and cap into her closet with her dirty

clothes. She later gave these items to the police when they came to

her trailer and told her defendant “had killed somebody.” In court,

Jamison identified the boots recovered from defendant at the time

of his arrest as the ones he wore on the night of October 23 and the

early morning of October 24. Jamison also stated that, on October

24, she “went to the public aid office and found out that

[defendant] had killed somebody.”

	On cross-examination Jamison acknowledged that she had

been convicted of perjury and theft. Jamison stated that she knew

her neighbors Ricky Harvey and Kathy Kunkle and was aware that

defendant socialized and did drugs with them. Jamison also knew

a man who was called “Ice” and knew that “Ice” hung around with

Ricky Harvey and others in the trailer court.

	Detectives Doug Jones and Dave Ellis, of the Belleville police

department, testified that defendant was arrested about six or seven

blocks from the Bollingers’ trailer at 8:47 a.m. on October 24,

1994. The officers had been searching for defendant on the

morning of October 24 based upon information gathered during

interviews conducted in the trailer park. At the time of arrest,

defendant appeared to be about 6 feet or 6 feet one inch tall, and

appeared to weigh between 180 and 200 pounds. Defendant did

not appear to be injured or under the influence of alcohol or drugs.

At the Belleville police station, police officers recovered four

women’s rings, an earring stud and approximately $24 in currency

from defendant’s pocket. Defendant’s boots and pants were also

taken into evidence.

	Jones and Ellis both testified that, after defendant was given Miranda warnings, he made two statements, each of which was written out by Ellis. Defendant initially denied being at the scene of

the murder. However, in his first statement, he described the

following series of events. According to defendant, he had known

the Bollingers for approximately two months, and had been

engaged in a consensual sexual relationship with JoAna for the

previous two weeks. On the morning of October 24, 1994, at

about 1 a.m., defendant entered the Bollingers’ trailer with their

consent. Sometime thereafter, defendant went into the Bollingers’

bathroom and smoked cocaine. When defendant came out of the

bathroom, he asked Jacob if he could borrow $10. Jacob told

defendant that he did not have the money but that he would ask

JoAna, who was in the bedroom, if she had any. When Jacob went

into the bedroom, defendant, who remained in the living room,

started looking for money in JoAna’s purse. Defendant found $80

and about four rings. Jacob came out of the bedroom and saw

defendant taking the money from JoAna’s purse. The two fought.

Defendant put Jacob in a choke hold and took him back to the

bedroom. In the bedroom, defendant and Jacob began fighting

again. Defendant hit Jacob over the head with a vase and knocked

him out. Defendant then took a knife from the bedroom dresser

and told JoAna, who was screaming, to shut up. He then put his

right arm around JoAna’s throat and started choking her. JoAna

kept fighting, but when defendant saw blood come out of her nose he let her go. Defendant then left the trailer, and threw his shirt and

hat into some weeds as he walked off. Defendant later bought and

smoked cocaine prior to his arrest.

	In his second statement, defendant added the following facts.

As defendant was choking JoAna, his arm got tired. He picked up

a pair of white long-johns, wrapped them around JoAna’s throat

and tightened them, causing blood to come out of her nose. After

defendant dropped JoAna, Jacob awoke. Defendant took a pair of

vise grips from a tool box in the bedroom and hit Jacob with them

twice. He later threw the tool, and the knife, into the trees behind

the Bollingers’ trailer. Just before being arrested, defendant

stopped at “Vickie’s” trailer and asked her to retrieve the clothes

which he had thrown into the weeds.

	Belleville police detectives Stephen Krug and Stephen

Schmulbach testified about their observations and preservation of

the crime scene on October 24. Krug and Schmulbach stated that

they arrived at the Bollingers’ trailer at approximately 4:50 a.m.

They observed blood in various locations throughout the trailer,

including large amounts of blood in the kitchen area and rear

bedroom. They also observed JoAna Bollinger lying unclothed on

the floor in the rear bedroom with a pair of dark blue pants around

her neck. A bruise with some type of pattern was visible on her

back. A clump of hair was found on the floor in the rear bedroom,

next to the bed, and a broken ceramic mug was on the bed. From

the living room, the detectives recovered a purse, coin purse and

cosmetic case, as well as other items. An adjustable wrench and a

knife were found in a wooded area outside the trailer. A shirt and

cap were recovered from Vickie Jamison’s trailer later on October

24. A pair of long-johns was recovered from the Bollingers’

bedroom on October 28.

	Schmulbach also stated that he attended the autopsy of JoAna

Bollinger during the afternoon of October 24. At that time, the sole

of a boot which had been taken from defendant at his arrest earlier

in the day was compared to the bruise on JoAna Bollinger’s back.

Schmulbach photographed the boot next to the bruise and stated

that the bruise pattern was similar to the tread pattern on the sole

of the boot.

	Forensic pathologist Harry Parks performed the autopsy upon

JoAna Bollinger on October 24. Parks believed that JoAna had

been killed by strangulation, probably by some type of soft ligature.

Parks also noted what appeared to be a boot or shoe imprint on

JoAna’s back, similar to the sole of a boot shown to him by one of

the police officers attending the autopsy. Swabs were taken of

JoAna’s mouth, vagina and anus and given to the police officers.

	David Peck, assistant laboratory director at the Illinois State

Police forensic laboratory in Fairview Heights, testified as an

expert in fingerprint and footwear impression analysis. Peck

examined numerous items of evidence taken from the crime scene

for fingerprints, including the wrench and knife recovered outside

the Bollingers’ trailer, pieces of the broken ceramic mug, a leather

purse and a cosmetic bag. Peck was unable to match any recovered

fingerprints with defendant. Peck also stated that the bruise found

on the back of JoAna Bollinger “could have” been made by one of

defendant’s boots, based on the similarity of patterns on the soles

of the boots and on the bruise. Peck was unable to state positively

that one of defendant’s boots had made the impression on JoAna’s

back because of a lack of individual identifying characteristics on

the soles of the boots.

	Donna Rees, a forensic scientist employed by the Illinois State

Police forensic laboratory, testified as an expert in the area of

serology. Rees stated that, based upon a type of blood analysis

known as genetic marking analysis, bloodstains found on the

kitchen floor of the Bollingers’ trailer, on the wrench found outside

the trailer, on the pants taken from defendant at his arrest, and on

the shirt recovered from Vickie Jamison’s trailer “could have”

come from Jacob Bollinger but not from defendant or JoAna

Bollinger. Rees also identified the presence of semen on the vaginal

and rectal swabs taken of JoAna Bollinger. No semen was found

on the oral swab.

	Phillip Sallee, a forensic biologist at the Illinois State Police’s

crime laboratory in Springfield, testified for the State regarding

deoxyribonucleic acid (DNA) evidence. Sallee described generally

the process of restriction fragment length polymorphism (RFLP)

DNA profiling. Sallee said that he performed this type of DNA

analysis upon blood samples taken from defendant and the Bollingers, and upon the seminal material found on the vaginal and

rectal swabs taken of JoAna Bollinger. Sallee stated that he was

able to develop a full DNA profile from the semen found on the

vaginal swab and that this profile matched defendant’s DNA.

Based upon his statistical calculations, Sallee determined that the

odds that a person selected at random from the general population

would have the same DNA profile as that developed from the

semen sample taken from the vaginal swab were 16 million to one.

Sallee concluded that there was a “good chance” that the semen

found on the vaginal swab came from defendant. Sallee also stated

that the DNA extracted from the semen found on the rectal swab

matched defendant’s DNA. Sallee explained, however, that he was

unable to develop a full DNA profile from the semen recovered

from the rectal swab. Thus, according to Sallee, with respect to the

semen sample taken from the rectal swab, the odds of a random

match were one in every 200 African-American persons.

	Defendant offered only one witness at trial, Ricky Harvey.

Harvey testified that in October of 1994, he lived in a trailer across

the street from the Bollingers. Harvey saw the Bollingers several

times a week, and socialized with them on occasion. Defendant,

whom Harvey had known for two years, stopped by almost daily

to socialize with Harvey. According to Harvey, Jacob Bollinger

knew both defendant and Willie “Ice” Sims and had seen both of

them at Harvey’s trailer. On cross-examination, Harvey testified

that he had seen defendant during the early morning hours of

October 24, 1994, but that he had not seen Willie Sims. Harvey

stated that he thought Willie Sims was in the county jail on that

date.

	There was no rebuttal evidence presented by the State. After

closing arguments and instructions, the jury found defendant guilty

of the first degree murder of JoAna Bollinger, guilty of the

attempted murder of Jacob Bollinger, and guilty of armed robbery.

	No witnesses were presented during the eligibility phase of the

death penalty proceedings. Following arguments by counsel, the

jury found defendant eligible for the death penalty, pursuant to

section 9–1(b)(6) of the Criminal Code of 1961, for having

committed murder in the course of another felony.

	At the final phase of the sentencing hearing, the State

presented evidence that defendant had been convicted of theft in

St. Clair County on June 7, 1994, and had been sentenced to a one-

year term of imprisonment. The State also presented evidence that

defendant had been convicted of theft in St. Clair County twice in

February 1994, and had received a sentence of one year of

probation for each offense.

	The State then called Cynthia Braun, defendant’s former

parole agent, to testify in aggravation. Braun stated that defendant

had been released from prison and placed on one year’s supervised

release on August 15, 1994. Upon his release, defendant requested

and received employment and housing referrals from Braun. On

cross-examination, Braun acknowledged that defendant had been

identified as cocaine dependent while he was in prison. Braun

stated that she did not provide defendant with any substance abuse

counseling because defendant did not request it. She did not know

if defendant had received any counseling while in prison.

	Jesse Vineyard, a correctional officer at Menard prison, also

testified in aggravation. Vineyard stated that in November 1995,

prison officials conducting a routine inspection discovered a piece

of metal, or shank, approximately an inch and a half wide by eight

inches long, in defendant’s cell. Vineyard stated that, as a result of

this incident, a hearing was held before the prison’s disciplinary

committee. Defendant was found guilty of violating prison rules

and lost various prison privileges.

	Marilyn Stofleth, JoAna Bollinger’s grandmother, was the

State’s final witness in aggravation. Stofleth read a victim impact

statement to the jury.

	In mitigation, the defense called one witness, defendant’s

mother, Joyce Wheeler. Wheeler testified that defendant was born

in 1972, when she was 16. She also stated that defendant had a

brother who was two years older than he was, and that she had

never married the boys’ father. Wheeler and her sons moved from

Centerville, Illinois, to Minnesota when defendant was three, and

then to California was defendant was four. The family returned to

Centerville in 1986, when defendant was 14. Defendant was a good

student while in California, but went “haywire” and “wild” after

returning to Centerville. According to Wheeler, this was due in part to the murders of his uncle in 1986 and cousin in 1987.

Defendant began skipping school and getting into trouble with the

law after these murders. Defendant never completed the ninth

grade.

	Wheeler stated that defendant had abused drugs, specifically

alcohol and cocaine, since he was 16 years old. Wheeler explained

that defendant had pursued voluntary substance abuse treatment at

the Gateway Center in Belleville when he was 16, and that he had

also received treatment from centers in St. Louis and the Chicago

area. However, defendant received no treatment for substance

abuse upon his release from prison in 1994. Wheeler had

unsuccessfully urged defendant to get more treatment at that time.

Wheeler stated that, when defendant was on drugs, his personality

changed and he became loud, rude and disrespectful. Wheeler also

told the jury that defendant was the father of two boys, five and

four years old, who now live with their mother. Defendant had

lived with his sons for at least three years.

	After closing arguments, the jury concluded that there were no

mitigating circumstances sufficient to preclude the imposition of

the death penalty. Defendant was sentenced to death. The court

subsequently sentenced defendant to two consecutive 30-year

prison terms for the attempted murder and armed robbery

convictions. This appeal followed.

ANALYSIS

Motion to Suppress Statements

	Prior to trial, defendant filed a motion to suppress the

statements which he made to the Belleville police on October 24,

1994. In the motion, defendant alleged that the statements were

given involuntarily and were obtained in violation of Miranda v. Arizona, and that he had been arrested without a warrant and without probable cause. Following a hearing, the circuit court

found that defendant “became a suspect after a canvas of the

neighborhood the morning of the murder” and concluded that

“defendant’s statement was voluntary and made with Miranda.” The circuit court denied defendant’s motion to suppress. On

appeal, defendant does not contend that the statements which he gave to the Belleville police were involuntary or that his Miranda rights were violated. Instead, defendant repeats his assertion that

the police lacked probable cause to arrest him on October 24.

	At the hearing on defendant’s motion to suppress, the State

presented the testimony of Belleville police detectives David Ellis

and Doug Jones. Ellis testified that he was called to the Bollingers’

trailer at about 4:30 a.m. on the morning of October 24. Once at

the trailer, he familiarized himself with the background of the case

by speaking to the officers who had first arrived at the murder

scene. He then began interviewing people who were present in the

trailer park.

	Ellis stated that one of the people he spoke to was Tony

Graham, a resident of the trailer park. Graham told Ellis that he

had heard “a bunch of noise” coming from the Bollingers’ trailer,

“like someone was trying to get out” and, at the same time, had

seen, through a window, a person inside the Bollinger’s trailer.

Graham gave Ellis a description of the person he had seen. Shortly

thereafter, Ellis related this description to another trailer park

resident, Kathy Kunkle. Kunkle told Ellis that the description “was

Paris Sims or sounded like Paris Sims.” Kunkle also told Ellis that

she had seen defendant the previous evening at Ricky Harvey’s

trailer. According to Ellis, Belleville police officers spoke with

Harvey and confirmed that defendant had, in fact, been at Harvey’s

trailer on the night of October 23. Police officers also noted that

Harvey’s trailer was located across the street from the Bollingers’

trailer. Ellis further testified that, at the time he and Jones were

gathering information, he knew that defendant was frequently in

the trailer park where the murder was committed. Ellis also stated

that, because of previous arrests, he had some familiarity with

defendant prior to October 24, 1994.

	Ellis told the court that after speaking with Kunkle, he and

Detective Jones went to a convenience store to speak to a relative

of defendant in an attempt to locate him. The convenience store

was located about four or five blocks from the Bollingers’ trailer.

At the time, Ellis and Jones had with them a picture of defendant

and a personal history sheet which had been filled out during one

of defendant’s previous arrests. Ellis stated that, as he and Jones

were leaving the store, they saw a man walking down the street who resembled the picture of defendant they had with them. The

detectives got into their unmarked car and drove past the man once

or twice, discussing between themselves if the man was, in fact, the

person in the picture. They decided that it was. The detectives

stopped their car, got out, approached the man and asked him his

name. The man told them that his name was Dennis Jones. On

defendant’s personal history sheet were listed identifying marks

such as scars and tattoos. Ellis and Jones noticed that a scar and

tattoo listed on the sheet were on the man they had approached.

The detectives then asked the man his birth date. The man gave

defendant’s date of birth, which was also listed on the personal

history sheet. The detectives concluded that the person before them

was indeed defendant. They advised defendant that he was under

arrest and transported him to the Belleville police station. Ellis

stated that defendant was arrested at about 8:47 a.m.

	Detective Jones also testified at the suppression hearing.

Jones’ testimony corroborated Ellis’ description of defendant’s

arrest near the convenience store.

	The special concurrence concludes that we need not address

whether defendant was arrested without probable cause because

defendant did not actually move to suppress his confession as the

fruit of an unlawful arrest and, consequently, never met his initial

burden of establishing a prima facie case that his arrest was unlawful under section 114–12(b) of the Code of Criminal

Procedure (725 ILCS 5/114–12(b) (West 1998)) (see, e.g., People v. Ertl, 292 Ill. App. 3d 863, 868 (1997)). In addition, the special concurrence concludes that, even though the State introduced the

testimony of Detectives Ellis and Jones concerning their

investigation of the crimes and the events preceding defendant’s

arrest, probable cause was not litigated at the suppression hearing.

We disagree. Defendant’s motion to suppress plainly asserts that

he was arrested without a warrant and without probable cause. The

State, on appeal, expressly acknowledges that defendant was

arrested without a warrant. Further, in its brief before this court,

the State argues only that defendant was arrested with probable

cause. The State does not contend, in any way, that defendant

failed to establish a prima facie case that his arrest was unlawful, or that defendant otherwise forfeited his right to challenge the legality of his arrest before this court. Thus, the State has conceded

that defendant met his prima facie burden and that probable cause was litigated at the suppression hearing. Indeed, the testimony of

Ellis and Jones would have been unnecessary and irrelevant if the

only contested issue was the voluntariness of defendant’s

statements given at the police station. We see no reason to

disregard the State’s concessions, particularly when those

concessions coincide with defendant’s characterization of the

proceedings below. Accordingly, we address the issue of the

legality of defendant’s arrest as framed by the parties to this appeal,

i.e., whether defendant’s warrantless arrest was made with probable cause.

	To effect a valid, warrantless arrest, a police officer must have

probable cause to arrest. Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225 (1964); People v. Kidd, 175 Ill. 2d 1, 22 (1996). Probable cause to arrest exists where the facts and

circumstances known to the police officer at the time of the arrest

are sufficient to warrant a person of reasonable caution to believe

that an offense had been committed and that the offense was

committed by the person arrested. People v. Lippert, 89 Ill. 2d 171, 178 (1982). Mere suspicion is inadequate to establish

probable cause to arrest, but the evidence relied upon by the

arresting officers does not have to be sufficient to prove guilt

beyond a reasonable doubt. Kidd, 175 Ill 2d at 22. Notably, because “an arrest not only serves the function of producing

persons for prosecution but also serves an investigative function,

courts have not ruled that an arrest can occur only when the known

facts indicate that it is more probable than not that the suspected

individual has committed the crime.” Lippert, 89 Ill. 2d at 179; see generally 2 W. LaFave, Search & Seizure §3.2(e), at 64-68 (3d ed.

1996).

	The existence of probable cause is determined by the totality

of the circumstances at the time of the arrest. People v. Tisler, 103 Ill. 2d 226 (1984) (following the standard set forth in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)); People v. Williams, 147 Ill. 2d 173, 210 (1991). Further, a determination of probable cause is governed by commonsense,

practical considerations, and not by technical legal rules. People v. Buss, 187 Ill. 2d 144, 204 (1999), quoting Kidd, 175 Ill. 2d at 24. Because the present case involves the application of the law to

undisputed facts, our standard of review is de novo. Buss, 187 Ill. 2d at 205; People v. Krueger, 175 Ill. 2d 60, 64 (1996).

	After examining the totality of the circumstances known to

detectives Ellis and Jones at the time defendant was apprehended,

we conclude that the officers had probable cause to effectuate an

arrest. The record in the case at bar shows that the detectives,

while investigating a brutal murder and attempted murder,

canvassed the Bollingers’ trailer park in an attempt to gather

information about the crimes. The only known witness to the

murder, Jacob Bollinger, was hospitalized with head injuries and

incoherent when Ellis and Jones began their interviews. The

detectives were initially given a physical description of a suspect by

a neighbor, Tony Graham, who reported seeing someone in the

Bollingers’ trailer. When the detectives gave this description to

another neighbor, Kathy Kunkle, she provided them with

defendant’s name. Both Graham and Kunkle provided information

in their capacity as ordinary citizens. Neither Graham nor Kunkle

was an anonymous informant or a paid, criminal informant. See

Kidd, 175 Ill. 2d at 23 (fact that the defendant’s name was given to police by someone other than a paid informer is a factor in the

probable cause analysis). Moreover, there is no indication in the

record that Graham and Kunkle were biased against defendant in

any way.

	At the time of defendant’s arrest, Ellis and Jones also knew

that defendant frequently visited the trailer park. They knew

specifically that defendant had been across the street from the

Bollingers’ trailer hours before the murder occurred. The

detectives located defendant, unexpectedly, four or five blocks

from the murder scene hours after the murder had taken place.

When the officers approached defendant on the street, he gave

them a name which they knew to be false. See People v. Williams, 79 Ill. App. 3d 817, 821 (1979) (suspect’s giving of false name a

factor in establishing probable cause); 2 W. LaFave, Search &

Seizure §3.6(f), at 327 (3d ed. 1996) (responses by the suspect

which the officer knows to be false may be a factor in constituting

probable cause). Considering the totality of the circumstances set forth above, we believe that Ellis and Jones had probable cause to

arrest defendant.

	Defendant argues, however, that certain facts known to the

detectives at the time of the arrest must be discounted from our

probable cause analysis. Citing to case law which held that a

suspect’s presence near a crime scene, by itself, is insufficient to

establish probable cause (see, e.g., People v. Carnivale, 61 Ill. 2d 57, 58 (1975)), defendant contends that the fact that he was placed

close to the Bollingers’ trailer both before and after the murder is

“virtually irrelevant” to whether the detectives had probable cause

to effectuate an arrest. As the State points out, however, defendant

was not arrested based solely on his presence near the crime scene.

In addition, we know of no reported decision which holds that a

suspect’s proximity to a crime scene is irrelevant to establishing

probable cause to arrest. Cf. Lippert, 89 Ill. 2d at 181 (discussing fact that the defendant was found in an area near the crime scene

and noting generally that the police are not required to assume that

a suspect has put as much distance between himself and the crime

scene as is possible). Accordingly, we determine that defendant’s

location both before and after the murder may properly be

considered as factors in determining whether Ellis and Jones had

probable cause to arrest defendant.

	Defendant also argues that Kathy Kunkle’s identification of

defendant must be discounted from our probable cause analysis

because the State has failed to adequately explain how she arrived

at defendant’s name. Defendant asserts that, at the suppression

hearing, the State offered no evidence of the specific description

given by Tony Graham to the police of the man he saw in the

Bollingers’ trailer. Therefore, according to defendant, “the State

may not rely upon Kunkel’s having named [defendant], as the basis

of her knowledge is wholly unknown and unexplained.”

	In probable cause jurisprudence, the term “basis of

knowledge” refers to how a criminal or citizen informant has

acquired information that has been given to police. Tisler, 103 Ill. 2d at 239. An examination of an informant’s basis of knowledge

helps ensure that an arrest based upon information received from

that informant is predicated upon something more substantial than

conclusory allegations or “casual rumor.” Spinelli v. United States, 393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589

(1969). The basis of knowledge inquiry is not a separate or

independent test which must be satisfied in order to establish

probable cause. Tisler, 103 Ill. 2d at 237-40. Rather, an informant’s basis of knowledge is simply a relevant factor to be

considered as part of the totality of the circumstances known to

police at the time of the arrest. Kidd, 175 Ill. 2d at 23, quoting People v. Adams, 131 Ill. 2d 387, 398 (1989).

	In the case at bar, the evidence shows that Kunkle’s

identification of defendant was not based on casual rumor. To the

contrary, the evidence of record shows that Kunkle had personal

knowledge of defendant, and that she provided Ellis and Jones with

defendant’s name only after the officers had relayed Graham’s

description to her. The detectives, therefore, were well aware that

Kunkle was not making a bald assertion that defendant had

committed the murder, nor was she simply reporting “an offhand

remark heard at a neighborhood bar.” Spinelli, 393 U.S. at 417, 21 L. Ed. 2d at 644, 89 S. Ct. at 589. Cf. People v. Wilson, 260 Ill. App. 3d 364 (1994) (finding no probable cause to arrest where

police had no indication whatsoever as to how a robbery victim’s

daughter was able to identify defendants as the assailants).

	Moreover, under the totality of the circumstances approach to

establishing probable cause, an imperfect expression of the basis of

knowledge may nevertheless suffice to establish probable cause

when considered together with the other relevant facts known to

the police at the time of the arrest. Tisler, 103 Ill. 2d at 240-41; 2 W. LaFave, Search & Seizure §3.3(d), at 145 (3d ed. 1996). As

stated, Kunkle’s identification of defendant was not the sole

relevant factor under consideration by the police. The law requires

us to consider Kunkle’s identification of defendant as part of the

totality of the circumstances known to the police at the time of the

arrest, and to review all the known circumstances in a practical,

nontechnical way. After carefully considering the evidence of

record, we have determined that Detectives Ellis and Jones had

probable cause to arrest defendant. Accordingly, we hold that the

circuit court properly denied defendant’s motion to suppress.

Reading of the Indictment at the Fitness Hearing

	Defendant’s trial took place in September 1997. In July 1997,

a fitness hearing was conducted before a separate jury. During the

hearing, the State presented the testimony of two witnesses, Dr.

John Rabin and Delancey Moore. Rabin, a forensic psychiatrist,

testified that he had tried to examine defendant in May 1997.

During that examination, defendant answered “I don’t know” to

several questions, but in response to other questions, he simply

stared and whispered to himself. At other times, defendant made

comments of a religious nature. Rabin terminated this interview

after about 20 minutes. Rabin attempted a second examination in

June of 1997, but defendant would not leave his cell to meet with

Rabin. Because of defendant’s refusal to cooperate, Rabin stated

that he was unable to render an opinion as to whether defendant

was fit to stand trial. Rabin also testified that it was possible that

defendant was malingering, or faking a psychological disorder,

during his examinations. Rabin noted that malingering should be

suspected when there is a “medical legal context of the

presentation,” i.e., when someone is charged with a crime or involved in litigation.

	Moore, a classification specialist in the St. Clair County

sheriff’s department, testified that he was in charge of determining

the housing and placement for all inmates in the county jail, and

that he was the chair of the jail’s disciplinary committee. Moore

stated that, as a general matter, he would not hold a disciplinary

hearing unless the inmate understood the nature of the charges and

proceeding. Moore explained that he had dealt with defendant at

disciplinary proceedings in the county jail in April 1997, and in

June 1997. During the April proceedings, defendant had requested

that a witness be called on his behalf. According to Moore,

defendant was competent, aware of his surroundings, and

cognizant of the nature of the proceedings in both April and June.

	Defendant’s mother and grandmother testified on defendant’s

behalf during the fitness hearing. Both women stated that

defendant’s mental condition had deteriorated since his

incarceration, that he was frequently unable to recognize them, and

that he suffered memory lapses.

	Defendant also presented the testimony of clinical psychologist

Dr. Michael Gelbort. Gelbort stated that he examined defendant

during two 45-minute sessions in March 1997. During these

sessions, defendant was largely uncommunicative and

unresponsive, but he also engaged in consistent delusional

behavior. According to Gelbort, most of defendant’s words and

conduct appeared to be in response to his own internal thoughts.

Defendant mumbled to himself, spit and stomped on the floor to

get rid of imaginary bugs, and repeatedly asked for cigarettes

despite Gelbort’s statements that he had none. Defendant also

indicated that he was hearing voices, and spoke of God and other

matters in a jumbled manner. Because of the consistency of his

behavior, Gelbort concluded that defendant was not “gilding the

lily,” or faking psychological symptoms. Based upon his

examinations of defendant, as well as discussions with jail

personnel, Gelbort determined that defendant was unfit to stand

trial. Gelbort was cross-examined at length regarding the basis of

his conclusion that defendant was unfit, and about the possibility

that defendant was malingering.

	During the State’s cross-examination of Gelbort, the State

sought to have Gelbort read the charging indictment. The State’s

purpose in introducing the indictment was to rebut Gelbort’s

conclusion that, while defendant might have some rudimentary

understanding of the crimes he was charged with, he was unable to

“understand what the implication of those charges would be.” The

indictment stated, inter alia, that defendant was charged with committing “the offense of FIRST DEGREE MURDER *** in

that he, without lawful justification and with the intent to kill Joana

Bollinger, strangled Joana Bollinger, thereby causing the death of

Joana Bollinger.” Defendant objected to this cross-examination,

arguing that the indictment described the circumstances of the

murder, and that these circumstances were irrelevant and would

unduly inflame the jury. The objection was overruled. Gelbort read

the indictment aloud and, after questioning, concluded that, “with

some coaching,” defendant could understand what the indictment

meant. At the conclusion of the fitness hearing, the jury found

defendant fit to stand trial.

	Defendant now argues that the circuit court erred when it

permitted Gelbort to read the indictment before the jury, and that

as a result of this error, a new fitness hearing and a new trial are

required. The State, in response, correctly observes that this

argument is procedurally defaulted because defendant failed to

include it in his post-trial 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)), this court may review an argument

not properly preserved if we conclude that plain error affecting a

substantial right has occurred. People v. Shaw, 186 Ill. 2d 301, 326-27 (1998). Before invoking the plain error exception,

however, “it is appropriate to determine whether error occurred at

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

	Initially, we note that the scope of defendant’s argument

regarding the indictment is somewhat unclear. In his opening brief,

defendant appears to argue only that it was error to allow the jury

to hear about the manner in which JoAna Bollinger was murdered, i.e., that she had been strangled. In his reply brief, however, defendant states that the jury should not have been told that

defendant was charged with murder at all. We do not believe that

defendant may assert this latter argument.

	At several times during the fitness proceedings, the members

of the jury were told that defendant had been charged with murder.

Some of these occasions were initiated, or acquiesced in, by

defense counsel. For example, during the questioning of the

prospective jurors for the fitness hearing, a concern was raised

about the publicity which defendant’s case had received. The

following colloquy then occurred:

			“[Defense counsel]: I would suggest that just a very

broad general question concerning the fact be just that this

received some publicity, and if they have read any

newspaper articles or seen any television or heard any

radio concerning this case. And I believe we’d have to

probably, in conjunction with that, probably mention that

the–names of the alleged victims here.

			THE COURT: Right. And it would seem to me a little

follow up question for any juror who is considering the

question of whether they heard anything as to what it is we are talking about. Does that mean that we need

describe anything other than the First Degree Murder

charge?

			[Defense counsel]: I don’t think we do.”

Later, during opening arguments before the jury, defense counsel

stated:

		“Dr. Gelbort will testify *** that [defendant’s] here but he

doesn’t understand that he’s charged with murder; that he

doesn’t understand that he will be going for–before a jury

at some future point where his guilt or innocence of that

murder will be determined; that he doesn’t understand

either the proceedings or that he’s in fact, charged with

murder.”

In light of the foregoing, defendant cannot now contend that,

because the indictment stated that defendant was charged with

murder, the trial court erred when it permitted the indictment to be

read before the jury. See, e.g., People v. Abston, 263 Ill. App. 3d 665, 671 (1994) (where the defendant acquiesces in the trial

court’s course of action, the defendant cannot raise that course of

action as error on appeal).

	Defendant’s remaining argument is that his fitness hearing was

irreparably tainted by the fact that the jury heard that JoAna

Bollinger had been murdered by strangulation. In defendant’s view,

the circumstances of the victim’s murder were irrelevant to the

question of whether defendant understood the technical, legal

charges against him. In addition, according to defendant, there is

a strong possibility that, when the jury heard that JoAna Bollinger

had been strangled, the jury lost its focus on whether defendant

was fit to stand trial, and instead improperly focused on the nature

of the crime. Thus, defendant argues that he is entitled to a new

fitness hearing and new trial. We disagree.

	Even if we assume that the circumstances of JoAna Bollinger’s

murder were irrelevant to determining the question of defendant’s

fitness, the admission of those circumstances was clearly harmless.

Before Gelbort read the indictment, the jury knew that JoAna

Bollinger had been murdered, and knew, obviously, that the

murder had been committed in some manner. No graphic or inflammatory details of the murder were included in the indictment.

Indeed, the only descriptive term in the indictment is the word

“strangled.” Furthermore, before beginning its deliberations, the

jury was properly instructed that the only issue it was to decide

was defendant’s fitness to stand trial. Under the facts of this case,

we find that no reversible error occurred when the indictment was

read before the jury. Consequently, we also find no plain error. See

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

Motion in Limine to Limit the Cross-Examination of Phillip Sallee

	In August, 1997, the State filed a motion in limine to bar the defense from pursuing an area of impeachment during the cross-

examination of the State’s DNA expert witness, Phillip Sallee.

Specifically, the State sought to bar from evidence the fact that

Sallee had entered into a “predisciplinary agreement” with his

employer, the Illinois State Police, for his theft of state-owned

microscopes, which occurred on or about January 7, 1995.

According to the State’s motion, the terms of the predisciplinary

agreement required Sallee to perform a period of community

service, to be suspended from work for a period of time without

pay, and to forfeit vacation benefits. By August 1997, according to

the motion, Sallee had completed the terms of the predisciplinary

agreement and was considered an employee “in good standing.”

After hearing brief arguments, the circuit court granted the State’s

motion in limine, ruling that the evidence of Sallee’s misconduct was irrelevant and collateral to the ultimate issues to be decided by

the jury.

	Before this court, defendant contends that the circuit court

erred when it barred the defense from impeaching Sallee with

evidence of the predisciplinary agreement, and that this error

requires reversal of his convictions and a new trial. The State

initially maintains that this issue is procedurally defaulted because

defendant failed to preserve the objection to the motion in limine in his post-trial motion. See Enoch, 122 Ill. 2d at 186. Defendant, in turn, responds that the circuit court’s denial of his right to cross-

examine Sallee rendered his trial fundamentally unfair and that this court may review the issue as plain error. For the reasons set forth

below, we find no error in the trial court’s granting of the State’s

motion in limine. Accordingly, we also find no plain error and no basis to excuse defendant’s procedural default.

	In criminal proceedings, a defendant has the right to cross-

examine a witness regarding the witness’ biases, interests or

motives to provide false testimony. People v. Triplett, 108 Ill. 2d 463, 475 (1985). “With this method of impeachment, ‘the fact that

a witness has been arrested or charged with a crime may be shown

or inquired into where it would reasonably tend to show that his

testimony might be influenced by interest, bias or a motive to

testify falsely.’ ” Triplett, 108 Ill. 2d at 475, citing People v. Mason, 28 Ill. 2d 396, 401 (1963). “[C]ross-examination is proper whenever the prosecution has sufficient ‘leverage’ over the witness

justifying the defendant’s claim that the witness has an interest or

bias, or that there is corruption or coercion that would tend to

make the witness testify falsely.” M. Graham, Cleary & Graham’s

Handbook of Illinois Evidence §607.7, at 436-37 (7th ed. 1999). However, the evidence used to impeach a witness “ ‘must give rise

to the inference that the witness has something to gain or lose by

his testimony.’ ” Triplett, 108 Ill. 2d at 475-76, quoting People v. Phillips, 95 Ill. App. 3d 1013, 1020 (1981). Therefore, the evidence used to establish bias, interest or motive should be timely,

unequivocal and directly related. M. Graham, Cleary & Graham’s

Handbook of Illinois Evidence §607.7, at 440 (7th ed. 1999). The

evidence used must not be “remote or uncertain.” Triplett, 108 Ill. 2d at 476.

	In People v. Bull, 185 Ill. 2d 179 (1998), this court addressed a claim similar to that presented by defendant in the case at bar. In Bull, the State filed a motion in limine to bar the defense from cross-examining David Metzger, an employee of the Illinois State

Police crime laboratory, regarding his administrative disciplinary

record. Like Sallee, Metzger had been caught stealing a

microscope and had been subject to various disciplinary measures

by his employer. The circuit court granted the State’s motion. Bull, 185 Ill. 2d at 205.

	On appeal, the defendant in Bull argued that it was error to allow the motion in limine because cross-examination of Metzger regarding his disciplinary record with the State Police crime

laboratory would show that Metzger had a “motive to testify

falsely or to embellish his testimony to please his employers.” Bull, 185 Ill. 2d at 206. This court rejected that argument, stating:

		“The record is too speculative and remote to infer that

Metzger had something to gain or lose by his testimony.

As the trial court noted, the administrative charges arose

approximately two years after Metzger had completed and reported his DNA analysis in this case. Further, trial

occurred approximately one year after Metzger was

disciplined. At trial, Metzger’s testimony regarding his

DNA analysis of defendant was based on the three-year-

old report.” (Emphasis in original.) Bull, 185 Ill. 2d at 207.

	In the instant case, the State argues that Bull disposes of defendant’s claim. The State maintains that the evidence which

defendant wished to use to impeach Sallee in this case, like in Bull, was too speculative and remote to be admitted. Defendant, in

response, attempts to distinguish Bull by focusing on the timing of the administrative action taken against Sallee. Defendant argues

that, unlike Bull, in this case, Sallee “was the subject of disciplinary proceedings at the precise time he was conducting DNA testing on

the evidence” in defendant’s case. Thus, in defendant’s view, at the

time Sallee was conducting his DNA testing, he had a motive to

curry favor with his employer by giving results favorable to the

State’s case. Accordingly, defendant asserts that the State’s

reliance on Bull is misplaced.

	Defendant’s argument that Bull is factually distinguishable from the case at bar is not clearly supported by the record. As

defendant correctly notes, the record does affirmatively show that

Sallee was engaged in the testing of DNA evidence from

November 1994 through March 1995. The record also shows that

the microscopes were stolen on or about January 7, 1995.

However, the record does not disclose when officials at the State

Police crime laboratory became aware of the theft of the

microscopes or when the disciplinary charges were brought.

Nevertheless, even if we assume that the disciplinary proceedings

were commenced prior to the completion of the DNA testing, we do not believe that Sallee’s disciplinary record would have been

admissible to impeach him.

	Defendant’s contention is that Sallee had a motive to fabricate

DNA results which implicated defendant because at the time of the

DNA testing, Sallee was facing disciplinary proceedings in the

State Police crime lab. For this contention to be correct, a number

of assumptions would have to true. For example, it would have to

be assumed that, having been discovered stealing microscopes and

with his livelihood in jeopardy, Sallee’s immediate reaction would

be to start fabricating evidence in a case which he was currently

working on; that Sallee would begin fabricating evidence, with all

the attendant risks of doing so, even though he did not yet know

whether defendant’s case would be tried, or whether some other

disposition, such as defendant pleading guilty or being exonerated

by other evidence, would occur; that Sallee would risk fabricating

evidence even though he did not yet know if he would, in fact, be

called to testify at defendant’s trial; that he would risk fabricating

evidence even though by doing so, he would be helping only the

prosecutors in St. Clair County, who would have no control or

“leverage” over the disciplinary proceedings in the crime lab in

Springfield; and that he would risk fabricating evidence as a means

of lessening his administrative discipline even though the crime lab

might reasonably be expected to be concerned about its reputation

and integrity, and, therefore, might not look favorably upon one of

its employee’s fabricating evidence. In light of the foregoing, and

in the absence of any evidence other than the mere existence of the

disciplinary agreement, we find any alleged incentive on Sallee’s

part to fabricate DNA evidence because of the disciplinary

proceedings arising out of the theft of the microscopes remote and

uncertain. We therefore find no error in the circuit court’s granting

of the State’s motion in limine. Having found no error, it follows that there can be no plain error in the circuit court’s granting of the

State’s motion. Accordingly, defendant’s claim is procedurally

defaulted.

Hearsay Testimony of Vickie Jamison

	Testifying for the State, Vickie Jamison told the jury that

defendant came to her trailer in the early morning hours of October 24, 1994, stayed the night, and then left around 8:30 a.m. Jamison

also testified that, later on October 24, officers of the Belleville

police department came to her trailer and requested information

about defendant. According to Jamison, the officers informed her

that defendant “had killed somebody.” Jamison also stated that she

initially heard about defendant’s involvement in the murder when

she “went to the public aid office and found out that [defendant]

had killed somebody.”

	Defendant argues that the foregoing statements made by

Jamison were inadmissible hearsay and that, as a consequence of

these statements, he was deprived of a fair trial. Defendant

acknowledges that no objection was made to Jamison’s remarks at

the time of trial and, therefore, that the present claim of error is

procedurally defaulted. Defendant also argues, however, that this

court should review the claim of error under the plain error

doctrine. For the reasons explained below, we find no plain error.

	Assuming, without deciding, that Jamison’s testimony was

hearsay, its admission was clearly harmless. “The admission of

hearsay evidence is harmless error where there is no reasonable

probability that the jury would have acquitted the defendant absent

the hearsay testimony.” People v. Nevitt, 135 Ill. 2d 423, 447 (1990). There is no such probability here. The two statements

made by Jamison were isolated comments made in the context of

extended narrative testimony. Both statements were made in

response to general inquiries by the State, and neither remark was

elaborated upon in any way. Moreover, aside from Jamison’s

testimony, the evidence of defendant’s guilt was overwhelming.

Jacob Bollinger testified unequivocally that defendant attacked him

and murdered his wife, JoAna. In statements given to the police,

defendant confessed to the murder. DNA evidence strongly

implicated defendant, and defendant was arrested with the murder

victim’s rings on his person. Given this evidence, we do not believe

that Jamison’s two remarks were a significant basis for defendant’s

convictions. We hold, therefore, that even if Jamison’s two

statements were hearsay, their admission was harmless error.

Because we find no reversible error regarding Jamison’s testimony,

we also find no plain error. See Keene, 169 Ill. 2d at 17.

Dismissal of Venireperson Cox

	Defendant argues that a prospective juror, Stanley Cox, was

improperly dismissed for cause because of his views regarding the

death penalty. Defendant maintains that, while Cox expressed some

qualms about imposing a death sentence, his views on capital

punishment would not have substantially impaired his performance

as a juror. Thus, according to defendant, Cox’s dismissal for cause

was unwarranted and defendant is entitled to a new sentencing

hearing.

	The initial questioning of venireperson Cox was done by the

court. During this questioning, Cox stated that he would not

automatically impose a death sentence, that he would listen to the

evidence presented and instructions from the trial court, and that

he could sign a death verdict. Cox was then questioned by the

State along with other prospective jurors. One of the other

potential jurors, Jackie Heap, indicated that she could never impose

the death penalty. The following colloquy between the State and

Cox then ensued:

			“[State’s Attorney]: [Would you] be able to vote for the

death penalty *** Mr. Cox?

			JUROR [Cox]: I don’t know if I could.

			[State’s Attorney]: Are you having some kinds of

second thoughts here?

			JUROR: Yeah, about the death penalty thing.

			[State’s Attorney]: You were persuaded by Mrs. Heap

over here?

			JUROR: Well, it’s been on my mind since we–

			[State’s Attorney]: Well, just kind of found out about it,

I suppose?

			JUROR: You know, everybody talks about it until when

it comes up to it. This is it. I mean–

			[State’s attorney]: Right. I guess I needed to ask you

then, you think you probably could not impose the [d]eath

[p]enalty?

			JUROR: I don’t know.

			[State’s Attorney]: And I know that you know [defense

counsel] from the school board?

			JUROR: I only saw his name. I have never met him

personally. I just saw his name on something.

			[State’s Attorney]: So that certainly doesn’t have

anything to do with it?

			JUROR: No.

			[State’s Attorney]: You certainly think you may not be

able to?

			JUROR: It’s kinds [sic] of a religious thing.

			[State’s Attorney]: Okay. That’s fine. You have some

religious or moral beliefs against it?

			JUROR: Yeah.”

Cox was subsequently questioned by defense counsel. Counsel

asked Cox if “you don’t know whether you could sign that verdict

or not?” Cox responded, “[m]ore or less, yeah, that would be

about the same.” Counsel then asked Cox if “there could be a

circumstance where you could go through and deliberate on the

case and you may find that you could sign a verdict of death?” Cox

replied, “Yes.” The State later moved to dismiss Cox for cause.

Over the objection of defense counsel, the court allowed the

challenge for cause.

	A prospective juror in a capital case can be excused for cause

when the juror’s views on capital punishment would “ ‘prevent or

substantially impair the performance of duties as a juror in

accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 65 L.Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980). It is not necessary that a

prospective juror express his views regarding the death penalty

with “meticulous preciseness” before the trial court may rule on a

motion to exclude for cause. People v. Tenner, 157 Ill. 2d 341, 362 (1993). In addition, 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. Because of the unique nature of each voir dire, the standards for dismissing a juror for cause must be applied on a case-by-case basis. People v. Williams, 161 Ill. 2d 1, 54 (1994).

	Defendant’s argument regarding the dismissal of venireperson

Cox centers upon the contention that the trial judge applied an

improper standard in dismissing Cox for cause. Defendant notes

that a venireperson may not be excused for cause simply because

he voices general religious scruples against the infliction of the

death penalty. According to defendant, in the case at bar, the trial

judge focused solely on the existence of Cox’s religious concerns

in allowing the State’s motion for dismissal. Thus, in defendant’s

view, Cox’s dismissal was improper. We disagree.

	When the State moved to dismiss Cox for cause, it also moved

to dismiss another juror, Helen Stram. After listening to arguments,

the trial court granted the State’s motion to dismiss Cox, but

denied the State’s motion with respect to Stram. The court

explained that Stram’s responses to questioning indicated that she

had “more of a skeptical sort of view of the thing. She would

require herself to be convinced in order to sign a–in order to sign

a [d]eath penalty. I would hope all jurors would have such a belief.

That it would [not] be something done lightly.” Cox’s position,

however, which was based upon “religious perception,” was

“different” from Stram’s. That difference, in the court’s view,

justified dismissing Cox for cause.

	The clear import of the trial judge’s statements is that, after

observing Cox’s demeanor, and gauging his responses to

questioning, the judge concluded that Cox would have been more

than simply hesitant to impose the death penalty. Instead, the judge

determined that, unlike Stram, Cox would not be able to fully put

aside his concerns regarding capital punishment and follow the law

and his oath in deciding what sentence to impose. We note,

moreover, that other portions of the voir dire indicate that the judge understood the proper standard for dismissing prospective

jurors for cause. For example, after moving to dismiss Cox, the

State moved to dismiss for cause another potential juror, Christine

Cirrincione, based upon what the State characterized as an

“extreme reluctance” to impose the death penalty. Defense counsel

objected to the motion, and expressly noted that a venireperson

might have “moral and religious questions in their mind” about the death penalty, but that the inquiry must be on whether the juror

could follow the law. The trial judge, after hearing these

arguments, denied the motion to dismiss Cirrincione for cause.

Considering the record as a whole, it is clear that the judge

understood the law and applied the proper standard in dismissing

venireperson Cox.

	We have frequently noted that the trial judge “is in a superior

position to determine from a prospective juror’s responses as a

whole and the juror’s demeanor whether that individual’s views

toward capital punishment would substantially prevent or impair

the performance of his duties as a juror at the sentencing phase of

the trial in accordance with the oath he is required to take.”

Williams, 161 Ill. 2d at 54. Because the trial court is in a “ ‘superior position to gauge the meaning of the prospective juror’s

responses,’ ” its determination of the propriety of removal for

cause of a prospective juror is entitled to great deference on

review. Tenner, 157 Ill. 2d at 363, quoting People v. Emerson, 122 Ill. 2d 411, 439 (1987).

	In the instant case, at times, Cox indicated that he could follow

the law and perform his duty as a juror. On other occasions,

however, his responses indicated that he could not clearly “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). The trial judge in the case at bar clearly determined that Cox would have problems

performing his duties as a juror. Based upon the record before us,

we cannot substitute our “speculations about [Cox’s] demeanor in

place of the lower court’s personal observations.” Shaw, 186 Ill. 2d at 318. Accordingly, we hold that the trial court did not err when

it dismissed venireperson Cox for cause. See, e.g., Tenner, 157 Ill. 2d at 359-63 (upholding the dismissal for cause of a prospective

juror who stated that she had “a problem with the death penalty”).

Ineffective Assistance of Counsel at Sentencing

	Defendant maintains that he received ineffective assistance of

counsel at the aggravation-mitigation stage of sentencing because

his attorney failed to introduce, as mitigating evidence, the

testimony of Dr. Michael Gelbort. During defendant’s fitness

hearing, Gelbort testified that he had examined defendant on two

occasions, and that during these examinations, defendant had

engaged in persistent delusional behavior. Gelbort also testified

that defendant was not fit to stand trial. Defendant now contends

that defense counsel’s mitigation evidence, which consisted solely

of the testimony of defendant’s mother, could easily have been

dismissed by the jury, and therefore was simply insufficient.

According to defendant, the testimony of Gelbort should have been

offered to the jury because of its obvious mitigating nature and

because it likely would have made a difference in the outcome of

the sentencing hearing.

	In order to sustain a claim of ineffective assistance of counsel,

defendant must show that trial counsel’s performance fell below an

objective standard of reasonableness, and that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984) (adopted by this court in

People v. Albanese, 104 Ill. 2d 504, 525-26 (1984)). Defendant acknowledges that “counsel’s decision whether to present a

particular witness is generally a strategic choice which cannot

support a claim of ineffective assistance of counsel.” People v. Jones, 144 Ill. 2d 242 (1991). Defendant maintains, however, that under the facts of this case, there can be no proper strategic

justification for defense counsel’s failure to call Gelbort as a

witness at the mitigation hearing. We disagree.

	A principal issue contested during the fitness hearing was

whether defendant was faking his psychological symptoms. The

State’s expert witness, Dr. John Rabin, testified that malingering

should be suspected when someone is charged with a crime or

involved in litigation, and that it was possible that defendant was

faking his symptoms. Delancy Moore’s testimony that defendant

appeared coherent during disciplinary proceedings which took place in the county jail less than a month before the fitness hearing

implicitly supported the State’s position that defendant was

malingering. Gelbort was cross-examined at some length by the

State regarding, inter alia, his conclusion that defendant was not “gilding the lily.” In addition, during the State’s closing argument,

the State explicitly argued that defendant was faking his

psychological symptoms, stating, “This defendant or any other

defendant can stair [sic] into space and start babbling words and start spouting psychobabble that anyone has seen on countless

movies or countless talk shows where people have faked mental

illness to avoid their day in court. And that is exactly what the

defendant is doing.”

	If defense counsel had introduced Gelbort’s testimony at the

sentencing hearing, he would have also introduced the issue of

whether defendant was malingering. In that event, the jury would

have had before it for consideration not only the horrible nature of

the crimes committed, and the State’s aggravating evidence, but

also the issue of whether defendant was trying to avoid

responsibility for his actions by feigning a psychological disorder.

Given the outcome of the fitness hearing, and given the clear risks

associated with introducing Gelbort’s testimony, we cannot hold

that defense counsel’s conduct fell below an objectively reasonable

standard when he failed to present that testimony during the

aggravation-mitigation phase of the sentencing hearing. We hold,

therefore, that defense counsel was not constitutionally ineffective

for failing to call Gelbort to testify during the sentencing

proceeding.

Judge’s Comment at Sentencing

	JoAna Bollinger’s grandmother, Mailyn Stofleth, read a victim

impact statement to the jury during the aggravation-mitigation

stage of sentencing hearing. As Stofleth was leaving the stand, the

judge stated, “I am sorry about your loss, ma’am.” Defendant

contends that this comment denied him a fair sentencing hearing.

The State initially maintains that this argument is procedurally

defaulted because defendant failed to object to the judge’s

statement during trial. However, the procedural default, or waiver,

rule is not rigidly applied where the basis for the objection is the conduct of the trial judge. People v. Nevitt, 135 Ill. 2d 423, 455 (1990), citing People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963); People v. Smith, 176 Ill. 2d 217, 237 (1997).

	A trial judge has a duty to see that all persons are provided a

fair trial. People v. Burrows, 148 Ill. 2d 196, 250 (1992). Accordingly, a trial judge must refrain from interjecting opinions,

comments or insinuations reflecting bias toward or against any

party. People v. Garrett, 276 Ill. App. 3d 702, 712 (1995). “Judicial comments can amount to reversible error if the defendant

can establish that such comments were ‘a material factor in the

conviction or were such that an effect on the jury’s verdict was the

probable result.’ ” Burrows, 148 Ill. 2d at 250, quoting People v. Harris, 123 Ill. 2d 113, 137 (1988). We do not believe that the comment at issue here was a material factor in defendant’s

sentence of death. The judge’s statement that he was “sorry about

[Stofleth’s] loss” was merely a polite expression of condolence,

and it did not reflect a bias for or against any party. See People v. Holman, 132 Ill. 2d 128, 150 (1989) (no error where the trial judge told the jury the “sad news that [the State’s Attorney’s]

mother passed away”). Accordingly, we find no basis for disturbing

defendant’s sentence.

Closing Argument at Sentencing

	During closing argument at the aggravation-mitigation stage

of sentencing, the prosecutor stated: “You tell us whose life has

more value. The innocent mother and wife, or this defendant who

made his decisions?” Defendant argues that this statement was

improper and that, as a result of this statement, he is entitled to a

new sentencing hearing. Defendant concedes that no objection was

made to this comment at trial and that the claim of error is

therefore procedurally defaulted. Defendant also argues, however,

that we may consider the error under the plain error doctrine. For

the following reasons, we find no plain error.

	“ ‘Any error related to *** comments to which no objections

were made would normally be considered waived unless the

comments were so inflammatory that defendant could not have

received a fair trial or so flagrant as to threaten deterioration of the judicial process.’ ” People v. Kokoraleis, 132 Ill. 2d 235, 283-84 (1989), citing People v. Albanese, 104 Ill. 2d 504, 518 (1984). While we agree with defendant that the “whose life has more

value” comment was improper, we cannot say that it was so

improper as to warrant reversal of defendant’s sentence.

Considered in the entirety of the context of the State’s closing

argument, the comment did not deny defendant a fair sentencing

hearing or threaten deterioration of the judicial process. Moreover,

the jury was properly instructed that the evidence which it could

consider consisted only of the testimony of the witnesses and the

exhibits which the court had received. Consequently, we find no

plain error.

Constitutionality of the Death Penalty Statute

	Defendant argues that the Illinois death penalty statute is

unconstitutional because it places a burden of proof upon

defendants to show that mitigating evidence outweighs aggravating

evidence, and because it permits the sentencer to consider a vague

aggravating factor, namely, “any other reason” beyond the

statutory factors why a defendant should be sentenced to death.

See 720 ILCS 5/9–1(c), (e) (West 1994); Illinois Pattern Jury

Instructions, Criminal, No. 7C.06 (3d ed. 1992). This court has

previously rejected both of these contentions. People v. Taylor, 166 Ill. 2d 414, 439 (1995) (and cases cited therein). We decline

to depart from our prior holdings on these issues.

	Defendant also asserts that the death penalty is

unconstitutional because it fails to sufficiently minimize the risks

that death sentences will be arbitrarily and capriciously imposed.

This contention has also been rejected by this court (see, e.g., Taylor, 166 Ill. 2d at 440), and we decline to revisit our holdings on this issue.

CONCLUSION

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

St. Clair County is affirmed. The clerk of this court is directed to

enter an order setting Thursday, November 16, 2000, as the date

on which the sentence of death entered in the circuit court is to be carried out. Defendant shall be executed in the manner provided by

law. 725 ILCS 5/119–5 (West 1996). The clerk of this court shall

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

Corrections, to the warden of Tamms Correctional Center, and to

the warden of the institution where defendant is now confined.

	Judgment affirmed.

	JUSTICE RATHJE, specially concurring:

	I agree with the majority that defendant’s convictions and

death sentence should be affirmed. I write separately, however,

because I disagree with the majority’s analysis of defendant’s

probable cause argument.

	In deciding whether the trial court properly denied defendant’s motion to suppress statements, the majority comprehensively

examines the question of whether probable cause existed for

defendant’s warrantless arrest. The majority’s analysis includes a

review of the testimony from the motion hearing, a survey of

probable cause jurisprudence, and even a brief tutorial in “basis of

knowledge” principles. None of this is necessary, however, as

defendant did not even attempt to meet his burden of proving that

his arrest was unlawful.

	In Illinois, a defendant who seeks to suppress evidence based

upon an unlawful search or seizure bears the initial burden of

proving that the arrest in fact was unlawful. 725 ILCS 5/114–12(b)

(West 1998); People v. Buss, 187 Ill. 2d 144, 204 (1999); People v. Kidd, 175 Ill. 2d 1, 22 (1996). In other words, the defendant must make a prima facie showing both that the police acted without a warrant and that the police lacked probable cause, lacked

reasonable grounds to arrest the defendant, or had no reasonable

or articulable suspicion of criminal activity that would warrant an

investigative stop. People v. Culbertson, 305 Ill. App. 3d 1015, 1023 (1999); People v. Ertl, 292 Ill. App. 3d 863, 868 (1997).

	In this case, defendant did not present any evidence at the motion to suppress hearing to establish that his arrest was

unlawful. In fact, defendant did not present any evidence

whatsoever. On the contrary, the State called two police officers to testify briefly as to their arrest of defendant and at length as to their

interrogation of defendant. Defendant confined his cross-

examination to the interrogation, and he rested without presenting

any of his own witnesses or introducing any of his own evidence.

Whether the defendant was arrested without a warrant never came

up, and defendant did not even attempt to establish that the police

lacked probable cause, lacked reasonable grounds to arrest the

defendant, or had no reasonable or articulable suspicion of criminal

activity that would warrant an investigative stop. Consequently, the

majority need not decide whether the State met its burden of

proving probable cause, as defendant failed to make the requisite prima facie case.

	Defendant’s complete failure to meet his burden of proof on

the probable cause question is easily understood when one realizes

that defendant was not moving to suppress his confession as the

fruit of an unlawful arrest. Rather, an examination of the motion,

the motion hearing, and the trial court’s ruling on the motion

demonstrates that defendant was moving to suppress his confession

as involuntarily made. To be sure, defendant’s motion briefly  asserts that “The defendant was arrested without a warrant and

without probable cause.” The remaining seven paragraphs of the

motion, however, argue that defendant’s confession was

involuntarily made. Likewise, although the State briefly asked the

police officers about defendant’s arrest, virtually all of the direct

examination and literally all of the cross-examination dealt with the

interrogation that led to defendant’s confession. In fact, of the 64

pages of transcript from the hearing on defendant’s motion to

suppress, 58 relate to the interrogation and 6 relate to the arrest.

Finally, the trial court’s written order denying defendant’s motion

to suppress makes numerous factual findings relating to the

voluntariness of defendant’s confession, no findings on the

question of probable cause, and concludes that “the totality of the

circumstances support a finding that the defendant’s statement was

voluntary and made with Miranda.” Neither defendant nor the State requested a ruling on the existence of probable cause.

	More importantly, the manner in which the parties proceeded

at the motion hearing demonstrates that both defendant and the

State were litigating a motion to suppress statements as involuntarily made, not a motion to suppress statements as the fruit

of an unlawful arrest. Again, a defendant moving to suppress

statements based upon an unlawful arrest clearly bears the initial

burden of proving that the arrest was unlawful. 725 ILCS

5/114–12(b) (West 1998); Buss, 187 Ill. 2d at 204. Despite bearing this burden, defendant presented no evidence whatsoever. However, when a defendant moves to suppress statements as

involuntarily made, the State bears the burden of proving by a preponderance of the evidence that the confession was voluntary.

725 ILCS 5/114–11(d) (West 1998); People v. Woods, 184 Ill. 2d 130, 146 (1998). In this case, the State alone presented evidence

at the motion to suppress hearing, virtually all of which related to

the voluntariness of defendant’s confession. Moreover, defendant’s

cross-examination related solely to the voluntariness of his

confession, and defendant rested without putting on a case. The

only way this makes sense is if the parties were litigating a motion

to suppress statements as involuntarily made, not a motion to suppress statements as the fruit of an involuntary search.

	Although the majority’s decision to address the probable cause

question is troubling in and of itself, even more troubling is the

majority’s conclusion that the State met its burden. The State never

tried to prove probable cause. The majority goes to great and

tenuous lengths to demonstrate that defendant’s presence in the

area several hours after the arrest, combined with Kathy Kunkle’s

baseless identification, amounts to probable cause. Clearly it does

not. This does not necessarily mean, however, that the police

lacked probable cause when they arrested defendant. It simply

means that the question of probable cause was never litigated.

	In sum, defendant argues that the trial court should have

suppressed his confession as the fruit of an unlawful arrest.

Defendant failed to meet his burden on this issue, as he never

litigated it. The only issue that defendant litigated is whether his

confession was voluntary, and he chose not to raise that issue on

appeal.

	s court is precluded from considering whether defendant made

a prima facie showing that his arrest was unlawful.  Slip op. at 13, 15. I fundamentally disagree. First, “waiver merely limits the

parties’ ability to raise an argument, not this court’s right to entertain an argument.” People v. Shaw, 186 Ill. 2d 301, 327 (1998) (McMorrow, J., writing) (addressing argument on the

merits despite clear waiver). Second, this court may affirm the

circuit court’s ruling for any reason in the record, regardless of whether the circuit court expressed that reason as a basis for its

decision. People v. Buss, 187 Ill. 2d 144, 205 (1999) (McMorrow, J., writing) (affirming circuit court’s denial of defendant’s motion to suppress statements for reason other than that expressed by the circuit court). Thus, although the majority correctly notes that

the State waived the sufficiency of defendant’s mandatory prima facie  case, this court is in no way precluded from considering that issue.

	Reinforcing the majority’s waiver argument is a new and

troubling rule of evidence. To be sure, the majority starts out on

the right foot, acknowledging that, on a motion to suppress, the defendant bears the initial burden of proving that he was arrested

without a warrant and that, at the time of his arrest, he was doing

nothing unusual (i.e., indicative of criminal activity) to justify an intrusion by the police. From there, however, the majority makes

a dangerous and unprecedented leap, holding that defendant may

meet this burden of proof simply by demonstrating that the State

failed to prove either the existence of a warrant or the existence of probable cause. Incredibly, the majority would hold that defendant met his burden of proof because (1) “[d]uring their testimony at the

suppression hearing, neither Detective Ellis nor Detective Jones

made any mention of a warrant”; and (2) “[t]he testimony of Detectives Ellis and Jones established that defendant was walking

down the street, doing nothing indicative of criminal activity, at the

time of his arrest.” Slip op. at 15.

	The illogic of the majority’s analysis is manifest. The majority

is permitting defendant to meet his burden of proof simply by

arguing that the State, which bore no burden whatsoever, failed to prove the opposite. Ellis and Jones made no mention of a warrant because they were never asked about one, either by the State or by defendant.  Defendant cannot prove the absence of a warrant by

arguing that the State failed to prove the existence of one.  The State bears no burden in this case. One question could have established the first element of defendant’s prima facie case, namely, “Officers Ellis and Jones, did you have an arrest warrant

when you arrested Paris Sims?” Neither defendant nor the State

ever asked that question, and neither Ellis nor Jones testified one

way or the other as to the existence of a warrant. Accordingly,

defendant absolutely failed to meet his mandatory burden of

proving the absence of a warrant.

	Similarly, Officers Ellis and Jones did not “establish[] that

defendant was walking down the street, doing nothing indicative

of criminal activity, at the time of his arrest.” Slip op. at 15. Indeed, Ellis and Jones could not have “established” anything

relating to defendant’s criminal activity at the time of his arrest, as

Ellis and Jones were never asked about it. Again, defendant cannot meet his statutory burden of affirmatively proving that he was not engaged in conduct indicative of criminal activity by arguing that

the State failed to prove that he was. The State bears no burden in this case.

	The majority opinion turns section 114–12(b) on its head. As

of today, defendants no longer bear any affirmative burden of proof

on motions to suppress evidence based upon an unlawful search or seizure. Rather, defendants now may simply sit back and watch

whether the State, which bears no statutory burden whatsoever,

proves the existence of a warrant and the existence of conduct

indicative of criminal activity.

	This is not to say that a defendant may not, under any circumstances, rely upon evidence introduced by the State in meeting his initial burden of proof. On the contrary, if the State asks the arresting officer on direct examination whether he or she

had an arrest warrant, and the arresting officer responds in the

negative, defendant absolutely may rely upon that testimony in

establishing his prima facie case. The same holds true where the State asks the arresting officer whether defendant was engaged in

conduct indicative of criminal activity at the time of the arrest.

However, such is not the case here. In this case, Officers Ellis and Jones were never asked about the existence of either a

warrant or conduct indicative of criminal activity, and we therefore

do not know their answers. Unlike definitive answers elicited by the State, the absence of evidence cannot be relied upon by

defendant in establishing his prima facie case, as defendant bears the burden of affirmatively proving the necessary facts. Again, the State’s failure to prove the existence of both a warrant and conduct

indicative of criminal activity does not prove their absence, as the State bears no burden to begin with.

	The trial court’s denial of defendant’s motion to suppress

should be affirmed.

	CHIEF JUSTICE HARRISON, concurring in part and

dissenting in part:

	I agree that Sims’ convictions should not be disturbed.  In my

view, however, his sentence of death cannot be allowed to stand.

For the reasons set forth in my dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S.

Const., amends. VIII, XIV) and article I, section 2, of the Illinois

Constitution (Ill. Const. 1970, art. I, §2).  Sims’ sentence of death

should therefore  be vacated, and the cause should be remanded for

imposition of  a  sentence of imprisonment.  720 ILCS 5/9–1(j)

(West 1994).