People v. Smith

Annotate this Case

People v. Smith, No. 77078

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 77078--Agenda 2--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GERALDINE
SMITH, Appellant.
Opinion filed June 19, 1997.

JUSTICE NICKELS delivered the judgment of the court:
Defendant, Geraldine Smith, was charged with first degree
murder (Ill. Rev. Stat. 1987, ch. 38, par. 9--1(a)(1)) and
conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8--
2(a)) arising from the June 23, 1987, shooting death of Valerie
McDonald. Following a jury trial in the circuit court of Cook
County, defendant was convicted of both counts. The trial court
denied defendant's post-trial motion, which sought a new trial to
introduce exculpatory testimony of nine new witnesses. Defendant
waived her right to be sentenced by the jury and the trial judge
determined defendant was eligible for the death penalty because she
procured another to commit murder for money. See Ill. Rev. Stat.
1987, ch. 38, par. 9--1(b)(5). After considering factors in
aggravation and in mitigation, the trial judge determined that
there were no mitigating factors sufficient to preclude the
imposition of the death sentence and, accordingly, sentenced
defendant to death. See Ill. Rev. Stat. 1987, ch. 38, par. 9--1(h).
Defendant's death sentence has been stayed pending direct appeal to
this court. Ill. Const. 1970, art. VI, 4(b); 134 Ill. 2d Rs. 603,
609(a).
Codefendant Eddie Williams was tried separately from defendant
and was found guilty of first degree murder (Ill. Rev. Stat. 1987,
ch. 38, par. 9--1(a)(1)), conspiracy to commit murder (Ill. Rev.
Stat. 1987, ch. 38, par. 8--2(a)), and armed violence (Ill. Rev.
Stat. 1987, ch. 38, par. 33A--2). On appeal, this court affirmed
Williams' convictions but vacated his death sentence. People v.
Williams, (1994). On remand, Williams was resentenced
to natural life imprisonment. The present appeal involves only
Geraldine Smith's convictions and sentence.

BACKGROUND
On June 23, 1987, the victim, Valerie McDonald, was shot at
point-blank range in the head. Two days later, she died as a result
of the gunshot wound. The victim's husband, Louia McDonald, and two
daughters, LaChina and Lakeya, 16 and 8 years old, respectively,
witnessed the shooting. The investigation of the shooting
culminated in the arrest and indictment of the defendant, Geraldine
Smith, who was revealed to be involved in an extramarital affair
with the victim's husband, Louia McDonald. Also arrested for their
involvement in the shooting were defendant's friend, Marva Golden,
and the hired shooter, Eddie Williams. Golden subsequently pleaded
guilty to first degree murder.
Testimony at defendant's trial revealed the following. LaChina
McDonald testified that on the night of the murder she and her
sister, Lakeya, attended a church service with their mother,
Valerie McDonald. Louia McDonald, the victim's husband, picked the
family up at church about 9:15 p.m. and drove home to their
apartment building on North Winthrop Avenue in Chicago. As Louia
circled the block looking for a parking space, LaChina noticed a
man with a ponytail standing on the corner watching their car.
Louia parked the car across the street from their building and the
girls exited the vehicle, followed by Louia and their mother. As
Louia and the girls entered the vestibule of the building, Valerie
trailed behind on the front sidewalk. LaChina saw the man with the
ponytail approach her mother and raise his hand towards her
mother's head. She then heard a gunshot and saw her mother collapse
to the sidewalk. The man fired two shots towards the entrance of
the building and then turned and fled south. As LaChina went to her
mother, Louia ran after the man.
Daniel Postlethwait testified that at about 10 p.m. on the
night of the murder he and his nephew were walking to his car,
which was parked across the street from the parking lot of a
Dominick's grocery store. At that time, Postlethwait heard gunshots
coming from the direction of North Winthrop Avenue. He turned in
that direction and saw an African-American man with a ponytail
running towards him with another man in pursuit. The man with the
ponytail entered the passenger side of a burgundy Buick Regal that
was idling in the entrance to the parking lot. The man said
something to the driver and the Buick drove through the parking lot
and left the area.
Phillip Mannion and Raymond Kamenski, Chicago police
detectives, testified that they arrived at the scene of the
shooting around 10 p.m. At that time, Valerie McDonald was lying on
the ground with blood coming out of her right ear. The detectives
testified that they spoke with Louia, who told them that the
shooter escaped in a burgundy Buick Regal that looked identical to
defendant's car. The detectives further testified that Louia also
disclosed that, although he was married to the victim, the
defendant was his girlfriend.
The two detectives testified that they went to defendant's
house at about 2 a.m. on June 24. There they found defendant at
home, but her car was gone. Defendant voluntarily accompanied the
detectives to Area 6 police headquarters, where she told them that
Marva Golden had borrowed her car the previous evening. Shortly
thereafter, another detective drove defendant home and found that
Golden had arrived there with defendant's car. Golden and defendant
returned to the station with the detective, where defendant gave
them permission to search her car and house. The detectives
accompanied defendant to her home and evidence technicians
processed her car. Although defendant was permitted to stay at her
home, Golden remained in custody. Detective Kamenski testified that
at about 10 p.m. on June 24, he spoke with Golden and she
identified Eddie Williams as the person who shot Valerie McDonald.
Subsequently, Williams was taken into custody. LaChina McDonald
identified Williams from a lineup as the man who shot her mother.
Marva Golden testified that she had known defendant, Geraldine
Smith, for 24 years, having first met when defendant was dating
Golden's uncle. Golden testified that in early 1986, she learned
that defendant was pregnant and that Louia McDonald was the father
of the baby. Golden first met Louia at defendant's house some time
in 1986 when Louia was staying with defendant. Although Golden knew
Louia had a family, she was unaware at that time that he was
married.
Golden testified that while defendant was pregnant, she would
often stay with defendant and help her around the house. Golden had
her own room in defendant's home and often stayed there on
weekends. Near the end of defendant's pregnancy, during the fall of
1986, Golden observed defendant and Louia argue frequently. Golden
testified that defendant was tired of Louia going back and forth
between his wife's home and defendant's home. Golden further
testified that defendant wanted Louia to leave his wife, but Louia
responded that he was having financial problems and needed more
time. Golden testified that defendant gave birth to a son late in
1986, whom she named Louia McDonald, Jr. Golden further observed
that Louia visited defendant less frequently during 1987.
Golden testified that in June 1987, she began working at a
restaurant close to defendant's house. In order to reduce her
commute to work, Golden often stayed with defendant. On Sunday,
June 21, Golden left work at 2:30 p.m. and went to defendant's
house. Golden testified that defendant was angry and said that she
wanted Valerie McDonald to die. Golden testified that defendant
walked through the house repeating that she wanted "the bitch
dead."
Golden testified that at approximately 6 p.m. that same day,
she and defendant left Louia Jr. with defendant's sister, Louise.
Defendant borrowed Louise's car and drove Golden to the north side
of Chicago. Golden testified that when they reached North Winthrop
Avenue, defendant pointed out the victim's house and again said
that she wanted Valerie dead. Defendant circled the block and
slowed the car as she passed the victim's building again. At this
time, they did not see Louia McDonald's car outside the building.
Defendant then drove towards her home on the west side of Chicago.
Golden testified that during the trip defendant repeatedly said, "I
want the bitch dead."
Golden testified that later that same evening, she and
defendant returned to the victim's neighborhood in defendant's car.
During this trip, defendant spotted Louia's car parked outside the
apartment building. Golden testified that upon seeing Louia's car,
defendant hit her own steering wheel in anger and again repeated
that she wanted "the bitch dead." Golden further testified that the
women returned to defendant's house, where defendant said that she
was "tired of this shit." Golden testified that defendant then
asked her if she knew anyone who could help her and Golden replied
that she did.
Golden testified that the next morning, Monday, June 22,
defendant repeated her wish that Valerie McDonald were dead. Golden
testified that defendant said she would pay $500 to have the victim
murdered and asked Golden if she knew anyone who would do it.
Golden again answered affirmatively. That evening, Golden drove
defendant and Louia Jr. in defendant's car to the south side of the
city in order to find someone to kill the victim. Golden noticed
that defendant had brought several cans of soda with her for the
trip.
Golden testified that she drove to a tavern at 59th and Honore
Streets. Outside the tavern, Golden saw Eddie Williams, whom she
knew because Williams had dated her sister. Golden exited the car
and approached Williams while defendant remained in the parked car
with the baby. Golden testified that she asked Williams if he would
kill Valerie McDonald for Geraldine Smith, who was willing to pay
$500. Golden testified that Williams responded by saying, "Let's
ride." Golden further testified that Williams also agreed to give
her $100 of the money. Williams then got into the back seat of
defendant's car. Golden noticed that Williams rested his hands on
the car's T-top as he entered the car.
Golden testified that she then drove towards her cousin's
home. During the drive, Golden noticed that defendant drank from
one of the soda cans. After they arrived at the apartment of
Golden's cousin, Olivia Norris, Golden went upstairs to the
apartment alone while the others waited in the car. Olivia was at
home with her two young sons. Golden testified that she asked
Olivia if she knew where she could get a gun for defendant. Golden
testified that Olivia replied that she had a gun but it was not for
sale. Olivia sent her older son, LaKevin, outside to bring
defendant up to the apartment. Soon, LaKevin returned with
defendant and her baby.
Golden testified that defendant then entered a bedroom with
Olivia, while LaKevin, Golden, and the baby remained in the living
room. When the two women emerged from the bedroom, Olivia handed
Golden a pillowcase which contained a gun. Golden and defendant
then returned to the car and Golden handed Williams the gun. Golden
drove defendant and the baby home. Golden testified that defendant
told her and Williams that she wanted "the bitch dead," to which
they both replied that they would take care of it.
Golden testified that she and Williams then traveled to the
victim's neighborhood. Upon arriving there, they noticed that the
McDonalds' car was gone, so they returned the gun to Olivia Norris.
Golden told Olivia that they would be back for the gun the next
day. Golden drove Williams to the south side and let him out at a
street corner. She then returned to defendant's house late that
evening and told defendant that she and Williams would "take care
of" Valerie McDonald the next day.
Golden further testified that on Tuesday, June 23, she left
defendant's house in defendant's car about 5:30 p.m. and drove to
the south side to get Williams. After picking up Williams, Golden
returned to Olivia Norris' apartment and retrieved the gun. Golden
then drove to the victim's neighborhood and parked the car. Golden
and Williams walked towards the McDonalds' apartment building and
waited on the corner. Shortly thereafter, Golden saw the McDonalds'
car being driven down the street and pointed it out to Williams.
Golden then walked back to defendant's car and drove to a nearby
grocery store parking lot and waited with the engine running.
Golden testified that Williams soon ran up to the car and
opened the passenger door. Golden testified that as Williams
entered the car he said, "Let's get the *** out of here." Golden
drove directly back to defendant's house. Golden testified that
during the ride, Williams said, "I hit the bitch in the head. I
think she is going to die." Golden further testified that Williams
also told her that the victim had children with her.
Golden testified that upon arriving at defendant's house,
Williams went down into the basement while she talked to defendant.
Golden testified that defendant asked her if Williams had taken
care of it, to which Golden replied, "Pay him the money." Golden
testified that defendant responded, "I hope the bitch die." Golden
testified that defendant then took her car keys from Golden and
left, saying that she was going to get more money. About 15 minutes
later, defendant returned home and gave Golden $500. Golden gave
Williams the money, who returned $100 to Golden as they had agreed.
Golden testified that she then drove Williams back to the
south side in defendant's car. She dropped him off at a street
corner and then returned the gun to Olivia Norris. Golden then met
her sister at a bar and had some drinks. After leaving the bar,
Golden spent some time alone at the lakefront before returning to
defendant's house. Finding no one at defendant's home, Golden went
to bed. Golden testified that the next morning, Wednesday, June 24,
defendant returned home with two police detectives. The detectives
asked Golden to return with them to the police station. On the way
to the station, Golden and defendant sat in the back seat of the
police car. Golden testified that defendant whispered to her that
she should not say anything because the police knew nothing.
That evening, Golden was still at the police station when she
discovered that the police allowed the defendant to go home. Golden
told Detective Kamenski that she was surprised because defendant
"was the cause of all this" and the murder was defendant's idea.
Golden then directed the police to the neighborhood where she had
dropped off Williams and he was eventually apprehended.
Subsequently, Golden was driven back to the police station, where
she telephoned Olivia Norris. Golden told Olivia to give the gun to
the police. Golden then accompanied the police to Olivia's
apartment, but the gun was not recovered at that time.
Golden also testified concerning her agreement with the State.
In exchange for her testimony against defendant, the State was
going to recommend a prison term of 20 years for Golden. On cross-
examination, Golden testified she was aware that without the
agreement it was possible that she could receive the death penalty.
In addition, Golden was aware that with credit for time served and
good behavior she could be released within seven years.
On cross-examination, Golden admitted that when she was first
questioned by police detectives she denied any involvement in the
murder. Golden denied that she spoke to Iris Harrison, another
inmate at the Cook County jail, regarding her case. Finally, Golden
denied seeing people at defendant's house on June 21, the Sunday
before the murder.
On redirect examination, Golden testified that in July 1987,
while she was incarcerated in the Cook County jail, defendant
visited her. Golden testified that defendant asked her to write
Louia McDonald and tell him that defendant had nothing to do with
Valerie's murder. Golden testified further that defendant told her
that if she wrote the letter, defendant would deposit a "big lump
sum of money" into Golden's account at the jail's commissary.
Golden testified that she did not respond to this request.
Assistant State's Attorney Joel DeGrazia testified that on
June 25, 1987, he was present when Golden made a court-reported
statement regarding the shooting of Valerie McDonald. DeGrazia read
the statement to the jury, which was largely consistent with
Golden's trial testimony. On cross-examination, DeGrazia
acknowledged that Golden never told him that defendant entered
Olivia Norris' apartment with her to obtain the gun.
LaKevin Norris testified that in the summer of 1987 he was
about to enter the fifth grade. At that time, he and his younger
brother lived with his mother, Olivia Norris. LaKevin testified
that in late June 1987, he saw his cousin, Golden, and defendant
pull up in front of his building in a burgundy-colored car. LaKevin
accompanied Golden up to his apartment and then returned outside
and spoke with defendant. LaKevin testified that he asked defendant
what her name was and she replied "Geraldine." LaKevin then went up
to the apartment with defendant. He remembered the women staying
for about 15 or 20 minutes. The next evening, Golden returned to
LaKevin's house with two men. LaKevin identified Eddie Williams as
one of the men who was with Golden.
A medical examiner testified that he performed an autopsy on
Valerie McDonald. He noted a gunshot entrance wound near the upper
portion of her right ear and recovered a small caliber bullet from
near her left temple. He determined that the gunshot wound was the
cause of death. Detective David Ryan testified that on June 25,
1987, he recovered a gun wrapped in a pillowcase from Olivia
Norris. Olivia showed Ryan the abandoned garage where the gun was
hidden. A firearms expert testified that ballistics tests showed
that the gun fired the bullet that killed Valerie McDonald.
A fingerprint expert testified that Williams' fingerprints
were discovered on the T-top and passenger side door glass of
defendant's car. Golden's fingerprints were found on the car's
rearview mirror and driver's side door glass. In addition, both
Williams' and defendant's fingerprints were found on an empty soda
can found in the back seat of defendant's car.
Robert Clark, a Chicago police officer, testified regarding an
altercation which occurred between the victim and defendant about
one year before the murder. On July 4, 1986, Clark responded to a
report of an auto theft in progress at 6100 North Winthrop Avenue.
When he arrived, defendant was sitting alone in Louia McDonald's
car. As Clark approached the car, he saw defendant bend over. After
defendant exited the car, Valerie McDonald exited the apartment
building and began arguing with defendant. Soon, the argument
escalated into a physical altercation in which the two women kicked
and punched each other until Clark separated them. Clark testified
that he could not tell which of the women started the altercation.
After separating the two women, Clark searched Louia's car. On the
floor of the front seat he discovered a cosmetic bag which
contained a loaded .25-caliber pistol. He found no identification
in the bag. In the back seat of the car, Clark also found
defendant's purse, which contained a hammer.
Detective Mannion also testified regarding his efforts to
locate Louia McDonald in order for him to testify at defendant's
trial. On February 28, 1990, Louia did not appear in court. Mannion
found Louia at home and made arrangements to bring him and his
daughter Lakeya to court the next morning. Nevertheless, the next
day Mannion found that Louia was not home. Louia was also not at
work and his daughter was absent from school. Mannion was unable to
locate Louia or his daughter in time for them to testify at trial.
In her defense, defendant called Olivia Norris, who testified
that she was Golden's cousin and had known her most of her life.
Olivia also had known defendant most of her life because defendant
had been involved in a relationship with Olivia's uncle. Olivia
testified that in the evening of June 22, 1987, Golden came to her
apartment with a man Olivia did not know. Golden introduced the man
only as "Eddie." Olivia testified that Golden asked her to get the
"piece," referring to a gun that Golden had brought to Olivia's
apartment over a week earlier. Golden took the gun and left with
Eddie only to return with it several hours later. Olivia testified
further that Golden returned the next evening with Eddie and
another man, and again took the gun. A few hours later, Golden
returned alone and dropped off the gun. After a few days, the
police came and took the gun from Olivia. On cross-examination,
Olivia said that she thought defendant had come to her apartment
with Golden on one of those occasions because she recalled seeing
and talking with defendant at some time that week. Olivia also
admitted that on June 25, 1987, she told the police that defendant
had been to her apartment with Golden earlier that week.
Iris Harrison testified that she was in custody in the Cook
County jail during the summer of 1987. At that time, Harrison
became acquainted with both Golden and defendant. In late June or
early July 1987, Harrison was in the waiting room of the jail's
infirmary when Golden entered the room with another inmate and
began talking to Harrison. Harrison testified that during the
conversation, Golden described her murder charge in detail.
Harrison testified that Golden told her that she picked up a
man because they were going to "knock off a stain," which Harrison
understood to mean that they intended to rob somebody. Harrison
testified that Golden stated that when she and the man reached
their destination they had to wait for the people to arrive. When
the people did arrive, the man jumped out of the car and went right
after them. Harrison testified that Golden said the man was
supposed to shoot another man, but instead shot the man's wife.
Harrison further testified that after making this statement, Golden
commented that if you want something done right, you should do it
yourself. Harrison testified that at this point in the
conversation, Golden turned and looked towards defendant, who was
sitting in the adjacent room, and said that defendant was "like a
fish out of water." Harrison testified that Golden then commented
that if she was going "to go down and take that yellow bus ride,"
then she was going to take defendant with her. Harrison testified
that the "yellow bus ride" means going to the penitentiary.
Harrison then testified that Golden also said that defendant had
nothing to do with the murder. Harrison also testified that she
later became friends with defendant and became protective of her.
Defendant then offered evidence of an alibi for Sunday, June
21, 1987, which Golden testified was the day she accompanied
defendant on two trips to the McDonalds' neighborhood after
defendant revealed her desire to have Valerie McDonald killed.
Several of defendant's relatives testified to a large family
gathering that was held at defendant's home on that day. Among
them, Enis Mabry, defendant's mother, testified that she arrived at
defendant's house at approximately 3 p.m. Enis testified that other
family members and Marva Golden were also present at defendant's
house that day. Enis stayed until well after dark, leaving some
time between 9 p.m. and 10 p.m. Enis did not see defendant leave
the house at all that day. Enis specifically recalled the day
because she was visiting Chicago from her home in Mississippi
during June 1987. In addition, she remembered the day because it
was the Sunday preceding defendant's arrest.
Defendant also offered alibi evidence for Monday, June 22,
1987, which Golden testified was the day the murder plan was
conceived and Williams was recruited to perform the shooting. The
testimony of defendant's relatives accounted for defendant's
activities of that day from 12:30 p.m. until late afternoon. In
addition, the boyfriend of defendant's niece testified that
defendant was at her home at 10 p.m. that evening when he arrived
to give his girlfriend a ride home.
Finally, defendant offered an alibi for Tuesday, June 23,
1987, the day of the murder. Defendant's doctor and several of her
relatives accounted for defendant's activities during that day. In
addition, two of defendant's relatives testified that they were
with defendant at her home the evening of the murder until
approximately 11:15 p.m. They testified that at no time that
evening did they see Marva Golden or Eddie Williams at defendant's
house.
The defense also called two police detectives who testified
that they had interviewed Golden during the early stages of the
investigation of Valerie McDonald's murder. During these
interviews, Golden denied any involvement in the murder and did not
mention defendant's involvement. Defendant did not testify on her
own behalf.
Closing arguments were held and the jury returned a verdict of
guilty. Subsequently, defendant filed a post-trial motion
requesting a new trial, grounded on the newly discovered testimony
of nine witnesses. The trial court denied defendant's motion.
Defendant waived her right to a jury at the death penalty hearing.
The trial court found defendant eligible for the death penalty and,
after considering evidence in aggravation and mitigation, the trial
court sentenced defendant to death.
Additional facts will be presented where required for a
thorough discussion of the issues.

ISSUES
Defendant raises 13 issues in her appeal, the first four of
which concern trial error. Defendant argues: (1) she was not proven
guilty beyond a reasonable doubt; (2) she was denied a fair trial
because the prosecutor elicited testimony of the police
investigation which implied that a nontestifying codefendant
implicated her; (3) she was denied a fair trial because during
closing arguments the prosecutor improperly used impeachment
evidence as substantive proof that she was present when the murder
weapon was obtained; and (4) the trial court erred in denying her
request for a new trial based on newly discovered evidence.
Defendant's next two issues concern trial counsel's
performance. Defendant argues here that: (5) she was denied
effective assistance of counsel because her trial attorney failed
to cross-examine a witness regarding incentives the prosecution had
promised in exchange for his testimony; and (6) she was deprived of
conflict-free counsel because her trial attorney had bribed judges
and because he faced drug charges and an impending federal
indictment.
Defendant also raises five issues concerning sentencing.
Defendant argues: (7) defendant's waiver of her right to a jury for
capital sentencing was constitutionally invalid under the sixth,
eighth, and fourteenth amendments because she was advised that the
jurors had to be unanimous in a decision not to impose death; (8)
she was deprived of conflict-free counsel because her attorney also
represented a State's witness during her capital sentencing
proceedings; (9) she was denied effective assistance of counsel
because her trial attorneys failed to investigate and present
substantial mitigating evidence concerning her behavior after
incarceration; (10) her death sentence is excessive given the
substantial mitigation evidence presented and lack of aggravation
evidence; and (11) her death sentence is unreasonably disparate
from the natural life term of imprisonment imposed on Williams, her
codefendant.
Finally, defendant raises two arguments concerning the
constitutionality of the Illinois death penalty statute. Defendant
argues that the statute: (12) places a burden of proof on a
defendant which precludes meaningful consideration of mitigation;
and (13) does not sufficiently minimize the risk of arbitrarily
imposed death sentences.

I. TRIAL ISSUES
A. Sufficiency of Evidence
Defendant first contends that the State failed to prove her
guilty beyond a reasonable doubt. Defendant argues that the
prosecution's case was based almost entirely on the inherently
suspect and uncorroborated testimony of codefendant Marva Golden,
who is not credible because she is a self-confessed murderer and
liar who received substantial incentive to testify falsely and
implicate defendant. Moreover, defendant contends that Golden's
testimony was significantly contradicted by defendant's numerous
witnesses who testified to defendant's alibi and good character.
A criminal conviction will not be set aside on review unless
the evidence is so unsatisfactory or improbable that there remains
a reasonable doubt of the defendant's guilt. People v. Byron, , 299 (1995). When considering a challenge to the
sufficiency of the evidence of a defendant's guilt, it is not the
function of this court to retry the defendant. People v. Steidl,
, 226 (1991). Rather, determinations of the
credibility of witnesses, the weight to be given to their
testimony, and the reasonable inferences to be drawn from the
evidence are responsibilities of the trier of fact. Steidl, 142 Ill. 2d at 226. The relevant question on review is whether, after
viewing all of the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Byron,
164 Ill. 2d at 299.
A careful review of the record reveals that a rational trier
of fact could have readily found defendant guilty of murder and
conspiracy to commit murder beyond a reasonable doubt. Codefendant
Marva Golden testified to the gradual breakdown in the relationship
between defendant and Louia McDonald. Defendant was angry over
Louia's lack of commitment to her and their son and she became
increasingly jealous of the relationship Louia continued with his
wife, Valerie. Golden testified that defendant's anger and jealousy
finally culminated in defendant's decision to have Valerie killed.
At defendant's request, Golden helped her recruit a killer and
obtain a gun. Defendant provided her car so that Golden could drive
Williams to the murder scene and help him escape after the
shooting. Golden testified that after the shooting, defendant gave
Golden and Williams $500 for murdering Valerie.
We recognize defendant's contention that the testimony of an
accomplice witness "has inherent weaknesses" (People v. Hermens, , 285 (1955)) and should be "accepted only with utmost
caution and suspicion" (People v. Newell, , 470
(1984)). Nevertheless, the testimony of an accomplice witness,
whether corroborated or uncorroborated, is sufficient to sustain a
criminal conviction if it convinces the jury of the defendant's
guilt beyond a reasonable doubt. See People v. Young, , 51 (1989). Moreover, a conviction shall not be reversed simply
because the defendant claims a witness was not credible. Byron, 164 Ill. 2d at 299. In the present case, Marva Golden provided a
complete account of the conspiracy to murder Valerie McDonald,
including her own role in the commission of the crimes. Moreover,
Golden's trial testimony was corroborated by the court-reported
statement she gave shortly after the murder occurred. This
statement tended to rebut the inferences, suggested by the defense,
that Golden had a motive to testify falsely in this case and that
her trial testimony was a recent fabrication. See People v. Shum,
, 340-41 (1987). The jury was well aware of Golden's
initial denial of involvement in the murder and her subsequent
confession. In addition, the jury knew of Golden's plea agreement
with the State, and it was instructed that accomplice testimony is
subject to suspicion (see Illinois Pattern Jury Instructions,
Criminal, No. 3.17 (3d ed. 1992)). The jury chose to believe
Golden's testimony.
Contrary to defendant's assertion, the State was able to
provide independent corroboration of many important aspects of
Golden's testimony. Police officer Clark's testimony confirmed the
growing animosity and potential for violence between Valerie and
defendant. Defendant's own family members substantiated defendant's
romantic relationship with Louia and the resulting birth of their
son, Louia Jr. LaChina McDonald testified that she first noticed
Eddie Williams, the shooter, on the corner outside her family's
apartment, the same spot where Golden testified that she left
Williams. Daniel Postlethwait testified that, after hearing
gunshots, he observed a man with a ponytail being chased by another
man and then escape in a burgundy Buick. In addition, testimony of
police detectives revealed that Louia McDonald chased Williams
until he entered a burgundy Buick identical to defendant's car.
These witnesses' testimony provided corroboration of Golden's
account of her and Williams' escape from the murder scene.
Furthermore, Golden's account of how she and defendant
acquired a gun was corroborated by both LaKevin Norris and his
mother, Olivia Norris. Detectives also testified that they
recovered a gun from Olivia Norris and ballistics tests showed that
the gun fired the bullet that killed Valerie McDonald. Other expert
testimony further supported Golden's account. Golden's fingerprints
were found inside defendant's car, while Eddie Williams'
fingerprints were found on both the exterior and interior of
defendant's car. Finally, both Williams' and defendant's
fingerprints were found on a soda can recovered from the back seat
of defendant's car.
Defendant argues that the testimony of her own witnesses and
her alibi evidence greatly contradict the State's evidence.
However, a careful review of defendant's extensive alibi evidence
of the three days preceding the murder reveals that the only
contradiction of Golden's account are the events of Sunday, June
21, 1987. Golden testified that she and defendant left Louia Jr.
with defendant's sister and then twice traveled to Valerie
McDonald's neighborhood. In contrast, several of defendant's family
members testified that a large family gathering was held at
defendant's house that entire day and defendant never left the
premises. Nonetheless, the jury was entitled to credit the State's
evidence and disregard defendant's alibi evidence, even though the
alibi was supported by the greater number of witnesses. See People
v. Jimerson, , 46 (1989); People v. Berland, , 307 (1978). Further, any infirmities in Golden's or the
other witnesses' testimony go to the weight of the evidence and
their credibility as witnesses. Young, 128 Ill. 2d at 51.
In sum, given the totality of the evidence adduced at trial,
and reviewing it in the light most favorable to the prosecution, we
conclude that any rational trier of fact could have found defendant
guilty beyond a reasonable doubt. We therefore reject defendant's
claim that the State failed to prove her guilty beyond a reasonable
doubt.

B. Inference That a Nontestifying Codefendant
Implicated Defendant
Defendant next contends that Detective Phillip Mannion's
testimony that he arrested defendant immediately after interviewing
codefendant Eddie Williams was erroneously admitted, violating her
right of confrontation under the sixth amendment. Defendant's
contention is that allowing Detective Mannion to testify that
defendant's arrest came immediately after speaking with Williams,
who did not testify at defendant's trial, led to the inescapable
inference that Williams implicated defendant in the murder. We find
defendant's contention without merit.
The portion of Detective Mannion's testimony that defendant
highlights involved Mannion's description of the police
investigation. On direct examination, Mannion testified that after
defendant was first questioned regarding the murder she was allowed
to go home while Golden remained in custody. Mannion further
testified that after speaking with Golden on the night of June 24,
1987, he and several detectives accompanied Golden to the south
side of the city, where Eddie Williams was apprehended. Then the
prosecutor and Mannion had this exchange:
"Q. Did you talk to Eddy [sic] Williams?
A. Yes, I did.
Q. After you talked to Eddy [sic] Williams, did you go
anywhere?
A. Yes."
At this point defense counsel objected and, during a sidebar, moved
for a mistrial, arguing that the testimony was an attempt to admit
hearsay statements and provided an obvious inference that Williams
had implicated defendant. The trial judge denied the motion,
observing that there had been no mention of Williams' statement or
that Williams implicated defendant. The trial judge allowed the
trial to proceed and the prosecutor elicited testimony from Mannion
that, after speaking to Williams, the police went to defendant's
house and arrested her.
Detective Mannion at no time testified as to the substance of
any statements Williams made to him. However, defendant argues that
Mannion's testimony inferentially revealed that Williams had
implicated her in the murder. This court has held that testimony
recounting the course of a police investigation is admissible and
does not violate the sixth amendment, even if a jury would conclude
that the police began looking for a defendant as a result of what
nontestifying witnesses told them, as long as the testimony does
not gratuitously reveal the substance of the codefendants'
statements. People v. Henderson, , 304 (1990),
citing People v. Johnson, , 24 (1987). Detective
Mannion's testimony simply related the course of the investigation;
the fact that it may appear that something Williams said caused the
police to arrest defendant does not mean that defendant has a right
to cross-examine Williams. There was absolutely nothing to cross-
examine Williams about given that the content of any statement he
gave to the police was never disclosed at defendant's trial.
Henderson, 142 Ill. 2d at 304. Therefore, we reject defendant's
contention.

C. Improper Closing Arguments
Defendant next contends that she was denied a fair trial
because, during closing arguments, the prosecutor improperly used
impeachment evidence as substantive proof that defendant was
present with Golden when the murder weapon was obtained.
Olivia Norris testified on direct examination that when Golden
came to her apartment on June 22, 1987, to retrieve the gun, Golden
was accompanied only by a man she introduced as "Eddie." Olivia
testified that when Golden returned the next evening for the gun,
Golden was accompanied by Eddie and another man Olivia did not
know. During the cross-examination of Olivia, the following
exchange occurred:
"Q. And isn't it a fact that Geraldine Smith was in
your house the first day Marva came?
A. Was it the Thursday--first day--let me--
MR. SWANO [Defense Attorney]: Objection. If she
knows, Judge.
MR. SHERWIN [Assistant State's Attorney]: Judge,
he's trying to answer the question.
MR. SWANO: I'm not.
THE COURT: She may answer if she knows. What did you
say?
A. I say let me think if it's the first or second.
Q. [Assistant State's Attorney:] When did you see
Geraldine at your house with Marva?
MR. SWANO: Objection. Assuming facts not in
evidence. She testified it was Eddie.
MR. SHERWIN: Judge, he doesn't like the answer.
MR. SWANO: She hasn't said an answer.
THE COURT: She said the first or second is what she
said.
A. Let me see. Must have been the second. I think it
was the second.
Q. [Assistant State's Attorney:] You saw Geraldine
Smith at your house that week, didn't you? Didn't you?
A. Did I see Geraldine?
Q. Yes.
A. Yes, I did.
Q. And you talked to her, didn't you?
A. Yes, I did."
Later during cross-examination, the prosecutor impeached Olivia
with a statement she had made to police detectives on June 25,
1987, in which Olivia stated that defendant and Golden had been at
Olivia's apartment together earlier in the week.
During the prosecutor's closing argument, the following
occurred:
"MR. SHERWIN [Assistant State's Attorney]: And while
LaKevin told you clearly that he saw Geraldine on that
day that she came up there and was with Marva picking up
the gun Olivia admitted it too, rather reluctantly I
would say.
MR. SWANO [Defense Attorney]: Objection.
THE COURT: The jury heard the evidence.
MR. SHERWIN: Under cross-examination she finally
admitted yes, Geraldine was there.
MR. SWANO: Objection.
THE COURT: Overruled. The jury heard the evidence.
MR. SHERWIN: That Geraldine, yes, she was there.
That's two people that put Geraldine there with Marva.
***
* * *
MR. SHERWIN: Then they put [on] Olivia to show that
Geraldine was not at her house. That was great. That
exploded. It's kind of hard to believe what Olivia said
on direct. Oh, Geraldine wasn't there. But on cross she
sure admitted Geraldine was there.
MR. SWANO: Objection.
THE COURT: Overruled. The jury heard the evidence."
Defendant contends that it was error to allow the prosecution
to argue that Olivia admitted that defendant had accompanied
Golden. Defendant argues that the only evidence showing that Olivia
admitted defendant and Golden were at her home together was the
prior statement Olivia made to police detectives, which the
prosecution introduced only for impeachment purposes.
The prosecutor's statements were not error. The State has the
right to comment on the evidence and draw all legitimate inferences
deducible from the evidence, even if the inferences are unfavorable
to defendant. People v. Johnson, , 145 (1992). In
addition, the State is allowed a great amount of latitude in making
closing argument and, absent a clear abuse of discretion, the
determination of the trial court as to the propriety of closing
argument should be followed. Johnson, 149 Ill. 2d at 145, citing
People v. Brisbon, , 223 (1989).
On cross-examination, the prosecutor asked Olivia the
question, "When did you see Geraldine at your house with Marva?"
(Emphasis added.) Olivia replied: "Let me see. Must have been the
second. I think it was the second." Clearly Olivia answered that
she had seen defendant together with Golden at her apartment.
Moreover, defense counsel apparently interpreted Olivia's testimony
in the same manner because during redirect examination he
immediately attempted to rehabilitate Olivia by questioning her
about her testimony in codefendant Eddie Williams' trial, in which
she stated that she did not see defendant when Golden came to
retrieve the gun. After carefully reviewing the record, we conclude
that the prosecutor's remarks constituted a reasonable
characterization of the evidence and logical inferences drawn
therefrom. See People v. Peeples, , 485-86 (1993);
People v. West, , 592 (1990).
D. Denial of New Trial Based on Newly Discovered Evidence
Defendant's next contention is that the trial court erred in
failing to conduct an evidentiary hearing to investigate the
allegations in her post-trial motion that the statements of nine
new witnesses show that her conviction was based solely upon the
perjured testimony of codefendant Marva Golden. Further, defendant
argues that the testimony of these new witnesses would substantiate
her theory that Golden acted alone in hiring Eddie Williams to kill
Valerie McDonald. Defendant urges this court to grant her a new
trial or, in the alternative, remand for a full evidentiary hearing
to establish the materiality of the new witnesses' statements.
After their arrest, defendant and Golden were incarcerated at
the Cook County jail. While defendant was subsequently released on
bond, Golden remained in custody at the jail until she was
transferred to a state penitentiary after testifying in defendant's
case. Once defendant was convicted, she was returned to the jail.
Shortly thereafter, defendant met nine women inmates who informed
her of discussions they had previously had with Golden in which
Golden claimed defendant was not involved in Valerie McDonald's
murder.
Defendant filed a motion for a new trial, which was supported
by affidavits and court-reported statements of these new witnesses.
The trial court denied defendant's motion, finding that the newly
discovered evidence merely sought to discredit the trial testimony
of Golden and, thus, was cumulative of the trial testimony of Iris
Harrison.
To warrant a new trial based on newly discovered evidence, the
evidence: (1) must be of such conclusive character that it would
likely change the result on retrial; (2) must be material to the
issue but not merely cumulative; and (3) must have been discovered
since the trial and be of such character that it could not have
been discovered sooner through the exercise of due diligence.
People v. Molstad, , 134 (1984), quoting People v.
Baker, , (1959). This court has held that a
motion for a new trial predicated on newly discovered evidence is
addressed to the discretion of the trial judge and denial of such
a motion shall not be disturbed upon review absence a showing of an
abuse of discretion. People v. Miller, , 464 (1980),
quoting Baker, 16 Ill. 2d at 373-74. Moreover, the trial court can
dispose of a motion for a new trial based upon newly discovered
evidence without holding a full evidentiary hearing, as long as
that decision is not an abuse of discretion. See People v. Kellick,
, 176-77 (1984).
The State contends that the trial court correctly denied
defendant's motion for a new trial. The State argues that the newly
discovered evidence can, at best, be viewed as impeachment of a
prosecution witness, which is an insufficient basis for granting a
new trial. See People v. Holtzman, , 568 (1953).
Further, the State argues that the newly discovered evidence is
merely cumulative of the trial testimony given by Iris Harrison
and, thus, is insufficient to warrant a new trial. See Miller, 79 Ill. 2d at 464-65.
This court, in People v. Holtzman, , 568 (1953),
determined:
"A distinction is to be drawn between evidence which
impeaches a witness in the sense that it affects the
credibility of the witness, and evidence which is
probative in that it presents a state of facts which
differs from that to which the witness testified. Newly
discovered evidence, the effect of which is to discredit,
contradict and impeach a witness, does not afford a basis
for the granting of a new trial. If, however, it
contradicts a witness by showing facts, a new trial may
be ordered when it appears that such new evidence has
sufficient probative force or weight to produce a result
different from that obtained at the trial which has been
had."
A thorough analysis of defendant's proposed new evidence
reveals that it does not contradict Golden by showing a set of
facts different from her testimony. Initially, we note that the
testimony of several of the new witnesses does not involve any
claims that Golden falsely implicated defendant. Rather, these
witnesses simply claim that Golden was angry with defendant and
said she was going to testify against her. The testimony of the
remaining new witnesses, at most, consists of descriptions of out-
of-court statements made by Golden which had some inconsistencies
with her trial testimony. Generally, a prior inconsistent statement
of a witness is not admissible as substantive evidence but, rather,
is admitted solely for its impeaching effect upon the credibility
of the witness. People v. Cruz, , 358-59 (1994);
People v. Collins, , 194 (1971). Defendant's new
evidence could only have been admitted to discredit, contradict,
and impeach Golden. Thus, the newly discovered evidence is
insufficient to warrant a new trial. Miller, 79 Ill. 2d at 464-65;
Holtzman, 1 Ill. 2d at 568; see also People v. Woodrome, 237 Ill.
App. 3d 220, 233-34 (1992) (new evidence of codefendant making out-
of-court statement that defendant was not involved in crime held
insufficient to warrant a new trial); People v. Wicks, 15 Ill. App.
3d 318, 322 (1973) (new evidence attacking credibility of
codefendant held insufficient to warrant a new trial even though
testimony was only evidence of defendant's guilt).
Defendant argues that her case is strikingly similar to that
of People v. Cotell, 298 Ill. 207 (1921), in which this court
granted a new trial after the defendant discovered new evidence
attacking the credibility of an accomplice who testified against
him. Cotell, 298 Ill. at 217-18. Contrary to defendant's assertion,
Cotell is readily distinguishable from the instant case. Although
the new evidence in Cotell did impeach the testimony of the
accomplice witness, it went further than impeachment. The
accomplice testimony was the only evidence connecting the defendant
to the crime. As this court observed, the new evidence presented
facts which went to the very foundation of the State's case.
Cotell, 298 Ill. at 217. In contrast, in the instant case, the
State presented substantial evidence of defendant's involvement in
the murder besides Golden's testimony. Moreover, the record in the
instant case reveals that the trial court expressly determined
that, contrary to Cotell, the testimony of the nine new witnesses
added no new facts but, rather, merely attempted to impeach and
discredit Golden. The trial court's decision was not an abuse of
discretion.
We also cannot say that the trial court erred by determining
that the new evidence was merely cumulative. A determination that
newly discovered evidence is cumulative involves a finding that
such evidence adds nothing to what is already before the jury
(Molstad, 101 Ill. 2d at 135), and that, had the new evidence been
introduced at trial, it would not have changed the result
(Ostendorf v. International Harvester Co., , 284
(1982)). In the instant case, the trial court could reasonably
conclude that the new testimony of the nine inmates was merely
cumulative to the trial testimony of Iris Harrison.
Harrison testified to a discussion she had in jail with Golden
in which Golden described the murder of Valerie McDonald. Harrison
testified that during this conversation, Golden stated that if she
was going to go to prison then she was going to "take defendant
with her." Harrison also testified that Golden said defendant had
nothing to do with the murder. Likewise, the basic premise of the
testimony of the new witnesses was that Golden had made statements
in jail prior to defendant's trial to the effect that, although
defendant was not involved in the murder, Golden was nonetheless
going to implicate defendant in her testimony. This theory of
defense was extensively developed through cross-examination of
Golden and the direct testimony of other witnesses. Further,
defense counsel strenuously argued this theory during closing
statements. Finally, the trial judge that denied defendant's motion
for a new trial also presided at defendant's trial and heard Golden
and Harrison testify, as well as all the other evidence. He could
reasonably conclude that this newly discovered evidence added
nothing to what was already before the jury.
Defendant argues that the newly discovered evidence is not
merely cumulative because some of the testimony provides
information regarding Golden's motive to falsely implicate
defendant, which was not included in Harrison's testimony.
Defendant cites the offered testimony of Ann Young, who heard
Golden say she was going to "put" the murder on defendant so Golden
would not get life in prison. Defendant's argument does not have
merit. Evidence showing Golden had a bias, interest, or motive to
testify falsely would be admissible only for purposes of impeaching
Golden. See People v. Triplett, , 475 (1985); People
v. Norwood, , 258-59 (1973) (promise of leniency made
to prosecution witness admissible to impeach his or her
credibility); see also M. Graham, Cleary & Graham's Handbook of
Illinois Evidence 607.7, at 359-60 (5th ed. 1990). As we have
already determined, newly discovered evidence offered to impeach a
prosecution witness is an insufficient basis for granting a new
trial. Moreover, defense counsel extensively cross-examined Golden
about the plea agreement she had accepted in order to avoid the
death penalty. Therefore, any new evidence which tended to show
Golden's motive to testify falsely would also be cumulative.
Defendant also cites People v. Cihlar, , 218
(1986), for the proposition that the significant number of new
witnesses she offers should preclude a determination that the
evidence is merely cumulative. However, Cihlar does not support
defendant's argument. Cihlar involved newly discovered testimony of
several witnesses which attacked the reliability of the victim's
identification of the defendant as her assailant. Unlike the
instant case, the victim's testimony in Cihlar was the only
evidence connecting the defendant to the crime. In addition, the
victim's testimony was completely uncontradicted at trial. Cihlar,
111 Ill. 2d at 217-18. In contrast, defense counsel attempted to
extensively contradict Golden's testimony. Thus, the Cihlar holding
is not applicable to the instant case.
The new evidence defendant offered is substantially cumulative
and affects only the credibility of Marva Golden, a matter that was
already placed before the jury by the testimony of various
witnesses and her cross-examination by defense counsel. As this
court has previously stated:
"Applications for a new trial on the ground of newly
discovered evidence are not looked upon with favor by the
courts, and in order to prevent, so far as possible,
fraud and imposition which defeated parties may be
tempted to practice, as a last resort, to escape the
consequence of an adverse verdict, such application
should always be subjected to the closest scrutiny by the
court, and the burden is upon the applicant to rebut the
presumption that the verdict is correct and to show there
has been no lack of diligence." Holtzman, 1 Ill. 2d at
569.
Judged by these standards, the trial court did not abuse its
discretion in denying defendant's motion for a new trial.

II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Defendant raises two issues regarding the effectiveness of her
trial counsel. Her first contention is that she was deprived of the
assistance of conflict-free counsel because William Swano, one of
her trial attorneys, was involved in a variety of unethical and
illegal practices during the period of his representation of
defendant. Defendant reasons that the knowledge of an impending
federal indictment on racketeering charges plagued Swano daily and,
thus, prevented him from giving his full attention to her trial.
To support her contention, defendant supplements the record
with the trial transcripts of Swano's testimony in the federal
criminal trial of former Cook County Circuit Judge Thomas Maloney.
Defendant highlights Swano's testimony, in which he admitted paying
bribes to Judge Maloney in numerous criminal cases. Swano
eventually became the subject of "Operation Greylord," a federal
criminal investigation into the fixing of cases in Cook County
circuit court. Ultimately, Swano pled guilty to federal
racketeering charges and agreed to cooperate with federal
prosecutors in the case against Judge Maloney. Subsequently, Swano
was suspended from the practice of law and later disbarred.
Defendant contends that the interests of justice require that
she be granted a new trial. In support of this contention,
defendant relies on the case of People v. Williams,
(1982), in which this court ordered a new trial for a defendant
whose trial counsel was disbarred following an ARDC investigation
which overlapped with defendant's trial. Because of the uniqueness
of the situation in Williams, this court declined to apply the
tests for ineffective assistance of counsel established in
Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This court stated that "considering the unique
circumstances and sequence of events in this capital case, which
will rarely, if ever, be duplicated, that the interests of justice
require that [the defendant] be granted a new trial." (Emphasis
added.) Williams, 93 Ill. 2d at 325. Defendant argues that the
"sordid circumstances" of her trial counsel far surpass those of
the defense counsel in Williams.
We find defendant's argument without merit. In People v.
Szabo, , 529 (1991), this court limited the Williams
decision, determining that it "was an aberration peculiar to the
facts of that case." The court also observed the factual
differences between the two cases. Contrary to the extensive
allegations of ineffectiveness asserted in Williams, the defendant
in Szabo only made brief and vague allegations of his counsel's
deficient representation. In addition, defense counsel in Szabo did
not appear before the ARDC until 10 months after the defendant's
trial, while defense counsel in Williams was the subject of
disbarment proceedings at the time of the defendant's trial. This
court declined to apply a per se rule that a defendant be granted
a new trial whenever his or her counsel is involved in proceedings
with the ARDC. Rather, this court reviewed the defendant's claims
under the Strickland ineffective assistance of counsel test. Szabo,
144 Ill. 2d at 529-31.
Subsequently, in People v. Franklin, , 18 (1995),
this court determined that the analysis of Williams and Szabo was
applicable to an attorney who was being investigated for criminal
infractions. In Franklin, the defendant's attorney was targeted by
the "Operation Greylord" investigation at the time of defendant's
trial. This court observed that defense counsel was not indicted
until after the conclusion of the defendant's trial and did not
plead guilty to any charges until some time later. In addition,
defense counsel did not appear in front of the ARDC until after the
defendant's trial. This court noted that, at most, defense counsel
was only under investigation for his involvement in "Operation
Greylord" at the time of the defendant's trial and stated that
"[b]eing under a criminal investigation is not of the same degree
as appearing in front of the ARDC on current, pending complaints."
Franklin, 167 Ill. 2d at 19. This court concluded that the
defendant's claims regarding trial counsel must be reviewed under
the Strickland ineffective assistance of counsel test. Franklin,
167 Ill. 2d at 18-19.
We find that the "unique circumstances and sequence of events"
existing in the Williams case are not present in the instant case.
Swano first appeared in court for defendant on July 14, 1987.
Defendant's trial ended on March 14, 1990. Swano's representation
of defendant ended when she was sentenced on February 20, 1991.
Defendant has provided evidence only that Swano was under
investigation at the time of defendant's trial. Defendant concedes
that Swano was not indicted until four months after his
representation of defendant ended. This court has held that merely
being the subject of a criminal investigation is not of the same
degree as being the subject of current ARDC proceedings. Franklin,
167 Ill. 2d at 19. In addition, Swano did not appear before the
ARDC at the time of defendant's trial. Swano was not suspended from
the practice of law until March 20, 1992, two years after
defendant's trial. Moreover, Swano was not disbarred until January
23, 1996, nearly six years after the end of defendant's trial.
The circumstances of defendant's trial are also different from
the circumstances of the trial in Williams. Although both were
trials of capital cases, in Williams the doubts about counsel's
representation were accentuated by the burden of his simultaneous
representation of three defendants before two juries. Williams, 93 Ill. 2d at 325. In contrast, defendant in the instant case was the
only person on trial and the only client Swano represented.
Further, Swano was assisted by another attorney during defendant's
trial. Additionally, in Williams, the defendant offered "numerous
instances of inaction by counsel to demonstrate" that the defendant
was denied effective assistance of counsel. Williams, 93 Ill. 2d at
324. In comparison, defendant in the instant case cites only one
instance at trial, analyzed below, where she alleges that Swano's
representation was deficient. The circumstances surrounding the
investigation of Swano and the nature of defendant's trial do not
meet the unique set of circumstances found to exist in Williams.
See Franklin, 167 Ill. 2d at 19. Thus, defendant does not have a
right to a new trial under the unique "interests of justice"
standard applied in Williams.
Furthermore, defendant's attempts to label this issue as a
conflict of interest are unavailing. In People v. Titone, (1992), the defendant similarly contended that he was
entitled to a new trial because his attorney suffered from an
"avalanche" of personal problems during the time of the defendant's
trials, including being a target of "Operation Greylord"
investigation. This court held that the defendant's allegations of
conflict of interest were really just an ineffective-assistance-of-
counsel claim and, thus, must be analyzed under Strickland. Titone,
151 Ill. 2d at 31-32. Like Titone and Franklin, defendant's claims
in the instant case regarding her trial counsel must be analyzed in
light of the Strickland tests for effectiveness of counsel.
Under Strickland, defense counsel is ineffective only if: (1)
counsel's performance was deficient in that it fell below an
objective standard of reasonableness; and (2) counsel's deficient
performance prejudiced the defendant. Strickland, 466 U.S. at 687-
88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Albanese,
, 526 (1984). A strong presumption exists that
defense counsel's performance falls within the "wide range of
reasonable professional assistance" and, thus, is not deficient.
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at
2065.
The only alleged deficiency defendant raises regarding Swano's
trial performance is that he failed to cross-examine LaKevin Norris
about inducements the prosecution may have offered for his
testimony. As detailed earlier, LaKevin testified in the instant
case as a prosecution witness, while his mother, Olivia Norris,
testified for the defense. The record reveals that during the
State's case in chief, prosecutors informed the trial court that
Olivia and her son, LaKevin, had failed to appear pursuant to a
subpoena. As a result, a bench warrant was issued for Olivia's
arrest. Shortly after the State rested its case, Olivia and LaKevin
were located in Minneapolis and Olivia voluntarily returned to
Chicago with LaKevin. The State was allowed to reopen its case so
that LaKevin could testify.
After LaKevin's testimony, a conference was held regarding the
disposition of the warrant against Olivia. The following exchange
occurred:
"MR. SWANO [defense attorney]: I'm asking that she
be ordered to return to court tomorrow or whenever her
next court appearance is necessary in this case.
THE COURT: How do we know she'll return?
MR. SWANO: We don't. We'll keep her in custody?
THE COURT: That's right. We'll keep her in custody.
We'll execute the warrant and keep her in custody.
MR. SWANO: That's fine.
THE COURT: Do you want her--
MR. SHERWIN [Assistant State's Attorney]: We
promised LaKevin we wouldn't put her in jail.
MR. SWANO: Oh, you promised LaKevin you wouldn't put
his mother in jail.
MR. SHERWIN: You want to put her in jail?
MR. SWANO: No.
MR. SHERWIN: Then make it--on the record you did.
MR. SWANO: That's some sort of inducement to Kevin
[sic] that we didn't know about.
MR. SHERWIN: Said it was up to the judge.
MR. SWANO: That's not exactly what Mr. Sherwin said.
THE COURT: Are you asking that she be taken in
custody or do you want to keep it--
MR. SHERWIN: We'll leave it at your discretion,
Judge."
Subsequently, the trial court ordered that Olivia be taken into
custody. Defense counsel did not ask for LaKevin to be recalled so
that he could cross-examine LaKevin about any inducement the State
had offered for his testimony.
Defendant contends that if LaKevin testified for the State in
exchange for a promise that his mother would not be arrested, then
such a fact would provide substantial impeachment of LaKevin's
credibility. Nevertheless, defendant's claim of deficient cross-
examination of LaKevin is meritless. Generally, the decision
whether or not to cross-examine or impeach a witness is a matter of
trial strategy which cannot support a claim of ineffective
assistance of counsel. People v. Pecoraro, 175 Ill. 2d 294, 326
(1997); Franklin, 167 Ill. 2d at 22.
Defense counsel could have reasonably determined that it would
be ineffective to question LaKevin regarding the prosecutor's
inducement not to jail his mother. After reviewing the exchange
quoted above, it is not conclusive as to whether the State actually
made such a promise, given the prosecutor's explanation that he
"said it was up to the judge." Defense counsel could have
reasonably decided that the jury would not believe that the State
had made any promises to LaKevin since his mother was jailed
anyway. In addition, defense counsel extensively cross-examined
LaKevin on a number of matters, including his prior inconsistent
statements, his inability to accurately recall the events, and the
fact that he previously met with prosecutors and discussed his
testimony.
Defendant's sole complaint regarding her counsel's trial
performance is directed at trial strategy. This court has
repeatedly held that an ineffective-assistance-of-counsel claim
which arises from a matter of defense strategy will not support a
finding of ineffective representation. Franklin, 167 Ill. 2d at 22;
Szabo, 144 Ill. 2d at 531; People v. Flores, , 81-82
(1989). Notwithstanding defendant's argument that cross-examination
of LaKevin might have been treated differently, we cannot say that
trial counsel's approach fell outside the wide range of reasonable
professional assistance and, thus, defendant's trial counsel was
not deficient.

III. SENTENCING ISSUES
Defendant raises five issues concerning her sentencing
proceedings and two challenges to the constitutionality of the
Illinois death penalty statute. Defendant argues that: (1) her
waiver of the right to a jury for capital sentencing was
constitutionally invalid under the sixth, eighth, and fourteenth
amendments because she was advised that the jurors had to be
unanimous in a decision not to impose death; (2) she was deprived
of conflict-free counsel because her attorney also represented a
State's witness during the capital sentencing proceedings; (3) she
was denied effective assistance of counsel because her attorney
failed to investigate and present mitigating evidence concerning
her behavior after incarceration; (4) her death sentence is
excessive given the substantial mitigation evidence presented and
lack of aggravation evidence; and (5) her death sentence is
unreasonably disparate from the natural life term of imprisonment
imposed on codefendant Eddie Williams. Regarding the
constitutionality of the Illinois death penalty statute, defendant
argues that the statute: (1) places a burden of proof on a
defendant which precludes meaningful consideration of mitigation;
and (2) does not sufficiently minimize the risk of arbitrarily
imposed death sentences. We first address defendant's arguments
regarding the excessiveness of her death sentence.
In order to prove its factors in aggravation during the second
phase of the sentencing proceedings, the State relied on the
evidence adduced at trial, as well as the additional testimony of
four witnesses. Mary Cross testified that during the summer of 1986
she was with Valerie McDonald in a department store when they
encountered Louia and defendant together. Then in early September
1986, Cross was at the McDonalds' home when Valerie received a
telephone call. Valerie instructed Cross to listen in on the call,
so Cross picked up an extension. Cross testified that she
recognized the caller's voice as defendant's and heard defendant
tell Valerie that she was not going to win and might as well give
up.
Officer Robert Clark again testified to the altercation
between defendant and Valerie McDonald which occurred on July 4,
1986. Clark testified that after he recovered the handgun from
under the front seat of Louia McDonald's car, he showed it to
Louia, who denied that it belonged to him. Clark testified that
Louia then claimed that defendant had carried a gun in the past.
Clark also testified that Valerie claimed defendant previously
threatened her with a gun.
Detective Raymond Kamenski testified that on June 25, 1987, he
spoke with defendant and she denied knowing Eddie Williams. Shortly
thereafter, Kamenski told defendant that fingerprints were
recovered from her car and, after learning this information,
defendant admitted knowing Williams and stated that he may have
been in her car.
Detective Phillip Mannion testified that he arrested Louia
McDonald on March 17, 1990, for obstruction of justice for
absenting himself and Lakeya during defendant's trial. The State
introduced a statement Louia gave to Mannion that day, which had
been reduced to writing and signed by Louia. In the statement,
Louia asserted that defendant told him that she did not want either
Louia or Lakeya to testify at her trial because it would hurt her
case. Louia also claimed in the statement that defendant called him
at work on February 28, 1990, and informed him that the police had
a warrant for his arrest. That night, Louia met with defendant and
three of her sisters. The four women persuaded Louia to take Lakeya
out of school and "hide out." Louia and Lakeya then went to
defendant's sister's home that night and stayed until March 15,
1990, the day after defendant was convicted. Lakeya returned to
school the next day. The parties stipulated that school records
would show that Lakeya was absent from March 1, 1990, through March
15, 1990. In addition, records from Louia's work place would
demonstrate that he missed work from March 2, 1990, through March
9, 1990.
Defendant then presented the testimony of four mitigation
witnesses. Among the witnesses were defendant's older sister and
former brother-in-law, who both testified about defendant's family
life. Defendant is the next to youngest of 10 living siblings and
a native of Belzoni, Mississippi. Defendant moved to Chicago in
1967 to make a better life for herself and to be closer to most of
her siblings. Defendant has four children, including a son,
Roydric, who was born with cerebral palsy. Defendant brought
Roydric home for the first year after his birth but, because of his
need for constant care, eventually had to have him permanently
hospitalized. Before her incarceration, defendant maintained as
much contact with Roydric as possible, given that he was living in
a distant care center. These witnesses also testified that
defendant was a caring and loving person whom they had never known
to be violent or commit illegal acts.
Another mitigation witness was Reverend James R. Goodwin, a
local pastor who serves as a volunteer chaplain at the women's
division of the Cook County jail. Goodwin testified that he became
acquainted with defendant through this ministry and that he saw
nothing in defendant that would suggest she was a violent person.
Goodwin also testified that defendant leads Bible classes for her
fellow inmates and also corresponds with members of his
congregation.
In addition to the live testimony, the trial court took
judicial notice of the testimony of the character witnesses
defendant presented at trial. This testimony consisted of
defendant's former employer and several fellow church members, who
all testified to defendant's reputation for peacefulness and
honesty. In addition, the trial court ordered a presentencing
investigation report which revealed, among other things, that
defendant had no prior criminal record.
Closing arguments were held and defendant spoke in allocution.
Subsequently, the trial court sentenced defendant to death,
observing that a lesser sentence would denigrate the seriousness of
the offense. Defendant filed a motion to vacate her death sentence,
which was supported by numerous affidavits and letters from
defendant's friends and neighbors as well as clergy members. The
trial court denied defendant's motion.
Defendant contends that the sentence of death is excessive
given the substantial evidence in mitigation she presented.
Although she acknowledges the seriousness of this crime, defendant
argues that her otherwise exemplary character and lack of criminal
record outweigh the aggravating evidence and she urges this court
to vacate her death sentence and remand for the imposition of a
sentence other than death.
In support of her contention, defendant notes that at the time
of the shooting she had no criminal record at all and no history of
violence. The lack of a significant criminal history is a statutory
mitigating factor. Ill. Rev. Stat. 1987, ch. 38, par. 9--1(c)(1).
Defendant also argues that she led an exemplary life for 39 years
prior to this offense, serving as an upstanding member of her
community and church. Defendant observes that she was steadily
employed her entire adult life and also worked her way through
college. Defendant notes that she is the single mother of four
children, including one who has been hospitalized most of his life.
The State contends that defendant's death sentence is not
excessive. The State points out that defendant was eligible to
receive the death penalty because she procured another to commit
murder, a statutory aggravating factor. See Ill. Rev. Stat. 1987,
ch. 38, par. 9--1(b)(5). The State argues that it is clearly the
legislative intent to impose the most severe sanction for this type
of offense. The State also contends that defendant's case contains
no special circumstances, such as an extreme emotional disturbance,
which would justify vacating her death sentence. Rather, the State
argues that the fact that defendant and her accomplices planned and
acted out the murder plot over a three-day period demonstrates that
the crime was not a spontaneous, passionate reaction to a
triggering event.
This court will generally not interfere with a trial court's
determination of sentence unless the trial court has abused its
discretion. See, e.g., People v. Blackwell, 171 Ill. 2d 338, 360
(1996); People v. Gonzalez, , 89 (1992).
Nevertheless, this court has previously vacated death sentences
where such an extreme penalty was found to be inappropriate, in
light of any relevant mitigating factors. Blackwell, 171 Ill. 2d at
364; People v. Leger, , 408 (1992); People v.
Johnson, , 282 (1989); People v. Buggs, , 295 (1986); People v. Carlson, , 590 (1980). In
determining whether a death sentence was properly imposed, this
court considers "the character and record of the individual
offender or the circumstances of the particular offense." Woodson
v. North Carolina, , 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (1976) (plurality opinion). This court is also
guided by the recognition that "each capital case is unique and
must be evaluated on its own facts, focusing on whether the
circumstances of the crime and the character of the defendant are
such that the deterrent and retributive functions of the ultimate
sanction will be served by imposing the death penalty." Johnson,
128 Ill. 2d at 280. Therefore, we give less deference to the trial
court on this issue than we would in other sentencing matters.
Blackwell, 171 Ill. 2d at 361.
An analysis of previous cases where this court has found a
death sentence to be excessive is useful. In People v. Carlson, (1980), the defendant was convicted of the murders of
his ex-wife and a police officer. The defendant and his ex-wife had
planned to remarry, but his ex-wife postponed the wedding because
she had a new boyfriend. Soon after learning this news, the
defendant purchased a gun and ammunition, loaded the gun, and
placed it in his car. The next day, the defendant twice drove by
his ex-wife's house and "got mad" when he saw a strange car in the
drive way, assuming she was entertaining the man. The defendant
then purchased two gasoline cans, filled them with gasoline, and
stored them in the trunk of his car. The next day, the defendant
went to his ex-wife's house and shot her 10 times. The defendant
then poured gasoline throughout the house and set it on fire. When
police later tried to arrest the defendant, he shot and killed one
of the officers. In vacating the defendant's death sentence, this
court emphasized that the defendant had no prior criminal record,
that the crimes were an isolated incident, and that the defendant
had suffered severe emotional and physical problems before the
shootings.
In People v. Buggs, (1986), the defendant was
convicted of the murders of his wife and one of their children. The
defendant and his wife were in their bedroom arguing about his
wife's infidelity. During the argument, the defendant's wife told
him that he was not the father of two of their children. At that
point, the defendant became enraged and took a gasoline can he had
earlier stored in the bedroom and poured gasoline on his wife. The
defendant then splashed gasoline down the stairs and set fire to
the house. The defendant's wife and one of their children died in
the fire. In reducing the defendant's death sentence, this court
noted that the defendant had a history of marital problems, had no
history of serious criminal activity, and that this event was an
isolated incident.
Finally, in People v. Leger, (1992), the
defendant murdered both his estranged wife and ex-wife. Five days
before their divorce was to be final, the defendant shot and killed
his estranged wife. Later that same evening, the defendant drove to
a neighboring county and broke into his ex-wife's home. The
defendant then shot his ex-wife and her new husband each several
times, killing his ex-wife and wounding her husband. In reducing
the defendant's sentence to a term of natural life imprisonment,
this court noted that the defendant, among other things, had a
history of marital and emotional problems and, other than two
battery convictions related to his marital discord, had no history
of serious criminal activity.
We find that the mitigating factors emphasized in the cases
cited to be comparable to those present in the instant case.
Defendant presented substantial mitigating evidence at sentencing.
Like the cases discussed above, defendant had no criminal record.
Prior to this offense, the only encounter defendant ever had with
the police stemmed from the emotional problems resulting from her
relationship with Louia. Further, the testimony at trial and
sentencing showed that defendant's previous marital relationship
was not disruptive, defendant was not abusive to her children and
had no history of prior violence.
The record contains other relevant mitigation evidence. Prior
to trial, dozens of defendant's friends and family members wrote
letters to the trial court requesting a reduction in defendant's
bond. In addition, the record contains 21 letters and affidavits
which were written in support of defendant's motion to vacate her
death sentence. All of these documents describe defendant as a
loving, caring, generous individual who is a good mother and hard
worker. Moreover, several members of the clergy, who know defendant
through their ministries at either the Cook County jail or the
penitentiary, stated that defendant served as a positive role model
for other inmates by teaching Bible classes and encouraging them to
improve themselves. One minister who had counseled defendant stated
that defendant has shown great remorse for what she has done.
The State is correct that defendant was eligible for the death
penalty because she hired another to commit murder. Nevertheless,
the legislature did not intend that every defendant who qualifies
for the death penalty receive the death sentence. Blackwell, 171 Ill. 2d at 364, citing Johnson, 128 Ill. 2d at 277. Rather than
focus on the fact that this offense was a "contract killing," we
are compelled to focus on the individual offender and the
circumstances of the particular offense (Johnson, 128 Ill. 2d at
280). Doing so, we see an individual with no past criminal record
who would in all probability be leading a life acceptable to our
society had not her unfortunate affair triggered this tragic
sequence of events. See Carlson, 79 Ill. 2d at 590. Where a
defendant has been convicted for a murder which seems to be an
aberration brought on by special circumstances, which in all
likelihood will not be repeated, neither the deterrent nor the
retributive functions of the death penalty are served. Johnson, 128 Ill. 2d at 278.
There is no question that this was an abhorrent crime. Valerie
McDonald was the innocent victim of a brutal and violent attack
which occurred in the presence of her minor children and was the
culmination of her husband's extramarital affair. Defendant
unfortunately became involved in a romantic relationship with a
married man and became pregnant as a result of the affair.
Subsequently, the man broke his promise to defendant that he would
leave his wife for her. Defendant sadly blamed Valerie as the
source of all her problems. While defendant's jealousy and rage are
no excuse for her horrendous actions, we nevertheless agree that
she "has led a relatively blameless life except for this one
explosive episode" and the retributive and deterrent functions of
the death penalty will not be served by putting her alone to death
for this offense. Johnson, 128 Ill. 2d at 282; People v. Gleckler,
, 171 (1980). Therefore, we hold that the penalty of
death should not be imposed upon defendant and, accordingly, vacate
her death sentence.
In a related issue, defendant contends that her sentence of
death is unreasonably disparate from the natural life sentence
received by codefendant Williams, who was convicted of murder,
conspiracy to commit murder and armed violence for his
participation as the shooter in this offense. As evidence of
disparate sentencing, defendant points out that Williams' prior
record, which includes convictions for voluntary manslaughter,
felony theft, burglary, and criminal trespass to a vehicle, is much
more extensive than that of defendant. Moreover, defendant argues
she has a much greater potential for rehabilitation than Williams,
who, in return for $400, murdered Valerie McDonald less than four
months after his release from prison after serving a sentence for
a voluntary manslaughter conviction. Finally, defendant argues that
she is no more culpable than Williams, who actually shot and killed
Valerie McDonald.
Defendant maintains that her disparate sentence violates the
constitutional prohibition against the arbitrary and capricious
imposition of the death penalty. Because we have already determined
that defendant's death sentence is excessive, we need not address
this issue. Nevertheless, we recognize that there likely would not
have been a murder if defendant had not paid Golden and Williams
$500. However, we also observe that defendant would probably not
have acted on her jealous rage towards Valerie if defendant had not
been associated with such ready and able accomplices. Golden
readily volunteered to help defendant and then took her directly to
a place where Golden knew they could hire a killer. Golden then
approached Williams and negotiated the deal, keeping a commission
for herself. When he was propositioned by Golden, Williams did not
hesitate before agreeing to kill an unknown woman for a mere $400,
notwithstanding the fact that he had just completed a prison term
for killing another person. After securing Williams, Golden then
proceeded to her cousin's home, where she knew they could quickly
obtain a murder weapon.
Further, Williams and Golden both had several opportunities to
abandon the conspiracy and prevent the death of Valerie McDonald.
When the two failed to find the victim the first night, they
returned the gun to its owner. Although they could have withdrawn
from the scheme at that point, they nevertheless returned dutifully
to work the next night to complete the odious deed. Williams had
the final opportunity to preserve Valerie's life when he saw her
arrive home with her family, yet instead he chose to shoot her in
the presence of her young children. While we do not minimize the
role that defendant played in this offense, we recognize that she
had no prior criminal history and her rehabilitative prospects are
not demonstrably poorer than her codefendants who received terms of
imprisonment. See Gleckler, 82 Ill. 2d at 171.
Defendant raises a number of other issues regarding her
sentencing hearing and the constitutionality of the death penalty
statute. However, because we find the death penalty to be
inappropriate in this case, we need not address these arguments.

CONCLUSION
For the reasons set forth herein, the convictions are
affirmed. The death sentence is vacated. The cause is remanded to
the circuit court of Cook County with directions to impose a
sentence other than death.

Convictions affirmed;
death sentence vacated;
cause remanded with directions.

CHIEF JUSTICE FREEMAN, specially concurring:
Although I join in Justice McMorrow's separate opinion, I
write briefly to address a point raised in the dissent. The
dissenting justices note that the present case is distinguishable
from the cases relied upon by the majority because those cases
involved defendants who were acting in response to what this court
considered "mental or emotional disturbances or abnormally
stressful circumstances." Slip op. at 47 (Miller, J., concurring in
part and dissenting in part, joined by Heiple and Bilandic, JJ.) To
the extent that this statement can be viewed as standing for the
proposition that without such a "triggering" event, any argument
regarding excessiveness must fail, I disagree. In the past, this
court has recognized that each capital case is unique and,
therefore, must be evaluated on its own facts in order to determine
the appropriateness of the death sentence. See People v. Johnson,
, 280 (1989). Our ability to reverse a sentence of
death on the basis of excessiveness is not restricted to only those
cases containing explosive or otherwise sudden mental or
psychological episodes. In my view, the Johnson-Carlson-Buggs line
of cases does not stand for the proposition that this court will
vacate a sentence of death whenever a defendant can demonstrate the
existence of two mitigating factors, i.e., the lack of a
significant history of prior criminal conduct combined with a
sudden, explosive episode of violence, resulting from extreme
mental or emotional disturbance. More important, I do not read
these cases to command affirmance of the death sentence in the
absence of either or both of these factors of mitigation. Rather,
this court must remain cognizant of the fact that the unique nature
of capital cases requires "consideration of the character and
record of the individual offender and the circumstances of the
particular offense." People v. Pasch, , 201 (1992),
quoting Woodson v. North Carolina, , 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (1976). Consequently, this court is
duty-bound to reverse a capital sentence on this basis whenever the
record demonstrates that the imposition of the sentence would not
serve the deterrent and retributive purposes of capital sentencing.
See People v. Tye, , 30 (1990), citing Gregg v.
Georgia, , 183, 49 L. Ed. 2d 859, 880, 96 S. Ct. 2909,
2929-30 (1976) (plurality opinion). Contrary to the implication
raised by the dissent, Carlson and its progeny represent "nothing
more, and nothing less, than a recognition of this court's
responsibility in every death penalty case to carefully consider
the character of the defendant and the circumstances of his crime
before we sanction the termination of his life." Tye, 141 Ill. 2d
at 37 (Ryan, J., concurring in part and dissenting in part, joined
by Clark and Calvo, JJ.).

JUSTICE McMORROW joins in this special concurrence.

JUSTICE McMORROW, also specially concurring:
I write separately because I do not agree that the defendant's
death sentence should be vacated for the reasons stated in the
majority opinion. I agree with Justice Miller's partial dissenting
opinion to the extent that it rejects the majority's
characterization of the defendant's actions in this case as an
"explosive episode." Nonetheless, I concur with the majority's
disposition insofar as it affirms the defendant's conviction and
vacates the death penalty because under the facts of this case I
believe that the defendant's death sentence is unreasonably
disparate to the natural life sentence imposed on her codefendant,
Eddie Williams.
The majority opinion states that although jealousy and rage
are no excuse for murder, the defendant lead a relatively blameless
life except for this one "explosive episode." The majority then
concludes that this case is analogous to a line of cases in which
this court has vacated the death penalty where the defendant acted
impulsively in response to mental or emotional disturbances or
abnormally stressful circumstances. People v. Blackwell, 171 Ill. 2d 338 (1996); People v. Leger, (1992); People v.
Johnson, (1989); People v. Buggs,
(1986); People v. Gleckler, (1980); People v.
Carlson, (1980). Because I find that these cases are
distinguishable from the facts and circumstances of the present
case, I do not agree that they serve as the proper justification
for vacating the trial court's decision to sentence the defendant
to death. I agree with the dissenting opinion's statement that the
murder in this case was the culmination of an escalating history of
the defendant's aggression and hostility toward the victim. I
further agree that the defendant's actions were not an immediate
response to a stressful event. Rather, the defendant, over a
lengthy period of time, planned to take the victim's life in order
to fulfill her own desire to continue an extramarital affair with
the victim's husband.
Despite my disagreement with the majority's rationale, I
nonetheless concur in the judgment, based on my analysis of a
related issue raised by the defendant in her supplemental brief,
i.e., whether the defendant's death sentence is unreasonably
disparate to the life sentence imposed on her codefendant, Eddie
Williams. In my view, this is the pivotal sentencing issue raised
on appeal. Although the majority acknowledges the issue and offers
some analysis, it declines to answer the question. Thus, I offer my
reasons for concurring in the disposition reached in this case.
Following a jury trial, codefendant Williams was convicted of
the first degree murder of Valerie McDonald, conspiracy to commit
murder and armed violence. The jury determined beyond a reasonable
doubt that Williams fired the shot which resulted in the victim's
death. Following a separate hearing, the jury found Williams
eligible for the death penalty and found no mitigating
circumstances sufficient to preclude its imposition. Accordingly,
the trial court sentenced Williams to death. On appeal to this
court, we vacated Williams' death sentence and remanded the cause
for a new sentencing hearing based upon the cumulative errors which
occurred during the sentencing phase of Williams' trial. People v.
Williams, (1994). Following a new sentencing hearing
in 1995, a jury found Williams death eligible. However, the jury
was unable to reach a unanimous decision with respect to whether
there existed mitigating factors sufficient to preclude a death
sentence. Therefore, the trial court sentenced Williams to a term
of natural life in prison without parole.
On appeal in the present case, the defendant maintains that
Williams' culpability for the murder of Valerie McDonald was
"measurably greater" than her culpability. See People v. St.
Pierre, , 514 (1992) (death sentence upheld because
the culpability of the defendant who delivered the fatal blows was
"measurably greater" than that of the individuals who conceived the
plan to murder); People v. Ashford, (1988) (death
sentence upheld where defendant was the triggerman, firing nearly
all of the fatal shots which killed four victims). In the
alternative, she argues that she and Williams were equally
culpable. Notably, the State, in its supplemental brief, repeatedly
concedes that defendant Smith was no more culpable than codefendant
Williams. The defendant contends that because Williams' character
and background are more contemptible, his criminal record more
extensive and his prospects for rehabilitation significantly poorer
than the defendant's, Williams' life sentence for the murder of
Valerie McDonald renders her death sentence unconstitutional (U.S.
Const., amend. VIII; Ill. Const. 1970, art. I, 11).
In sentencing the defendant to death, the trial court in this
case characterized the defendant's actions in orchestrating the
murder as cold and callous. The court also found that the defendant
acted with a malignant heart, and that she served as the moving
force behind the victim's murder. However, the trial court in the
case at bar did not have the opportunity to consider Williams'
lesser sentence because Williams' sentence was reduced to life
imprisonment after the death penalty had been imposed on defendant
Smith.
This court gives great deference to the trial court in
sentencing matters (Ashford, 121 Ill. 2d at 88). Deference to a
trial court's sentencing judgment is not warranted "where an
arbitrary and unreasonable sentencing disparity exists between
equally culpable codefendants" (Ashford, 121 Ill. 2d at 88). In
People v. Page, (1993), we considered the issue of
whether the defendant's death sentence should be vacated because
his sentencing jury was precluded from hearing nonstatutory
mitigation evidence that his codefendant had pled guilty and was
sentenced to life imprisonment. We held that evidence of a
codefendant's lesser sentence is not a relevant mitigating factor
for consideration at the "trial level" in a death penalty case
because the safeguard to prevent unjustified disparity between
equally culpable defendants exists at the "appellate level." Page,
156 Ill. 2d at 272. Therefore, I believe it is appropriate to
address the disparity between the defendant's and Williams'
sentences at this juncture.
Comparative proportionality review in death penalty cases is
not required by the United States Constitution (Pulley v. Harris,
, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984)) and it is not
a feature of the capital sentencing process under the Illinois
Constitution (People v. Jimerson, (1989)). However,
the defendant is not asking this court to compare her case to other
unrelated cases with similar facts. Rather, she requests that this
court compare her death sentence with the life sentence imposed on
her accomplice.
This court previously has considered the issue of whether a
sentence of death is disproportionately harsh in comparison with a
less severe sanction imposed upon a codefendant convicted of the
same crime. See People v. Towns, 174 Ill. 2d 453 (1996); People v.
Byron, (1995); People v. Burt,
(1995); People v. Thompkins, 48 (1994); St. Pierre,
; People v. Flores, (1992); Ashford,
; People v. Gleckler, (1980). This
court has consistently recognized that it has a duty to prevent
arbitrary and capriciously imposed death sentences (Burt, 168 Ill. 2d at 80; People v. Bean, (1990); Gleckler, 82 Ill.
2d 145), and a duty to ensure that cases in which a death sentence
is imposed are rationally distinguished from those in which a death
sentence is not imposed (St. Pierre, 146 Ill. 2d at 513). Judicial
review of codefendants' sentences in a capital case is appropriate
in order to avoid a disparate imposition of the death penalty.
Page, 156 Ill. 2d at 270-71.
In reviewing whether a death sentence is proper or arbitrary,
prior decisions of this court have focused on the nature of the
offense and each individual's relative involvement or culpability,
the defendant's character and background, including criminal
records, and the defendant's potential for rehabilitation. Burt,
168 Ill. 2d at 80; Flores, 153 Ill. 2d at 294. Similarly situated
individuals should not be given arbitrary or unreasonably disparate
sentences. Burt, 168 Ill. 2d at 80.
The State argues that the record in the case at bar indicates
that defendant is "as culpable" as Williams and that defendant's
culpability is "just as great" as Williams' culpability. The State
does not argue that defendant is more culpable than Williams. If
she were more culpable, then she would be more deserving of the
death penalty, but, again, the State does not and cannot argue that
defendant was more culpable than Williams. As the majority opinion
recognizes, Williams served as a ready and willing accomplice to
the victim's murder. He had several opportunities to abandon the
conspiracy and prevent the victim's death. It was Williams who had
the final opportunity to spare the victim's life, but instead chose
to fire the fatal shot. See, e.g., Byron, 164 Ill. 2d at 303.
Comparing the character and background of defendant and
Williams does not provide a sufficient basis for the sentence
disparity. I find no evidence that defendant had ever been arrested
prior to her arrest in connection with this murder. The defendant
has no prior criminal convictions. The record contains numerous
letters from individuals who recounted the defendant's positive
life accomplishments prior to her involvement in this crime. In
contrast, Williams' criminal background is extensive and serious.
At the time that Williams murdered the victim in the present case,
he was on probation for voluntary manslaughter and had been
released from prison just a few months earlier. The voluntary
manslaughter conviction stemmed from an incident in which Williams
and another individual beat and strangled a man to death in his
bed. Williams also had convictions for felony theft and burglary,
retail theft and criminal trespass to a vehicle. Other testimony in
the record shows that in 1978 Williams beat a woman named Bridget
Williams. In 1979, he stole a woman's purse; and in 1981, Williams
threatened to shoot a man with a loaded revolver.
The record further shows that the defendant has greater
rehabilitative potential than her codefendant. Several prison
chaplains testified or submitted affidavits stating that the
defendant's attitude and behavior during her incarceration show
that she has the capacity to be a productive member of prison
society. The chaplains attested to the defendant's leadership
skills and her positive influence on the other inmates. The
defendant was described as a cooperative prisoner who is concerned
for others.
In contrast, Williams' rehabilitative prospects appear to be
poor. While imprisoned for voluntary manslaughter from 1982 to
1987, Williams received approximately 25 disciplinary tickets for
various offenses, including threatening correctional officers. A
clinical psychologist testified that Williams suffers from two
personality disorders, including an antisocial personality. Most
notably, Williams committed the murder in the case at bar after
being released from prison only a few months earlier and while he
was on probation for voluntary manslaughter.
It is the duty of this court to vacate a death sentence where
an unreasonable disparity exists between equally culpable
codefendants. Ashford, 121 Ill. 2d at 88. The overriding principle
in death penalty cases is that each case is unique and sentences
must be evaluated on their individual facts. Johnson, 128 Ill. 2d
at 280. In my opinion, the facts of this case indicate that the
defendant's culpability is no greater than that of her codefendant,
and, after comparing their character and background, criminal
history and potential for rehabilitation, I find that the evidence
shown in the record does not reasonably support the disparate
sentences imposed on the defendant and Williams. Cf. People v.
Jackson, , 124-25 (1991). This is not to say that a
defendant who initiates a murder-for-hire plan cannot receive the
death penalty where a codefendant who fires the fatal shot receives
a lesser sentence. Rather, I believe that in the facts of the
present case there is no rational basis on which to affirm the
death sentence received by the defendant when her death sentence is
compared to the life sentence imposed on Williams. Therefore, I
conclude and would hold that the defendant's death sentence should
be vacated and she, like Williams, should be sentenced to life
imprisonment. For the reasons stated, I concur only in the judgment
of the majority opinion.

CHIEF JUSTICE FREEMAN joins in this special concurrence.

JUSTICE MILLER, concurring in part and dissenting in part:
I concur in that part of the majority opinion that affirms the
defendant's convictions. I do not agree, however, with the
majority's conclusion that death is an excessive sentence in this
case. In my view, the death penalty is appropriate punishment here,
and I would therefore consider in this appeal the remaining
sentencing issues raised by the defendant.
The record in this case provides ample support for the trial
judge's decision to sentence the defendant to death. The victim was
shot outside her home as she and her family were returning from
church one evening, and the victim died as a result of her injuries
two days later. The victim was married to the father of the
defendant's child, and the defendant had paid a codefendant to kill
the wife. By hiring another person to commit the murder, the
defendant was eligible for the death penalty under section 9--
1(b)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38,
par. 9--1(b)(5)).
The defendant argues, and the majority agrees, that the
present case is similar to other cases in which this court has
vacated death sentences as excessive. See People v. Blackwell, 171 Ill. 2d 338 (1996); People v. Leger, (1992); People
v. Johnson, (1989); People v. Buggs, (1986); People v. Gleckler, (1980); People v.
Carlson, (1980). Notably absent from the present
case, however, are the mitigating circumstances this court has
considered important in earlier decisions in determining that death
is an inappropriate punishment. In general terms, cases in which
this court has previously vacated death sentences as excessive have
involved defendants who were acting in response to what the court
in those cases found to be mental or emotional disturbances or
abnormally stressful circumstances. Many of those cases have also
involved defendants who had led blameless lives and had little, if
any, prior contact with the police. See People v. Tye, , 30 (1990).
The present case is much different from the pattern of our
previous decisions in which the death penalty has been found to be
an excessive sanction. What distinguishes this case from the others
is the history of the defendant's antagonism toward the victim and
the amount of careful planning done by the defendant in preparation
for the offense. First, the victim's murder was the culmination of
a lengthy and escalating history of aggression by the defendant
against the victim. A year before the murder, the defendant had
gone to the victim's residence while armed with both a gun and a
hammer. At that time, the defendant and the victim became involved
in a fight, which was broken up by a police officer. The victim
told the officer that the defendant had previously threatened her
with a gun. On a later occasion, the defendant made a threatening
telephone call to the victim.
In addition, the murder committed in the present case was not
the defendant's own immediate response to a particularly stressful
event but a carefully plotted scheme. The defendant took extensive
steps in preparation for the offense. Over the course of several
days, the defendant hired someone to commit the murder and located
a weapon that could be used in the commission of the crime. By
acting through intermediaries and by using someone else's handgun,
the defendant's apparent goal was to cover up, as well as she
could, her own role in the crime. The defendant's efforts at
concealing her responsibility for the murder did not cease with the
victim's death. The defendant later induced the victim's husband to
go into hiding with one of the children so that they could not
testify at trial.
In concluding that death is an excessive sentence in this
case, the majority emphasizes that the defendant had no significant
history of criminal conduct and observes that the defendant's prior
contacts with the police "stemmed from the emotional problems
resulting from her relationship with Louia." Slip op. at 36. The
majority overstates this aspect of the defendant's background.
Although the absence of a significant criminal record is
mitigating, it is not dispositive but is simply one of the various
circumstances that the sentencing authority--judge or jury--must
consider in determining whether to sentence a particular defendant
to death. Ill. Rev. Stat. 1987, ch. 38, par. 9--1(c)(1). We have
never held that the death penalty statute is limited in its
application to career criminals; in a number of cases, this court
has affirmed death sentences imposed against defendants who
possessed relatively clean records. See, e.g., People v. Cole, 172 Ill. 2d 85, 110-11 (1996) (defendant did not have prior criminal
record); People v. Tenner, , 357-59, 386-87 (1993)
(defendant received probation for burglary conviction in 1968;
evidence also presented of reports to police of domestic disputes,
and of occasion in which defendant, stopped for traffic violation,
was carrying loaded handgun); People v. Gosier, ,
139, 149 (1991) (defendant previously received probation for
assault of police officer); People v. Tye, , 29-31
(1990) (defendant did not have prior criminal record). As in the
present appeal, the capital offenses committed in a number of these
cases were ascribed to problems in romantic relationships. See
Cole, 172 Ill. 2d 85; Tenner, ; Gosier, .
In deciding to impose the death penalty in this case, the
trial judge explained, in this bench proceeding:
"[A]nd I have to say that the cold, callous acts of the
defendant, the moving force behind the murder of Valerie
McDonald, bespeak[] a woman with a malignant heart. These
acts outweigh any mitigation which was presented.
We must send a message to the community that the
criminal justice system will not tolerate such acts. Any
lesser sentence than the maximum would denigrate the
seriousness of this offense."
The majority's decision to vacate the defendant's death sentence in
favor of a term of imprisonment accomplishes exactly what the trial
judge was seeking to avoid.
The majority properly rejects the defendant's challenge to the
adequacy of the evidence of her guilt. The majority errs, however,
in vacating the defendant's death sentence as excessive. If the
evidence in this case is sufficient to sustain the defendant's
convictions, as the majority concludes, then I believe that the
evidence is also sufficient to sustain the defendant's sentence of
death. See People v. Sanchez, , 276 (1986) ("To be
convinced of defendant's guilt is also to be convinced of the
ruthless manner in which he acted"). I would therefore reject the
defendant's contention that death is an excessive sentence, and I
would consider in this appeal the defendant's remaining challenges
to the sentencing phase of the proceedings below.

JUSTICES HEIPLE and BILANDIC join in this partial concurrence
and partial dissent.

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