People v. Mulero

Annotate this Case

People v. Mulero, No. 78932

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. 78932--Agenda 1--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARILYN MULERO,
Appellant.
Opinion filed May 22, 1997.

JUSTICE BILANDIC delivered the opinion of the court:
Defendant, Marilyn Mulero, was charged by indictment in Cook
County with four counts of murder (720 ILCS 5/9--1(a)(1), (a)(2)
(West 1992)), two counts of conspiracy to commit murder (720 ILCS
5/8--2, 9--1 (West 1992)) and one count of unlawful use of a
firearm by a felon (720 ILCS 5/24--1.1(a) (West 1992)), arising out
of the May 12, 1992, shooting deaths of Jimmy Cruz and Hector
Reyes. Defendant subsequently pled guilty to the four counts of
murder. The trial court accepted defendant's guilty pleas and
entered findings of guilt on all four counts of murder. Finding
that certain counts merged with others, the trial court entered
judgment on two counts of intentional murder.
Defendant requested a jury for her capital sentencing hearing.
The jury found defendant eligible for the death penalty based upon
two statutory aggravating factors (720 ILCS 5/9--1(b)(3), (b)(11)
(West 1992)). After considering the evidence in aggravation and
mitigation, the jury found that there were no mitigating factors
sufficient to preclude imposition of the death penalty.
Accordingly, the trial judge sentenced defendant to death.
Defendant's death sentence has been stayed pending direct review by
this court. Ill. Const. 1970, art. VI, 4(b); 134 Ill. 2d Rs. 603,
609(a).
For the reasons that follow, we affirm defendant's convictions
for murder but vacate defendant's sentence of death and remand for
a new sentencing hearing.

FACTS
On May 12, 1992, Jimmy Cruz and Hector Reyes were murdered in
Humboldt Park, in Chicago, Illinois, at approximately 12:15 a.m.
Defendant, who was 21 years of age, was arrested on May 13, 1992.
On May 14, 1992, defendant gave a court-reported statement to the
police and an assistant State's Attorney. After waiving her Miranda
rights, defendant was asked about the events that occurred on May
12, 1992. In her statement, defendant indicated that she belonged
to the Maniac Latin Disciples gang. Defendant stated that on May
11, 1992, she, Jacqueline Montanez and Madeline Mendoza, who were
15 and 16 years of age respectively, decided to shoot some members
of the Latin Kings, a rival gang. The shootings were to avenge the
death of a friend named Mudo, who was killed by some Latin Kings a
couple of days earlier. Defendant stated that she obtained a small
silver automatic gun to carry out the shootings. Defendant borrowed
her brother's car and drove Montanez and Mendoza to look for some
Latin Kings. They encountered Cruz and Reyes, who were Latin Kings,
in another car. The three women and the victims all agreed to go to
Humboldt Park. Defendant stated that she intended to kill Cruz and
Reyes in the park. At the park, the group walked to the area of a
public bathroom. According to defendant, Montanez went into the
bathroom and shot Reyes, with the gun defendant had provided, while
defendant remained outside. Montanez left the bathroom and gave
defendant the gun. Defendant then shot Cruz in the back of the
head. Defendant, Montanez and Mendoza then drove away. Both victims
died of the gunshot wounds.
On June 19, 1992, defendant was charged with the murders and
conspiracy to commit the murders. Montanez and Mendoza were also
charged with multiple counts of murder and conspiracy to commit the
murders.
On February 26, 1993, defendant filed a motion to suppress her
May 14, 1992, statement to the police. In her motion to suppress,
defendant alleged the following: (1) she was not properly informed
of her rights pursuant to Miranda; (2) she did not understand those
rights; (3) she was not provided with an attorney after requesting
to speak with one; and (4) the police psychologically coerced her
into making a statement. At the suppression hearing, defendant
testified that, after she was arrested and asked what happened in
Humboldt Park, she told the police she did not know anything about
the murders. Defendant further testified that she confessed to the
crimes only after the police "coerced" her to do so. After
considering all the evidence presented at the suppression hearing,
the trial court denied the motion.
On September 27, 1993, defendant entered a plea of guilty for
the murders of Jimmy Cruz and Hector Reyes. After the trial court
admonished defendant, it accepted the plea as voluntary, knowing
and intelligent. The trial court entered a judgment of guilty of
two counts of intentional murder. The case then proceeded to a
capital sentencing hearing before a jury.
The State presented the following testimony at the eligibility
phase. John Dolan, a Chicago police detective, testified that he
was dispatched to Humboldt Park on May 12, 1992, to respond to a
report of a shooting. Once in Humboldt Park, he found Cruz and
Reyes shot to death. Detective Dolan observed Cruz lying on the
sidewalk with a .25-caliber cartridge casing lying within two feet
of his body. Reyes was lying on the floor of a restroom and a
bullet was located three feet from his head.
Dr. Nancy Jones, a forensic pathologist and assistant medical
examiner for Cook County, testified that Jimmy Cruz, a 22-year-old
male, and Hector Reyes, a 21-year-old male, both died as a result
of gunshot wounds to the back of the head. Dr. Jones determined
that Reyes was killed by a bullet that entered the center part of
the back of his head and exited through his left eye lid. Given the
shape of the entrance wound, she opined that the muzzle of the gun
was held directly in contact with Reyes' head at the time the
bullet was fired. With respect to Cruz, Dr. Jones found that he was
killed by a bullet that entered the lower part of the back of his
head. According to Dr. Jones, the gun was probably held within one
or two inches of Cruz's head at the time it was fired.
Ivette Rodriguez testified about events occurring before and
after the murders of Cruz and Reyes. On May 11, 1992, at about 11
or 11:30 p.m., Rodriguez saw defendant driving a white car with
Montanez and Mendoza inside the car. According to Rodriguez, they
invited her to go "make a hit with them and roll on some flakes,"
which meant to kill or fight a rival gang, namely, the Latin Kings.
She refused. Approximately 90 minutes later, Rodriguez again saw
defendant, Montanez and Mendoza in the neighborhood. Rodriguez
testified that defendant told her "we got 'em, we got 'em ... we
got the Kings." When Rodriguez called defendant a liar, Montanez
pointed to the back of her head and said "yeah we did ... I shot
him in the back of the head." Late in the evening on May 12, 1992,
Rodriguez informed the police about the murders following her
arrest for possession of a controlled substance. On May 13, 1992,
Rodriguez accompanied the police in an undercover surveillance of
a funeral home, where defendant, Montanez and Mendoza were
attending a wake for Mudo. Rodriguez identified defendant and
Montanez. The police then arrested defendant and Montanez.
Detective Ernest Halvorsen testified about the events after
defendant's arrest. Detective Halvorsen stated that he took part in
the arrest of defendant and Montanez after Rodriguez identified
them. Mendoza was arrested two days later. After arriving at the
police station, Detective Halvorsen placed Montanez and defendant
in separate interview rooms. Following his interview with Montanez,
he gave defendant Miranda warnings. Defendant indicated that she
understood her rights and agreed to speak with him. During their
conversation, Detective Halvorsen told defendant that she was under
arrest for the murders of Cruz and Reyes, who were killed in
Humboldt Park. Initially, defendant denied knowing anything about
the murders. The detective then informed defendant that Montanez
gave a complete statement of what occurred in Humboldt Park,
including defendant's involvement. Defendant then agreed to give a
statement.
According to Detective Halvorsen, defendant told him that she
was a member of the Maniac Latin Disciples street gang. Defendant,
Montanez and Mendoza had talked about obtaining revenge against the
Latin Kings for murdering their friend Mudo. They decided to "go on
a mission ... and shoot some Kings." Defendant obtained a small
silver automatic pistol and borrowed a white car from her brother.
Defendant, along with Montanez and Mendoza, then drove over to the
Latin Kings neighborhood for the purpose of shooting any Latin King
they saw on the street. As they were driving, a car pulled
alongside of them that contained two men, Cruz and Reyes. Defendant
informed Detective Halvorsen that Montanez told her the two men
were "flakes," that is, Latin Kings. Defendant, Montanez and
Mendoza invited Cruz and Reyes to "party" in Humboldt Park.
Defendant told Detective Halvorsen that they knew they were going
to kill Cruz and Reyes when they arrived at the park. Once in the
park, Montanez walked into a bathroom with Reyes and shot him in
the back of the head. Montanez then handed the gun to defendant.
Defendant walked up behind Cruz and shot him in the back of the
head. The three girls then went back to their neighborhood.
Detective Halvorsen described defendant's demeanor at the time of
her statement as arrogant and cocky. According to Detective
Halvorsen, defendant was proud of herself because she had performed
a mission for her "nation." In Detective Halvorsen's opinion,
defendant did not appear remorseful during her conversations with
him.
John Dillon, an assistant State's Attorney for Cook County,
testified that when he arrived at the police station on May 14,
1992, he first spoke with Montanez, who gave a court-reported
statement. Next, Assistant State's Attorney Dillon spoke with
defendant after advising her of Miranda warnings, which she claimed
to understand and waived. Defendant agreed to give a court-reported
statement. During defendant's oral statement, she indicated that
there was a celebration after the murders. Assistant State's
Attorney Dillon stated that defendant's demeanor during their
conversation was very calm. Defendant was in control of herself and
did not indicate any remorse for her actions. It appeared to
Assistant State's Attorney Dillon that defendant was very proud of
what she had done.
The State concluded its case at the eligibility phase by
presenting evidence by stipulation. It was stipulated that James
Tracy, a firearms examiner with the Chicago police department crime
laboratory, would testify that the bullet taken from Cruz's body
and the bullet found next to Reyes' body were .25-caliber bullets,
and that the cartridge casing found near Cruz's body was a .25-
caliber cartridge. Also admitted into evidence was a certified copy
of defendant's indictment and conviction following her guilty plea.
The State then rested. The defense presented no evidence at the
eligibility phase.
After considering the evidence, the jury found beyond a
reasonable doubt that defendant was eligible for the death penalty
under the following aggravating factors: (1) the murder was
committed in a cold, calculated, and premeditated manner pursuant
to a preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)) and (2)
defendant had been convicted of murdering two or more persons (720
ILCS 5/9--1(b)(3) (West 1992)).
In the second phase of the sentencing hearing, the State
presented the following evidence in aggravation. David Lavin and
Sandra Stavropoulos, Cook County assistant State's Attorneys,
testified regarding their previous prosecutions of defendant. Lavin
stated that defendant pled guilty on March 28, 1990, to two charges
of delivery of a controlled substance. Defendant received two
years' probation and served 30 days in the county jail. On March 2,
1991, while on probation, defendant was arrested for selling
cocaine to an undercover officer. Stavropoulos stated that on July
1, 1991, defendant pled guilty to delivery of a controlled
substance and received a three-year prison term. Defendant was
paroled on February 28, 1992.
Joanne Roberts testified for the State about her encounters
with defendant in jail. On March 27, 1993, Roberts had been
arrested for armed robbery. While Roberts was in Cook County jail,
she met defendant, whom she knew was a Maniac Latin Disciple.
Roberts stated that in June of 1993, while in jail together,
defendant asked her to kill Jackie Montanez because she was going
to testify against her. When Roberts refused, defendant informed
her that "she would take care of it herself." After relaying this
information to the prosecutors, Roberts was released from jail and
placed on an electronic home monitoring system for her own safety.
According to Roberts, no promises were made to her regarding her
pending charges in exchange for her testimony. Roberts then
testified about threatening phone calls she received from defendant
and an unknown male member of the Maniac Latin Disciples prior to
her testimony at this sentencing hearing.
Finally, Anthony Riccio, a detective for the Chicago police
department, who at the time of the murder was assigned to the gang
crimes unit and was familiar with the street gangs in the Humboldt
Park area, testified for the State. Detective Riccio explained a
news videotape taken of defendant after she confessed to the
murders. Detective Riccio testified that as he escorted defendant
through the police station after her confession, television news
cameras captured her shouting gang slogans and flashing gang
signals with her hands. As the videotape was played to the jury,
Detective Riccio explained that defendant took her hand and placed
it over her heart, which meant that what she was about to say and
do was "from her heart." Next, defendant's hand was shown pointing
five fingers downward, which represented a disrespectful gesture to
the Latin Kings. Defendant then flipped her hand in an upright
position, like a pitchfork, to show her allegiance to the Maniac
Latin Disciples. Defendant also stated "KK," which Detective Riccio
stated meant "king killers" and was a form of disrespect to the
Latin Kings.
Following Detective Riccio's testimony, the State concluded
the aggravation portion of the sentencing hearing. Defendant
presented the following evidence in mitigation. Four individuals
who testified on behalf of defendant were persons she had
encountered while in Cook County jail. Joseph Widdington, a teacher
in the PACE program (Program Active for Correctional Education),
testified that defendant was a tutor in this program. Widdington
described defendant as a quiet person who wrote poetry. In
Widdington's opinion, defendant was the type of person who had
talent but never used it. Gloria Brookins, a social worker and
counselor for the PACE program, testified that defendant helped her
with other women with respect to peer tutoring, organizing socials
and monthly activities. Brookins stated that she never saw
defendant threaten anyone in the program. Rather, defendant was
friendly and well-liked. Sergeant Sharon Smith, a correctional
officer in Cook County jail, stated that defendant was a quiet,
nice, respectful, and affable person. She never witnessed defendant
engage in gang-related behavior. According to Sergeant Smith,
defendant had an easygoing disposition and a positive attitude.
Martin Lowery, another correctional officer, testified that there
were no threats or disturbances between defendant and Montanez.
Defendant's mother, Angelina Gonzalez, also testified on
behalf of defendant. Mrs. Gonzalez stated that she brought
defendant's two children to visit her in jail every week. According
to Mrs. Gonzalez, defendant behaved well with her children and
frequently called to ask about them.
Defendant herself testified in the mitigation stage of the
sentencing hearing. Defendant stated that she was a former member
of the Maniac Latin Disciples. Defendant recounted that in 1992 she
did not hate the Latin Kings because she never had any problems
with them. Defendant testified, however, that she became angry
about the murder of Mudo, a deaf mute from her neighborhood.
Defendant stated that because of Mudo's death she agreed to join
Jackie Montanez and Madeline Mendoza to kill some Latin Kings.
According to defendant, Montanez obtained a .25-caliber automatic
gun, while defendant borrowed her brother's car and drove Montanez
and Mendoza to look for some Latin Kings. They eventually
encountered Jimmy Cruz and Hector Reyes, who asked the girls to
meet them in Humboldt Park. Montanez informed defendant that Cruz
and Reyes were Latin Kings. Defendant stated that, although she
knew Montanez had a loaded gun, she did not know that Montanez
would shoot Reyes. After Reyes' shooting, Montanez handed defendant
the gun and she placed the gun approximately five inches away from
Cruz's head and shot him. According to defendant, she began to cry
after she shot Cruz. Defendant then admitted going back to the
neighborhood along with Montanez and Mendoza and bragging to Ivette
Rodriguez about what they had just done.
During defendant's testimony, she also admitted knowing Joanne
Roberts in Cook County jail. According to defendant, however, she
had little conversation with Roberts. Defendant denied asking
Roberts to have Montanez killed. Defendant refuted Roberts'
allegation that she was mad at Montanez. Defendant also
acknowledged that she obtained Roberts' telephone number from
Roberts, who gave it to her so they could keep in touch. Defendant
stated that she called Roberts once and asked her how she was doing
and how she was able to go on an electric home monitoring system.
Roberts informed defendant that the State made a deal with her in
exchange for her turning State's evidence against Mendoza.
Additional facts are discussed where relevant in the analysis
portion of the opinion.
After considering the evidence in aggravation and mitigation,
the jury unanimously found that there were no mitigating factors
sufficient to preclude a sentence of death. The trial court
accordingly sentenced defendant to death.
Defendant subsequently filed post-sentencing motions. After a
hearing, defendant's motion for a new sentencing hearing was
denied. Defendant then filed a pro se petition to withdraw her
guilty plea and vacate her sentence, and a pro se motion for
modification of sentence. Defense counsel later filed a
supplemental motion for a new sentencing hearing, and a
supplemental petition to withdraw defendant's guilty plea and
vacate her sentence. The court refused to accept the filing of the
new sentencing hearing motion. With respect to the supplemental
petition to withdraw defendant's guilty plea and vacate her
sentence, the court confined the evidence to whether defendant's
guilty plea had been knowing, intelligent and voluntary. After a
hearing, the court denied the motion to withdraw defendant's guilty
plea. This appeal followed.

ANALYSIS
Defendant raises the following issues on appeal: (1) whether
the prosecutor's questions during cross-examination and remarks
during closing arguments at the sentencing hearing concerning
defendant's filing of a pretrial motion to suppress her confession
deprived defendant of her right against self-incrimination and to
due process of law; (2) whether the trial court erred in admitting
as evidence in aggravation the testimony of Joanne Roberts
regarding death threats made to her by an unknown man; (3) whether
the trial court erred in refusing to allow the defense to bring
defendant's two young children before the jury for them to view
during the presentation of mitigating evidence; (4) whether
defendant's death sentence must be vacated because of the
prosecutor's remarks during closing arguments at the sentencing
hearing; (5) whether the trial court erred in ruling that the
testimony of the defense's clinical psychologist at the post-
sentencing hearing was not credible; (6) whether the trial court
erred in allowing defendant only 10 peremptory challenges in
selecting the sentencing jury; (7) whether section 9--1(b)(11) of
the Criminal Code of 1961 is an unconstitutional eligibility
factor; and (8) whether the Illinois death penalty statute is
unconstitutional. For the reasons stated below, we vacate
defendant's death sentence and remand for a new sentencing hearing.

I. SENTENCING ISSUES
A. Reference to Defendant's Motion to Suppress
Defendant argues that she was deprived of due process of law
and her fifth amendment right against self-incrimination at the
aggravation/mitigation stage of her capital sentencing hearing.
Defendant claims that the prosecutor improperly cross-examined
defendant by questioning her about her pretrial motion to suppress
her confession and its subsequent denial. Defendant also contends
that the prosecutor made improper comments during closing arguments
about the motion to suppress. We agree that the prosecutor's use of
defendant's motion to suppress at the sentencing hearing was
improper and prejudicial and entitles defendant to a new sentencing
hearing.
As noted, defendant filed a pretrial motion to suppress her
confession on the bases that she was not timely given Miranda
warnings and was coerced by the police into making a statement. The
trial court denied the motion to suppress, after which defendant
entered a plea of guilty. At the second phase of the sentencing
hearing, defendant's theory of mitigation was that she entered her
plea of guilty because of remorse. Defendant testified in
mitigation that she pled guilty because she knew her actions were
wrong and she wanted to ease her conscience. On cross-examination,
the prosecutor asked defendant if she knew the meaning of the word
remorse and if she had ever felt remorse about this case. Defendant
responded that feeling remorse meant "feeling sorry," and that she
had felt remorse ever since the murders happened. Defendant also
stated that she had cooperated with the police and told the truth
since the murders happened. The prosecutor then confronted
defendant with her testimony from the pretrial suppression hearing,
at which defendant admitted initially telling the police that she
did not know what happened in Humboldt Park. The prosecutor
continued his cross-examination of defendant as follows:
"Q. [Assistant State's Attorney:] When did you first
decide that you were going to plead guilty on this case?
A. Months ago, before Jackie came to trial.
Q. Pardon me?
A. Months ago before Jackie started her trial.
Q. Well, about what month in particular did you
first start thinking you were going to plead guilty here?
A. Around June or July.
Q. June or July. Well, was it before--do we have--
was it before you had the pretrial hearing with Judge
Mannion?
A. After the pretrial hearing.
Q. After. That's because in that hearing before
Judge Mannion, you know, when you had all this remorse in
your heart and everything else, you tried to get the
Judge to throw out your confession, isn't that correct?
A. No.
MR. LYNCH [defense attorney:] Objection. Judge, may
I have a sidebar?
THE COURT: Overruled.
* * *
Q. [Assistant State's Attorney:] Miss Mulero, you
testified that you decided or you were starting to think
about pleading guilty sometime in June of 1993, isn't
that correct?
A. Yes.
Q. And also coincidentally right around that time,
there was a hearing on a motion that you and your
attorney filed to have your confession thrown out of
court, isn't that correct?
A. Yes.
Q. And in fact showing you what is People's Exhibit
Number 51, here's a copy of a motion that was filed on
your behalf, isn't that correct?
A. Yes.
Q. And in facts [sic] in June of 1993, you stood and
took an oath before the clerk saying that all the
allegations in that motion were correct, isn't that
right?
A. Yes.
Q. And in this motion, you said basically that you
didn't get your rights read to you, is that correct?
A. Yes.
Q. And you also said basically that the police
tricked you into confessing, isn't that correct?
A. In some way, yes.
Q. And there was a hearing on that matter, and your
motion was thrown out of court, isn't that correct?
A. I don't know.
Q. Well, you know then that your confession would be
admissible in your case if you went to trial, isn't that
correct?
A. What [do] you mean by admissible?
Q. Well, you knew that the People of the State of
Illinois could use that confession that you have in front
of you if you went to trial, isn't that correct?
A. Yes.
Q. And you found that out in June of 1993, isn't
that correct?
A. Yes.
Q. Right around the time you start[ed] thinking
about pleading guilty, isn't that correct?
A. Yes."
The prosecutor also referred to defendant's failed suppression
motion during closing and rebuttal arguments at the
aggravation/mitigation phase. The prosecutor characterized the
motion to suppress as a "legal maneuver" and argued that it
demonstrated defendant's lack of remorse. More specifically, the
prosecutor made the following remarks to the jury at the sentencing
hearing:
"If she wanted to plead guilty, she could have come
in court. And you saw the indictment when she was
indicted back in the spring of 1992. She could have come
to court and pled guilty. But no, she tried some legal
maneuver to try to get her confession thrown out of
court. That didn't work, she saw what happened to her co-
defendants, that didn't work. You figure out why she pled
guilty. She is cutting her losses. What else is she going
to do. Is that mitigation.
* * *
And what are the facts of the guilty plea. The
guilty plea is an out and out sham and we know it. She is
trying to maneuver her way through the legal system to
tell you she is remorseful. You saw her up on the stand
when she took the stand. Was she remorseful or was she
trying to figure out a way how to get out of this mess
she's got herself into. She is trying to beat this case
absolutely one hundred percent. She is like a trapped rat
in a corner that has no way out.
And how do we know that. We know that because at the
time she decides to become remorseful two months ago, she
is trying to get the statement thrown out saying the
police tricked her, they tricked her. I didn't confess,
but yet she tells you I was remorseful. I'm sorry you
can't have it both ways, folks.
Mr. Gamboney [Assistant State's Attorney]
specifically asked her, you supported the contents of
this motion and she swore that the police tried to trick
her, and that's why she confessed, not because she was
remorseful."
It is well settled that a defendant's remorse or lack thereof
is a proper subject for consideration at sentencing. See People v.
Barrow, , 281 (1989); People v. Neal, , 196 (1985). When inquiring into a defendant's remorse,
however, the State may not violate a defendant's constitutional
rights. See People v. Szabo, , 360 (1983). Defendant
contends that the State's questions and comments here improperly
used defendant's exercise of her constitutional rights against her.
See Griffin v. California, , 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); Szabo, . Both the United States
Supreme Court and this court have held that comments about a
defendant's exercise of a constitutional right are improper because
they penalize a defendant for exercising his or her right. See
Griffin, 380 U.S. at 614, 14 L. Ed. 2d at 109-10, 85 S. Ct. at
1232-33; Szabo, 94 Ill. 2d at 360. Such comments have a chilling
effect on a defendant's exercise of his or her constitutional right
by making assertion of a particular right costly. See Griffin, 380 U.S. at 614, 14 L. Ed. 2d at 110, 85 S. Ct. at 1233.
These principles were clearly violated by the prosecutor's
questions and comments in this case. During both the cross-
examination of defendant and the closing arguments, the prosecutor
used defendant's mere filing of the motion to suppress against her
in an effort to demonstrate defendant's lack of remorse. The
State's use of defendant's motion to suppress in this manner was
wholly improper and unquestionably prejudicial.
Undeniably, defendant had a constitutional right to remain
silent. U.S. Const., amend. V. In filing the motion to suppress,
defendant argued that her fifth amendment right to remain silent
had been violated and the motion attempted to vindicate that right.
Regardless of whether the motion was successful, defendant
nevertheless had the right to challenge her confession on this
basis. In using defendant's motion to suppress against her, the
prosecutor essentially used defendant's exercise of a
constitutional right against her. The sentencing jury was in effect
told that it could consider defendant's exercise of her
constitutional right to remain silent as an aggravating factor
against her. The exercise of a constitutional right may not be
turned into a sword to be used against a defendant in this manner.
The "chilling effect" on a defendant's decision to exercise a
constitutional right in circumstances such as those in this case is
obvious. This court has condemned a similar practice by the State
in People v. Szabo, (1983).
In Szabo, the defendant chose to remain silent following his
arrest. The defendant testified in mitigation at the
aggravation/mitigation phase of his capital sentencing hearing that
he felt badly about the murders. In response to his mitigation
testimony, the prosecutor cross-examined the defendant about his
failure to make a statement showing remorse to the police at the
time of his arrest. During closing arguments at sentencing, the
prosecutor argued that the defendant was not truly remorseful
because he had not offered an explanation or statement of
contrition following his arrest but chose to remain silent. This
court found the prosecutor's questioning and argument constituted
plain error. The prosecutor's comments used the defendant's silence
to impeach his testimony at sentencing and thereby penalized the
defendant for exercising his constitutional right to remain silent.
Szabo, 94 Ill. 2d at 359-61. Such actions by the prosecutor were
held to be fundamentally unfair and to require a new sentencing
hearing. Szabo, 94 Ill. 2d at 362, 367-68.
The State's comments in this case are equally as egregious as
those found to require reversal in Szabo. In both cases, the
defendant was penalized for exercising a constitutional right.
While the defendant in Szabo directly exercised the right to remain
silent, defendant here indirectly exercised her fifth amendment
right to remain silent by attempting to enforce that right in her
motion to suppress. As in Szabo, we find the prosecutor's questions
and remarks regarding defendant's exercise of a constitutional
right in this case to be fundamentally unfair and to require that
defendant's death sentence be vacated.
The State responds that its questions on cross-examination
were proper because it was simply attempting to impeach defendant's
credibility regarding her guilty plea with her prior inconsistent
testimony at the suppression hearing. See People v. Hudson, , 435 (1993) (any permissible kind of impeaching matter
may be developed on cross-examination to test the credibility of a
witness). According to the State, it was attempting to impeach
defendant's mitigation testimony, that remorse was the motive for
her guilty plea, with her prior inconsistent statements from the
suppression hearing. We agree with the State's argument only to the
extent that it was proper to impeach defendant with her prior
inconsistent testimony from the suppression hearing.
A defendant's constitutional rights are not violated when a
defendant is cross-examined as to a prior inconsistent statement.
See Anderson v. Charles, , 408-09, 65 L. Ed. 2d 222,
226-27, 100 S. Ct. 2180, 2182 (1980); People v. Adams, , 119-20 (1985). It is also well established that a defendant's
testimony in conjunction with his or her motion to suppress
evidence can be used to impeach a defendant's testimony at trial.
See People v. Sturgis, , 216 (1974). We adhere to
these principles. Here, however, the State exceeded the bounds of
simply impeaching defendant with prior inconsistent testimony.
Rather, the State used defendant's actual motion to suppress
against her by suggesting that its mere filing was itself evidence
of a lack of remorse on the part of defendant. A defendant's
exercise of a constitutional right is not permissible impeachment
evidence. See Doyle v. Ohio, , 619, 49 L. Ed. 2d 91,
98, 96 S. Ct. 2240, 2245 (1976) (violation of due process when
defendant's silence following Miranda warnings is used to impeach
an explanation subsequently offered at trial).
Moreover, the mere filing of the motion to suppress her
confession did not contradict defendant's claim that remorse was
the motive behind her guilty plea. The motion to suppress had no
correlation to defendant's remorse. Defense counsel employed the
motion to suppress to address an issue of law, namely, the
admissibility of defendant's confession as evidence. Consequently,
the prosecutor, in arguing the motion to suppress, introduced
evidence that neither involved an inconsistent statement nor was
relevant for impeachment purposes. See Hudson, 157 Ill. 2d at 449.
As such, the prosecutor here did not merely "utilize the
traditional truth-testing devices of the adversary process." Harris
v. New York, , 225, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643,
645-46 (1971). We therefore reject the State's claim that the
filing of the motion to suppress was properly used to impeach
defendant's testimony. Under these circumstances, we find that the
trial court abused its discretion in allowing cross-examination as
to defendant's filing of a motion to suppress. See Hudson, 157 Ill. 2d at 435; People v. Peeples, , 492 (1993).
With regard to the prosecutor's comments during closing
argument, the State first contends that any challenge to those
comments has been waived because defendant neither objected to them
at trial nor included them in her post-sentencing motion. See
People v. Enoch, (1988). As in Szabo, however, we
find that fundamental fairness requires that the strict waiver rule
be relaxed in this case and that the prosecutor's closing arguments
be recognized as plain error affecting defendant's substantial
rights. See Szabo, 94 Ill. 2d at 362; People v. Green, , 450 (1979).
Aside from its waiver argument, the State claims that these
comments were proper because the prosecutor merely challenged
defendant's proclaimed motives for pleading guilty and highlighted
evidence showing defendant was not remorseful. In support of its
position, the State refers to the general rule that challenging the
credibility of a defendant and his or her theory of defense is
proper in closing argument when there is evidence justifying the
challenge. See Hudson, 157 Ill. 2d at 444. Here, according to the
State, its challenge to defendant's claim of remorse was justified
given defendant's testimony during the suppression hearing. We do
not dispute that the prosecutor was permitted to challenge
defendant's credibility regarding her motive for pleading guilty by
commenting on defendant's apparent lack of remorse as evidenced by
her testimony at the suppression hearing. The prosecutor, however,
went far beyond that permissible commentary to suggest that
defendant's exercise of a constitutional right be used as
aggravation evidence against her. The prosecutor's comments were
clearly intended to direct the jury's attention to defendant's
attempt to enforce her right to silence. See People v. Franklin,
, 101 (1990); People v. Burton, , 55-57
(1969). This improper commentary on defendant's exercise of a
constitutional right resulted in substantial prejudice to defendant
at the sentencing hearing by casting defendant's assertion of her
right in an unfavorable light to the jury.
Based on the foregoing analysis, we hold that defendant's
filing of a motion to suppress was irrelevant both substantively
and for impeachment purposes at the sentencing hearing. The
prosecutor improperly used defendant's constitutional right to
silence against her by introducing into evidence her motion to
suppress, which was intended to enforce that right. Defendant was
prejudiced by the prosecutor's actions and deprived of a fair
capital sentencing hearing because the sentencing jury was
permitted to rely on improper evidence and comments. Accordingly,
we vacate defendant's death sentence and remand for a new
sentencing hearing.
Defendant also raises other challenges to her capital
sentencing hearing and to the constitutionality of the Illinois
death penalty statute. Because we have concluded that defendant is
entitled to a new sentencing hearing, we address only those alleged
errors which are likely to arise again on remand. See People v.
Simms, , 173 (1991).

B. Jury Selection
Defendant contends that she was denied a fair capital
sentencing hearing because the trial court allowed each side only
10 peremptory challenges.
The record reveals that, after defendant requested a jury for
the sentencing hearing, the prosecutor informed the trial judge
that he thought each side should receive 10 peremptory challenges.
The trial judge accepted this representation by the prosecutor and
allowed each side 10 peremptory challenges. Defense counsel did not
object to the number of peremptory challenges allotted. During the
jury selection, defendant used nine peremptory challenges before
agreeing on a 12-member jury. Defendant subsequently utilized her
last peremptory challenge to exclude one of the two alternate
jurors. Defendant now claims that she was entitled to 14 peremptory
challenges pursuant to Supreme Court Rule 434(d) (134 Ill. 2d R.
434(d)). Defendant further claims that the trial court committed
reversible error in allowing her only 10 peremptory challenges. As
a result, defendant asserts that her sentence of death should be
vacated and the cause remanded for the proper selection of a
sentencing jury.
The State concedes that the trial court erred in allotting
defendant only 10 peremptory challenges. We agree. Supreme Court
Rule 434(d) provides, in pertinent part, that "[a] defendant tried
alone shall be allowed 14 peremptory challenges in a capital case."
134 Ill. 2d R. 434(d). It is thus clear that the trial court erred
in this case by allowing defendant only 10 peremptory challenges.
See People v. Daniels, 172 Ill. 2d 154 (1996). On remand, defendant
should be allowed the proper number of peremptory challenges.
Because we have already determined that defendant is entitled to a
new sentencing hearing on another ground, we need not address
whether the trial court's actions as to the number of peremptory
challenges amounted to reversible error.

C. Eligibility
Defendant claims that her death sentence must be vacated
because the jury found her eligible on the basis of an
unconstitutionally vague eligibility factor. As set forth in the
facts, the sentencing jury found defendant eligible for death on
the basis of two eligibility factors: (1) murder of two or more
persons (720 ILCS 9--1(b)(3) (West 1992)), and (2) murder committed
in a cold, calculated and premeditated manner pursuant to a
preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)). Defendant
now challenges the constitutionality of section 9--1(b)(11),
arguing that its terms are vague such that a limiting construction
should be applied to this factor. Defendant also alleges that
section 9--1(b)(11) is unconstitutional because its terms do not
narrow the class of individuals eligible for the death penalty.
This court has previously rejected identical challenges to the
constitutionality of section 9--1(b)(11). We have held that section
9--1(b)(11)'s terms are not unconstitutionally vague because they
provide sufficient guidelines for the sentencer in determining
death eligibility. See People v. Williams, 173 Ill. 2d 48, 89-90
(1996); People v. Johnson, , 372-73 (1993).
Consequently, the need for a limiting instruction has been
rejected. In addition, we have held that the terms of section 9--
1(b)(11) sufficiently narrow the class of eligible defendants by
placing the necessary restraint on the sentencer's discretion to
impose death. See People v. Munson, 171 Ill. 2d 158, 191 (1996). We
are not persuaded that we should reconsider these holdings.
Therefore, we adhere to our prior decisions that section 9--
1(b)(11) is constitutionally valid.

D. Aggravation
Defendant contends that the trial court erred in allowing the
State's witness Joanne Roberts to testify during the
aggravation/mitigation phase of the sentencing hearing that she
received death threats over the telephone from an unknown male, who
warned her not to testify against defendant.
Joanne Roberts testified that she had met defendant while both
were incarcerated in Cook County jail. Roberts knew that defendant
was a member of the Maniac Latin Disciples street gang. Roberts
testified that in June of 1993 she and defendant had a conversation
in which defendant stated that her codefendant, Jackie Montanez,
was going to "turn states on her." Roberts claimed that defendant
then asked her to kill Montanez. Roberts refused and defendant
replied that "she would take care of it herself." Roberts
subsequently reported her conversation with defendant to
prosecutors. On July 29, 1993, Roberts was released from jail and
placed on an electronic home monitoring system for her own safety.
Roberts testified that in August of 1993, shortly after her release
and while at home, she received a phone call from defendant in
which defendant asked her why she had turned against her, and told
Roberts that she "would be dealt with later on for that." Roberts
further testified that she received another phone call about a week
prior to her testimony at defendant's death penalty hearing in
November of 1993, which she described in the following manner:
"Q. [Assistant State's Attorney:] Directing your
attention to approximately last week, did you have
occasion again to be contacted by someone from the
Disciples?
A. Yes, I did.
Q. And did that person identify himself?
A. He called me from the penitentiary and he said he
was--he was one of the--one of the, what do you call
them, was one of the ones that call shots over there.
And he said that he was going to have me killed for
turning states on them for telling them--for telling on
them. And he just went on and on and on.
MR. LYNCH [defense attorney]: Judge, may I have a
sidebar?"
Defense counsel objected that evidence of this threat was
inadmissible because there was no connection established between it
and defendant. The trial court overruled the objection because
defendant's connection to this threat was "a reasonable inference
to be drawn from the previous conversations." Roberts then resumed
her testimony regarding the phone call:
"Q. Can you tell the ladies and gentlemen of the
jury at that time what he said to you?
A. He said that he was--he was one of the chiefs
from the Disciples and that if I testified against Muneca
[defendant], that he was going to have me killed. And he
knew that [sic] where I lived and everything.
And he was just going on and on with the same thing.
And I just hung up on him.
Q. Now, during your time in Cook County Jail, did
you have occasion to learn whether or not Marilyn Mulero
had any rank with her gang inside the jail?
A. Yes, she did.
Q. And what was her rank?
A. She was calling it for the second floor. She had
the second floor."
Defendant argues that Roberts' testimony regarding a threat by
an unknown male was inadmissible. According to defendant, the
evidence was neither relevant nor reliable because the State failed
to establish a connection between defendant and the third party's
threat. In support of her argument, defendant points out that the
evidence failed to show that she had ordered this phone call, or
that she even knew of it, or that she had any familiarity with the
unidentified male who made the call. Instead, the only connection
between defendant and this threat was that the unknown male caller
identified himself as a member of the Maniac Latin Disciples, the
gang to which defendant belonged. Defendant contends that this
connection is insufficient to meet the reliability standard for the
admission of evidence at a death sentencing hearing. Moreover,
defendant contends that it is not reliable to infer that, because
defendant had previously spoken with Roberts, she was responsible
for a phone call months later from an unknown man who made the
claim that he would kill her. Because Roberts' testimony as to the
third party threat lacked relevance and reliability, defendant
concludes that it was improperly admitted. Furthermore, because
that testimony concerned the threat to kill a prosecution witness,
it was prejudicial to defendant.
It is well established that the evidentiary rules which apply
at trial do not apply during the aggravation/mitigation phase of
the death penalty hearing. These rules are inapplicable because it
is important that the sentencing authority possess the fullest
information possible with respect to the defendant's life,
character, criminal record and the circumstances of the particular
offense. See People v. Fair, , 90 (1994); People v.
Brisbon, , 218-19 (1989). The only requirement
regarding admissibility of evidence at this stage is that it be
relevant and reliable, the determination of which lies within the
sound discretion of the trial judge. See People v. Williams, , 27 (1994); see also Fair, 159 Ill. 2d at 89; Brisbon,
129 Ill. 2d at 218; People v. Salazar, , 468 (1988);
People v. Free, , 422-23 (1983).
After considering Roberts' testimony in light of these
principles, we find her testimony to be both relevant and reliable.
We first note that any evidence regarding a defendant's character,
including proof of prior misconduct that has not resulted in
prosecution or conviction, is relevant. See People v. Patterson,
, 476 (1992); Salazar, 126 Ill. 2d at 468. Roberts'
testimony was relevant to defendant's character because it showed
that defendant was responsible for threatening a prosecution
witness. As such, it reflected on defendant's violent character. In
addition to being relevant, Roberts' testimony regarding the phone
threat was also reliable because a combination of factors establish
a sufficient connection between defendant and the third party's
threat. First, defendant and the third party were both high-ranking
members of the Maniac Latin Disciples street gang. Second, the
threat specifically named defendant as the one whom Roberts should
not testify against. The fact that defendant did not directly make
the threat does not make this evidence less reliable given
defendant's prior conversations with Roberts. When defendant
believed that Montanez was going to turn State's evidence on her,
she solicited Roberts to murder Montanez. Following Roberts'
refusal, defendant said she would take care of it herself. When
defendant learned that Roberts herself turned State's evidence,
defendant called Roberts and threatened that she would be "dealt
with later." Then, a week before Roberts was to testify at
defendant's death penalty hearing, she received a threatening phone
call from a Maniac Latin Disciples gang member, who told her that
if she testified against defendant he would have her killed. The
totality of these circumstances demonstrates a sufficient link
between defendant and the last threatening phone call made to
Roberts. Roberts' testimony was therefore properly admissible as
both relevant and reliable evidence.
Defendant's reliance on our decision in People v. Lucas, (1992), is misplaced. In Lucas, the defendant was
convicted of the murder of a prison superintendent, a gang-related
crime which occurred in retaliation for the death of another member
of the defendant's gang. This court found that a correctional
officer's testimony regarding gang members' threats of retaliation
was improperly admitted. Lucas, 151 Ill. 2d at 478. This court
relied on the fact that the correctional officer, who testified as
to the threats, stated that defendant did not make the threats.
Lucas, 151 Ill. 2d at 478. Moreover, the court pointed out that the
victim's murder was not close in time to the gang member's death,
which occurred over two months prior to the murder. Lucas, 151 Ill. 2d at 478. This court also determined that evidence of a gang
member's attack upon another correctional officer one day before
the murder and a gang member's threat to poison an inmate who was
cooperating with the prosecution were inadmissible. Lucas, 151 Ill. 2d at 486. We rejected this evidence because there was neither
evidence connecting defendant to the attack on the correctional
officer nor evidence connecting defendant to the plan to poison the
cooperating inmate. Lucas, 151 Ill. 2d at 486. While this court
found error in the admission of this evidence, this court
ultimately determined the error to be harmless. Defendant now
contends that our decision in Lucas demonstrates that mutual gang
membership and mutual gang motivation against a person are
insufficient to establish a connection between a defendant and a
third party's threats.
This case is distinguishable from Lucas. Initially, we note
that the evidence in Lucas was presented at trial, where strict
rules of evidence apply, whereas Roberts' testimony occurred at the
capital sentencing hearing, where the rules of evidence are
relaxed. More importantly, here there was a prior connection
between defendant and the person receiving the threats, namely,
Roberts. Although defendant did not make the last threatening phone
call, she did have a history of threatening those who crossed her,
including Roberts. Consequently, the connection between defendant
and the threatening phone call in this case involved more than
mutual gang membership and mutual gang motivation. Under the
circumstances of this case, we determine that it is reasonable to
infer that defendant was the source of the threats against Roberts.
Thus, we hold that the trial court did not abuse its
discretion in allowing Roberts to testify about threatening phone
calls she received prior to her testimony at defendant's death
penalty hearing.

E. Mitigation
Defendant asserts that the trial court erred in refusing to
allow the defense to display defendant's two young children before
the jury during its presentation of mitigating evidence.
The record reveals that defendant's mother and defendant
testified during the mitigation phase of the sentencing hearing
about defendant's relationship with her children. Defendant's
mother, Angelina Gonzalez, testified that defendant had two
children, Juan Carlos Mulero, age seven, and Mario Canales, age
five, who lived with defendant prior to her incarceration. Mrs.
Gonzalez stated that she brought the children to visit defendant in
jail every week and that defendant exchanged letters with her
children. Mrs. Gonzalez also stated that defendant called her
children frequently and behaved well with them.
Defendant also testified about her children, who were present
in the courtroom and seated with her mother. Defendant stated that
she was 15 years of age when she had Juan Carlos and 17 years of
age when she had Mario. According to defendant, she raised her
children on her own by working at two jobs. Defendant told the jury
that if she did not get the death penalty she would have a better
relationship with her kids and would be a better mother. She
explained that, even if she should be incarcerated forever, she
could still be a mother to her children by having them visit her in
prison. Defendant further explained that she did not want her
children to testify because she did not want them "to ever grow up
noticing that they went through this trauma." However, defendant
stated that she would not mind if her children were brought before
the jury.
The trial court refused defense counsel's request to have the
children displayed to the jurors. The court found such evidence to
be improper because it was "an obvious attempt to evoke sympathy"
on behalf of defendant to the jury. Moreover, the court noted that
such a display of the children was unnecessary because there had
already been testimony about defendant's children, and the jury was
aware they were in court.
Defendant now challenges the court's ruling on the basis that
it was an improper infringement upon her right to present
mitigating evidence. Defendant claims that the physical display of
her children to the jury was proper mitigating evidence because it
would demonstrate the most positive aspect of defendant's
character, namely, her two children. According to defendant, it was
necessary for the jury to view any positive visible aspects of the
children's development, which could then be attributable to
defendant, who alone raised them. In essence, defendant contends
that her children represented physical evidence, which was
necessary to explain testimonial evidence.
As previously stated, during the aggravation/mitigation phase
of a capital sentencing hearing, the rules of evidence are relaxed
and evidence need only be relevant and reliable to be admissible.
See People v. Brown, 172 Ill. 2d 1, 49 (1996); Patterson, 154 Ill. 2d at 475. The determination of evidence's admissibility at the
second phase of the sentencing hearing lies within the sound
discretion of the trial judge. See Brown, 172 Ill. 2d at 49;
Patterson, 154 Ill. 2d at 475.
With these principles in mind, we find that the trial court in
the instant case did not abuse its discretion in denying
defendant's request to have her children brought before the jury.
We acknowledge that defendant is entitled to present evidence in
mitigation that is relevant to her character and reliable. See
People v. Edwards, , 174-75 (1991). Here, however,
the physical display of defendant's children to the jury was not
relevant to defendant's character. We agree with the State that the
jury could not have assessed defendant's character as a mother
simply by looking at the children. As such, displaying defendant's
children before the jury was not relevant mitigating evidence.
Accordingly, we conclude that the trial court properly denied
defendant's request.

F. Post-Sentencing Hearing
Defendant asserts that the trial court erred in ruling that
the testimony of the defense's clinical psychologist at the post-
sentencing hearing was not credible where that ruling was based
solely on the fact that the clinical psychologist was not a medical
doctor.
The record shows that defendant filed a motion to withdraw her
guilty plea after she had been sentenced to death. The trial court
conducted a hearing to determine whether defendant's guilty plea
was intelligent, knowing, and voluntary. At the hearing,
defendant's trial counsel testified that he talked to defendant
three or four times about the plea and explained the advantages and
disadvantages of pleading guilty. Trial counsel stated that he did
not coerce defendant into pleading guilty. Rather, it was
defendant's decision to plead guilty. In fact, according to trial
counsel, defendant directed him to enter her plea of guilty.
Defendant also testified at the post-sentencing hearing and
contradicted trial counsel's testimony. Defendant insisted that it
was trial counsel's idea for her to plead guilty. According to
defendant, she pled guilty because trial counsel did not give her
"much of a choice."
In addition to defendant, the defense called Dr. Michael
Kovar, a clinical psychologist, to testify at the post-sentencing
hearing. Dr. Kovar testified that he conducted several
psychological tests on defendant. In his opinion, these tests
showed that defendant was highly suggestible and easily misled. Dr.
Kovar believed that defendant was confused about her guilty plea
and did not know the basic facts. Dr. Kovar opined that defendant
was not competent to understand the language used by the judge
regarding the relinquishment of her rights. For example, Dr. Kovar
stated that defendant did not "have a clue" what reasonable doubt
meant, did not understand the burden of proof, and was unsure
exactly what the jury would be selected to hear. Dr. Kovar
attributed defendant's lack of understanding to defendant's
deficiencies in the "fund" of information, vocabulary, and
commonsense reasoning. Based on his test findings, her mental
status, her history and her overall presentation, Dr. Kovar
concluded that defendant's plea of guilty was not knowingly and
intelligently made, given defendant's lack of competence at the
time she pled guilty. Dr. Kovar diagnosed defendant as having a
depressive disorder, a general anxiety disorder, and presently
manifesting borderline intellectual functioning.
After considering all of the evidence, the trial judge found
Dr. Kovar's testimony to be incredible. The trial judge commented,
"He's not a psychiatrist. He's not a medical doctor." The trial
judge then proceeded to explain that Dr. Kovar's testimony was not
credible based on the fact that he witnessed defendant when she
pled guilty, and he believed trial counsel's testimony that it was
defendant's idea to plead guilty. More specifically, the trial
judge made the following findings:
"That [the plea] was her choice. She entered that
plea in front of me. She was admonished as to what the
penalties were, what her rights were. She indicated to me
that she understood and I believed her, and I've been
talking to defendants for a long time, that she did it
knowingly, voluntarily and intelligently."
The trial judge ultimately denied the motion to withdraw the guilty
plea.
Defendant contends that the trial court was improper in its
ruling regarding Dr. Kovar's credibility as an expert witness. It
is defendant's position that the trial court rejected Dr. Kovar's
testimony for the sole reason that Dr. Kovar was only a clinical
psychologist as opposed to being a psychiatrist and a medical
doctor. Defendant argues that it was irrelevant that Dr. Kovar was
neither a psychiatrist nor a medical doctor. Because Dr. Kovar was
a registered clinical psychologist, defendant insists that he was
qualified by law to testify as to defendant's state of mind and
mental impairments at the time of her guilty plea. In view of the
trial court's improper basis for finding Dr. Kovar to be
incredible, defendant contends that she is entitled to a new
hearing on her motion to withdraw her guilty plea.
Initially, we note that a clinical psychologist is qualified
to render an expert opinion as to a defendant's fitness to plead
guilty, stand trial, be sentenced or be executed. 730 ILCS 5/5--2--
5 (West 1992). In fact, the testimony of a clinical psychologist
should not be disregarded merely because that witness is not a
psychiatrist or a medical doctor. See People v. Noble, (1969). Although a clinical psychologist's testimony should not
be disregarded on this basis, the trial court is not required to
accept the psychologist's opinion that the defendant was not
competent. See People v. Coleman, , 525 (1995);
People v. Pugh, , 24 (1993). It is the trial court's
function to assess the credibility and weight to be given to
psychiatric expert testimony. See Coleman, 168 Ill. 2d at 525.
After considering the trial judge's ruling, we find that the
trial judge's determination that Dr. Kovar's testimony was
incredible was not improper. We acknowledge that the trial judge
improperly commented about the witness not being a medical doctor
or a psychiatrist. The record, however, demonstrates that the trial
judge did not reject Dr. Kovar's credibility because he was not a
medical doctor or a psychiatrist. Rather, the trial judge did not
agree with Dr. Kovar's conclusions because of his own observations
of defendant while presiding over the proceedings in this case, and
because he found trial counsel to be credible. As stated, the trial
court is not required to accept the expert's finding. Instead, it
is the function of the trial court to assess the credibility of the
expert's testimony. See Coleman, 168 Ill. 2d at 525. Consequently,
the trial judge properly rejected Dr. Kovar's credibility in light
of other evidence. We therefore conclude that the trial judge's
comment regarding Dr. Kovar does not warrant the granting of a new
hearing on the motion to withdraw defendant's guilty plea.

G. Sufficiency of the Evidence
In view of our decision to remand this cause for a new
sentencing hearing, double jeopardy requires that we determine
whether the evidence was sufficient to support defendant's
eligibility for the death penalty. See People v. Brown, 169 Ill. 2d 132, 164 (1996). After considering the evidence in the record, we
find that it supports defendant's eligibility for death based on
the statutory aggravating factors of murder of two or more
individuals (720 ILCS 5/9--1(b)(3) (West 1992)) and murder
committed in a cold, calculated and premeditated manner pursuant to
a preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)).
Consequently, there is no double jeopardy impediment to defendant's
receiving a new capital sentencing hearing. See Brown, 169 Ill. 2d
at 169. Nevertheless, we do not in any way imply that we have made
a finding as to defendant's eligibility that would be binding on
remand. See Brown, 169 Ill. 2d at 169.

II. CONSTITUTIONALITY OF DEATH PENALTY
STATUTE
As a final matter, defendant challenges the constitutionality
of the Illinois death penalty statute. 720 ILCS 5/9--1 (West 1992).
First, defendant claims that the statute is unconstitutional
because it places a burden of proof on the defendant which
precludes meaningful consideration of mitigation evidence.
Defendant also claims that the statute is unconstitutional because
it allows the sentencer to weigh a vague aggravating factor,
namely, "any other reason" a defendant should be sentenced to
death. This court has already considered and rejected both
arguments. See Munson, 171 Ill. 2d at 203-05; People v. Simpson,
172 Ill. 2d 117, 152 (1996); see also Williams, 173 Ill. 2d at 93-
94; People v. Gilliam, 172 Ill. 2d 484, 522 (1996); People v. Oaks,
169 Ill. 2d 409, 470 (1996); People v. Mitchell, ,
345-46 (1992). We decline to reconsider these issues given that
defendant offers no persuasive reasons to depart from our prior
decisions. In a separate argument, defendant contends that the
death penalty statute is unconstitutional because it does not
sufficiently minimize the risk of arbitrarily or capriciously
imposed death sentences. This argument has also been rejected by
this court (see Munson, 171 Ill. 2d at 205-06; Williams, 173 Ill. 2d at 94; see also People v. Tenner, , 390 (1993);
People v. Edgeston, , 247 (1993); People v. Page,
, 283-85 (1993); Mitchell, 152 Ill. 2d at 346-47),
and we likewise decline to reconsider our prior decisions because
defendant presents no reasons that warrant a different result in
this case. We therefore adhere to our prior decisions upholding the
constitutionality of the Illinois death penalty statute.

CONCLUSION
For the reasons set forth above, defendant's convictions are
affirmed. Defendant's death sentence is vacated and this cause is
remanded to the circuit court of Cook County for a new sentencing
hearing consistent with the views expressed in this opinion.

Convictions affirmed;
death sentence vacated;
cause remanded.

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