People v. Hickey

People v. Hickey, No. 80106 (9/18/97)

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. 80106--Agenda 6--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARTHUR DALE
HICKEY, Appellant.
Opinion filed September 18, 1997.

JUSTICE McMORROW delivered the opinion of the court:
Following a jury trial in the circuit court of Will County,
the defendant, Arthur Dale Hickey, was convicted of first degree
murder, attempted first degree murder, aggravated battery with a
firearm, aggravated criminal sexual assault and home invasion. At
a separate sentencing hearing, the same jury found defendant
eligible for the death penalty. The jury also found that there were
no mitigating circumstances sufficient to preclude imposition of
that sentence. Defendant was sentenced to death for the murder and
to concurrent 60-year terms of imprisonment for the remaining
offenses. Defendant's death sentence has been stayed pending direct
review by this court. Ill. Const. 1970, art. VI, sec. 4(b); 134
Ill. 2d Rs. 603, 609(a). For the reasons which follow, we affirm
defendant's convictions and sentences.

Background
The defendant's convictions stem from the murder of Jeff
Stephens and the sexual assault and attempted murder of his wife,
Heather. At trial, Heather testified that in November 1991, she and
her husband lived in a two-story farmhouse on Route 102 in the
small town of Ritchie, Illinois. On the morning of November 25,
1991, between 5 and 5:30 a.m., Jeff got up to go to work. Heather
remained in bed, awake. November 25 was a Monday, the day of the
week that garbage was collected at the Stephens' home. Jeff went
downstairs from the second-floor bedroom to take the garbage out to
the end of the driveway for pickup. Shortly after Jeff had gone
downstairs, Heather heard yelling and then a gunshot from outside
the house, from an area near the driveway. Heather got up and
looked out her bedroom window. However, she was unable to see what
was happening because a portion of the house obstructed her view.
Heather went to put on her bathrobe, which hung on the back of
the bedroom door. Before she had finished putting on her robe, a
man wearing a ski mask and holding a gun appeared in the bedroom
doorway. The man forced Heather onto the bed, where he tied her
wrists to separate bedposts. The man then left the bedroom and
Heather heard the sound of something being dragged into the house.
The man returned to the bedroom, removed his ski mask and all
of his clothing except his shirt, and attempted to sexually assault
Heather. No lights were on in the bedroom. A small nightlight in
the hallway outside the bedroom shone down on the stairs. Also,
because it was not yet dawn and the blinds to the windows were
shut, no light entered the bedroom from outside the home.
Heather testified that the man had trouble as he attempted to
engage in sexual intercourse. The man left the room and came back
with a lotion which he put inside Heather. He then sexually
assaulted Heather while kneeling on the bed. The man's face was two
to three feet away from Heather, but because she was frightened,
Heather tried not to look at him. Heather was nearsighted and wore
glasses, but she was not wearing her glasses during the attack.
When the man finished assaulting Heather, he put his clothes
on and asked her "where the money was." He also asked her for the
keys to the Stephens' red Plymouth Laser, which was parked outside
in the driveway. Heather told the man that there was money on the
bedroom dresser and that the keys to the Laser were in the pocket
of Jeff's pants. The man took between thirty and forty dollars off
the dresser and left. Heather then heard the Laser's car alarm go
off. The man returned to the bedroom and asked Heather how to turn
off the alarm. Heather told him how to do so. After shutting off
the alarm, the man came back into the bedroom and told Heather to
turn her head. The man then shot Heather in the side of her face.
Heather was unconscious for a short while. When she awoke, she
saw that the ropes which had been used to tie her to the bed were
gone. After hearing a car back out of the driveway, Heather went
downstairs. She found Jeff lying at the foot of the stairs,
unconscious. Jeff had been shot in the head. Heather tried to use
the telephone but discovered that the line was dead. Heather then
went to a neighbor's house to summon help. Shortly thereafter, the
police and paramedics arrived.
Heather initially told police that her assailant was in his
20s, was between 5 feet and 5 feet 4 inches tall, weighed 130
pounds, had medium length, stringy blond hair, and had no facial
hair. She also told police that she could identify her attacker if
she saw him again. While Heather was at the hospital being treated
for her injuries, she helped a police artist make a sketch of a
subject based upon her description. Heather viewed photo lineups
and mug books on many occasions during the 16-month period
following the attack. Some of the photo lineups included
photographs of defendant. However, Heather was never able to
identify anyone as her assailant.
Testimony at trial established that in November 1991,
defendant was 40 years old, was 5 feet 6 inches tall, had dark hair
with some gray in it, and had a mustache. Further testimony
established that in March 1992, defendant weighed between 180 and
190 pounds. On the witness stand, Heather testified that she felt
she was no longer capable of identifying her assailant. She stated
that she was not certain that her assailant had blond hair, and
said that she could not recall if her assailant had any facial
hair. She was certain, however, that the man who attacked her was
taller than she was (she is 5 feet 3 inches tall). Heather
explained that she no longer had confidence in her ability to
identify her assailant because of the amount of time that had
passed since she was attacked; the number of photo lineups she had
been shown without obtaining any positive results; the darkness of
her bedroom at the time of the attack; and the traumatic nature of
the attack. When asked to identify defendant, Heather stated that
she had not seen him before and that, to her knowledge, he had
never been in her home.
The Stephens' Plymouth Laser was discovered in the parking lot
of a Super Value grocery store in Wilmington, Illinois, at 7:51
a.m. on November 25, 1991. Wilmington is located approximately
three miles north of Ritchie. Daniel Simenson, an evidence
technician for the Will County sheriff's department, examined the
Laser for evidence. He found a small section of purple and yellow
nylon rope inside the car. He was unable to find any fingerprints
on the car other than those belonging to Jeff or Heather Stephens.
Will County Deputy Sheriff Robert Persicketti examined the
Stephens' home for evidence on November 25, 1991. He photographed
and videotaped the home and a portion of the surrounding area.
Inside the home he recovered several items, including a tooth and
a bullet found in a bathroom, a .25-caliber shell casing found in
Heather's bedroom, a pair of wire cutters, also found in Heather's
bedroom, and a two-foot long section of nylon rope found in a
hallway. He retrieved a hair from Heather's bed and secured the
bedsheets. A United Parcel Service door tag with a bloody shoeprint
on it was also found at the scene. Outside the home, in the area of
the driveway, Persicketti found drag marks in the snow, a set of
keys, a "Kool" brand cigarette butt, and another .25-caliber shell
casing. Persicketti also observed that the telephone lines to the
house had been cut. Persicketti attempted to recover fingerprints
from various items in the home, including doors, the wire cutters,
and jars and containers from the Stephens' bathroom. However, he
was unable to recover any fingerprints which were suitable for
analysis. Persicketti also photographed a shoeprint which was found
in the snow by the Laser in the grocery store parking lot in
Wilmington.
David Turngren, a forensic scientist at the Illinois State
Police forensic science lab in Joliet, testified that he recovered
approximately 200 hairs and hair fragments from a sheet taken off
the Stephens' bed. Two pubic hairs recovered from the bedsheet did
not match either of the victims' hairs. Of these two hairs, one was
consistent with defendant's pubic hair standard. This meant only
that defendant could not be excluded as the donor of that hair.
Analysis of the other pubic hair was inconclusive. Turngren stated
that an assistant State's Attorney withdrew a request that DNA
analysis be performed on the hair that was consistent with
defendant's standard.
Robert Hunton, a firearms expert, testified that the bullets
which had killed Jeff and wounded Heather were fired from the same
.25-caliber gun. The fired shell casings found in the Stephens'
driveway and in Heather's bedroom were also fired by a single
weapon.
Defendant's stepson, Mike Adermann, testified that he lived
with defendant in Ritchie in November 1991. Adermann stated that
defendant called him at home at about 6 a.m. on November 25, 1991,
and asked to be picked up at the Shell gas station in Wilmington.
The Shell station was located across the street from the grocery
store parking lot where the Stephens' Plymouth Laser was
discovered. Adermann stated that he picked up defendant at the gas
station and then drove back to Ritchie. When the two returned to
Ritchie they noticed police cars along Route 102. Defendant behaved
normally when they saw the cars. Adermann testified that he dropped
defendant off near the village hall in Ritchie, which was on Route
102 near the Stephens' home. As Adermann began to drive away, he
looked back and saw what he believed to be defendant's van, parked
near the village hall. Adermann then drove home. Shortly
thereafter, defendant arrived home in his van.
Adermann further testified that defendant owned some handguns,
and said that defendant might have kept a handgun in his van.
Adermann also stated that he was not interviewed by police until
April 20, 1993. During that interview, the police told Adermann
that someone had phoned them and said that defendant was involved
in the murder of Jeff Stephens. Adermann remembered the crime and
subsequently told the police about the events which had occurred on
the morning of November 25, 1991.
One of the Stephens' neighbors, Richard Findley, testified
that he was getting ready to go to work at approximately 5:30 a.m.
on the morning of the crimes, when he heard an argument take place
outside his home. Findley heard someone say something like, "get
back into the house" or "get back in there." Findley left for work
at approximately 5:55 a.m. When he left, it was "pitch black"
outside. Findley stated that as he drove to work, he saw a black
and white, two-tone van parked near the village hall, just off
Route 102. On October 3, 1993, a police investigator interviewed
Findley and showed him a picture of defendant's van. Findley did
not think that the van he saw matched the picture of defendant's
van because of the different shapes of the vans' front ends. The
parties stipulated that defendant owned a silver and gray 1987 Ford
Aerostar van.
Another neighbor of the Stephens, Judith Howell, a registered
nurse, testified that Heather came over to her home at about 6:15
a.m. on November 25, 1991. Heather was visibly shaken, her face was
bleeding and she was spitting out teeth. Heather told Howell that
she needed to use the phone and asked Howell to come back to her
house to help Jeff. While Howell's daughter phoned the police,
Heather and Howell went back to the Stephens' house. When they
reached Jeff, Howell saw that a portion of his skull had been blown
away, that he was gurgling, and that his pulse was weak and
thready. She concluded that there was nothing she could do for him.
Howell stayed at the Stephens' house until the police and
paramedics arrived. Howell testified that she smoked "Kool Mild"
cigarettes but stated that she did not leave a cigarette butt on
the Stephens' driveway.
Tamara Hansen testified that she was the office manager at a
general contractor's business that employed defendant in November
1991. Hansen stated that defendant's last week of work was November
4 through November 10. She did not know if defendant had come to
the business' premises on November 25, 1991, hoping to obtain work
for the day.
Susan Coppage, a nurse, testified that blood samples and
vaginal and rectal swabs were taken from Heather at the hospital
where she was treated for her injuries on November 25, 1991.
Subsequent testing confirmed the presence of semen on the swabs.
Testing also confirmed the presence of semen on a pair of panties
worn by Heather, and the presence of blood on a sweatshirt which
Jeff was wearing when he was shot. Several witnesses testified in
detail regarding the chain of custody of the blood samples, the
swabs, the panties and the sweatshirt.
David Metzger, research coordinator of the Illinois State
Police's DNA Research Development Laboratory, testified for the
State regarding deoxyribonucleic acid (DNA) evidence. Metzger
described generally the process of restriction fragment length
polymorphism (RFLP) DNA profiling. Metzger explained that the first
step in this process involves the extraction of the DNA from the
various materials to be examined and compared. Typically, these
materials include an evidence sample of blood or semen and a
suspect's blood sample. A restriction enzyme is used to cut the
samples of DNA into a large number of fragments of varying length.
The fragments from the evidence DNA sample and the suspect's DNA
sample, as well as other control samples, are then placed side-by-
side into separate lanes in a gel and exposed to an electric
current. The current causes the fragments to move through the gel,
with the smaller fragments moving faster than the longer ones. When
the current is stopped, the shorter fragments will have moved
greater distances than the longer ones. The DNA fragments are then
transferred from the gel to a stable nylon membrane. In the
process, Metzger stated, the double-stranded DNA molecule is made
single-stranded. Next, a commercially available DNA probe is made
radioactive and washed over the membrane. The probe bonds to the
single-stranded DNA samples at a specific target site or locus. The
locus varies in length from person to person and, hence, varies in
location on the membrane. The membrane is then washed and placed
between two pieces of X-ray film. When the film is developed, bands
will appear where the probe has bonded to the DNA fragments.
Metzger explained that the developed X-ray film is called an
autoradiogram or autorad. The bands on the autorad produced by the
evidence DNA and the suspect's DNA are compared to one another to
see if they are located in the same place. This is done visually
and with a computer imaging process. If the bands do not match (an
exclusion), then the DNA samples did not come from the same source.
If the bands match, further statistical analysis must be performed
to determine the chances of the match being the result of
coincidence rather than the result of the suspect's being the donor
of the evidence sample.
Metzger testified that he was able to extract DNA from a stain
card which contained Heather's blood, from semen found on certain
of the vaginal and rectal swabs taken of her, from semen found on
a swatch of her panties, and from a swatch of Jeff's sweatshirt
which contained blood. Metzger then began analyzing the DNA using
the RFLP process. However, the restriction enzyme which Metzger
used was allowed to stay on the DNA too long and, as a result, no
interpretable results were obtained. Metzger then performed another
method of DNA analysis, polymerase chain reaction (PCR)[fn1], with
these samples. This analysis excluded Jeff Stephens and several
criminal suspects as donors of the evidence semen sample. After
Metzger performed the PCR analysis, he photographed the strips
which displayed the results. He then discarded the PCR strips
because they could not be used for anything else and because the
color of the strips, which establishes the results of the test,
changes over time.
Metzger then requested further evidence samples. He received
Heather's panties and additional vaginal swabs that had been taken
of her, both of which contained suspect sperm. Metzger also
received samples of defendant's blood. Metzger extracted DNA from
the vaginal swabs, the panties, Jeff's sweatshirt, Heather's blood,
and defendant's blood. Metzger exposed these DNA samples to nine
different probes and developed nine autorads. In Metzger's opinion,
the bands on the autorads from defendant's DNA matched the bands on
the autorads from the evidence semen DNA.
Metzger explained that he used the procedure known as fixed-
binning to determine the probability of a coincidental match. In
this process, the bands which appear on an autorad are assigned to
size classes, known as bins. A population database is then used to
determine how frequently these bins occur in a population. Metzger
stated that the database from which the State Police calculated
population frequencies consisted of blood samples taken from about
400 Illinois Caucasians and 200 Illinois African-Americans. When a
DNA sample is exposed to a number of different probes, and a number
of different autorads are developed, the resulting bands on the
autorads are collectively referred to as a DNA profile. Once the
bin frequencies on individual autorads are determined, further
calculations are performed to determine the frequency with which
the DNA profile occurs in a population. Metzger discussed two
methods of calculating the frequency with which a DNA profile
occurs in a population: the product rule and the interim ceiling
approach. Using the product rule of frequency calculations, Metzger
believed that the probability that a person other than defendant,
randomly selected from the population, would have the same DNA
profile as that provided by the first five probes he used on the
evidence semen sample, was 1 in 15 billion. Using eight of the nine
probes, plus the PCR results, and the interim ceiling method of
calculation, the random match probability was 1 in every 43 billion
people. In Metzger's opinion, the DNA from the evidence semen
sample originated from defendant.
Dr. Michael Conneally, distinguished professor of medical
genetics and neurology at Indiana University Medical Center, also
testified regarding the DNA evidence. Conneally was familiar with
the State Police laboratory's procedures, or protocol, and its
population database, both of which were similar to those
established by the FBI. Conneally testified that the laboratory's
protocol and its database were scientifically valid. Conneally also
believed that the autorads produced by Metzger were of excellent
quality. Conneally agreed with Metzger's random match calculation
of 1 in 15 billion. Conneally stated that based on the nine probes
and the PCR results, he had no doubt that the DNA from the evidence
semen sample and the DNA from defendant were the same.
On cross-examination, Conneally testified that the State
Police laboratory's use of the product rule to calculate profile
frequencies was scientifically valid, and that there was no
significant controversy in the scientific community regarding the
use of that principle. Conneally acknowledged that DNA can degrade,
and that degraded DNA can create false results. However, Conneally
stated that there was no evidence of degradation of the DNA in this
case and, further, that he would be able to detect any degradation
based on his experience in interpreting autorads.
Dr. Randell Libby, a molecular geneticist, was the first
witness for the defense. Libby noted that the National Research
Council (NRC), a group of distinguished scientists operating under
the auspices of the National Academy of Science, had issued a
report in 1992 which recommended that forensic laboratories follow
a number of quality assurance guidelines when performing DNA
analysis. According to Libby, the State Police laboratory was
operating in violation of these guidelines, in that they did not
report laboratory error rates, did not properly conduct blind
proficiency testing, and did not monitor the laboratory's level of
reproducibility.
In this case, Libby believed that Metzger erred when he
overexposed the initial DNA samples to the restriction enzyme and
was thus unable to perform further RFLP analysis. According to
Libby, Metzger also erred, under his laboratory's protocol, when he
discarded the PCR typing strips which he developed for these
initial samples. Libby noted that misuse of the restriction enzyme
during the RFLP process can lead to extra bands or band shifting on
autorads, which indicates that the final results may not be
reliable. The use of monomorphic probes is a control against such
band shifting. However, Libby stated that Metzger used only
polymorphic probes. Libby was also critical of Metzger's failure to
verify the specificity of the restriction enzyme which he had used.
Libby testified that other problems with Metzger's DNA
analysis included the poor quality of the blood sample taken from
Jeff Stephens' sweatshirt, and the degradation of virtually all of
the DNA samples. In Libby's opinion, all of the autorads produced
by Metzger had extra bands, or bands that were too light or too
dark, due to the insufficiency of the enzyme cutting process, the
contamination or degradation of the samples, or other causes. For
these reasons and others, Libby concluded that Metzger was not
justified in finding a match between defendant's DNA sample and the
evidence semen sample.
Dr. Lawrence Mueller, an associate professor in the Department
of Ecology and Evolutionary Biology at the University of
California, Irvine, was the defense's second expert witness
regarding DNA. Mueller insisted that the product rule, used by
Metzger to calculate the random match probability of 1 in 15
billion for the evidence semen sample, was not a scientifically
valid method. Mueller noted that in its 1992 report, the NRC
recommended that the interim ceiling principle be used to calculate
profile frequencies. The NRC also recommended that population
databases include a large number of heterogeneous population
subgroups. The NRC committee which made these recommendations
included many distinguished scientists, including Mueller himself.
Mueller believed that there was a significant dispute in the
scientific community regarding the NRC recommendations. Using the
interim ceiling approach and a database which included several
heterogenous population groups from around the world, Mueller
calculated that the random match probability of the DNA profile of
the evidence semen sample produced by using five of the nine probes
which Metzger had used was 1 in 1,800.
Robert Anderson testified that he drove past the Stephens'
house at about 5:45 a.m. on November 25, 1991, while on his way to
work. Anderson stated that he saw a large, "tannish" colored car
parked in the Stephens' driveway and two men talking nearby. One of
the men was taller than the other man, had dark, wavy hair, and was
wearing a blue down-type coat. The shorter of the two men had
blond, fluffy hair and was wearing a white and blue or black
checkered shirt or coat. Defendant did not resemble either of the
two men. Anderson subsequently met with Will County officers and
identified two photographs of certain models of cars as possibly
being the one he had seen in the Stephens' driveway. Nine months
later, Will County Sheriff's investigator Gloria DeLeon drove
Anderson around the nearby town of Coal City to see if he could
identify the car he had seen. He did so. On cross-examination
Anderson testified that he drove by the Stephens' house at 45 miles
per hour on the morning of the crime and that it was very dark out.
He also stated that his car's headlights swept across the Stephens'
house as he made a turn onto Route 102 and that nearby street and
porch lights provided further illumination of the scene.
Jeffrey Ford testified that in November 1991, he worked at the
Super Value grocery store in Wilmington where the Stephens'
Plymouth Laser was discovered. At 6:30 a.m. on November 25, 1991,
Ford saw a man standing by the Laser in the parking lot. He heard
a car alarm being set or turned off. The man Ford saw was
approximately 6 feet tall, was skinny, and had short, dark hair.
Ford testified that the man did not resemble defendant. However,
Ford also stated that he could not identify the man he had seen.
Christine Adermann, defendant's stepdaughter, testified that
in November 1991, defendant had mostly black hair with some gray in
it, had a stocky build, and wore a mustache. Defendant owned a
black and gray van and smoked only "Camel" cigarettes. Christine
stated that defendant worked in construction and that he had a
junking business on the side. She also stated that it would not be
unusual for defendant to get up early on garbage days to check
people's trash for salvageable items. Diana Clover, defendant's
sister, substantiated Christine's testimony.
Richard Baum, a private investigator, videotaped the route
which Michael Adermann took through Ritchie on the morning of
November 25, 1991. The purpose of the videotape was to determine if
the village hall could be seen from various points along the route.
Baum acknowledged that the foliage conditions seen in the videotape
would have differed on November 25, 1991.
Gloria DeLeon, head investigator for the Will County sheriff's
department on this case, testified that she interviewed Heather
several times. She also showed her approximately 14 photo lineups,
two of which included pictures of defendant. Heather never made any
comment about defendant's pictures and was never able to identify
anyone as her assailant. DeLeon stopped showing photographs to
Heather after preliminary DNA results were obtained from Metzger,
even though further viewings were scheduled. DeLeon stated that she
stopped showing photographs to Heather because Heather had told her
that she no longer thought she could pick anyone out of a lineup.
DeLeon did not record this statement in a police report.
In the State's rebuttal, DeLeon narrated a videotape which
purported to show the view of the Stephens' driveway and home which
Robert Anderson would have had as he drove by at 45 miles per hour
on the morning of November 25, 1991.
William Frank, DNA Research Coordinator for the Illinois State
Police, testified for the State as an expert in forensic DNA
analysis. Frank stated that he had reviewed the work which Metzger
had done on defendant's case. He discussed the quality control
measures which Metzger employed and stated that he agreed with
Metzger's findings. Frank acknowledged that there were artifacts,
or marks other than bands, on the autorads produced by Metzger.
Frank maintained, however, that these artifacts were normal and
harmless, and that they did not compromise Metzger's analysis in
any way.
At the conclusion of Frank's testimony, the State rested.
Following arguments, the jury convicted defendant of first degree
murder, attempted first degree murder, aggravated battery with a
firearm, aggravated criminal sexual assault, and home invasion.
During the eligibility phase of the death penalty proceedings,
the defense called two witnesses, Gloria Deleon and Kevin Stephens.
DeLeon repeated her testimony regarding Robert Anderson's
identification of the car in Coal City. DeLeon testified that upon
investigation, she learned that this car belonged to Julianna Roul,
the girlfriend of Kevin Stephens, Jeff Stephens' first cousin.
DeLeon stated that after Anderson identified the car, a blood
sample was taken from Kevin Stephens and compared to the evidence
semen sample. This analysis eliminated Kevin Stephens as a suspect.
DeLeon also stated that Kevin Stephens' best friend was Joseph
Collins. Collins was described as being 5 feet 1 inch tall, 25
years old, and as having blond hair. In her testimony, DeLeon did
not indicate whether a blood sample was taken from Collins. Kevin
Stephens substantiated DeLeon's testimony.
Following arguments, the jury found defendant eligible for the
death penalty for having committed murder in the course of another
felony.
At the final phase of sentencing, the State presented two
witnesses in aggravation. Heather read her victim impact statement
to the jury. Terry Kreimeier, a Will County sheriff's investigator,
testified that in 1992, defendant pled guilty to a charge of
criminal sexual assault involving his stepdaughter, Michelle
Adermann. Kreimeier also testified as to other acts of sexual
misconduct and threats of violence involving Michelle Adermann and
her sister Christine Adermann. The jury was also told that
defendant pled guilty to a charge of burglary in 1977.
In mitigation, the defense called two witnesses. Harold
Barnes, the defense's mitigation preparation expert, interviewed 16
family members and 21 friends or neighbors of defendant. Barnes
described defendant's life from his youth until the time of trial.
Barnes stated that as a young man, defendant contracted polio. He
also struggled with his family's poverty and his mother's illnesses
and nervous breakdowns.
Barnes testified that defendant dropped out of high school
and, at the age of 18, was married. Defendant and his wife had two
children. However, they were divorced due to his wife's
unfaithfulness. Barnes explained that the loss of his family was
devastating to defendant. Later, defendant married Linda Adermann,
and cared for her three children from a previous marriage, Michael,
Michelle, and Christine. Defendant had one child with Linda, a boy
named David. Barnes stated that, after a time, Linda began
deserting the family, occasionally for months at a time.
Eventually, Linda abandoned her family entirely. During the times
that Linda was away from the family, defendant cared for the three
Adermann children as well as David. The Adermann children and David
all told Barnes that defendant was a strict, but good, parent.
Defendant's friends and neighbors spoke well of defendant. Barnes
also stated that defendant was a model prisoner during two previous
terms in prison.
Diana Clover, defendant's sister, also told the jury about how
defendant had cared for the Adermann children after their mother
left them. Clover had custody of Christine Adermann and David
Hickey. Clover stated that both children loved defendant.
The jury found that the mitigation evidence was insufficient
to preclude a death sentence, and that sentence was imposed. This
appeal followed.

Analysis
Admission of the DNA Evidence
Prior to trial, defendant requested a hearing pursuant to Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923), to contest the
admissibility of the DNA evidence offered by the State. See People
v. Thomas, 137 Ill. 2d 500, 517 (1990). Under Frye, novel
scientific evidence must be generally accepted in the relevant
scientific community before it may be admitted in court. Thomas,
137 Ill. 2d at 517. In his motion requesting a Frye hearing,
defendant asserted that the RFLP method of DNA profiling in
general, and the protocol which Metzger followed in performing the
RFLP analysis in this case, were not generally accepted in the
relevant scientific community. Defendant also alleged that the
product rule was not a generally accepted means of calculating the
frequency with which a DNA profile occurs in a population.
Accordingly, in his motion, defendant argued that the DNA evidence
should not be admitted at trial. After hearing arguments, the trial
court declined to hold a Frye hearing and ruled that the DNA
evidence was admissible. The trial court based its holding upon the
fact that in another, unspecified circuit court case, it had
conducted a Frye hearing and had found the RFLP method of DNA
analysis, and the product rule, generally accepted by the relevant
scientific community.
In his opening brief before this court, defendant repeats the
assertions which he made in his pretrial motion for a Frye hearing.
Defendant argues that there is significant controversy in the
scientific community regarding the forensic use of the RFLP
technique and the use of the product rule. Defendant asserts that
because these scientific procedures are not generally accepted by
the relevant scientific community, the trial court's refusal to
hold a Frye hearing, and its subsequent admission of the DNA
evidence, constitute reversible error.
Shortly after defendant's initial brief was filed, this court
addressed the challenges raised by defendant with respect to the
admissibility of RFLP profiling in another case. In People v.
Miller, 173 Ill. 2d 167 (1996), we concluded that the forensic use
of RFLP analysis is generally accepted by the relevant scientific
community. We also concluded that the product rule is a generally
accepted method of calculating DNA profile frequencies. Miller, 173 Ill. 2d at 188-89. Nothing has occurred in the short time since our
decision in Miller was issued which would cast doubt upon the
results reached in that case. To the contrary, recent developments
in the scientific community indicate continued support for the use
of RFLP profiling and for the use of the product rule. In the
latter part of 1996, the NRC released an update to the 1992 report
referred to by defense witnesses Randell Libby and Lawrence Mueller
in their testimony at trial. The 1996 report concludes that "[t]he
state of the profiling technology and the methods for estimating
frequencies and related statistics have progressed to the point
where the admissibility of properly collected and analyzed DNA data
should not be in doubt." National Research Council, The Evaluation
of Forensic DNA Evidence, Committee of DNA Forensic Science: An
Update 36 (National Academy Press 1996) (hereafter NRC Update). The
update also specifically concludes that sufficient data have been
gathered to establish that the interim ceiling principle is not
needed and further recommends that, in general, the calculation of
a profile frequency should be made with the product rule. NRC
Update at 5, 35. See also State v. Copeland, 130 Wash. 2d 244, 261-
68, 922 P.2d 1304, 1315-19 (1996) (finding the product rule
generally accepted in the relevant scientific community); State v.
Johnson, 186 Ariz. 329, ___, 922 P.2d 294, 300 (1996) (discussing
a prepublication version of the NRC Update); Brim v. State, 695 So. 2d 268, 273 (Fla. 1997) (noting that the NRC disavowed the interim
ceiling principle in its 1996 update).
In light of our decision in Miller, and the 1996 NRC report,
we conclude that defendant was not prejudiced by the trial court's
failure to hold a Frye hearing. Furthermore, we note that the
issues which defendant has raised with respect to the caliber of
the work performed by Metzger in this case, including laboratory
protocol and the manner in which it was followed, the various
quality control and quality assurance measures which Metzger
employed, and the possible contamination or degradation of the DNA
samples, are not properly subject to a Frye analysis. Instead,
these issues go to the weight of the evidence, and not its
admissibility under Frye. See Copeland, 130 Wash. 2d at 268-76, 922
P.2d at 1319-23; People v. Dalcollo, 282 Ill. App. 3d 944, 957
(1996); see also Thomas, 137 Ill. 2d at 518. Defendant was afforded
ample opportunity, through the granting of extensive discovery and
the services of two expert witnesses, to present to the jury his
criticisms regarding the quality of the work which Metzger
performed in this case. The State's experts were also able to
present their opinions on the caliber of Metzger's work. We find no
error in the admission of the DNA evidence.

Failure to Hold a Franks Hearing
Beginning in April 1992, and continuing through March 1993,
the Will County sheriff's department and the Wilmington police
department received four anonymous tips indicating that defendant
was involved in the murder of Jeff Stephens and the attempted
murder and sexual assault of Heather Stephens. Gloria DeLeon, the
head investigator for the Will County sheriff's department, learned
that defendant was incarcerated in the Illinois Department of
Corrections in 1992 as a result of a conviction for sexual abuse of
his stepdaughter, Michelle Adermann. Under section 5--4--3 of the
Unified Code of Corrections (730 ILCS 5/5--4--3 (West 1994)),
certain sex offenders and sexually dangerous persons are required
to submit blood specimens to the State Police for the purpose of
establishing a data bank composed of DNA profiles. Pursuant to this
statute, a blood sample was taken from defendant, the DNA
extracted, and an RFLP analysis performed. The resulting profile
was stored in the sexual offenders DNA data bank.
On April 6, 1993, a search of the data bank indicated a
preliminary match between defendant's DNA profile and the profile
of the DNA extracted from the semen found on Heather's panties and
on the vaginal swabs taken of her at the hospital on November 25,
1991. Subsequently, on April 14, 1993, DeLeon submitted a complaint
for a search warrant to obtain samples of defendant's blood and
saliva. Included with the complaint was a supporting affidavit
authored and sworn to by DeLeon. On the strength of the affidavit,
the search warrant was issued and a blood sample was collected from
defendant. This blood sample was eventually forwarded to Metzger at
the State Police laboratory and used in his DNA analysis.
After defendant was charged with the instant offenses, he
filed a motion for an evidentiary hearing, under Franks v.
Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), to
challenge the search warrant and to suppress the DNA evidence.
According to defendant, DeLeon intentionally or with reckless
disregard for the truth omitted crucial information from the
warrant affidavit, particularly with respect to the preliminary DNA
results obtained from the search of the sexual offenders DNA data
bank. The trial court heard arguments on defendant's motion and
concluded that a Franks hearing was not warranted. Before this
court, defendant maintains that the trial court erred in denying
him a Franks hearing. Defendant requests this court to order the
suppression of the DNA evidence and a grant him a new trial or,
alternatively, to remand for a Franks hearing.
In Franks, the United States Supreme Court held that in
certain limited circumstances, a defendant may be allowed an
evidentiary hearing to challenge the truthfulness of the affidavit
used by the police to obtain a search warrant. In order to obtain
a Franks hearing, the defendant must make a " `substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit,' " and that
" `the allegedly false statement is necessary to the finding of
probable cause.' " People v. Lucente, 116 Ill. 2d 133, 147 (1987),
quoting Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct.
at 2676. The substantial preliminary showing necessary to warrant
a Franks hearing requires the defendant to offer proof that is
"somewhere between mere denials on the one hand and proof by a
preponderance on the other." Lucente, 116 Ill. 2d at 152. In
addition, if after setting the allegedly false material to one side
there is sufficient information left in the affidavit to support a
finding of probable cause, a hearing is not required. Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.
The reasoning of Franks extends to those situations where
information necessary for a determination of probable cause is
intentionally or recklessly omitted from the warrant affidavit.
People v. Stewart, 105 Ill. 2d 22, 43 (1984). In these situations,
in order to be granted a hearing, a defendant must show that the
information was omitted with the purpose of misleading the judge
issuing the warrant, and that the omitted information was material
to the determination of probable cause. Stewart, 105 Ill. 2d at 44.
For omitted information to be material to the determination of
probable cause, and thus, " `to serve as the basis for a hearing
under Franks, it must be such that its inclusion in the affidavit
would defeat probable cause.' " 2 W. LaFave, Search & Seizure sec.
4.4(c), at 498 (3d ed. 1996), quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990); Stewart, 105 Ill. 2d at 47.
The pertinent portions of DeLeon's affidavit state:
"An interview was conducted eventually of Heather
Stephens when her condition improved and she described
her attacker as a male/white, approximately 5'2" to
approximately 5'5", approximately 140 lbs., light colored
hair and on the younger side. It is important to state
that Heather Stephens is extremely poor sighted and she
did not have glasses on at the time of her sexual
assault. Her sexual assault also occurred in a dark area
and she stated she did not get a good look at the
individual who assaulted her although she feels that is
she saw him again, she could identify him. ***
*** Arthur Dale Hickey fits the general size
description of the offender but Mr. Hickey is older than
what was described by Heather Stephens in that Mr. Hickey
was born in 1951. Throughout this investigation, on
numerous occasions, Heather Stephens has observed mug
books and groups of photographs of people, with each
group being approximately 20 to 40 people. Heather
Stephens has observed over 300 of these photographs and
approximately 2 or 3 times the photo arrays shown to her
included Arthur Dale Hickey and she has never picked out
Mr. Hickey as being her attacker.
*** The State Police had occasion to receive a blood
sample which was labeled as coming from Mr. Hickey and
that blood sample was worked up in such a manner that
comparable DNA testing was done on that blood sample. The
genetic markers from Mr. Hickey's DNA testing matched the
genetic markers of the semen obtained from the victim,
Heather Stephens. This was done similar to the State
Police's use of a computer to perform AFIS fingerprint
comparisons. David Metzger of the Illinois State Police,
Division of Forensic Services, who is the DNA research
coordinator, contacted your complainant with a letter
stating of this match through the use of the DNA index
data base containing Mr. Hickey's known sample. Mr.
Metzger requests that your complainant obtain additional
blood and saliva standards from Mr.Hickey to insure the
chain of evidence on Mr. Hickey's blood so that the DNA
of Hickey's blood can be directly compared to the DNA
from the semen sample retrieved from Heather Stephens."
(Emphasis added.)
DeLeon's affidavit also states that four anonymous tips were
received which implicated defendant in the instant crimes.
Defendant asserts that DeLeon made three major
misrepresentations in her affidavit, the first two of which relate
to the physical description of defendant. First, defendant
maintains that DeLeon omitted several of the physical
characteristics of defendant. Specifically, defendant states that
DeLeon omitted the fact that she knew defendant had dark or brown
hair in 1991; omitted the fact that defendant weighed at least 165
pounds in 1991; omitted the fact that defendant is 5 feet 6 inches
tall; omitted the fact that defendant was 40 years old in November
1991; and omitted the fact that while Heather had stated that her
attacker had no facial hair, defendant had a mustache in 1991.
Second, defendant maintains that DeLeon made an affirmative
misstatement when she noted that "Arthur Dale Hickey fits the
general size description of the offender."
The third alleged misrepresentation, and the most significant
in defendant's view, is that DeLeon omitted important contextual
information with respect to the results obtained from the search of
the sexual offenders DNA data bank. In support of this contention,
defendant points to a letter which DeLeon received from Metzger's
office three days before she submitted her affidavit. The letter
states that the DNA from the evidence semen was searched against
the sexual offenders data bank at three loci. It then states that
defendant "demonstrates a DNA profile that is consistent with the
evidence profiles and could be the donor of the seminal material
identified. This finding can be used for investigative purposes.
However, it will be necessary to submit additional blood and saliva
standard samples from Mr. Hickey for confirmatory forensic
analysis."
Defendant argues that DeLeon should have explained in her
affidavit that the "match" which resulted from the search of the
sexual offenders data bank was merely a preliminary result,
obtained, as the letter from Metzger's offices states, from a
three-probe, RFLP analysis. Defendant maintains that DeLeon should
have noted that the State Police laboratory requires that a DNA
sample be subjected to a minimum of four or five probes to obtain
a meaningful RFLP profile. According to defendant, DeLeon also
should have stated that a blood sample was needed from defendant
not only to insure the chain of custody but, more importantly, to
confirm the results of the preliminary, three-probe analysis.
Without this contextual information, defendant asserts that the
judge who issued the search warrant had no way to gauge the
significance of the match which resulted from the search of the
sexual offenders data bank. Defendant maintains that he has made a
substantial preliminary showing that DeLeon intentionally, or with
reckless disregard for the truth, omitted this contextual
information, as well as the information regarding defendant's
physical characteristics. From this, defendant argues that the
trial court erred in denying him a Franks hearing. We disagree.
The probable cause requirement necessary to support the
issuance of a search warrant is rooted in principles of common
sense. "The task of the issuing magistrate is simply to make a
practical, commonsense decision whether, given all the
circumstances set forth in the affidavit before him, including the
`veracity' and `basis of knowledge' of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. And the
duty of the reviewing court is simply to ensure that the magistrate
had a `substantial basis for ... conclud[ing]' that probable cause
existed." Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332 (1983), quoting Jones v. United
States, 362 U.S. 257, 271, 4 L. Ed. 2d 697, 708, 80 S. Ct. 725, 736
(1960); see also People v. Tisler, 103 Ill. 2d 226 (1984).
In the case at bar, the finding of probable cause for the
issuance of the search warrant rested primarily on the DNA
information contained in the warrant affidavit. This court has
determined that RFLP profiling is generally accepted in the
relevant scientific community and, thus, satisfies the Frye
standard of admissibility. Miller, 173 Ill. 2d at 188-89. The
identification of defendant through the sexual offenders data bank
was based upon RFLP analysis. In addition, while a match across
three loci may in general be considered preliminary, such a match
unquestionably establishes a "fair probability that *** evidence of
a crime will be found" (Gates, 462 U.S. at 238, 76 L. Ed. 2d at
527, 103 S. Ct. at 2332) in the identified suspect's blood sample.
Accordingly, even if DeLeon's affidavit had explained that the
search of the sexual offenders DNA data bank indicated only a
preliminary match between defendant's DNA and the evidence semen
DNA, probable cause would exist to support the issuance of the
search warrant for defendant's blood sample. We note, moreover,
that a contrary result would seriously undermine, if not eliminate,
the usefulness of the sexual offenders data bank as a means of
identifying and locating perpetrators of offenses where DNA
evidence is the only meaningful evidence recovered. Finally, if the
statement that "defendant fits the general size description" given
by Heather were set to one side, and if the omissions regarding
defendant's physical characteristics were included in the
affidavit, the finding of probable cause based upon the DNA
information would not be altered. Therefore, we conclude that the
trial court did not err in denying defendant a Franks hearing.

Shifting of the Burden of Proof
Defendant argues that he is entitled to a new trial because
the prosecutor improperly shifted the burden of proof to defendant
in his cross-examination of defense expert Randell Libby and in his
closing argument. The following relevant exchange occurred during
the prosecutor's cross-examination of Libby:
"Q. Now, one of the things the NRC says that--is
that scientifically the best way to resolve ambiguity is
to repeat the experiment. Do you agree with that?
A. I would agree, yes.
Q. Now, you know from the case that Mr. Metzger,
after his completion of the case, had extra sample left?
A. Well, no, I do not agree that he had extra sample
left which was untested or unmanipulated by that
laboratory. I agree that there are some extra pieces [of]
Exhibit 31, swab number 1.
Q. That's right. There was an extra swab left,
right?
A. No, there was not an extra swab, there was a
partially, sort of manipulated, consumed swab which is
sort of remaining. But I would have the same position
with retesting that the FBI has."
Defense counsel objected to this line of questioning, arguing
that it improperly suggested to the jury that the defense had a
burden to perform further DNA testing. The trial court, outside the
presence of the jury, sustained the objection. Later, during
closing argument, the prosecutor stated that Libby "didn't like it"
when he was questioned about the NRC's conclusion that the best way
to cure ambiguous test results is to rerun the test.
Citing to People v. Weinstein, 35 Ill. 2d 467 (1966),
defendant asserts that the prosecutor's questioning of Libby and
his comments during closing argument improperly shifted the burden
of proof to defendant and, therefore, that he is entitled to a new
trial.
In Weinstein, the prosecutor told the jury, on five or six
occasions during closing argument, that it was the burden of
defendant to present evidence creating a reasonable doubt of her
guilt. At one point, the prosecutor confusingly stated that "to
overcome the presumption of innocence she must raise this
reasonable doubt." Weinstein, 35 Ill. 2d at 469. This court
concluded that the "persistent and repeated arguments" of the
prosecutor destroyed the presumption of innocence, imposed a
heavier burden upon the defendant than the law required, and
"manifestly prejudiced the defendant." Weinstein, 35 Ill. 2d at
469-70.
The questions and statements of the prosecutor in the case at
bar clearly do not rise to the level of the inappropriate arguments
made in Weinstein. In this case, the prosecutor never told the jury
that defendant had a burden of proof at trial, and certainly did
not make repeated arguments to that effect. See People v. Leger,
149 Ill. 2d 355, 400 (1992) (no error found, in part, because the
prosecutor made only one comment which allegedly shifted the burden
of proof). In addition, defense counsel told the jury that
defendant did not have to prove his innocence, and the jury was so
instructed by the trial court. Furthermore, any inference which the
prosecutor sought to plant with the jury with respect to
defendant's duty to test the semen sample found on the swabs was
precluded, in large measure, by Libby's answer that there was no
swab remaining which had not been manipulated or consumed by the
testing performed by the state police laboratory. For these
reasons, we reject defendant's contention that the prosecutor's
questions and statement constitute reversible error.

Closing Argument
Defendant contends that comments which the prosecutor made
during the rebuttal portion of his closing argument were so
improper as to have denied him a fair trial. Defendant categorizes
these comments as attacks on the defense attorneys, attacks on the
credibility of Libby, and comments improperly vouching for the
credibility of one of the State's expert witnesses, Michael
Conneally.
Defendant cites three statements made by the prosecutor as
being attacks on defense counsel. At the beginning of his closing
argument, the prosecutor told the jury that defense counsel had
made "a prolonged effort to misdirect you from the relevant
evidence in this case." Later, the prosecutor addressed the
defense's argument in regard to defendant's stepson, Michael
Adermann:
"MR. MCCABE [prosecutor]: And [defense counsel] is
right when he says that he didn't come forward because he
didn't want to probably hurt his stepfather. That's
probably accurate. I don't think there is any question
about it. But then he suggests now this only--you only
hear this from a defense attorney, he then discusses,
well, then he asked a question, well, if he doesn't want
to hurt his stepfather, why doesn't he just lie? You
know, only from a defense attorney. You know, it's like
people don't feel strongly about telling the truth. you
know that it doesn't mean--
MR. KIELIAN [defense counsel]: I'm going to object
to that. That's completely improper. Completely.
THE COURT: Overruled." (Emphasis added.)
The prosecutor also told the jury that it should not "swallow" the
defense characterization of Michael Adermann "along with all the
other smoke."
With respect to the "misdirection" and "smoke" comments,
defendant failed to object to them at trial, and his post-trial
motion makes no mention of them. Thus, defendant has waived any
error in relation to these comments. People v. Enoch, 122 Ill. 2d 176, 186 (1988). In addition, we decline to consider defendant's
arguments regarding these statements under the plain error
doctrine. 134 Ill. 2d R. 615(a). Under the doctrine of plain error,
a reviewing court may consider an error not properly preserved at
trial where the evidence is closely balanced or the error was so
fundamental and of such magnitude as to deny the defendant a fair
trial. Miller, 173 Ill. 2d at 191-92. We do not believe that either
of these circumstances applies in this case.
With respect to the "only from a defense attorney" comments,
we agree that they were improper. However, we do not believe that
they were so improper as to warrant reversal of defendant's
convictions. Comments made by a prosecutor during closing argument
will "constitute reversible error only when they engender
substantial prejudice against a defendant [citation] such that it
is impossible to say whether or not a verdict of guilt resulted
from those comments." People v. Henderson, 142 Ill. 2d 258, 323
(1990). In this case, the evidence offered by the State's expert
David Metzger demonstrated that defendant's DNA profile matched the
profile of the DNA extracted from the evidence semen sample.
Metzger's testimony also indicated that under the product rule, the
odds of a random match were 15 billion to 1. Defendant lived in the
same small town as the victims and his job as a salvager gave him
a reason to be at the victims' home early in the morning on garbage
day. Defendant's stepson testified that on the morning of the
crimes, he picked defendant up at a gas station near the grocery
store where the victims' car was recovered and that he saw
defendant's van parked near the victims' home. In addition, the
jury was instructed that the closing arguments of counsel were not
evidence that it could consider in determining guilt or innocence.
Given these facts, we can conclude that the guilty verdicts did not
result from the "only from a defense attorney" comments. Thus,
these comments did not engender substantial prejudice against
defendant sufficient to warrant reversal of his convictions.
Defendant next asserts that the prosecutor improperly attacked
the credibility of Libby. During closing argument, the prosecutor
made the following statements:
"MR. MCCABE: And who is Dr. Libby? Who is he? He's
an academic. He's an assistant professor making 35 grand
who jumped to $120,000 a year to testify for criminal
defendants. That's what he is.
MR. MARKESE [defense counsel]: Objection, judge.
That's an incorrect characterization, and if they don't
like my witnesses, threats are one thing, but I don't
think personal attacks do anything to the evidence or
help this jury resolve the facts.
THE COURT: Overruled.
MR. MCCABE: That's who he is. Now, knowing that,
that that is his bread and butter these days, and that's
sort of a nice lifestyle by anyone's standards, how many
times do you think someone like him is going to say,
`David Metzger did a real nice job. I don't have any
problem with that.' I would suggest to you, you're never
going to hear that from him."
Defendant argues that these statements told the jury that Libby
would testify to anything so long as he was paid and, thus, that
these statements amounted to improper, inflammatory character
assassination.
"The credibility of a witness is a proper subject for closing
argument if it is based on the evidence or inferences drawn from
it." People v. Hudson, 157 Ill. 2d 401, 445 (1993). In this case,
Libby testified that he had increased his income considerably when
he began testifying as an expert in DNA analysis in criminal
trials. Libby also stated that he testified primarily for
defendants. In light of these facts, we conclude that the
prosecutor's statements were acceptable comments on Libby's
possible bias and "did not amount to an accusation that defense
counsel suborned perjury." Hudson, 157 Ill. 2d at 445; cf. People
v. Lyles, 106 Ill. 2d 373, 397-414 (1985) (reversible error found,
in part, because the prosecutor called a defense expert "a liar,"
"a fraud," and "a member of the oldest profession known to man,"
and the cross-examination of the witness was a series of
"humiliating and demeaning personal attacks" on the witness).
Defendant also asserts that the prosecutor improperly vouched
for the credibility of Michael Conneally. The prosecutor told the
jury, "I think of all the experts you heard here, you know, clearly
Dr. Conneally is the most credible of anyone you heard." Defense
counsel did not object to this statement at trial or cite to it in
his post-trial motion. Accordingly, defendant has waived any error
in relation to this statement. Enoch, 122 Ill. 2d at 186.

Proof of Home Invasion
An individual other than a peace officer acting in the line of
duty commits home invasion when "without authority he or she
knowingly enters the dwelling place of another when he or she knows
or has reason to know that one or more persons is present." 720
ILCS 5/12--11 (West 1992). Defendant asserts that there is no proof
that when he entered the Stephens' home, he had "reason to know"
that anyone was in the home. Thus, according to defendant, his
conviction for home invasion must be reversed for lack of evidence.
Relying on People v. Simms, 143 Ill. 2d 154, 168-73 (1991),
defendant then maintains that because home invasion was one of the
bases submitted for a finding of death eligibility under section 9-
-1(b)(6) of the Criminal Code of 1961 (720 ILCS 5/9--1(b)(6) (West
1994)), and because the jury returned a general verdict of
eligibility, his death sentence must be reversed and the cause
remanded for resentencing.
It is well established that "[i]n a prosecution for home
invasion, knowledge may be proven by circumstantial evidence so
long as the State presents sufficient evidence from which an
inference of knowledge can be made." People v. Ramey, 240 Ill. App.
3d 456, 462 (1992) (and cases cited therein). In the case at bar,
the evidence showed that the offenses occurred before dawn on a
weekday--a time when most persons are asleep or are just getting up
to go to work. See People v. Frisby, 160 Ill. App. 3d 19, 30-31
(1987) (the fact that the defendant's entry into the dwelling
occurred at 4 a.m. was significant in establishing that the
defendant had reason to know someone was at home); People v.
Tackett, 150 Ill. App. 3d 406, 420 (1986) (element of knowledge
established, in part, by the fact that defendant entered the home
at 1 a.m.). In addition, two cars were parked in the Stephens'
driveway at the time of the offenses, and the defendant entered the
house carrying a gun. Both of these facts help establish that
defendant had reason to know that someone was in the Stephens'
home. See People v. Redisi, 172 Ill. App. 3d 1003, 1011 (1988)
(element of knowledge established, in part, by the fact that the
victim's car was parked in the driveway); Tackett, 150 Ill. App. 3d
at 420; (element of knowledge established, in part, by the fact
that the defendant was carrying string to tie up anyone found in
the house, and by the fact that the defendant may have seen the
victim's car in the garage). Also, defendant had lived in the small
town of Ritchie for several years and had routinely checked other
people's trash for salvageable items. This fact made it probable
that defendant knew that Jeff did not live alone in the house.
Considered together, the factors outlined above provide sufficient
evidence to support the jury's finding that defendant had reason to
know that someone was in the Stephens' house when he entered it.
See, e.g., Frisby, 160 Ill. App. 3d at 30-31; Tackett, 150 Ill.
App. 3d at 420; Redisi, 172 Ill. App. 3d at 1010-11. Therefore, we
decline to reverse defendant's conviction for home invasion.

The Felony-Murder Eligibility Factor
Defendant was found eligible for the death penalty based upon
murder committed "in the course of *** [one or more of the
following felonies]: armed robbery, *** aggravated criminal sexual
assault, *** home invasion." 720 ILCS 5/9--1(b)(6) (West 1994).
Defendant notes that the shooting of Jeff Stephens occurred outside
the Stephens' house at the end of the driveway, and that the other
felonies of which he was convicted subsequently took place inside
the house. From this, defendant argues that none of the felonies
occurred in "the course of" the murder. Therefore, according to
defendant, he is not eligible for the death penalty.
"This court has repeatedly held that, in order to establish
the aggravating factor of murder in the course of another felony,
the State need not prove that the commission of the underlying
felony had begun when the murder occurred. [Citations.] Rather, all
that must be proved is that the murder and the other felony were
committed either simultaneously or as part of the same criminal
episode." People v. Hampton, 149 Ill. 2d 71, 88-89 (1992). In the
case at bar, Heather testified that she heard yelling and a gunshot
from outside the house, and that she looked out her window but was
unable to see what was happening. She then went to get her
bathrobe, which hung on the back of the bedroom door. Before she
could finish putting her robe on, defendant appeared in her bedroom
doorway, thus indicating that defendant entered the house
immediately after shooting Jeff. After defendant tied Heather to
the bed, he returned outside to drag Jeff into the house.
Consequently, the home invasion occurred immediately after the
shooting and before defendant had finished moving Jeff. In
addition, the aggravated criminal sexual assault had begun before
defendant brought Jeff into the house. The armed robbery then
followed directly after the sexual assault. The evidence clearly
shows a closely related and partially interrelated series of
offenses. Therefore, we conclude that the jury was justified in
finding that the murder was committed in the course of the other
felonies.

Trial Court's Excusal of Venireman Hodgdon
During jury selection the trial court excused venireman
Hodgdon because he had expressed reservations about the death
penalty. Citing to People v. Brisbon, 106 Ill. 2d 342 (1985),
defendant argues that by excusing Hodgdon, the trial court denied
defendant his right to rehabilitate those who have expressed
personal objections to the death penalty but who have not indicated
that they would refuse to follow the law and the court's
instructions regarding the death penalty.
The pertinent portion of Hodgdon's voir dire follows:
"THE COURT: Are your feelings about the death
penalty such that you would refuse to consider the
imposition of the death penalty in any case where the
defendant has been convicted of murder?
A. Yes.
Q. Do you have any religious or moral scruples,
either for or against the death penalty, that would
interfere with your duty to follow the law and sign a
proper verdict?
A. Yes.
Q. Are your beliefs such that regardless of the
facts or the background of the defendant, that if the
defendant were found guilty as charged of the offense of
murder, that you would automatically vote either to
impose or not to impose the death penalty?
A. I think I understand that. Can I have you read
that again. I'm sorry.
Q. Sure. [The question was repeated.]
A. Yes.
Q. Now, you had indicated before that there was
something in there that would prohibit you. Are you
indicating that under any circumstances you could not
vote to impose the death penalty?
A. That is correct.
MR. MARKESE [defense counsel]: I would like to
approach.
THE COURT: Take him out in the hall just one moment.
(Juror Hodgdon exits courtroom.)
MR. MARKESE: I want the opportunity to address the
juror and try to rehabilitate him.
THE COURT: That's denied.
MR. MARKESE: Judge you have to give us that
opportunity.
THE COURT: No, I don't. He has made an unequivocal
statement with regards to the fact that he would not
impose it, and he has answered that way in every way that
I have asked the question. If you think you are going to
sit there and say if Hitler were on trial, could you give
it to him?
MR. KIELIAN [defense counsel]: Or Mark Furman, let
me throw that in, to be current.
THE COURT: Do you have a question you would like me
to ask him? Do you want to pose a question to him?
MR. MARKESE: No, I want to talk to him.
THE COURT: Okay. That's denied. Bring him back in."
A prospective juror in a capital case can be excused for cause
when the juror's views on capital punishment would " ` "prevent or
substantially impair [his ability to perform his duty] as a juror
in accordance with [the law] and his oath." ' [Citations.]" People
v. Simms, 168 Ill. 2d 176, 187-88 (1995). In addition, "a trial
court's decision to exclude a juror is entitled to deference since
it is in the best position to weigh a prospective juror's responses
to voir dire." Simms, 168 Ill. 2d at 188. Venireman Hodgdon
unequivocally stated that his beliefs would interfere with his duty
to follow the law and sign a proper verdict, and further stated
that he could not impose the death penalty under any circumstances.
Also, the trial court offered to ask Hodgdon any question which
defense counsel wished to have asked. Defense counsel declined to
give the trial court a question. Accordingly, we find that the
trial court did not err in excusing venireman Hodgdon.
Constitutionality of the Death Penalty Statute
Defendant argues that the Illinois death penalty statute is
unconstitutional because it places a burden of proof upon
defendants to show that mitigating evidence outweighs aggravating
evidence, and because it permits the sentencer to consider a vague
aggravating factor, namely, "any other reason" beyond the statutory
factors why a defendant should be sentenced to death. See 720 ILCS
5/9--1(c), (e) (West 1994); Illinois Pattern Jury Instructions,
Criminal, No. 7C.06 (3d ed. 1992). This court has previously
rejected both of these contentions. People v. Taylor, 166 Ill. 2d 414, 439 (1995) (and cases cited therein). We decline to depart
from our prior holdings on these issues.
Defendant also asserts that the death penalty is
unconstitutional because it fails to sufficiently minimize the
risks that death sentences will be arbitrarily and capriciously
imposed. This contention has also been rejected by this court (see,
e.g., Taylor, 166 Ill. 2d at 440), and we decline to revisit our
holdings on this issue.

CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed. The clerk of this court is directed to
enter an order setting Wednesday, January 21, 1998, as the date on
which the sentence of death entered in the circuit court of Will
County, is to be carried out. Defendant shall be executed in the
manner provided by law. 725 ILCS 5/119--5 (West 1996). The clerk of
this court shall send a certified copy of the mandate in this case
to the Director of Corrections, to the warden of Stateville
Correctional Center, and to the warden of the institution where
defendant is confined.

Affirmed.

[fn1] The admissibility of PCR profiling is not at issue in this
appeal.