People v. Harris

Annotate this Case

People v. Harris, No. 80084 (4/16/98)

Docket No. 80084--Agenda 3--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID
HARRIS, Appellant.
Opinion filed April 16, 1998.

JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, the defendant,
David Harris, was convicted of first degree murder and attempted armed
robbery. The defendant waived a jury for purposes of a capital sentencing
hearing, and, after a hearing, the trial judge sentenced the defendant to death
for the murder conviction. The defendant's execution 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 stated below, we affirm the judgment
of the circuit court.
The evidence in this case is largely undisputed and may be summarized
briefly; other evidence will be reviewed as it becomes relevant. At trial,
Bernice Chase, the widow of the victim, Clifford Chase, testified that she
and her husband watched a movie on the evening of June 7, 1993.
Afterwards, Mr. Chase left the house around 8:40 p.m. to return the rented
videotape. Mrs. Chase said that her husband would sometimes stop to buy
milk at the Chatham Food Center, where he was killed.
Theresa Barnes, 16 years old at the time of the occurrence, testified that
she was at the Chatham Food Center around 9 p.m. on June 7, 1993; the
store was located at 79th and Calumet Streets. While she was using a pay
telephone outside the store, she heard the sound of a gunshot. Barnes looked
up and saw someone holding a gun, and she then heard another shot. The
shot was fired at a car. Barnes then saw a person inside the car slump over,
and the car started to roll toward where she was standing. The person who
fired the shot got in the back seat of a Mercedes, which then drove off.
Barnes identified the defendant as the gunman. Barnes estimated that she
was standing about 20 to 25 feet away from the car when the shots were
fired, and she testified that she got a good look at the gunman. On June 9,
1993, police officers showed Barnes a brochure of various Mercedes models,
and Barnes selected one that matched the car she had seen. About a week
later, on June 15, Barnes viewed a lineup and identified the defendant in the
lineup at the person who had fired the shots.
On cross-examination, Barnes acknowledged that she had provided
different officers with somewhat different descriptions of the gunman. She
told the first officer on the scene that the gunman was a black male, 5 feet
11 inches, weighing 170 pounds. Later, she told a different officer that the
shooter was a black male, 5 feet 10 inches to 6 feet, weighing 150 to 160
pounds, and 17 to 18 years old. Barnes testified further that the defendant
had bushy hair, and that he was the only person in the police lineup with
bushy hair. Barnes also said that the defendant had a wide nose and wide
lips. Although Barnes told investigating officers that the shooter wore a blue
terry cloth jacket with a hood, with pink and yellow accents, and an Aladdin
genie on the back, at trial she did not recall seeing a figure or emblem on
the back of the jacket.
Theodore Traylor, who was with the defendant when the offenses were
committed, also testified on behalf of the State at trial. Traylor said that on
June 7, 1993, around 8:30 p.m., he was standing at 67th and Ada Streets
with Antoine Moore. At that time, some of Moore's friends drove up in a
grey Mercedes. In the car were the defendant, Howard McClinton, and
Demetrius Daniels. Traylor had seen the three previously. After they talked
to Moore, Moore told Traylor to get in the car and they would take him
home. Traylor lived at 79th and Woodlawn, which he said was a "couple"
miles away. McClinton was driving, and Moore sat in the front seat; Traylor,
Daniels, and the defendant sat in the back, with Traylor in the middle.
According to Traylor, the four others talked about a movie they had seen,
"Menace to Society," which was about carjacking; Traylor had not seen the
movie. After 15 or 20 minutes they reached 79th and Calumet Streets. There,
McClinton, the driver, saw some girls to whom he wanted to talk. McClinton
pulled into a parking lot, but the girls did not want to talk to him. Then,
McClinton said, "There go a jack move there." According to Traylor,
McClinton drove toward an old man who was leaving a grocery store. The
man got in his car, and McClinton pulled the Mercedes near the man's car.
Traylor testified that McClinton handed Moore a gun and said, "Jack him."
Moore got out of the Mercedes and tapped on the window of the victim's
car, but the man would not open the door; he instead turned the ignition on.
Moore told the man to get out of the car and tapped on the window with the
gun. Moore then got back in the Mercedes and said to shoot the victim. The
defendant jumped out of the car, pulled a gun from under his shirt, and shot
the victim twice. The defendant then jumped back into the car, and the
Mercedes drove off.
Traylor testified that he then asked the others to take him home. They
were laughing about the shooting. Traylor said that he had not known that
they would try to take a car at gunpoint. They drove Traylor to Woodlawn,
where he was then staying. Traylor said that he saw Moore two or three
days later, when Moore came to his house. Traylor turned himself in on June
17, when he learned that the police were looking for him. Traylor said that
he told the authorities what had happened and later signed a handwritten
statement describing the offenses.
The parties stipulated that an evidence technician would testify that
bullets were recovered from the front seat and the back floor of the victim's
car. The parties also stipulated that a firearms expert would testify that he
concluded from his examination of the bullets that they had been fired from
the same weapon, a .38 Special revolver.
At trial, the prosecution also presented testimony detailing the
defendant's inculpatory statements to authorities. Detective Herman Cross,
assigned to Area 2 violent crimes, testified that early in the morning of June
12, 1993, he learned that the Mercedes involved in the crimes had been
stopped. The investigation eventually led Cross to Moore, Daniels,
McClinton, and the defendant. Cross found the defendant on June 15, 1993,
and he and his partner, Bernatek, transported defendant to Area 2
headquarters. There, they arranged a lineup, at which Theresa Barnes
identified the defendant as the gunman. Cross and Bernatek then gave the
defendant Miranda warnings and, after the defendant agreed to waive those
rights, questioned him about the case. In a brief statement, the defendant said
that he and Antoine Moore got out of a silver Mercedes, walked up to the
victim's car, with Moore on the passenger's side and the defendant on the
driver's side. The defendant pointed a gun at the car window and someone
called out, "Bust him, bust him." The defendant then fired two shots.
On cross-examination, Detective Cross explained that a report about the
lineup and photographs of the lineup participants had been lost and could not
be found. Cross said that the five other participants in the lineup were
comparable to the defendant in height, weight, and complexion, and Cross
also said that two others had bushy hair similar to the defendant's. Cross
testified that the police did not recover a jacket matching the description
provided by Theresa Barnes.
Further evidence regarding the defendant's inculpatory statements was
provided by Peggy Chiampas, an assistant State's Attorney in Cook County
who took a formal statement from the defendant. Chiampas testified that she
was summoned to Area 2 headquarters on June 15, 1993. She spoke to
Detectives Cross and Bernatek and reviewed police reports about the case.
She first questioned the defendant around 8 o'clock that night. After waiving
Miranda rights, the defendant told Chiampas about the offenses. He then
agreed to repeat the statement in the presence of a court reporter. After the
statement was transcribed, Chiampas reviewed it with the defendant, who
made several corrections. The statement was then initialed by the defendant
and Chiampas, as well as by Detective Bernatek and Chiampas' supervisor,
who were also present during the statement.
In the statement, the defendant said that on June 7, 1993, around 6 p.m.,
he was home when four persons came over: Howard McClinton, Demetrius
Daniels, Antoine Moore, and Theodore Traylor. The defendant took his gun
with him, a .38, and all five then drove to the area of 68th and Ada, in a
Mercedes. McClinton was driving, Moore was in the front seat, and the three
others were in the back seat. McClinton also had a gun with him. With the
exception of Traylor, they talked about a movie they had seen, "Menace to
Society," which was about carjacking. They stayed at 68th and Ada for
about two hours. Then, all five got back in the car and drove down Calumet
Street. Moore talked about the movie again, and as they crossed a street,
Moore said, "Let's jack that mark in the lot." McClinton thought that the
person looked young and might have a gun; he believed that older persons
were less likely to be armed and therefore made better targets. By this time
they had driven into a parking lot, and there Moore got of the car, with a
gun in his hand. According to the defendant, Moore ran up to a car, which
was occupied by a man, and tried to open the door. The door would not
open, so Moore told the man to get out. Without replying, the man tried to
back up his car. Moore ducked away and said, "Bust him," which the
defendant said meant to shoot him. The defendant jumped out of the back
seat and shot the victim twice. The first shot shattered the car window; the
second shot hit the driver. The defendant then heard his friends yelling at
him, and he returned to the Mercedes. Later that night, Moore was laughing
and joking about the offenses; according to the defendant, he told Moore that
it was wrong to tell him to shoot the victim. The next day, Moore,
McClinton, and Daniels came over to the defendant's house. Moore said that
he would get rid of the gun used by the defendant in the offenses, and the
defendant gave it to him.
The parties also stipulated that Dr. Barry Lifschultz, an assistant medical
examiner for Cook County, if called as a witness would testify that he
performed an autopsy on the victim on June 8, 1993. The autopsy revealed
that the cause of death was a gunshot wound to the head.
The only evidence presented by the defense was testimony by Charles
Moore, deputy chief investigator for the Cook County public defender's
office. Moore stated that he took four photographs of the defendant on June
17, 1993, two days after he gave his statements in this case. Moore took the
photographs while the defendant was in the lockup area of a courtroom. The
photographs depict the defendant's face and head. These photographs had
been shown to Assistant State's Attorney Chiampas and Detective Cross
during cross-examination; both witnesses testified that the photographs
revealed only one injury, to the defendant's lip.
In rebuttal to the preceding evidence, the prosecution presented, through
a stipulation, the statement of Officer Hughes concerning the lockup area for
Area 2. On June 16, 1993, around 1:15 a.m., Detective Cross returned the
defendant to the lockup area, so that he could be transferred back to the
Cook County jail. Hughes, if called as a witness, would have testified that
he performed a visual examination of the defendant and did not observe any
injuries on him at that time. Hughes also asked the defendant a series of
questions about his condition, and would have testified that the defendant did
not report any pains or injuries.
At the conclusion of the evidence, the jury returned verdicts finding the
defendant guilty of first degree murder and attempted armed robbery. The
cause was then continued for a capital sentencing hearing, which was held
about a month after the conclusion of the trial. Before jury selection for trial,
the defendant had waived his right to a jury for any capital sentencing
hearing, and the hearing was therefore conducted before the trial judge
alone. At the first stage of the hearing, the State introduced a verified copy
of the defendant's birth certificate, which showed that he had attained the
age of 18 at the time of his commission of the present offenses. The State
also introduced copies of the verdicts returned by the jury in this case,
showing the defendant's convictions for first degree murder and attempted
armed robbery. The trial judge found the defendant eligible for the death
penalty because of the defendant's commission of murder in the course of
another felony. See 720 ILCS 5/9--1(b)(6) (West 1994).
The parties then presented evidence in aggravation and mitigation. In
aggravation, the State first introduced victim impact testimony from the
victim's widow, Bernice Chase, and the victim's two daughters, Nona Ocloo
and Olivia Chase.
The State also presented evidence detailing prior offenses committed by
the defendant. Edwina Harrison described a carjacking committed by the
defendant on June 5, 1993, just two days before the offenses involved here.
Harrison testified that she was driving home from work around 3:10 that
morning when she pulled off the road because a friend driving behind her
had flashed his lights and pulled over. The friend got in Harrison's car.
Immediately after that, two young men pulled up; one of the men, whom
Harrison identified in court as the defendant, got out of the passenger's side
of the car, holding what appeared to be an automatic rifle or machine gun.
The defendant pointed the gun at Harrison and told her to get out of her
vehicle. Harrison and her friend got out of the car, and Harrison thought that
the defendant was going to kill them. The defendant backed away from them
and drove off in her car. Harrison testified further that she viewed a lineup
on June 11, 1993, and identified the defendant as the person who had taken
her car.
Detective Michael McDermott, of the Chicago police department, also
testified at the sentencing hearing. McDermott stated that he investigated a
carjacking committed by the defendant on June 3, 1993. According to
McDermott, the victim of the carjacking, Kirschmar Norman, arrived home
from work around 1:50 in the morning. As Norman was getting out of his
car, he saw a person approach from a nearby van. The person was carrying
a Tech 9 mm machine pistol, which he pointed at Norman. The person told
Norman to put his money and keys on the ground, and Norman complied.
The person then picked those items up and got in Norman's car. The van
from which the person had appeared pulled away and was involved in an
accident. The driver of the van ran over to Norman's car and got in with the
first person, and they then drove off. Norman viewed a lineup in December
1993 and identified the defendant as the person who had taken his car.
The State also presented evidence of two drug offenses committed by
the defendant. On one occasion, on March 5, 1992, a plainclothes police
officer saw the defendant engaged in what appeared to be a drug transaction.
As the officer approached, the defendant turned, walked away, and let go of
three bags, which were later found to contain cocaine. The defendant later
pleaded guilty in this case and received a period of section 1410 probation.
On another occasion, on May 22, 1992, an undercover officer saw the
defendant, who was sitting at a table, drop a napkin that contained five small
plastic bags. The contents of the bags were tested and found to contain
cocaine.
Further evidence in aggravation came in the form of testimony relating
the defendant's misconduct while in jail awaiting trial in the present case.
Deputy Sheriff Alonzo King testified that on November 6, 1993, the
defendant was found in an unauthorized area and refused to be included in
the inmate count. The defendant received an oral reprimand for these
infractions. Deputy James Brown testified that on May 11, 1994, during a
search for weapons, two six-inch homemade knives were find inside the
mattress of the defendant's cell. The defendant received 20 days in isolation
as a result. On April 9, 1995, Deputy Brown found the defendant on the
wrong tier of cells; when Brown asked the defendant to explain his presence
there, the defendant swore at the deputy. The defendant received 10 days in
isolation for the infractions.
Deputy Robert Adorjan testified that on August 17, 1994, he was
performing a routine cell check when he found a piece of metal nine inches
long and one inch wide among the defendant's belongings. It was sharpened
at one end and had strips of cloth for a handle. For this infraction the
defendant was given 10 days in isolation.
Lieutenant Ramon Torres testified that on September 14, 1994, he
received a report of a fight. He found the defendant with a shank in his
hand. Another inmate said that he had been jumped by the defendant and
others. The defendant was given 29 days in isolation--the maximum penalty-
-for these violations.
Deputy Donnie Booker testified that on May 28, 1995, he was assigned
to help quell a riot after a jail inmate had been murdered. As Booker was
searching cells, he found a homemade knife, about two feet long, in the
defendant's mattress. The defendant received 29 days in isolation as a
consequence.
Peggy Chiampas, the assistant State's Attorney who had taken the
defendant's formal statement, also testified at the defendant's sentencing
hearing. Chiampas said that throughout her interrogation the defendant never
exhibited any remorse for the offenses and seemed "cool, calm, and
collected." Chiampas also read into the record two pages of the defendant's
statement that had been omitted from evidence at trial. In this portion of the
statement, the defendant said that he and the four others with him in the car
that night were members of a street gang, the Black Disciples. The defendant
held the title of assistant regent, and he was to discipline gang members who
broke gang rules. On cross-examination, Chiampas said that the defendant,
in reviewing the statement he had given to the court reporter, added the
comment that Antoine Moore was laughing and joking after the murder, and
that the defendant replied that it was wrong for Moore to tell him to shoot
the victim.
The defendant did not present any testimony at the hearing, but counsel
did submit 17 letters from family members and friends of the defendant.
These persons wrote favorably about the defendant. Counsel also presented,
by way of stipulation, testimony from an officer who investigated the
carjacking of Edwina Harrison. The officer would have testified, if called as
a witness, that Harrison described the offender as being 28 years old and 5
feet 6 inches tall.
At the conclusion of the hearing, the trial judge found that there were
no mitigating circumstances sufficient to preclude imposition of the death
penalty, and the judge therefore sentenced the defendant to death for the first
degree murder of Clifford Chase. The judge did not impose any sentence on
the defendant's separate conviction for attempted armed robbery.

I
A
The defendant raises on appeal a number of challenges to his
convictions and death sentence. We will first address the issues arising from
the guilt phase of the proceedings, and we will next consider the issues
involving the capital sentencing hearing.
The defendant first argues that he was not proved guilty of the offense
of attempted armed robbery. The indictment in this case alleged that the
defendant took a substantial step toward the commission of armed robbery
by ordering the victim from the car and shooting him. The defendant
correctly observes that the prosecution failed to present any evidence that the
defendant ordered the victim from the car, and the defendant therefore
argues that he was not proved guilty of the offense. The defendant notes
that, although Moore told the victim to exit the car, the defendant was not
tried on an accountability theory.
The defendant does not contend that the indictment is defective, or that
there was a fatal variance between the language of the indictment and the
evidence offered at trial. Indeed, it appears that the allegation in the
indictment that the defendant ordered the victim from the car may be
regarded as mere surplusage. See People v. Coleman, , 571
(1971).
In evaluating a challenge to the sufficiency of evidence, a reviewing
court must consider the evidence most favorably to the prosecution. See
People v. Young, , 48-50 (1989); People v. Collins, , 261 (1985), quoting Jackson v. Virginia, , 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). We believe that the evidence in
the present case was sufficient to sustain the defendant's conviction for
attempted armed robbery. According to the defendant's statements and the
testimony of Theodore Traylor, the occupants of the vehicle, with the
exception of Traylor, were discussing carjackings while they were driving
around just before the victim's murder. The driver, Howard McClinton,
expressed the view that older persons were less likely to be armed than
younger persons, and that theory apparently motivated their selection of the
victim in this case. After McClinton drove into the parking lot, Antoine
Moore got out of the Mercedes and tried to open the door of the victim's
car. When the victim's door did not open, Moore ordered the victim from
his vehicle. When the victim refused to comply, Moore got back in the
Mercedes. At that point the defendant got out of the car and fired a shot at
the victim's window, shattering it. The defendant next fired a shot at the
victim, striking him. Viewed in a manner most favorable to the prosecution,
the evidence presented at trial was sufficient to establish the defendant's
guilt for the offense of attempted armed robbery. The guilty parties had
discussed carjacking and had selected a victim for that end. By firing a shot
at the victim's car window, the defendant took a substantial step toward the
planned offense of taking the victim's car.
The defendant makes the related contention that his convictions for first
degree murder and attempted armed robbery were improperly based on the
same physical act, the shooting of the victim by the defendant. Citing People
v. King, (1977), the defendant contends that multiple
convictions may not be based on the same act. What the defendant
overlooks, however, is that he fired two shots at the victim: the first shot
shattered the car window but did not strike the victim, and the second shot
struck the victim in the head, killing him. While the defendant's conviction
for first degree murder must be based on the second, fatal shot, his
conviction for attempted armed robbery may be based on the first shot, as
our preceding discussion makes clear. Thus, unlike the conduct in People v.
Johnson, , 370-72 (1993), which the defendant cites, discrete
physical acts underlie each offense here. The defendant's separate
convictions for murder and attempted armed robbery are therefore proper in
this case. People v. Rodriguez, 169 Ill. 2d 183, 188-89 (1996).
The defendant's conviction for attempted armed robbery formed the
basis for the trial judge's subsequent determination, under section 9--1(b)(6)
of the Criminal Code of 1961 (720 ILCS 5/9--1(b)(6) (West 1994)), that the
defendant was eligible for the death penalty. In a final argument involving
the conviction for attempted armed robbery, the defendant contends that the
conviction may not serve as a predicate for his eligibility under that statutory
aggravating circumstance because doing so could result in an improper
double enhancement of the offense of attempted robbery. As we have just
determined, however, the convictions for attempted armed robbery and first
degree murder were based on separate acts. Accordingly, the use of the
offense of attempted armed robbery to establish the defendant's eligibility
for the death penalty could not produce an improper double enhancement.

B
The defendant next contends that the trial court erred in permitting the
State to introduce evidence that implied that the car occupied by the
defendant and his friends at the time of the offenses had previously been
stolen. The defendant also argues that trial counsel was ineffective for failing
to seek to bar introduction of this evidence.
At trial, the State presented evidence regarding the recovery of the
Mercedes used in the murder. Detective William Egan of the Chicago police
department testified that on June 9, 1993, after receiving information from
another officer, he went to Evergreen Park, where he spoke to a woman
named Delores Barnes. Delores Barnes and Theresa Barnes are not related.
Egan then spoke to Theresa Barnes, showing her a brochure of Mercedes
Benz models. Following those conversations, Detective Egan had a broadcast
issued for the license plate and model of Delores Barnes' car. On June 12,
1993, Officer John Graham of the Chicago police department went to the
vicinity of 69th and Loomis Streets in response to a report that the car being
sought was possibly located there. Officer Graham found the car in that area
and stopped the vehicle. It held seven occupants, six of whom were
juveniles. The defendant was not in the car on that occasion.
The parties stipulated that an evidence technician would testify that on
June 12, 1993, he went to the location where the Mercedes had been
recovered and saw red stains on the driver's seat. He also took a number of
fingerprint and palmprint impressions from the vehicle. The parties further
stipulated that none of the fingerprints taken from the car when it was
recovered matched those of the defendant, McClinton, Moore, or Daniels.
The palmprints were also negative.
Although defense counsel raised this issue prior to trial, the judge did
not then rule on whether the evidence was admissible, preferring to wait
until the testimony was offered at trial. During trial, however, defense
counsel did not object to introduction of the evidence, and therefore the
defendant has waived the objection. Recognizing counsel's procedural
default, the defendant argues that introduction of the evidence was plain
error and, alternatively, that counsel was ineffective in failing to object the
evidence.
Supreme Court Rule 615(a) provides that, on review, "Plain errors or
defects affecting substantial rights may be noticed although they were not
brought to the attention of the trial court." 134 Ill. 2d R. 615(a). The plain
error doctrine therefore provides a limited exception to the normal rule of
waiver, and the doctrine may be invoked when either the evidence is closely
balanced or the alleged error is so fundamental that it denied the defendant
a fair trial. People v. Bounds, , 41 (1995), citing People v.
Banks, , 143 (1994); People v. Childress, , 300
(1994); People v. Fields, , 56 (1990). We do not believe that
either condition obtains here. The evidence of the defendant's guilt was
overwhelming. Theresa Barnes and Theodore Traylor provided eyewitness
testimony of the defendant's commission of the offenses. Moreover, the
defendant's statements to authorities also detailed his involvement in the
crimes. Nor do we believe that introduction of the evidence challenged here
affected a fundamental right. Without determining here whether the evidence
was properly admitted to show the steps in the investigation and to account
for the delay in the defendant's apprehension and arrest (see People v.
Lewis, , 346 (1995); People v. Hayes, , 130
(1990)), we do not believe that its introduction jeopardized the defendant's
right to a fair trial. On this record, then, we are unable to conclude that
introduction of the evidence suggesting that the Mercedes used in the crimes
was stolen rose to the level of plain error.
The defendant presses the alternative argument that trial counsel was
ineffective for failing to object to the testimony about the ownership of the
Mercedes. Strickland v. Washington, , 687, 80 L. Ed. 2d 674,
693, 104 S. Ct. 2052, 2064 (1984), provides a two-part test for evaluating
claims of ineffective assistance of counsel. A defendant alleging ineffective
assistance must generally demonstrate both that counsel's representation was
deficient and that he was prejudiced as a result. To establish prejudice, a
defendant "must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068. In reviewing a claim of ineffective assistance, a court "need not
determine whether counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies."
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
In the present case, even if we assume that trial counsel erred in failing
to object to the evidence challenged here, we conclude that the defendant is
unable to establish the prejudice portion of the Strickland standard. As we
noted in our preceding discussion of plain error, evidence of the defendant's
guilt for the charged offenses was overwhelming, consisting of Theresa
Barnes' and Theodore Traylor's eyewitness testimony and of the defendant's
confession to the crimes. Similarly, we do not agree with the defendant's
further contention that defense counsel's inquiry concerning the red spot on
the front seat of the Mercedes was so prejudicial that counsel can be said to
be ineffective.

C
The defendant next argues that the trial judge improperly limited
defense counsel's cross-examination of prosecution witness Theodore
Traylor. Traylor, it will be recalled, was in the car with the defendant before
the offenses were committed, and at trial Traylor identified the defendant as
the shooter. The defendant contends that the trial judge's rulings, which
restricted counsel's questioning in five different areas, denied counsel an
opportunity to fully explore the witness' biases and to test the witness'
ability and opportunity to observe. We will discuss these rulings in turn.
The defendant first challenges the trial judge's restrictions on the
defense cross-examination of Traylor regarding the witness' presence at 67th
and Ada Streets, prior to his ride in the Mercedes with the defendant. On
cross-examination, Traylor gave various responses to defense counsel's
questions asking why he was at that location. Traylor initially said that he
was there "to watch this person so I can get off my debt." Traylor then said
he was there "to pay [a drug dealer] money." Traylor denied, however, that
he went there to watch over a narcotics operation and insisted that he was
"against drug dealers." Defense counsel then attempted to impeach Traylor
with a prior inconsistent statement, made to police, that he had gone to that
location to guard a narcotics operation. The trial judge sustained the State's
objection, however. Traylor went on to say that he spent the day there
shooting dice. The defendant argues that the trial judge erred in sustaining
the State's objection to the question. The defendant contends that the
proffered impeachment was admissible to challenge Traylor's credibility and
his ability to recall the events of the day of the occurrence.
We find no abuse of discretion in the trial judge's ruling. The reasons
for the witness' presence at the place where he was picked up by the
Mercedes were not material to the present case. Impeachment of a witness
is limited to relevant matters, and therefore it was not error for the trial
judge to bar impeachment on this topic. People v. Sandoval, ,
181 (1990).
The defendant next contends that the trial judge improperly limited
counsel's cross-examination of Traylor regarding details of the witness' prior
conviction for possession of a controlled substance with intent to deliver.
Asked about the conviction on cross-examination, Traylor said he was
innocent of the offense, and he offered different exculpatory explanations for
his conduct, mentioning that he possessed the drugs for his own use and also
that he found the drugs as the police approached him. Defense counsel then
attempted to question the witness further about his assertion that he found
the drugs on the ground, but the trial judge sustained the prosecutor's
objections.
The defendant contends that the trial judge improperly limited this line
of inquiry. We find no abuse of discretion in the trial judge's ruling. Traylor
did not deny the fact of the conviction, but simply attempted to provide an
innocent explanation for his possession of the contraband. The jury was not
misled about the conviction. People v. Cruz, , 378 (1994).
In his next contention regarding Traylor's cross-examination, the
defendant argues that the trial judge erred in barring questions that were
designed to explore what the defendant characterizes as the witness' hostility
and animosity toward defense counsel. Traylor testified that he left the
Chicago area after the offenses were committed. Referring to the witness'
statement that he supported himself by selling candy for his church, defense
counsel asked Traylor how he was able to pay for his travels:
"Q. How do you support your travelling hobby? How do you pay
for it? All through the candy sales?
A. No, through people like you.
Q. You get it from lawyers' money?
A. Uh-huh.
Q. I don't understand what that means.
You know me? You know me before today?
A. No.
Q. You ever see me before today?
A. No. I said through people like you.
Q. Do you have a business of filing lawsuits or something? You
collect money? What do you mean, sir, people like me support your
travel hobby?
A. Yep.
Q. And can you tell, give me some kind of idea what that
possibly means?
[Prosecutor]: Objection, Judge. What is the relevance?
THE COURT: Sustained.
THE WITNESS: People pay my way around--
THE COURT: When I say `sustained,' it means do not answer."
The defendant contends that the trial judge's ruling improperly
foreclosed further questioning about the witness' apparent animosity toward
counsel. We do not agree with the defendant's view that Traylor was
exhibiting animosity toward the defense lawyer. First, as the witness pointed
out, he did not say that the defendant's lawyer supported his traveling, but
that persons like defense counsel did so. Second, we believe that the line of
inquiry touches on only collateral matters, and that the trial judge therefore
acted properly in limiting further cross-examination on the subject.
Defense counsel also attempted to cross-examine Traylor on whether he
had ever received psychiatric treatment, but the trial judge sustained the
State's objections to that line of questioning. The defendant renews here his
argument that the trial judge's ruling was erroneous.
Traylor had left the Chicago area after the offenses involved here,
testifying that he went to North Carolina long enough "to push my bullet
back in my leg and back." Earlier, Traylor had mentioned that he had been
shot and uses crutches. Asked whether he went to see a doctor, Traylor said,
"I went to see a special person." Asked whether that visit occurred in a
hospital, Traylor said, "No, it's a special place." Defense counsel then asked
what the special place was; the State objected, and the trial judge sustained
the objection. Defense counsel then asked whether Traylor had received
psychiatric treatment, but the trial judge sustained an objection to that
question also.
The defendant argues that the trial judge's rulings improperly limited
the scope of cross-examination. The defendant contends that a witness'
mental health history is a proper subject of cross-examination, and the
defendant maintains that further inquiry was warranted here by Traylor's
enigmatic responses that he had received treatment "to push bullets back in
his back and leg" from a special person in a special place. We do not agree.
Traylor's responses did not suggest that he had sought psychiatric treatment,
but only that he was somewhat evasive about the location and identity of the
treatment he had then received.
In a further argument relating to Traylor's cross-examination, the
defendant contends that the trial judge erroneously limited questions about
the circumstances surrounding Traylor's detention by the police after he
turned himself in for questioning on this case. The trial judge sustained the
prosecutor's objections to certain questions about the nature and length of
Traylor's detention. The defendant now argues that the trial judge's rulings
improperly prevented him from exploring a possible area of bias on the part
of the witness, and possible motivation for the witness to testify on behalf
of the State.
The trial judge allowed some questions on the circumstances of the
defendant's detention in relation to this case. Thus, on cross-examination,
defense counsel asked Traylor, without objection, how long he was with the
police and whether he was ever charged in the case. Traylor replied that he
could not remember very well but believed he was questioned for 48 or 72
hours; Traylor also denied that police threatened to arrest him and charge
him with murder.
The defendant contends that Traylor at some point was apparently
charged with these offenses, contrary to Traylor's testimony. As evidence of
this, the defendant refers to a copy of a felony minute sheet appended to the
defendant's post-trial motion; the document recites that Theodore Traylor,
aged 27, was charged with the murder of Clifford Chase, which occurred on
June 7, 1993. The source of the document is not clear, however. The
defendant also contends that he made an offer of proof on these charges in
a sidebar, but that this discussion, like other sidebars in the case, was not
memorialized by the court reporter. Still, it was defendant's duty, as
appellant, to provide a record that would support his allegations of error.
We note that defense counsel was permitted to ask some questions
regarding Traylor's stay at the police station. Even if the trial judge erred in
restricting counsel's cross-examination on the circumstances of Traylor's
questioning by authorities, we believe that any error was harmless beyond
a reasonable doubt. People v. Williams, , 14-15 (1994). The
evidence of guilt in this case was overwhelming, consisting not only of
Traylor's testimony but also of Theresa Barnes' testimony and the
defendant's confessions to the offenses.

D
In a further argument related to prosecution witness Theodore Traylor,
the defendant contends that trial counsel erred in opening the door to
testimony by Traylor on redirect examination that he had been threatened by
Antoine Moore. This information came to light in the following manner.
During cross-examination, defense counsel asked Traylor whether he
immediately reported the offenses to the police. Traylor responded that he
did not notify the police, alluding to a threat and saying that he was
"petrified and scared." Later, on redirect examination, Traylor was asked
about the source of the threat; according to Traylor, three days after the
murder Antoine Moore told him, "Whoever say anything have the death
penalty." The trial judge overruled the defendant's objection to this
testimony, explaining that defense counsel had opened the door to the
information. The defendant now contends that trial counsel was ineffective
for opening the door to the testimony about the threat.
We do not believe that trial counsel rendered ineffective assistance in
opening the door to Traylor's testimony about the threat from Moore. As we
have previously noted in this opinion, a defendant seeking to prevail on a
claim of ineffective assistance of counsel must demonstrate both that
counsel's performance was deficient and that prejudice ensued as a result of
counsel's deficiency. Strickland v. Washington, , 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A court does not need to
consider the first part of the Strickland test if the court is able to conclude,
under the second part of the test, that counsel's actions were not prejudicial.
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People
v. Burgess, 176 Ill. 2d 289, 313 (1997).
Assuming that counsel was deficient in pursuing the inquiry that led to
the testimony complained of here, we do not believe that the defendant
sustained prejudice as a consequence of counsel's actions. As a preliminary
matter, we note that the threat was uttered by Antoine Moore, not the
defendant; it therefore demonstrated Moore's consciousness of guilt, not the
defendant's. Moreover, we believe that the evidence of the defendant's guilt
for these offenses was overwhelming. This evidence consisted of the
eyewitness testimony of Theresa Barnes and Theodore Traylor, as well as of
the defendant's two confessions to authorities. The defendant cannot show
that there is a reasonable probability that the outcome of the trial would have
been different if counsel had not undertaken the inquiry that led to the
testimony about the threat.

E
In an additional argument directed at Theodore Traylor's testimony, the
defendant asserts that the trial judge erred in refusing to instruct the jury on
Traylor's testimony as an accomplice. At the conference on jury instructions
defense counsel tendered a pattern accomplice instruction (see Illinois
Pattern Jury Instructions, Criminal, No. 3.17 (3d ed. 1992)), but the trial
judge declined to use it, concluding that Traylor could not be considered an
accomplice under the evidence in this case. The defendant argues that an
accomplice instruction was necessary here, and that the trial judge's refusal
to give one was an abuse of discretion.
The refusal of an accomplice instruction will not be overturned on
appeal unless it represents an abuse of discretion. We cannot say that the
trial judge in the present case abused his discretion by refusing to give the
defendant's tendered instruction. The appropriate test in determining the need
for an accomplice instruction is whether there is probable cause to believe
that the witness was guilty of the offense in question, either as a principal
or, under a theory of accountability, as an accessory. People v. Henderson,
, 314-15 (1990). Summarizing the law in this area, the
Henderson court explained:
"Thus, an accomplice-witness instruction should be given to a
jury if the totality of the evidence and the reasonable inferences that
can be drawn from the evidence establish probable cause to believe
not merely that the person was present and failed to disapprove of
the crime, but that he participated in the planning or commission of
the crime; if probable cause is established the instruction should be
given despite the witness' protestations that he did not so participate.
[Citations.]" Henderson, 142 Ill. 2d at 315.
The evidence in the present case does not support the conclusion that
there was probable cause to believe that Traylor was guilty of the offenses
involved here, as either a principal or an accessory. Theresa Barnes, an
eyewitness to the shooting, did not see Traylor perform any act in relation
to the commission of the crimes. Moreover, the defendant, in his statements
to authorities, did not implicate Traylor in the crimes. According to the
defendant's statements, Traylor did not join in the discussion of carjacking
or the movie. Finally, Traylor's own testimony fails to show that the witness
had any role in the commission of the crimes. Although Traylor was present
in the car at the crime scene, it is well established that mere presence does
not by itself render a person guilty of an offense. Henderson, 142 Ill. 2d at
316. There was no probable cause in the present case to believe that Traylor
was guilty of these offenses either as a principal or under an accountability
theory, and therefore the trial judge did not abuse his discretion in refusing
to give the jury an accomplice instruction for Traylor's testimony.
Finally, the defendant observes that Traylor at one point might have
been charged with these offenses. Even if that was true, we do not believe
that the placement of charges against him automatically determines his status
as an accomplice. The relevant question under Henderson is not whether the
witness was ever charged as a codefendant, but whether there is probable
cause to believe that the witness is guilty of the offense at issue.

F
In his next challenge to the trial proceedings, the defendant argues that
trial counsel was ineffective for failing to seek suppression of Theresa
Barnes' identification of him in the lineup and to object to the admission of
that testimony at trial. Noting Barnes' testimony that the defendant was the
only person with long hair in the six-man lineup, the defendant argues that
the composition of the lineup was unduly suggestive. The defendant raises
the related contention that the loss by the police of photographs of the
participants of the lineup denied him due process.
Under Strickland v. Washington, , 687, 80 L. Ed. 2d 674,
693, 104 S. Ct. 2052, 2064 (1984), a defendant alleging ineffective
assistance of counsel must show both a deficiency in counsel's performance
and prejudice resulting from that deficiency. Prejudice in the context of the
failure to seek suppression of evidence requires defendant to show that the
unargued suppression motion was meritorious and that there is a reasonable
probability that the verdict would have been different without the excludable
evidence. See Kimmelman v. Morrison, , 375, 91 L. Ed. 2d 305,
319, 106 S. Ct. 2574, 2583 (1986); People v. Moore, 171 Ill. 2d 74, 108
(1996). We need not determine here whether counsel was deficient in failing
to seek suppression of Theresa Barnes' lineup identification, for we believe
that the defendant cannot show prejudice by counsel's inaction. The evidence
of the defendant's guilt in this case was overwhelming. Barnes could have
testified at trial even if the lineup identification had been suppressed; it
appears from Barnes' testimony at trial that her in-court identification of the
defendant as the offender was not the product of the lineup procedures but
instead was based on her observations at the time of the offenses. See
People v. Enis, , 398-99 (1994). Accordingly, invalidation of
the lineup would not necessarily have resulted in the exclusion of Barnes'
identification of the defendant as the shooter. But even without that witness'
testimony, there would remain overwhelming evidence of the defendant's
guilt. Theodore Traylor also provided an eyewitness account of the
defendant's commission of the offenses, and the defendant gave authorities
two inculpatory statements, in which he confessed his role in the crimes. On
this record, then, we are unable to conclude that the defendant was
prejudiced by counsel's failure to seek the suppression of the lineup
identification, and the defendant's allegation of ineffective assistance
therefore must fail.
In a related contention, the defendant argues that he was denied due
process by the loss of photographs of the lineup, which depicted the six
participants in the lineup. The defendant contends that the photographs could
have bolstered his argument that the lineup was unfairly constituted. In
Arizona v. Youngblood, , 102 L. Ed. 2d 281, 109 S. Ct. 333
(1988), the Supreme Court held that "unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law." The defendant
has not made that showing here. According to the testimony at trial, the
photographs and report of the lineup could not later be retrieved from the
records division of the police department and, it appears, were inadvertently
lost. There is nothing to suggest here that the photographs and report of the
defendant's lineup were treated differently than the records in any other case.
Moreover, we have already determined that the defendant was not denied
effective assistance of counsel by the failure to seek suppression of the
lineup identification, and therefore we must also conclude that the loss of
documentary evidence that might have supported a suppression motion had
no significant impact on the defendant's case. See People v. Hobley, , 307-08 (1994).

G
The defendant next argues that the trial judge erred in denying a motion
he made to suppress his inculpatory statements. The defendant contends that
the statements warranted suppression because they were made after he was
illegally transferred from the Cook County jail and placed in the custody of
the Chicago police department. Before this court, the defendant contends that
the transfer occurred in violation of the Illinois Habeas Corpus Act. The
defendant maintains that suppression of his two statements--the oral one he
gave to the police officers, and the written one he later provided to the
assistant State's Attorney--is an appropriate sanction for this statutory
violation.
Before trial, the defendant filed a motion to suppress his confessions,
alleging, among other grounds, that he was illegally taken from the Cook
County jail to Area 2 headquarters for questioning in the present case. At the
suppression hearing, police detectives Herman Cross and Paul Bernatek and
Assistant State's Attorney Raymond Brogan testified that on June 15, 1993,
Detective Bernatek obtained from Brogan what was termed a "jail letter"
requesting that the director of the Cook County jail release the defendant
into Bernatek's custody for 24 hours for a criminal investigation unrelated
to any case then pending against the defendant. Brogan explained at the
hearing that a jail letter is issued by a supervisor in the felony review unit
when the requesting officer has satisfied the guideline that the investigation
is unrelated to any pending case involving the inmate. Brogan also explained
that a supervisor's approval is not necessary if the questioning is to occur on
jail premises.
After Detectives Cross and Bernatek obtained the jail letter, they went
to the intake unit of the county jail, where they were informed that the
defendant was then in court. The detectives went to the specified courtroom
and waited for the conclusion of the proceedings on the defendant's case, a
probation violation, at which the defendant was represented by appointed
counsel. The defendant was then taken back to the jail, and the detectives
returned to the intake unit. The detectives presented the letter to personnel
there and then removed the defendant from the jail and transported him to
Area 2 headquarters. At Area 2, the defendant was placed in a lineup, and
he later gave authorities two statements regarding his role in the present
offenses. The detectives returned the defendant to the Cook County jail early
the next morning. At the conclusion of the hearing, the trial judge denied the
suppression motion. With respect to the issue raised here, the judge
concluded that the means by which the detectives obtained custody of the
defendant for their investigation did not implicate any constitutional rights.
The judge also rejected the defendant's other grounds on which the defense
sought to suppress the statements, including the defendant's allegation that
he was physically mistreated while at Area 2.
Before this court, the defendant alleges that the procedure by which
police obtained custody of him violated section 10--131 of the Illinois
habeas corpus act. Section 10--131 provides:
"Any person being committed to any prison, or in the custody of
any sheriff or other officer or person for any criminal or supposed
criminal matter, shall not be removed therefrom into any other prison
or custody, unless it is done by habeas corpus order or some other
legal process or when it is expressly allowed by law." 735 ILCS
5/10--131 (West 1994).
The defendant, in his reply brief, also cites section 4 of the County Jail Act,
which requires the warden of a county jail to "confine in such jail, until
discharged by due course of law, all persons committed to such jail by any
competent authority." 730 ILCS 125/4 (West 1994).
It should be noted that the defendant does not contend here that the
questioning of him at Area 2 violated his fifth amendment right to counsel.
The defendant's exercise of his sixth amendment right to counsel at the
probation violation hearing did not extend to other, as yet uncharged,
offenses and did not preclude, on fifth amendment grounds, questioning on
unrelated offenses. McNeil v. Wisconsin, , 115 L. Ed. 2d 158,
111 S. Ct. 2204 (1991); People v. Maxwell, (1992); People
v. Kidd, (1992); People v. Perry, (1992).
Without deciding precisely what sort of protected interest the Habeas
Corpus Act might give rise to (see Hewitt v. Helms, , 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)) and what sort of remedy is necessary for its
violation, we do not believe that suppression is an appropriate consequence
here. Neither the Habeas Corpus Act nor the County Jail Act is aimed at the
sort of police misconduct that would warrant suppression of the defendant's
statements. Indeed, we note that the statutorily prescribed penalty for a
violation of section 10--131 of the Habeas Corpus Act is found in its
concluding sentence, which provides, "If any person removes, or causes to
be removed any prisoner so committed, except as above provided, he or she
shall forfeit to the party affected a sum not exceeding $300." 735 ILCS 5/10-
-131 (West 1994). Here, the trial judge rejected the defendant's allegations
that he was mistreated while in police custody at Area 2 headquarters.
Moreover, the police had legitimate reasons to transfer the defendant to Area
2, where the investigation was centered and where they could conduct a
lineup.

H
In a final challenge to the conduct of the guilt-innocence proceedings,
the defendant argues that the trial judge erred in sending to the jury room
during the jury's deliberations a photograph of the victim at the crime scene.
The defendant argues that the photograph in question, exhibit 15, is
gruesome and duplicative of another exhibit, number 18, which was also sent
to the jury for its deliberations.
At trial, the prosecution must prove every element of the offense
charged and is allowed to establish every relevant fact, even if the matter is
not in dispute. People v. Henderson, , 319 (1990). In a
prosecution for murder, photographs may be admitted into evidence to show
the nature and extent of the victim's injuries, the condition or location of the
victim's body at the crime scene, or the manner or cause of the victim's
death, among other purposes. People v. Kidd, 175 Ill. 2d 1, 37 (1996).
Whether to send a jury photographs depicting a victim's injuries is reserved
to the trial judge's discretion, and the decision will not be reversed unless
it represents an abuse of discretion. People v. Lucas, , 439
(1989).
We do not believe that the trial judge in the present case abused his
discretion in allowing the challenged photograph to go to the jury room.
Exhibit 15, challenged by the defendant, depicts at close range the position
of the victim in his car. Exhibit 18, in contrast, is a photograph of the entire
front seat area of the vehicle; it shows the location of a bullet on the
passenger's side, next to the victim, who is also visible in the photograph.
The two exhibits were used for distinct purposes and are not unnecessarily
duplicative. We believe that both photographs would have assisted the jurors
in understanding the testimony at trial, and that the probative value of the
challenged exhibit was sufficient to outweigh any prejudicial effect it might
have produced.

II
A
The defendant also challenges on several grounds the capital sentencing
hearing conducted in this case. The defendant first makes two related
arguments regarding the eligibility stage of the sentencing hearing. The
defendant contends that the State failed to establish the existence of any
particular statutory aggravating circumstance, and that trial counsel was
ineffective for stipulating to the defendant's eligibility for the death penalty.
Neither contention has merit.
The first stage of the sentencing hearing was brief and consisted of the
following:
"[Prosecutor]: As far as eligibility, we will first introduce into the
record a certified birth certificate of David Harris showing that he
was over eighteen at the time of the offense, as People's Exhibit No.
2.
We would enter into evidence the signed jury verdict forms for
the intentional and knowing murder and also for the attempt armed
robbery. I just ask that that be admitted into evidence as People's
No. 2.
[Defense counsel]: I'll stipulate to eligibility also, judge.
THE COURT: All right, there will be a finding by this Court of
eligibility, under the statute."
The sentencing hearing then advanced to the second stage, and the parties
presented evidence in aggravation and mitigation.
The defendant argues that the eligibility proceedings were defective
because, he contends, the State failed to allege, and the trial judge failed to
find beyond a reasonable doubt, the existence of any specific statutory
aggravating circumstance that would render him eligible for the death
penalty. The defendant also asserts that trial counsel was ineffective for
stipulating to his eligibility for the death penalty.
We believe that the State established the existence of the aggravating
circumstance defined by section 9--1(b)(6) of the Criminal Code of 1961, the
commission of first degree murder in the course of a specified felony, here
attempted armed robbery. 720 ILCS 5/9--1(b)(6) (West 1994). Although the
State did not specifically cite section 9--1(b)(6) either in its written motion
for a capital sentencing hearing or in court during the first stage of the
hearing, the record shows clearly that section 9--1(b)(6) served as the basis
for the eligibility determination. At the hearing, the prosecutor referred to the
defendant's convictions for first degree murder and attempted armed robbery,
which together would be sufficient to establish eligibility for the death
penalty under section 9--1(b)(6). In addition, the judgment order entered the
next day by the judge cites section 9--1(b)(6) as the basis for the eligibility
determination.
Moreover, we conclude that the proceedings adequately established the
defendant's eligibility for the death penalty under section 9--1(b)(6). The
State introduced into evidence the defendant's birth certificate, establishing
that he had reached the age of 18 at the time of the murder (720 ILCS 5/9--
1(b) (West 1994)), and the defendant's convictions in this case for first
degree murder and attempted armed robbery. This information was sufficient
to establish, beyond a reasonable doubt, the existence of the aggravating
circumstance found in section 9--1(b)(6). People v. Shatner, 174 Ill. 2d 133,
149 (1996).
The defendant also contends that trial counsel was ineffective for
stipulating to his eligibility for the death penalty. In making this argument
the defendant contends that the appropriate standard for assessing counsel's
conduct is provided by United States v. Cronic, , 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), and People v. Hattery, (1985).
The defendant notes further that his consent to counsel's stipulation appears
nowhere in the record. Unlike the two-part test expressed in Strickland v.
Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which
requires a defendant to establish both a deficiency in counsel's performance
and prejudice resulting from the asserted deficiency, Cronic requires a court
to presume that counsel's error, if established, was prejudicial. The
presumption is properly invoked when, for example, the adversarial process
breaks down, when counsel is no longer functioning as a true advocate, and
a court is warranted in concluding, without further inquiry, that the
defendant incurred prejudice as a consequence of counsel's conduct. Cronic,
466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047; Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067. This court applied the
Cronic standard in Hattery, in which defense counsel conceded in opening
statement his client's guilt to murder charges, did not introduce any evidence
at trial, and did not make a closing argument to the jury.
We believe that Strickland, not Cronic and Hattery, supplies the
appropriate standard for assessing trial counsel's performance at the first
stage of the sentencing hearing. In People v. Smith, 176 Ill. 2d 217 (1997),
this court concluded that Strickland provided the proper test for assessing a
similar claim of ineffective assistance of counsel. Like defense counsel in the
present case, counsel in Smith had contested the defendant's guilt at trial; at
the first stage of the sentencing hearing, "counsel merely conceded the
undisputed fact of defendant's murder and felony convictions." Smith, 176 Ill. 2d at 231. Following a remand for a new sentencing hearing, counsel in
Smith mistakenly believed that the defendant's eligibility for the death
penalty was not at issue and therefore failed to contest the evidence
presented by the prosecution at that stage of the proceeding on remand.
In determining, under Strickland, whether counsel's performance at a
capital sentencing hearing was prejudicial to the defendant, a court must ask
whether there is a reasonable likelihood that the result of the hearing would
have been different. We do not believe that the eligibility determination
would have been different if counsel had challenged the State's evidence.
The verdicts returned by the jury clearly established the defendant's
commission of the murder in the course of attempted armed robbery. These
were certainly sufficient also to establish the defendant's eligibility for the
death penalty under section 9--1(b)(6).

B
The defendant next argues that one of the victim impact statements
introduced into evidence at the second stage of the sentencing hearing
improperly urged the trial judge to impose the death penalty. The defendant
argues that introduction of this portion of the statement denied him a fair
sentencing hearing.
The evidence in question was presented as part of the victim impact
statement of Olivia Chase, one of the victim's two daughters. Reading from
her statement at the second stage of the sentencing hearing, Olivia Chase
concluded:
"Clifford Chase's murderer has been apprehended, tried,
convicted and must now face punishment for his cowardly despicable
act. An act, which in most societies, ancient or modern, carries with
it the ultimate punishment."
The defendant characterizes the preceding comments as a recommendation
that the death penalty should be imposed in this case. The defendant argues
that the comments therefore violated the proscription against witness' views
regarding punishment. In response, the State contends that the daughter's
comments are not a plea for capital punishment but simply an observation
about the potential sentence that faced the defendant.
In People v. Howard, , 155-58 (1991), this court adopted
the view expressed by United States Supreme Court in Payne v. Tennessee,
, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991), permitting the
State to present victim impact evidence in a capital sentencing hearing. To
that extent Payne overruled decisions to the contrary in Booth v. Maryland,
, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987), and South Carolina
v. Gathers, , 104 L. Ed. 2d 876, 109 S. Ct. 2207 (1989). Payne
did address, however, the prohibition in Booth on the introduction of
surviving family members' views regarding appropriate punishment. People
v. Scott, , 553 (1992); Howard, 147 Ill. 2d at 157. We note
that this court has held that witnesses' opinions regarding the proper
punishment in a capital case are irrelevant and therefore inadmissible at a
capital sentencing hearing. People v. Stewart, , 67 (1984).
Defense counsel did not make a contemporaneous objection to the
daughter's testimony or raise the issue in the defendant's post-sentencing
motion. Accordingly, the issue has been waived. In light of that procedural
default, the defendant makes the twin arguments that introduction of the
evidence was plain error and that trial counsel was ineffective in failing to
object to the testimony. Neither contention is persuasive.
We do not believe that the defendant would have escaped the death
penalty if the challenged portion of the victim impact statement had been
excluded from evidence. The defendant's sentencing hearing was conducted
before the trial judge alone, the defendant having elected to waive a jury for
that purpose. A trial judge is deemed to consider only admissible evidence
(see People v. Evans, , 95-96 (1988) (trial judge at bench
sentencing hearing presumed not to rely on counsel's improper argument)),
and we will not suppose that the judge gave improper weight to Olivia
Chase's statement in deciding to sentence the defendant to death. The trial
judge, in announcing his decision to impose the death penalty in this case,
did not refer to the witness' victim impact statement. The evidence presented
at the sentencing hearing was not closely balanced, and we do not believe
that this brief portion of the statement had any bearing on the trial judge's
sentencing decision.

C
The defendant next argues that trial counsel was ineffective for not
introducing additional mitigating evidence at the second stage of the
sentencing hearing. Defense counsel did not present any testimony at that
stage of the hearing, but counsel did submit 17 letters from relatives and
friends of the defendant, who wrote about him favorably.
Counsel's failure to present mitigating evidence does not automatically
establish ineffective assistance. People v. Perez, , 186 (1992).
Rather, in evaluating similar allegations of lawyer incompetence, we have
previously applied the two-part test announced in Strickland v. Washington,
, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986). E.g., People v.
Todd, 178 Ill. 2d 297, 324 (1997); People v. Howery, 178 Ill. 2d 1, 55
(1997); People v. Madej, 177 Ill. 2d 116, 135 (1997); People v. Sanchez, 169 Ill. 2d 472, 486-87 (1996); People v. Perez, 148 Ill. 2d at 186. As we have
noted, for success on a claim of ineffective assistance, Strickland requires a
defendant to establish both that counsel's performance was deficient and that
the deficiency was prejudicial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at
693, 104 S. Ct. at 2064. Prejudice in the context of a capital sentencing
hearing requires a defendant to show that there is a reasonable probability
that he would not have received the death sentence if counsel had acted
competently. Strickland, 466 U.S. at 694-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.
The defendant maintains that many of the letters submitted in his behalf
at the second stage of the sentencing hearing were of questionable or limited
relevance, because those writers unhelpfully focused on the jury's verdicts,
insisting that the defendant was innocent of the charges here, and failed to
discuss the defendant's attributes as an individual. The defendant accurately
observes that the purpose of a capital sentencing hearing is to provide an
individualized assessment of the defendant and his offense (Sumner v.
Shuman, , 73-76, 97 L. Ed. 2d 56, 64-66, 107 S. Ct. 2716,
2721-23 (1987); Woodson v. North Carolina, , 303-05, 49 L. Ed. 2d 944, 960-61, 96 S. Ct. 2978, 2990-91 (1976) (plurality opinion);
People v. Ruiz, , 25 (1989)), and not to raise doubt about the
preceding determination of guilt.
The defendant notes also that trial counsel, Dennis Doherty, asserted in
the post-sentencing motion that his representation of the defendant at the
sentencing hearing was ineffective. Doherty stated in the motion:
"Defendant should be afforded a new sentencing hearing with
new counsel, inasmuch as defendant was denied effective assistance
of counsel at sentencing, where counsel did not present any evidence
or witnesses in mitigation, nor investigate the existence of same,
even though same exists."
Doherty's concession of his ineffective assistance is not dispositive here.
Addressing a similar statement made by trial counsel about his performance
at the second stage of a capital sentencing hearing, we recently explained,
"Counsel's own admission of ineffectiveness is not binding on us or
determinative of the issues raised here. [Citation.]" People v. Sanchez, 169 Ill. 2d 472, 490 (1996). Doherty's concession might be a basis for
disciplinary action either for his performance during the trial proceedings or
for the allegation concerning that performance in the motion; it does not by
itself, however, establish either substandard performance or prejudice, the
two parts of the Strickland test, as we explain below.
In a number of cases this court has addressed similar allegations
regarding counsel's failure to present mitigating evidence at a capital
sentencing hearing. See, e.g., People v. Todd, 178 Ill. 2d 297, 320-28 (1997);
People v. Howery, 178 Ill. 2d 1, 54-62 (1997); People v. Madej, 177 Ill. 2d 116, 127-40 (1997); People v. Sanchez, 169 Ill. 2d 472, 488-92 (1996);
People v. Perez, , 187-96 (1992). As an examination of those
cases reveals, resolution of the claim will depend on the nature and extent
of the information available to counsel but not introduced into evidence, as
well as on the strength of the aggravating evidence presented by the
prosecution. In addition, the cases recognize that deference must be accorded
to strategic decisions made by counsel after suitable investigation.
Unlike the records in Howery and Perez, cases in which counsel was
found to be ineffective for failing to investigate and present available
mitigating evidence, the record in the present case does not disclose what
other mitigating evidence trial counsel could have introduced. Perez was a
post-conviction proceeding; at a hearing on the defendant's petition, post-
conviction counsel presented extensive evidence regarding the defendant's
personal background and mental history--evidence that trial counsel had
neglected to introduce at sentencing. In Howery, a direct appeal, new counsel
at a post-sentencing hearing presented evidence of the defendant's civic
involvement, which trial counsel had failed to introduce. In the present case,
however, the defendant has made no showing of what additional mitigating
evidence was available to trial counsel at the time of the sentencing hearing.
Therefore, we are unable to conclude, under Strickland, that counsel was
deficient in failing to present additional mitigation and, further, that
introduction of additional mitigating evidence would have altered the
outcome of the sentencing hearing. As we have noted, counsel's failure to
present mitigating evidence at a capital sentencing hearing does not by itself
establish incompetence. Without a showing of what further evidence was
available to trial counsel at the time of the hearing, we are unable to
determine whether counsel's conduct fell below minimal professional
standards or whether the defendant incurred prejudice as a consequence of
counsel's inaction.

D
As a final matter, the defendant raises a number of challenges to the
constitutionality of the Illinois death penalty statute, section 9--1 of the
Criminal Code of 1961 (720 ILCS 5/9--1 (West 1994). The defendant
contends first that the statute places on the defense a burden of proof that
prevents the sentencer from giving meaningful consideration to evidence in
mitigation. The defendant refers to the requirement in the statute that the
death penalty be imposed unless there is mitigating evidence sufficient to
preclude its imposition. 720 ILCS 5/9--1(g), (h) (West 1994). We have
previously rejected this argument, concluding that it "rests on a strained
interpretation of the statutory language" (People v. Strickland, , 539 (1992)), and we find no reason to reach a different result here.
People v. Page, , 283 (1993); People v. Hampton, , 116-17 (1992).
The defendant also contends that a number of features of the sentencing
scheme do not sufficiently minimize the risk that a death sentence will be
imposed in an arbitrary and capricious manner. Our cases have consistently
found these procedures to be constitutional, however, and we do not believe
that their combined effect impairs the validity of the statute. Thus, our cases
have held that the statute is not invalid for the discretion it provides the
prosecutor in deciding whether to seek the death penalty in a particular case.
People v. Lewis, , 146 (1981); People ex rel. Carey v. Cousins,
, 534-43 (1979). Our cases have also held that the statute is not
invalid for failing to require the prosecution to give the defense pretrial
notice of its intent to seek a sentence of death. People v. Silagy, , 161-62 (1984); People v. Gaines, , 369 (1981). We have
determined that the statute is not invalid for failing to limit aggravating
evidence to matters specified in its provisions (People v. Young, , 59 (1989); People v. Orange, , 390-91 (1988); People v.
Perez, , 97-98 (1985)), or to matters disclosed to the defense
prior to trial (People v. King, , 547 (1986); People v.
Albanese, , 540 (1984); Gaines, 88 Ill. 2d at 369). The death
penalty statute is not invalid for failing to impose a burden of persuasion on
the prosecution at the second stage of the hearing (People v. Jones, , 426 (1988); People v. Eddmonds, , 68 (1984); People
v. Free, , 421 (1983)), and it does not invalidly place on the
defense a burden of establishing that a noncapital sentence should be
imposed (People v. Fields, , 76 (1990); Orange, 121 Ill. 2d at
390; People v. Caballero, , 49 (1984)). We have also held that
the statute is not invalid for failing to require the sentencer to provide a
written memorial of its findings. King, 109 Ill. 2d at 550-51; People v.
Stewart, , 497 (1984); People v. Brownell, ,
541-44 (1980). Although the defendant's sentencing hearing was a bench
proceeding, we note, contrary to the defendant's contention, that there is no
requirement that a sentencing jury be apprised of the precise range of
sentences that are available if a defendant does not receive the death penalty.
People v. Phillips, , 543 (1989); People v. Albanese, , 81 (1984). Finally, comparative proportionality review is not a
requirement of the United States Constitution (Pulley v. Harris, ,
79 L. Ed. 2d 29, 104 S. Ct. 871 (1984)), and the statute is not invalid for
failing to require such review (King, 109 Ill. 2d at 551; Stewart, 104 Ill. 2d
at 499; People v. Kubat, , 502-04 (1983)). In light of the
extensive authority upholding these features of the death penalty statute, we
must reject the defendant's argument that in combination they threaten its
arbitrary and capricious imposition. People v. Burgess, 176 Ill. 2d 289, 323
(1997); People v. Pitsonbarger, , 409 (1990).

* * *
For the reasons stated, the judgment of the circuit court of Cook County
is affirmed. The clerk of this court is directed to enter an order setting
Thursday, September 15, 1998, as the date on which the sentence of death
entered in the circuit court of Cook County is to be carried out. The
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 the
defendant is now confined.

Judgment affirmed.

CHIEF JUSTICE FREEMAN, specially concurring,
I agree with my colleagues that the judgment of the circuit court must
be affirmed in all respects. I write separately, however, to add several
observations to the majority's analysis concerning defendant's claim
regarding his attorney's decision to stipulate to defendant's death eligibility
during the sentencing phase of the proceedings.
The majority correctly reviews defendant's claim under the familiar
standards enunciated by the United States Supreme Court in Strickland v.
Washington. See People v. Smith, 176 Ill. 2d 217 (1997) (rejecting the
Cronic-Hattery standard and employing the Strickland standard where
defense counsel did not contest defendant's eligibility for the death penalty).
After applying the Strickland analysis to the instant facts, my colleagues
rightly conclude that defendant cannot establish the requisite prejudice in this
case because the eligibility determination would not have been different had
counsel challenged the State's evidence. Slip op. at 28-29. The majority
reaches this conclusion solely on the basis that "[t]he verdicts returned by
the jury clearly established the defendant's commission of the murder in the
course of attempted armed robbery. These were certainly sufficient also to
establish defendant's eligibility for the death penalty under section 9--
1(b)(6)." Slip op. at 29.
Although I agree with my colleagues that the jury's verdicts play a
substantial role in our analysis, I do not agree that their existence alone
compels the conclusion that defendant cannot establish prejudice. Section 9--
1(b)(6) requires defendant to have intended to kill the victim or to have
known that his actions created a probability of death or great bodily harm.
The trial verdicts alone, of course, do not establish this beyond a reasonable
doubt in the context of the sentencing hearing. I note that the jury here
returned only a general verdict of guilty with respect to first degree murder
based on theories of intentional, knowing, and felony murder. Therefore, we
do not know beyond a reasonable doubt that the jury agreed unanimously
on the question of defendant's mens rea. Nevertheless, the jury's verdicts,
when viewed in conjunction with all of the evidence adduced at the trial
which the trial judge heard, form the basis for affirming the trial judge's
specific finding of death eligibility on appeal. I reach this conclusion because
several legal presumptions arise when, as in this case, the trial judge, and not
a jury, serves as the trier of fact during the sentencing hearing. See People
v. Johnson, (1992). One such presumption is that the trial
judge knows and follows the law. People v. Woolley, 178 Ill. 2d 175 (1997).
We may presume, therefore, that the trial judge knew of the specific
elements required under section 9--1(b)(6) for a finding of death eligibility.
Moreover, the judge, as the trier of fact, may infer the intent to take a life
from a defendant's acts and the circumstances surrounding the commission
of the offense. People v. Garcia, , 85 (1983). As a result, this
court can uphold the trial judge's eligibility finding on appeal because a
review of the evidence adduced at trial clearly establishes that any argument
that defense counsel would have made regarding eligibility under section 9--
1(b)(6) would have been refuted. Each of these factors, taken as a whole,
compel the conclusion that the trial judge found the statutory factor to have
been proved beyond a reasonable doubt and that defendant was not
prejudiced in any way by counsel's alleged ineffectiveness.
By limiting its analysis to only the jury's general verdicts and omitting
any discussion of the trial judge's role as the trier of fact at this sentencing
hearing, the majority seemingly holds that those verdicts alone serve to
fulfill the elements of section 9--1(b)(6) beyond a reasonable doubt and, in
turn, operate to defeat defendant's claims of prejudice for purposes of
Strickland. However, in cases where defense counsel has failed to subject the
prosecution's case to meaningful adversarial testing at the eligibility stage
of sentencing, this court has, at least until today, relied equally upon both the
jury's guilt phase verdicts and the evidence of intent adduced at trial and
heard by the trial judge. See Smith, 176 Ill. 2d at 232-33; People v. Shatner,
174 Ill. 2d 133, 151 (1996) (recognizing, in both cases, that the sentencing
judge heard the evidence which on appeal was held to establish the requisite
mens rea for a finding of death eligibility and to preclude a finding of
prejudice). Consistent with this precedent, I believe that a more reasoned
analysis in this case would likewise take into consideration the evidence
heard by the trial judge during the course of the guilt phase of the
proceedings, as it is this evidence which (i) actually supports the trial judge's
specific finding of eligibility made at sentencing and (ii) defeats defendant's
appellate assertions of prejudice.
In all other respects, I join in the majority's opinion.

JUSTICE McMORROW, concurring in part and dissenting in part:
I join in the majority's affirmance of the defendant's conviction.
However, I dissent from the majority's affirmance of defendant's death
sentence, because I believe that the facts of this case and our factual
knowledge of this defendant simply do not warrant imposition of the death
penalty.
It is this court's "responsibility in every death penalty case to carefully
consider the character of the defendant and the circumstances of his crime
before we sanction the termination of his life." People v. Tye, ,
37 (1990) (Ryan, J., concurring in part and dissenting in part). In fulfilling
this responsibility, we are "guided by the recognition that `each capital case
is unique and must be evaluated on its own facts, focusing on whether the
circumstances of the crime and the character of the defendant are such that
the deterrent and retributive functions of the ultimate sanction will be served
by imposing the death penalty.' [Citation.]" People v. Smith, 177 Ill. 2d 53,
98 (1997). It is this court's duty to vacate a death sentence "where such an
extreme penalty [is] found to be inappropriate, in light of any relevant
mitigating factors." Smith, 177 Ill. 2d at 98, citing People v. Blackwell, 171 Ill. 2d 338 (1996); People v. Leger, (1992); People v. Buggs,
(1986); People v. Carlson, (1980).
After careful consideration, I conclude that the facts of this crime do not
mandate imposing the death penalty. Anytime a human being unjustifiably
takes the life of another, a civilized society should be horrified. "[C]apital
punishment is an expression of society's moral outrage at particularly
offensive conduct." Gregg v. Georgia, , 183, 49 L. Ed. 2d 859,
880, 96 S. Ct. 2909, 2930 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.). Nevertheless, our society and laws do not sanction the death penalty for
all crimes which may shock a civilized society. Instead, we reserve it for
those "crimes [which] are themselves so grievous an affront to humanity that
the only adequate response may be the penalty of death." Gregg, 428 U.S. at 184, 49 L. Ed. 2d at 881, 96 S. Ct. at 2930 (opinion of Stewart, Powell,
and Stevens, JJ.).
The mechanism by which we narrow the universe of convicted
murderers to those who are eligible for the death penalty is contained in the
group of statutory aggravating factors. One of those aggravating factors is
the commission of a murder in the course of another felony. There is no
dispute that defendant in this case falls within the broad sweep of the felony
murder aggravating factor. However, the felony murder aggravating factor
has swept too far in the case at bar, because defendant's crime does not fall
within that special class of murder cases which so shock the conscience of
a society that execution of defendant is "the only adequate response."
Like most, or perhaps all murders, this murder was senseless, tragic, and
unnecessary. However, the murder was not notably brutal or heinous. The
victim was not beaten or tortured. There was no evidence that he suffered
prior to his death. It appears that the victim died almost immediately after
he was shot. The murder was not the product of premeditation or planning.
It was a single murder, not part of any murderous spree. The murder was an
act of aberrant behavior occasioned by defendant complying with a cohort's
direction to the defendant to shoot the victim. For these reasons, I do not
believe that the circumstances of this crime are such that the imposition of
the death penalty is "the only adequate response."
In addition, there is little in defendant's character and background which
indicates that the ultimate sanction of death is appropriate. The aggravating
evidence introduced by the State consisted of victim impact statements by
the victim's surviving relatives; evidence that defendant had committed two
other carjackings in the four days preceding the murder; evidence that
defendant had been involved in two small drug transactions in 1992;
evidence that defendant had committed several rules infractions while
incarcerated for the murder; evidence that defendant had not exhibited
remorse after the murders; and evidence that defendant was a member of a
street gang.
The aggravation evidence does not definitively or adequately
demonstrate that defendant is a person "with a malignant heart who must be
permanently eliminated from society." People v. Carlson, , 590
(1980). The only violent crimes included in the aggravation evidence were
two armed carjackings by defendant. No one was injured in either of those
carjackings. One of these incidents occurred four days before the murder of
Clifford Chase, the other occurred two days before the murder.
The origin of defendant's apparently sudden interest in carjacking is not
a mystery: the majority notes that defendant and his cohorts had recently
seen a film about carjacking. The sequence of events here is clear.
Defendant and his young friends saw a film which glamorized carjacking.
They talked about carjacking on more than one occasion. While committing
the carjacking in this case, one of defendant's companions encountered the
noncompliant victim, and told defendant to shoot the victim. Defendant
complied. This sequence of events shows that defendant was not only
violent, but also that he was susceptible to a cohort's influence, that he was
immature, impressionable, and reckless. It does not show that defendant is
a hardened criminal. The death penalty should be reserved for the most
dangerous and incorrigible criminals--the "worst" criminals. Foolishness,
susceptibility to peer influence, immaturity, impressionability, and
recklessness by an 18-year-old, taken individually or collectively, should not
render a defendant one of society's "worst" criminals, for whom the death
penalty is appropriate. The deterrent and retributive purposes of the death
penalty are not served by its imposition in this case.
Defendant's youth is a particularly important consideration in this case.
The United States Supreme Court has held that a defendant's youth is an
important consideration in determining whether sentencing him to death
would serve the deterrent and retributive purposes of the death penalty.
"[Y]outh must be considered a relevant mitigating factor. *** [It] is more
than a chronological fact. It is a time and condition of life when a person
may be most susceptible to influence ***." Eddings v. Oklahoma, , 115, 71 L. Ed. 2d 1, 11, 102 S. Ct. 869, 877 (1982). The Court
elsewhere has noted that a younger defendant is less able to control his
conduct and appreciate the consequences of that conduct than is an older
defendant, and that, for this reason, youth is a "special mitigating force."
Thompson v. Oklahoma, , 834-35, 101 L. Ed. 2d 702, 718-19,
108 S. Ct. 2687, 2698-99 (1988) (plurality opinion). Defendant was 18 years
and 8 months old at the time of the offense. The death penalty statute
provides that a defendant must be 18 years old in order to be eligible for the
death penalty. See 720 ILCS 5/9--1(b) (West 1994). Thus, defendant was
eligible for the death penalty by being only 8 months older than the statutory
eligibility age.
I do not deprecate or minimize the loss defendant has inflicted on the
family and friends of Clifford Chase. Indeed, the egregiousness of
defendant's conduct is accentuated by the fact that defendant has shown little
or no remorse since the murder, and that the victim was 71 years of age and
totally innocent. But the pain caused by this senseless murder will not be
mitigated or alleviated by taking defendant's life for an impulsive act he
committed when he was 18 years old, and which he committed at the
instigation of a friend after seeing a film glamorizing carjacking. The
deterrence and retributive functions owed society would be served in the
facts of this case if defendant were imprisoned for the rest of his natural life.
All murders are tragic; all murderers deserve societal reprobation and
retribution. This case is no exception. However, as previously stated, the
death penalty is not sanctioned as appropriate for all murders. The
circumstances of a given crime and the character of a given offender are to
be examined, and the death penalty is to be reserved for the "worst" murders
and the most hardened and depraved murderers. Neither this crime nor this
defendant falls within these categories. For this reason, I dissent from the
majority's affirmance of the death sentence.
I also write separately for another reason. The majority concludes that
defendant's claim of ineffective assistance of counsel, because of defense
counsel's failure to offer any mitigation evidence and counsel's admitted
failure to investigate the existence of mitigation evidence, must fail. My
colleagues' conclusion is based on the fact that, in this appeal, defendant has
not shown that there existed any mitigation evidence which defense counsel
could have introduced if he had conducted an investigation. Thus, the
majority concludes, defendant has not shown prejudice as a result of the
failure to investigate, and, under Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), defendant is unable to prevail on a
claim of ineffective assistance of counsel. The majority's conclusion is
correct if the Strickland standard is applied strictly.
This court has a duty to ensure that only those who are most deserving
of the death penalty actually receive that sentence. This task is made difficult
when defense counsel offers no mitigation evidence whatsoever. Ordinarily,
we would be justified in assuming that no mitigating evidence was
introduced either because counsel investigated whether such evidence existed
and found none, or because he made a strategic decision not to offer the
evidence. However, in cases where the defense counsel admits that he made
no investigation to determine if mitigation evidence existed, the picture of
defendant which has been presented to this court may be incomplete. We do
not know whether this lack of evidence is a result of the fact that none
existed or the fact that counsel simply did not know of any mitigating
evidence because of his failure to investigate. In such cases, it is extremely
difficult to fulfill our constitutional duty and make an informed decision as
to whether this defendant is a person "with a malignant heart who must be
permanently eliminated from society." Carlson, 79 Ill. 2d at 590.
In view of the fact that the ultimate and irreversible sanction has been
imposed on defendant, I would remand this case for a new sentencing
hearing. In the alternative, based on the facts of this murder, I would vacate
defendant's death sentence and sentence him to imprisonment for his natural
life.

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