People v. Burton

Annotate this Case

People v. Burton, No. 80726 (10/1/98)
Docket No. 80726--Agenda 4--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
PETER BURTON, Appellant.
Opinion filed October 1, 1998.

JUSTICE NICKELS delivered the opinion of the court:
Defendant was indicted in Cook County on six counts of
first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9--1(a)(1),
(a)(2), (a)(3)), three counts of home invasion (Ill. Rev. Stat.
1991, ch. 38, par. 12--11(a)(1), (a)(2)), two counts of armed
robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18--2(a)), one count of
solicitation of murder (Ill. Rev. Stat. 1991, ch. 38, par. 8--
1.1(a)), and one count of conspiracy (Ill. Rev. Stat. 1991, ch. 38,
par. 8--2(a)). Defendant pleaded guilty to all charges and waived
sentencing by jury. The circuit court found defendant eligible
for the death penalty. After hearing evidence in aggravation and
mitigation, the circuit court sentenced defendant to death.
Defendant's death sentence was stayed (134 Ill. 2d R. 609(a))
pending direct appeal to this court. Ill. Const. 1970, art. VI, sec.
4(b); 720 ILCS 5/9--1(i) (West 1994); 134 Ill. 2d R. 603. We
affirm.

BACKGROUND
The State provided a factual basis for defendant's guilty
plea. In essence, this factual basis revealed that defendant shot
and killed Frank Gorzelanny and his wife, Evelyn Gorzelanny,
at their home in Calumet City on December 31, 1992.
Defendant committed these actions at the solicitation and request
of the victims' son, David Gorzelanny.
On September 26, 1994, before defendant pleaded guilty,
defendant asked for a fitness hearing. This request was based on
a report by Dr. Lynn Maskel, a forensic psychiatrist. In the
report, Dr. Maskel stated that defendant was suffering from
clinical depression and would not be able to assist in his
defense. Dr. Maskel noted that defendant was currently being
treated with psychotropic medication, recommended that
defendant continue to be treated with psychotropic medication,
and stated that the treatment would likely enable defendant to
assist in his defense within a year.
On May 15, 1995, about eight months later, the parties
proceeded by way of stipulation at a fitness hearing. The parties
stipulated to the testimony of two psychiatrists. The parties
stipulated that Dr. Roni Seltzberg, who was ordered to evaluate
defendant by the circuit court, would testify that she had
reviewed defendant's records and had examined defendant. She
would testify that defendant understood the nature of the
proceedings, could assist in his defense, and was fit to stand
trial or to enter a plea. Dr. Maskel, who had previously
examined defendant, reached a similar conclusion. The parties
stipulated that she would testify defendant understood the nature
of the proceedings and could now assist in his defense. After
hearing the stipulations, the circuit court found defendant fit to
stand trial or to enter a plea.
On July 7, 1995, after admonishment, defendant entered a
plea of guilty. The factual basis incorporated a written statement
made by defendant to the police. According to this statement,
David Gorzelanny initially approached defendant about the
killings in early December 1992. David Gorzelanny said that he
would pay defendant a large sum of money and mentioned the
amount of $25,000. David Gorzelanny also indicated that the
money would come from a trust fund.
According to defendant's statement, defendant and another
individual, Scott Stodula, went to the home of the victims on
December 31, 1992. While traveling to the home, defendant and
Stodula considered tying up the victims in the basement and
using a knife to cut their throats. When they arrived, defendant
and Stodula were invited into the home. They watched television
with the victims for about half an hour. The victims' son was
not present during this time. At some point, while sitting with
the victims in the living room, defendant stood up, pulled a gun
from his pocket, and stepped toward Frank Gorzelanny.
Defendant fired the gun, hitting Frank Gorzelanny in the head.
Defendant then stepped to his left and pointed the gun at Evelyn
Gorzelanny. According to defendant's statement, Evelyn
Gorzelanny said something like "Oh, no," or "Oh, my God."
Defendant fired two more times, hitting Evelyn Gorzelanny
twice in the head.
After the shootings, Stodula ripped open the pants pocket
of Frank Gorzelanny and took money and identification from the
pants pocket. Defendant and Stodula went to the bedrooms and
pulled out some drawers. They then drove to the apartment of
Stodula's girlfriend, where they split the money between
themselves and changed clothes. Defendant and Stodula drove
to the Hammond Rescue Mission in Hammond, Indiana, where
defendant, Stodula, and David Gorzelanny were living.
Defendant put the gun in a boot under his bed. Defendant and
Stodula then drove to Gary, Indiana, where defendant threw
away the clothes he and Stodula had worn during the killings.
Later that night, defendant and Stodula returned to the
victims' home, wearing gloves. Defendant suggested that they
take a television to make it look like a burglary. Stodula told
defendant that David Gorzelanny would come to the home the
next morning to give the home the appearance of a burglary.
In addition to defendant's statement, the State presented
other evidence as part of the factual basis. On January 1, 1993,
David Gorzelanny called the police to report his parents' deaths.
In the course of the investigation, the police interviewed David
Gorzelanny, Stodula, and defendant. All three confessed their
involvement in the murders. The police later recovered a gun
from a shoe at defendant's residence and clothing that had been
dumped in Indiana. The police also recovered four boxes of
jewelry, taken from the victims' home, among Stodula's
possessions. After hearing this factual basis, the circuit court
accepted defendant's guilty plea.
The case proceeded to sentencing. On July 25, 1995,
defendant waived a jury for sentencing at both the eligibility
phase and the aggravation/mitigation phase. The circuit court
determined that defendant was eligible for the death penalty.
The court found defendant eligible under four separate statutory
bases: (1) multiple murder (720 ILCS 5/9--1(b)(3) (West 1994)),
(2) contract murder (720 ILCS 5/9--1(b)(5) (West 1994)), (3)
murder during the course of another felony (720 ILCS 5/9--
1(b)(6) (West 1994)), and (4) cold, calculated, and premeditated
murder (720 ILCS 5/9--1(b)(11) (West 1994)).
After defendant was found eligible for the death penalty,
defense counsel made a motion to withdraw from the case.
Defense counsel stated that defendant wanted to be sentenced to
death and had directed defense counsel not to introduce
mitigating evidence. Defense counsel stated that he had ethical
reservations about representing an individual who wanted to be
sentenced to death. When defendant was asked if he wanted
defense counsel to withdraw, defendant said that he had no
objection.
On August 2, 1995, the circuit court heard argument on the
motion to withdraw and denied the motion. The court noted that
defense counsel had a great deal of experience in death penalty
litigation. The circuit court further stated that it would consider,
in mitigation, the presentence report and a report prepared by a
mitigation specialist. The circuit court also stated that defendant
would have the right to allocution. The circuit court emphasized
that it would make the ultimate decision concerning the death
penalty and would carefully consider the mitigating evidence.
On October 3, 1995, the circuit court conducted a hearing
to determine defendant's fitness for sentencing. During the
proceedings, defendant had continued taking psychotropic
medication. Dr. Seltzberg, who had evaluated defendant before
defendant made his guilty plea, examined defendant again. She
testified that defendant understood the nature of the proceedings
and was able to assist in his defense. She also testified that the
psychotropic medication would not interfere with defendant's
understanding of the sentencing proceedings and the
consequences of sentencing. After hearing this testimony, the
circuit court found defendant fit for sentencing.
On October 5, 1995, the court considered aggravation and
mitigation evidence to determine if the death penalty should be
imposed. In aggravation, the State presented evidence that
defendant had received an "other than honorable discharge"
from the United States Navy in 1989. Defendant was discharged
based on an unauthorized absence from the Navy in excess of
30 days. The State also presented evidence that defendant had
stolen money from a pub in Lansing, Illinois, in 1990.
Defendant pleaded guilty to theft and was sentenced to 18
months' probation.
Finally, the State introduced evidence about defendant's
possible involvement in an Indiana murder that occurred in
1992. The victim was an individual who had occasionally hired
defendant for remodeling work. The victim died from blunt-
force injuries to the head and multiple stab wounds. Defendant
and another individual were observed at the crime scene near
the time of the killing, had possession of the victim's truck after
the killing, had used the victim's credit card after the killing to
stay at a motel, and had made several false statements in
connection with their use of the credit card. The State did not
introduce any evidence to show that defendant was being tried
for, or had been convicted of, the crime in Indiana. Pursuant to
defendant's wishes, defense counsel did not cross-examine any
witnesses.
Defense counsel did not introduce any mitigating evidence,
again pursuant to defendant's wishes. The circuit court stated
that it would consider the presentence report and a report by a
mitigation specialist. The mitigation report extensively detailed
defendant's background. The report showed that defendant had
a history of alcohol abuse and came from an alcoholic family.
Defendant had suffered from clinical depression and had made
two possible suicide attempts or gestures. The report also
indicated that defendant felt estranged from his father and felt
remorse for his conduct. The circuit court also considered
mental health records from Cermak Health Services and alcohol
treatment records from Tri-City Community Mental Health
Center. In closing argument, defense counsel argued that
defendant had a severe drinking problem and mental health
problems. In allocution, defendant said that he was sorry for the
killings but that he deserved no mercy.
On October 11, 1995, after hearing the aggravating and
mitigating evidence, the circuit court sentenced defendant to
death. The circuit court stated that it had received "volumes of
information" on defendant's background. The court noted the
cold-blooded and execution-style manner of the killings. The
court also stated that two statutory mitigating factors applied:
defendant's lack of significant criminal history (720 ILCS 5/9--
1(c)(1) (West 1994)) and defendant's extreme mental or
emotional disturbance at the time of the murders (720 ILCS 5/9-
-1(c)(2) (West 1994)). The court found, however, that there were
no mitigating factors sufficient to preclude imposition of the
death penalty (720 ILCS 5/9--1(h) (West 1994)).
In this appeal, defendant raises 10 issues. Specifically,
defendant argues: (1) he did not receive a full fitness hearing to
determine the impact of psychotropic medication on his fitness;
(2) the circuit court failed to properly admonish defendant of the
steps needed to perfect an appeal from his guilty plea; (3) the
circuit court violated defendant's right to self-representation; (4)
the circuit court erred in failing to order a sanity evaluation for
defendant; (5) the circuit court should have ordered defense
counsel to investigate and present all available mitigation
evidence despite defendant's wishes; (6) improper aggravation
evidence was presented at sentencing; (7) the circuit court erred
in failing to consider certain nonstatutory mitigating factors; (8)
the death penalty is excessive in this case; (9) the circuit court
considered an unconstitutionally vague statutory aggravating
factor at sentencing; and (10) the death penalty statute is
unconstitutional. We address each issue in turn.

ANALYSIS
I. Psychotropic Medication
Defendant first argues that the circuit court erred when it
found defendant fit to enter a plea following a stipulated fitness
hearing. Defendant argues that the circuit court had a duty to
conduct a more complete evidentiary hearing into the effects of
the psychotropic medication on defendant's mental condition
and failed to do so. Defendant therefore argues that this cause
must be remanded for a full evidentiary fitness hearing.
A defendant is unfit to stand trial or to enter a plea if,
based on a mental or physical condition, he is unable to
understand the nature and purpose of the proceedings against
him or to assist in his defense. 725 ILCS 5/104--10 (West
1994); People v. Haynes, 174 Ill. 2d 204, 226 (1996).
Defendant's fitness is presumed by statute. 725 ILCS 5/104--10
(West 1994). If a bona fide doubt of defendant's fitness is
raised, however, the circuit court must hold a fitness hearing
before proceeding further. 725 ILCS 5/104--11(a) (West 1994);
Haynes, 174 Ill. 2d at 226. The circuit court's ruling on the
issue of fitness will be reversed only if it is against the manifest
weight of the evidence. Haynes, 174 Ill. 2d at 226; People v.
Mahaffey, , 18 (1995).
At the time defendant entered his guilty plea, section 104--
21(a) of the Criminal Code of 1961 (725 ILCS 5/104--21(a)
(West 1994)) provided that a defendant who is receiving
psychotropic medication "is entitled to a hearing on the issue of
his fitness while under medication."[fn1] Under this statute, a
defendant who is taking psychotropic medication is entitled to
a fitness hearing. Defendant relies on past cases from this court
where a defendant taking psychotropic medication did not
receive a fitness hearing before trial or before entering a plea.
In certain circumstances, these defendants' convictions were
reversed because no fitness hearings had been conducted. See,
e.g., People v. Kinkead, (1995); People v. Gevas,
(1995); People v. Brandon,
(1994); cf., People v. Neal, 179 Ill. 2d 541 (1997); People v.
Burgess, 176 Ill. 2d 289 (1997).
The cases cited by defendant are clearly distinguishable. In
the instant case, defendant did receive a fitness hearing. In fact,
he received two: one before entry of his plea and another before
sentencing. Defendant concedes that he received fitness hearings
but argues that he was entitled to receive a more searching
inquiry into his fitness while under medication. He argues that
the circuit court was on notice that psychotropic medication was
involved but did not make a specific determination that
defendant was fit with medication before entry of his plea. He
argues that such a determination is required by the statute.
We disagree. The statute provides that the taking of
psychotropic medication is sufficient to warrant an evaluation of
defendant's fitness at a hearing. The circuit court is not required
to make an express finding of fitness with medication.
Regardless of whether a defendant is taking psychotropic
medication, the statutory requirements for fitness remain the
same. The statute does not create a right to a separate fitness
hearing solely on the effects of psychotropic medication. In this
respect, we agree with the reasoning of the appellate court in
People v. Steinmetz, 287 Ill. App. 3d 1, 4-5 (1997). A finding
of fitness may, however, be against the manifest weight of the
evidence where the circuit court completely disregards evidence
regarding the effects of psychotropic medication.
In the instant case, the record shows that the effects of the
psychotropic medication were addressed in the circuit court. In
seeking a fitness hearing, defendant relied on the report of Dr.
Maskel. Dr. Maskel initially stated that defendant suffered from
clinical depression. She further stated that defendant understood
the nature of the proceedings against him but could not assist in
his defense. Dr. Maskel noted that defendant was taking
psychotropic medication, Zoloft and Prolixin, and that
defendant's mental condition would probably improve with
therapy and medication.
Dr. Maskel conducted a follow-up examination on May 11,
1995, four days before the fitness hearing, and filed a report in
connection with this examination. In the report, she stated that
defendant's mental condition had improved significantly,
probably as a result of the medication. She concluded that
defendant both understood the nature of the legal proceedings
and could assist in his defense. Dr. Seltzberg also examined
defendant and reviewed defendant's records. Dr. Seltzberg
concluded that defendant understood the nature of the
proceedings and could assist in his defense.
We further note that the circuit court conducted a second
fitness hearing prior to sentencing. This second hearing occurred
on October 3, 1995, about three months after defendant entered
his plea. At the second hearing, Dr. Seltzberg testified that she
had evaluated defendant on three separate occasions over the
course of nearly a year. She testified that he understood the
nature of the proceedings against him and was able to assist in
his defense on all three occasions. She also testified that
defendant was taking Zoloft. She testified about the side effects
of Zoloft, stating that such side effects are quite minor and short
lived. In addition, defendant had not complained of any side
effects to her. Dr. Seltzberg further testified that if defendant
stopped taking Zoloft, defendant would probably be unchanged.
She stated that Zoloft would not interfere with defendant's
ability to understand the hearing on aggravating and mitigating
evidence.
These reports and testimony showed that defendant was
using psychotropic medication and addressed the effect of this
medication on fitness. The psychiatrists considered the
medication in reaching their opinions and this information was
presented to the circuit court. In the absence of any indication
to the contrary, we conclude that the circuit court evaluated the
psychiatric reports and testimony in making its fitness
determinations. The circuit court's determinations were not
against the manifest weight of the evidence.
In a related argument, defendant argues that his counsel was
ineffective for stipulating to the testimony of the two
psychiatrists at the fitness hearing before entry of his plea. To
show ineffective assistance of counsel, a defendant must
establish both: (1) that trial counsel's representation was
deficient and (2) that this deficient performance resulted in
prejudice to defendant. Strickland v. Washington, ,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese,
, 524-25 (1984). Defendant fails to meet either
prong. First, parties may stipulate to the opinion testimony of
psychiatrists at a fitness hearing. People v. Lewis, , 116 (1984); see also People v. Williams, 274 Ill. App. 3d
793, 802 (1995). Trial counsel's performance was not per se
deficient based on the stipulations. Second, defendant has not
shown prejudice. Defendant has not presented any new
information or argument that could have been offered to support
a finding of unfitness.

II. Supreme Court Rule 605(b)
Defendant next argues that the circuit court erred when it
instructed defendant how to perfect an appeal following his
guilty plea. Defendant argues that the circuit court failed to fully
admonish him, as provided under Supreme Court Rule 605(b)
(145 Ill. 2d R. 605(b)). Defendant argues that this case should
be remanded to the circuit court for further proceedings
consistent with Rule 605(b).
Rule 605(b) provides that the circuit court should give
certain admonishments to a defendant after defendant submits a
guilty plea. Specifically, the circuit court should advise
defendant: (1) that he has a right to appeal, (2) that he must file
a motion to withdraw guilty plea or reconsider sentence before
taking an appeal, (3) that if the motion is allowed, the circuit
court will modify the sentence or vacate the judgment and
sentence and proceed to trial, (4) that the State may pursue any
charges that were dismissed as part of the plea agreement, (5)
that if defendant is indigent, transcripts and counsel will be
provided to assist him in the preparation of the motions, and (6)
that any claims of error not raised in a motion to withdraw
guilty plea or reconsider sentence will be deemed waived on
appeal. 145 Ill. 2d R. 605(b). Significantly, without such
admonishments, a defendant may fail to file a motion to
withdraw his guilty plea or a motion to reconsider sentence.
Such post-trial motions are necessary to preserve issues for
appeal. See People v. Jamison, 181 Ill. 2d 24 (1998); see also
145 Ill. 2d R. 604(d).
In the instant case, after sentencing, the circuit court
advised defendant that an appeal to this court was automatically
perfected without further action by defendant and that defendant
would have the right to counsel and transcripts on appeal if he
was indigent. An appeal in a capital case is automatically
perfected under Rule 606(a) (134 Ill. 2d R. 606(a)) without
further action by a defendant. It is clear from the record,
however, that the circuit court did not fully admonish defendant
in accordance with Rule 605(b). The circuit court failed to
advise defendant that he could file a motion to withdraw his
guilty plea or reconsider sentence and that the failure to do so
would result in waiver of issues on appeal. Where the circuit
court fails to admonish a defendant pursuant to Rule 605(b) and
the defendant fails to file a motion to withdraw guilty plea, the
cause must be remanded to the circuit court to give the
defendant an opportunity to file a motion to withdraw his guilty
plea. Jamison, 181 Ill. 2d 24. Similarly, where the circuit court
fails to admonish a defendant about his right to file a motion to
reconsider sentence and the defendant does not file such a
motion, the cause must be remanded to the circuit court to give
the defendant an opportunity to file a motion to reconsider
sentence. People v. Foster, 171 Ill. 2d 469 (1996).
Despite the circuit court's failure to fully admonish
defendant, two post-sentencing motions were filed on
defendant's behalf. The first motion was filed on October 18,
1995, by Frank Rago of the public defender's office of Cook
County. Rago was defendant's counsel during the earlier
proceedings before the circuit court. The motion asked the
circuit court to vacate the death sentence. It summarily stated
that certain issues existed that would preclude imposition of the
death penalty. The public defender's office further indicated that
it had not yet received all of the transcripts and asked leave to
supplement the motion with specific issues when the transcripts
were received.
The second motion was filed on January 29, 1996, again by
the public defender's office but by a different assistant public
defender, Jeffrey Howard. The second motion sought to vacate
the death penalty and asked for additional proceedings. In the
second motion, the claims of error were specifically enumerated.
The second motion attacked both the guilty plea and the death
sentence. The motion challenged defendant's guilty plea on
several grounds. Specifically, defendant claimed that: (1) the
factual basis for the plea was improper because it contained the
confessions of the codefendants, (2) the plea did not establish
solicitation to commit murder, (3) the plea was not knowingly
and voluntarily made by defendant based on the alleged lack of
a fitness hearing before entry of the plea and improper
admonitions by the circuit court, (4) trial counsel was ineffective
for not exploring the issue of insanity prior to entry of the guilty
plea, and (5) trial counsel was ineffective for not challenging
part of the factual basis. The second motion also raised
numerous other issues that related to sentencing. In essence,
defendant asked the circuit court both to vacate the guilty plea
and to reconsider sentence.
The circuit court held a hearing on both motions. Rago
argued that the death penalty should not be imposed because
defendant had changed substantially since the time of the
murders and that defendant suffered from mental illness.
Howard argued that the factual basis for the plea was unreliable
because it was based on the confessions of codefendants and
that the plea was entered before any fitness hearing was held.
Howard specifically stated that he was attacking the judgment
based on the guilty plea. Howard also argued sentencing issues,
including ineffective assistance of counsel by Rago. The circuit
court denied the motions.
Although the circuit court failed to specifically advise
defendant about filing motions to withdraw his guilty plea and
to reconsider sentence, defendant did file post-sentencing
motions attacking both the guilty plea and the sentence. The
circuit court had the opportunity to consider these issues and
correct any errors. Accordingly, the circuit court's failure to
fully admonish defendant was harmless error.

III. Representation During Sentencing
Defendant next argues that he was deprived of his right to
proceed pro se during sentencing. He argues that he made a
clear and unequivocal request to represent himself during
sentencing. Defendant argues that the circuit court erred by
failing to allow him to waive counsel and proceed pro se.
On July 25, 1995, after defendant was found eligible for the
death penalty, defense counsel made a motion to withdraw from
the case. Defense counsel stated that the basis for this motion
was defendant's desire to seek the death penalty and wish not
to introduce any mitigating evidence. Defendant acknowledged
that he did not care to present mitigating evidence but wanted
to review records held by defense counsel. Defense counsel had
refused to review these records with defendant. Defendant stated
that he would be willing to have defense counsel withdraw and
have the circuit court consider allowing defendant to proceed
pro se. When asked explicitly if he wanted to represent himself,
defendant stated that he wanted access to the records. To obtain
these records, he would be willing to proceed pro se or be
appointed co-counsel. The circuit court continued the case for
a hearing on the motion to withdraw.
On August 2, 1995, the circuit court directed defense
counsel to make a copy of his records and turn the copy over to
defendant. Defense counsel renewed his argument to withdraw
from the case based on defendant's desire not to present
mitigating evidence. In response, defendant stated that he had no
objection and that he felt sympathy for defense counsel.
Defendant stated that it would be best if defense counsel were
allowed to withdraw from the case in order to spare defense
counsel any further personal distress. Defendant stated that he
would present no mitigation and ask for no favors because he
would then be representing himself. After considering the
matter, the circuit court denied defense counsel's motion to
withdraw from the case.
Under Faretta v. California, , 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), a defendant has a sixth amendment
right to represent himself. This constitutional right applies to the
states through the due process clause of the fourteenth
amendment. Faretta, 422 U.S. at 818, 45 L. Ed. 2d at 572, 95 S. Ct. at 2532-33. In order to represent himself, a defendant
must knowingly and intelligently relinquish his right to counsel.
Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541.
The Court found that the defendant waived counsel where he
clearly and unequivocally told the trial judge he wanted to
represent himself weeks before trial. Faretta, 422 U.S. at 835,
45 L. Ed. 2d at 582, 95 S. Ct. at 2541.
It is well settled that waiver of counsel must be clear and
unequivocal, not ambiguous. People v. Meeks, 249 Ill. App. 3d
152, 169 (1993); People v. Terry, 177 Ill. App. 3d 185, 191-92
(1988); People v. Woodruff, 85 Ill. App. 3d 654, 660 (1980);
United States v. Jones, 938 F.2d 737, 742 (7th Cir. 1991); Reese
v. Nix, 942 F.2d 1276, 1280 (8th Cir. 1991); United States v.
Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir. 1991); Burton
v. Collins, 937 F.2d 131, 133 (5th Cir. 1991); Adams v. Carroll,
875 F.2d 1441, 1444 (9th Cir. 1989); Raulerson v. Wainwright,
732 F.2d 803, 808 (11th Cir. 1984); People v. Marshall, , 21, , 271, , 93 (1997);
State v. Brown, 342 Md. 404, 412-13, 676 A.2d 513, 518
(1996); State v. Carter, 200 Conn. 607, 612-13, 513 A.2d 47, 50
(1986). A defendant is entitled to the representation of counsel
at all critical stages of a criminal prosecution, and this important
right will not be taken away unless affirmatively waived by a
defendant. Burton, 937 F.2d at 133; Marshall, 15 Cal. 4th at 20,
931 P.2d at 270, 61 Cal. Rptr. 2d at 92. A defendant waives his
right to self-representation unless he "articulately and
unmistakably demands to proceed pro se." United States v.
Weisz, 718 F.2d 413, 426 (D.C. Cir. 1983). A defendant must
explicitly inform the trial court he wants to proceed pro se
because "[a]nything else is an effort to sandbag the court and
the opposition, to seek an acquittal with an ace up the sleeve to
be whipped out in the event of conviction." Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
In determining whether a defendant's statement is clear and
unequivocal, courts have looked at the overall context of the
proceedings. A court must determine whether the defendant truly
desires to represent himself and has definitively invoked his
right of self-representation. Compare Marshall, 15 Cal. 4th at
27, 931 P.2d at 274, 61 Cal. Rptr. 2d at 97 (the defendant made
his request to avoid providing blood and tissue samples and for
the purpose of delay, instead of an actual desire to represent
himself); Burton, 937 F.2d at 133-34 (the defendant's inquiry
into the possibility of self-representation after denial of
substitute counsel was not an unequivocal assertion of right to
proceed pro se); People v. Brooks, 75 Ill. App. 3d 109, 110
(1979) (the defendant did not waive counsel where he stated that
he did not need counsel " 'at this present time' " in order to
avoid a continuance at a preliminary hearing and did not renew
the request at later proceedings); Jones, 938 F.2d at 742-43 (the
defendant was seeking more time to retain other counsel when
she told her attorney she was prepared to proceed pro se rather
than have the attorney represent her); Reese, 942 F.2d at 1281
(the defendant did not invoke his right to self-representation by
his isolated, off-hand statement expressing frustration at the trial
court's denial of a request for new counsel); Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir. 1990) (the defendant's statement was
an impulsive response to the trial court's denial of his request
for substitute counsel, which was not renewed), with United
States v. Arlt, 41 F.3d 516, 519-20 (9th Cir. 1994) (the
defendant repeatedly and forcefully asserted his right to proceed
pro se beginning six months before trial); Spencer v. Ault, , 843 (N.D. Iowa 1996) (the defendant told the trial
judge that he wanted to represent himself at least five times and
accepted counsel only when forced to do so); Snead v. State,
286 Md. 122, 127, 406 A.2d 98, 100-01 (1979) (the trial judge
forced the defendant to accept a court-appointed attorney after
the defendant chose to proceed pro se in terms admitting of no
doubt or misunderstanding). Courts must "indulge in every
reasonable presumption against waiver" of the right to counsel.
Brewer v. Williams, , 404, 51 L. Ed. 2d 424, 440,
97 S. Ct. 1232, 1242 (1977).
Even if a defendant gives some indication that he wants to
proceed pro se, he may later acquiesce in representation by
counsel. Under certain circumstances, defendant may acquiesce
by vacillating or abandoning an earlier request to proceed pro
se. See, e.g., Meeks, 249 Ill. App. 3d at 170; Williams v.
Bartlett, 44 F.3d 95, 100-01 (2d Cir. 1994); Brown v.
Wainwright, 665 F.2d 607, 611 (5th Cir. 1982). In determining
whether a defendant seeks to relinquish counsel, courts may
look at the defendant's conduct following the defendant's
request to represent himself. See Raulerson, 732 F.2d at 808-09
(the defendant waived his right to represent himself where he
voluntarily and abruptly left the courtroom after asking to
represent himself); Bennett, , 1175-76 (N.D.
Ind. 1995) (the defendant acquiesced in the representation of his
court-appointed counsel where he raised the possibility of
proceeding pro se but did not mention the issue again after the
trial judge declined to appoint substitute counsel); but see
Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989) (the
defendant did not acquiesce where his request to represent
himself was conclusively denied and a renewed request would
have been fruitless). A defendant may forfeit self-representation
by remaining silent at critical junctures of the proceedings. Cain,
972 F.2d at 750.
The timing of a defendant's request is also significant. A
number of courts have held that a defendant's request is
untimely where it is first made just before the commencement
of trial, after trial begins, or after meaningful proceedings have
begun. See, e.g., Jones, 938 F.2d at 743; United States v. Oakey,
853 F.2d 551, 553 (7th Cir. 1988); Betancourt-Arretuche, 933 F.2d at 92; Pitts v. Redman, (D. Del. 1991);
Woodruff, 85 Ill. App. 3d at 660; Mallory v. State, 225 Ga. App.
418, 422, , 911 (1997). Once such proceedings
have begun, the trial judge has discretion to deny a defendant's
request to represent himself. Oakey, 853 F.2d at 553; Pitts, 776 F. Supp. at 915.
In the instant case, we reject defendant's argument that he
was denied his right to represent himself. Defendant did not
clearly and unequivocally invoke his right to represent himself.
At the first hearing, defendant wanted access to defense
counsel's records. He stated that he would be willing to proceed
pro se or be appointed co-counsel, if necessary, to obtain these
records. Thus, defendant indicated a conditional willingness to
represent himself at some point if he could not get access to
these records. Defendant was given access to the records.
At the second hearing, in the context of a motion to
withdraw, defendant stated that he was willing to allow defense
counsel to withdraw from the proceedings. Defendant restated
his desire to obtain defense counsel's records and expressed
sympathy for defense counsel's difficult situation. Defense
counsel had generally cooperated with defendant during the
course of the proceedings to promote defendant's wishes. Aside
from access to the records, defendant expressed no
dissatisfaction with counsel's performance. After the motion to
withdraw was denied, defendant gave no indication that he
wanted to represent himself.
In addition, we note the timing of this exchange. The
statements made by defendant occurred after entry of the guilty
plea and after defendant was found eligible for the death
penalty. These statements were made during sentencing. Even
assuming defendant's statements could be construed as a clear
and unequivocal request to represent himself, the circuit court
generally has discretion to determine whether to allow a
defendant to proceed pro se after meaningful proceedings have
been conducted. Given counsel's intimate and lengthy
involvement in the case and the stage of the proceedings, the
circuit court did not abuse its discretion in requiring counsel's
continued representation.

IV. Evaluation of Defendant's Sanity
Defendant next argues that the circuit court erred in failing
to require an evaluation of his sanity. Defendant argues that an
evaluation of his sanity would have established his mental state
at the time of the offense and would have provided possible
mitigating evidence for sentencing. Defendant further argues that
the circuit court should have required such an evaluation before
he entered his guilty plea. Defendant argues that this cause
should be remanded for a psychiatric evaluation of sanity.
Prior to defendant's guilty plea, defendant requested an
evaluation of his fitness. On April 26, 1995, the circuit court
entered an order directing Dr. Seltzberg to evaluate defendant's
mental health, including but not limited to fitness to plead or
stand trial, and, if currently possible, sanity. On May 8, 1995,
Dr. Seltzberg submitted a letter stating that, after evaluating
defendant, she believed defendant was fit to plead or stand trial
and that her opinion regarding other issues was deferred at that
time. She therefore did not give an opinion regarding
defendant's sanity. She stated that she would conduct a further
evaluation of defendant if the court so desired. On July 7, 1995,
defendant entered a plea of guilty. In a post-sentencing motion,
defendant argued that defense counsel was ineffective for failing
to explore the issue of insanity before entry of the guilty plea.
In denying the motion, the circuit court stated that it saw no
evidence indicating that a psychiatric examination of sanity
would have been appropriate.
Initially, we note that fitness and insanity raise different
inquiries. People v. Coleman, , 524 (1995). As
stated earlier, a defendant is unfit to plead if he is unable to
understand the nature and purpose of the proceedings against
him or to assist in his defense. 725 ILCS 5/104--10 (West
1994). Fitness addresses a defendant s ability to function and
participate in court proceedings. In contrast, the issue of insanity
is a defense that may be raised at trial. Pursuant to statute,
insanity involves whether a defendant, because of a mental
disease or defect, lacks substantial capacity either to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of the law. 720 ILCS 5/6--2(a) (West 1994).
An examination by a clinical psychologist or psychiatrist is
generally required where a defendant gives notice that he may
rely upon the defense of insanity or if the facts and
circumstances of the case justify a reasonable belief that the
insanity defense may be raised at trial. 725 ILCS 5/115--6 (West
1994). The defense of insanity is an affirmative defense which
defendant has the burden of raising and proving by a
preponderance of the evidence at trial. 720 ILCS 5/6--2(e) (West
1994); People v. Gilmore, 273 Ill. App. 3d 996, 999-1000
(1995). In addition, the circuit court may order a mental
examination of defendant to develop evidence for sentencing.
730 ILCS 5/5--3--2(b), 5--3--3(b) (West 1994).
In the instant case, defendant did not file any notice that he
intended to raise the affirmative defense of insanity. Instead, the
circuit court found defendant fit to enter a plea and defendant
pleaded guilty. The decision of whether to plead guilty is
exclusively within the province of a defendant. People v. Ramey,
, 54 (1992). Once defendant pleaded guilty, the
question of sanity was no longer an issue. A plea of guilty
waives all nonjurisdictional defenses or defects. People v.
Horton, , 22 (1991); People v. Jackson, , 348 (1970). Once defendant was determined to be fit, he
could plead guilty and thereby waive an insanity defense. The
circuit court did not err in failing to require a follow-up
examination addressing defendant's sanity where defendant was
found fit and chose to plead guilty instead of raising sanity as
a defense at a trial. Similarly, defense counsel was not
ineffective for failing to request a follow-up examination of
sanity where defendant chose to plead guilty.
Defendant relies on People v. Allen, (1984)
to argue that the circuit court was required to conduct an
evaluation of defendant's sanity before accepting the guilty plea.
Alternatively, defendant argues that the circuit court should have
ordered an evaluation based on the post-sentencing motions. In
Allen, 101 Ill. 2d at 29, a medical expert examined the
defendant and stated that the defendant suffered from a paranoid
condition. The defendant was represented by a succession of
attorneys, several of whom tried to explore an insanity defense.
The defendant refused to cooperate with these evaluations and
pleaded guilty. In a motion to withdraw guilty plea, defense
counsel submitted medical records showing that the defendant
had previously suffered a head injury and that a portion of his
brain had been removed during surgery for a depressed skull
fracture. The records also showed that the defendant suffered
from seizures. A medical expert gave his opinion that the
defendant was legally insane and that further testing was
required to more definitely determine the defendant s mental
condition. The circuit court refused to order further testing to
determine the defendant s sanity. This court stated that ordinarily
insanity is a defense that must be raised by defendant at trial.
Allen, 101 Ill. 2d at 34. Based on the unusual circumstances of
the case, however, this court found that the failure to order
further testing into the defendant s sanity was reversible error.
Allen, 101 Ill. 2d at 36-37.
We find Allen distinguishable from the instant case. As
stated by this court, the circumstances in Allen were unusual.
Ordinarily, a defendant must raise the defense of insanity or
claim of mental illness before an evaluation of sanity is
required. In the instant case, the circumstances were not
sufficiently severe to require the circuit court to, sua sponte,
conduct an inquiry into defendant s sanity as a precondition to
accepting defendant s plea where defendant was found fit to
plead. The reports and testimony of the psychiatrists and other
information before the circuit court did not require an evaluation
of sanity. Accordingly, we find that the circuit court did not
abuse its discretion in failing to require an evaluation of
defendant's sanity.
In a related argument, defendant argues that an evaluation
of sanity would have developed mitigating evidence for
sentencing. Defendant argues that his decision not to present
mitigation evidence was not knowing and intelligent because the
mitigation investigation was not adequate. Defendant argues that
an evaluation of his sanity would have produced evidence that
would have affected the sentencing decision.
We disagree. Initially, we note that an evaluation of sanity
is used to inquire into insanity, an affirmative defense that can
be presented at trial. 725 ILCS 5/115--6 (West 1994). To the
extent that defendant argues that the circuit court should have
ordered a mental examination to develop evidence for
sentencing (730 ILCS 5/5--3--2(b), 5--3--3(b) (West 1994)), the
circuit court did not abuse its discretion in failing to require
such an examination. At the time of sentencing, the circuit court
had the reports and testimony of Dr. Maskel and Dr. Seltzberg
about defendant's mental condition. Dr. Maskel and Dr.
Seltzberg had evaluated defendant's mental condition on
separate occasions before and during sentencing. The circuit
court also possessed mental health records and alcohol treatment
records from Cermak Health Services and Tri-City Community
Mental Health Center. The circuit court therefore had significant
information concerning defendant's mental condition for the
purposes of sentencing and was not required to order further
mental evaluation of defendant.
Defendant also claims counsel was ineffective for failing to
request a mental examination to develop evidence for
sentencing. A defendant claiming ineffective assistance of
counsel must show: (1) that trial counsel's representation was
deficient and (2) that this deficient performance resulted in
prejudice to defendant. Strickland v. Washington, ,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese,
, 524-25 (1984). Defendant has failed to show
prejudice. Defendant can only speculate that an additional
evaluation would have produced significant new evidence
concerning his mental health, rather than cumulative evidence.

V. Defendant's Desire Not to Present Mitigation Evidence
Defendant argues that the circuit court had an independent
duty to order defense counsel to present all available mitigation
evidence, despite defendant's wishes to the contrary.
Alternatively, defendant argues that the circuit court should have
appointed a special counsel to carry out a mitigation
investigation. Defendant argues that the eighth amendment
requires that mitigation evidence be presented and considered by
the sentencer, even if defendant does not want any mitigation
evidence presented. See U.S. Const., amend. VIII.
These arguments have previously been rejected by this
court. There is no eighth amendment requirement that mitigating
evidence must be presented where a defendant chooses not to
introduce any such evidence. Coleman, 168 Ill. 2d at 556-57;
People v. Silagy, , 181-82 (1984). A defendant
need only have the opportunity to present mitigating evidence.
Coleman, 168 Ill. 2d at 557. We decline to overrule these cases.
In any event, the record shows that the circuit court did
consider a great deal of mitigation. Defense obtained the
services of a mitigation specialist and investigated evidence that
could be used in mitigation. Cf. People v. Perez, ,
187-95 (1992). Although defendant chose not to introduce
mitigation evidence at sentencing, the circuit court stated that it
would consider the mitigation report prepared by the mitigation
specialist and the presentence report. The circuit court also
considered defendant's mental health records showing several
years of treatment at Cermak Health Services and alcohol
treatment records from Tri-City Community Mental Health
Center. In sentencing defendant, the circuit court noted
defendant's alcoholism and troubled life. The circuit court
expressly addressed two statutory mitigating factors based on the
information in these records and reports. Accordingly,
defendant s argument is without merit.

VI. Indiana Murder Case
Defendant next challenges certain evidence offered by the
State during sentencing. Specifically, the State introduced
testimony suggesting that defendant was involved in a murder
in Indiana. Defendant argues that his possible role in this
murder was too speculative and prejudicial to be admissible.
Defendant argues that the admission of this evidence deprived
him of a fair sentencing hearing, that counsel was ineffective for
not objecting to it, and that the circuit court should have, sua
sponte, rejected this evidence.
Two witnesses testified about defendant's possible
involvement in the Indiana murder. Douglas Wiech of
Hammond, Indiana, testified that he was a friend and neighbor
of Doyle Matlock, the victim. The victim had previously hired
defendant to do some remodeling at the victim's house. At 4:30
p.m. on February 10, 1992, Wiech saw defendant and another
person exit from the entrance to the apartment building in which
the victim lived. Wiech testified that defendant's companion
kept himself turned away from Wiech. Defendant wanted to use
the victim's truck but had the wrong set of keys. The victim had
allowed others to use the truck in the past. Defendant reentered
the apartment building to get the correct keys to the victim's
truck. Later, Wiech saw defendant and his companion leave in
the truck. Wiech became worried after 10 p.m. because he had
not seen the victim and that was unusual. At about 12:25 a.m.,
he heard the police and went outside. He saw the police remove
the victim's body from the victim's apartment. An autopsy
showed that the victim had suffered blunt trauma wounds to the
head and stab wounds.
Mark Woodard testified that he responded to a call at a
motel in Lebanon, Indiana, on February 10, 1992. At that time,
Woodard worked for the Lebanon police department. Woodard
learned that two men had checked into the motel using the
victim's credit card. They had misspelled the name Doyle and
indicated that they arrived in a Mazda even though there was no
Mazda in the parking lot. Woodard and another officer knocked
on the men s motel room and a man, identifying himself as
Wood, answered the door. Wood said he was not Doyle Matlock
and that Doyle was asleep, indicating defendant. Defendant was
awakened. After both Wood and defendant denied having the
victim's credit card, Wood eventually turned the card over to
the police. Wood also had the victim's driver's license.
Defendant stated that he and Wood were driving to Louisiana to
meet the victim for Mardi Gras. The motel attendant told Wood
and defendant to leave the motel. Woodard did not arrest them
but told them they could not drive because they had been
drinking. Woodard later arrested defendant when defendant
began driving the truck. Woodard learned of the victim's murder
and Hammond police officers took over the investigation. It is
not clear what happened thereafter in the Matlock murder
investigation.
The rules of admissibility at sentencing are broader than the
rules of evidence at trial. The evidentiary rules of trials are not
applied at the second stage of sentencing because, in
determining the appropriate sentence, the circuit court must
possess the fullest information possible concerning the
defendant's life, character, criminal record, and the
circumstances of the particular offense. People v. Hudson, , 450 (1993). The only requirement for admissibility
at the second stage of sentencing is that evidence be relevant
and reliable. Hudson, 157 Ill. 2d at 449; People v. Morgan, , 143 (1986); see also 720 ILCS 5/9--1(e) (West
1994). The determination of relevance and reliability is a matter
within the circuit court's sound discretion. Hudson, 157 Ill. 2d
at 450; Morgan, 112 Ill. 2d at 143.
We find that the circuit court did not err in admitting this
evidence. This court has consistently found evidence of a
defendant's criminal conduct to be admissible as long as the
evidence is relevant and reliable. See Hudson, 157 Ill. 2d at
448-53 (circuit court did not err in admitting evidence of the
defendant s involvement in an attempted escape from prison and
arrests for three prior robberies and an aggravated assault);
People v. Howard, , 158-60 (1991) (circuit court
properly admitted evidence of the defendant s participation in a
residential break-in and armed robbery where the charges had
been dismissed); People v. Young, , 52-54 (1989)
(circuit court did not abuse its discretion in admitting hearsay
evidence of the defendants alleged involvement in a murder and
attempted murder for which he had not been convicted); People
v. Hall, , 416-17 (1986) (circuit court did not err
in admitting evidence that the defendant, while in prison, was
involved in a fight with another inmate in which the inmate was
stabbed); Morgan, 112 Ill. 2d at 142-44 (circuit court properly
admitted hearsay evidence that the defendant had committed an
armed robbery and shooting where the charges had been
dismissed); People v. Brisbon, , 364-65 (1985)
(circuit court did not abuse its discretion in admitting evidence
of the defendant s involvement in a killing where a charge had
been dismissed for want of probable cause).
The evidence in the instant case would, at least, support an
inference that defendant was present at the victim's murder and
was involved. It was the circuit court's function to give this
evidence the appropriate weight. Accordingly, we find that the
circuit court did not err in admitting this evidence. Similarly, we
reject defendant's claim that counsel was ineffective for failing
to object to this aggravating evidence, given that the evidence
was admissible. See People v. Hampton, , 111-12
(1992).

VII. Nonstatutory Mitigating Factors
Defendant next argues that the circuit court erred when it
found that there were no mitigating factors sufficient to preclude
imposition of the death penalty. Defendant argues that the
circuit court failed to consider certain nonstatutory mitigating
factors that would preclude imposition of the death penalty.
Defendant argues that the circuit court failed to consider, inter
alia, that defendant confessed to the police, pleaded guilty,
showed great remorse, was youthful at the time of the crime,
and suffered chronic alcoholism from his adolescence to the
time of the murders.
We reject defendant's argument. The fact that a court
expressly mentions a factor in mitigation does not mean the
court ignored other factors. People v. Burrows, ,
254-56 (1992). The mere existence of mitigating evidence does
not preclude imposition of the death penalty. People v. Johnson,
, 151 (1992); People v. Thompkins, , 452 (1988). We presume that the circuit court considered
any mitigating evidence before it, in the absence of some
indication to the contrary, other than the sentence itself. See,
e.g., People v. Cagle, 277 Ill. App. 3d 29, 32 (1996); People v.
Young, 250 Ill. App. 3d 55, 65 (1993).
In the instant case, the circuit court expressly noted two
statutory factors in mitigation: (1) extreme mental and emotional
disturbance, and (2) no significant criminal history. This,
however, does not mean that the circuit court ignored
nonstatutory mitigating factors. The circuit court stated that it
would consider mitigating evidence presented in the presentence
report and the report by the mitigation specialist. The circuit
court stated that it would review all the evidence presented
during the course of the proceedings, which included
defendant's psychiatric records and records concerning
defendant's attempt at alcohol rehabilitation. See Burrows, 148 Ill. 2d at 254-56. In addition, when imposing sentence, the
circuit court commented on defendant's youth, his history of
alcohol abuse, his remorse, and his troubled life. Many of the
factors listed by defendant were therefore expressly noted by the
circuit court. Accordingly, we reject defendant s argument.

VIII. Excessive Sentence
Next, defendant argues that his death sentence was
excessive. He argues that he presented mitigating evidence of
chronic alcoholism and his youth. Defendant argues that he
acted under an alcoholic haze of confusion on the night of the
crimes. He also claims that neither of his two codefendants
received the death penalty. Thus, he argues that the death
sentence is excessive.
In reviewing the death penalty, we consider the "character
and record of the individual offender and the circumstances of
the particular offense." Woodson v. North Carolina, , 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (1976).
A death sentence is appropriate if the sentence is commensurate
with the seriousness of the offenses and based on an adequate
consideration of the relevant mitigating circumstances. People
v. Pitsonbarger, , 388 (1990). Generally, this
court will not interfere with a trial court's determination of
sentence unless the trial court has abused its discretion. See,
e.g., People v. Ward, , 338 (1992); People v.
Gonzalez, , 89 (1992). A capital sentencer's
decision will not be lightly overturned when amply supported by
the record. People v. Johnson, , 145 (1991).
In the instant case, the circumstances surrounding the
commission of the murders constituted strong aggravating
evidence. Defendant shot and killed two defenseless, elderly
individuals, who had invited him into their home. Defendant
was offered money to commit the killings. After being invited
into the home, defendant shot Frank Gorzelanny in the head in
an execution-style manner. Defendant then ruthlessly shot
Evelyn Gorzelanny twice in the head. After the shootings,
defendant acted in a deliberate manner to dispose of clothing
and other possible evidence and to give the appearance of a
burglary. There was no indication that defendant was acting
under the influence of alcohol at the time of the killings. These
circumstances show that defendant acted in a planned and
calculated manner. See Pitsonbarger, 142 Ill. 2d at 388-92
(alcohol problem and troubled childhood were not sufficient to
preclude imposition of death penalty based on cold-blooded,
close-range shooting of victims during home invasion); People
v. Gosier, , 146-49 (1991) (insignificant criminal
history and drug addiction were not sufficient to preclude
imposition of death sentence based on aggravating evidence
showing planning and premeditation). Although the circuit court
considered mitigating evidence, the circuit court was justified in
finding that such evidence was not sufficient to preclude
imposition of the death penalty when balanced against the
aggravating evidence.

IX. Constitutionality of Aggravating Factor
Defendant next argues that one of the statutory aggravating
factors applied during sentencing is unconstitutional. The circuit
court found that defendant was eligible for the death penalty
under four statutory aggravating factors: (1) multiple murder
(720 ILCS 5/9--1(b)(3) (West 1994)), (2) contract murder (720
ILCS 5/9--1(b)(5) (West 1994)), (3) murder during the course
of another felony (720 ILCS 5/9--1(b)(6) (West 1994)), and (4)
cold, calculated, and premeditated murder (720 ILCS 5/9--
1(b)(11) (West 1994)). Defendant argues that the cold,
calculated and premeditated factor is unconstitutionally vague.
Although defendant concedes that the other factors were
sufficient to support eligibility, defendant argues that the circuit
court's consideration of this factor at the aggravation/mitigation
phase of sentencing deprived him of a fair sentencing hearing.
See U.S. Const., amends. VIII, XIV; Ill Const. 1970, art. I, sec.
11.
The statutory aggravating factor challenged by defendant
applies where "the murder was committed in a cold, calculated
and premeditated manner pursuant to a preconceived plan,
scheme or design to take a human life by unlawful means, and
the conduct of the defendant created a reasonable expectation
that the death of a human being would result therefrom." 720
ILCS 5/9--1(b)(11) (West 1994). This court has previously
determined that this aggravating factor is not unconstitutionally
vague. See People v. Haynes, 174 Ill. 2d 204, 254-56 (1996);
People v. Williams, 173 Ill. 2d 48, 89-91 (1996); People v.
Munson, 171 Ill. 2d 158, 190-92 (1996); People v. Johnson, , 372-73 (1993). This court has also rejected
defendant s argument that this factor fails to limit a sentencer s
discretion and is somehow improper at the second stage of
sentencing. Munson, 171 Ill. 2d at 191. We decline to reconsider
the reasoning of those cases.

X. Constitutionality of Death Penalty Statute
Finally, defendant argues that the death penalty statute is
unconstitutional. Defendant argues that it unconstitutionally
places a burden of proof on a defendant because it requires a
determination that there are no mitigating factors sufficient to
preclude imposition of the death sentence. Defendant also argues
that the statute is unconstitutionally vague because it allows the
sentencer to consider any non-statutory aggravating and
mitigating factors relevant to imposition of the death penalty.
Defendant therefore argues that the statute results in the
imposition of arbitrary death sentences.
This court has repeatedly rejected these arguments. This
court has held that the statute does not place a burden of proof
on a defendant. See, e.g., Pitsonbarger, 142 Ill. 2d at 408;
People v. Bean, , 138-40 (1990). This court has
also held that the statute is not unconstitutional because it allows
the sentencer to consider non-statutory aggravating factors at the
aggravation/mitigation phase of sentencing. See, e.g., People v.
Rissley, , 407 (1995); People v. Owens, 102 Ill. 2d 145, 159 (1984). Defendant raises no compelling argument
for reconsideration of these cases.

CONCLUSION
For the foregoing reasons, the decision of the circuit court
is affirmed. The clerk of this court is directed to enter an order
setting Wednesday, January 13, 1999, as the date on which the
sentence of death, entered by the circuit court of Cook County,
shall 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 this mandate to the
Director of Corrections, to the warden of Stateville Correctional
Center, and to the warden of the institution where defendant is
now confined.

Affirmed.

[fn1] We note that section 104--21(a) was amended by
Public Act 89--428, eff. January 1, 1996 (see 725 ILCS 5/104--
21(a) (West Supp. 1997)). The effective date of the amendment
was after defendant was convicted and sentenced but before the
circuit court's consideration of the post-trial motions. The
statute, as amended, provided that "no hearing is required unless
the court finds there is a bona fide doubt of the defendant's
fitness." The statute was again amended by Public Act 89--689,
effective December 31, 1996 (see 725 ILCS 5/104--21(a) (West
1996)), while the case was pending on appeal. The statute, as
amended, provided that "[a] defendant who is receiving
psychotropic drugs shall not be presumed to be unfit to stand
trial solely by virtue of the receipt of those drugs or
medications."
Defendant argues that the original version of the statute
applies and requires a fitness hearing on the effects of
psychotropic medication. The State argues that the most recent
version of the statute applies retroactively and does not entitle
defendant to any fitness hearing. Compare People v. Kinkead,
182 Ill. 2d 316 (1998) (opinion of McMorrow, J., joined by
Freeman & Nickels, JJ.), with Kinkead, 182 Ill. 2d at 350
(Heiple, J., dissenting, joined by Miller & Bilandic, JJ.). We
need not address these amendments. Even assuming that the
original version of the statute applies, defendant received a
proper fitness hearing.

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