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Note: Citations are to cases and numbers set out in "Illinois Supreme Court Decisions in Death Penalty Cases" (1979 thru April 2002)

A. GENERALLY
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1. The death penalty statute sufficiently narrows its application to a unique and cognizable group of persons. Whitehead (88); Emerson (96); Ashford (103); Spreitzer (111); Britz (117); Young (125); Williams (186).

2. The death penalty statute is not unconstitutional on the ground that the statutory aggravating factors used to qualify persons for the death penalty are the same, with one exception, as those used to qualify persons for a natural life sentence. Jimerson (124); Harris (138); Kokoraleis (145).

3. The statute has adequate safeguards to prevent the arbitrary and capricious imposition of the death penalty. Lewis (9); Ashford (103); Britz (117); West (158); Morgan (172).

4. There has been no substantial showing that the death penalty is being applied in a racially discriminatory manner. Davis (95); Orange (108); Stewart (109); Spreitzer (111); Stewart (112); Britz (117); Albanese (118); Williams (186).

5. The statute is not invalid on the ground that defendants tried with the aid of certain special communicative assistance (Ch. 38, §§104-22, 104-261(b) are exempted from the death penalty. Stewart (44); Neal (65); Morgan (73); Foster (97); Spreitzer (111); Jones (115); Britz (117); Young (125).

6. A trial judge does not have the authority to set aside a jury's sentencing verdict. Lewis (9); Gaines (10); Howard (189).

7. The statute is not rendered invalid by the existence of the Post-Conviction Act which permits challenge to a conviction up to 10 years after final judgment - the legislature did not intend to stay executions for that time period. Gaines (10).

8. The death penalty statute became effective on June 21, 1977 and may not be applied to acts occurring prior to that date. Hill (2).

9. The cumulative effect of various components of the death penalty statute (i.e., prosecutorial discretion, absence of pre-trial notice, limited comparative proportionality review, absence of written findings, the lack of a burden of proof on the prosecution, and the preclusion of the sentencer's consideration of alternative sentences) does not render the statute unconstitutional. Phillips (127); Thomas (159); Pitsonbarger (165); Morgan (172); Nitz (174); Gosier (181).

10. The death penalty is not unconstitutional because of "the inevitability that innocent persons will be wrongly convicted of capital crimes and executed." Bull (372)

11. Delays in applying the death penalty caused by several remands because of errors found on appeal do not render the death penalty cruel and unusual. Simms (421)

12. Non-retroactivity of new rules in capital cases does not make prior death sentences unconstitutional. Hickey (432)

13. Constitutional attacks based on Apprendi v. New Jersey, 530 U.S. 466 (2000) rejected. Davis (463)

B. PROSECUTOR DISCRETION
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1. The statute is not invalid on the ground that it gives discretion to State's attorneys to seek the death penalty. Cousins (1); Lewis (9); Stewart (44); Madej (52); Brisbon (134); DelVecchio (137); Terrell (148); Bean (155); Tye (168); Williams (186).

2. There has been no substantial showing that prosecutor discretion has resulted in the arbitrary and capricious application of the death penalty. Stewart (112); Spreitzer (111); Williams (186).

3. The death penalty was properly sought and obtained after trial, even though the prosecutor offered to recommend a 60 year sentence if defendant pleaded guilty - "no indication of a purpose to punish defendant for exercising his right to a jury trial." Lewis (9); Richardson (110); McLaurin (366).

4. Insufficient showing that prosecutor's decision to seek the death penalty was based on improper factors (defendant claimed that the prosecutor had not sought the death penalty in comparable cases and was improperly motivated by defendant's acquittal in another case). Foster (97).

5. A prosecutor is not barred from considering the wishes of the victim's family in determining whether to accept a plea bargain or to proceed to trial and seek a death penalty. Mack (48).

6. A death sentence was vacated where the defendant confessed after the State's Attorney told him the death penalty would not be sought if he confessed. Brownell (22).

7. Defendant pleaded guilty after the prosecutor offered to recommend a 60 year sentence; defendant withdrew his plea, but later entered another, but non-negotiated, guilty plea and was sentenced to death. The death sentence was vacated since there was a realistic likelihood of vindictiveness. Walker (8).

8. A successor State's Attorney could properly seek the death penalty even though the prior State's Attorney had notified the court that the death penalty would not be sought. Davis (183).

9. Prosecutor's not seeking death in one similar case did not establish arbitrariness in seeking death against defendant. Simms (421)

C. COUNSEL

1. Ineffective Assistance
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1. Effective assistance of counsel at death penalty hearings is determined under the test of Strickland v. Washington, 466 U.S. 668 (1984) - representation below an objective standard of reasonableness and a reasonable probability that, absent counsel's conduct, defendant would not have received the death sentence. Albanese (45); Fields (153); Holman (144); Spreitzer (175); See also, Lewis v. Lane, 832 F.2d 1446 (7th Cir. 1987); Gaines v. Thieret, 846 F.2d 402 (7th Cir. 1988); Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989).

2. There is no per se rule that counsel's failure to offer mitigating evidence at the second phase is ineffective assistance of counsel. Steidl (171); Neal (65); Shum (91); Orange (108); Jones (182); Williams (186); Perez (196); Hampton (201); Byron (262); Brisbon (263); Holman (266); Orange (291); Foster (293); Steidl(341)

3. Defense counsel was not ineffective by failing to present opening argument, closing argument, or any mitigating evidence where this was in accord with the defendant's wishes. Johnson (80); Emerson (96); Williams (186) (opening statement).

4. Defendant's allegations in a Post-Conviction petition regarding defense counsel's failure to call certain witnesses in mitigation, where their proposed testimony was available and relevant, was sufficient to require an evidentiary hearing on the issue of ineffective assistance of counsel. Caballero (123); Ruiz (146). Compare Flores (126); Owens (133); Spreitzer (175), Orange (291); Steidl(341); Towns (365)

5. Defense counsel was not ineffective for conceding the defendant's guilt at the sentencing stage--it was a matter of strategy to abandon the claim of innocence and focus on the mitigation evidence. Lear (173); Franklin (152); Holman (144).

6. Defense counsel's failure to object to allegedly improper evidence and argument was not ineffective assistance of counsel where the defendant failed to establish a reasonable probability that the outcome of the sentencing hearing would have been different. Pitsonbarger (165).

7. Defense counsel was not ineffective in failing to obtain further psychiatric exams of defendant-to show an extreme mental disturbance; counsel's decision was supported by his reasonable professional judgment that such exams might produce information damaging to defendant. Also, defense counsel was not ineffective in failing to call family members to testify; such testimony could have introduced evidence of defendant's violent behavior which was otherwise not disclosed and outcome would not have been different in light of the overwhelming aggravating evidence. Eddmonds (179).

8. Defense counsel was not ineffective for failing to call certain witnesses in mitigation since the decisions were strategic choices. Also, counsel closing argument, which could have been "more persuasive", was not incompetent. Jones (182); Williams (186); Kokoraleis (245); Gosier (272); Tenner (325); Griffin(335); Todd(344); Szabo (375)

9. Insufficient prejudice shown to require sentence relief when defense counsel argued the defense had burden on presenting mitigation. Easley (198).

10. Counsel was not ineffective for failing to argue against death penalty when that was his client's desire. Hampton (201).

11 Counsel's failure to call mitigation witnesses not prejudicial when their testimony would not have changed outcome of death penalty hearing. Caballero (211); Maxwell (316); Lear (327); Madej(334); Griffin(335);

Johnson (363)

12. Post-Conviction counsel failed to comply with requirements of Illinois Supreme Court Rule 651(c) when he did not investigate specific mitigation witnesses. Johnson (225). Post-conviction counsel failed to meet the standards of Rule 651(c) when he failed to amend the petition to avoid default and failed to support the petition with any affidavits. Turner (388)

13. Counsel was ineffective at death penalty hearing when counsel erroneously believed that felony murder guilty plea established death penalty eligibility without proof of culpable mental state. Pugh (231) Pugh distinguished in Fuller (462).

14. Private comment by defense counsel that his client deserved the death penalty did not create conflict of interest. Holman (266).

15. Counsel not ineffective for failing to present any mitigation witnesses or beg for mercy where counsel had other strategy. Thomas (268).

16. Counsel not ineffective for failing to present mitigation that would have been cumulative or "not inherently mitigating" including psychological handicaps like retardation. Mahaffey (273); Sanchez (299); Henderson (301); Lear (327); Todd(344); Johnson (363)

17. Counsel was not ineffective for failure to investigate mitigation which would have been cumulative or was not inherently mitigating including mental illness and his family's violent psychological history. Franklin (279); Whitehead (303).

18. Appellate counsel found ineffective for failure to argue on direct appeal that verdict form on eligibility for death penalty for murder in course of felony omitted required mental states. Mack (285).

19. Neglect in investigation of mitigation cannot be attributed to strategy. Coleman (288); Towns (365)

20. Omitted mitigation, that defendant was a cocaine user, did not establish sufficient prejudice to show ineffective assistance of counsel. Ashford (292).

21. Ineffective assistance of counsel not shown even if counsel was deficient in not showing defendant was under extreme emotional distress since outcome of sentencing would not have been different. Foster (293).

22. Failure to investigate cumulative mitigation was not ineffective assistance distinguishing Perez (196); Britz (320).

23. Failure to elicit expert opinion on extreme emotional distress not prejudicial when evidence showed it. Britz (320).

24. Inexperience of trial counsel does not constitute ineffective assistance of counsel. Pecoraro (326); Lear (327).

25. Although failure to investigate mitigation was deficient performance, even though defendant said he wanted no mitigation presented, the failure to investigate was not prejudicial. Madej(334); Coleman (368)

26. Counsel not ineffective for stipulating to element of death eligibility where there was no prejudice. Madej(334)

27. Failure to waive a jury for sentencing to avoid death qualified jury was not ineffective assistance of counsel. Griffin(335)

28. Counsel has a duty to investigate potential sources of mitigation or must have a reason for not making such investigation. Orange(291); Howery(336); Towns (365)

29. Counsel's failure to investigate and present mitigation of defendant's civic work was ineffective assistance given lack of criminal history, presence of emotional distress, and excessive drinking, where only mitigation presented was character witnesses and opinion that defendant could not have committed crime, and counsel felt that the death penalty phase was hopeless. Howery(336)

30. Counsel was not deficient when he failed to challenge affidavits that defendant had antisocial personality disorder since there were tactical reasons for not doing so. Thomas(339)

31. A defendant cannot waive his right to present mitigation without being advised of the available mitigation. Madej(334); Steidl(341)

32. Circuit Court post-conviction order for resentencing based on ineffective assistance of counsel upheld where only minimal mitigation was presented and omitted mitigation included abuse by father who was a drug dealer and involved in organized crime; an older brother was a gang member, defendant had learning disability and used drugs at early age. Ruiz(343)

33. Stipulating to death penalty eligibility was not ineffective assistance of counsel. Harris (357).

34. Failure to present any live mitigation witnesses, and relying on 17 letters in mitigation , plus counsel's affidavit in support of the post-sentencing motion that he had not investigated mitigation, did not establish prejudice required under Strickland v. Washington for ineffective assistance of counsel. Harris (357).

35. Failure to investigate defendant's mental problems, which post-conviction investigation demonstrated included depression and personality disorders, was not ineffective assistance since not deficient performance when counsel otherwise did a lot of mitigation investigation including a social history prepared by a psychologist. Ganus (378)

36. Counsel's failure to present evidence that the murder was a "gang hit" rather than a crime which defendant alone planned and committed was not ineffective since it was a strategic judgment not to present that theory and defendant was still responsible for the offense. Ganus (378)

37. Failure to introduce testimony of extreme emotional distress at the time of the offense was not deficient since it would have conflicted with defendant's own testimony that he was innocent, further such evidence of emotional distress would not have helped given the extensive aggravation. Evans (381)

38. Failure to present a social history and mental impairments was not ineffective since it was cumulative of mitigation that was heard. Evans (381)

39. Failure to object to irrelevant aggravation testimony concerning security for and dangerousness of natural life inmates was not prejudicial. Brooks (384)

40. Failure of counsel to present mitigation of turbulent upbringing and that defendant was follower weren't prejudicial, and omission of drug and alcohol abuse was strategy. Ward (385)

41. Appellate counsel's omission of an instruction error wasn't prejudicial since the instruction error was harmless. Ward (385)

42. Trial counsel was ineffective for failing to investigate organic brain damage and abusive upbringing when defendant's mother told him defendant had, "a spot on the brain" and a history of seizures. Morgan (389)

43. Appellate counsel was ineffective for failing to argue on direct appeal that the evidence was insufficient to prove the required mental states of intent or knowledge for eligibility under section 9-1(b)(3) when the prosecution presented no evidence of the mental state to a murder for which defendant had previously pled guilty. West (390)

44. Failure of counsel to present more mitigation of IQ, epileptic seizures, and indications of brain damage was not prejudicial since it was cumulative. Also counsel had strategic reasons for omitting mitigation that other children picked on defendant. Mitchell (395)

45. Failure to present evidence of psychological impairments troubled social history was strategy and not prejudicial. Richardson (397)

46. Failure to reverse -Witherspoon prospective jurors was presumed to be a sound trial strategy. Childress (400)

47. Failure to investigate possible brain damage and substance abuse did not establish ineffective assistance of counsel in light of the aggravation. Childress (400)

48. Failure to investigate possible extreme emotional distress at time of offense was not ineffective when there was no evidence suggesting such mitigation. Wilson (404)

49. Failure to investigate a specific mitigation witness not ineffective when counsel was not shown to have any reason to know of witness. Wilson (404)

50. Appellate counsel not ineffective for not raising issue that State promised not to seek death penalty when the issue would have failed on the merits on appeal. Wilson (404)

51. Failure to investigate extreme emotional distress and disadvantaged and troubled childhood was not prejudicial. Easley (405)

52. Failure to have a neuropsychologist examine defendant wasn't unreasonable when three other psychologists examined him and none of them found evidence of organic brain damage. Cloutier(407)

53. Counsel's failure to investigate mitigation including saving the life of a police officer, being a good family man, and a good medical worker denied defendant effective assistance of counsel. Thompkins (408)

54. Waiver of jury under the mistaken belief that the Judge had promised not to impose death penalty was not ineffective assistance when counsel had three other reasons for waiving jury. Montgomery (409)

55. Failure to investigate mitigation was not prejudicial when it was cumulative to mitigation presented. Montgomery (409)

56. Counsel had a strategic reason for not calling in mitigation a psychologist who had testified at fitness hearing when the prosecution expert at the fitness hearing had testified defendant was malingering. Sims(411)

57. Failure of counsel to present mitigation that defendant was under the influence of a devil worship cult wasn't ineffective, since this mitigation evidence would have been viewed as aggravating. Page (417)

58. Counsel's failure to investigate greater detail about defendant's childhood required an evidentiary hearing on post-conviction petition allegation of ineffective assistance of counsel. King (419)

59. Counsel's concession in sentencing argument that his client was guilty of horrible crime was not ineffective, but was strategic effort to humanize defendant. Simms (421)

60. Counsel's failure to request an instruction on the statutory mitigating factor of compulsion wasn't ineffective assistance of counsel where the evidence didn't support it. Williams (427)

61. Counsel's failure to present evidence of defendant's neurological impairment and social history was strategy when defendant maintained his innocence. Also, neurological impairment is not inherently mitigating. Enis (435)

62. Counsel not ineffective for not presenting mitigation on PCP use, or cumulative evidence of difficult childhood, or cumulative evidence to rebut aggravation. Smith (439)

63. Counsel not ineffective, in failing to contact any professionals, and failing to obtain medical, school, and prison records which would have shown low IQ and neurological symptoms, since this evidence was largely cumulative of the mitigation presented. Hickey(453)

64. Counsel not ineffective for failing to present inmate's testimony that defendant gave less culpable account of crime, since the account remained highly incriminating. Caffey (456)

65. Post-conviction petition hearing needed on ineffective assistance in failing to present mitigation of good employment history and psychological disorders. Wiley (458)

66. Counsel not ineffective for failing to present mitigation that defendant's family members had a history of mental illness. Jackson (459)

2. Right to Counsel and Self-Representation
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1. The judge did not error in allowing defendant to represent himself. Silagy (33); Lego (87); Silagy (93); Coleman (288); McLaurin (366).

2. A waiver of counsel prior to trial is operative through the sentencing hearing. Johnson (98); Haynes (321).

3. Trial judge properly refused to allow defendant to act as co-counsel - a defendant has the right to self-representation or counsel representation, but not both. Williams (25).

4. A defendant may represent himself at a death penalty hearing consistent with the Eighth Amendment. Coleman (288).

D. NOTICE-DISCOVERY
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1. The charging document need not allege the statutory aggravating factors which would make the defendant eligible for the death penalty. Brownell (5); Owens (38); Gaines (10); Ruiz (15).

2. The prosecutor is not required to provide pretrial notice of the aggravating factors upon which the State intends to rely. Johnson (98); Crews (104); Spreitzer (111); Jones (115); Fields (153); Maxwell (195).

3. The prosecutor is not required to disclose before trial whether the State will seek the death penalty. Silagy (33); Caballero (36); Gaines (10); Thompkins (102); Evans (119); Fields (153).

4. The discovery rules are not applicable at sentencing proceedings. Foster (97). Williams (186).

5. The prosecutor has the duty to disclose any mitigating evidence of which he or she has knowledge. Williams (25); Whitehead (85); Burt (455).

6. Trial judge did not abuse discretion by allowing witnesses to testifying without requiring them, upon defendant's request, to execute release of their mental health records. Foster (97).

7. Trial judge did not abuse discretion by denying the defendant's request for a continuance prior to sentencing. Gosier (181).

8. A capital defendant is not constitutionally entitled to discovery of aggravating evidence. Guest (276); Armstrong (353); Williams (406)

9. Short notice of aggravation witness did not require reversal when the record gives no indication as to how counsel would have attacked the credibility of the witness differently. Williams (406)

10. Judge's finding of premeditation doesn't require notice the prosecution will rely on planning or premeditation as aggravation. Chapman (436)

11. Discovery rules do not give prosecution the right to a psychiatric examination of defendant for death penalty hearing. Lee (443)

12. Allowing deposition of defendant's husband and father of victims upheld under Supreme Court rule 416.

E. JURY

1. Right to Jury
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1. The right to a jury at a capital sentencing hearing in Illinois is "wholly statutory". Ruiz (146); Erickson (90); Nitz (174); Maxwell (195). However, due process gives the defendant a "liberty interest" in having a jury decide his fate, Hicks v. Oklahoma, 447 U.S. 343 (1980), so a reviewing court may not usurp the jury function unless an error is harmless. Shaw (369); Emerson (398)

2. Two capital defendants may have joint jury sentencing hearings. Mahaffey (273).

3. Use of alternate juror at sentencing upheld. Hudson (238).

4. The trial judge did not err by refusing to impanel a different jury for sentencing. Devin (14); Lewis (9); Gacy (42); Free (19); Edgeston (235); Gosier (272).

2. Jury waiver
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1. A defendant's waiver of jury for sentencing must be knowing, intelligent and voluntary. Albanese (45); Madej (52); Nitz (174); Maxwell (195); Strickland (220); Brown (298); Maxwell (316).

2. Trial judge is required to accept a defendant's pre-trial waiver of a jury for sentencing if it is voluntary and knowing. Erickson (90).

3. A waiver of jury for sentencing is not invalid on the ground that the judge did not inform the defendant that the death penalty can not be imposed if a single juror opposes it. Albanese (45); King (66); Morgan (73); Guest (83); Erickson (90); Ashford (103); Ruiz (146); Nitz (174) - However the "preferred procedure" is to provide such admonition. Albanese (45); Ruiz (146); Leger (203); Sutherland (221); Wiley (275); Shatner (318). Nor is counsel ineffective for failing to tell client of unanimity requirement. Madej(334); Ruiz(146) An incorrect admonishment in jury waiver that jury must be unanimous to not impose death was not plain error. Cortes (348), citing Morgan (73).

4. The defendant's jury waiver was knowing and intelligent even though the judge incorrectly admonished him that the judge would determine eligibility for the death penalty and then the jury would decide whether the death penalty is appropriate. Henderson (163).

5. The trial judge was not required to reveal his prior experience as a homicide detective prior to defendant's jury waiver - "A defendant has no right to demand a voir dire examination of the court so that he may decide whether to waive a jury." Tye (168).

6. Defendant may waive jury for eligibility hearing only. Sanchez (299).

7. Waiver of jury for sentencing sufficient although admonishments did not include inquiry as to whether any promises were made. Maxwell (316).

8. Allegations that counsel coerced jury waiver rejected based on jury waiver admonishments and credibility determinations after evidentiary hearing. Todd(344)

9. Jury waiver form prepared by defense counsel indicating that waiver was irrevocable did not prejudice defendant. Todd(344)

10. Record failed to bear out defense contention that jury waiver was in exchange for appointment of counsel. McLaurin(366)

11. Waiver of a sentencing jury may be made before trial or after conviction, and it is error to force defendant to chose whether he will waive a sentencing jury before trial. Brown (298).

12. Jury waiver invalid where defendant misinformed by court and counsel as to whether only alternative to death was life in prison. Dameron (449)

3. Jury selection
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1. The State's right to death qualify the jury does not come into effect where the defendant makes a pre-trial waiver of jury for sentencing. Hett (76). Compare Erickson (90); Shum (91); Kidd (197).

2. Trial judge did not abuse discretion by refusing to voir dire each prospective juror individually and outside the presence of the other prospective jurors. Neal (65); Howard (189).

3. The questioning of prospective jurors about their views of the death penalty (Witherspoon) does not deny a defendant a "fair cross-section" jury nor result in a "conviction-prone" jury, Sanchez (84); Erickson (90); Thompkins (102); Salazar (121); or violate the Illinois Constitution. Emerson (398).

4. "There (was) no 'reverse-Witherspoon rule' that require(d) the trial court to 'life qualify' a jury to exclude all jurors who believe that the death penalty should be imposed in every murder case Brisbon (54); Caballero (36); Ramirez (29); Morgan (172); Jackson (184); until Morgan v. Illinois, 119 L.Ed.2d 492 (1992); Smith (213); Cloutier (237); Johnson (246); Lewis (265). Morgan, however, does not apply retroactively. Caballero (346)

5. The trial judge did not abuse discretion in refusing to ask prospective jurors about any pre-conceived notions they might have regarding the Illinois parole law. Thomas (159).

6. The defendant's contention that the prosecutor improperly used peremptory challenges to exclude potential jurors who expressed reservations about imposing a death penalty was waived. "The defendant did not object to the peremptory challenges during voir dire, nor was the claim presented in a post-trial motion." Lear (173).

7. The trial judge's remark, during voir dire that the jury would "recommend" the death penalty was cured by the judge's subsequent, numerous statements that the jury may be required to determine whether defendant should be sentenced to death. Morgan (172); Jackson (184).

8. The improper removal of a qualified juror in violation of Witherspoon cannot be harmless error. Pitsonbarger (165).

9. Prospective jurors were improperly excluded under Witherspoon. Szabo (18); Seuffer (180)

10. Prospective jurors were properly excluded for cause under Witherspoon. Gaines (10); Kubat (20); Williams (25); Silagy (33); Owens (39); Stewart (44); Mack (48); DelVecchio (51); Collins (53); Emerson (96); Thompkins (102); Gacho (107); Brisbon (134); Pitsonbarger (165); Steidl (171); Morgan (172); Edwards (177); Ganus (192); Tenner (234); Kitchen (243); Williams (248); Rissley (274); Taylor (278); Simms (289); Bounds (296); Cole (307); Brown (308);Hickey(340);Shaw (369); Terrell (376); Emerson (398); Sims (411); Kirchner (437) The standard for removal under Witherspoon is whether a prospective juror's views on capital punishment would prevent or substantially impair the performance of his or her duties as a juror. Armstrong (353) The determination whether to allow a challenge for cause lies within the sound discretion of the trial court. Shaw (369)

11. The State is not barred from seeking the death penalty a second time, after the first death sentence was reversed because a prospective juror was excluded in violation of Witherspoon. Szabo (75).

12. The trial judge did not abuse discretion in refusing to exclude prospective jurors for cause where one said he believed a defendant convicted of murder should be sentenced to death unless he could be persuaded otherwise and another said he did not believe a person could be rehabilitated in the present prison system. Holman (144).

13. The trial judge did not err by refusing to question the jury about a certain newspaper article which appeared prior to the sentencing hearing - such an inquiry is discretionary, there was no showing that any juror read the article, and "bringing the article to the attention of the jury may have done more harm than good." Flores (126).

14. Not error to excuse juror after selection at close of trial evidence when juror expresses scruples against death penalty. Childress (240).

15. Allowing seven peremptory challenges rather than fourteen upheld when defense used less than seven peremptory challenges. Garcia (270). But a capital defendant is entitled to 14 peremptories even if he waives a sentencing jury. Daniels (306); Mulero(332)

16. State may receive more peremptories than does each defendant. Mahaffey (273).

17. So long as court asks the standard reverse - Witherspoon question it is not necessary to ask more specific reverse - Witherspoon questions relating to the facts of a case. Hope (281); Brown (308); Jackson (355); Buss (382).

18. Proposed jury selection questions on the jurors' ability to be non-unanimous were properly denied. Macri (370); Buss (382)

19. Sentencing jurors should have been questioned on racial bias where an African American was convicted of the murder of a white police officer. Hope (371)

20. Sentencing jurors need not be questioned on bias in regard to age of victim, Terrell (376), or bias in regard to victims being mother and two children. Brown (308)

21. Trial Judge's statements to juror's that Witherspoon questions were "silly" were inappropriate, but not prejudicial. Terrell (376)

22. Trial court properly refused questions to jurors on their ability to consider mitigation as an attempt to indoctrinate jury. Buss (382)

23. Where juror failed to reveal relationship with prosecutor during jury selection but wrote a letter to the State's Attorney after the death verdict indicating a relationship between the juror and the prosecutor an evidentiary hearing concerning the relationship of the juror and prosecutor is needed. Kuntu (391)

24. Prosecutor's use of the word "recommend" during jury selection did not mislead jurors as to their role in sentencing in violation of Caldwell v. Mississippi. Simms (421)

25. Prosecutor may use peremptory challenges to excuse jurors based on views about death penalty. Williams (427); Jackson (459)

26. Judge did not abuse discretion in refusing to grant mistrial during jury selection when prosecutor asked potential juror if he knew defendant from his work in jail as a volunteer minister. Nieves (431)

27. Judge's questions which may have suggested jury must be unanimous cured by counsel arguments and jury instructions. Jackson (459)

4. Jury communications
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1. In the absence of a showing of actual prejudice, the defendant was not denied an impartial jury on the ground that the judge failed to admonish the jury, before a weekend recess prior to the sentencing hearing, not to discuss the case and to avoid media accounts of the case. Bean (155).

2. Defendant may not use an affidavit of a juror to show that the jurors, during deliberations, believed that defendant would serve only five to seven years in prison if not sentenced to death - "affidavits or testimony to show the motive, method or process by which the jury reached its verdict is not admissible." Silagy (93); Erickson (90); Towns (232); Brisbon (263).

3. It was "highly improper" for the trial judge to respond to a question from the deliberating jury without notifying the parties about it. Johnson (187).

4. Court's responses to jury note asking about defendant's right to appeal did not reduce sentencing juries sense of responsibility by informing jury that Illinois law mandates appeal to Illinois Supreme Court in a capital case. Fair (242).

5. Slip opinion from extraneous case mistakenly given to deliberating jurors in sentencing cured by instruction to ignore or harmless. Taylor (278).

6. Defendant has no right to argue jury nullification at death penalty hearing. Moore (297).

7. A note from jury during presentation of aggravation and mitigation requesting a chronology of events did not indicate jury misconduct. Cloutier(338)

8. Court did not abuse discretion in answering jury request for clarification of testimony by restating portion of testimony or in not having defendant present during consideration of answer. Brooks (384)

9. A letter from a juror to the State's Attorney indicating a personal relationship between the juror and State's Attorney required a hearing on the nature of the relationship to determine if the right to an impartial jury had been violated. Kuntu (391)

10. Judge's statements as to possible length of death penalty hearing did not improperly indicate Judge's opinion defendant was eligible for death penalty. Emerson (398)

11. Jury question about considering guilty verdict answered with, "continue to deliberate" was proper and waived. Emerson (398)

12. Judge's comment to victim impact witness that he was sorry for her loss did not influence sentencing jury. Sims(411)

13. Absence of defendant when court responded to juror questions during deliberations didn't deny fair hearing. Hickey (453)

F. DOUBLE JEOPARDY
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1. Principle of double jeopardy applies to death penalty hearings - a finding in the trial court or on review that defendant is not eligible for the death penalty operates as an acquittal. Davis (69).

2. Double jeopardy does not preclude a death penalty hearing upon remand after the trial judge erroneously refused to hold a death penalty sentencing hearing. Strayhorn (113).

3. Prosecutor errors at the first sentencing hearing did not bar a second hearing. Davis (69); Ramirez (78); Brisbon (134).

4. Collateral estoppel and double jeopardy do not bar the death penalty when a prior sentencer did not impose the death penalty for a different murder after hearing aggravation which included both murders. Page (227).

5. At sentencing hearing re-litigation of mental state in prior murder does not violate double jeopardy. Edgeston (235).

6. A hung jury on felony murder count at trial does not bar later imposition of death penalty based upon murder in the course of a felony after retrial and conviction. Burrows (191); Daniels (387)

7. Double jeopardy requires the Supreme Court to determine the sufficiency of the evidence of death eligibility when remanding for resentencing. Mulero(332)

8. Use of improper verdict forms at death penalty eligibility hearing was not an acquittal of death penalty eligibility so double jeopardy does not bar new death penalty hearing. Mack (361)

9. Collateral estoppel claim based on the prosecution presenting different facts at eligibility than at trial waived. Terrell (376)

10. Prosecution's failure to tender felony murder instructions and verdicts at first trial did not bar death penalty based on felony murder eligibility after second trial. Daniels (387)

G. APPEAL-WAIVER

1.Appeal
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1. An appeal from a conviction and sentence of death is automatic, without the necessity of any action by defendant - a defendant's wish to have no appeal is of no effect. Allen (4).

2. The death penalty statute provides for adequate appellate review - comparative proportionality review is not required. Brownell (5); Silagy (33); Perez (57); Erickson (90); Emerson (96); Crews (104); Richardson (110); Jones (115); Young (125); Tye (168).

3. Although capital defendant on direct appeal has no right to have pro se brief considered the Supreme Court refused to strike the pro se brief and considered its arguments. McDonald (286).

2. Appellate Waiver
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1. Alleged errors at a capital sentencing hearing are waived for appeal if there is no proper objection made at the hearing. Perez (57); Walker (62); King (66); Guest (83); Evans (119); Mahaffey (130); Kokoraleis (145); Fields (153); Thomas (154); Pitsonbarger (165); Morgan (172); Edwards (177).

2. Alleged errors at a capital sentencing hearing are also waived for appeal unless they are raised in a written post-sentencing motion. Szabo (77); Johnson (80); Mahaffey (130); Fields (153); Thomas (159); Edwards (177); Johnson (187).

3. Thus, both an objection and a written post-sentencing motion are required to avoid the waiver rule. If no post-trial motion is filed "our review will be limited to constitutional issues which have properly been raised at trial [sentencing hearing] and which can be raised later in a post-conviction hearing petition, sufficiency of the evidence, and plain error." Enoch (105); Enoch (188); Williams (248).

4. Defendant waived an instruction issue (i.e. the jury was instructed at the first phase that they had to reach a unanimous agreement that defendant was not eligible for the death penalty) since it was not raised until the appeal from denial of his post-conviction petition - "a defendant may not seek review of procedurally defaulted claims raised in a post-conviction petition under the plain error rule" and the instruction did not deny defendant fundamental fairness. Owens (133). Compare Simms (176) - erroneous instruction on murder during the course of another felony (which included residential burglary) was plain error. Kokoraleis (245).

5. Defendant waived his claim that he was not properly found eligible for the death penalty because the State failed to prove that he intended to kill or knew that his acts created a strong probability of death or great bodily harm. This claim was not in his written post-sentencing motion. In Enoch (105), the court held that "where no post-[sentencing] motion has been filed", the court will review the sufficiency of the evidence. In this case a written post-sentencing motion was filed but the above claim was not included in it. Edwards (177).

6. Various issues have been held to be waived and/or harmless:

(a) Evidence of other crimes or misconduct at the first phase Perez(157); Walker (62); Kokoraleis (145).

(b) Evidence of defendant's lack of remorse at the first phase. Walker (62).

(c) Testimony concerning the victims family at the first phase. Mack (48).

(d) Testimony concerning the victim's family at the second phase. Free (19); Free (70);

Davis (21); Mack (48); Lucas (151); Fields (153); Jackson (184).

(e) Testimony concerning the personal traits of the victims. Walker (62); King (66).

(f) Prosecutor closing arguments. Walker (62); Morgan (73); Collins (53); Mack (48); Gacy (42); Hayes (162); Morgan (172).

(g) Judge's denial of jury request for additional information. Howard (189).

7. Batson claim considered on appeal although not included in post-trial motion under waiver exceptions of Enoch (105). Mitchell (212).

8. Plain error applied to possible error in admission of confession under Fifth Amendment, but lost on merits. Smith (213).

9. Although objection was not as specific as it could have been appeal considers merits. Shatner (318); Although issues were waived the Court considers merits as well. Cortes (348) Waiver question not decided because the Court chose to address the merits. Shaw (369)

10. While burglary may have been complete before murder, sentencing consideration of burglary was waived and not plain error. Thomas(339)

11. Failure to make an offer of proof waives error on restriction of psychiatric mitigation testimony. Armstrong (353)

12. Although direct appeal record indicates that defendant waived a claim of ineffective assistance of counsel at sentencing in his post-conviction petition by not wanting mitigation to be presented, the Federal Court's criticism of a similar waiver holding, Emerson v. Gramley, 91 F.3d 898 (7^th Cir, 1996), precluded application of waiver. Coleman (368)

13. The waiver rule is less rigid where the basis of the omitted objection is the Judge's conduct. Davis (377); Emerson (398): Woolley (461)

14. Because the State failed to argue waiver, and because the Court may review errors affecting substantial rights the Court found it appropriate to review merits. Kuntu (391) Two examples of plain error in prosecution sentencing argument to jury. Kuntu (448)

3. Death Penalty Excessive
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1. The defendant's death sentence was not excessive and the fact that the sentencing jury in the co-defendant's case "chose not to impose the death penalty ... does not, in our view, render the defendant's own sentence disproportionate." Jimerson (124); Kitchen (243).

2. Death sentence vacated on appeal as excessive given background of defendant and nature of crime. Carlson (6); Buggs (74); Johnson (128); Leger (203); Blackwell (309); Smith(333). Contra: Gosier (181); Williams (254); Cole (307); Taylor (278); Bounds (296); Hooper (300); Shatner (318); Madej(334); Thomas(339); Armstrong (353);Terrell (376); Heard (383); Emerson (398); Simms (421); Chapman (436); Jackson (459)

3. Failure of the Department of Corrections to provide more psychiatric care than it did provide to defendant is not a basis for overturning death sentence. Buss (382)

4. "In this case, we also choose to consider defendant's comparison of his sentence to sentences received by defendant's in other capital cases." Holding such a comparison fails to show sentence is excessive. Emerson (398)

H. SENTENCING HEARINGS GENERALLY
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1. Presentence reports are not required. Gaines (10); Gacy (42); Stewart (44); Madej (52); Britz (117).

2. It is "preferable" to conduct a bifurcated sentencing hearing, but it is not required and the failure to do so is normally not prejudicial. Albanese (45); DelVecchio (51); Lego (87); Thompkins (102); Haynes (321).

3. Holding a joint sentencing hearing for two defendants was not error - there was not considerably more aggravating evidence against one of them, each counsel presented mitigation as to his own client, and the jury was instructed to give separate consideration to each defendant. Fields (153). See also Mahaffey (130) (joint sentencing hearing was not plain error).

4. The jury at sentencing may properly consider the evidence introduced at trial in its deliberations upon the death penalty. Gacy (42); Lewis (9); Ramirez (29).

5. Where there is a jury trial and a judge sentencing, the judge, at sentencing, may properly take judicial notice of the testimony, exhibits, and jury verdicts from the trial. Nitz (174).

6. Results of a polygraph examination are not admissible. Szabo (18).

7. It is error for the jury to be aware of the fact that the defendant had been previously sentenced to death. Davis (23); Hope (68); Brisbon (134); Woolley (461).

8. A high standard of procedural accuracy is required in determining whether or not the death penalty will be imposed. Walker (12); Hope (68).

9. The possibility that even one member of the jury may have sentenced the defendant to death on the basis of an irrelevant, highly prejudicial and non-statutory aggravating factor constitutes reversible error. Hope (68).

10. Defendant's presence at death penalty hearing may be voluntarily waived and section 115-4.1(a) does not require defendant's presence. Nielsen (386); Chapman (436)

11. Defendant entitled to new sentencing hearing on remand before death sentence could be imposed. Alvine (422)

I. FIRST PHASE-STATUTORY AGGRAVATING FACTORS

1. Generally
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1. At the first phase, the sentencer determines whether a defendant is eligible for the death penalty. "A defendant who has been found guilty of murder is eligible if: (1) he has attained the age of 18, Ramsey (460); and the [sentencer] has found the existence of at least one [statutory] aggravating factor. Coleman (136).

2. The State is required to prove the existence of a statutory aggravating factor beyond a reasonable doubt. Brownell (5); Morgan (73); Morgan (172); Simms (176).

3. At the first phase, the admissibility of evidence is governed by the rules of evidence applicable at criminal trials. Davis (23); Strayhorn (113), Emerson (398). The admission of evidence at eligibility stage will not be disturbed absent an abuse of discretion. Terrell (376)

4. At the first phase only evidence "having a direct bearing on the statutory prerequisites may be admitted...while unnecessary and inflammatory evidence that could improperly influence the jury must be excluded." Simms (176); Brisbon (54); Morgan (172); Edgeston (235); McDonald (286).

5. Defendant was properly prohibited, at a bench sentencing hearing, from calling jurors from the guilt stage in an attempt to show that the jury found defendant guilty on the basis of accountability. Erickson (90).

6. The State's introduction of a "life photo" of the victim, at the first phase, was improper -it was not relevant. Rogers (116); Pitsonbarger (165).

7. Photos which showed the victim's wounds and the bloodstains throughout the victim's apartment were properly admissible at the first phase because they were relevant to the defendants intent--the jury had to determine whether the defendant committed the murder during the course of another felony and whether defendant acted with the mental state (intent to kill or knowledge that the acts would probably cause death) required under the statute. Simms (176). Crime scene and morgue photos properly admitted at eligibility stage. Armstrong (353); Emerson (398)

8. Photos of the victims of prior murders committed by defendant were improperly introduced at the first phase-they were not relevant. Brisbon (54); Davis (23).

9. It is improper to introduce evidence showing that the defendant had been previously convicted of other crimes at the first phase, except a murder which is a statutory eligibility factor. Kokoraleis (145).

10. Evidence showing that the defendant sexually assaulted the victim was irrelevant at the first phase since eligibility was not based on a sexual assault. Pitsonbarger (165).

11. It is improper to introduce evidence that the victim left a widow, fiancé, family, or that the widow was pregnant. Davis (23); Ramirez (29); Guest (83); Pitsonbarger (165); Fuller (462).

12. Defense evidence offered to show that a third party committed the murder is not admissible at the first phase because it does not go to the question of whether any aggravating factors existed. Morgan (172).

13. A police officer testified that he questioned the defendant, the defendant gave an exculpatory story, the officer then informed defendant that defendant's brother had told the police defendant had admitted stabbing the victim, and then the defendant admitted the stabbing. The judge admonished the jury that the testimony regarding the brother's statement was admitted only to show what caused the officer to continue questioning defendant and not for the truth of the matter asserted. The Supreme Court held that testimony about the brother's statement was not hearsay since it was not offered for the truth of what the brother said and the testimony was relevant to explain why the officer continued to question the defendant after he had offered an exculpatory story. Simms (176).

14. An instruction informing the jury that the only alternative to the death sentence is a sentence of natural life is not to be given at the first phase. Lear (178).

15. Where at least one statutory aggravating factor was properly found, any error regarding another aggravating factor is unimportant because the outcome of the first phase (i.e., a finding of eligibility) would not have been different. Coleman (136) (distinguishing Brownell (5) and Adams (60)); Pitsonbarger (165); Nitz (174); Hampton (201); Pasch (209); Todd (222); Page (229);Brown (298);Cole (307);Williams (349); Jackson (355); Macri (370); sentencing jury may consider evidence of defendant's actions even if the statutory aggravating factor is invalid, Chapman (436); Caffey (456); Moss (457)

16. Defendant has right to confront and cross-examine as to possible motive to fabricate by prosecution witness at eligibility hearing. Ramey (206).

17. Residual doubt evidence is inadmissible at eligibility hearing. McDonald (286).

18. A "summary" finding of eligibility without a hearing is valid when there is no objection and evidence overwhelming. Haynes (321).

19. Inadmissible hearsay on one statutory aggravating factor did not require reversal when a second basis for death eligibility remained. Cloutier(338)

20. Jury at eligibility stage was not instructed as to necessary mental state but trial verdict satisfied required finding of mental state. Shaw (369)

21. Although eligibility evidence "might have been hearsay," the error was waived and harmless. Evidence that defendant lied to the police was relevant to the mental state necessary to establish eligibility. A doctor's out of court statements to the police as to the cause of injuries to the victim was relevant to establish that injuries were brutal and heinous. Any error in admitting the indictments and conviction statements was harmless. Autopsy photos were relevant to establish extent of injuries. Terrell (376)

2. Murder Conviction - §9-1(b)
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1. A defendant convicted of murder on the basis of accountability may receive the death penalty. Ruiz (15); Davis (21); Garcia (24); Caballero (37); Perez (57); Erickson (90).

2. A defendant may not receive the death penalty where he did not commit the killings and had no intention of committing or causing. Tiller (17); Jones (16); Ruiz (15).

3. A defendant may receive the death penalty even though he did not intend to kill - it is sufficient that he killed with the knowledge that his acts created a strong probability of death or great bodily harm. Owens (38); King (66); Gacho (107).

4. A defendant may receive the death penalty where he is found guilty but mentally ill. Crews (104); Scott (199).

3. Murder in Correctional Facility - §9-1(b)(2)
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1. A defendant is eligible for the death penalty for the murder of a county jail inmate. Devin (14).

4. Multiple Murders - §9-1(b)(3)
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1. A defendant is eligible for the death penalty if (1) he has been found guilty of 2 or more murders in the case for which he is being sentenced or (2) has been found guilty of one murder in the case for which he is being sentenced and has at least one other murder conviction. Franklin (152).

2. A defendant is eligible for the death penalty even though the killing upon which the prior murder conviction was based occurred after the killing in the case for which he is being sentenced. Guest (83); Strayhorn (113); Albanese (45); Johnson (356); Nieves (413).

3. A defendant is eligible for the death penalty even though the prior murder was committed before the effective date of the death penalty statute. Franklin (152); DelVecchio (137); Sims (283).

4. A murder conviction from another State may be used under §9-1(b)(3) if the murder statute in that state is "substantially similar" to the Illinois statute - such statutes in California and Rhode Island are substantially similar. Guest (83); Strayhorn (113).

5. The fact that the state in which the prior murder conviction was obtained does not have a death penalty is irrelevant. Strayhorn (113).

6. The mental state for the prior murder under §9-1(b)(3) is not limited to intent or knowledge, but "under certain circumstances less culpable mental states, such as reckless indifference [as in this case], may suffice. Jimerson (124); Edgeston (235).

7. A defendant is eligible for the death penalty under §9-1(b)(3) if each murder was knowing or intentional (Davis (21)) or premeditated. DelVecchio (137); Owens (38).

8. A defendant is eligible for the death penalty under §9-1(b)(3) if his prior conviction was under either §9-1(a)(1) or §9-1(a)(2). Franklin (152).

9. A defendant is not eligible for the death penalty based upon the killing of a woman and her unborn fetus-taking the life of the unborn fetus does not constitute murder. Greer (3).

10. A prior murder conviction obtained when the defendant was under 18 years of age may be properly used under §9-1(b)(3). Lear (173); Sims (283).

11. Reckless indifference to human life is insufficient mental state to establish death eligibility for multiple murder prior to People v. Jimerson (124). Ramey (206); Edgeston (235).

12. Reversal of second murder conviction used to make defendant eligible for death penalty does not invalidate eligibility if remand of reversed conviction results in reconviction. Hope (281).

13. Evidence from bench trial together with evidence jury heard on eligibility sufficient to prove eligibility. McDonald (286).

14. Proof of prior multiple murder "convictions" must include a "judgment" on the convictions, however, even though the eligibility jury didn't hear such evidence the reviewing court found it elsewhere in the record. Jackson (355)

15. In a bench sentencing the evidence was sufficient to prove intent or knowledge since the jury trial general verdicts together with the evidence the judge heard along with the jury at trial supported the mental states. Bull (372)

16. The evidence was insufficient to prove the required mental states of knowledge or intent when the evidence presented at eligibility showed only that defendant had pled guilty to a prior murder without indicating a finding as to a mental state. West (390)

17. Prosecution failed to prove a New York first degree manslaughter conviction was sufficiently similar to the Illinois murder statute when it failed to offer evidence as to which of four provisions of the New York statute defendant had been convicted under to establish eligibility based on a prior murder conviction. Nieves (431)

18. The trial jury general verdict raises a presumption the murder conviction was based on intent when intent was charged, so the mental state for eligibility was proven. Casillas (432)

19. Sentencing jury need not be instructed on definition o f intent. Chapman (436)

5. Contract Murders - §9-1(b)(5)
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1. The defendant's confession that he was paid to kill the victim was sufficiently corroborated by the elaborate steps taken to commit the crime to prove that this was a contract murder. Morgan (172).

6. Murder in the Course of Another Felony-§9-1(b)(6)
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1. For a defendant to be eligible for the death penalty based upon a murder in the course of another felony, the victim must actually be killed by the defendant. Ruiz (15) (the statute was amended after Ruiz to require either that the victim was actually killed by the defendant or that the defendant inflicted contemporaneous injuries with the ones which caused death); Lear (173); Emerson (398) (evidence was sufficient to prove that the defendant actually killed the victim); Wiley (458) (evidence sufficient to prove defendant actually killed despite defendant's confession to contrary).

2. A defendant is eligible for the death penalty for committing a murder during the course of an attempt armed robbery - the statute does not require that the offense attempted be completed or that the defendant be charged with or convicted of any offense other than murder. Walker (12); Ramirez (29).

3. Where defendant was convicted of murder and armed robbery, and was found eligible for the death penalty under §9-1(b)(6), the Supreme Court vacated the death penalty after finding that the evidence was insufficient to support the conviction of armed robbery. Taylor (35)

4. A defendant who commits a murder during the course of a residential burglary is not eligible for the death penalty because residential burglary is not listed among the felonies in §9-1(b)(6). Chandler (135); but see Wright (202) and Hampton (201).

5. It was reversible error to instruct the jury that defendant was eligible for the death penalty if the murder was committed during "one of the following: aggravated criminal sexual assault, home invasion, armed robbery, residential burglary." The jury returned a general verdict, without specifying which underlying felony or felonies it relied upon to establish defendant's eligibility. Simms (176). Compare Jackson (184) (similar instruction was harmless error). Note: Residential burglary added to §9-1(b)(6), effective 7/1/90.

6. A defendant is eligible for the death penalty under §9-1(b)(6) even though the killing was not intentional - it is sufficient for the defendant to kill with the knowledge that the acts created a strong probability of death or great bodily harm. Owens (38); King (66).

7. The language "in the course of" does not require that the other felony (armed robbery in this case) be commenced prior to the fatal gun shots. In this case, the victim was shot and killed instantly and then his property was taken. "The offenses occurred essentially simultaneously and the evidence was sufficient to prove that the murder was in the course of an armed robbery." Flores (126); Nitz (174); Hampton (201); Hickey(340). The fact that the armed robbery may not have been completed until after the death of the victim is of no legal significance. Armstrong (353)

8. A defendant is eligible for the death penalty "if he commits murder and one of the specifically enumerated felonies either simultaneously or as part of the same criminal episode." In this case, defendant was eligible for committing a murder in the course of an aggravated arson even though the victim may have been dead before the fire was started since both crimes occurred "essentially simultaneously." Thomas (150); Nitz (174) (robbery victim may have been shot and killed before property was taken); Richardson (110) (armed robbery occurred before fatal shooting); Todd (222); Johnson (223).

9. The evidence was sufficient to prove murder during the course of another felony. Foster (97) (aggravated criminal sexual assault); Richardson (110) (armed robbery); Brownell (5) (aggravated kidnaping and rape); Gaines (10) (armed robbery); Pitsonbarger (165) (burglary).

10. The Court rejected the defendant's claim that eligibility based upon a murder during an aggravated kidnaping constituted an improper double enhancement - "the record would support a finding of aggravated kidnaping without utilization of those acts which caused death." Phillips (127). See also, Kokoraleis (145) (aggravated kidnaping); Terrell (148) (aggravated criminal sexual assault); Kubat (20) (aggravated kidnaping); Kuntu (448) (aggravated arson).

11. The Court declined to determine whether a defendant may argue residual doubt regarding the underlying felony since defendant was not allowed to do so in this case. Howard (189).

12. The required mental state under 9-1(6)(b) of intent or knowledge may be satisfied with a general verdict based on a indictment which includes the mental state. Johnson (200); Shatner (318).

13. To be eligible under 9-1(b)(6), the State need not prove that intent to commit the aggravating felony was formed before committing the murder. Ward (217).

14. An essential element under 9-1(b)(6) is a culpable mental state (intentional or knowing). Pugh (231). The mental states must be included in the verdict form. Mack (285); Jackson (355), Williams(412); Caffey (456). If a general verdict on eligibility is not used the verdict form should include the felony which was committed at the time of the murder. Jackson (355).

15. Erroneous burglary conviction did not require vacating death penalty eligibility when defendant was also eligible under 9-1(b)(6) based on home invasion and attempt aggravated criminal sexual assault. Childress (240).

16. Omission of mental state from jury instructions on 9-1(b)(6) harmless since same jury had been instructed on same mental states at trial. Childress (240).

17. Required mental state properly proven with gory photographs of victim. Rissley (274).

18. Eligibility for death penalty was not established based on murder during home invasion since entering one's own apartment is not home invasion even though a court protective order had given possession of the apartment to defendant's girlfriend. Reid (347).

19. Although the eligibility hearing did not specify which statutory aggravating factor had been found the evidence referring to verdicts for murder and attempt armed robbery showed that 9-1(b)(6) was found. Harris (357)

7. Murder of Child - §9-1(b)(7)
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1. The aggravating factor in §9-1(b)(7) - the victim under 12 years of age and "the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty," is not unconstitutionally vague or over broad. Odle (122); Kidd (140); Terrell (148); Tye (168); Jackson (184); Johnson (223); Fair (242); Oaks (304); Brown (308); Kidd (322); Jackson (355); Buss (382).

2. The evidence was insufficient to prove that defendant's conduct was exceptionally brutal or heinous - "brutal" is grossly ruthless, devoid of mercy or compassion, cruel and cold-blooded; "heinous" is hatefully or shockingly evil, grossly bad, and enormously and flagrantly criminal; behavior has been found to be brutal and heinous where it involved "prolonged pain, torture, or premeditation." Lucas (151); contra Johnson (223); Fair (242); Oaks (304).

3. Deliberate starving of child sufficient to establish death penalty eligibility. Banks (249).

4. No need to instruct jury on definitions in Lucas (151); Brown (308)

5. An argument that death penalty eligibility cannot be based on the actions of a co-defendant by accountability was left unresolved because of the existence of other statutory aggravating factors. Jackson (355)

6. Autopsy photos were relevant to establish crime was brutal and heinous. Terrell (376)

8. Murder of Witness - §9-1(b)(8)
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1. The defendant was properly found to have murdered a witness where he set the victim free and told her not to call the police, but when she went to a house for help, he took her off and murdered her. Williams (25); see also Munson (302).

2. The aggravating factor in §9-1(b)(8) is not proved by a murder itself on the theory that the victim would have been a witness to that offense. Brownell (5); Adams (60).

3. Eligibility established for murder of sexual assault complainant. Enis (256). See also Munson (302).

9. Cold, Calculated, Premeditated - §9-1(b)(11)
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1. Gang members renting a car and arming themselves for drive-by shooting fleeing in a previously arranged getaway car was sufficient evidence of premeditation. Brown (298).

2. Cold, calculated, premeditated is not unconstitutionally vague. Johnson (223); Brown (298); Munson (302); Haynes (321); Mulero(322); Woolley(342); McLaurin (366); Macri (370). "Heightened premeditation" is not required. Macri (370);Williams(412)

3. Prior statements by defendant that he intended to kill victim established planning and premeditation. Macri (370)

4. Insufficient evidence of extended time period of premeditation or deliberation for murder, one minute. Williams(412)

10. Torture Murder - §9-1(b) (14)
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1. A finding of eligibility based on this statutory aggravating factor when it had not been enacted at the time of the offense did not affect the eligibility finding where valid factors were also found. McLaurin (366)

J. SECOND PHASE

1. Generally
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1. Normal rules of evidence don't apply - evidence is admissible if it is relevant and reliable. Free (19); Stewart (46); Collins (53); Brisbon (54); Hall (79); Foster (97); Evans (119); Barrow (142); Pitsonbarger (165); Howard (189); Mulero(332)

2. Evidence is admissible on the grounds of relevancy and reliability and "these prerequisites must be met to the satisfaction of the trial judge's sound discretion." Salazar (121); Young (125).

3. "This determination of relevance and reliability is properly made by the trial court and this court will not disturb the trial court's judgment unless it demonstrates an abuse of discretion" Thomas (159).

4. "Evidentiary rules are relaxed at this stage because it is vital that the sentencing authority have before it the fullest information possible regarding the defendant's life, character, criminal record, and the circumstances of the particular offense." Johnson (128); Brisbon (134).

5. The statute provides sufficient guidance as to the admissibility of evidence at the second phase. Jones (16); Brownell (5).

6. "[E]vidence is not proper at the sentencing hearing if it does not bear on the aggravating or mitigating factors, the circumstances of the offense or the character or rehabilitative potential of the particular defendant." Barrow (142)

7. Mitigation evidence is not limited to the mitigating factors listed in §9-1(c)-any mitigating factors in the record of the guilt stage and any which the defendant offers at the sentencing hearing must be considered. Lewis (9); Carlson (6).

8. Sentencer may properly consider non-statutory aggravating factors at the second phase. Albanese (37); Owens (38); Kubat (20); Free (19); Hayes (162).

9. Sentencer may properly consider the statutory aggravating factors at the second phase. Bean (155).

10 Preferred testimony about a "typical execution" is not relevant and is properly excluded. Williams (25).

11. Aggravation about conditions at medium security prison where defendant had served time was relevant. Childress (240).

12. Mitigation witness testimony on cross-examination that she believed in death penalty was irrelevant but harmless. Fair (242).

13. Evidence that the death penalty is not a deterrent to crime is inadmissible. Coleman (288); but Court may consider deterrence Munson (302).

14. Polygraph results are insufficiently reliable to be admissible at death penalty hearing Sanchez (299).

15. At the second stage of the death penalty hearing, aggravation is not limited to statutory aggravating factors, so Illinois is a "non-weighing State." Shaw (369)

16. The possibility of committing future crimes is irrelevant. Edgeston (235); Kliner (374)

17. Mercy is a mitigating factor. Buss (382); Caffey (456) Judge's statement about mercy didn't influence jury. Hall (438)

18. Neither an affidavit indicating defendant had saved the life of affiant's child, without details, or letters from persons who had never met defendant, but had corresponded with him by mail as to his religious beliefs, were sufficiently reliable to be admitted in mitigation. Hall (438)

19. No abuse of discretion to deny continuance to prepare for death penalty hearing where additional mitigation testimony likely would have been cumulative. Chapman (436)

20. Possible use of hypnotically enhanced testimony in aggravation doesn't show constitutional violation. Jackson (459)

21. No abuse of discretion in allowing aggravation testimony from prostitutes. Davis (463)

2. Circumstances of the Crime
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1. Evidence regarding the circumstances of the crime is relevant. Tye (168); Gosier (191); Howard (189).

2. Evidence showing the circumstances of the victim's death and the manner in which the crime was committed is proper. Pitsonbarger (165).

3. A "life photo" of the victim and a photo of the victim after death were properly introduced because they showed the condition of the victim before and after the incident and, thus, the extent of the beating. Williams (15); Mitchell (212).

4. Evidence that the victim had pleaded for her life and tried to convince defendant not to hurt her was properly admissible. Kubat (20).

5. Probative value of gory photos outweighed prejudice. Buss (382)

6. "Compulsion" is a mitigating factor. (Gleckler (7).

3. Character and Background of the Defendant
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1. Evidence regarding a defendant's character is relevant and admissible. Salazar (121); Stewart (44); Howard (189); Mulero(332)

2. A defendant is entitled to present evidence in mitigation that is relevant to his character and the "only qualification to this entitlement is that the evidence must be reliable." Edwards (177).

3. A defendant's educational and family background, social environment, age, mentality, and general moral character are proper factors to be considered. Stewart (44); Wright (63); Montgomery (71); Buggs (74).

4. A defendant's remorse, or lack thereof, is a proper consideration for the sentencer. Albanese (37); Wright (63); Montgomery (71); Barrow (142); Mulero(332)

5. Evidence of defendant's intoxication may be introduced in mitigation. Holman (43); Gleckler (17); Pitsonbarger (165); drug use may be mitigating. Fair (242), but drug use is not inherently mitigating. Shatner (318); Coleman (368)

6. Evidence concerning a defendant's lack of religious beliefs is not admissible. Eddmonds (32). Compare Holman (144) (Exclusion of witness' testimony about defendant's present religious practices, if erroneous, was harmless error because it would have been cumulative to stipulated testimony that defendant attends religious services). Shatner (318) religious practices relevant.

7. Favorable evidence of a defendant's conduct while incarcerated is relevant and admissible. Jones (115); Johnson (187).

8. It was not an abuse of discretion to preclude the defense from eliciting a jail guard's opinion regarding defendant's future ability to function in prison. "While we might decide the question differently given the relatively low standards governing admissibility at this [second] stage, we cannot say that the trial judge abused his discretion." Johnson (187).

9. Prison disciplinary records are admissible to show defendant's character. Williams (248); Armstrong (353); Jackson (355); Jail rule violations are relevant to character. Nielsen (386)

10. Physical display of defendant's children was not relevant to defendant's character. Mulero(332)

11. Drug and alcohol abuse may be aggravating as well as mitigating. Shatner(318); Madej(334); Coleman (368)

12. Mental or psychological impairments are not inherently mitigating. Madej(334); Tenner(325); Coleman (368); Childress (400); Enis (435)

13. Defendant's sister's testimony regarding the death penalty's effect on the defendant's family, and testimony of defendant's mother regarding her other children's problems at school and with the law were properly excluded as tangential to defendant's character. Armstrong (353)

14. The sentencing Judge's refusal to consider good prison behavior in mitigation required a new death penalty hearing. Davis (377); Judge's statement that having only traffic convictions was not a mitigating factor didn't show refusal to consider lack of significant criminal history where testimony showed other crimes without convictions. Davis (463)

15. A defendant's "alcoholism" is a mitigating factor. Pitsonbarger (165); Gleckler (7).

16. Limitations on testimony of psychiatric social worker about the mental problems of defendant's mother and grandmother, and a diagnosis of defendant wasn't an abuse of discretion. Caffey (456)

4. Opinion
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1. It is improper for the victim's son to testify that he believed the defendant would kill again if given the opportunity. Such unsupported prediction diverts attention from the character of the defendant and the circumstances of the crime and "conveys the misleading message that the death penalty is the only way to protect society from the defendant." Hayes (162).

2. Proper to exclude proffered testimony by priests and ministers as to their church's position on the death penalty. Yates (30); Stewart (46).

3. A prison record keeper may give his opinion that he had never seen a worse prison disciplinary record. Armstrong (353)

4. Opinions of mitigation witnesses, including correctional officers, that defendant should not have been sentenced to death are inadmissible. Szabo (375); Williams (406)

5. A mitigation witness' opinion defendant should not be sentenced to death is inadmissible. Howard (189); assuming, without deciding, that a witness' feeling that she does not want her son executed is admissible its exclusion was held harmless, McCallister (415)

5. Residual Doubt
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1. A defendant is not entitled to demand that the jury consider residual doubts over guilt at the sentencing stage. Fields (153), distinguishing Holman (43) (evidence that someone other than defendant committed the murder may be introduced in mitigation). See also, Johnson (98); Jones (115); Morgan (172); Edgeston (235); McDonald (286); Hooper (300); Emerson (398)

2. In rejecting the contention that defense counsel made an "insubstantial" closing argument at sentencing, the Court stated that "defense counsel...chose to rely, quite reasonably, upon a strategy focusing the trial court's attention on a single, non-statutory mitigating factor, residual doubt." Williams (186)

3. The Court noted "authority suggesting that a defendant in a capital sentencing proceeding has no right...to argue to the trier of fact that residual, or lingering, doubts concerning guilt for the underlying offense may be considered in determining whether the defendant may or should be sentenced to death", but did "not determine" whether a defendant enjoys such a right. Howard (189).

4. In bench sentencing court need not retry the case. Jones (230).

5. There is no right, constitutional or statutory, to have residual doubt evidence considered as mitigation. McDonald (286). The court properly sustained prosecution objections to defense residual doubt arguments. Kliner (374); Terrell (376)

6. Defense may not argue residual doubt at sentencing even when prosecutor argued strength of evidence of guilt. Kirchner (437)

6. Evidence of Other Crimes or Misconduct
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1. Evidence of the defendant's commission of other crimes is relevant and admissible. Brisbon (54); Richardson (110).

2. State may properly introduce evidence of a crime to which the defendant pleaded guilty, received supervision, and successfully completed the supervision. Johnson (128).

3. Defendant's juvenile record is admissible. Stewart (34); Owens (39); Orange (108).

4. Evidence of crimes for which charges are pending against defendant or for which no conviction was sought or obtained is admissible. Ramirez (29); Stewart (34); Collins (53); Sanchez (84); Lego (87); Richardson (110); Evans (119); Salazar (121); Young (125); Johnson (128); Thomas (159); Pitsonbarger (165); Morgan (172); Lear (173); Simms (176); Jackson (184); Easley (198); Williams (254); Hope (281); Davis (463).

(1) Sentencing judge erred in finding that defendant committed a prior murder where the charge was nolled and the defendant as not allowed to introduce the prosecutor's reasons for the nolle (i.e. defendant didn't commit it, but a third party did). Also, the witnesses who testified about defendant involvement in the prior murder were "severely impeached" by prior inconsistent testimony, a motive to testify falsely (i.e. member of rival street gang), and the contradictory ballistics evidence. Harris (138).

(2) The decision in Harris (138) "does not stand for the proposition that evidence underlying a charge subsequently dropped can never be used at sentencing. The basis for the decision in Harris was substantial evidence that defendant had not committed the crime, evidence which convinced the prosecutor that the charges should be dropped." In this case evidence which implicated defendant in a prior crime was admissible even though the charge was dropped because the victim chose not to proceed. Jackson (184); Jackson (355).

(3) Evidence of another crime allegedly committed by defendant was proper even though the charges were dropped because the victims couldn't identify the defendant as the perpetrator. The evidence was that the perpetrator was wearing a long black coat and took jewelry; two persons saw the defendant in the area wearing a long black coat; defendant was arrested two days later while wearing some of the stolen jewelry; and defendant claimed he purchased the jewelry from someone on the street. The Court noted that the jury was informed the charges were dismissed. Howard (189).

(4) Evidence in aggravation of armed robbery, which charge was dismissed on finding of no probable cause, was not plain error because the evidence was not closely balanced, and was reliable because the victim was cross-examined at sentencing. Cortes (348)

5. Evidence of defendant's misconduct subsequent to the murder on trial is admissible. Owens (38); Stewart (46).

6. State is not required to prove defendant's guilt of other crimes beyond a reasonable doubt. Erickson (90); Johnson (80).

7. Testimony of a woman who claimed to have been previously raped by defendant was reliable even though the trial judge acknowledged that her testimony might not have been sufficient to prove defendant guilty beyond a reasonable doubt. Erickson (90).

8. Defendant's convictions which were 22 years old were properly admissible. Christiansen (86).

9. Evidence regarding the details of prior crimes is admissible. Owens (38); Stewart (46).

10. Certified copy of conviction bearing the same name as defendant gives rise to a rebuttable presumption that defendant is the same person. Davis (21).

11. Testimony regarding other crimes is reliable when it comes from persons who had witnessed the other crimes. Ramirez (29); Collins (53); Richardson (110); Simms (176).

12. Police officers' testimony regarding other crimes is reliable when it is based on statements made to the officers by witnesses to the other crimes. Morgan (73); Foster (97); Richardson (110); Jackson (184).

13. Police officer's testimony about another crime was reliable where it was corroborated by defendant's conviction and by the testimony of eyewitnesses. Foster (97).

14. Hearsay testimony of police officers concerning the defendant's street gang affiliation was properly admitted. The testimony was reliable because it was corroborated and it was relevant because it revealed information about defendant's character and social environment. Salazar (121); Patterson (210); In contrast see Ward (217) holding gang membership improper but harmless under Dawson v. Delaware, 503 U.S. ___ (1992); See also Coleman (241) holding gang membership relevant to prison disciplinary record. Gang evidence relevant and reliable. Wilson (260). Prison gang activity relevant to disciplinary record and harmless. Hope (281); Sims (283); Simms (289); Brown (308).

15. Testimony by former State's Attorney regarding another crime was reliable where it was based on statements of police who had interviewed witnesses and defendant had pleaded guilty to the crime. Lyles (55).

16. A prison guards's testimony that he saw the defendant stab another inmate was properly admitted even though the inmate testified that he was not stabbed and no medial records were introduced. Brisbon (134).

17. State was properly allowed to introduce evidence of defendants prior "window-peeping" and "public indecency" offenses, even though he was not prosecuted for them. Pitsonbarger (165).

18. Police officers testimony that defendant was seen about two blocks away from a robbery, defendant fled, and was arrested was not sufficient to connect the defendant with the crime. Adams (60).

19. Testimony that the defendant was seen with a box containing "white powder" was unreliable and inadmissible. Barrow (142).

20. Evidence of defendant's prison record is admissible aggravation. Ward (217).

21. Aggravation testimony about break-ins at company where defendant worked, but which were not otherwise connected to defendant, were not reliable. However, the Judge is presumed to not have considered the unreliable testimony. Cortes (348)

22. An armed robbery conviction invalidated by an instruction error requires a new death penalty hearing when the prosecution's argument used the invalid conviction to negate the mitigation that defendant had no significant criminal history. Shaw (369)

7. Victim Impact
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1. Before the decision in Howard (189), the Court had held that evidence or argument concerning the impact of the crime on the victim's family was not admissible. Simms (101); Terrell (148); Harris (149); Hope (157); Free (106); Spreitzer (111); Hayes (162); Davis (21).

2. However, in Howard (189), the Court re-examined the law in this area in light of Payne v. Tennessee, 111 S.Ct. 2597, 115 L.Ed.2d 720 (119) overruling Booth v. Maryland, 107 S.Ct. 2929, 96 L.Ed.2d 440 (1987), agreed with the Payne decision, and held that victim impact is admissible because the specific harm caused by the defendant is relevant to the defendant's moral culpability and blame worthiness. Thus, "such evidence is relevant to a consideration of the appropriation punishment for a capital defendant." Howard (189); Hope (194); Johnson (200).

3. Evidence or argument concerning the personal traits or accomplishments of the victim or members of the victim's family is not proper. Walker (62); Holman (43); Simms (98); Spreitzer (111); Barrow (142); Holman (144); Gacy (42).

4.. "Although the testimony of witnesses in aggravation or mitigation concerning the nature and circumstances of the offense and the offender is relevant to [the sentencing] determination, their own opinions regarding what sentence should be imposed are not." Howard (189); Williams (248).

5. Proper to exclude proffered testimony by defendant's family and friends as to whether defendant should be sentenced to death. Stewart (46); Hayes (162).

6. It is improper for the prosecutor to emphasize that the victim was an off-duty police officer. Ramirez (29); Holman (144) ("disabled veteran").

7. It is improper for a member of the victim's family to testify on their opinion of the appropriate punishment. Scott (199); Towns (323); Howard (189); Stewart (46); Harris (357); Chapman (436). Such improper victim impact opinion is not error when the Judge makes no reference to it in imposing the death penalty. Brown (373) Widow's reference to a "quick verdict" and "closure" were not requests for the death penalty. Williams (349); Shaw (369)

8. Widow's testimony that defendant had shown no remorse, had waved to his family in courtroom, and blocked view of victim's family was irrelevant, but not prejudicial because the evidence in aggravation and mitigation was not closely balanced. Williams (349)

9. Victim impact evidence for a crime other than the crime for which defendant is being sentenced is not admissible. Hope (371) Appellate counsel not ineffective for failing to argue improper admission of victim impact evidence for co-defendant's stabbing one of victims where defendant participated in the same crime although he didn't stab anyone. Jackson (459)

10. Argument as to the impact of murder on victim's parents was relevant and not too long to be prejudicial. Terrell (376)

8. Hearsay
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1. Hearsay testimony is admissible at the second phase if it is relevant and reliable. Hall (79); Owens (38); Holman (144). Hearsay testimony held to be properly admitted, Brisbon (54); Lyles (55); Perez (57); Montgomery (71); Morgan (73); Foster (97); Johnson (98); Young (125); Holman (144); Gosier (181); Tenner (234); Williams (254); Moore (297); Brown (308); Armstrong (353); corroborated double hearsay obtained in course of official investigation that defendant was a drug dealer was sufficiently reliable, Hall (429).

2. The fact that testimony contains hearsay does not make it per se objectionable and does not deny a defendant of the right to confront witnesses. Young (125).

3. Defendant has no due process right to cross-examine the out-of-court sources of information. Jones (16); Johnson (98).

4. Hearsay is admissible even when there is no showing that the declarant is unavailable to testify. Johnson (95).

5. At defendant's second sentencing hearing, following remand, the State introduced the transcript of witness' testimony from the first sentencing hearing, without a showing that they were unavailable - court held the evidence was trustworthy and not plain error. Szabo (77); Jones (230) (preliminary hearing transcript).

6. Defendant was properly prohibited from introducing a videotape of his children talking about their father. The tape was not reliable since neither child was under oath and the State had no opportunity to cross-examine them. Also, the State offered to stipulate to the substance of the tape. Edwards (177); distinguished in Moore (297).

7. "[W]here this court has sanctioned the admission of double hearsay at least some parts of the double hearsay have been corroborated by other evidence." There was no corroboration of any part of the double hearsay in this case, "therefore raising at least a question as to its reliability." Erickson (90) contra: Moore (297).

8. An objection on the ground of hearsay is properly overruled. Perez (57); Brisbon (54).

9. Statements of non-testifying co-defendants were improperly used at the second phase because they are presumptively unreliable and there was not sufficient indicia of reliability to overcome the presumption. Rogers (116); Turner (132). Compare Davis (21) and DelVecchio (51); Williams (349);

10. Prison records are relevant and reliable aggravation. Fair (242); Armstrong (353); Jackson (355). Nieves (413); Casillas (432).

11. Affidavit stating defendant had saved life of affiant's child was properly excluded where it lacked sufficient detail to be reliable. Hall (438)

9. Statements of Defendant
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1. Defendant's right to silence is applicable - State may not refer to defendant's failure to make a statement or testify. Szabo (18); Ramirez (29).

2. Statements by probation officer in the presentence report that defendant refused to cooperate and was hostile toward her was not an improper comment on defendant's exercise of his right to remain silent - comment simply described defendant's behavior. Ashford (103).

3. State was properly allowed to read the trial (guilt stage) testimony of defendant to the sentencer. Ramirez (29).

4. Improper to introduce statement of defendant obtained after he exercised his right to remain silent. Davis (21).

5. Improper to introduce statement of defendant obtained in violation of his 6th amendment right to counsel. Kidd (140).

6. Defendant's confession to prior murder was properly introduced - he waived claim that confession was involuntary because he pleaded guilty to the prior murder. DelVecchio (51).

7. Psychiatrist was properly allowed to testify about defendant's statements during a court ordered examination where defendant raised the issue of his mental condition. Lyles (55); Whitehead (88); Silagy (33).

8. Jury should have been given cautionary instructions about defendant's statements where experts testified that defendant had a sociopathic personality and subject to engage in fantasies. Devin (14). Compare Silagy (33).

9. Judge properly considered defendant's uncorroborated statements admitting the commission of other crimes or misconduct. Whitehead (88); Erickson (90).

10. Defendant was not entitled to an instruction telling the jury that his statements to the police (in which he admitted participating in 16 homicides) were not corroborated. Kokoraleis (145).

11. A defendant has no right to allocation or to address the sentencer other than as a witness subject to cross-examination. Gaines (10); Williams (25); Stewart (46); Perez (57); Szabo (77); Christiansen (86); Kokoraleis (145); Fields (153); Morgan (172); Gosier (181); Childress (240); Brown (308); Brown (373); Nieves (413); Simms (421). No right of allocution to respond to prosecution argument defendant lacked remorse. Hall (438)

12. State may not cross-examine defendant about motion to suppress confession to show lack of remorse. Mulero(332)

13 Defendant's statement to paramedic, made in absence of Miranda warnings, was properly admitted to impeach defendant's trial testimony that he acted in self defense. Williams (349)

10. Expert Testimony
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1. Expert may give opinion on an ultimate issue of fact - that defendant was not under influence of extreme mental or emotional disturbance. Ramirez (29); Brownell (5).

2. Expert's brief references to the findings of non-testifying experts was not prejudicial. DelVecchio (51).

3. Trial judge properly excluded the testimony of a professor of psychiatry who had met with defendant for several hours and would have testified that he "wished to study the defendant further for insight into the motivations behind criminal conduct" - the fact that defendant's conduct may be of some scientific interest is not a factor in mitigation. Williams (25).

4. Psychiatric testimony diagnosing defendant as a sociopath and borderline schizophrenic was relevant evidence concerning defendant's character. Devin (14).

5. Where defense counsel in opening statement at the second phase referred to the defendant's feeble-mindedness and noted his low IQ, it was proper for the State to call a psychiatrist, who had examined defendant at the defense request to testify that defendant possessed at least average intelligence-The opening statement presented, in effect, mental status as mitigation and the psychiatrist did not describe any statements by defendant dealing with the offense. West (158).

6. Court appointment of experts for P.C. counsel is within court's discretion. Hall (233); Sanchez (299); Richardson (397). An expert should be appointed if expert testimony would assist the Court in deciding question before it. Hall (233) "Truth seeking " test for appointing expert rejected when not shown to be different from Hall test. Wilson (404)

7. Court's refusal to appoint a specific mitigation expert upheld since no constitutional right is implicated and the Court felt that an investigator and a psychologist already provided to the defense could secure mitigation. Burt (282); Richardson (397)

8 Excluding of psychiatrist's report during bench sentencing was not prejudicial. Sims (283)

9. Not every mental or emotional disorder is mitigating. Coleman (288).

10. PC Court's refusal to appoint neuropsychologist to examine him for brain damage when there was no evidence to support claim the offense was result of "rage attack" during armed robbery. Wilson (404)

11. Antisocial personality disorder may be considered aggravating. Thomas (339)

12. Psychiatric evidence at sentencing is admissible in affidavit form. Thomas (339)

13. Trial court properly sustained objections to social worker's testimony on 1) history of mental problems in defendant's family, 2) genetic predisposition to alcoholism, 3) mental retardation of members of defendant's family, 3) the implications of mental retardation, and 4) defendant's ability to adapt to prison life. A brother's mental problems were vague and inconclusive. The expert was not qualified to offer an opinion on genetics. Speculation on defendant's family health "would shed little if any light on the defendant." Implications of mental retardation were of dubious relevance and no offer of proof was made. Witness lacked expertise on prison life and had not reviewed defendant's prison record. Armstrong (353)

14. Trial court may limit scope of cross-examination of prosecution expert to preclude defense effort to establish mitigation through prosecution expert. Jackson (355).

15. The trial judge did not err in refusing to appoint a mitigation expert where the information sought did not require special knowledge or expertise, co-counsel was competent to perform the mitigation investigation, and the judge indicated he would appoint an investigator if necessary to obtain the information. Lear (173).

16. Improper to argue mitigation specialist is a "hired gun," but not so inflammatory as to require reversal. Emerson (398)

11. Co-Defendant's Sentence
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1. Although the Supreme Court does not undertake a cross-case comparison to ascertain whether a defendant's death sentence is proportional to sentences imposed in other cases, the Court will determine whether there is an improper disparity between a defendant's death sentence and a lesser sentence imposed upon a co-defendant. Ashford (103); Jimerson (124); Bean (155); Gleckler (7); Steidl (171); Jackson (184); Johnson (200); Kitchen (243); Smith(333); Emerson (398), see McMorrow concurrence; Griffin(335).

2. A co-defendant's sentence is not mitigating. Page (229); Edgeston (235); Thomas(339); Jackson (355); Emerson (398)

3. Death sentence upheld in comparison with accomplice's life sentence where defendant had more serious criminal history. Tompkins (250).

4. Death sentence upheld even though co-defendant was more culpable. Palmer (257); Byron (262).

5. Co-defendant's 40 year sentence not unreasonably disparate for defendant's death sentence where co-defendant was a juvenile and defendant had bad record. Burt (282).

6. "Arbitrary and unreasonable disparity between the sentences of similarly situated co-defendants is impermissible." There was no unreasonable disparity in this case between the defendant's death sentence and his co-defendant's sentence of natural life. Jackson (184); Jackson (355)

7. A sentence disparity may be justified by the difference between a guilty plea and a conviction after trial. Caballero (346)

8. A disparity argument may be considered in a collateral attack on a death sentence. Caballero (346); However, Caballero does not alter the rule that a sentence disparity may not be considered at sentencing, so a Judge may not foreclose a death sentence prior to a sentencing hearing by finding a death sentence would be disparate with a co-defendant's sentence. Ruiz (430)

9. Co-defendant's 60 year prison sentence not relevant at eligibility stage. Armstrong (353)

10. Co-defendant's prison term not unreasonably disparate from death sentence where co-defendant contracted to have murder committed and defendant did the shooting. Kliner (374)

11. "In this case, we also choose to consider defendant's comparison of his sentence to sentences received by defendant's in other capital cases." Holding such a comparison fails to show sentence is excessive. Emerson (398)

12. Death sentence of actual killer was not unreasonably disparate from prison sentences of co-defendant who ordered the killing. Easley (405); Williams (406)

13. Given defendant's role as the leader in the crimes, defendant's criminal background, and defendant's lack of potential for rehabilitation, defendant's death sentence is not disproportionate to his co-defendant's life sentence. Page (417)

14. A sentence disparity may not be considered at sentencing, so a Judge may not foreclose a death sentence prior to a sentencing hearing by finding a death sentence would be disparate with a co-defendant's sentence. Ruiz (430)

15. Death sentence not unreasonably disparate to co-defendant's life sentence. Caffey (456)

16. Sentence disparities not unreasonable where one co-defendant pled guilty and defendant's aggravation considerable. Moss (457)

K. PROSECUTOR ARGUMENTS

1. Improper arguments
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1. Use of an 8-foot chart of defendant's criminal history was reversible error. Williams (248); contra Bounds (296); harmless in Hooper (300).

2. Prosecutor may not refer to alleged facts which have no basis in the evidence. Richardson (110); Holman (43); Davis (23); Pitsonbarger (165).

3. Prosecutor may not express his or her own personal beliefs about the death penalty. Holman (43); Yates (30).

4. Improper for prosecutor to suggest that his previous experience was relevant to whether defendant should be sentenced to death (i.e. stated this was his first capital hearing and he believed defendant merited the death penalty). Yates (30); Lewis (9). Compare Kokoraleis (145).

5. Improper for prosecutor to comment on the possibility of defendant obtaining parole or release from prison. Hooper (150); Walker (12); Szabo (18); Lyles (55); Barrow (142); Fields (153). Compare Mack (48); DelVecchio (51); DelVecchio (137); Howard (189); (invited by defense argument); Johnson (200).

6. Improper for prosecution to speculate on the possibility of defendant committing future crimes if he is not executed. Hooper (150); Barrow (142); Holman (43); Pitsonbarger (165); Johnson (200); Pasch (209); Patterson (219). But it may be appropriate argument if the evidence supports it. Hudson (238); Bounds (296); Kidd(337)

7. Improper for prosecutor, in referring to a prison sentence, to say "what if [defendant] kills a guard ... [or] a chaplain in the prison ... do you want to take a chance?" Hooper (150). Compare Davis (23) (no objection); Garcia (24) (invited); Kidd(337) (supported by evidence).

8. Improper for prosecutor to make remarks touching on the victim's rights and what the victims would like to be doing if they were alive. Kokoraleis (145); Smith (213) Emerson (398).

9. Improper for prosecutor to ask the jurors to put themselves in the shoes of the victim. Spreitzer (111).

10. Improper for prosecutor to refer to the victim as a widower, hardworking, and a prominent member of the community. Barrow (142).

11. Improper for prosecutor to characterize a defense expert witness as a prostitute and make other insulting or demeaning comments about him. Lyles (55).

12. Improper for prosecutor to characterize defendant as an "animal". Coleman (136); Spreitzer (11); Johnson (200); or a "devil" Hudson (238); "little weasel." Hobley (244).

13. Improper for prosecutor to say that defendant had previously "ducked out" of the death penalty. Fields (153).

14. Improper for prosecutor to comment that "I don't want to pay this guy's rent for the rest of his life" (improperly injected a "cost factor" and the prosecutor's "personal beliefs"). Gacy (42) Similar argument cured by sustained objection. Emerson (398).

15. Improper for prosecutor to tell the jury that it would be branded with lying to the judge and lying to God if it did not vote for the death penalty. Hooper (150).

16. Improper for prosecutor to tell the jury that he would accept the responsibility for the sentence of death. Yates (30).

17. Improper for the prosecutor to tell the jury that its verdict would simply be a recommendation. Fields (153); Franklin (152); Davis (21); Perez (57); Lego (87).

18. Improper for the prosecutor to say that the trial judge "shall sentence the defendant. You [the jury] don't sentence him" (held harmless). Johnson (187).

19. Improper for prosecutor to tell the jury that its decision would be recommendation (held harmless). Howard (189).

20. Improper for prosecutor to refer to execution and homicide statistics to show that executions are necessary to deter homicides. Szabo (18); Holman (43); Brisbon (54).

21. Improper for prosecutor to refer to various studies and opinion polls concerning the death penalty. Holman (43). Compare Albanese (37).

22. Improper for the prosecutor to comment that the two victims of defendant's prior sex crimes were "white women". Thomas (159).

23. Improper for prosecutor to tell jury that the defendant shed no tears for what he had done since record showed the contrary. Gosier (191)

24. The prosecutor's comment that "sympathy, passion, prejudice, public opinion, public feeling should not sway you and have no bearing upon your decision" was not a "full and correct statement of the law." The comment, however was not plain error because the jury was properly instructed "not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" and was further instructed that the remarks of counsel were not evidence. Thomas (159).

25. Improper to argue that if sentenced to life in prison defendant might escape but harmless. Childress (240).

26. Improper to argue that parole was a break from the system and defendant should not get another, but not plain error. Cloutier(338)

27. Argument that good must outweigh bad to preclude death penalty was a harmless misstatement of the law. Hobley (244).

28. Use of a police officer to assist in presenting an exhibit was error. Williams (248).

29. Improper for prosecutor to argue that manslaughter conviction was really a cold-blooded murder. Williams (248); harmless in Hooper (300); Argument that misdemeanor convictions were felonies requires resentencing. Woolley(342)

30. Improper for the prosecutor to argue the possibility that defendant would commit future crimes it is presumed that the Judge did not consider the argument. Kliner (374)

31. Improper for the prosecutor to distinguish between mitigation and mercy, but not plain error. Buss (382); harmless in light of correct instructions, Kirchner (437); Caffey (456).

32. Prosecutor's cross-examination of mitigation expert improperly insinuated the witness and defense counsel hid the expert's report from the prosecution. It was also improper for the prosecutor to call defense counsel names in the Court's chambers. Blue (396)

33. Improper at eligibility hearing to argue, "you are not going to be able to find out what he is like, Dennis Emerson, until we get - until you sign a verdict form for eligibility." However the argument was cured when an objection was sustained and the jury instructed to consider only eligibility. Emerson (398)

34. Improper appeal to juror's emotions to argue victim's hopes and dreams, but not so inflammatory as to deny fair death penalty hearing. Emerson (398)

35. Improper to argue defendant's claims of reform are "con job" and that mitigation specialist is a "hired gun" but not so inflammatory as to require reversal. Emerson (398)

36. Although improper to argue that defendant had intimidated a correctional officer who testified in mitigation it did not require resentencing. Williams (406)

37. Improper to ask jurors whether victim or defendant's life has more value, but does not require reversal. Sims(411)

38. Improper to argue that lack of prior convictions is aggravating rather than mitigating. Kuntu (448)

39. Improper to argue that not imposing death gave defendant "free murders" when only alternative to death was life in prison without parole. Kuntu (448)

40. Improper to argue an expert's diagnosis as a "boo-boo to the head,"and the mitigation experts as "trash for cash doctors." Moss (457)

41. Improper to argue religious reasons for the death penalty. Woolley (461)

2. Proper arguments
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1. Prosecutor is properly allowed to both open and close the arguments at the sentencing hearing. Ramirez (29); Caballero (36); Gacy (42); Fields (153); Bean (155); Morgan (172); Lear (173); Edwards (177); Gosier (181); Johnson (187); Johnson (200); Woolley(342); Emerson (398)

2. It was proper for the prosecutor to refer to the defendant committing a future murder where the comment was based upon the evidence - A psychiatrist testified that the defendant said his "purpose in life" was to kill and, if released, would kill again. Johnson (187).

3. Prosecutor may make legitimate responses to the arguments of defense counsel. Collins (53); Garcia (24); Mack (48). Compare Gacho (107); Holman (144); Hooper (150) (prosecutor's remarks not invited); Williams (248).

4. It was not error for the prosecutor to tell the jury that "this is not a court of mercy" the jurors "would have properly understood the prosecutor's argue as a reminder...to make their sentencing determination on the basis of the evidence presented at the hearing, not on extraneous considerations divorced from that evidence." Howard (189).

5. Proper for prosecutor to characterize defendant as an "executioner" and "professional hit man" where based upon the facts in evidence. Franklin (152).

6. Proper for prosecutor to comment on the evils of crime and urge the fearless administration of the law. Owens (38); Barrow (142).

7. Proper for prosecutor to argue that only a death sentence would be consistent with dignity, the jurors' commitment to the law, and the proper administration of the criminal justice system. Lego (87); Barrow (142).

8. Proper for prosecutor to generally explain the deterrence rationale behind the death penalty. Holman (43); Lego (87); Barrow (142).

9. Proper for prosecutor to argue the defendant's lack of remorse. Albanese (37).

10. Prosecutor's rebuttal argument urging the jurors to follow the law and return a verdict of death was invited by defense counsel's argument in which he attempted to create in the jurors a sense of guilt which would preclude their imposition of the death penalty. Jackson (184)

11. Proper for prosecutor to ask the jury to consider defendant's criminal history and his lack of positive response to incarceration. Brisbon (134); Jackson (184)

12. Argument that it was defendant's fault that he was facing death penalty does not shift sentencing responsibility away from jury. Pasch (209).

13. Argument that the judge and not the jury does the sentencing did not so shift the responsibility for sentencing so as to prejudice defendant. Flores (214).

14. Prosecution argument that mitigation is an "excuse" does not improperly restrict jury consideration of mitigation. Page (227); Moore (297); Cole ((307).

15. Prosecution argument that defendant sentenced himself to death did not violate Caldwell v. Mississippi by shifting sentencing responsibility from the jury. Page (227); Moore (297); Cole (307); Cloutier(338)

16. Prosecutor may argue that mitigation is not really mitigating. Hobley (244); Simms (289).

17. Defense argument that jury should not "kill" invited prosecution argument that following the law was not killing. Hobley (244).

18. A map showing each of defendant's crimes was not error. Cloutier(338)

19. Prosecutorial references to Bible were invited. Enis (256); Mahaffey (269).

20. Argument that the death penalty is society's only self defense against defendant not error. Moore (297).

21. Argument that jurors were only barrier between good and evil not plain error. Moore (297).

22. Argument that defendants request to jury for death was a ploy did not violate Caldwell v. Mississippi. Simpson (305).

23. Eligibility hearing argument that verdict of non-eligibility would violate oath was invited. Kidd(322) Similar argument at second stage cured when objection sustained.

24. Argument that the police could have killed the defendant at the time of arrest did not tend to lessen the sentencing juror's sense of responsibility under Caldwell v. Mississippi. Shaw (369)

25. Argument asking the jurors to imagine themselves as infant victim was simply reviewing the facts. Terrell (376)

26. Argument on harm of crime on victim's parents is relevant to determination of appropriate sentence since it was not too long. Terrell (376)

27. Argument that victim was responsible for her own death was invited by defense argument that defendant acted in a rage when victim rejected him. Macri (370

28. Argument that defendant showed "cowardice"in blaming his mother for his actions were invited by defense claim that the mother's emotional abuse caused defendant to have sexual fantasies leading to the murder. Macri (370)

29. Proper to argue that anti-social personality disorder is aggravating. McNeal (324); Macri (370)

30. Not error to argue defendant should be sentenced to death so he wakes up every morning in jail for his crime. Emerson (398)

31. Any error in argument defendant has forfeited his right to have society pay for his jailing cured by sustained objection. Emerson (398)

32. Comments on defendant's bias and motive in preparing mitigation while incarcerated is not an improper comment on the right to appeal. Emerson (398)

33. Argument that a prison sentence would be like sending defendant to a Holiday Inn or a frat house was not plain error when based on evidence as to how defendant had lived in jail because of his status in a gang and the brutal nature of the crime. Williams (406)

34. Argument defendant is beyond rehabilitation was not comment on possible parole. Williams (406)

35. Argument that defense counsel was wrong in telling jury this was about whether to kill defendant didn't mislead jury in violation of Caldwell v. Mississippi. Simms (421)

36. At eligibility hearing jurors were not misled by argument that the trial verdicts left them no choice but to find defendant eligible. Simms(421)

37. Argument that defense through counsel was trying to "dupe" jury was proper comment on theory of defense rather than counsel. Kirchner (437)

L. BURDEN OF PROOF - WEIGHING OF FACTORS
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1. At the second phase, neither party has a burden of proof - the State has the burden of initially going forward with evidence that the death penalty should be imposed and the defendant has the burden of presenting evidence of mitigating factors. Holman (144); Fields (153); Pitsonbarger (165); Simms (176).

2. The sentencer engages in a balancing process and weighs the aggravating factors against the mitigating factors to determine whether sufficient mitigating factors exist that would preclude imposition of the death penalty - The weighing process obviates the need to assign a burden of proof. Free (19); Eddmonds (32); Mack (48); Morgan (73); Hall (79); Fields (153); Bean (155); Nitz (174).

3. After the State has proved a statutory aggravating factor beyond a reasonable doubt, the defendant has the burden of coming forward with evidence of mitigation of factors. Phillips (127); Barrow (142); Olinger (72); Thompkins (102); Richardson (110); Bean (155); Morgan (172).

4. It is not unconstitutional to place a burden "of persuasion" or "of producing evidence of mitigating factors" on the defendant. Olinger (72); Whitehead (88); Bean (155); Thomas (159); Morgan (172); Johnson (187).

5. The statute does not place a "burden of proof" on the defendant to prove sufficient mitigating factors. DelVecchio (51); Montgomery (71); Morgan (73); Christiansen (86); Whitehead (88); Foster (97); Orange (108); Young (125); Turner (132);Thomas (159).

6. The death penalty statute is not invalid because it does not require the State to prove beyond a reasonable doubt the absence of mitigating factors sufficient to preclude the death penalty. Garcia (24); Perez (57); Lego (87); Erickson (90); Crews (104); Enoch (105); Young (125); Turner (132); Fields (153); Bean (155); West (158); Thomas (159).

7. The State is not constitutionally required to bear a burden of persuasion at the second phase. Odle (122); Jimerson (124).

8. The statute does not permit the automatic imposition of the death penalty where a defendant waives presentation of mitigating evidence - mitigating evidence may be found in the evidence adduced at trial as well as at sentencing. Johnson (80); Lewis (9).

9. "[W]e see no constitutional defect in the statute by virtue of the fact that the death penalty is mandatory wherever there is no mitigating factor or factors sufficient to preclude imposition of the penalty" Montgomery (71).

10. The statute does not create a presumption that death is the appropriate penalty-the State must prove a statutory eligibility factor beyond a reasonable doubt, the "State must then persuade the jury that there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death", and "defendant may, but need not, attempt to persuade the jury that there are mitigating factors sufficient to preclude a sentence of death". Simms (176).

11. The statute (weighing process) provides sufficient guidance to the sentencer. Brownell (5); Jones (16); Lewis (9); Olinger (72); Henderson (103). The death penalty statutory scheme implicitly requires the jury to carefully weigh the aggravating and mitigating factors in order to reach a fair and just result, based on the particular circumstances of the offense and the individual characteristics of the defendant and, thus, allows for an individualized determination that the death sentence is appropriate. Simms (176). For the imposition of a death sentence, the jury must weigh the aggravating and mitigating factors and the unanimous jury must conclude that there are not mitigation factors sufficient to preclude the imposition of death. Free (19).

12. The statute is not invalid by failing to provide jury with guidance as to the weight to assign factors in aggravation and mitigation. Garcia (24); Brownell (5).

13. The statute assures that the sentencer relies on aggravating factors which are relevant and constitutionally permissible. Albanese (45); Neal (65); Wright (63); Perez (57); Christiansen (86).

14. Mitigating factor of "no significant history of prior criminal activity" is not impermissibly vague. Lewis (9); King (65); Flores (126).

15. Mitigating factor "extreme or emotional disturbance" is not impermissibly vague. Silagy (33); DelVecchio (51).

16. The sentencing judge did not misconstrue the meaning of "extreme or emotional disturbance." Phillips (127); Odle (122).

17. A finding that defendant is mentally ill (to support a verdict of guilty but mentally ill) does not necessarily establish the mitigating factor of extreme mental or emotional disturbance. Crews (104).

18. Illinois is a "non-weighing State." At the second stage of the death penalty hearing aggravation is not limited to statutory aggravating factors. Shaw (369)

19. In light of overwhelming aggravation, any error in jury consideration of invalid statutory aggravating factors is harmless error. Williams (427)

M. INSTRUCTIONS-FINDINGS

1. Instructions
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1. It is proper to instruct the jury that it should impose the death penalty "if you unanimously find that there are no mitigating factors sufficient to preclude imposition of the death penalty." Thomas (159); Pitsonbarger (165); Gosier (181).

2. It is proper to instruct the jury that "neither sympathy nor prejudice should influence you." The absence of the word "mere" did not make the instruction erroneous, but the Court noted that the new IPI instructions (76.01) include the word "mere". Bean (155). See also Thomas (159); Morgan (172); Stewart (44); Neal (65); Emerson (96); Spreitzer (111); Britz (117); Turner (132); Franklin (152); West (158); Steidl (171).

3. Proper to refuse instruction which specifically listed various non-statutory mitigating factors. Stewart (44); Sanchez (84); Spreitzer (111); Pitsonbarger (165); Gosier (181); Jackson (184); Hope (281); Brown (308); Kidd(337); Armstrong (353); Simms (421). No instruction required that "youth" is mitigating. Terrell (376)

4. It was proper to refuse a proffered defense instruction saying defendant's plea of guilty to the murders was a mitigating factor. Gosier (181).

5. Proper to refuse instruction telling the jury to consider the potential of defendant to be restored to useful citizenship - the instruction which told the jury to consider "any mitigating factors which are relevant to the imposition of the death penalty" was sufficient. Free (19); Garcia (24); Kirchner (437). Compare Gaines (10).

6. Judge properly instructed the jury, as requested by the State, to consider the defendant's potential for rehabilitation - the potential for rehabilitation is a "constitutionally mandated factor to be considered by the sentencing authority." Albanese (37); Lego (87); Easley (198).

7. Proper to refuse instruction telling jury that it was not required to find any statutory mitigating factor in order to conclude that the death penalty should not be imposed. Free (19).

8. Upon defendant's request, the jury must be instructed not to consider the defendant's failure to testify. Ramirez (29).

9. Where a defendant is convicted of multiple murders the jury is to be instructed that if it "finds mitigating factors sufficient to preclude imposition of the death penalty, the defendant will be sentenced to natural life imprisonment, and no person serving a term of natural life imprisonment can be paroled or released, except through executive clemency." Gacho (107); Lear (173); Gosier (181); Jackson (184).

10. The instruction required by Gacho is only to be given at the second phase and not at the first phase. Lear (173); Jackson (184).

11. The Gacho decision only applies to sentencing hearing held after 2/11/88 - the Gacho instruction was not required at hearings held prior to that date. Spreitzer (111); Albanese (37); Stewart (46); Young (125); Mahaffey (130); Coleman (136); Franklin (152); Fields (153); Steidl (171); Spreitzer (175); Brisbon (263); Mahaffey (273); Franklin (279); Coleman (288).

12. A defendant is not entitled to instruct the jury that, if he is not sentenced to death, he will receive either a natural life sentence or a fixed term of imprisonment without the chance for parole - An instruction informing the jury of the alternative sentence to death should only be given when the choices are death or a natural life sentence. Turner (132); Bean (155); Simms (176); Howard (189); Simpson (305); Simms (421). A defendant may not waive all sentences other than natural life in order to obtain a Gacho instruction. Macri (370), Simms (421)

13. Death sentence vacated where jury found capital eligibility based on felony murder without instructions requiring intent or knowledge. Ramey (205); Fuller (462). Ramey distinguished when jury found same mental states at trial. Childress (240); Shaw (369). Ramey error in instructions is waived and not plain error, when defense failed to object and the evidence is not closely balanced on the mental state and the jury had been instructed on the mental state at trial. Armstrong (353). This error does not require relief where other statutory aggravating factors are found. Williams (349)

14. No need to instruct on definition of "brutal or heinous" under 9-1(b)(7). Fair (242).

15. No error in refusing at eligibility stage to instruct jury that life in prison was only alternative sentence. Hobley (244).

16. Alternative to death sentence should be given to jury only in the instance of multiple murders. Williams (248). Defendant not entitled to Gacho instruction, that life in prison is only alternative to death, even if he waives lesser sentences he could otherwise receive. Simms (289). None IPI instruction that defendant "could" be sentenced to natural life properly refused. Terrell (376)

17. Court properly refused instruction on non-unanimity requirement for consideration of mitigation. Hope (281); Simms (421).

18. Verdict form for death penalty eligibility must include required mental state if the verdict form includes the other essential elements and is not a general verdict. Mack (285). Same error does not require relief where other statutory aggravating factors found. Williams (349); Jackson (355); Terrell (376); Buss (382). Verdict form should also include underlying felony in felony murder which is the basis of death penalty eligibility if the eligibility verdict is not a general verdict. Jackson (355). Mack error requires new death penalty hearing where other eligibility factors found deficient on appeal. Williams(412). Where same jury at trial found intentional or knowing murder guilt the Mack error is eliminated. Childress (240); McCallister (415); Chapman (436).

19. Instruction that jurors need not be unanimous in finding something mitigating properly refused. Ramey (206); Brown (308), Emerson (398); Simms (421).

20. I.P.I. instructions adequately guide jurors in capital cases. Brown (308); Franklin (279); Armstrong;(353); Macri (370; Page (417); Hickey (453). Instructions that mercy is mitigating, that a single juror could spare defendant's life, and a non-death sentence could be imposed, "for any reason," were properly denied since the IPI covered these areas. Buss (382); Emerson (398); Caffey (456); instructions made Judge's statement on jury consideration of mercy harmless. Hall (438)

21. A cautionary instruction on defendant's statements of intention to commit violent acts was adequate to protect his rights, unlike Devin (14) where consideration of fantasies as fact may have prejudiced Devin. Macri (370)

22. It was proper to refuse a defense instruction which stated "there is nothing which would suggest that the decision to afford an individual mercy violates the constitution." (Fields (153)

23. Evidence didn't support giving of an instruction on statutory mitigating factor of compulsion.

Williams (427)

2. Bench sentencing
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1. Written findings are not required. Brownell (5); Gaines (10); Kubat (20); King (66); Emerson (96); Orange (108); Richardson (110); Jimerson (124).

2. The sentencer is not required to specifically find that death is the "appropriate" punishment. Walker (62); Albanese (45); DelVecchio (51); Morgan (73); Erickson (90); Crews (104); Spreitzer (111); Jones (115); Jimerson (124); Tye (168).

3. The proof of one statutory mitigating factor does not automatically preclude the imposition of a death sentence. Brownell (5).

4. In a bench sentencing hearing, it is presumed that the judge considered, and based the decision on, only competent and reliable evidence unless there is an express indication to the contrary. Evans (119); Phillips (127); Terrell (148); Kliner (374). For cases in which the presumption was overcome see Simms (101); Terrell (148); Harris (138); Tye (168).

5. Sentencing judge did not err in refusing to consider sympathy for defendant. Olinger (72); Foster (97); Johnson (98); Ashford (103); Crews (104); Orange (108).

6. Sentencing judge did not err in refusing to consider sympathy for defendant's parents as a mitigating factor. Erickson (90).

7. The Court rejected the contention that the statute does not allow for distinguishing between sympathy based on the evidence and sympathy which is properly excluded. Phillips (127); Bean (155).

8. "Mercy" is a relevant mitigating factor. Holman (43); Hall (79); Johnson (98); Simms (176).

9. Although mercy is a relevant mitigating factor, it is to be considered within the context of all factors in aggravation and mitigation and there is no requirement that the jury be instructed that mercy can be a valid mitigating factor. Flores (126); Sanchez (84); Pitsonbarger (165); Simms (176); Hope (281).

10. It was proper to refuse a defense instruction which stated "there is nothing which would suggest that the decision to afford an individual mercy violates the constitution." (Fields (153).

11. Judge properly considered the defendant's lack of remorse as an aggravating factor. Erickson (90); Albanese (37).

12. Judge properly compared the circumstances of the instant case with other cases before him during sixteen years on the bench - appropriate to insure "rationality, consistency and evenhandedness." Wright (63).

13. A sentencing judge may properly rely on his own background and experiences in imposing sentence. In this case, the judge did not err by referring to his 7 years as a homicide detective, his investigation of child beatings, and concluding that he "had never seen a child beaten with such viciousness." Tye (168).

14. Judge's finding that defendant was not suffering from an extreme mental or emotional disturbance was supported by the record. Brownell (5); Foster (97); Madej (52). Compare Carlson (6).

15. Where a psychiatrist testified that defendant, a prison inmate, had a paranoid personality, the sentencing judge, by stating "all inmates ... suffer from a paranoid personality disorder," failed to consider the psychiatrist's testimony in light of the individual circumstances of the defendant and demonstrated a "prejudice against incarcerated defendants, rather than a reasoned and informed judgment based upon the evidence contained in the record." Boclair (139).

16. Sentencing judge properly rejected the lack of criminal history mitigating factor where defendant had 4 prior convictions -robbery, theft and 2 criminal trespass. Madej (52).

17. Sentencing judge improperly considered in aggravation the fact that the murder occurred immediately after the victim left a church service (see Ch. 38, §1005-5-3.2(1)(9)). Since the evidence did not show that defendant knew the victim had just left church, this fact "was purely fortuitous and was not a relevant factor in assessing the defendant's moral culpability." Hayes (162).

18. Sentencing judge did not err in finding that the defense evidence regarding the defendant's troubled childhood and turbulent family history had no mitigating value, but was actually aggravating. A sentencer is not invariably required to give mitigating weight to evidence of a defendant's troubled childhood, rather than to assign it aggravating weight. Henderson (163).

19. Sentencing court may not impose death sentence based upon emotion or belief that defendant will harm or kill in prison or upon escape from prison. Johnson (200).

20. Court's findings of facts as basis for death penalty which defendant argued were legally or factually unsupported found justified or harmless. Cortes (348)

21. Sentencing Judge did not have a conflict of interest although he had prosecuted defendant for a prior felony used in aggravation. Wright (393)

22. Judge erred in relying on matters outside the record as reasons for death sentence, including a book he read, and what another judge did in another capital case. Dameron (449)

23. Judge not biased based on victim's photo and thank you note on wall in Judge's chambers, or appellate counsel's affidavit claiming Judge revealed dislike of defense counsel to jury. Jackson (459)