People v. Harris (129 Ill. 2d 123, 1989)

JUSTICE CLARK

delivered the opinion of the court:

Defendant, James Harris, was charged by indictment in the circuit court of Cook County with four counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1) through (a)(3)), two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)), four counts of aggravated kidnapping (Ill. Rev. Stat. 1981, ch. 38, pars. 10— 2(a)(3), (a)(5)), one count of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — 1(a)(4), (b)), one count of attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4), two counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)), and four counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). All of these charges stemmed from his alleged involvement in an incident during which Theresa Woods was wounded and Jesse James, Sr., killed. Prior to trial, all of the kidnapping, armed violence, and weapons counts were dismissed. Before the case was submitted to the jury, the State withdrew, without objection, the armed robbery counts and substituted three counts of attempted armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4). The jury found defendant guilty of the murder of Jesse James, Sr. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)), the attempted murder of Theresa Woods (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4), the aggravated battery of Theresa Woods (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)), and the attempted armed robbery of Theresa Woods and Jesse James, Sr. (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4).

Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty based on the presence of the statutory aggravating factor that the murder had been committed during the course of an attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)). The trial court also found no mitigating circumstances sufficient to preclude the imposition of the death penalty. It sentenced defendant to die by lethal injection for the murder of Jesse James, Sr. Defendant was also sentenced to terms of 15 years for each of the attempted armed robbery convictions, the terms to run concurrently, and 30 years on the attempted murder conviction, the term to run consecutively to the terms for the attempted armed robbery convictions. Because the death penalty had been imposed, defendant appealed directly to this court pursuant to Rule 603 (107 Ill. 2d R. 603).

Defendant challenged his convictions on various grounds, which can be grouped under four headings. He claimed that he was denied a fair trial because of (1) the prosecutor’s use of peremptory challenges to exclude blacks from the jury; (2) the prosecution’s alleged failure to disclose exculpatory material to the defense; (3) the ineffective assistance of counsel; and (4) the prosecutor’s allegedly prejudicial remarks in summation. Defendant’s various challenges to his sentence can be grouped- under two headings. Defendant claimed that his sentence must be reversed because of (1) various errors claimed in connection with the trial court’s consideration of evidence, presented at the aggravation-mitigation stage of the death penalty hearing, that the defendant killed a person in 1969, a charge that had been dismissed upon the State’s motion of nolle prosequi, and (2) the alleged unconstitutionality of the Illinois death penalty act.

While defendant’s appeal was pending, the United States Supreme Court held in Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1722-23, “that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” The Court subsequently held that the rule announced in Batson applied retroactively to all cases that had been pending on direct review at the time Batson was decided. (Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716.) We therefore issued a supervisory order retaining jurisdiction of this case but remanding it to the trial court for a hearing to determine whether the State used peremptory challenges to unconstitutionally exclude blacks from the jury. At the hearing, the trial court determined that defendant established a prima facie case of discrimination. However, the court concluded that the State presented neutral, nonracial reasons for its use of peremptory challenges, thereby rebutting defendant’s prima facie case. Upon return of the case to this court, defendant renews his earlier arguments and further claims that the trial court’s finding at the Batson hearing was incorrect.

TRIAL

Defendant’s convictions stem from events occurring in the early morning hours of February 10, 1983. The State’s chief witness to these events was Theresa Woods, a waitress at the tavern owned by Jesse James, Sr. According to her testimony, she and James began closing the tavern at 2 a.m. After closing, she checked out the cash registers, leaving $30 in each. Sometime between 3:30 and 4 a.m., Woods and James finished and left the tavern, stopping to lock the door and set the alarm. As Woods and James were leaving, a man whom Woods had never seen before approached them and asked what time the buses stopped running. Woods replied that she did not know and continued to walk away with James.

James and Woods walked across 69th Street to James’ car. James stopped to put jumper cables into the trunk. Suddenly, the man who had approached the pair and asked for the time came towards them again, this time grabbing Woods by her coat and pointing a gun at her head. Woods’ legs slipped out from under her, and as the man pulled her back up she saw his face.

The assailant ordered Woods and James to get into James’ car. Woods went into the rear seat, and following the assailant’s command, sat behind James, who was sitting in the driver’s seat. Woods testified that from her position in the back seat, and with the aid of streetlights in the area, she was again able to view the assailant’s face. Her assailant remained in this position during the time the three spent driving around the streets in the area.

The assailant ordered James to drive to the next corner. When they arrived at the corner, the assailant then ordered James to turn into an alley, drive to the end of it, and stop the car. James complied. The assailant threatened to kill James and Woods if they did not give him $300. He also told them that he did not “care about” killing the two of them because if he was caught he would be “up for good.” James replied that he had some money at his tavern. The assailant then told James to drive back to the tavern. James did so, stopping the car in an alley perpendicular to 68th Street, just behind the tavern.

The assailant then ordered Woods to go into the tavern and retrieve the money. He told her that if she did not return in three minutes, with the money, he would kill James. Woods then ran to the tavern, opened the door, and jumped over the counter to the cash register. She took all the paper money from both cash registers and, without stopping to count it, ran back outside.

When she returned, she noticed that the car had been moved from its original position and was now at the intersection of the alley and 69th Street. When she reached the car, the assailant ordered her to get in. James protested, saying that there was no need for Woods to reenter the car. The assailant then told James to “shut up,” and that he, the assailant, was “running this.” Woods testified that she then saw the assailant pull James toward himself, and shoot James in the head.

Woods turned and ran, tripping and falling a short distance from the car. She landed on her left side and turned over on her back. The assailant came towards her, stood over her, and pointed his gun at her face. He said: “You bitch.” She began pleading: “[Pjlease do not do this to me,” and raised her hands in the air to protect her face. She rolled to her left as the assailant fired. She then remained lying face down, not realizing at that point that a bullet had entered her right shoulder.

She continued to remain in this position for several minutes, pretending to be dead. After a few seconds she heard the footsteps of a person running away, first on the pavement and then through weeds growing in an empty lot on the north side of the street. After several seconds had passed she stood up and saw James lying on the ground. She also noticed that the car had now collided with the glass window of a building adjacent to the alley. She then ran back into the bar and called the police.

Chicago police officer Abraham Wilson testified that he arrived at the scene a few minutes after 4:18 a.m. He met Theresa Woods, who said that she and a man had been shot. Officer Wilson then saw James lying on the ground and went over to him. Officer Wilson testified that James told Wilson that an assailant had reached over and shot James and that “he didn’t have to do that.” Officer Wilson then called for an ambulance, which took Woods and James to a hospital. James later died of a bullet wound to the head.

In order to impeach Theresa Woods’ testimony, the defense called Chicago police officer Rene Daniels, Officer Wilson’s partner, and Chicago police detective Geraldine Perry. Officer Daniels testified that Woods provided Daniels with a description of the assailant from which Daniels inferred that the assailant was 5 feet 6 inches tall, a height several inches shorter than that of the defendant. Detective Perry, who interviewed Theresa Woods in Billings Hospital, testified that Woods told Perry that Woods had seen the defendant and James struggling in the car as she emerged from the tavern with the money, that the car was moving, and that she saw it collide with the building on the north side of 69th Street. Woods did not tell Perry that she had approached the driver’s side of the car, or that she heard any words spoken between James and the offender. Defense counsel also cross-examined Theresa Woods about statements she had given at the hospital to a Dr. Marion Chung, but the defense did not call Dr. Chung to testify to these statements.

Cleveland Johnson testified that, as he was driving to work, he stopped at the intersection of 63rd and State Streets at approximately 4:15 a.m. While at the intersection, he noticed a man running out from under the State Street underpass. This man, whom Johnson identified as defendant, stopped at the corner of 63rd and State Streets and ducked behind a traffic control box. Johnson then noticed that a police patrol wagon was turning from State Street onto 63rd Street. After the police patrol wagon had passed by, defendant stepped out from behind the box and crossed the street. Meanwhile Johnson, continuing to watch defendant, had slowly turned his car off 63rd Street and onto State Street. Defendant began running behind and alongside the passenger side of Johnson’s still moving car. When defendant began hitting the side of the car with his left hand, Johnson stopped the car, reached over to the passenger side and rolled the window several inches down. Defendant then offered Johnson $5 for a ride to 51st Street. As Johnson was considering this offer, defendant reached down with his right hand and tugged at the waistband of his pants.

Of&cers Michael Grady and Ted Kurzweil of the Conrail police testified that at 4:20 a.m. they were sitting in the front seat of a Chevy Blazer parked on 63rd Street, one block east of State Street. Two Chicago police officers came by and gave the two Conrail officers the description of the man they were looking for in connection with the shootings of Woods and James: “a male black, wearing a blue jean jacket with a large ’fro.” The Conrail officers then drove to the corner of State and 63rd Streets, where they saw a man fitting that description, and whom they identified in court as defendant. This man was running alongside a slowly moving car. Officer Grady testified that defendant was holding a gun in his right hand. The two officers turned down State Street, sped up to catch Johnson’s car, and pulled up in front of it. They left their own car and pointed their guns at defendant just as Johnson was considering defendant’s offer of five dollars for a ride. Officer Grady ordered defendant to “freeze” and drop his gun. According to Grady, defendant placed the gun in his waistband and said that he “gave up.” Officer Grady then pushed defendant over the hood of Johnson’s car, patted defendant down, and took a .32 caliber revolver from his waistband.

At trial the prosecution’s expert on ballistics testified that, in his opinion, this revolver possessed characteristics identical to those of the weapon which fired the bullet recovered from James’ head. He also testified that he had examined the revolver on February 12, 1983, two days after the incident, and that, in his opinion, it had been fired three times shortly before that date.

Shortly after the shooting, Chicago police officers visited Woods in her hospital bed and showed her 10 photographs of faces, including one of the defendant. From this array, Woods selected defendant’s photo, and identified him as her assailant. She also identified defendant in court.

At trial, defendant admitted to being the man arrested by the Conrail officers, but denied that he was Woods’ assailant. Defendant stated that, on February 9, 1983, he lived alone at 1809 East 71st Street, in an apartment next door to his mother’s apartment. At approximately 10 p.m. that evening, defendant went to meet Marie Brown, one of his sisters, at the Toast of the Town Lounge at 71st Street and Stony Island Avenue. He stayed with this sister at the lounge until 3 a.m., when he walked her the half block to her home. Defendant accompanied her into her apartment and helped her move some furniture. He left her apartment some time later and went to the house of a second sister at 70th Street and Harper Avenue. There he called his wife, and after a while walked to the corner of 71st Street and Stony Island to wait for a bus.

After a few minutes he realized that the 71st Street bus did not run that late, so he began walking north towards 63rd Street, where he knew he could catch a bus. After catching a bus there, he left the bus at the corner of 63rd and State Streets, walked a short distance and stood in front of a corner tavern, waiting for the northbound State Street bus. As he was waiting, he noticed a car traveling slowly north along State Street in front of the tavern. Defendant walked over to the car, knocked on the window, and asked the driver for a ride to 53rd Street. The driver rolled down his window. Defendant offered to pay the driver $5 for the ride. As he was making this offer, a “jeep or truck” pulled up and two men with guns jumped out. When they pointed their guns at defendant, defendant raised his hands in the air.

According to defendant’s testimony, when arrested he had no gun in his possession. One of the two officers told him to lean over the hood of the car, and he was then handcuffed and searched. Defendant testified that the officer did not take any object from defendant’s possession.

Defendant’s sister, Marie Brown, testified that she was with defendant at the Toast of the Town Lounge from 11 p.m. on the night of February 9, 1983. According to Brown, the two of them left the lounge not at 3 a.m. but at 2:15. They then went to Brown’s house, where defendant helped her move some furniture. Defendant then left her house at 2:45 a.m.

At the conclusion of the trial, the jury found defendant guilty of murder, attempted murder, aggravated battery, and attempted robbery.

DEATH SENTENCING HEARING

After the jury returned its verdicts, the State moved to hold a death sentencing hearing. Defendant waived his right to a jury at this hearing. At the first stage of the hearing, the death qualification stage, all of the evidence presented at trial was admitted by stipulation. In addition, the defense called Dr. Marion Chung, a physician who had interviewed and treated Theresa Woods shortly after the shooting. The State argued that defendant was eligible for the death penalty because he was over 18 years of age at the time of the offense; the killing took place in the course of another felony, attempted armed robbery; and Jesse James was actually killed by defendant.

Dr. Chung testified to a statement made by Theresa Woods. The defense argued that this statement impeached Woods’ testimony at trial and established that the killing had not taken place during the course of a robbery. According to Dr. Chung, Theresa Woods stated that “a gentleman had come into her working place and had shot the owner and when she saw that happen she turned and tried to flee. She fell, the bullet hit her right shoulder in the back. She fell to the ground and she hit her chin. After she felt the bullet in the right shoulder she fell to the ground.”

The trial court found that defendant was eligible for the death penalty (Ill. Rev. Stat. 1981, ch. 38, par. 9— 1(b)(6)).

During the second phase of the death penalty hearing, the aggravation-mitigation phase, the State introduced evidence of defendant’s eight prior convictions: four for theft, two for armed robbery, and one each for burglary and robbery. Additionally, the State presented evidence that, on April 15, 1969, defendant killed a person named Gary Green. Although the State had initially charged the defendant with that killing, it moved to nolpros the charge at a hearing held on January 27,1972.

Shortly after the State began direct examination of its first witness to this earlier killing, defense counsel stated that he objected to the testimony of the witness and asked to be heard at a sidebar. At the sidebar, defense counsel first stated that he had subpoenaed police reports on the 1969 shooting and had not yet received them. After further discussion, defense counsel stated that he had ordered, but not yet received, the transcript of the January 27, 1972, proceeding at which the charge was nol-prossed. The following colloquy then took place:

“THE COURT: Now, is this — is the point that you are making that you should have transcripts to be able to impeach?

MR. KUNZ: Yes.

THE COURT: That is your total point?

MR. KUNZ: Well my first point is that the state should not be allowed to prove up in aggravation now a case which on their motion was nolled in 1971 or ’72.

THE COURT: You are satisfied that it was not a finding of not guilty?

MR. KUNZ: Yes.

THE COURT: It was not a finding of guilty?

MR. KUNZ: I am satisfied with that.

THE COURT: All right. Insofar as — do you have any law to the effect that a case nolled cannot be used by the State in aggravation?

MR. KUNZ: No.

THE COURT: Is there anything about the passage of time that you are incorporating to make your point?

MR. KUNZ: Yes. I would like — I have been telephoning — well, for one thing I need some time to bring in my rebuttal witnesses. I would like to bring in the brother or unless the State will stipulate to the transcript when I get it, that that was his testimony.

THE COURT: Well, you will be allowed all the time that is necessary to bring in witnesses. Excuse me.”

After some discussion as to whether the witness who was currently testifying had previously testified at the 1972 nolle prosequi hearing, defense counsel said: “I am just suggesting that I might ask to recall this witness to reopen my cross examination in the event that the transcript I ordered weeks ago shows that this witness did testify.” The court responded: “All right. Very well. The record will show that.” There is no further indication of any ruling on defense counsel’s initial objection to the testimony of the State’s first witness, or on counsel’s argument that the State should not be allowed to introduce in aggravation facts relating to a charge which the State had previously moved to nol-pros.

The State’s first witness was Lynn McDonald. At the time of Gary Green’s death in 1969, McDonald lived in the same housing project as Green and defendant. McDonald belonged to a gang known as the Disciples, while defendant belonged to a rival gang, the Blackstone Rangers. McDonald had convictions for bribery and theft.

McDonald testified that on April 15, 1969, he was on the fifteenth floor of an apartment building with several other persons, including Gary Green and Gary’s brother, Rochester Green. At approximately 8 p.m. they heard gunshots coming from downstairs. They all went downstairs to the front of the building and to a wall which separated the building from a nearby school. Gary Green went over to the east end of the wall and looked over the top. As Gary Green did this, McDonald saw defendant and another person in the schoolyard opposite the wall. He saw a rifle in defendant’s hands. After a few gang slogans were yelled out from both sides of the wall, McDonald saw defendant fire the rifle, turn and walk away. After a moment, he saw defendant turn again and fire a shot towards the place where Gary Green was standing.

Rochester Green, the brother of Gary Green, also testified that he was present when Gary Green was shot. According to Rochester Green, he, Lynn McDonald, and others were all present at the wall between the school and the apartment building at 8 p.m. on April 15, 1969. They heard a shot and all fell to the ground. After a while Gary Green rose and went to the east part of the wall. Lynn McDonald followed him, as did Rochester Green. As they were going, Rochester Green heard a second shot. He then walked up to the top of the wall and saw defendant and another person running away from the wall towards the street.

The State also called Rudolph Nimocks, a Chicago police officer. Nimocks testified that he had investigated the killing of Gary Green in 1969 and had interviewed Lynn McDonald and Rochester Green. Over a hearsay objection, he testified that both McDonald and Green told him that they were standing at the wall, heard a shot, and, after hearing the shot, looked over the wall to see defendant — first standing and holding a gun, and then running away.

Rochester Green had also testified at the 1972 nolle prosequi hearing. At that time he stated he had been playing on a ball field at the time of the shooting, that he had seen the person who shot his brother, a person who had the nickname of “Rat,” and who was not defendant.

The defense adduced expert testimony that the bullet which killed Gary Green could only have been fired from a handgun, and could not have been fired from a rifle such as the one Lynn McDonald testified he had seen defendant fire at Gary Green.

Defense counsel also attempted to introduce into evidence statements made by the assistant State’s Attorney at the nolle prosequi hearing. At that hearing the assistant State’s Attorney stated to the court:

“Your honor, based on this information, and I would first indicate as I told Mrs. Janie Green and also her boy, that on their part, being related to the victim, I am very impressed and the State was very impressed by their candor and by their appearance and their apparent search for the truth during the time this matter had been pending when they found out who, in fact, was the actual murderer, since they called it to our attention this morning, the State would at this time, being interested only in justice, your honor, move to nolle prosse this case.”

At the sentencing hearing defense counsel also attempted to introduce evidence that at the nolle prosequi hearing, the court sustained the State’s motion to nolpros and stated: “The record should indicate that the People of the State of Illinois in this instance, has done what the.court feels is right, and they are to be commended for their actions.” At the sentencing hearing, the court sustained the State’s objection to all of these statements.

Defendant presented the following evidence in mitigation. He testified that, as a youth, he had been intimidated by gang members and forced to pay protection money. Since he seldom had any money he eventually formed for his own protection his own gang, which, he admitted, later became affiliated with the gang known as the Blackstone Rangers. However, he denied killing Gary Green. He was first sent to Cook County jail at the age of 16. During this stay in prison he admitted fighting with other inmates but testified that he fought only in order to protect himself from homosexual rape. During this first stay in prison he was often subject to discipline.

During a second stay in prison he was a model inmate. He taught art classes, was never subject to discipline, was never placed in segregation, and received several commendations. He received one commendation for helping a fellow inmate who had been stabbed several times in the chest in a gang-related incident. Defendant approached the wounded inmate as he lay bleeding in the prison gallery, and persuaded another inmate to help him carry the wounded man to the prison hospital. After receiving the commendation, defendant wrote to prison authorities asking that he receive good-time credit in addition to the commendation.

Defendant also presented evidence of his long-standing talent for, and interest in, art, both by his own testimony, and by the admission of many of his paintings.

Defendant also presented the testimony of his current parole officer. She testified that he had complied with all rules and regulations pertaining to his parole and had fully availed himself of supervision. Finally, defendant presented the testimony of Anna and Fred Warnken, at whose Kansas farm defendant had stayed for three weeks in October 1982. They both testified that they trusted defendant and would invite him to stay with them again.

The trial court, assessing the evidence in the aggravation-mitigation phase, found that defendant had killed Gary Green, and had a long and significant history of criminal activity. In addition, the court found that defendant had intentionally killed Jesse James, Sr., and had exhibited extreme cruelty when he did so. The court found no mitigating factors to be present. While noting that defendant’s viciousness may have been originally a tactic motivated by defendant’s need to protect himself, it concluded that defendant was now inherently “vicious.” The court refused to find that defendant’s artistic talent was a mitigating factor; rather it found that talent aggravated his offense because it indicated that he had possessed an alternative to a life of crime. Finally the court considered whether defendant’s aid to the wounded inmate was mitigating, but concluded that defendant’s letter asking for good-time credit indicated that defendant’s aid had been selfishly motivated. The court found “no mitigating factors within the evidence,” and sentenced defendant to death. The court also sentenced defendant to 30 years’ imprisonment for attempted murder and 15 years’ on each conviction for attempted armed robbery, the attempted murder conviction term to run consecutively to the two attempted armed robbery conviction terms.

POST-TRIAL HEARING

At a post-trial hearing in which defendant was represented by new counsel, defendant sought to demonstrate that he was entitled to a new trial because of the alleged incompetence of his original attorneys, the State’s alleged concealment of a witness, and the State’s alleged alteration of the testimony of certain other witnesses.

At this hearing Jamison Kunz and Russell Born, defendant’s attorneys at trial, testified on his behalf. Kunz testified that he had received through discovery police reports which stated that defendant’s apprehension had “cleared up” 30 previously unsolved armed robberies, as well as several shootings. Kunz testified that he had been told by a police officer that this information was false, and that the police officer would have been available to so testify. Kunz testified that, while defendant asked him to use this evidence as impeachment, Kunz did not do so.

Kunz also testified that Assistant State’s Attorney Daniel Franks had informed Kunz during the trial that the State would not call as a witness Dr. Marion Chung, the physician who had treated Theresa Woods. On April 26, 1984, the second day of trial, when Kunz, keeping a “poker face,” casually inquired about Dr. Chung’s whereabouts, the State’s Attorney told Kunz that Dr. Chung was on vacation and “out of town.” Kunz testified that he did not pursue the matter further because he believed that he could adequately impeach Theresa Woods’ testimony by calling Officer Daniels and Detective Perry, and that further impeachment would only tend to confuse the jury. Russell Born, an attorney who assisted Kunz during the trial, also testified to the State’s Attorney’s statement about Dr. Chung’s whereabouts.

Kunz further testified that although he was aware that defendant suffers from a missing lower front tooth and resulting slight speech impediment, he did not cross-examine Theresa Woods about whether she noticed the missing tooth or the speech impediment. Finally, Kunz testified that he never cross-examined Theresa Woods about defendant’s moustache.

Dr. Marion Chung testified that she had in fact received a subpoena from the State’s Attorney’s office to testify against defendant. She then told an assistant State’s Attorney, Timothy McKay, that she would return from her vacation on Wednesday, April 25, 1984. She in fact returned from her vacation on that day. On the following day, April 26, she went to an office of the State’s Attorney. She was taken into a small conference room. Two other witnesses, police officers, were also in the room. After a while, Assistant State’s Attorney Daniel Franks entered the conference room and began talking to the police officers. The conversation involved the position of the two officers’ car when they saw defendant running across the intersection. Both officers stated that their car was not parked immediately next to the intersection, but instead was parked one car length away. Franks disagreed with the officers, stating that the car was probably closer to the corner — a position from which they would have had a better view of defendant as he ran across the intersection. The conversation continued for an hour, and the two officers eventually agreed that the car must have been parked closer to the intersection than they had remembered.

Dr. Chung also testified that she had a conversation with Franks. Franks had Chung review the medical records she had written concerning Theresa Woods, which included a record of what Woods had told Chung about the shooting. Franks then asked Chung several times if she was absolutely sure that what she had written was an accurate record of what Woods had told her. Franks conversed with Chung for 15 to 20 minutes, and finally informed Chung that the medical record was “totally the opposite” of Woods’ trial testimony.

At the post-trial hearing the court denied defense counsel’s motion to dismiss and supplemental motion for a new trial. It found no ineffective assistance of counsel, no attempt by the State to hide a witness, and no attempt to alter witness testimony.

We now consider the issues raised by defendant.

THE CONVICTIONS

Prosecutorial Nondisclosure

Defendant first claims that the prosecutor’s apparent misrepresentation of Dr. Chung’s whereabouts and failure to disclose that she would impeach Theresa Woods violated the prosecution’s obligation to disclose relevant exculpatory material to the defense. Even assuming that the prosecution in fact misrepresented Dr. Chung’s whereabouts or failed to disclose her impeachment evidence, we do not agree that these acts, under these circumstances, constitute error.

The defendant concedes that neither of his trial attorneys specifically requested that the prosecution produce Dr. Chung as a witness, or otherwise provide any information about her. Under Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, the prosecution has a duty to disclose exculpatory material to the accused upon specific request. In the absence of a specific request, Brady does not apply to this case. However, the United States Supreme Court has also recognized that the prosecution has a duty to provide certain exculpatory material to the defense even absent a specific request. (United States v. Agurs (1976), 427 U.S. 97, 111-12, 49 L. Ed. 2d 342, 354, 96 S. Ct. 2392, 2401.) Under Agurs, the prosecution’s duty to disclose absent request extends only to evidence “so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce” (427 U.S. at 107, 49 L. Ed. 2d at 351, 96 S. Ct. at 2399) and which “creates a reasonable doubt that did not otherwise exist” (427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402). Stated in another way, the undisclosed evidence will be considered material only if its “suppression undermines confidence in the outcome of the trial” (United States v. Bagley (1985), 473 U.S. at 678, 87 L. Ed. 2d at 491, 105 S. Ct. at 3381), and if there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” (473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3384). We are unable to agree with the defendant’s contention that the appearance of Dr. Chung as a witness for either the prosecution or the defense would have changed the outcome of the trial.

The crucial fact is that Dr. Chung could only have testified to the same statements, contained in the medical records as recorded by Dr. Chung, that were already available to the defense and which the defense in fact used to cross-examine Theresa Woods. The defense may have achieved some marginal benefit from having Dr. Chung testify to the impeaching statement, particularly since Dr. Chung appeared to agree with the defense position that this statement was actually inconsistent with Theresa Woods’ testimony at trial. The defense might also have benefited, as it may have intended, if the prosecution had carried out its original plan to call Dr. Chung as its own witness — presumably for the purpose of describing Theresa Woods’ wounds. In that case, the defense might have achieved the minor tactical advantage which would flow from eliciting the impeaching statement from the mouth of the prosecution’s own witness. Presumably it was these considerations of tactical advantage which led defense attorney Kunz to casually inquire, keeping a “poker face,” as to the whereabouts of Dr. Chung. But these minor tactical advantages cannot compare to the solid evidence of defendant’s guilt— particularly his presence near the scene of the crime in possession of the murder weapon, and the positive identification by the surviving victim.

Moreover, it is far from clear that Dr. Chung’s testimony would have been truly exculpatory. Theresa Woods’ statement to her was extremely brief. Dr. Chung’s interest in the statement, as she herself admitted during the hearing, was medical, not legal. She did not care about the details of the crime but only about the location and cause of Theresa Woods’ wounds. While a police investigator might have inquired further into exactly who did what, when, where, and how, Dr. Chung was satisfied once she knew that the bullet had struck Theresa Woods in her right back shoulder. Moreover, the statement itself, as recorded by Dr. Chung, is susceptible of an interpretation consistent with Woods’ trial testimony. The statement does not directly assert that Jesse James was shot in the tavern but that “a gentleman had come into her working place and shot the owner.” (Emphasis added.) While the defense might have nevertheless made some capital out of the remaining inconsistencies between the statement and the trial testimony, these inconsistencies are not so severe as to undermine confidence in the outcome of the trial.

The same reasoning applies, a fortiori, to the possibility that Dr. Chung could have testified to the prosecutor’s coaching of the two Conrail officers. We should say at the outset that had Dr. Chung witnessed an attempt to suborn perjury we might resolve this issue differently. But she did not. The prosecutor did not tell the two police officers to say that they had seen the defendant with a gun. They were already convinced that they had seen the defendant with a gun. However, they also apparently believed that they were slightly farther from the curb than the prosecutor thought was consistent with their view of the gun. Thus the prosecutor sought to convince them that they must have been parked in a position consistent with their observation. Such an effort is permissible, and the impeaching effect of this testimony would have been diminished by the instruction to the jury that an attorney has the right to interview witnesses (Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.10 (2d ed. 1981)). It would also not have gone so far as to enable defendant to refute the Conrail officers’ testimony that they had found him in possession of the gun. At best it would have raised a minor doubt as to their ability to recall the precise details of events which had occurred over a year before. Again, we cannot conclude that the disclosure of this evidence would have created a reasonable probability of a different outcome.

Moreover, were we to hold otherwise, the prosecution would be saddled with an impossible burden. It would be forced to give the defense a running commentary upon all of its interviews with its own witnesses. Any prosecutor confronted with such a rule would be forced to “allow complete discovery of his files as a matter of routine practice.” (United States v. Agurs (1976), 427 U.S. 97, 109, 49 L. Ed. 2d 342, 353, 96 S. Ct. 2392, 2400.) Such a rule would, in fact, give the defense discovery of much greater scope than is enjoyed by the typical civil litigant, whose ability to discover the other side’s case is limited by the attorney-client privilege and by the work-product rule. Whatever the intrinsic merits of providing criminal defendants with such massive disclosure, we decline to hold that it is constitutionally required.

Ineffective Assistance of Counsel

Defendant also argues that his attorneys’ failure to subpoena Dr. Chung or to use the medical record to impeach Theresa Woods denied him his sixth amendment right to effective assistance of counsel. It should also be noted that, at the post-trial hearing, although not in his brief here, defendant claimed ineffective assistance of counsel based upon a number of other grounds, such as defense counsel’s alleged failure to use available information to impeach some of the State’s witnesses. All of these claims are without merit.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the United States Supreme Court clarified the standards governing ineffective assistance of counsel claims. To prove ineffective assistance the defendant must first demonstrate that his counsel’s performance failed to meet reasonable professional standards. Second, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In this case we are unable to conclude that counsel’s performance failed to meet reasonable professional standards. Even were we to so conclude, we find that any defects in counsel’s performance were not so severe as to demonstrate a reasonable probability of a different result absent the defects.

First, we do not find that counsel’s decision not to call Dr. Chung was a failure to meet reasonable professional standards. The United States Supreme Court has made clear that the proper standard for attorney performance is that of “reasonably effective assistance” (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064), which is “ ‘within the range of competence demanded of attorneys in criminal cases’ ” (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, quoting McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449). Given the variety of circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a defendant, "[jjudicial scrutiny of counsel’s performance must be highly deferential.” (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.) In fact, the defendant claiming ineffective assistance must overcome a strong presumption that the challenged action of counsel was the product of sound trial strategy and not of incompetence. (466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) The defendant has failed to overcome this presumption.

Defense counsel’s decision not to call Dr. Chung is a good example of the kind of on-the-spot, seat-of-the-pants attorney judgment which deserves judicial deference. Defense counsel’s decision as to whether to call Dr. Chung had to be made relatively quickly, and under fairly trying circumstances. While the medical reports containing Dr. Chung’s statement were available to counsel before trial, counsel was not aware until the prosecutor’s opening statement of the content of Theresa Woods’ testimony. Thus counsel had no way of ascertaining the value of the medical report up until that point. Once aware of the possible discrepancy between the testimony and the statement in the medical report, counsel prepared for eventual impeachment by cross-examining Woods about the discrepancy, as well as about other allegedly inconsistent statements she had made to Officer Daniels and Detective Perry. Presumably, at that point counsel was still acting on the assumption that the prosecution would call Dr. Chung as its own witness, and that he could complete the impeachment of Woods by cross-examining Chung.

Only on the day after Woods testified did defense counsel learn that the prosecution did not intend to call Dr. Chung. At that point, defense counsel was forced to decide whether to subpoena Dr. Chung as a defense witness, and perhaps whether to seek a continuance if necessary. As counsel testified, he was aware that the decision turned upon the value of Dr. Chung’s testimony. While he believed that Dr. Chung’s testimony might be valuable, he also believed that Woods’ testimony could also be substantially impeached by the testimony of the two police officers. As he testified at the hearing, he felt that further impeachment might only have confused the jury. Apparently the prosecutor’s statement that Dr. Chung was out of town, thus necessitating a continuance, tipped the balance against calling Dr. Chung as a witness.

Given the marginal value of Dr. Chung’s testimony, we are unable to say that this decision violated reasonable professional standards. Counsel was unaware of Dr. Chung’s own belief as to the meaning of Woods’ statement. He believed that the other inconsistent statements given by Woods to the two police officers adequately established impeachment. And while further investigation of the matter, such as a call to Dr. Chung herself, might have changed his assessment, we cannot conclude that his decision not to investigate further was in itself an unreasonable professional judgment. Counsel only has a duty to make reasonable investigations or to make a reasonable decision which makes particular investigations unnecessary; and the reasonableness of a decision not to investigate is assessed applying a heavy measure of deference to counsel’s judgment. (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.) Giving such deference, we find that counsel’s decisions regarding Dr. Chung were not unreasonable.

Even assuming that counsel’s decision regarding Dr. Chung was unprofessional, we cannot agree with defendant that there is a reasonable probability of a different outcome had counsel made a different, and a better, decision. We have already described above, in discussing the prosecutor’s failure to disclose Dr. Chung’s whereabouts, why we believe that Dr. Chung’s testimony would not have had any appreciable effect on the jury. For the same reasons we conclude that defense counsel’s decision not to call Dr. Chung did not deprive defendant of a fair trial.

Finally, as to the other claims of ineffective assistance which defendant raised at the hearing but which he failed to renew in his brief here, we find that defendant has also failed to demonstrate either a departure from professional standards or a reasonable probability that different decisions would have changed the outcome of the trial. As the trial court noted below, the extent to which an attorney should attempt to impeach a witness is often a matter of very fine tactical judgment, which should be given great deference by a reviewing court. We cannot say, on this record, that defense counsel’s decision not to impeach the police witnesses by use of the false claim in the police report was unprofessional. Defense counsel may well have believed that the jury would have believed that defendant’s arrest really had “cleared up” 30 prior crimes. Similarly, defense counsel’s decision not to cross-examine Theresa Woods about defendant’s missing tooth, speech impediment, and moustache may have been motivated by fear that Theresa Woods might state that she did not remember these details, or by the belief that the details were too minor to cast a significant doubt upon her credibility. In any event, it cannot be said, to a reasonable probability, that the use of this impeachment evidence would have changed the outcome of the trial.

Prosecutorial Comments in Summation

Defendant also claims that several different comments made by the prosecutors in closing arguments were so prejudicial as to deprive defendant of a fair trial.

In the first set of challenged remarks, the prosecutors argued that the jurors enjoyed “a unique opportunity *** to do something about crime.” Whereas in daily life “We listen to it on the news, in the newspaper ***. Everybody hears about crime. Nobody does anything about it. You have a unique opportunity to actually do something about crime on your streets.” Embellishing upon this theme, the prosecutor concluded, “You are the only ones that sit between this man, this ticking bomb, and that door.”

The remarks in this series were apparently intended to persuade the jurors to convict because by convicting they would prevent both crime in general, and further crime by this defendant. As such, they were proper. It is entirely proper for the prosecutor to dwell upon the evil results of crime and to urge the fearless administration of the law. (E.g., People v. Owens (1984), 102 Ill. 2d 88, 105-06; People v. Jackson (1981), 84 Ill. 2d 350, 360; People v. Wright (1963), 27 Ill. 2d 497, 500-01.) Moreover, this court has previously held nonprejudicial remarks which were nearly identical to the remarks complained of here, and equally harsh. For example, in People v. Benedik (1974), 56 Ill. 2d 306, 310-11, the prosecutor stated that he only wanted to “ ‘leave you with this, if this is a crime of violence, if a week from today or a month from today you may be seated at your breakfast table and you may be reading the newspapers and you may be saying to yourself, what, shaking your head in the negative, why isn’t something being done about the violence in society today?’ ” In People v. Owens (1984), 102 Ill. 2d 88, 105, the prosecutor stated that “ ‘[i]t’s a sad commentary on modern America that people all too often become prisoners in their homes at night. They are afraid to walk the streets because they fear that exactly what happened to George Kallai would happen to them.’ ” (102 Ill. 2d at 105.) Finally, in People v. Wright (1963), 27 Ill. 2d 497, 500, the prosecutor rhetorically asked the jury if they were going to let murderers walk the streets so they could kill someone else. Under these precedents, the prosecutorial comments in this case cannot be considered so prejudicial as to deprive defendant of a fair trial.

A second remark that defendant claims was so prejudicial as to deprive him of a fair trial was the prosecutor’s admonition to the jury: “Don’t be confused as the defense wishes you to be.” An objection to this comment was sustained. Defendant argues, correctly, that it is error for a prosecutor to accuse defense counsel of attempting to create confusion (see People v. Weathers (1975), 62 Ill. 2d 114, 120), or of fabricating a defense (see People v. Emerson (1983), 97 Ill. 2d 487, 498-99). However, the trial court’s act of sustaining an objection to such a comment, taken together with the trial court’s general admonition to the jury that it should disregard any comments to which the court has sustained an objection, may serve to alleviate any prejudice caused by a particular objectionable comment. (See People v. Clark (1972), 52 Ill. 2d 374, 390.) This is particularly true where, as here, the comment objected to was relatively innocuous. In both Weathers and Emerson, the two cases cited by the defendant, the challenged remarks were far more prejudicial. In Weathers, the prosecutor accused the defense attorneys of lying and of attempting to create a reasonable doubt by “ ‘confusion, indecision, and misrepresentation.’ ” (Weathers, 62 Ill. 2d at 120.) In Emerson, the prosecutor speculated that the defense attorneys knew that they had to “make something up,” and that they therefore concocted a spurious attack on the credibility of the chief witness for the prosecution. (Emerson, 97 Ill. 2d at 498.) In contrast, the comment here challenged did not go so far as to accuse defense counsel of deliberately misleading the jury. Under these circumstances the sustained objection and curative instruction served to dissipate any prejudice this statement may have caused.

Defendant also argues that he was prejudiced by the prosecutor’s statement that the standard of reasonable doubt is the “same standard that’s been used in this court room, in all the court rooms in this country, throughout the county, throughout the State, throughout the country, through our entire history. It’s nothing new. There is nothing different about that standard of proof. That standard of proof does not require perfection.” The quoted statement about the standard of reasonable doubt is nearly identical to the statements held proper in People v. Collins (1985), 106 Ill. 2d 237, 277. Since defendant has not attempted to distinguish Collins or to argue that it should be overruled, we perceive no merit in defendant’s argument.

Finally, defendant argues that he was prejudiced by the prosecutor’s comment that paraffin tests were no longer considered a reliable means of determining whether a person had fired a gun. The prosecutor’s comments were in response to defendant’s argument that the police should have administered a paraffin test to defendant, and were fairly based upon the testimony of an expert witness who stated that paraffin tests are no longer considered reliable because they can yield both falsely positive and falsely negative results. Therefore, defendant’s argument lacks merit.

THE SENTENCE

Defendant’s attack on his death sentence may be divided into two parts. In the first part defendant makes a number of claims of error relating to the court’s consideration of evidence that defendant killed Gary Green in 1969. In the second part, defendant launches a facial attack against the validity of the Illinois death penalty statute, alleging several different constitutional defects. We consider each part of defendant’s arguments in turn.

The 1969 Killing

As to the 1969 killing, defendant first claims that the State should have been barred from introducing evidence about the 1969 killing on the grounds of delay in prosecution, double jeopardy, res judicata, and collateral estoppel. In response, the prosecution claims that these arguments have been waived by defendant’s failure to include them in any of his post-trial motions. Because we believe that defendant’s sentence must be vacated on other grounds, we need not consider any of these arguments, or whether they have been waived.

Defendant next claims that evidence of the 1969 killing should have been excluded because it was neither relevant nor reliable, in contravention of our statute and case law (see Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(e); People v. Perez (1985), 108 Ill. 2d 70, 86). The State has not argued that this claim has been waived. Because we agree that the 1969 killing should have been excluded, we now vacate defendant’s murder sentence.

Defendant first argues, and we agree, that the trial court erred by considering the 1969 killing a “murder,” particularly in view of the fact that defendant has never been convicted of that crime, and has certainly never been proved guilty beyond a reasonable doubt. Thus, the trial court erred, at a minimum, in attributing to the 1969 killing far greater weight than it could possibly deserve. And while we normally presume that a sentencing judge only considers admissible evidence, we cannot say that the court here excluded the 1969 killing from consideration, given its own heavy emphasis upon the killing during its summary of the evidence.

Moreover, defendant argues, and we agree, that the trial court erred by excluding evidence of the prosecution’s reasons for moving to nol-pros the prior murder charge against defendant. Given the broad range of evidence traditionally considered probative in sentencing, it was surely error to conclude that the 1972 prosecutor's reasons for believing that defendant did not kill Gary Green in 1969 were irrelevant. The prosecutor stated, on the record, that the victim’s mother and brother had independently investigated the crime and had discovered that defendant was not the killer. The prosecutor’s statements were buttressed by the 1972 testimony of the victim’s brother. Moreover, the judge at the nolle prosequi hearing went out of his way to commend the prosecutor’s decision to nol-pros the case. Given these facts, the trial court’s decision to consider the 1969 killing “the murder of Mr. Green,” stating that “the evidence is positive and credible that the defendant did kill Mr. Green in 1969,” and at the same time to refuse to consider why the previous case against this defendant had been dropped, was in error.

We therefore hold that the evidence of the 1969 killing should have been excluded as irrelevant, both because of the 1972 decision to nol-pros the case based on evidence that defendant had not committed the crime, and because the trial court’s reliance upon the 1969 killing as an aggravating factor was misplaced. We further find that the evidence concerning the 1969 killing was unreliable.

The evidence admitted at a death penalty hearing must be both reliable and relevant. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(e); People v. Perez (1985), 108 Ill. 2d 70, 86.) In this case the evidence admitted was not reliable. This aggravating factor was a 15-year-old killing. As the trial court admitted in its summary of the evidence, the testimony of one of the prosecution witnesses, Rochester Green, was severely impeached by his prior inconsistent testimony at the 1972 hearing. While he attempted to explain the inconsistency by stating that he had simply “heard” in 1972 that a person named “Rat” had killed his brother, this explanation contradicts his testimony at the sentencing hearing that he was present when his brother was killed. As for the testimony of Lynn McDonald, it is impeached both by his statement that defendant shot Gary Green with a rifle, a statement flatly contradicted by the ballistics evidence, and by his membership in a rival gang. Therefore, the evidence concerning the 1969 killing was unreliable and should not have been considered by the trial judge.

While we normally indulge a presumption that a sentencing court only considers relevant and admissible evidence, that presumption is rebutted in this case by the court’s own summary of the evidence. That summary, and particularly the court’s characterization of the 1969 killing as a “murder,” makes clear that the court gave the evidence of that killing great weight in its decision. To do so was error and necessitates vacation of defendant’s death sentence and remand for a new sentencing hearing at which evidence of the 1969 killing will not be admitted. We turn now to defendant’s arguments for the unconstitutionality of the death penalty act.

Constitutional Challenges to the Death Penalty Act

The second part of defendant’s attack on his sentence consists of various arguments that the Illinois death penalty statute is unconstitutional. Defendant first argues that the statute is unconstitutional because the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, pars. 104 — 22, 104 — 26) improperly exempts from subjection to the death penalty those who need special assistance to stand trial. In our initial opinion in this case, we held that defendant waived this claim by failing to raise it in any of his post-trial motions. Defendant subsequently filed a petition for rehearing in which he cites People v. Bryant (1989), 128 Ill. 2d 448, as authority for the proposition that his claim should not have been deemed waived. We need not address the question raised in defendant’s petition for rehearing, however, because even if we assume without deciding that defendant’s claim has not been waived, defendant would not prevail on the merits of his claim. This court has previously rejected the argument that the statute is unconstitutional in exempting persons in need of special assistance from the death penalty (see People v. Ashford (1988), 121 Ill. 2d 55, 90; People v. Perez (1985), 108 Ill. 2d 70, 94-95), and we decline to reconsider these prior decisions.

Defendant next argues that this court should reconsider its holdings in those cases in which it has upheld the constitutionality of the Illinois death penalty statute against claims that the statute violates the eighth-amendment prohibition against cruel and unusual punishment because it does not contain adequate safeguards to prevent arbitrary and capricious imposition of death sentences. Defendant acknowledges that this court has rejected claims of unconstitutionality based upon: overly broad prosecutorial discretion (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531), inadequate comparative proportionality review (People v. Brownell (1980), 79 Ill. 2d 508), absence of written findings by the sentencer (People v. Gaines (1981), 88 Ill. 2d 342), inadequate pretrial notice of aggravating factors (People v. Davies (1983), 95 Ill. 2d 1), absence of a requirement to find that death is the appropriate sentence (People v. Free (1983), 94 Ill. 2d 378), and language in the statute allegedly allowing the sentencer to place the burden of proof upon the defendant (People v. Del Vecchio (1985), 105 Ill. 2d 414). The defendant’s sole ground for reconsideration appears to be that a single justice of the United States Supreme Court, with whom a second justice concurs, has dissented from denials of certiorari in a number of our cases, and has stated in these dissents that the Illinois statute is unconstitutional. (See Albanese v. Illinois (1985), 471 U.S. 1044, 1045, 85 L. Ed. 2d 335, 335-36, 105 S. Ct. 2061, 2062 (Marshall, J., dissenting from denial of certiorari); Gacy v. Illinois (1985), 470 U.S. 1037, 1038, 84 L. Ed. 2d 799, 799, 105 S. Ct. 1410, 1410-11 (Marshall, J., dissenting from denial of certiorari); Eddmonds v. Illin