People v. Jackson (145 Ill. 2d 43, 1991)

JUSTICE CUNNINGHAM

delivered the opinion of the court:

On September 25, 1986, an indictment was filed in the circuit court of Cook County charging defendant, Lawrence Jackson, with multiple counts of murder, attempted murder, armed violence, home invasion, armed robbery, aggravated battery, aggravated battery of a child, aggravated unlawful restraint, and residential burglary, in violation of various sections of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1(a), 10-3.1, 12—4(a), (b)(1), 12-4.3(a), 12-ll(a)(2), 18—2, 19—3, 33A —2). The State later chose not to proceed on some counts. On June 23, 1988, the State obtained guilty verdicts on all charges submitted for the jury’s consideration: four counts of murder, one count of attempted murder, one count of aggravated battery of a child, five counts of home invasion, five counts of armed robbery, and one count of residential burglary. The State requested a death penalty hearing. A sentencing hearing was commenced on June 24, 1988. The jury concluded defendant was eligible for the death penalty, finding that defendant was 18 years of age or older at the time of the murders (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)) and that statutory aggravating factors were present (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(b)(3), (b)(6), (b)(7)). The jury then heard and considered mitigating and aggravating evidence, ultimately concluding that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The circuit court, on September 7, 1988, sentenced defendant to death, 60 years’ imprisonment on the attempted murder, 30 years’ imprisonment for armed robbery and home invasion, and 15 years’ imprisonment for residential burglary. Defendant’s death sentence has been stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603).

The 18 issues raised in defendant’s brief are summarized as follows: (1) whether the prosecution’s expert witness incorrectly stated the law, and whether the witness and the prosecutor misled the jury so as to require reversal; (2) whether the prosecution violated discovery rules by withholding statements by defendant, his code-fendant, and an expert witness until such time as the statements were to be used against the defense, thereby creating reversible error; (3) whether the prosecution (a) gave adequate, race-neutral explanations for excusing black jurors with peremptory challenges, (b) prejudiced the jury at both the guilt-innocence and sentencing phases of trial with irrelevant victim-impact testimony, and (c) prejudiced the jury at sentencing by arguing that defendant had gotten “breaks” on prior convictions and that the law required imposition of the death penalty; (4) whether the trial court committed reversible error (a) by refusing to question prospective jurors as to whether they would automatically vote for the death penalty, (b) by stating in the jury’s presence that the jury would not impose the death penalty, (c) by allowing unreliable aggravating evidence at sentencing, and (d) by inadequately instructing the jury at the sentencing phase of trial; (5) whether reversal is required (a) where the jury found defendant eligible for the death penalty based upon an instruction which incorrectly included residential burglary, with armed robbery and home invasion, as a predicate felony for purposes of eligibility, and (b) where the prosecutor later incorrectly stated that capital punishment is appropriate for “murders that occur during the course of forcible felonies like home invasion, armed robbery, and residential burglary”; (6) whether the natural life sentence imposed upon a codefendant warrants reduction of defendant’s sentence to life in prison; and (7) whether the Illinois death penalty statute is unconstitutional.

Pursuant to defendant’s request, the circuit court, on September 15, 1987, entered an order directing Dr. Robert Reifman to examine defendant and file a report “as to his mental condition.” Reifman’s report, dated October 5, 1987, indicated defendant was fit to stand trial, and that defendant “was legally sane at the time of the alleged act.” On January 13, 1988, defendant filed a motion to suppress statements he had made to law enforcement officials. Defendant’s motion was denied on January 20, 1988. Also on that day, his codefendant requested a severance since he would be asserting defenses of drug intoxication and compulsion which implicated defendant. The court granted the severance. On January 26, 1988, codefendant made a motion for separate jury trials which defendant adopted. The court “denied” the motion, ruling that there would be separate, simultaneous trials with separate juries. In light of the court’s ruling, defendant, on February 18, 1988, moved to strike codefendant’s affirmative defense of compulsion. The court denied the motion. Additional pretrial motions were heard and denied on February 22, 1988. These motions included: a defense motion to preclude the State from “death qualifying” or “Witherspooning” prospective jurors; an alternative request which sought submission of questions to jurors, asking them if they would automatically vote for imposition of the death penalty if defendant were found guilty of murder; and a motion to declare Illinois’ death penalty statute unconstitutional. Prior to jury selection, the court reconsidered its rulings on defendants’ motions and granted a full severance.

Jury selection for defendant’s case commenced June 16, 1988. The State exercised eight peremptory challenges, three of which were directed toward blacks. In each instance, the prosecutor offered reasons for her action, and the circuit court found those reasons to be racially neutral. The jury chosen consisted of six white males, two white females, one black male, two black females, and one Hispanic female. The trial proper began June 20,1988.

The victims, Vernita Winder, her three daughters, Mark “Tiny” Brown, Vernita’s boyfriend, and Shirley Martin lived in apartment 210 at 1850 West Washington. Vernita’s daughters were six-year-old Urica (who was eight years old when she testified at trial), five-year-old Dana, and 18-month-old Shanita (Nicki). Urica testified that late in the evening, on September 24, 1986, she was watching television. There was a knock on the door and Urica asked who it was. A voice answered, “Bobbie.” Urica saw Bobbie and a man with him whom she had seen at a party at “Bobbie’s kid’s” house. That man was the defendant. Bobbie Driskel asked if “Tiny” was there and Urica said he was sleeping, but she would wake him up. Driskel asked for and received permission to use the bathroom. Defendant stood by the entrance to the apartment. When Driskel emerged from the bathroom, he went over to where “Tiny” (Mark Brown) was sleeping on the couch with an infant, Shanita (Nicki). Urica went to her bedroom, where her sister, Dana, was sleeping. Their mother, Vernita, came into the room, woke Dana, and took them into her room. Shirley Martin was already in the room. They tried to keep defendant and Bobbie Driskel out of the room by leaning against the door; however, defendant forced the door open. Shirley faced the defendant, who was holding a 12-inch long knife, and said, “I love you.” Defendant answered, “I don’t love you.” Defendant stabbed Shirley in the heart. Shirley slid down the wall, leaving the wall covered with blood. Defendant then left the room. Bobbie Driskel walked toward Urica and told her he was not going to “mess” with her. Driskel, who had a knife in his hand, then stabbed Urica in the stomach. Urica ran to the front room door, trying to get out.

Denise Adams, in apartment 310 directly above the victims’ apartment, heard what sounded like running through the apartment, a door slam and a little girl crying, “Let go of my mother before you kill her.”

Bobbie Driskel dragged Urica by her foot back into the room and began stabbing her again. The six-year-old held her breath, closed her eyes, rolled them up, playing dead, and Driskel then stopped stabbing her.

Driskel went to a dresser and said, “Damn, ain’t no money.” Urica continued to play dead until defendant and Driskel left. She got up and saw Shirley on the floor covered with blood. Shirley was not moving. Urica went to the front room where, she saw Dana, “Tiny” and her mother. Dana had blood all over her body and she was not moving. “Tiny” was on the couch. He had blood on his feet; half of his foot was chopped off and it was leaning back. Urica’s mother was behind the kitchen table. She had blood all over her body and was not moving. Urica got a drink of water and went to sleep.

Urica woke the next morning when she heard her cousin, Tony, and her mother’s friend, Cherrie, calling from outside the window. Later that morning, Urica’s 12-year-old cousin, Tamico, telephoned and asked to speak to Urica’s mother. Urica kept calling out Tamico’s name and Tamico told her, “Stop playing. Put Vernita on the phone.” Urica told her that she could not wake her mother up. Tamico, who lived on the fourth floor of the same building, came down to the apartment and Urica answered the door. Tamico saw that Urica had several stab marks on her stomach and arms. She was covered with blood and was still bleeding from some of her wounds.

Tamico walked into the apartment and saw the motionless bodies covered with blood. Tamico told her that she was going upstairs to get help.

Tamico woke her mother, Alice Winder, and told her to go to Vernita’s because there was blood all over the place. Alice Winder found Urica covered with blood with her stomach hanging out. She found “Tiny” on the couch, and he appeared dead. Dana and Vernita were also dead. Vernita was lying in the kitchen. Alice Winder asked Urica, “Who did this?” Urica replied, “Tiny’s cousin.” Alice Winder knew “Tiny’s” cousin, Bobbie. Alice left the apartment with Shanita (Nicki), Vemita’s infant daughter, who was evidently unharmed. Alice went to a neighbor’s house and asked that they call the police.

Urica was taken to the hospital where police spoke to her. She talked to an officer about what happened that night and picked photographs of defendant and Bobbie Driskel from a group of photographs the police showed her.

Dr. Demetra Soter treated Urica Winder at the trauma unit of Cook County Hospital. Urica had multiple stab wounds of her arms, hands, neck, chest and abdomen. When her condition was stabilized, Urica was taken to an operating room. During an eight-hour surgery, her blood pressure dropped approximately five times, requiring the administration of massive amounts of blood and fluid. A total of 18 drains and intravenous tubes were placed into her body. Attending physicians “did not think there was a very good chance that she would survive the next few days.” Urica was given very little pain medication because such medication tends to significantly lower blood pressure.

Urica continued to see Dr. Soter every two months for medical care; she was seen weekly for psychiatric treatment. Urica bears the scars from 48 stab wounds. She also has external and internal scarring from surgery.

Mark Brown’s mother, Dorothy Brown, testified that she received word at work that her son had been killed. She and her husband went to Mark and Vernita’s apartment building, where they encountered police cars, an ambulance and a crowd of people. She was escorted to the hallway outside her son’s apartment, where she spoke to a police officer and, thereafter, lost consciousness. When she regained consciousness, the police asked her where Bobbie Driskel lived, and she told them. Bobbie Driskel is her nephew. Later, Brown went to the medical examiner’s office, where she viewed her son and again fainted. Brown said her son and Driskel had been in contact during the months prior to September 1986. Mark Brown had told “just about everybody [he] knew” that he was saving money for a car. Alice Winder identified Vernita Winder and her four-year-old daughter, Dana, at the Cook County morgue. In the course of Winder’s testimony, she mentioned that she had three sisters, excluding Vernita. Annie Trotter, Shirley Martin’s aunt, testified that she identified Shirley’s body at the Cook County medical examiner’s office. Trotter testified, over objection, that Shirley had been going to school and was about to receive her GED, and that Shirley had a five-year-old son, Michael.

Dr. Robert Stein, chief medical examiner of Cook County, performed autopsies on the bodies of Vernita Winder, Dana Winder, Mark Brown and Shirley Martin. Vernita Winder’s body bore 55 incise wounds, including wounds to the back, breast, abdomen, upper chest, neck, temple, arms, legs, hands and wrists. Eleven were stab wounds; 14 were defense wounds to the hands, wrists or arms. Stein concluded Vernita Winder’s death was caused by multiple stab wounds of the neck and chest involving the carotid artery and the lung.

Four-year-old Dana Winder sustained 19 incise wounds, five of which were stab wounds and seven of which were defense wounds. Dana’s most serious wounds were those of the chest and abdomen. The stab wound to the abdomen caused a protrusion of the intestines through the wound. The child died of multiple stab wounds affecting the heart, lung and aorta.

Dr. Stein’s examination of Mark Brown revealed 29 incise wounds, 26 of which were stab wounds. Stein found a cluster of 10 incise wounds to the neck, as well as wounds to the chest, shoulder, arms, forearm, hand and a gaping wound of the right foot. Brown’s Achilles tendon and surrounding lesser tendons were severed. The cause of Mark Brown’s death was multiple stab wounds affecting the aorta, heart and lungs.

Shirley Martin sustained a total of 15 incise wounds of which seven were stab wounds and six were defense wounds. The cause of death was multiple stab wounds of the chest, affecting the aorta and lung; however, incise wounds were noted over a more extensive area of her body, including wounds to the back, leg and breast, as well as a gaping hole in the back of her ear.

Defendant and Bobbie Driskel were questioned by law enforcement officials on September 25, 1986, the day after the murders. Defendant had turned himself in to authorities. Detective Steve Peterson met with defendant, identified himself and the other detectives present, and told defendant why they had been looking for him. They accompanied defendant to an interview room where he was advised of his Miranda rights. Defendant acknowledged that he understood his rights and agreed to speak to the detectives. Peterson informed defendant that his name had come up in the investigation of a quadruple homicide. Defendant said he knew nothing about it, adding that he had been home all night the previous evening.

Assistant State’s Attorney Michael O’Donnell spoke with defendant at approximately 9:15 p.m. on September 25, after O’Donnell had first identified himself and advised defendant of his rights. O’Donnell asked defendant if he needed medical attention for cuts on his hand and arm. Defendant said he did not. O’Donnell then asked defendant what he had been doing the previous evening. Defendant replied he had been in his house all evening, smoking cocaine. O’Donnell expressed disbelief and asked defendant to explain how he had gotten the large cuts on his hand and arm. Defendant said he had been smoking cocaine when his pipe exploded in his hands. Again, O’Donnell questioned defendant’s story and cautioned him to “think about” what he was saying. At that point, defendant acknowledged his participation in the crimes and gave O’Donnell an oral statement, followed by a written statement.

According to defendant, he and Bobbie Driskel were smoking cocaine in defendant’s apartment on September 24, 1986. When they ran out of cocaine and money, and were unsuccessful in their attempts to obtain money to buy more cocaine, they decided to kill Driskel’s cousin, Mark Brown, and take his money, television and video recorder. They enlisted defendant’s uncle, O.C. Roland, to drive them to Brown’s apartment in the Henry Horner Projects, 1850 West Washington, in Chicago. Bobbie Driskel told Roland there was someone there holding merchandise for him. Defendant said he and Driskel planned their course of action on the drive to the apartment, speaking in whispers so Roland could not overhear them. They were armed with knives.

When they arrived at the projects, Roland parked in the back by a stairwell. Defendant and Driskel went upstairs to the second floor, to the first apartment “off the corner on the left.” Defendant handed Driskel a knife, then Driskel knocked on the door.

A woman answered the door and Driskel asked if “Tiny” was there. She said he was sleeping, but she would wake him up. Driskel asked for and received permission to use the bathroom. Defendant stood by the entrance to the apartment. When Driskel emerged from the bathroom, he went over to where Mark Brown was sleeping on the couch with an infant. According to defendant’s court-reported statement, Driskel got a cigarette out of his pocket and said, “Man, what are you going to do? What are you going to do?” Driskel then pulled out his knife and plunged it into Brown’s chest. Assistant State’s Attorney O’Donnell testified that defendant said he asked Driskel, “What are you going to do?” After Brown was stabbed he jumped up, at which point defendant grabbed Brown and began stabbing him to death.

By that time, the other people in the apartment had gone into a back bedroom and were trying to keep the door to that room closed by leaning on it. Defendant forced the door open and, as he did, one woman ran out, while another remained inside. Defendant stabbed the woman in the room, and later assisted Driskel in stabbing the woman who left the room, telling Driskel, “Kill her too.”

There were three children in the apartment. The baby had been on the couch with Mark Brown; the other two children were in the bedroom. One of the children in the bedroom ran out crying, “momma, momma,” after defendant had finished killing her mother. Defendant said Driskel grabbed that child and put his hand over her mouth. According to defendant, “I turned around. WTien I turned back around the kid was laying on the floor dead.” Defendant did not comment on the fate of the other child in the bedroom. When defendant and Driskel left the apartment, there was blood everywhere and no one was moving.

They took a television and video recorder. When they got downstairs, they had some difficulty getting the television into the car, so Roland got out and assisted them. Defendant said they took the television and video recorder to a residence at Washington and Laramie. Roland and Driskel carried the television and recorder upstairs to a second-floor apartment. Defendant stayed in the car, as he was bleeding from wounds he had sustained earlier. He explained, “WTien I was stabbing [the victims] I accidentally stabbed myself.” Driskel and Roland returned to the car, having sold the television and video recorder to “some stud” for $70 and a check. What happened thereafter is not entirely clear. In his oral statement, defendant said “they” went to buy some more cocaine, then returned to defendant’s apartment. In his written statement, defendant claimed he went to the “Cane spot.” He threw away his knife, but could not recall where.

When defendant’s statements were taken, he did not appear to be under the influence of drugs or alcohol and, in fact, said he was not. Defendant was alert, responsive to questions asked, and had no difficulty recalling or relating what had happened.

Partial corroboration of the trio’s whereabouts after the murders was provided by Phillip Simms, Mark Brown’s employer and Driskel’s former employer. At approximately 1 a.m. on September 25, 1986, Simms was awakened by a knock on the rear door of his apartment. Bobbie Driskel identified himself and Simms opened the door. Driskel asked Simms if he was interested in purchasing a video recorder and television which Driskel said belonged to O.C., his uncle; Simms said he was interested in seeing the items. Driskel went down the rear steps of the apartment to an automobile parked in the alley. Simms could see two other people by the vehicle, but could not identify them.

Less than five minutes passed before Driskel returned with the television, video recorder and an individual Driskel introduced as his uncle, O.C. Eventually, Driskel and Simms agreed upon a price of $120. After Simms checked both items and had satisfied himself that they were in working order, he gave Driskel $70 in cash and wrote Driskel a check for the balance. Driskel gave Simms a receipt, after which Driskel and the other man left.

After work, Simms listened to the evening news and learned what had happened to Brown. He called the Chicago police department and offered to turn in the merchandise Driskel had sold to him, which he did when the police arrived. He accompanied the police to the police station at Harrison and Kedzie in a squad car with O.C. Roland.

Oliver C. Roland — defendant’s uncle and the uncle of Bobbie Driskel’s wife — testified that on the evening of September 24, 1986, he had purchased approximately $130 worth of cocaine and, between 5 and 6 p.m., he and Bobbie Driskel had smoked between $80 and $110 worth of it. Defendant came to Roland’s residence around 6 or 7 p.m. At approximately 7 or 8 p.m., defendant began smoking cocaine with Roland and Driskel, and also smoked PCP-laced marijuana with them. Defendant later had some rum. Roland did not recall seeing defendant use heroin.

During the course of the evening, Roland drove Driskel and defendant to the Henry Horner Projects twice. On neither occasion did defendant and Driskel whisper to each other or talk of killing anyone or stealing anything. On the second trip, sometime after 10 p.m., they stopped twice along the way so that Driskel could find someone to buy “his” television and video recorder. Driskel had told Roland that they were going to the projects to pick up Driskel’s television and video recorder so they could sell the items and buy more cocaine.

When they arrived at the projects the second time, Roland parked in back and waited outside while defendant and Driskel went into the apartment complex. When they returned, defendant was carrying a television “in one hand”; his other arm was bleeding. Roland asked defendant what had happened to his arm. Defendant said he had cut it on some glass. Later, Roland asked defendant if he had burgled someone’s home. Defendant snickered. Roland got out to help defendant and Driskel put the television into the trunk, then got back in the car and drove to Phillip Simms’ apartment, where he and Driskel sold the television and video recorder to Simms for cash and a check. Defendant remained in the car because of his injury. They used the cash to buy more cocaine and, after doing so, returned to Roland’s home, where they smoked it.

Roland, who was approximately six feet tall and weighed about 170 pounds, testified that he had consumed $60 or $70 worth of cocaine, “hitting one joint” laced with PCP a couple of times, before his second trip to the Henry Horner Projects. He said he felt normal and had no difficulty driving.

During the course of the evening, Roland had no difficulty understanding what defendant was saying. He observed that defendant was not stumbling or falling down. In fact, defendant, who stood roughly six feet three or four inches tall and weighed about 290 pounds, adeptly carried a large television “in one hand.” Even later, after they had obtained and consumed more cocaine, defendant appeared to have no difficulty speaking, walking or maneuvering. Defendant never told Roland he could not remember where he had been or what he had done.

Roland, who consumed drugs with defendant and Driskel that evening, testified he had no difficulty remembering what happened the evening of September 24, with the exception of “minor details.” Roland said he believed cocaine made him more alert. Roland said he spoke with defendant on the telephone sometime after defendant had been arrested. Over a defense objection grounded on nondisclosure, Roland testified that defendant related what had happened in the apartment and acknowledged he had stabbed the occupants.

Defendant called Dr. Marvin Ziporyn to testify, ostensibly, in support of defendant’s drug intoxication defense. In February of 1988, Ziporyn interviewed defendant for approximately one hour at the Cook County jail. Dr. Zi-poryn also reviewed police reports, a transcript of O.C. Roland’s testimony, photographs, the report of Dr. Robert Reifman, a copy of the charges against defendant and defendant’s statements.

Initially, Ziporyn did a routine physical examination of defendant, noting defendant’s body language in the process. Defendant spoke lucidly and coherently. He was responsive and cooperative. His answers were direct. Zi-poryn observed no physical abnormalities.

Next, Ziporyn conducted a formal mental status examination in order to ascertain defendant’s orientation as to time, place and person, and to test his memory, ability to calculate, and ability to use “the ordinary logic of everyday life.” Thereafter, Ziporyn tried to ascertain defendant’s “general concept of his existence in life.” Zi-poryn concluded defendant exhibited “no marked or major mental issues.”

In the interview segment of the examination, defendant acknowledged that he had been involved in “a situation where four homicides occurred.” However, defendant said he had been under the influence of drugs at the time and his recollection of events was “very hazy.” He claimed he could supply only random details. Defendant told Ziporyn he did not know why the murders had taken place; however, he did have a “firm recollection” that he had not struck the first blow.

Defendant claimed to have taken phencyclidine (PCP) on the night of the murders. Ziporyn described PCP as a powerful chemical that affects, primarily, that portion of the brain which is responsible for reason, judgment and impulse control, Ziporyn said PCP causes confusion, agitation, poor impulse control and defective judgment. Social behavior becomes “maladapted.” A person using PCP becomes belligerent, truculent, fierce and unpredictable, according to Ziporyn.

Defendant also claimed to have taken cocaine and heroin. Ziporyn said cocaine acts as an exciting agent, tends to cause feelings of paranoia, and accentuates the effect of PCP. Per Ziporyn, heroin acts to prolong the impact of the cocaine. Ziporyn believed PCP would be the predominant agent, causing poor impulse control, poor judgment, belligerence and unpredictability. Defendant did not tell Ziporyn how much of each drug he had ingested, but he did not appear to Ziporyn to be malingering.

Ziporyn concluded defendant had appreciated the criminality of his behavior, but he had been unable to conform his behavior to the requirements of the law. Asked how one could appreciate the criminality of his behavior, yet not be able to conform to the law’s requirements, Ziporyn stated:

“Well, in the first place irrational behavior the individual involved does have the ability to formulate plans for it, it is just that the plans are irrational. So, it is not that you can’t plan anything or reason anything. You’re dealing with reason but you’re dealing with irrational reason.

Secondly, you can be aware that something is taboo, let’s put it that way, and yet not be able to help yourself. For example, supposing that I am in a public conveyance and I see a sign on the door, it says, sneezing forbidden, violator will be prosecuted. Now, my mind is telling me that I must not sneeze and yet I may not be able to prevent myself from sneezing because we’re dealing with different aspects of the brain and what can and cannot be controlled.”

Under cross-examination, Dr. Ziporyn conceded that two psychiatrists can examine the same subject and come to different conclusions. Variables inherent in examiners and examinations may result in divergent opinions. The personality of the examiner and his or her bias or philosophy may account for differing diagnoses. Zi-poryn acknowledged that he is a strict determinist who believes “all men are victims of their destiny and *** cannot escape their environment.” He has authored a book, entitled Born to Raise Hell, in which he espouses his views. Ziporyn does not believe in punishment for criminal acts. He conceded that he brought his philosophy with him when he evaluated defendant.

Furthermore, Ziporyn admitted defendant had not related the amounts of drugs he had taken, the purity of the drugs, the period over which they were taken, or the method of ingestion. Ziporyn took defendant at his word when he said he took the drugs.

Ziporyn noted that defendant had given a very detailed account of his participation in the crime, but Zi-poryn opined that PCP, cocaine and heroin have nothing to do with memory defects. Ziporyn was aware defendant had told Dr. Reifman that he was home with his mother when the murders were committed. According to Ziporyn, defendant was clearly attempting to put himself in the best possible light. Ziporyn had also considered the opinion of psychologist Karen Smith that defendant “displayed an understanding and an awareness of the situation but seem[ed] to hold the unrealistic belief that he [could] escape punishment by forgetting what happened.” Despite defendant’s failure to apprise Ziporyn of the quantity of drugs involved, Ziporyn nevertheless maintained that defendant could not have conformed his conduct to the requirements of the law.

The assistant State’s Attorney, Paula Daleo, then asked, “Doctor, isn’t it true that you told Mr. Brady [former assistant State’s Attorney] that you had told Ms. Stewart [assistant public defender] that you didn’t think much of this defense in this case?” At that point, an objection was interposed and a sidebar was requested and granted. The defense maintained that if there were notes or summaries of the conversation at issue, the State should have previously tendered them, and had not done so. Defense counsel noted that the entire drug intoxication defense was based on Dr. Ziporyn’s testimony. Daleo admitted she was in possession of Brady’s notes, summarizing the Ziporyn-Brady conversation. She offered no excuse for failing to tender Brady’s notes, other than her understanding that Brady had informed the defense attorneys of the conversation. Defense attorneys, Marc Miller and Neil Spector, denied being privy to the contents of Brady’s conversation with Ziporyn. Stewart did not participate in the sidebar conference. The court ordered Daleo to turn over Brady’s notes to the defense. Defense attorney Miller moved for a mistrial. That motion was denied. Thereafter, Daleo offered to withdraw her question. The court stated it intended to admonish the jury to disregard the question in the event the question was withdrawn. The court asked Daleo if she intended to withdraw the question, and the following colloquy ensued:

“MS. DALEO: Judge, I can prove up this.

THE COURT: Well, I don’t care if you can prove it. Please answer the question I’m addressing. Do you intend to withdraw or not, yes or no?

MS. DALEO: Judge, I’ll withdraw the question.

MR. SPECTOR: Judge, our motion for mistrial lies even if she withdraws it the jury has heard it and nothing that the Court can instruct them can take away the extremely prejudicial effect of having heard the question put to the doctor and the inference.

THE COURT: All right, the State has made the representation that they are withdrawing it. I will instruct the jury to disregard the question.

Motion for mistrial will be denied.

That is your intention, is that correct Ms. State’s Attorney?

MS. DALEO: Yes, Judge.”

The question was thereafter withdrawn in the presence of the jury and the jury was instructed to disregard the question. After further inquiry on a variety of subjects by the State and the defense, Dr. Ziporyn’s testimony was concluded and he was excused.

James O’Donnell, doctor of pharmacology, testified to the effects of cocaine, heroin and PCP on humans and his familiarity with those effects. Cocaine’s primary effect is that of a central nervous system stimulant. Persons intoxicated on cocaine are “described” to behave abnormally, and to have impaired judgment. Cocaine has been “associated with” violent and aggressive behavior.

Heroin is a central nervous system depressant. Mental and physical activity decreases while one is under the influence of heroin.

PGP’s effect on the brain is that of a tranquilizer. Reported physical reactions to the drug include violent behavior, severe dream reactions, amnesia and hallucinations.

Dr. O’Donnell interviewed defendant in February of 1988 at Cook County jail. Prior to the interview, O’Donnell reviewed police reports, pathology reports, statements of defendant and O.C. Roland, investigators’ reports and medical records. According to defendant, he began using cocaine and heroin at 7 p.m. on the night of the murders and used them continuously throughout the evening, purchasing additional amounts at 10 and 11 p.m. He said he used PCP “the following day along with marijuana and heroin.” Defendant told O’Donnell he started using marijuana when he was nine. In his early teens, he began using codeine and tranquilizers. At 17, defendant was arrested for an armed robbery which, according to defendant, was committed to get money to buy drugs. Defendant was jailed and, during his incarceration, experienced heroin for the first time. Defendant said he started using cocaine and PCP in 1985. Defendant described his experience with drugs as “long continuous chronic high use.”

Under cross-examination, O’Donnell acknowledged that a person under the influence of cocaine, heroin or PCP can perform normal functions. Although the ability to act knowingly and intentionally may be affected by those drugs, a person using them may nonetheless be capable of acting “knowingly, volitionally and intentionally.” O’Donnell conceded that he did not know how much cocaine or heroin defendant had ingested on the evening in question, nor was he aware of the purity of the drugs involved. O’Donnell acknowledged he did not know for certain what impact the drugs had on defendant, other than what defendant told him. If defendant lied, O’Donnell’s opinion might be affected. Although defendant claimed he was unable to remember what happened inside the apartment at 1850 West Washington, defendant gave O’Donnell a fairly detailed account of his drug usage on the evening of the murders.

Near the conclusion of his cross-examination, the prosecutor asked O’Donnell if he was aware that an “outside stimulus” could have a sobering effect on an individual under the influence of drugs. O’Donnell replied, “I have had that circumstance described to me by one person.” When he was asked who that person was, O’Donnell responded, “Mr. Driskel.” At that point, an objection was interposed, and the court ruled, “Objection is not relevant, it will be stricken.” Defense counsel did not ask for clarification of the court’s ruling. O’Donnell was then asked whether an injury to an individual under the influence of cocaine or heroin could have a sobering effect, and O’Donnell acknowledged that an injury might have such an effect.

At the close of cross-examination, defense counsel asked for, and was granted, a sidebar conference during which she moved for a mistrial. Counsel stated, in support of her motion, that the defense had requested statements by codefendant and had not been tendered Driskel’s statement concerning outside stimulus. The prosecutor, Assistant State’s Attorney Joseph McNerney, admitted he had had a telephone conversation with O’Donnell in which O’Donnell related Driskel’s statement. McNerney attempted to justify his nondisclosure by arguing, “This is their expert. I assumed that they have had much more time to speak with him ***.”

The court ruled:

“I find it was proper cross-examination. I sustained the objections that were to improper questions and also the answers.

* * *

I do not find that the State has violated the discovery by not tendering something when there was an interview of the defense witness. I do not find that it was done in bad faith.

Objection is overruled. Motion for mistrial is overruled. Let’s get on with it.”

Defense counsel proceeded with redirect examination.

During redirect, O’Donnell said although most people who take illegal drugs do so for the pleasurable effects, addicts or drug-dependent persons take drugs because of “the psychological and/or physical need to take the drugs.” O’Donnell indicated the fact that defendant took drugs voluntarily does not mean he was not drug-dependent on the date of the murders.

A defense motion in limine to bar Dr. Robert Reif-man’s testimony was denied. Reifman was called by the State. It was stipulated that Reifman was an expert in the field of psychiatry. Reifman, director of the Psychiatric Institute of the Circuit Court of Cook County, testified that he examined defendant on October 2, 1987. His examination took approximately 45 minutes. As part of his evaluation of defendant, Reifman reviewed police reports, defendant’s statements and the report of a psychological examination done by Dr. Karen Smith. Initially, Reifman determined that defendant was not suffering from a mental disease or defect. Defendant appeared to be “oriented, relevant, coherent, logical. There was no evidence of mental disease.” Later, under cross-examination, Reifman conceded that for purposes of statistical manuals, PCP intoxication and cocaine intoxication are considered mental disorders (substance abuse syndrome).

The next step in Reifman’s examination was to question defendant about the crimes in order to determine what his state of mind was when the crimes were committed. Defendant said he “didn’t do it,” that he had been home with his mother that evening. He claimed his statements to police were not true and had been contrived to protect his uncle. Defendant had previously told Dr. Smith he had no recollection of the incident. Since defendant denied involvement in his interview with Reifman, Reifman next turned his attention to defendant’s drug usage during the relevant time period.

According to defendant, he had been using cocaine, heroin and PCP. Reifman determined defendant had taken drugs voluntarily and was a heavy user who was probably addicted. Nonetheless, Reifman believed there was a “high possibility” defendant was lying about, or exaggerating, the extent of his drug use, as he was telling different stories to different people. Dr. Smith’s report indicated defendant had denied using alcohol, cocaine and heroin, although he admitted he had “started” using cocaine before he was arrested. Defendant had told Smith he had tried PCP and did not like it. In any event, irrespective of the seriousness of defendant’s involvement with drugs, Reifman believed defendant was not so intoxicated that he could not form intent or conform his conduct to the requirements of the law. Reif-man stated:

“It is my judgment after years of experience that anybody who’s so intoxicated that they can’t form intent, that that person would not be in a position to commit a crime. They would be so physiologically and mentally incapacitated they couldn’t carry out the crime.”

According to Reifman, such a person would be “unable to carry out coordinated motoric behavior, unable to coordinate thoughts adequate to performing the tasks which are required in the commission of a crime.”

At various times during his testimony, Reifman incorrectly and correctly stated the law with respect to the defense of voluntary intoxication, all the while representing that he was familiar with attendant legal consequences. Asked if voluntary intoxication could be a legal defense, Reifman responded:

“Not unless it’s so chronic that a person is permanently psychotic because of drugs. I don’t know of any psychiatric defense, affirmative defense, which includes voluntary intoxication unless it’s to the extent the person can’t function.

* * *

I’m not aware of voluntary intoxication as a defense against guilt or innocence, responsibility.”

Later, under questioning by the prosecutor, Reifman stated, “as far as the affirmative defense is concerned, the only part of that statute of intoxication is that a person who drinks enough voluntarily so he can’t form intent.” Having more or less correctly restated the statutory defense, Dr. Reifman reiterated his personal opinion:

“If a person is so intoxicated that he couldn’t form intent, he would be unable to perform the actions and the coordination and the mental, have the mental astuteness to be able to commit goal-directed activity, a crime, in my opinion.”

Dr. Reifman concluded that defendant was able to conform his conduct to the requirements of the law and did not do so because he did not care to.

Following Dr. Reifman’s testimony, both sides presented closing arguments. The State intermittently addressed defendant’s voluntary intoxication defense, noting first Dr. Reifman’s opinion that voluntary intoxication was not a defense in the case, and later referring to defendant’s statement: “Without a doubt they intended to kill. He said in his own statement, ‘We went there to kill Tiny.’ ” Defense counsel, in his own closing argument, treated more extensively the defense of voluntary intoxication:

“Obviously somebody, the legislature, felt that you could be intoxicated and act but not act knowingly or intentionally or they never would have created that defense.

And I think it’s important that you keep that opinion of Dr. Reifman’s in mind when you view the voluntary intoxication defense. If the man thinks it can’t exist, he’s not going to find it.

* * *

The one thing I would like for this trial not to become and for your deliberation not to become, ladies and gentlemen, is a battle of the experts. We presented an expert, the State has presented an expert. You are free to accept their testimony, their opinion. You are free to reject it.

And I point out to you, ladies and gentlemen, that you are the ultimate deciders of whether or not Lawrence Jackson was so intoxicated that night that he is entitled to the voluntary intoxication defense. If it were otherwise, we wouldn’t have juries in cases like this. We’d just leave it up to the experts.

What I’m saying to you is if you feel that you are not satisfied with Dr. Ziporyn’s testimony, if you feel you want to reject it, that is your right, but that does not necessarily mean that therefore the defendant cannot have the defense available to him.

You’ve heard the facts. You’ve heard the opinions. You and only you make the decision.”

At the conclusion of closing arguments, the jury was instructed in the applicable law. Included among those instructions was Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.02 (2d ed. 1981) (hereinafter IPI Criminal 2d), which reads as follows: “A drugged person is criminally responsible for his conduct unless his drugged condition renders him incapable of acting knowingly and intentionally.” The jury returned verdicts of guilty of the murders of Vernita Winder, Dana Winder, Mark Brown and Shirley Martin, the attempted murder and aggravated battery of Urica Winder, the home invasions and armed robberies of each of the five victims and residential burglary. The court entered judgment on the verdicts.

The State indicated it would seek the death penalty and the cause proceeded to the eligibility phase. All of the evidence at the eligibility phase was presented by way of stipulations. It was stipulated that a certified copy of defendant’s birth certificate indicated he was 23 years old at the time of the offense, that Dana Winder was four years old when she was murdered, that all of the trial evidence was admissible and could be considered, and that Group Exhibit Nos. 37 — A through K consisted of the certified jury verdicts returned in the guilt phase of the trial. On the foregoing evidence, the jury found defendant eligible for death, specifically finding that defendant had murdered two or more persons, that Vernita Winder, Shirley Martin and Mark Brown were killed in the course of another felony, and that Dana Winder was under the age of 12 and her death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.

The cause proceeded to the second phase of the death penalty hearing, the State offering evidence in aggravation. Gigga Bibbs testified that, on the evening of September 28, 1980, she and her seven-month-old daughter were sitting on a bench at a bus stop near Lake Street and Austin Avenue in Chicago when defendant and another man robbed her. During the robbery, defendant grabbed her purse and struck her in the face, bruising her lip. Defendant was apprehended a short distance away from the scene of the robbery, hiding in some weeds. Bibbs identified defendant, and her property was restored to her. Defendant received a three-year sentence for robbery.

Officer Lawrence Beyer of the Chicago police department testified that he was on patrol on September 28, 1980, near Lake Street and Austin Avenue when he was hailed by Gigga Bibbs, who informed him she had just been robbed. Bibbs gave Beyer a description of the perpetrators and Beyer toured the area looking for the robbers. Officer Beyer found defendant nearby, lying among some weeds in an empty lot. Defendant was arrested and, as he was being placed in a police wagon, he told Beyer, “I’m going to kill you and everyone as soon as I get out of here.”

It was stipulated that, on October 20, 1980, an information was filed in Cook County charging defendant with armed robbery. On February 5, 1981, defendant was found guilty of the lesser included offense of robbery and was sentenced to three years in the Department of Corrections.

Assistant State’s Attorney William Gamboney testified that, in 1981, defendant was charged with “failure to return.” Defendant had been serving time in prison on a robbery conviction when, a few months before his release date, he was transferred to a community-based facility designed to help him “assimilate himself” back into society. One day defendant signed out on a six-hour furlough and never returned. An indictment was filed and a warrant issued for his arrest. On December 15, 1981, defendant was convicted and sentenced to two years in the Department of Corrections.

Officer Joseph Pedersen of the Chicago police department testified that, on September 24, 1980, he responded to a radio message indicating shots had been fired in the vicinity of his patrol car. At 14 North Parkside in Chicago, the officer observed defendant drop a long object over a fence into some bushes. Defendant fit the “clothing description” of the person alleged to have been firing shots. When defendant saw the squad car, defendant proceeded “in a fast pace” north toward Washington Boulevard. Defendant was apprehended and returned to 14 North Parkside, where Officer Pedersen recovered a 410-gauge shotgun from the bushes. On October 7, 1980, defendant did not appear for court as scheduled. His bond was forfeited and a warrant was issued for his arrest.

Francis Higgins, an officer with the Chicago police department, testified that he was on patrol October 24, 1985, when Vincent Rowe flagged Higgins down and related that defendant had burgled Rowe’s residence in the Henry Horner Projects, 1900 West Washington. Rowe said he had seen defendant running from the building. Defendant was Rowe’s cousin. Among the items reported taken were a receiver, turntable and television. Officers proceeded to defendant’s residence, where Higgins stationed himself out of sight near the rear door, and other officers went to the front door. About 20 seconds later, defendant came out the back door. He was arrested and searched. A small kitchen knife was found in his pocket. Later, a witness to the burglary identified defendant as the man she had seen carrying a television in a stairwell of the building on the day of the burglary. Charges were filed, but were later dropped by the State when the victim chose not to proceed with the case.

Cameron Forbes, a Department of Corrections records officer, testified that defendant was received at Joliet Reception Classification Center on February 27,

1981, with an accompanying mittimus indicating defendant was to serve three years for robbery. Defendant was classified for the Joliet Correctional Center and was transferred there on April 8, 1981. On July 20, 1981, defendant was transferred to the Metro Community Correctional Center, a community-based work release facility, where he remained until August 27, 1981, when he was placed on escape status. On August 27, 1981, defendant signed out of the center to go to a work assignment; he did not return, remaining under escape status until he was returned to Joliet Reception Classification Center on December 18, 1981. Defendant was subsequently transferred to the Pontiac Correctional Center on January 18, 1982, where he remained until his parole on November 15, 1983. He was discharged from parole on November 15,1985.

Between December of 1981 and November 15, 1983, defendant was cited for 53 disciplinary violations, 31 of which were for unauthorized movement within the correctional facility. The remaining violations were generally of a more serious nature. On December 23, 1981, defendant was cited for attempting to strike a correctional officer with a broom handle. On May 22 and 23, 1982, he was cited for jamming his cell door with a pencil so as to keep the door from locking. A shank (crudely fashioned knife) was found in defendant’s cell on August 3, 1982. Defendant approached a teacher, Brian Tessor, on February 3, 1983, telling Tessor he would kill Tessor if he ever saw Tessor on the streets. Defendant waved his hand in Tessor’s face, pointed his forefinger at Tes-sor, and called Tessor a “mother fucker.” Defendant was instructed to leave, but remained in front of Tessor’s desk, verbally abusing Tessor. Defendant was again cited for jamming his door open, this time with a piece of paper, on May 12, 1983. On October 11, 1983, defendant refused to provide identification upon the request of a correctional officer. Defendant told the officer, “[Y]ou better get away from me.” When asked again, defendant came at the officer as if to swing at him. Moving within inches of the officer’s face, defendant said, “[Yjou’d better just go and get out of here before you get hurt.” It was not until a weapon was leveled on defendant from a gun tower that defendant backed away and furnished his identification.

Sandra Thomas, a social worker with the Cook County Department of Corrections, testified as to defendant’s conduct while within Cook County’s correctional system. Defendant was charged with fighting and gambling on February 13, 1987. Defendant explained that another inmate had been cheating at cards so defendant hit him. On July 8, 1987, defendant was charged with fighting and gang activity. Defendant admitted he was a member of the Vice Lords. Defendant is in fact a ranking member of the Vice Lords, a leader in that organization. A shank was found under defendant’s mattress on July 29, 1987. Defendant admitted it belonged to him. On August 6, 1987, defendant was cited for fighting with a correctional officer. The officer had ordered defendant to move to a different wing of the facility. Defendant refused and, in the officer’s presence, received contraband from another inmate. The officer ordered defendant to turn over the contraband, to which defendant replied, “I ain’t giving up shit.” Defendant then pushed the officer, who was subsequently treated at Cermak Hospital for injuries to his hands.

In April of 1988, defendant was charged with refusing to obey an order, threats by words and possession of a weapon. Defendant had refused a search and had told the officer involved that “he and his people would kick [the officer’s] ass and any other officers who came to wing 2-J.” Defendant called upon other inmates to attack the officers. When other officers arrived on the scene, defendant was searched and a sharp metal object-thought to be a knife — was found on his person. On April 25, 1988, defendant was transferred to a maximum security detention division. On June 7, 1988, defendant was charged with assault for striking another inmate in the eye. Defendant pled guilty to the charge.

Cook County correctional officer Kelly Byrne testified that she had written disciplinary reports concerning defendant on “several” occasions. Some were for fighting; others were for sexual misconduct. Byrne was working midnights on January 21, 1986, and on that date ordered defendant to return to his bunk. Inmates were to be confined to their bunks after midnight. Defendant went to his bunk and, as he lay down, he took his penis from his underwear and began to masturbate while looking directly at Byrne. Byrne left the dormitory and reported the incident. Defendant was removed to segregation for three or four days. When he was returned, he began exposing himself to Byrne almost daily. In April or May of 1986, defendant looked at Byrne and, in an apparently menacing manner, asked how her little girl was doing. Sometime around June of 1986, defendant walked by Byrne and said, “I’ll find you and I’ll get you.” After defendant’s remark, Byrne showed her elderly babysitter where Byrne kept her weapon and instructed the woman to use it if anyone tried to enter the house. Byrne began carrying a weapon off duty after defendant was released.

The State rested, and defendant proceeded with evidence in mitigation. Arlene Jackson, defendant’s mother, testified that defendant’s childhood was, for the most part, unremarkable. In her own words: “[H]e was a natural son. He was okay you know when he was younger, no problems except kid problems.” The family lived in Cabrini Green. Defendant’s mother was on public aid; there were two or three Christmases when she was not able to provide presents to her children. In 1966, defendant saw his brother, Edward, killed when a car hit him. Defendant “used to talk about it a lot,” but had not recently indicated Edward’s death still impacted his life. Defendant’s father left in 1968. He went to Oklahoma and has not maintained contact with the family. Defendant “missed him a lot.” Defendant started getting in trouble in school around 12 or 13 years of age. He quit high school after one year. When asked why, his mother responded, “I guess he just didn’t like going.” Defendant helped around the house in his youth. He was, according to his mother, never disobedient, nor did he ever strike her. She did not know about defendant’s gang affiliation, nor was she aware defendant was using cocaine, heroin and PGP. Defendant’s mother said defendant has a good relationship with other family members. She would rather see him spend the rest of his life in prison than die. She would continue visiting him. Asked if defendant’s life meant something to her, she replied, “Yes, he is still my son.”

Defendant’s brother, Ronald Jackson, testified that he and defendant were “always close” as children. Defendant warned Ronald about drugs and gangs. Ronald was surprised when he learned defendant was using cocaine. Growing up, defendant had tried to help around the house and help take care of the rest of the family. He was always big, so people used to tease him. Sometimes defendant would get mad and “a fight might break out.”

Josephine Halmon testified she had known defendant since he was nine years old. She met him when she and her family were moving to a new residence. Defendant asked if he could help, but she told him he was too small. Thereafter, defendant lived with her “off and on,” staying with her son. He looked upon her as a second mother and she treated him as a son. While he lived with her, he helped around the house cooking, cleaning and running errands. He was never any trouble to her. He did not do drugs in her home or engage in gang activity. Halmon said she would feel “hurt” if defendant received the death penalty, but “okay” if his life were spared. She said seeing photographs of the victims would not change her opinion of defendant.

Alicia Jackson, defendant’s sister, testified as to her relationship with defendant. For a time, defendant resided with her, her two children, and her husband, Bobbie Driskel. Defendant baby-sat for her while she attended Catherine College. Defendant fed the children, took them to the park, washed their clothes, cooked and cleaned. She was aware defendant used drugs. When defendant was high on cocaine he was “happy *** nothing bothered him *** just sweet.” When he was “coming down from the fix of cocaine” he was “down *** moody. Everything irritated him.” He essentially had two different personalities.

As a child, defendant was “kind of fat” and, as a result, a lot of kids “messed with him and wanted to jump on him.” Notwithstanding, defendant had a “nice attitude,” according to his sister, although he was “a loner, kind of quiet, kept to himself.” Defendant told her at the time that other kids “kept jumping on him” because “he wouldn’t join a gang.” When defendant was in his teens, he began stealing and breaking into people’s houses in order to get money to buy drugs. He sometimes stole from his own relatives, as was the case when defendant burglarized the residence of Vincent Rowe. Defendant’s sister acknowledged that defendant had never had “a real job.” Ms. Jackson testified that defendant warned her and her brother, Ronald, not to use drugs, not to make the same mistakes he had. She said she loved her brother and it would make her happy if the jury spared his life.

After Ms. Jackson’s testimony, the defense rested and the State declined the opportunity to present rebuttal. Closing arguments were then had by both sides. Defendant complains of a portion of the State’s closing argument in which the prosecutor (1) contended that defendant had already gotten “breaks” from the criminal justice system and did not deserve another, and (2) urged the jury to follow the law and impose the death penalty, noting that defendant “failed to raise mitigating factors *** sufficient to preclude the imposition of the death penalty.”

Following closing arguments, the jury was instructed in the applicable law. The court refused to specifically instruct the jurors that drug use and lack of significant criminal history were mitigating factors, or that they could recommend mercy whether or not they found mitigation. Although the court instructed the jury that defendant would receive a sentence of natural life imprisonment if the jury found mitigating factors precluded the imposition of the death penalty, the court refused defense verdict forms which would have reiterated that proposition.

The jury voted to impose the death penalty. Defendant’s post-trial motions were denied. As to each count of murder, the court imposed a sentence of death by lethal injection. Defendant received a 60-year sentence of incarceration for the attempted murder of Urica Winder. On the five counts of armed robbery and home invasion, defendant was sentenced to 30 years in the Department of Corrections. He received a 15-year sentence for residential burglary. In this posture, the matter comes before us.

Voluntary Intoxication Defense

Defendant’s stated defense at trial was one of voluntary drug intoxication, although defendant does not contend in this appeal that the State failed to prove him guilty beyond a reasonable doubt as to that issue.

. Viewing defendant’s ev