People v. Ramey (151 Ill. 2d 498, 1992)

JUSTICE MORAN

delivered the opinion of the court:

The defendant, Irving Ramey, was indicted along with Joe Gant by a Cook County grand jury for, inter alia, the murder of Derrick Quincy Wilkinson. Defendant was tried separately and a jury found him guilty of murdering Wilkinson and of committing the following additional offenses: home invasion, aggravated unlawful restraint, and possession of a stolen motor vehicle. He was sentenced to death on the murder charge; to 60 years for home invasion, to 6 years for aggravated unlawful restraint, and to 7 years for possession of a stolen motor vehicle. The death sentence was stayed (134 Ill. 2d R. 609(a)), pending direct review by this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603).

Defendant raises the following pretrial issues: (1) whether he was denied equal protection of the laws when the State exercised its peremptory challenges against African-American venirepersons; (2) whether the court erred when it did not require the State to articulate a reason for its challenge to an African-American venireperson; (3) whether he was denied effective assistance of counsel when his attorney failed to move for the dismissal of the charges because he was not tried within the statutory time limit (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5); and (4) whether he was denied his Federal right to a speedy trial.

Defendant raises the following issues relative to the guilt phase of the trial: (1) whether the court erred in admitting evidence under the co-conspirator exception to the hearsay rule; (2) whether he was denied his constitutional rights when Gant’s out-of-court testimony was admitted through the testimony of third persons; (3) whether he was denied a fair trial when the prosecutor asked leading questions of the State’s key witness; (4) whether the State’s remarks during closing argument denied him a fair trial; and (5) whether the court erred in giving the jury an instruction not found within the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (hereinafter IPI Criminal 2d), relative to felony-murder.

Defendant raises the following issues concerning the sentencing hearing: (1) whether the court improperly instructed the jury at the eligibility phase of the death penalty hearing and thus sentenced him in an arbitrary and capricious manner; (2) whether the court erroneously instructed the jury at the aggravation and mitigation phase of the hearing; (3) whether his death sentence should be vacated where the statutory aggravating factor was also an element of the home invasion offense; (4) whether the prosecutor’s remarks during the aggravation and mitigation phase were in violation of Federal and State law; (5) whether unreliable aggravating evidence was admitted at the second stage of the hearing; and (6) whether his death sentence should be vacated because an alternate juror served in place of an original juror during the second phase of the death penalty hearing.

Lastly, defendant challenges the constitutionality of the death penalty.

The State presented the following evidence at defendant’s trial. Charles Roof, a Hazel Crest police officer, testified that he and his partner responded to a call at a townhouse building located at 2125 West 171st Street. When he arrived, he saw a woman yelling from an upstairs window. He entered the residence and proceeded to an upstairs bedroom where he saw a hysterical woman (Regina Dunn) handcuffed to a man (Derrick Quincy Wilkinson). He rolled the man over and “observed a large amount of blood from approximately his neck to his waist.” The paramedics were called and they cut the chains that linked the two victims together.

Regina Dunn was called to the witness stand and her testimony was as follows: she lived at 2125 West 171st Street with her three children and her fiancee, Wilkinson; her fiancee operated a business in which he repaired and rented electronic equipment; on occasion, he would bring some of the equipment home; on July 31, 1986, she was awakened by someone who covered her face, put a sharp object to her neck, and threatened to kill her if she moved; she was unable to see who was in the room, but she thought there were at least two people in the bedroom because she remembered hearing two different voices; she was gagged, her feet were tied, and after hearing “metal rattling,” she felt a brace placed around her wrist; the intruders left the bedroom and she heard them go downstairs; she then heard things being rolled out the front door; after she no longer heard noises from downstairs, she sat up and shook the pillow from her face; she noticed that Wilkinson was lying on his stomach and that his hands were cuffed behind his back; her hands were cuffed in front of her, but they were pulled to one side because her hands were linked to Wilkinson; she hollered from the window for help and, eventually, police and fire department personnel came to her aid; as she was taken to an ambulance, she noticed that the contents of her purse, as well as the contents of her fiancee’s wallet, were strewn about the room; she also noticed that her car, a 1972 Chevrolet Nova, and her fiancee’s automobile, a 1975 Blazer, were missing; after being released from the hospital, she noticed a number of electronic items at her home were also missing; she told the police that a scratched Teac cassette player and a General Electric video cassette recorder (VCR) were missing; and she knew Joseph Gant because when her girl friend Martha Travis and Travis’ five children lived with her at the townhouse (from the fall of 1985 to the spring of 1986), Gant would visit one of Travis’ daughters.

Dr. Eupil Choi conducted a postmortem examination of Wilkinson and found that he died as a result of a single stab wound to the chest.

Edward O’Brien, an evidence technician employed by the Hazel Crest police department, testified as follows: on August 1, 1986, he was assigned to work on the Wilkinson homicide and he traveled to the scene of the crime; while there, he found, at a distance of approximately 50 feet from Dunn’s townhouse, a butcher knife lying in the street — the knife tested negative for blood stains and no suitable fingerprints were found on it; he recovered two pairs of handcuffs, one pair was taken from Dunn and the other pair was taken from Wilkinson; during the night of August 1, 1986, he went to Chicago and photographed a Chevrolet Nova that belonged to one of the victims; the car was located at the southeast corner of St. Louis and Ohio Streets; he retrieved a serrated steak knife from the floor of the car — the knife tested negative for blood stains and one print was found on it, but it did not compare with defendant’s prints or anyone else believed to be connected to the case; and on August 7, 1986, he photographed the other vehicle that was reported missing from the Dunn residence, a Chevrolet Blazer.

Gerald Jackson, a Hazel Crest resident, testified as follows: he knew Gant and he saw defendant and Gant “together a lot”; he received a telephone call from Gant at about 10 p.m. on July 31, 1986; during this phone call, Gant told him that he wanted Jackson’s handcuffs because he and the defendant were going to a disco and that they intended to wear the handcuffs on their belt and “mess around with them”; Jackson put two sets of handcuffs and two sets of keys in his mailbox; Gant was going to pick up the handcuffs sometime after their phone call; the following day, August 1, 1986, he looked in his mailbox and noticed that the handcuffs and keys were gone; and he identified the State’s exhibits as his two handcuffs, but noted that the handcuffs were now cut apart.

Bartholomew Veal, a former high school classmate of the defendant, testified as follows: on July 29, 1986, Gant visited his house and stated that he and the defendant wanted to burglarize a house at 171st Street in Hazel Crest; Gant informed him that “VCRs, color t.v.s, stereo equipment, [and] all types of electronic equipment” were at this location; Veal told Gant that he did not want to get involved; on July 30, 1986, Gant returned to Veal’s house, but this time he was accompanied by the defendant; they each asked Veal if they could use Veal’s mother’s gun and Veal answered no; defendant and Gant then told Veal that they planned to break into a residence on 171st Street wearing gloves and ski masks, and that they were going to handcuff and gag the occupants of the home; on August 1, 1986, he learned from a news report that someone was murdered at 171st in Hazel Crest; the following day he telephoned Gant and recognized defendant’s voice as the party who answered the phone; Veal told defendant, “ ‘You guys did it’ ’’ — defendant then hung up the phone; defendant and Gant visited his house on August 3, 1986, and they brought a turntable and two VCRs with them; they asked Veal if he could “get rid of them”; Veal decided not to get involved and he then made a number of anonymous phone calls to the Hazel Crest police department in which he named Gant and the defendant as the perpetrators of the crime on 171st Street.

Gary Jones, a detective employed by the Hazel Crest police department, testified as follows: he was assigned to investigate a homicide at 2125 West 171st Street; Gant was named by Dunn as a possible suspect, so he interviewed Gant; after he talked with Gant, he interviewed a woman named Dee Ramey (defendant’s sister) who resided at 658 North Christiana in Chicago; on August 1, 1986, he learned that a car matching the description of Dunn’s car was found in Chicago; he then traveled to a vacant lot at the intersection of St. Louis and Ohio Streets in Chicago, where he found a Chevrolet Nova that was registered to Dunn; the lot was located approximately two blocks from Dee Ramey’s residence; on August 7, 1986, he learned that an automobile which belonged to Wilkinson was recovered in Chicago; he traveled to the 3500 block of West Chicago Avenue where he found a Chevrolet Blazer abandoned in an alley; the Blazer was located “[t]wo to three blocks away” from Dee Ramey’s residence; Jones was given two handcuff keys from Jackson and the keys operated the handcuffs that were removed from Dunn and Wilkinson; he received an anonymous tip that the defendant was attempting to sell stolen VCRs; and he then contacted the State police and requested assistance.

Two State police officers, Jeffery Vlcek and Eric Echols, testified that they assisted the Village of Hazel Crest in the investigation of a burglary. While working undercover, Vlcek purchased a VCR from the defendant and Echols purchased a Teac cassette player from him also. These two items matched the description of the electronic equipment reported stolen by Dunn.

The following evidence was admitted by way of stipulation: blood stains found at the crime scene were analyzed; except for a blood stain found on a pillow case (in which the blood found there could have originated from Dunn or the defendant), nearly all other blood stains that were tested could have originated from Wilkinson or Gant; and defendant’s and Gant’s prints were found on a Panasonic Omnivision set — an item “which was not a proceed from the crime.”

John Campbell, who had three prior felony convictions, met the defendant while they were both incarcerated in the Cook County jail. Campbell testified that defendant told him the following information about a home invasion that defendant admitted he had committed in Hazel Crest: defendant and two other guys, one named Joe, planned a burglary of a home in Hazel Crest because it contained “unique stereo and video equipment”; Joe had secured some handcuffs and defendant was pushed through an open window of the house; they entered a bedroom occupied by two adults; Joe restrained the woman and defendant “hit [the man] a couple of times with the knife”; the man and woman were both handcuffed; stereo and video equipment was loaded into one of the victims’ cars; and they drove from the scene of the crime in the victims’ cars and took the equipment to defendant’s sister’s house on North Christiana in Chicago. Campbell contacted the State’s Attorney’s office and informed it of what defendant had told him. Campbell stated that he informed the authorities because he hoped it would affect his prison sentence and he also considered the murder hideous.

The defense called Annabelle Haywood, defendant’s legal guardian, who testified that on August 2, 1986, Gant and defendant entered the bedroom of her home. Gant then offered to sell her a VCR, but she refused to buy it. Haywood further testified that defendant’s older sister, Dee Ramey, lived at 648 North Christiana, and that during the months of July and August 1986, defendant would sometimes stay over at his sister’s house.

Robert Ross testified that in the latter part of July 1986, he, defendant, defendant’s brother Sean, Michele Kelly, and Lorenzo Crockett went to Dee Ramey’s house in Chicago. He socialized at Dee’s place after midnight. He and defendant fell asleep, and the next morning, they returned to Hazel Crest.

Michele Kelly, who dated Sean Ramey, testified that on the night of July 31, 1986, and into the early morning hours of August 1, 1986, she, along with Sean Ramey, Crockett, Ross, and the defendant, gathered at Dione (Dee) Ramey’s house on North Christiana in Chicago. As she left Dee’s house around 2 a.m., she recalled that Ross and the defendant were still there.

The defendant’s testimony essentially corroborated the testimony of Ross and Kelly as to the events of July 31, 1986. Defendant also stated that Gant came to his house and attempted to sell a VCR. Defendant later purchased some electronic equipment from Veal and he sold two items to the two State police officers who had previously testified. On November 26, 1986, he spoke with two Hazel Crest police officers who told him details of a crime that had been committed. According to the defendant, he merely related to Campbell what the police had told him.

The jury found the defendant guilty of Wilkinson’s murder. He was found eligible for the death penalty, and after a hearing in aggravation and mitigation, the jury sentenced defendant to death.

PRETRIAL ISSUES

Defendant’s first contention is that his equal protection rights were denied when the State peremptorily challenged three African-American venirepersons. The record shows that of four African-Americans who survived a challenge for cause, the State exercised peremptory challenges against three of them. On the other hand, of nine non-African-American venirepersons who survived a for-cause challenge, only three were excused by the State. During jury selection, defendant objected to the State’s use of its peremptory challenges against African-American venirepersons. The court found that a prima facie showing of discrimination had been made, and ordered the State to provide a race-neutral explanation for the challenges to venire members Patricia Stevens, Percy Gray, and Michael Jones.

Stevens. The State maintained that it struck this venireperson because of: her “physical characteristics and her mannerisms”; her nervousness; her hesitation in answering questions; “the kind of answers she gave”; the way she responded to questions that were asked in accordance with Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (questions are asked in order to find out veniremembers view of capital punishment); and the fact she had served as a juror in a civil matter.

Gray. The State reasoned that he was a church deacon and was equivocal “[i]n his answers to the Wither-spoon questions.” Several of the questions during voir dire had to be repeated and “[h]e appeared outwardly confused by way of his demeanor and mannerisms.” In addition, the State opined “that he was confused over simple matters of law.” The State noted further that he had previously served as a juror.

Jones. In response to questions asked pursuant to Witherspoon, he initially stated that he had strong feelings against the death penalty. The State also commented that “[h]e hasn’t worked in over three years.” His mannerisms and demeanor caused the State some concern. Moreover, the State supplied the court with a criminal history sheet of a person named Jones, whose birthday was the same as the venireperson.

The court ruled:

“I have considered it very carefully and thought about this motion very carefully, and there was equivocation on the part of Stevens and Gray and, frankly, of Michael Jones. And their demeanor and the manner in which they answered questions caused some doubt in my mind. I have the notes here in my book, but I’m — I’m going to tell you, State, you’re very close to having a mistrial declared in this matter. And unless I see a demeanor and equivocation, I don’t care what you see. You’re very close to having a mistrial declared in a Batson situation in this matter.”

In Batson v. Kentucky (1986), 476 U.S. 79, 96-97, 90 L. Ed. 2d 69, 87-88, 106 S. Ct. 1712, 1723, the Supreme Court held that the equal protection clause prohibits the prosecution’s use of peremptory challenges as a means to exclude prospective jurors on account of their race; and after a defendant has established a prima facie case of purposeful discrimination in the removal of venire members, the burden of proof is shifted to the State. The State must then provide “ ‘a neutral explanation for challenging black jurors. *** The prosecutor *** must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.’ ” People v. Young (1989), 128 Ill. 2d 1, 17, quoting Batson, 476 U.S. at 98, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724.

The trial judge is in the best position to evaluate the reasons given by the State for its use of peremptory challenges and “ ‘[sjince the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.’ ” (Young, 128 Ill. 2d at 21, quoting Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21.) A judge’s findings as to whether the State purposefully discriminated against venire members will not be disturbed on review unless the reviewing court, after examining the record as a whole, determines that the judge’s findings were clearly erroneous. (Hernandez v. New York (1991), 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412, 111 S. Ct. 1859, 1871.) After reviewing the record in the present case, we conclude that no clear error was committed when the trial judge concluded that the State did not discriminate against the aforementioned African-American venirepersons.

Defendant argues that the court’s ruling was erroneous because the State cited prior jury service as a reason to exclude African-American venirepersons and yet non-African-Americans who had previously served as jurors were not peremptorily challenged.

“In People v. Young (1989), 128 Ill. 2d 1, 23, we observed that if a prosecutor rejected a minority venireperson for possessing certain characteristics, but did not reject a white venireperson sharing those same characteristics, ‘it does not follow that this in itself shows that the prosecutor’s explanations were pretextual.’ We explained that:

‘Though a part of the prosecutor’s explanations may have been applicable to white jurors who were not challenged, the white jurors may have, in some other respect, exhibited a trait which the prosecutor reasonably could have believed would make him or her desirable as a juror.’ (Young, 128 Ill. 2d at 23-24.)

Likewise, the converse is true as well. Though a minority venireperson may otherwise possess all of the traits which the State is looking for in a juror, he may possess an additional trait which makes him undesirable.” People v. Harris (1989), 129 Ill. 2d 123, 179-80.

It appears from the record that the demeanor of Stevens, Gray, and Jones rendered them undesirable jurors in the eyes of the State. Defendant correctly notes that “explanations which focus upon a venireperson’s body language or demeanor must be closely scrutinized because they are subjective and can be easily used by a prosecutor as a pretext for excluding persons on the basis of race.” (Harris, 129 Ill. 2d at 176.) Nevertheless, the record shows that the judge paid careful attention to the demeanor of the venirepersons and he scrutinized the State’s reliance on this factor as its reason behind challenging the venirepersons. Under these circumstances, we conclude that the court’s findings were not clearly erroneous.

Defendant next contends that the court erred in the way it conducted the Batson hearing as to venireperson Loretta Cockrell because the State never articulated an explanation regarding its challenge to Cockrell. The State maintains that it had many reasons to exclude Cockrell, but admits “that the reasons came from the judge not the prosecutor.”

The court, after finding that a prima facie showing had been made, did not shift the burden to the State, and thus, it did not require the prosecution to explain why it peremptorily challenged Cockrell. Instead, the court, without asking the State to offer an explanation, stated:

“The question before the Court is a continuing one on the Batson situation, as far as Loretta Cockrell is concerned and, gentlemen, I am going to rule, at this point in time, that there was more than ample neutral reasons, evidence before this court, by her answers and mannerisms, and there is no Batson violation.”

The procedure to be followed in a Batson hearing is quite clear.

“Under Batson, once a prima facie case of discrimination has been established, the State has the burden of coming forward with a neutral explanation for excluding each black venireperson which is ‘related to the particular case to be tried.’ (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.)***

Once the State has come forward with its reasons for striking the venirepersons, the trial court must then determine whether the explanations are sufficient to rebut defendant’s prima facie case.” (Emphasis added.) (Harris, 129 Ill. 2d at 174.)

“[A] court should not presume, or infer from the facts of the case, that an unarticulated neutral explanation exists. (See Uviedo, 738 F.2d at 1430.) Rather, a court must focus its inquiry on the reasons actually articulated by the State.” (Harris, 129 Ill. 2d at 184.) “Uviedo *** requires us to hold that although the record may disclose an explanation for the exercise of a challenge, that explanation cannot be found to be adequate by either the trial court or a court of review, unless the prosecutor articulated that as a reason for exercising a peremptory challenge.” (Emphasis added.) Harris, 129 Ill. 2d at 194 (Ryan, J., concurring in part and dissenting in part, joined by Miller, J.).

Here, the State never articulated a single reason why it challenged Cockrell. A court cannot properly determine whether the defendant has proven that the State engaged in racial discrimination until the prosecution has explained why it had exercised peremptory challenges against certain venirepersons. See Serr & Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. Crim. L. & Criminology, 1, 64 (1988) (“the prosecutor’s explanation must be the focal point of judicial scrutiny if Bat-son’s protections are to have any meaning at all”).

Nevertheless, we find that defendant has waived his claim that the trial court erred in denying his Batson motion without first requiring the State to explain why it had challenged Cockrell. After Cockrell was excused by the State, defendant made a Batson motion. The trial judge found that a prima facie case was made, and that no Batson violation had occurred because he presumed, based on Cockrell’s answers and mannerisms, that the State had ample reasons to strike her from the jury. Defense counsel made no objection to the fact that the State was not called upon to explain why it had challenged Cockrell. “An accused may not sit idly by and allow irregular proceedings to occur without objection and afterwards seek to reverse his conviction by reason of those same irregularities.” People v. Ford (1960), 19 Ill. 2d 466, 478-79. See, e.g., State v. Robinson (1991), 305 S.C. 469, _, 409 S.E.2d 404, 407 (defendant waived claim that error occurred because solicitor did not explain why a juror was stricken because he failed “to raise it below”); State v. Martinez (1987), 294 S.C. 72, 73, 362 S.E.2d 641, 642 (argument was improperly before court where defendant complained that solicitor did not explain why a juror was stricken because' defendant did not “raise this objection to the trial judge”).

Defendant next contends that he was denied his right to the effective assistance of counsel due to his attorney’s failure to move for the dismissal of the criminal charges because he was not tried within the 120-day time period under the speedy trial statute (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(a)). The speedy trial statute provides in relevant part:

“Every person in custody in this State for an alleged offense shall be tried by the court *** within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” m. Rev. Stat. 1985, ch. 38, par. 103 — 5(a).

Whether a defendant has been denied his constitutional right to the effective assistance of counsel is determined by applying the Strickland test, which requires the defendant to show two things: “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial.” (People v. Horton (1991), 143 Ill. 2d 11, 23.) Under part one of the test, it is strongly presumed that the actions of counsel were not the result of incompetence, but were the product of sound trial strategy. People v. Steidl (1991), 142 Ill. 2d 204, 240.

Defendant maintains that his trial was delayed by 168 days and that this delay was not occasioned by him. However, the State maintains that defendant was tried within the 120-day period, because, it argues, defendant “either caused the delay or consented to it.” After carefully reviewing the record, we find that counsel’s failure to move for the discharge of his client was a sound strategic decision and not incompetence. See People v. Keys (1990), 195 Ill. App. 3d 370 (whether to demand a speedy trial is a strategic matter reserved for defense counsel).

At a pretrial hearing on October 6, 1988, the following colloquy occurred between defense counsel and the court:

“MR. FLETCHER [Defense attorney]: For the record, Judge, Kenneth Fletcher, from the Multiple Defendant Division, on behalf of Mr. Ramey present before the Court.

Your Honor, I had talked to Mr. Simmons about this matter earlier this morning. He indicated to me that Mr. Gant’s motions were set for October 25th, and that after these were completed, he expected to go into trial on his behalf.

I agreed with him to continue this case until November 7th. However, I have had the opportunity to talk to my client after that, and he has indicated to me, Judge, that he wishes to demand trial.

I have had the opportunity to talk with Mr. Ramey at some length today for about I would say fifteen or twenty minutes, and I have explained to him my reasons for wishing to go along with a by-agreement date with the State. I have some specific strategic and tactical reasons which I believe make it imperative that we agree with the State, and not demand trial.” (Emphasis added.)

Thereafter, defendant advised the court that he would like to demand trial, but nevertheless indicated that he wanted Fletcher to remain as his defense counsel and the case was continued.

At a subsequent pretrial hearing on January 4, 1989, defendant’s attorney again advised the court that he did not want to demand trial:

“MR. FLETCHER: For the record, Judge, Kenneth L. Fletcher on behalf of Mr. Ramey who is present before the court.

Judge, the case was set over for a constitutional motion. And the motion is going to be set over until the eleventh, I believe, next week.

Judge, at this time Mr. Ramey has indicated that it is his intention to demand trial. I have had a long conversation with Mr. Ramey in which I explained to him that that is against my better judgment for a number of reasons, which I won’t go into.

Mr. Ramey — at this time I think it is incumbent upon me, since I don’t believe I can be ready for trial to the best of my ability by the time that’s dictated in the term, I am going to request leave to withdraw at this time.” (Emphasis added.)

Defense counsel’s motion was denied and the case was continued to January 11,1989.

On January 11, 1989, defense counsel again advised the court that in his judgment, he thought the case should be continued:

“MR. FLETCHER: Ken Fletcher, Multiple Defendants Division.

Judge, since you are leaving on vacation and you are not going to be back when this is tried, Mr. Simmons [the prosecutor] and I both feel it would be best if the motions are heard by the same judge. So, we set this for motions on January the 25th.”

The case was continued until the January 25, 1989. As is plainly evident from the portions of the record set forth above, defense counsel’s strategy was to continue the case and not demand trial. Under these circumstances, counsel’s conduct cannot be considered to be incompetent.

Defendant next contends that he was denied his Federal right to a speedy trial. While section 103 — 5 is designed to effectuate a defendant’s constitutional right to' a speedy trial, the statute and the constitutional right are not necessarily coextensive with each other. (People v. Jones (1984), 104 Ill. 2d 268, 286.) “In determining whether there has been a breach of the constitutional right to a speedy trial, four factors are considered: the length of the delay; the reasons for the delay; the prejudice to the defendants; and whether the defendants waived that right.” Jones, 104 Ill. 2d at 286.

Defendant was in custody on other charges when he was indicted for the instant crimes on December 19, 1986. He was not brought to trial until March 23, 1989, some 824 days later. Defendant argues that 168 days were not attributable to him, thus conceding by implication that over three quarters of the delay was occasioned by him.

Defendant contends that he was prejudiced by the delay because the State remarked during its closing argument that he had over three years in which to concoct excuses about his involvement with the victim’s electronic equipment. This remark alone cannot be considered so prejudicial that his right to a speedy trial was denied. Closing argument is not evidence (IPI Criminal 2d No. 1.03)), and he cannot be heard to complain of the remark, especially where defendant contributed to much of the delay.

TRIAL

Defendant next contends that Gant’s out-of-court statements to Veal and Jackson were improperly admitted under the co-conspirator exception to the hearsay rule “[b]ecause the State failed to make an independent prima facie evidentiary showing of conspiracy between Mr. Ramey [defendant] and co-conspirator Gant.” Conversely, the State maintains that the requisite prima facie showing of a conspiracy had been made.

The exception to the hearsay rule for declarations of a co-conspirator was set forth in a recent opinion of this court:

“ ‘[Sjuch declarations are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy or joint venture between the declarant and one of the other defendants, insofar as such declarations are made in furtherance of and during the pendency of the conspiracy, even in the absence of a conspiracy indictment.’ ” (Steidl, 142 Ill. 2d at 234, quoting People v. Goodman (1980), 81 Ill. 2d 278, 283.)

After reviewing the record in the present case, we find that the State made a prima facie showing of a conspiracy between defendant and Gant.

Veal testified that on July 30, 1986, one day prior to the commission of the crime, defendant and Gant came to his house. Veal stated that while in the kitchen of his house, defendant told him that he intended to break into a house on 171st Street and that the occupants were going to be handcuffed and gagged. Veal further testified that on August 3, 1986, he saw defendant and Gant together again, but on this occasion, they brought with them two VCRs and a turntable, and defendant then asked him if he could get rid of the three pieces of electronic equipment. Campbell also testified as to the existence of a conspiracy between defendant and Gant: that defendant told him that he planned a burglary of a home in Hazel Crest with a person named “Joe” and another person who was not identified by name; that this home contained “unique stereo and video equipment”; that Gant secured some handcuffs; and that they entered the home and handcuffs were used on two individuals within the home. The above evidence amounts to a prima facie showing that defendant and Gant entered into a conspiracy.

Defendant also contends that the statement made by Gant to Veal on August 3, 1986, was inadmissible under the co-conspirator exception to the hearsay rule because the conspiracy had already ended and the statement was not made for the purpose of concealing the conspiracy. (People v. Parmly (1987), 117 Ill. 2d 386.) The State maintains that the conspiracy had not ended on August 3, 1986, because it encompassed the sale of the stolen electronic equipment by defendant.

In Parmly, the prosecution sought to admit hearsay statements that were made after the real objective of the conspiracy was completed. The prosecution then moved to have the statements admitted “as furthering a subordinate conspiracy or an extension of the conspiracy to conceal the offenses.” (Parmly, 117 Ill. 2d at 393.) However, in the present case, the court ruled that “the conspiracy was still in operation” on August 3, 1986, when Gant asked Veal to get rid of some electronic equipment. The court’s ruling was correct in that the evidence shows that the conspiracy was to invade the victim’s house, take the electronic equipment located there, and sell it. Therefore, the statement was properly admitted, as it was made during the pendency of the conspiracy and there was no need to show that the statement was made in order to conceal the conspiracy.

Defendant also contends that the admission of Gant’s out-of-court statements denied him his constitutional right to confront witnesses. The State maintains that defendant’s constitutional rights were not violated.

In People v. Davis (1970), 46 Ill. 2d 554, 557-59, the court held that the admission of hearsay under the co-conspirator exception to the hearsay rule did not violate the confrontation clause of the sixth amendment, because the defendant had the opportunity to cross-examine the individuals who claimed that certain statements were made to them. The Supreme Court’s opinion in' Dutton v. Evans (1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210, bolstered this court’s decision in Davis. Goodman, 81 Ill. 2d at 285.

In Dutton, a prosecution witness testified about a conversation he had with a fellow inmate. The witness’ testimony as to what this inmate told him, although hearsay, was admitted under Georgia’s co-conspirator exception to the hearsay rule. Defendant argued that the admission of the inmate’s out-of-court statement violated his constitutional right to confront the witnesses against him. After applying a number of factors to the content of the statement itself and the circumstances in which the statement was made, the Court held that the defendant was not denied his confrontation rights under the sixth amendment. Dutton, 400 U.S. at 87-89, 27 L. Ed. 2d at 226-27, 91 S. Ct. at 219-20; accord People v. Schmitt (1989), 131 Ill. 2d 128, 141-42.

In the present case, defendant contends that the admission of Gant’s four out-of-court statements through the testimony of Veal and Jackson failed to satisfy one of the factors announced in Dutton: that the testimonial evidence of Veal and Jackson as to what Gant had allegedly told them was crucial and devastating, because “[without these statements, the State would have had only the testimony of Campbell with which to attempt to convict [him].” We disagree and find that none of the four statements was crucial or devastating given the other evidence presented at trial.

According to the first statement, Jackson testified that Gant asked to use his handcuffs because he and the defendant were going to a disco. However, the defendant admitted to Veal that the handcuffs were going to be used for another purpose. Veal testified that defendant told him that “[t]hey was [sic] going to handcuff them, gag them, [and] wear ski masks.” Moreover, Campbell testified that defendant told him that “Joe [Gant] secured some handcuffs from somewhere” and that a man and woman were handcuffed together.

In the second statement complained of, Gant allegedly asked Veal if he could use Veal’s mother’s gun because he intended to commit a burglary with defendant. Again, the defendant himself asked Veal if he and Gant could use Veal’s mother’s gun because they intended to break into a residence on 171st Street. The third and fourth statements were similarly not crucial or devastating, as it appears from the record that defendant essentially made the same statements that Gant was alleged to have made. Thus, we find that no confrontation violation occurred because the four out-of-court statements were not crucial or devastating.

Defendant next contends that he was denied a fair trial when the prosecutor asked leading questions of prosecution witness Campbell in an attempt to bolster his credibility and disparage defendant’s. The State maintains that defendant has waived his right to have this issue reviewed in this court because no objection was made at trial. Defendant urges this court to review the challenged testimony under the plain error rule (134 Ill. 2d R. 615(a)).

Defendant complains of the following exchange of questions and answers between the assistant State’s Attorney and Campbell:

“MR. SIMMONS [Assistant State’s Attorney]: May I have just a moment, Your Honor?

Isn’t it a fact that you are requesting that you serve your time in a medium security facility because, after testifying on your behalf, to serve time in a maximum security institution would endanger your life?

A. Yes.

* * *

MR. SIMMONS: We did agree that if you are convicted on your pending charge, that we would recommend that you do not serve any time that you may receive in the same institution as Irving Ramey, is that correct?

A. Yes.

Q. And we did agree that you would not be transported to this courtroom to testify in the same vehicle as Irving Ramey might be transported in, is that correct?

A. Yes.”

Defendant contends that “[t]he prosecutor’s own unsworn testimony that Campbell placed his life in danger by testifying and Campbell’s testimony that he demanded DOC placement and transport separate from Mr. Ramey because of the fear of Mr. Ramey were not based on the evidence in this case.”

To preserve an issue for review in a reviewing court, an objection must be made at trial and the complained-of error must be included in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176.) Errors which have not been properly preserved for review can still be reviewed under the plain error rule in two circumstances: (1) if “the evidence in a criminal case is closely balanced”; or (2) if “the error is so fundamental and of such magnitude that the accused was denied a fair trial.” (People v. Mink (1990), 141 Ill. 2d 163, 172.) We decline to review the alleged error in the first instance, as the evidence cannot reasonably be considered closely balanced. Secondly, the alleged error was not so fundamental and prejudicial that defendant was denied a fair trial.

Defendant next contends that the State made some remarks during its closing rebuttal argument that were prejudicial, and thus denied him his right to a fair trial. The first prosecutorial remark that defendant complains of is as follows:

“MR. SIMMONS [Assistant State’s Attorney]: ***

Do you think you know who chose John Campbell as a witness? He did, not the State, not the People of the State of Illinois, he chose that person as his witness, and they say he has got nothing to lose when he hits the stand.

Let me tell you something, as soon as he left that stand, and use your common sense, as soon as John Campbell left that stand, and he is back in that penitentiary, they know he is a stoolie, and—

MR. FLETCHER [Defense attorney]: Objection.

MR. GOLDBERG [Defense attorney]: No evidence of that.

THE COURT: Objection sustained.

MR. FLETCHER: We ask the Jury to disregard.

THE COURT: Disregard that.

MR. SIMMONS: Let me tell you something, he has nothing to lose.

* * *

We didn’t cut any deals with him, he has to face the pending armed robbery, whatever he gets he gets, he gets it, the only thing we said is that you don’t have to do the time in the same penitentiary as this murderer, and that is the least that anyone can do for somebody who is a stoolie.”

Any harm which could have resulted from the State’s initial reference to Campbell as a “stoolie” was alleviated after the court sustained the objection and instructed the jury to disregard the remark. (People v. Carlson (1980), 79 Ill. 2d 564, 577.) (We note that while defendant contends that the record does not support the State’s “stoolie” remark, defendant has characterized Campbell as a “jailhouse snitch” in his reply brief.) However, defendant contends that after the objection was sustained, the State persisted in pursuing this improper line of argument, which he claims eliminated the salutary effect of the court’s curative instruction. People v. Weinstein (1966), 35 Ill. 2d 467.

In Weinstein, the State remarked five or six times, without objection, in its closing argument that the defendant had the burden of presenting a reasonable doubt of guilt. Defense counsel’s objection was sustained after the State made an additional reference to the defendant’s having a burden of creating a reasonable doubt. In Weinstein, the court found that the prejudicial error was not avoided by virtue of the court’s sustaining defendant’s objections because the State was persistent in repeatedly asserting that defendant had to create a reasonable doubt of guilt. The, prosecutor’s “constant repetition” in Weinstein, 35 Ill. 2d at 471, of the incorrect premise that defendant had the burden of raising a reasonable doubt as to her guilt does not compare whatsoever to the closing argument in the instant case.

Here, the prosecution remarked only one more time that Campbell was a “stoolie” after defendant’s objection was sustained. Under these circumstances, we do not find that it rendered the court’s curative instruction a nullity. Moreover, defendant did not object at trial to the prosecution’s second remark and, as a result, defendant has waived the error. People v. Bartall (1983), 98 Ill. 2d 294, 321.

Defendant next contends that he was denied a fair trial when, the prosecution made the following remarks during its closing rebuttal argument:

“MR. SIMMONS [Assistant State’s Attorney]:

* * *

That is not surprising at all, but you notice that he cannot deny meeting with Bart Veal, he can’t deny it, so he is going to say yes, I met with Bart Veal, but I got the proceeds of the crime from Bart Veal, that is number two, and when I am talking about these things, about how long this Defendant had time to think of convenient excuses to escape his responsibility for a murder, think about how long, almost three years—

MR. FLETCHER [Defense attorney]: Objection, Judge.

THE COURT: Overruled.

MR. SIMMONS: Almost three years, not very hard when you are sitting over there in the County Jail to think about how you are going to escape your responsibility for a brutal murder.

MR. FLETCHER: Objection, motion for a mistrial.

THE COURT: Overruled.

MR. SIMMONS: So think of that.”

Defendant contends that the aforementioned argument was improper because it amounted to informing the jury that he had fabricated his defense; the remarks were not based on the evidence in that he was in custody for two years and four months, not “almost three years” as the State argued at trial; and the remarks were calculated to inflame the jury. The State maintains that the remarks were permissible because “[t]he comments say no more than that defendant’s testimony is not worthy of belief, and that the evidence shows defendant guilty of murder.”

The credibility of witnesses is a matter that attorneys can remark upon during their closing arguments, provided such argument is based upon the facts in the record or reasonable inferences drawn therefrom. (People v. Flores (1989), 128 Ill. 2d 66, 94.) A prosecution witness, Veal, testified that defendant and Gant came to his home and told him that they planned to break into a house on 171st Street; that they returned a few days later carrying a “turntable and two VCRs”; and that he informed them that he did not want to get involved because of what happened on 171st Street. On the other hand, defendant testified that he possessed what he assumed to be stolen merchandise, because Veal sold the items to him. We find the State’s argument, that defendant’s testimony is not worthy of belief because he had time prior to trial within which to offer an exculpatory explanation for having the victim’s merchandise in his possession, to be an inference drawn fairly from the facts. We do note, however, that defendant was not incarcerated for “almost three years,” but we find that the difference in time did not result in substantial prejudice to the accused. Flores, 128 Ill. 2d at 95.

Defendant next contends that the court erred in giving the jury the following non-IPI felony-murder instruction:

“THE COURT: The Court instructs the Jury as a matter of law that in this case to constitute the crime of murder it is not necessary for the State to show that it was or may have been the original intent of the defendant or his accomplice to kill the deceased, Derrick Quincy Wilkinson.

It is sufficient if the jury believe [sic] from the evidence beyond a reasonable doubt that the defendant and his accomplice combined to do an unlawful act, such as to commit a home invasion and that the deceased was killed by one of the parties committing that unlawful act.”

Defendant argues that the above instruction is antiquated because it is based on People v. Golson (1965), 32 Ill. 2d 398; that it is misleading and confusing; that it overemphasized the State’s theory of guilt; and that it conflicted with the IPI felony-murder instruction. Conversely, the State maintains that the instruction merely clarified the IPI instruction without misrepresenting the applicable law, and that defendant was not prejudiced by the instruction.

“The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence.” (People v. Gambony (1948), 402 Ill. 74, 81-82, cited with approval in People v. Hester (1989), 131 Ill. 2d 91, 98.) Whenever applicable, an “IPI Criminal 2d instruction shall be used, unless the court determines that it does not accurately state the law.” (134 Ill. 2d R. 451(a).) Furnishing additional, non-IPI instructions on subjects already encompassed by IPI Criminal 2d should be avoided because such a practice “would defeat the goal that all instructions be simple, brief, impartial and free from argument.” People v. Haywood (1980), 82 Ill. 2d 540, 545.

In the present case, the correct IPI Criminal 2d felony-murder instruction was used, but it was supplemented by a non-IPI instruction. A trial court has discretion to allow non-IPI instructions which cover subjects that it determines the jury should be instructed upon, and tendering such instructions is proper if they are accurate, simple, brief, impartial, nonargumentative statements of the law. 134 Ill. 2d R. 451(a).

Both parties direct our attention to People v. Wade (1989), 185 Ill. App. 3d 898, in which our appellate court found no error in giving an instruction very similar to the instruction at issue in the present case. Obviously, the State considers the appellate court opinion to be well reasoned, while defendant contends the case was wrongly decided.

The instruction in Wade read as follows:

“ ‘The Court instructs the Jury, as a matter of law, that in this case to constitute the crime of murder it is not necessary for the State to show that it was or may have been the original intent of the Defendant or his co-conspirator or either of them to kill the deceased, Tyrone Tolliver. It is sufficient if the Jury believe [sic] from the evidence beyond a reasonable doubt that the Defendant and his co-conspirator combined to do an unlawful act, such as to take personal property from Tyrone Tolliver by force while armed with a dangerous weapon and that the deceased was killed by the Defendant or a co-conspirator in an attempt to execute such purpose.’ ” (Wade, 185 Ill. App. 3d at 904.)

The appellate court held that no error was committed in giving the above instruction because it explained concepts not covered by the IPI instruction. After considering Wade and the defendant’s arguments against the non-IPI instruction in the instant case, we find that the trial court did not err in instructing the jury.

Defendant argues that the non-IPI instruction unduly emphasized the State’s primary theory of guilt. (People v. Gathings (1981), 99 Ill. App. 3d 1135.) In Gathings, the instructions were written such that two choices were unduly emphasized to the jury, neither one of which would result in an acquittal: the evidence showed the defendant was guilty of reckless conduct or the evidence showed he was guilty of attempted murder, attempted armed robbery and aggravated battery. (Gathings, 99 Ill. App. 3d at 1137.) No such choice was emphasized to the jury here, and we agree with the State and the holding in Wade that the instruction was explanatory and it served to clarify the concept of felony murder.

Defendant argues that the instruction improperly assumed the existence of a fact, that there was an accomplice in the case. The State maintains that after the instructions as a whole are examined, the existence of an accomplice is not presumed.

An individual instruction should not be judged in artificial isolation; rather, the instruction should be examined in light of the overall charge. (People v. Housby (1981), 84 Ill. 2d 415, 433-34.) The non-IPI instruction made reference to the defendant and “his accomplice.” The jury was also given the accountability instruction, IPI Criminal 2d No. 5.03. We find that when the accountability instruction is read together with the instruction at issue, it could not be presumed that defendant carried out the crime with an accomplice, unless the jury, in accordance with IPI Criminal 2d No. 5.03, found that defendant could be held legally responsible for the conduct of another person. (See People v. Hrdlicka (1931), 344 Ill. 211, 221 (an accomplice is one who, with a common purpose of another offender, unites in the commission of a crime with the other offender).) Nevertheless, the use of the word “accomplice” is not recommended and it would have been preferable to refer to this individual as “one for whose conduct he is legally responsible.” IPI Criminal 2d No. 7.02, Committee Note.

Defendant also argues that the instruction was contrary to the felony-murder statute because: (1) according to the instruction, the predicate felony for felony-murder was not limited to home invasion, but to any “unlawful act”; and (2) the instruction did not properly define legal accountability; instead, defendant could be held legally responsible for the conduct of another if he “combined” to do an unlawful act with the other person. Again, defendant’s argument must fail because it is premised on examining the instruction in isolation, rather than viewing the instruction in the context of the entire charge. Housby, 84 Ill. 2d at 433-34.

“Felony murder requires proof that defendant was attempting or committing a forcible felony [Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(3)] and that there was a killing as a direct result of the commission of the felony [citation]. One may be convicted of felony murder even though he did not intend to kill anyone and did not personally kill anyone ***.” (People v. Miller (1980), 89 Ill. App. 3d 973, 979.) While the instruction did mention “an unlawful act,” it was immediately followed by the crime of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12— 11), a forcible felony. Moreover, IPI Criminal 2d Nos. 7.01 and 7.02 were provided and the jury was instructed that the defendant could be found guilty of murder if he was “committing the offense of home invasion.” Also, this court must look at the word “combined” in the objected-to instruction, together with the accountability instruction. The latter instruction properly defined the circumstances under which defendant could be held legally responsible for the conduct of another. After considering the IPI instructions together with the non-IPI instruction, we find that the correct legal principles applicable to felony murder were tendered to the jury.

SENTENCING

Defendant first contends that the sentencing jury was improperly instructed at the eligibility phase of the death penalty hearing when the court tendered the following instruction:

“Before the Defendant may be found eligible for a death sentence under the law, the State must prove the following propositions:

First: That the Defendant was 18 years old or older at the time of the commission of the murder of which he was found guilty at the trial of this case; and

Second: That the following statutory aggravating factor exists:

The murdered person was killed in the course of another felony if the murdered person was actually killed by the Defendant, or

The murdered person received physical injuries personally inflicted by the Defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the Defendant is legally accountable and the physical injuries inflicted by either the Defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered person, and

The other felony was home invasion.

If you find from your consideration of all the evidence that the first and second propositions have been proved beyond a reasonable doubt, then the Defendant is eligible for a death sentence.

If you cannot unanimously find that both the first and second propositions have been proved beyond a reasonable doubt, then the Defendant is not eligible for the death sentence.”

Defendant contends that his death sentence must be vacated because the court did not instruct the jury that the State must prove that he “acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(6)(b)), as required by State law. We agree.

At trial, the State tendered IPI Criminal 2d Nos. 7.01 and 7.02 which set forth various alternative theories of murder, one of those theories being felony murder. (Under the felony-murder theory, “ ‘[i]t is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant *** or even by a third person trying to prevent the commission of the felony.’ ” (People v. Chandler (1989), 129 Ill. 2d 233, 248, quoting Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments, at 16 (Smith-Hurd 1979).) After deliberating, the jury returned a general verdict of guilty on the murder charge. See, e.g., People v. Garcia (1983), 97 Ill. 2d 58, 84 (“the most that can be said is that the general verdict returned by the jury fails to reveal whether the jury found him guilty of actually killing anyone or whether he was convicted on the basis of accountability”).

At sentencing, the State sought to have defendant declared eligible for the death penalty under section 9— 1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(6)). Section 9 — 1(b)(6) provides in relevant part:

“Aggravating factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:

* * *

6. the murdered individual was killed in the course of another felony if:

(a) the murdered individual:

(i) was actually killed by the defendant, or

(ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable under Section 5 — 2 of this Code, and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual; and

(b) in performing the acts which caused the death of the murdered individual or which resulted in physical injuries personally inflicted by the defendant on the murdered individual under the circumstances of subdivision

(ii) of subparagraph (a) of paragraph (6) of subsection (b) of this Section, the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another, and

(c) the other felony was one of the following: armed robbery, robbery, aggravated criminal sexual assault, aggravated kidnapping, forcible detention, arson, aggravated arson, burglary, home invasion, or the attempt to commit any of the felonies listed in this subsection (c).” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(b)(6).

As the emphasized language of this aggravating factor makes clear, the State must prove that the defendant acted with the intent to kill or that he acted knowing his conduct created a strong probability that the victim would die or suffer great bodily harm. However, under the language of the instruction at issue here, the prosecution was not required to prove that the defendant acted with a culpable mental state.

The Illinois Pattern Jury Instructions, Criminal, No. 7B.07(6) (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d (Supp. 1987)) provides that a culpable mental state must be proven in order to find a defendant eligible for the death penalty under the sixth aggravating factor:

“[6] The murdered person was killed in the course of another felony if

[a] [the murdered person was actually killed by the defendant,]

or

[b] [the murdered person received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by (a person) (one or more persons) for whose conduct the defendant was legally responsible and the physical injuries inflicted by either the defendant or other (person) (persons) for whose conduct he is legally responsible caused the death of the murdered person,]

and

[c] [in performing the acts which caused the death of the murdered person, the defendant acted with the intent to kill the murdered person or with the knowledge that