People v. Urdiales (225 Ill. 2d 354, 2007)

JUSTICE KARMEIER

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, and Burke concurred in the judgment and opinion.

Justice Kilbride concurred in part and dissented in part, with opinion.

OPINION

Defendant, Andrew Urdíales, was indicted in the circuit court of Livingston County for the first degree murder of Cassandra Corum. See 720 ILCS 5/9 — 1(a) (West 2004). The State subsequently filed notice of intent to seek the death penalty. Defendant tendered a plea of guilty but mentally ill; however, the State disputed the existence of mental illness. The parties subsequently agreed to an evidentiary hearing in which the trial court simultaneously received evidence concerning the factual basis for the plea and conducted a bench trial on the issue of guilt/innocence. The trial court ultimately rejected defendant’s plea of guilty but mentally ill and his bench trial defense of insanity. The court found defendant guilty of first degree murder. Defendant waived a jury for the eligibility stage of capital sentencing, and the circuit court subsequently found defendant eligible for the death penalty based upon prior murder convictions. See 720 ILCS 5/9 — 1(b)(3) (West 2004). Defendant elected jury consideration for the aggravation/mitigation phase of sentencing. After considering evidence in aggravation and mitigation, the jury concluded that death was the appropriate sentence. See 720 ILCS 5/9 — 1(g) (West 2004). The circuit court thereafter sentenced defendant to death. Because defendant was sentenced to death, his appeal was brought directly to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603.

On appeal, defendant contends that (1) the trial court erred in ordering defendant restrained during trial, and instructing the jury that “security measures” had been implemented; (2) the trial court’s repeated on-the-record criticisms of recent appellate court opinions deprived defendant of due process and fundamental fairness; (3) the trial court denied defendant due process and fundamental fairness when the court disparaged the motives and conduct of attorneys from the Office of the State Appellate Defender; (4) the trial court abused its discretion in rejecting defendant’s plea of guilty but mentally ill; (5) the trial court’s verdict of guilty, instead of guilty but mentally ill, was against the manifest weight of the evidence; (6) the trial court’s statement to the sentencing jury, that the court had rejected defendant’s insanity defense at trial, and the prosecutor’s reference thereto in closing argument, “improperly demeaned the defendant’s mitigating evidence of mental illness, and punished defendant for exercising his constitutional right to present a defense”; (7) the trial court erred in denying defendant’s request to submit experts’ reports to the jury; (8) the trial court erred in improperly assisting the prosecutor in cross-examining a witness and thus establishing a foundation for a prosecution exhibit; (9) the prosecutor’s closing argument denied defendant due process; (10) the sentencing jury should have been specifically instructed that a background of extreme emotional or physical abuse is a mitigating factor; and (11) the Illinois death penalty statute violates principles announced in Apprendi in that it does not require application of the reasonable doubt standard at the second stage of capital sentencing proceedings. We set forth, hereafter, a summary of the evidence pertinent to a discussion of the issues raised by defendant.

BACKGROUND

On July 14, 1996, police found the nude body of an unidentified woman floating in the Vermilion River in Livingston County. The woman’s wrists had been handcuffed, her ankles were bound with duct tape, and her mouth was covered with duct tape. An autopsy revealed that the victim had died of a single gunshot wound to the head and seven stab wounds to the head and chest. The body was later identified as that of Cassandra Corum. Corum had been reported missing from Hammond, Indiana.

Corum’s murder was subsequently linked to the murders of two young women in Cook County. The bodies of Laura Uylaki and Lynn Huber had been found in Wolf Lake, a body of water in Cook County, near the Indiana border. Each of those victims had also been shot in the head and stabbed multiple times. Ballistics tests indicated that all three victims were killed by bullets fired from the same gun.

On April 1, 1997, a police officer in Hammond, Indiana, responded to a call involving defendant and a prostitute. The prostitute told the officer that defendant had wanted to take her to Wolf Lake, handcuff and duct tape her, and have sex with her. In November of 1996, the same officer had arrested defendant for unlawful possession of a firearm, and at that time had found rolls of duct tape in defendant’s truck. The Hammond police officer forwarded the information he had obtained to Chicago detectives, who subsequently obtained the gun seized from defendant as a result of his November 1996 arrest. Testing revealed that defendant’s gun had fired the bullets that killed Cassandra Corum, Laura Uylaki, and Lynn Huber.

On April 22, 1997, Chicago police officers approached defendant, who voluntarily agreed to talk with them. At the police station, detectives showed defendant photographs of Corum, Uylaki, and Huber, but defendant claimed he did not recognize them. During the questioning, defendant indicated he had bought his handgun approximately four or five years earlier from a gun shop in Calumet City, and it had been under his exclusive control until it was confiscated in Hammond, Indiana. When officers told defendant the three women had been killed by bullets fired from his gun, defendant paused for a minute, took off his security guard badge, started taking off his shoelaces, and said, “Well, I guess I’m not going to work today.” Defendant then provided the police with detailed confessions to all three Illinois murders. Without prompting from the police, defendant also mentioned “some matters” that California authorities “might be interested in.” Defendant subsequently confessed to the murders of Bobbin Brandley, Julie McGhee, Mary Ann Wells, Tammy Erwin, and Denise Maney, as well as the kidnapping, rape, and attempted murder of J.A., all of which were committed in California between 1986 and 1995.

The details of those offenses were provided in testimony and evidence presented at the aggravation/ mitigation phase of sentencing, and will be recounted in our discussion of that portion of defendant’s trial.

On March 10, 1998, a Livingston County grand jury returned a four-count indictment charging defendant with first degree murder for the killing of Cassandra Co-rum. In March of 2001, the State filed notice of its intent to seek the death penalty, alleging three possible eligibility factors: that the defendant had been convicted of murdering two or more individuals (720 ILCS 5/9— 1(b)(3) (West 2000)), that he had killed Cassandra Corum during the course of an aggravated kidnapping (720 ILCS 5/9 — 1(b)(6) (West 2000)), and that the murder was committed in a cold, calculated, premeditated manner pursuant to a preconceived plan (720 ILCS 5/9 — l(b)(ll) (West 2000)).

Defendant was convicted of the Cook County murders, and was sentenced to death on September 3, 2002. In that case, a jury rejected claims that defendant was legally insane or mentally ill as defined in section 6 — 2(d) of the Criminal Code of 1961. See 720 ILCS 5/6 — 2(d) (West 2002). On January 10, 2003, then-governor George Ryan commuted defendant’s death sentence to one of natural life in prison without the possibility of parole.

On November 3, 2003, defendant’s appointed counsel in this case, Steven Skelton and James Elmore, requested that the trial judge accept the appearance of attorney Stephen Richards as additional counsel for defendant. Richards was a deputy defender with one of the State Appellate Defender’s Death Penalty Trial Assistance offices (hereafter DPTA). The trial judge allowed Richards to enter his appearance with the understanding that Skelton and Elmore would be “lead counsel” and that the court would look to them for management of the case.

Richards subsequently tendered a written entry of appearance during a hearing conducted on December 1, 2003. On that document, John Hanlon and Allan Sincox, staff attorneys of DPTA, were also listed as entering their appearance. The trial judge did not immediately notice the unauthorized addition of Hanlon and Sincox, a matter that came to the court’s attention when the judge observed what he perceived as disruptive behavior in the courtroom:

“THE COURT: Who is the gentleman behind Mr. Richards, because I am getting tired of the expressions on his face and his gyrations. *** And now he is quite red-faced and he seems very angry.

Sir, who are you?

MR. SINCOX: My name is Allan Sincox. My appearance is now on file. Mr. Richards filed an appearance with my name listed on it today. I have been assisting with this case.

THE COURT: You are not an attorney in this case, sir. You are not now an attorney in this case.

Oh, I see the appearance has — well, I gave permission, Mr. Richards, for you to assist Mr. Elmore and Mr. Skelton at this relatively late date. I have not given permission for John Hanlon, Allan Sincox to do so. I have not heard from Mr. Elmore and Mr. Skelton that they want their assistance. So the way the record stands now, and I do thank you for calling that to my attention[,] Mr. Richards has been requested for assistance in this case by Mr. Skelton and Mr. Elmore. I have not heard from them as to John Hanlon or Allan Sincox. I am concerned about you, you are Mr. Sincox?

MR. SINCOX: Yes, I am, Judge.

THE COURT: I am concerned about your professional demeanor here in court today. On four or five occasions you have gripped your head and shaken your head. And it is quite — it is at least distracting to me ***.

MR. SINCOX: Well, that is my fault. And I do apologize.

THE COURT: Your apology is accepted. I didn’t know you were an attorney. Quite frankly, I am shocked.”

Attorney Sincox then noted that he had been involved in the trial of defendant’s cases in Cook County, and he explained: “[T]here are things I find myself wanting to tell the lawyers.” The court responded, “I understand the emotional factor, but you are an attorney, and you should know better.” The court then clarified the status of defendant’s representation, noting that “Mr. Richards is in the case; Mr. Hanlon and Mr. Sincox are not.” The record indicates that the names of Hanlon and Sincox were, at some point, stricken from the entry of appearance.

At a subsequent hearing on December 23, 2003, Richards was allowed to argue various pretrial motions for the defense, without comment or objection from the trial judge. The trial court reserved ruling on two of those motions, and denied the remainder.

Later, on February 6, 2004, during a pretrial hearing attended only by the prosecutors and attorneys Skelton and Elmore, Skelton broached the possibility that he might ask the court to allow attorney Sincox to “enter his appearance for the limited purpose of deposing Dr. [Park] Dietz in California.” The trial judge asked counsel, “Is this all going to get accomplished in time not to impact on the trial date?” Counsel for defendant nodded affirmatively. The court then expressed “concern” about Sincox’s involvement in the case, noting that he had acted “very unlawyer-like the only time that he was here” and that he had conducted himself “in a very unprofessional manner.” At that point, the prosecutor questioned why Sincox had to be involved and why Skelton and Elmore could not conduct the deposition.

Without further comment on the prosecutor’s statement, the trial judge commended attorneys Skelton and Elmore for the job they had done to that point, and then stated his belief that attorneys Sincox and Richards had “an agenda far greater than” the defendant’s case. He indicated he wanted to ensure that Elmore and Skelton remained in control of the case and exercised their “independent judgment.” Continuing, the trial court stated:

“I can see a deposition out there going into several areas, well, now they are objecting, and now I am supposed to rule on objections taking place out in California. I don’t trust Mr. Sincox. *** His conduct in this courtroom was most unprofessional. It is clear to me that he has an agenda far greater than Mr. Urdíales and he is motivated by that. And I am concerned that his conduct will be governed by that. *** And if he goes far afield out there, we have got a mess on our hands in terms of, well, now the deposition wasn’t completed. Now we are going to certify some questions and get those back to this court. And we are moving great amounts of cases away from this calendar of mine in Livingston County. I got a heavy calendar and we are making lots of room and going through all kinds of exercises here to get this case tried in April. And I want to get it tried in April.”

The trial judge observed: “It is premature to rule on this motion. It’s not yet filed. If you do file it, you need to make plans. I have no problem hearing this motion by conference call ***.” The court then moved on, questioning the prosecutors as to whether the reports of certain experts would be timely filed and were “on track.”

The record indicates that a motion was later filed requesting that Sincox be allowed to enter a limited appear anee to take the deposition of Dr. Dietz. On March 4, 2004, in one of many pretrial conferences, the court addressed that motion:

“THE COURT: There was a motion here with respect to Mr. Sincox. I am finding that motion rendered moot because Mr. Elmore is going to go [to California] and Mr. Sincox is not now a member of the defense team. I indicated some reluctance to increase the defense team at this point and bring in somebody new. And that issue simply goes away if Mr. Elmore is going to go to California if necessary.

MR. ELMORE: Yes, I think both Mr. Skelton and myself anticipate making a trip out there.”

Defense counsel did not object to the court’s statement that the motion was moot and did not take any action to obtain a ruling on the motion.

Also prior to trial, the court addressed the matter of courtroom security. On April 19, 2004, just prior to jury selection, the court noted for the record:

“[T]he defendant is seated there at table where his hands are free. He is in street clothes. There is an eyebolt in the floor. And there he has shackles on his legs. And that shackle is attached to the eyebolt in the floor. The jury, I believe it is correct, will not be able to see that shackling. They will be unaware of it unless Mr. Urdíales makes some noise or some motion that would call their attention to it. And I want to at least see if there is any objection on the record.”

Defense counsel stated that the judge’s remarks were “factual and correct,” that the defendant wanted the record to reflect that he was secured in that fashion, and the defense had “no objection to it now.”

The trial court then discussed two recent appellate court cases pertaining to courtroom security and restraint of defendants, noting that he “respectfully disagree[d] with both [of] those decisions,” but he had to “take them into account.” The trial judge also acknowledged this court’s decision in People v. Boose, 66 Ill. 2d 261 (1977). The judge suggested that appellate court justices might not appreciate how “trial circumstances have changed,” in part because some of them have “never been trial judges” and have “never practiced criminal law.” The trial judge offered his observation that “[tjimes have simply changed,” and that he had seen “a great deal of violence occurring in [the] courtroom,” noting the presence of two prisons within the county.

The court made clear that defendant had behaved appropriately up to that point. However, the judge observed that defendant had been recently convicted of two murders and, though his death sentence had been commuted, he was still serving two life sentences. The court stated that was one factor in its decision to restrain defendant. The court also noted that defendant was in good health and had no difficultly getting around; thus, suggesting that defendant could pose a physical threat. Moreover, the court observed that the Livingston County courthouse was built in 1875 and there were “all kind of security problems” with the building and the courtroom. The judge pointed out that the courtroom was small and seating was close. He stated that two guards would be seated in the row behind the defendant. In that respect, the court observed:

“The jurors, I think, will understand that. And importantly for a reviewing court, I have learned over the years that the jurors aren’t stupid. And they will be told the defendant is in custody and that certain security measures have been taken, such as the guards being here. They would expect that. And I believe they can handle that and still give both sides a fair trial.”

With that, the trial court asked: “Is there anything else on that issue that either the State or the defense wishes to bring up?” For the defense, attorney Skelton responded, “No, sir.”

The court then recessed prior to the commencement of jury voir dire. During that recess, out of the presence of the trial judge and potential jurors, a disturbance occurred in the courtroom. Subsequently, without potential jurors present, the trial judge swore in one of the correctional officers guarding defendant in order to ascertain what had happened. The officer, Craig Valleroy, testified that defendant had turned to talk to a lady seated behind him. The officers initially thought the woman was a lawyer, but when she indicated otherwise, they told defendant he could not speak with her. Defendant then became angry. Stating, “I don’t give a damn,” he slapped a cup of water on the table in front of him, sending it flying, and he “threw *** stuff around.” He was told to settle down, and was then physically subdued and handcuffed.

After ascertaining what had happened, the trial judge asked defendant, “Will you promise to behave yourself if I do not shackle you.” Defendant did not respond to the court directly. Rather, defendant had attorney Skelton note for the record that defendant had not been shackled during proceedings in Cook County and there had been no outbursts or problems. Counsel stated: “And he is concerned about his perception of the respect he is being shown here by both the court and security personnel in the courtroom.” Counsel acknowledged that he had attended defendant’s trial in Cook County and that the “logistics of that courtroom and the parameters of that courtroom are somewhat different.”

In response to the concerns expressed by defendant, the trial judge observed that “the world changed” for defendant with his murder convictions in Cook County, suggesting, had defendant been found not guilty there, the court “would have been doing something different here.” The court also pointed out, “[Y]ou are on trial here for your life.” As a result of the incident, the court ordered defendant’s left hand shackled under the table as well. Though the court allowed defendant’s right hand to remain free, the court ordered that defendant be given no pencils or pens.

Two days later, in chambers, the trial judge, with defense counsel and counsel for the prosecution present, revisited the issue of courtroom security and addressed the circumstances of defendant’s prior courtroom outburst. The court noted that jurors were not present when defendant “went ballistic,” “went berserk, throwing water all over.” The court observed that “two very large guards were necessary to restrain him notwithstanding that he was already shackled by his feet to an eyebolt on the floor.” The judge then asked attorney Elmore whether he had overstated the incident with the use of the terms “ballistic” and “berserk.”

Elmore responded that the judge had not overstated the severity of the incident, and added that “there were actually three guards” involved. Elmore indicated that the guards had to take defendant to the floor to subdue him and that defendant had knocked over the table where he was seated.

At that juncture, the trial judge criticized various justices of the appellate court for positions they had taken on the issue of shackling, stating that one of them had, in an appellate court opinion, “really roughed me up because I shackled some inmates.” The judge expressed concern “that people with that frame of mind will speculate that I contributed to the event on Monday because I had Mr. Urdíales shackled.” The court observed:

“First of all, the response of defendant to go berserk was an overreaction on his part. If he didn’t like that, he should have communicated to counsel. He should have said something in court. We did not have a word of protest coming from him prior to that. He simply went off.”

The court characterized defendant as a “high risk individual.” The trial judge observed that there had been a change in defendant’s demeanor after he was convicted of the murders in Cook County and sentenced to death. The court stated: “Mr. Urdíales I have concluded fears that judgment day is coming closer.” The judge noted “a dramatic change” at the prior pretrial hearing, when defendant “learned that this trial was actually going to go forward finally.” The court continued, “I saw without a doubt an emotion in his eyes that I had not seen before. *** I saw furtive movements on the part of Mr. Urdíales; and I see quite frankly, honestly a desperate man.” The trial judge then embarked upon yet another diatribe against what he saw as the appellate court’s unwarranted intrusion into the security concerns of the circuit court, expressing his belief that the appellate court seemed “bent on causing trial judges trouble.” The judge indicated he would have a transcript of the proceedings sent to certain named justices of the appellate court.

Following that harangue, the judge again indicated that he did not believe the jury could see the shackling of defendant because of skirting around the table where defendant was seated. He asked defense counsel: “[D]o you want me to free up Mr. Urdíales more than I am contemplating doing?” In response, attorney Skelton asked only that defendant be given a writing implement short enough that it would pose no danger to counsel or anyone else. The court then stated: “DOC has had in the past inch pencils. *** It’s a very small pencil. We’ll explore that and come up with a writing material that couldn’t do you harm.” Still addressing the security issue, Skelton then stated:

“Half facetiously, the only thing I want to make sure of is that Mr. Urdíales is seated on a very heavy chair. For the record, I had an unfortunate experience about 14, 16 years ago where an inmate from Pontiac Correctional Center decided that a better place for a chair was on my head than on the floor. I know what the court’s talking about. I’ve been there.”

Elmore thereafter sought to clarify what had prompted the defendant’s courtroom outburst, noting that defendant “became upset not because he was shackled but because he could not communicate with his parents and Kendra Moses.” Elmore explained that defendant had originally told a Livingston County correctional officer that Moses was an attorney, and Elmore subsequently told them otherwise, noting that she was a “mitigator,” not an attorney. According to Elmore, defendant then turned and “glared at [Elmore] for a second,” prompting Elmore to caution defendant, “Andrew, we’re not going to do that now. She’s not an attorney.” Elmore said a correctional officer then politely informed defendant that he could not talk to Moses at that point in time. Elmore explained, “That’s what precipitated him becoming upset. It wasn’t even, in my mind, *** the fact he was shackled that’s what caused him to go off. Just to support your position further, it wasn’t the shackling I don’t think that really upset him. It was the fact he couldn’t communicate with Moses, and he went off.”

A prosecutor interjected, “He was lucky he was shackled at that point or he would have had much more free rein.” The same prosecutor added: “Mr. Elmore should tell you, but it’s up to him, that he knows something with regard to a previous meeting in prison in a room with Mr. Urdíales that he later learned endangered his own self; but he’d have to tell you that. I bring it up. I guess he doesn’t want to. It solidifies [the court’s] intuition, and I know about it from several months ago.” Although the judge indicated he would “ask the details,” the matter was apparently dropped as the court and parties moved on to matters bearing upon jury selection.

Jury voir dire began on April 19, 2004. At the outset, the trial judge advised potential jurors:

“You may or may not notice that Mr. Urdíales is in custody. And we have taken certain security measures because of that simple fact. You would expect us to do that for anyone who’s in custody. The fact that Mr. Urdíales is presently in custody should not impact in any way whatsoever on the determination of whether Mr. Urdíales is found guilty or not guilty ***.”

A total of eight jurors were selected for trial on the first day of selection. When jury selection resumed on the morning of April 22, defense counsel advised the court in chambers that defendant, “without any urging,” had raised the possibility of entering an open plea of guilty to the murder charges against him. Attorney Skelton noted: “If *** Mr. Urdíales determines that he wants to plead guilty without — and we are talking a straight guilty plea — not trying to structure in a way of guilty but mentally ill plea, that would — and it is an understatement to say — substantially modify the manner in which we would approach potential jurors, the remaining four, plus alternates in this case.”

The trial judge expressed concern over developments and stated the obvious: that defendant should take such an action only after “full deliberation.” The judge encouraged counsel to consult with defendant further.

After another brief period of consultation with defendant, attorney Skelton reported that defendant was steadfast in his desire to plead guilty; however, it was likely that defendant would enter a plea of guilty but mentally ill. The defense contemplated “a waiver of jury as to the first phase of the proceeding, plea of guilty, with the court determining the existence or lack of mental illness.” The defendant would retain his right to a jury trial for the sentencing phase of the death penalty proceeding. A prosecutor advised the court and defense counsel that the State would dispute whether defendant was in fact “mentally ill,” as that term is defined in the statute. Attorney Skelton, again speaking to procedure, reiterated that the court would decide whether defendant was mentally ill: “There would be a bench trial as to the existence or lack of mental illness. There would not be a trial before the Court as to the elements of the offense, that is that he killed Cassandra Corum.” Counsel advised the court that a jury would be needed for the “second and third” stages of death penalty proceedings, the eligibility and aggravation/mitigation phases.

After further discussion and consultation, it was decided that the court would admonish defendant the next morning and conduct a hearing on defendant’s plea of guilty but mentally ill (GBMI); however, the court would reserve ruling until jury selection was complete. Then the court would take additional evidence on mental illness, and either accept the plea of guilty but mentally ill or proceed with the jury trial.

On April 23, 2004, the defendant tendered his plea of guilty but mentally ill. The trial court admonished defendant thoroughly concerning the nature of the charge, the possible penalties, the three separate stages of a capital trial, and the variety of verdicts possible in the event the defendant retained his right to trial. The trial court explained that, by pleading guilty but mentally ill, the defendant would be giving up the defense of insanity, and a finding of guilty but mentally ill would not insulate him from a possible death sentence. The defendant indicated he understood the admonitions. The judge determined that defendant had not been subject to threats or coercion, and that his plea of guilty but mentally ill was voluntary.

The trial judge indicated he would not decide whether to accept the plea of guilty but mentally ill until there had been a full evidentiary hearing. The court explained the possible outcomes and ramifications of that proceeding, and defendant again indicated he understood. Defendant then signed and tendered a plea of guilty but mentally ill, which specified that he retained his right to jury trial on all issues if the plea was rejected, and his right to a jury for sentencing if the plea was accepted.

The State then presented an extensive factual basis for the murder of Cassandra Corum. Defendant did not dispute the factual basis presented, and the court concluded that there was a sufficient factual basis “with respect to the murder elements themselves.” The court again indicated that it would not accept the plea of guilty but mentally ill until there had been an evidentiary hearing on the issue of mental illness. Thereafter, jury selection resumed, with four additional jurors, and six alternates, chosen over the next several days.

After the completion of jury selection, defense counsel informed the court that, in the event the court rejected the plea of guilty but mentally ill, the defendant was considering waiving a jury for the guilt/innocence phase and requesting a bench trial to preserve his insanity defense. Noting that a jury had already been chosen and was waiting to hear the case, the trial judge expressed some reluctance to allow the jury waiver, as well as frustration with both the defense and the appellate court.

Nonetheless, on May 4, 2004, the parties and the trial court agreed to conduct two hearings simultaneously. Pursuant to the agreed mode of procedure, the trial court would consider whether there was sufficient evidence of mental illness to support defendant’s plea of guilty but mentally ill, i.e., whether defendant suffered from “a substantial disorder of thought, mood, or behavior” which afflicted him at the time of the offense and “impaired his judgment.” See 720 ILCS 5/6 — 2(d) (West 2004). In the event the court ultimately rejected the GBMI plea, the judge would also consider whether defendant had established the defense of insanity. The defense stipulated that the prosecutor’s previously recited factual basis was sufficient to establish the basic elements of the murder charge. Defendant was admonished regarding the proposed procedure, and consented to it, waiving his right to a jury trial on the guilt/ innocence phase.

For purposes of the dual proceedings, the trial court admitted and considered several exhibits documenting psychiatric evaluations of the defendant, and also heard live testimony from expert witnesses. The defense called three witnesses: Drs. Terry Killian, James Merikangas, and Daniel Cuneo. The State called two witnesses: Drs. Janet Wilier and Park Dietz. Written reports of Drs. Killian, Cuneo, Merikangas, and Dietz were among the exhibits considered by the court, as were reports received from two nontestifying defense experts, Drs. Charles Opsahl and Dorothy Otnow Lewis.

Dr. Killian, a psychiatrist, believed defendant was legally sane, but mentally ill, at the time of Corum’s murder. Killian diagnosed defendant as suffering from post-traumatic stress disorder (PTSD), bipolar mood disorder, panic disorder with agoraphobia, obsessive compulsive disorder (OCD), dissociative disorder, Tourette’s, personality disorder, and mild neurological impairment. Killian felt the most significant of these was dissociation, which is something like multiple personalities. Killian believed, in defendant’s case, an “angry part” of him “takes some degree of control,” though it “does not appear to be complete control as you would see in a full blown, multiple personality disorder.” Dr. Killian believed defendant was not malingering because he did not volunteer symptoms as he could have. Killian acknowledged that defendant had read a book by Dr. Lewis, his expert for his unsuccessful insanity defense in Cook County, and could have feigned symptoms from that book.

At one point in his testimony, Killian specifically stated that defendant, in his opinion, “was afflicted by a substantial disorder of thought, mood, or behavior which impaired his judgment but not to the extent that he was unable to appreciate the wrongfulness of his behavior.” Later, Killian was asked by defense counsel whether the term “mentally ill,” as used in section 6 — 2(d) of the Criminal Code, was consistent with his understanding of that term, as used in his practice. At that time, he acknowledged:

“Mentally ill is a pretty vague term in a clinical sense. Mentally ill is generally used in psychiatry to refer to a wide range of psychiatric disorders that impair people to mild extents, substantial extents, or impair them to the point where they are unable to function; so it’s a very broad term without a very specific definition in clinical use.”

Killian explained he could only “describe [defendant’s] symptoms [as observed or described to him],” put those together in “an organized diagnostic formulation,” and explain the “nature of the psychiatric disorders” and the reasons, and extent to which, defendant has them. He concluded, “[I]t is the fact finder’s position to decide whether that meets the burden of the law.”

Dr. Daniel Cuneo, a psychologist, also testified that defendant “had a substantial disorder of thought, mood, and behavior which impacted upon his judgment.” Cuneo examined defendant in 2003 and 2004, and concluded that he suffered from PTSD, bipolar disorder, Tourette’s, OCD, personality disorder, mild neurologic impairment, and a history of sexually transmitted diseases. Unlike Killian, who believed that dissociation was the most significant or substantial of defendant’s mental maladies, Cuneo thought that PTSD was the most significant of defendant’s disorders. Cuneo did believe that the defendant occasionally suffered from episodes of dissociation, which occurred during periods of extreme stress. In that regard, he noted defendant’s use of the pronoun “we” and the names Eric, Andy, and Andrew to refer to aspects of his personality. Cuneo did not believe that defendant was malingering.

In his report, Cuneo concluded that defendant’s mental illness “did not substantially impair his ability to appreciate the criminality of his conduct when he is alleged to have killed Cassie Corum. He could have controlled his behavior then and he knew that killing was wrong.” However, Cuneo testified to his belief that defendant’s “judgment was impaired throughout” due to escalating anger.

On cross-examination, Cuneo acknowledged that defendant’s actions during the killings exhibited planning and preparation, and that defendant “was clever enough to have killed individuals and hid it for a period of time.” Cuneo also conceded that it is possible for a person to be a “clever, mean, sexual, sadistic individual who likes to kill women,” yet not suffer from a mental disorder.

The prosecutor asked Cuneo about defendant’s “explosive anger,” which Cuneo believed had resulted in impaired judgment and violence. In posing that question, the prosecutor first noted that defendant had initially become angry with Cassandra Corum at Wolf Lake, “his favorite murder dumping ground of women.” The prosecutor next observed that defendant had restrained her there and then “drove a hundred miles from where he exploded in *** anger *** all the way to Pontiac, so he had a whole hour and a half of driving with her.” In light of those circumstances, the prosecutor asked whether defendant’s anger would have subsided by the time he got to Pontiac.

In response, Cuneo stated that defendant’s debilitating anger would not have subsided until “the murder was done.” He continued, clarifying his position: “I don’t believe, at any point, this individual was impaired to the extent that he was unable to think *** what I am saying is that it’s an impairment of judgment ***.”

Dr. Merikangas, a psychiatrist, opined that defendant had an organic brain disease, which rendered him insane at the time of the crime. Merikangas disagreed with Killian and Cuneo insofar as they diagnosed defendant with PTSD and dissociative personality disorder. Merikangas noted that scans of defendant’s brain in 2002 showed atrophy, which might have resulted from improper treatment of syphilis. Tests also showed frontal lobe damage, lack of reflexive response, and decreased blood flow and metabolism in the right temporal lobe of defendant’s brain. Dr. Merikangas believed episodes of loss of control and loss of reason were brought on by stress, such as sexual situations when defendant was belittled or there was a fight. Though Merikangas did not identify a source of stress, he reported that defendant had “a violent attack of rage at the Cook County jail” during Merikangas’ interview with defendant.

Dr. Opsahl’s report set forth a diagnosis of “significant neuropsychological impairment” and “paranoid psychosis in the presence of a cyclic mood disorder that includes elements of both hypomania and depression.” The report did not address defendant’s behavior at the time of the murder.

Dr. Lewis’ report concluded that defendant was “flamboyantly psychotic at the time of the alleged offenses and was operating in response to delusions and command hallucinations.” Lewis’ report contained statements by defendant that he heard voices that gave him instructions from the CIA. She also reported references to “Andrew and Eric” as separate personalities.

Dr. Wilier, a psychologist who worked for the Veterans Administration, saw defendant approximately 105 times between 1991 and 1996. She believed defendant suffered from mild depression and avoidant personality disorder.

Dr. Dietz, a psychiatrist, testified, rendering his opinion that, at the time of Corum’s murder, defendant had the capacity “to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law,” and he did not fit within Illinois’ statutory definition of guilty but mentally ill. Dietz concluded that defendant did not have a substantial disorder of thought, mood, or behavior, as required by the statute. Dietz diagnosed defendant as suffering from Tourette’s syndrome, a personality disorder with schizotypal traits, and sexual sadism. He believed it was defendant’s anger, rather than a substantial mental disorder, that impaired defendant’s judgment when he murdered Cassandra Co-rum. Dietz did not believe that defendant had PTSD, but even if he did, Dietz categorized PTSD as an anxiety disorder, not a mental illness; thus, it would not meet the definition of mental illness under Illinois law. He also rejected the possibility of organic, brain damage because neurological tests, and a magnetic resonance imaging (MRI) scan in 2004, were within the normal range. In Dietz’s opinion, defendant’s use of the passive voice and plural pronouns when describing his actions while murdering his victims was nothing more than a linguistic device “to distance himself from responsibility for the offense.”

Dietz believed that defendant’s judgment was in fact impaired when he committed the murder, but not by a mental illness. In Dietz’s opinion, “nearly everyone” who commits murder “has impaired judgment at the time, including this defendant.” Dietz testified that anger was the “one clearly provable element that impaired [defendant’s] judgment.” However, Dietz identified two other “prime candidates” as “sexual desire” and “a kind of predatory desire for conquest.” The latter observations were consistent with Dietz’s diagnosis that defendant was a sexual sadist, which he defined as one who exhibits “an enduring pattern of sexual excitement or desire involving the infliction of pain or the humiliation of others.”

Dietz based his diagnosis of sexual sadism primarily upon the account given by defendant’s sole surviving victim, J.A. As Dietz noted, her description of defendant’s behavior at the time he raped and tortured her is the only description of defendant’s criminal actions that was not given by defendant. Dietz summarized J.A.’s account of her ordeal as follows:

“[In] that incident he called her a bitch, held a knife to her throat, pulled her head into the dashboard, bound her hands behind her back, pulled her by the hair to force fellatio, cut off her shorts, underwear and bra, gagged her with her underwear and bra, called her a bitch, a whore, a slut, as he raped her vaginally, scripted her language, namely telling her exactly what to say. He directed her to say that she loved him. Hit her, strangled her to the point of unconsciousness, and bit her neck drawing blood. That is a classic textbook description of the abducting and rape of a woman by a sexual sadist. Because he is demeaning her, controlling her, causing her pain while experiencing sexual excitement. Every feature of that is exactly what we expect to find in sexually sadistic types. And the significance of [J.A.’s] account is that she is the only living victim of rape and abduction that can tell us what defendant actually does with a victim. For every other case, that is the eight homicides, we only know what the corpse can tell us and what the defendant is willing to say.”

Dietz acknowledged that a single incident is not sufficient to diagnose sexual sadism, so he supported his diagnosis with another reported incident — one that led to defendant’s arrest — in which a prostitute described a 1997 encounter with defendant. Patricia Kelly reported that defendant had asked her to accompany him to the Wolf Lake area and allow him to handcuff her, duct tape her, tie her up, and have sex with her in the back of his truck. Dietz believed that request was also suggestive of sexual sadism. Dietz answered affirmatively when the prosecutor asked whether there were “some similarities concerning binding and gagging and binding and abusing the other victims even though they are not here to tell us.” Finally, Dietz reported that defendant had acknowledged that there is a part of him “that enjoys torture, that would like to inflict as much damage as possible, that enjoys bondage and sadomasochistic activity, that wants to control.”

At the conclusion of the evidentiary portion of the hearing, the circuit court indicated it would entertain arguments of counsel. Attorney Skelton then asked the court: “What standard is the Court applying concerning the existence of the factual basis for the existence of mental illness at the time of the offense?” An extended discussion ensued between the parties and the court concerning the appropriate standards and evidentiary burdens the court would apply, with the defense arguing that the court had no authority to weigh the evidence adduced on the issue of mental illness. At the conclusion of that discussion, the court stated its belief that cases pertaining to uncontested guilty pleas would not apply to defendant’s plea of guilty but mentally ill, since the State, in this case, was contesting whether defendant was in fact mentally ill as defined in section 6 — 2(d) of the Criminal Code. The court nonetheless commented that “the burden the defense has at this proceeding *** dealing with whether the court should accept or reject the plea of guilty but mentally ill is not a preponderance of the evidence. That would be the case at bench trial. It is less than that.” However, the court still determined that it should “weigh” the evidence presented at the hearing, noting that defendant was not entitled to have the court “simply disregard the evidence presented by the State.” Following arguments of the parties, the court indicated it would recess over the weekend to consider the evidence and arguments.

On the morning of May 10, 2004, the court announced its rulings in chambers in order to protect the defendant from media coverage and to ensure that the sentencing jury would not be tainted when it later heard evidence of mental illness. First, having weighed the evidence presented by the defense and the prosecution, the trial judge stated he was not satisfied that a factual basis existed to support defendant’s plea of guilty but mentally ill, noting that “the evidence fails to establish by a preponderance of the evidence that the defendant was guilty but mentally ill at the time of the incident complained of.” Moreover, the court ruled that defendant had not established, by a preponderance of the evidence, that he was insane at the time of Corum’s murder. Finally, the court found the State had proven, beyond a reasonable doubt, that defendant was guilty of first degree murder as charged in the indictment.

In support of his ruling, the trial judge noted that the principal defense witnesses disagreed in their primary diagnoses. Cuneo believed that defendant suffered, primarily, from PTSD; Killian’s principal diagnosis was dissociation; and Merikangas determined that defendant suffered from organic brain disease, disagreeing with Killian’s and Cuneo’s diagnoses of PTSD and dissociative personality disorder. Killian and Cuneo believed that defendant was legally sane, but mentally ill, as defined in section 6 — 2(d); Merikangas testified that defendant was insane, as defined in section 6 — 2(a).

The court also found that defendant’s experts had failed to explain how defendant was able to function in society during his seven years in the Marine Corps, or employed as a security guard, while suffering from the diagnosed illnesses. The court found that defendant’s actions during the offense were inconsistent with those of a person overcome by anger. To the contrary, they demonstrated planning and organization. The court rejected the assessments of Merikangas and Killian that defendant’s crimes were not characterized by planning and organization, noting that defendant brought a gun, a knife, duct tape, and handcuffs. The court concluded, “the defendant went prepared and in fact successfully carried out this murder as well as seven others.” With respect to the defendant’s psychiatric evaluations, the court observed that defendant had “learned some things” about evaluations in the course of his unsuccessful trial in Cook County. As Killian acknowledged in his testimony, defendant had read Lewis’ book, titled “Guilty But Mentally Ill.”

The trial judge found the testimony of Dr. Dietz “substantially more persuasive and more convincing than that of the defense experts.” As noted, Dietz believed that defendant was not legally insane and he did not meet the statutory criterion for a finding of guilty but mentally ill. The court accepted Dietz’s assessment that defendant is a sexual sadist and is “angry at the world and his unsuccessful circumstances in life.” The court stated: “[T]o rule in favor of the defense, I would have to totally set aside the testimony of Dr. Park Dietz, which *** I find to be the most convincing and persuasive of the witnesses,” and “even more importantly, to find in favor of the defense, I would have to disregard the facts of this case.”

After announcing his ruling, and before convening in open court, the trial judge revisited the issue of courtroom security, noting that the jury would not see the shackling of defendant because of skirting around defendant’s table, reiterating his earlier findings, and enunciating two additional factors. The court noted, since its original ruling regarding the physical restraint of defendant, the court had been apprised of the full extent and scope of defendant’s homicidal activities in California, and had heard psychiatric testimony pertaining to defendant’s explosive personality. With those additional comments, the court inquired of defense counsel:

“THE COURT: So that is the record on shackling. I guess I should give the defense an opportunity to suggest that I do something differently. I would ask Mr. Skelton and Mr. Elmore, are you asking that I do something differently on shackling than I have decided to do?

MR. SKELTON: Given the totality of the circumstances and the discretion given the Court which I believe is an accurate assessment of the physical layout of the courtroom and the shackling devices and means by which our client is secured in the courtroom, I don’t think it is an issue, Judge.

THE COURT: All right. Mr. Elmore.

MR. ELMORE: No, Judge. I think what you have done is appropriate under the circumstances.”

The court then advanced the proceeding to the eligibility phase of sentencing. Defendant waived a jury for the purpose of determining whether he was eligible for the death penalty. Without objection, the State introduced defendant’s birth certificate, showing him to be over 18 years of age, and certified copies of defendant’s two murder convictions in Cook County. The trial court subsequently found that defendant was over the age of 18 when he murdered Cassandra Corum and he had been previously convicted of murdering two women in Cook County, thereby establishing his eligibility for a death sentence under section 9 — 1(b)(3) of the Criminal Code (720 ILCS 5/9 — 1(b)(3) (West 2004)).

At the beginning of the third phase of this capital proceeding, the trial court advised the jurors of developments in the first two phases — to which the court had referred during jury selection — explaining why jurors had not participated in earlier stages of the proceeding, and bringing the jurors current on findings made during the initial phases of the trial. The court read the jurors the statutory definition of insanity, and advised jurors that the court, pursuant to defendant’s jury waivers, had determined (1) that the State had proven defendant guilty of Corum’s murder beyond a reasonable doubt, (2) that defendant had not proven by a preponderance of the evidence that he was legally insane at the time of the offense, and (3) that defendant was eligible for the death penalty because he was over 18 years of age at the time of the offense and had been previously convicted of murdering two or more persons. The court noted that those findings were binding upon the jury, and informed the jury that its function would be to determine whether death was the appropriate sentence. With that, the parties gave their opening statements.

Early in defense counsel’s statement to the jury, he acknowledged that the trial judge had rejected defendant’s “plea of insanity,” but he advised the jurors that they could “still consider the background of Mr. Urdíales *** to see whether or not, not that he is insane, but did he suffer from any mental illness or mental disease or mental defects. Did it reduce his ability to think and act? Did it reduce his ability to perform like a normal, healthy person?” Counsel told the jurors, “Those are facts that you must also consider.”

Later, when describing the harsh conditions of incarceration, which he likened to life “in a cage,” counsel again stated, “The evidence will show that while Andrew Urdíales is not insane, *** he suffers from mental illness or mental disease.” Still later, counsel stated:

“Mr. Urdíales, in fact, does suffer from defects of the brain. And so the question then becomes do we as a society treat someone who is mentally ill as opposed to someone who is mentally healthy the same. And we suggest not. We suggest that the most appropriate way is to punish by life in prison without the possibility of parole.”

Counsel concluded his opening statement with yet another reference to defendant’s mental illness. With the conclusion of opening statements, the State presented evidence in aggravation.

In aggravation, the State presented evidence of the eight murders committed by defendant, as well as J.A.’s testimony describing how defendant kidnapped, raped, and attempted to murder her. In the interests of brevity, we will substantially summarize that evidence, which is derived from police investigations of the crime scenes and from interviews with defendant. We note that defendant’s description of events did not always agree with the physical evidence discovered at the crime scenes, as was the case with the murder of Cassandra Corum; however, to simplify the descriptions of the murders, we will generally recount defendant’s version of events.

Defendant’s first murder victim was Robbin Brandley, a California college student he killed in January of 1986. At that time, defendant was in the Marines and stationed at Camp Pendleton in California. Defendant told police he was upset about some friendships at the base, so he decided to rob someone. Defendant took a “big old hunting knife,” approximately 11 inches long, and drove to a college just north of Camp Pendleton. When he arrived, he took up a position in a poorly lit area and waited for someone to walk by. When defendant saw Brandley, he came up behind her, put his hand over her mouth, and told her he wanted her purse. She immediately complied; however, defendant just put the purse on the hood of her car and began stabbing her in the back. After she fell to the ground, defendant stabbed her several more times in the chest. Once, when defendant stabbed her in the ribs, the knife got stuck, and he had to step on her body in order to remove it. Defendant left Brandley in the parking lot to die, having stabbed her a total of 41 times in the back, hands, neck, and chest. Defendant told police that his victim “could have been anybody,” and that Brandley “was just a random female.”

After the murder, defendant had blood on his jeans, jacket, and hands. In order to conceal the blood, and get back on the base, defendant rubbed grease from his car’s engine over his clothes to hide the blood. When he returned to the base, defendant told the military police that his car had broken down and he had to fix it. The police believed defendant’s story, which made defendant think they were “dumb shits.”

Defendant indicated he had the same knife with him when he later had sex with a prostitute in Hollywood. Defendant said, “[S]he was lucky.”

In July of 1988, defendant committed his second murder, killing Julie McGhee in Cathedral City, California. Defendant picked up McGhee on a road frequented by prostitutes and drove her to a remote construction area, where they had sex. Afterwards, defendant got his gun and ordered McGhee out of the car. When she got out, he shot her in the head. Defendant noted he “really didn’t feel anything” after killing McGhee. He said it was “just so quiet and peaceful” that he got in his car and drove to a bar where he “had some beers and watched the girls dance.”

In September of 1988, defendant killed his third victim, Mary Ann Wells. Defendant picked up Wells, who was working as a prostitute, and drove her to an industrial area in San Diego, where they had sex. After he finished, defendant shot Wells, recovered the $40 he had paid her, dumped her body in an alley, and drove away.

Defendant murdered Tammy Erwin in Palm Springs in April of 1989. Defendant had had sex with Erwin on at least one occasion prior to April 1989. On the night of the murder, defendant picked up Erwin and took her to a vacant lot, where she performed oral sex on him. Defendant did not remember arguing with Erwin, but he did recall shooting her while he was outside of his truck. After defendant shot Erwin, he got into his truck to leave, but noticed that Erwin was still standing up, clutching her head. Without getting out of his truck, defendant shot Erwin a second time, after which she fell to the ground. Defendant shot her a third time, before driving off.

Defendant was discharged from the Marines in 1991, and moved back to Chicago to live with his parents. In September of 1992, defendant returned to California for a short visit. During that visit, he kidnapped, raped, and attempted to murder J.A.

In his statement to police, defendant indicated he first saw J.A. at a bus stop and offered her a ride. En route to J.A.’s house-sitting job, defendant obtained a telephone number from J.A., which he subsequently-determined was a “bum” number. The next morning, defendant waited for J.A. to get off work and offered to take her out for breakfast. J.A. agreed, and got in the car.

Defendant later related he was “just feeling upset about the number or something,” and “something was just kind of building up, you know, tension.” After driving a short distance, defendant stopped the car, reached over and grabbed J.A. by the hair, and produced a gun. Defendant observed that J.A. became “pretty much submissive from that part forward.” Defendant ordered J.A. to turn around, and he tied her hands behind her back. Defendant later told a police officer:

“I think *** before we started moving after I tied her hands up, I reached over and I kissed her. I just put my lips on her mouth and then I just started, you know, I was trying to make out with her.”

When defendant started driving again, J.A. told defendant she would do anything he wanted, so defendant unzipped his pants, pulled J.A.’s head down, and said “suck my dick” or “suck my cock.” J.A. then performed oral sex on defendant until he tired of it and “picked her back up.” In an interview with police, defendant remarked: “She kept asking me where we were going and she’ll do anything I want. Shit like that, you know.”

Defendant drove out into the desert, stopping at one point to cut J.A.’s panties and bra off. Defendant then rolled up J.A.’s panties and stuffed them in her mouth. Defendant eventually “tried to rape” J.A. Defendant said she “tried to help” him, but “nothing happened” because he could not achieve an erection. After a while, defendant became angry and the “tension” began to build. Defendant said he began to choke J.A., “and she kept kicking and *** her saliva was coming out of her mouth and *** her face was turning blue and then red and it was just a battle *** for awhile.” Eventually, defendant’s hand started to get tired and stiff, so he got off J.A. and sat down.

Thereafter, defendant got his gun and pulled J.A. out of the car. He forced her to her knees and again made her perform oral sex on him. Defendant eventually tired of that. Frustrated, he grabbed J.A., walked her to the back of the car, forced her into the trunk, and drove off. At some point during the drive, the lid of the trunk popped open and defendant stopped to slam it shut. Before defendant could get underway again, the trunk popped open a second time, J.A. jumped out, and she ran away screaming. Defendant later told detectives his first thought was to shoot her, but he decided against it because there were several cars nearby. Defendant got into his car and drove away. He told the police: “So that was the last time I saw her. I don’t know if somebody else picked her up and finished where I started.”

J.A., defendant’s sole surviving victim, testified at the defendant’s sentencing hearing. Because J.A.’s testimony provides unique insight into defendant’s activities with one of his victims, and the perspective of that victim, we discuss J.A.’s testimony at length.

J.A. said she accepted a ride with defendant on the evening of September 27, 1992, because she would otherwise have been late for work. Defendant repeatedly asked her for her phone number, so she eventually gave him a fake number. He then dropped her off at work.

The next morning, as J.A. left work, defendant drove up behind her and asked her if she wanted to get some