People v. Runge (234 Ill. 2d 68, 2009)

JUSTICE KARMEIER

delivered the judgment of the court, with opinion.

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

Justice Burke dissented, with opinion, joined by Justices Freeman and Kilbride.

OPINION

Defendant, Paul Runge, was indicted in the circuit court of Cook County for the first degree murders of Yolanda Gutierrez and Jessica Muniz. See 720 ILCS 5/9— 1(a) (West 1996). The State filed notice of intent to seek the death penalty. A jury subsequently convicted defendant of both murders. Thereafter, the jury found defendant eligible for the death penalty on eight statutory grounds. After considering evidence in aggravation and mitigation, the jury concluded that death was the appropriate sentence. See 720 ILCS 5/9 — 1(g) (West 1996). The circuit court 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 IH. 2d R. 603.

On appeal, defendant contends that (1) a biased juror served on his jury, denying him an impartial jury, and the trial court’s failure to question other jurors about that juror’s activities denied defendant due process; (2) the trial court erred in excluding, as irrelevant, the sexually violent person petition filed against the defendant, as the petition constituted a party admission, and was the basis for a defense argument of judicial estoppel; (3) denying depositions of the prosecution’s experts, while allowing depositions of the defense experts, was an unbalanced, unauthorized, and excessive sanction, when defendant, on the advice of counsel from another county, invoked his right to remain silent when examined by the prosecution’s expert on the murder charges in this case; (4) the prosecution’s closing argument inaccurately denigrated the testimony of two defense experts, based upon misstatements of testimony; (5) the prosecutor improperly asked irrelevant questions concerning victim impact evidence pertinent only to other crimes; (6) the prosecutor’s closing sentencing argument improperly relied on irrelevant, extraneous assertions and specious reasoning to defeat mitigation based on the death of defendant’s mother; (7) “death is cruel and unusual punishment for crimes committed under the influence of a neuropsychological disorder that may have biological causes, that distorts reality, diminishes impulse control and memory, and for which state legislatures provide for civil commitment and medical treatment”; and (8) the Illinois death penalty statute violates due process under Apprendi v. New Jersey because the State is not required to prove beyond a reasonable doubt that, after weighing the factors in aggravation and mitigation, death is the appropriate sentence.

We begin our discussion with a summary of the principal evidence adduced at trial. Facts pertaining to procedural issues will be provided separately in the context of our analyses of those issues.

BACKGROUND

On the morning of February 3, 1997, a neighbor discovered flames coming from the Chicago apartment occupied by Yolanda Gutierrez and her 10-year-old daughter, Jessica Muniz. When firefighters arrived, they found the bodies of Yolanda and Jessica on a burned bed. John Escamilla, a cause and origin investigator with the Chicago fire department, noted pour patterns, indicating the use of an accelerant on the rug around the bed. He also observed what appeared to be a restraint on Jessica’s wrist. In his opinion, the fire resulted from the deliberate act of pouring a liquid accelerant onto the bed and the victims and igniting the accelerant.

Dr. Scott Denton performed autopsies on Yolanda’s and Jessica’s bodies. Yolanda’s body was clad in burned and fragmented clothing, and she had a gaping sharp-force wound to the neck that cut her carotid artery and jugular vein. The wound went deep through the front muscles of the neck, through the large side muscle of the neck, and involved the back of the throat. About half her body had extensive burning and charring. Her vaginal opening was gaping open, which was consistent with a sexual assault. Denton testified that Yolanda died from an incise wound to her neck.

Jessica, like her mother, wore fragmented, burned clothing. She had a gaping sharp-force wound across her neck and was nearly decapitated. Approximately 75% of her body was burned. In addition, on her shoulder Den-ton noted a stab wound two inches by one inch and one inch deep. During the examination, a tampon, with the plastic applicator still on it, fell from her vagina. Two areas of tearing of her vaginal opening were evident, consistent with sexual assault. In addition, there was redness in the upper and lower parts of her anus, again consistent with sexual assault. At the back of Jessica’s throat, Denton noted an area of purple hemorrhage that could have been consistent with the insertion of an adult penis to the back of her throat. He found pulmonary foam from the lung in her airway and observed that her brain was swollen. The swelling indicated loss of oxygen to the brain, which would take perhaps two minutes to begin swelling. At the time Jessica’s throat was slashed her brain was deprived of oxygen. Denton believed it would take approximately three to five minutes of oxygen deprivation for her to die from her injuries or suffer irreversible brain damage.

Solveig Sullivan worked as a forensic scientist for the Illinois State Police (ISP). In February of 1997, he received blood standards and vaginal, oral, and rectal swabs from the bodies of Jessica and Yolanda. Sullivan found no semen on Yolanda’s swabs, but a preliminary test indicated blood on her vaginal swab. Blood was indicated on all three of Jessica’s swabs and semen was identified on her rectal and oral swabs.

Karla Cluck, a forensic scientist for the ISF obtained a male DNA profile from Jessica’s oral swab and Jessica’s DNA profile. Karen Abbinanti, another forensic scientist for the ISP, obtained a DNA profile from a standard taken from defendant and compared it to the male DNA profile from Jessica’s oral swab. Abbinanti determined that defendant could not be excluded as the source of the male DNA from Jessica’s oral swab. In fact, that DNA profile would be expected to occur in only 1 in 32 trillion Caucasians. Abbinanti concluded that the semen from the oral swab was consistent with having originated from defendant.

Chicago police department Detective Frank Cappitelli received a report from the ISP in September 2000 and met with defendant on June 7, 2001, at the Will County jail. Defendant initially denied any knowledge of the murders; however, when Cappitelli confronted defendant with the ISP crime labs reports, defendant looked at them for a period of time, then said, ‘You know I did it, you got me.” Subsequently, Assistant State’s Attorney Bob Milan met with defendant and went over the lab report with him. Milan stated that the semen in Jessica’s mouth was defendant’s, and defendant agreed. Defendant agreed to make a videotaped statement.

In the statement, defendant admitted that, on January 31, 1997, he contacted Yolanda Gutierrez about a Hooked on Phonics program she was advertising for sale. He went to her apartment and discussed the program with her, then said he would discuss it with his wife, and he left. Defendant said he and his wife, Charlene, went to Yolanda’s apartment on February 3 to view the program. According to defendant, Charlene argued with Yolanda and grabbed her. Defendant claimed that Yolanda grabbed a knife and told Charlene to leave. He said he grabbed the knife from Yolanda and pushed her to the floor. Defendant stated that he asked Charlene for something to tie up Yolanda, and Charlene brought him duct tape which he used to tie Yolanda’s and Jessica’s hands. Defendant then put Yolanda and Jessica on the bed. Defendant said he attempted to calm Charlene, then had sex with her on the bed between Yolanda and Jessica. Defendant stated he then pulled down Yolanda’s shorts and had vaginal, anal, and oral intercourse with her. Thereafter, he pulled down Jessica’s sweatpants and had vaginal, anal, and oral intercourse with her as well. He pulled both their pants up afterward, and proceeded to cut Yolanda’s throat with a knife and cut Jessica’s neck as well. According to defendant, Charlene came to him with a can of turpentine-like fluid. He ignited the bed with a match, and he and Charlene left.

On June 10, 2001, Cappitelli interviewed defendant’s ex-wife, Charlene, regarding her involvement in the murders. Subsequently, Milan and Cappitelli spoke to defendant and advised him of what Charlene had said. Eventually, defendant admitted that he had lied about Charlene’s participation; he admitted she was not present when he committed the crimes.

Defendant then gave a second statement wherein he admitted he went to the Gutierrez apartment alone on February 3, having been there previously on January 31, at which time he discussed the Hooked on Phonics program and observed both Yolanda and Jessica. On the latter date, defendant entered the apartment intending to rape Yolanda, and he had duct tape and a knife in his coat pocket in furtherance of that objective. Once inside the apartment, defendant closed the door, pulled out the knife, and grabbed Yolanda around the front, placing the knife to her throat. Defendant told Yolanda to be quiet and come to the bed and to direct her daughter to do so. Once he had both Yolanda and Jessica on the bed, he taped their hands behind their backs. He said he then had vaginal, anal, and oral intercourse with each of them, as indicated in his initial statement. Although defendant did not recall ejaculating, he admitted he must have. After defendant had intercourse with the little girl, she was bleeding from her vagina. In response, defendant found a tampon and put it in her vagina. He then put Jessica’s pants back on. Thereafter, defendant located a can of turpentine or remover and set it by the bed. He then took his knife and cut Yolanda’s neck. A gurgling sound came from her neck, and her blood flowed onto the bed. Defendant moved over to Jessica, and cut her neck as well. Again, there was a gurgling sound, and blood sprayed onto the bed. After he had slit their throats, he picked up the can, poured the liquid over them, lit a match, and threw it on the bed. Defendant said he did that to hide the fact that he had slashed their throats. After setting the fire, defendant took the duct tape, the knife, and the can, and he left the apartment. In his videotaped statement, defendant indicated he could help with other unsolved cases.

For purposes of clarification, we note, in passing, that those other unsolved crimes were, like the crimes at issue here, perpetrated between 1994, when defendant was paroled for an earlier offense, and August of 1997, when his parole was revoked and he was again incarcerated. That revocation was the result of an FBI search of defendant’s home in March of 1996, a search wherein weapons were found. A petition was eventually filed in 1999 for defendant’s civil commitment under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)), and defendant was held in the custody of the Department of Human Services (DHS) during the pendency of that action. That petition was withdrawn when charges were filed in this matter. With those observations, we continue with our recitation of the facts in this case.

Dr. Michael Stone, a clinical psychologist, testified for the defense. Stone indicated that he evaluated defendant on August 29, 2005, after having interviewed him face-to-face for about 90 minutes. Stone diagnosed defendant as a sexual sadist with borderline antisocial personality disorder and narcissistic features. Stone described a sexual sadist as someone who derives sexual pleasure from the fear, pain, and restriction of another. Stone noted there are degrees of sexual sadism corresponding to the person’s ability to control violent fantasies and compulsion; not all sexual sadists are criminal and homicidal. Much of a sadist’s initial behavior is conscious and deliberate, but as he gets into his particular obsession, it becomes harder to control the situation because it is very emotionally driven and sexually fulfilling to the sadist. According to Stone, defendant demonstrated “minimal ability to control” his behavior. Stone believed that the onset of defendant’s sexual sadism occurred at age 17, that his mother’s death around that time was traumatic for him and could have affected his ability to control his sexual sadism — though Stone could not be sure how much defendant’s mother’s death caused any of his actions — and that his condition worsened over the years, with reduced control over his behavior and increased influence of sexual and violent stimuli.

Specifically, Stone testified that defendant, at the time of the murders, was suffering from a progressive loosening of control and was at risk of impulsively acting out. He stated that defendant lacked the ability to control his behavior. In that regard, Stone expressed the opinion that defendant was insane for purposes of criminal responsibility.

Stone subsequently acknowledged, under cross-examination, how someone acts upon their sexual sadism is a “choice” they make. In defendant’s case, he identifies particular types of women, looks for an opportunity, looks for specific vulnerability, and isolates that person and situation. Stone stated that defendant makes “a composite decision” to act or not. Stone acknowledged that defendant would conduct surveillance of a particular woman to determine whether it was feasible to have violent sex with her. Stone noted “it’s a combination of the circumstance and the person turning him on, that it being something where he’s not likely to get caught and go to jail.” Stone could not rule out that defendant’s actions included a component of destroying evidence in addition to inflicting pain. He agreed that, as a consequence of earlier offenses perpetrated upon a different victim, who survived, defendant may have learned that allowing a victim to live, after a sexual assault, could result in his arrest and imprisonment. In Stone’s words, “That’s certainly one take on it, yes.”

Stone acknowledged that there were occasions in late 1996 and early 1997 when defendant encountered women, isolated them, intended to act sexually and violently, but chose not to do so because there was a presence involved that he did not want to deal with. In other instances, defendant had planned, identified women, gathered information, acted upon his intent, and concealed his actions. Stone admitted defendant would be less likely to act if a police officer were present. In Stone’s notes, he wrote that defendant said he knew exactly what he was doing and that he was aware of the seriousness of his crimes and took personal responsibility for them.

Dr. Barry Leavitt, a clinical psychologist, was called by the defense to testify. Leavitt did not evaluate defendant for the purpose of establishing whether he had a “mental illness,” as defined by Illinois law, or whether defendant was insane. Leavitt had no opinion as to whether defendant was sane or mentally ill at the time of the charged offenses. Instead, Leavitt had evaluated defendant in March of 1999 to determine whether defendant met the statutory criteria for commitment as a sexually violent person under Illinois law. The issues Leavitt was called upon to address in that context were whether defendant had a “mental disorder” which predisposed him to future acts of sexually violent behavior and whether, if he had such a disorder, there was a substantial probability that he would re-offend in the future. Leavitt conducted his evaluation on behalf of the DHS to determine whether defendant would be recommended for civil commitment following his parole. The conclusions of Leavitt’s report were in accord with those contained in a report submitted by Dr. Jonas, which was filed in support of a petition for commitment under the Sexually Violent Persons Commitment Act.

Leavitt noted that, in 1987, defendant had lured a 14-year-old girl to his home, while his father and brother were out of town, and had sexually assaulted her. Defendant restrained the girl with handcuffs, used duct tape to cover her eyes and mouth, used a knife, and raped her vaginally, anally, and orally. Defendant claimed it was consensual, and that he did not threaten, intimidate her, or use violence. In that respect, Leavitt did not believe defendant was being truthful, as there was a marked contrast between the information Leavitt had about the 1987 sex offense and defendant’s description of the event. Leavitt said it was common for criminals to minimize their behavior and that is consistent with sanity and with people suffering no mental illness. Based on his examination of defendant and the 1987 incident, Leavitt saw elements of planning and forethought that indicated defendant had a capacity for control. There was an opportunistic quality to the way he carried out the crime. Defendant ran when the police responded to his home, indicating that he knew he had done something wrong. Dr. Leavitt took into consideration Dr. Kaplan’s 1987 examination, finding that defendant was able to conform his conduct to the requirements of the law and was sane at the time of that offense. However, Leavitt did suggest the more severe the disorder, the more difficult it might be for a sexual sadist to resist his urges. Leavitt was not aware of any instances when defendant lost control of his sexual urges in public.

Defendant described his upbringing to Leavitt as “essentially normal.” Defendant admitted to a fairly early interest in various types of pornography. He described his plan, while incarcerated, to collect virtually every type of pornographic magazine and rent them out to other inmates as a “hustle.” Leavitt felt that spoke to defendant’s propensity to brag and his capacity to be shrewd, calculating, and manipulative. Although defendant was incarcerated for six years as a result of the 1987 sex offense, he chose not to participate in sex offender counseling.

Leavitt testified that defendant functions, intellectually, within the normal range, with no evidence of mental or cognitive impairment. On the Minnesota Multiphasic Personality Inventory (MMPI), defendant’s answers indicated he was highly self-centered, possessed a strong need for immediate gratification, and lacked insight into his psychological issues. The test also indicated he was likely to be impulsive and would have “potential issues” controlling his behavior; however, Leavitt acknowledged that the MMPI results did not prove that defendant could not control his behavior.

Leavitt diagnosed defendant with sexual sadism and personality disorder not otherwise specified with antisocial and narcissistic features. His diagnosis of sexual sadism was based on defendant’s documented history of sexual behavior, particularly the 1987 case. He noted that a diagnosis of sexual sadism does not necessarily mean a person will engage in criminal behavior. When asked if sexual sadism is a serious “mental illness,” Leavitt responded that it is a “serious psychological condition.” He said it is possible for someone suffering from a severe kind of sexual sadism to be insane or mentally ill, or, on the other hand, to commit a crime and be sane and not mentally ill.

Dr. James Merikangas, a neurologist and psychiatrist, conducted a 90-minute, face-to-face interview with defendant. His notes of the examination do not reflect all the topics they discussed. Merikangas did not talk to defendant about the murders in this case, and he did not videotape the interview. He has personally treated or evaluated approximately six persons with sexual sadism. Merikangas diagnosed defendant with sexual sadism and opined that defendant showed subtle signs of brain damage often associated with sexual sadism. He suggested that one subtle sign of brain damage was the existence of a palmomental reflex on the right side of defendant’s lower lip. Merikangas acknowledged a study suggesting that over 10% of normal people have the soft neurological sign of the palmomental reflex, and that the reflex itself does not support a specific diagnosis. Merikangas also stated that defendant has motor impersistence of the tongue, which Merikangas believed correlates to poor impulse control. Merikangas acknowledged that defendant does not suffer from impulsivity all the time. As part of his evaluation of defendant, Merikangas conducted a partial mental status examination, and concluded that defendant was quite intact and normal.

Merikangas also reviewed CT and MRI scans of defendant’s brain. From an MRI scan, Merikangas discerned what he believed were two abnormalities: an enlarged ventricle on the right temporal lobe and enlarged sulci in the right posterior parietal lobe. He opined that the temporal lobe is the structure “most implicated in the scientific studies on sexual sadism.” Merikangas described the enlarged sulci as spaces in the brain resulting from atrophic shrinkage. He could not say that such shrinkage had a specific effect, he simply considered it an abnormality. Merikangas further testified there was an enlarged space in the right frontal lobe at the top of the brain, and indicated there were subtle changes that the “average radiologist” would not see as a problem. He acknowledged it is the job of radiologists to look for such abnormalities, that they “perform CT examinations and MRI examinations all day long, all year long,” and that they found no abnormalities at all in defendant. Merikangas conceded that nothing on any scans had a direct correlation to behavior in and of itself:

“PROSECUTOR: In other words, we could have ten people whose MRI looked identical to that [of defendant] and all ten of them could be not criminals or not mentally ill; is that correct?

MERIKANGAS: That’s possible, yes.

PROSECUTOR: They could even be from all walks of life, correct?

MERIKANGAS: They could be lawyers.”

Merikangas described defendant as being normal 95% of the time, but when his urges built up he would become extremely violent and would rape and murder. Afterward, defendant would be repulsed by the scene and would tend to clean up. On direct examination, Merikangas testified that defendant, during his “frenzy,” would have little control and would act on his urges even “if there was someone in the next room, *** without regard for anything else around him.” On cross-examination, Merikangas conceded that, to his knowledge, defendant had never committed a sexually sadistic act in the middle of the street, or in a store, or anywhere in public. Merikangas opined that, on the day the crimes were committed, defendant lacked substantial capacity to conform his conduct to the requirements of the law, i.e., he was legally insane. Merikangas stated that defendant does not have to act on his sexual sadism all the time, but sometimes he does. Merikangas testified that the acts of sexual sadism are separate from the concealment of the crime. Merikangas acknowledged that setting the victims’ bodies on fire was likely an act of concealment, not part of defendant’s sexual sadism. Merikangas testified, “After the sexual sadistic acts he takes measures to prevent being caught. That’s self-preservation.”

“PROSECUTOR: And obviously killing [the victims] prevents them from testifying against him; is that correct?

;¡c % ^

MERIKANGAS: Yes. I mean, they can only testify through the autopsy that was performed and which gave the DNA which allowed him to be captured.”

Merikangas doubted that defendant would have committed the acts in this case if a police officer had been present. He acknowledged that he relied upon the findings of Drs. Obolsky and Kaplan, and that Obolsky had found defendant to be sane.

Dr. Park Dietz, a forensic psychiatrist, testified for the prosecution. Among his other credentials, Dietz has served on two committees involved in rewriting the Diagnostic and Statistical Manual of Mental Disorders (DSM-III and IV). One of his responsibilities was the section pertaining to sexual sadism and sexual masochism.

Dietz examined defendant November 7-9, 2005, from approximately 9 a.m. to 5 p.m. each day. Dietz noted that evaluations of defendant performed in 1987, 1994, 1997, 1998, 1999, and 2000 showed no major depression, no organic brain dysfunction, and no psychosis. Dietz stated those “three things related to mental disease or defect had never been observed.” Dietz testified that defendant never had any neurological symptoms other than migraines, he has a normal IQ, has no history of head trauma, never showed abnormalities in mental status examinations, and had normal CT and MRI scans of the brain. In his opinion, there was no brain dysfunction of any significance. Dietz conducted a mental status examination of defendant and found him to be normal.

In his opinion, defendant does not suffer from any mental disease, defect or mental illness. Defendant has sexual and personality problems. Dietz said only a tiny percentage of sexual sadists actually commit crimes against strangers for sexual pleasure. Sexual sadists do whatever they wish about their impulses because their behavior is in their control. “[W]hat is clear is the vast majority of sadists don’t commit crimes because they have a conscience, they are law-abiding, they don’t want to go to prison, they draw a line somewhere what they are willing to do for the sake of an orgasm.”

Speaking to defendant’s ability to control his behavior, Dietz observed:

“Mr. Runge told me that he didn’t assault the women in *** two cases because of the presence of a baby. And then he said he likes babies and did not want to take the mother away from the baby and knew that if he raped them he would probably kill them.

* * *

That indicates that he is in control of what he is going to do. He already had the intent. He had already picked a target. He had made his plan. And yet something as simple as seeing a baby there allows him to stop himself and leave. That could not occur if he were in some frenzy as he begins to do this.

* * *

He told me the presence of a baby was enough for him to be able to leave. It shows that he can stop. He said that after raping [his first victim, M.V], figuring out what to do next was the worst of his problems; that is he had no plan for what to do after he was done with the attack. Because he was in prison after the attack on [M.V] he had a lot of time to think about what happens when you let a torture victim live, you go to prison because they talk.

In 1995, he engaged in two unlawful sexual incidents that involved planning, isolation of victims and concealment. But then for nearly a year and a half he was involved in no known incidents. That year and a half corresponded to the time that he was under surveillance by law enforcement and knew it, which shows that when he knows that law enforcement might be following him, he can avoid having any incidents.”

Dietz noted, “None of his unlawful sexual incidents was done in public.” In Dietz’s opinion, defendant freely chose to commit crimes to fulfill his sexual desires and he killed to conceal his rapes and escape the consequences.

Dr. Helen Mayberg, a clinical neurologist and professor of psychiatry and neurology, testified for the prosecution. In the opinion of Dr. Mayberg, the neurological exam performed by Dr. Merikangas was complete and normal and did not indicate the need for further neurological testing. Merikangas’ second report gives an interpretation of behaviors, such as poor planning, as well as poor judgment and impulse control, that were never described as problems in the mental status exam, which was normal. Mayberg said impulse control problems are pervasive and will not be limited to any particular activity. If a person had a problem with impulsivity, one would expect to see elements of that in the mental status exam. Mayberg noted: “[I]f you really think somebody’s got [an] impulse control problem, there are a lot of standardized tests of that part of the frontal lobe to give you quantitative measures that that part of the brain isn’t working. Those weren’t ordered here, they weren’t asked for, they weren’t done. And there was a normal mental status exam.” Mayberg testified that Merikangas’ opinion that defendant had developed an abnormal sex drive was inconsistent with the mental status exam he performed. She stated that sexual sadism is not related to congenital brain abnormality.

Mayberg described defendant’s CT and MRI scans as “totally normal.” She stated, with respect to the CT scan: “There’s no lesions, there’s no small frontal lobes, everything is symmetric. The fluid spaces are where they are supposed to be, of the appropriate size. There’s no evidence of an old stroke, an old hemorrhage, an old contusion. Like a scar. It’s normal, healthy-looking brain.” Mayberg had the same opinion after looking at MRI scans, concluding: “[I]t’s a normal study.” After examining the CT and MRI images in question and comparing them to the conclusions made by Dr. Merikangas, Mayberg concluded that defendant had a normal neurological exam with Merikangas, defendant’s MRI images showed no abnormalities of any kind, and there was nothing to support a link between a brain defect and defendant’s behavior at the time of the crimes.

Following the presentation of evidence at the guilt/ innocence phase of trial, the jury was instructed that it could find defendant not guilty of the murders, not guilty by reason of insanity, guilty but mentally ill, or guilty of the murders. After due deliberation, the jury rejected verdicts based upon psychological impairment, and found defendant guilty of the first-degree murders of Yolanda Gutierrez and Jessica Muniz.

Thereafter, the jury found defendant eligible for the death penalty on eight statutory grounds: (1) the murdered person, Jessica Muniz, was under 12 years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty; (2) Jessica Muniz was killed during the course of another felony; (3) the murder of Jessica Muniz was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (4) the murder of Jessica Muniz was intentional and involved the infliction of torture; (5) the murder of Yolanda Gutierrez was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (6) the murder of Yolanda Gutierrez was intentional and involved the infliction of torture; (7) Yolanda Gutierrez was killed during the course of another felony; and (8) defendant was convicted of murdering two or more persons.

The cause proceeded to the aggravation/mitigation phase of capital sentencing, commencing with evidence of the sexual assaults and murders defendant perpetrated against other victims.

Defendant’s first victim, M.V, went to school with defendant and was three years younger. On August 17, 1987, when M.V was 14 years old, defendant asked her to meet him to help a girl they both knew get marijuana out of her house. Defendant drove her to his house, motioned her to a room, and struck her over the head, causing her to fall. She was confused and disoriented. Defendant then jumped on her, ripped off her clothes, pinned her arms and put his penis in her mouth. He put a knife to her throat and said, “Don’t bite or I’ll kill you.” He handcuffed her hands behind her back and blindfolded her with a bandana. Defendant moved her to a bed, handcuffed her to it, and repeatedly ground his penis into her mouth as hard as he could. Defendant then stuffed her mouth and put duct tape over it, and bit her vagina and pubic area so hard that she cried. Defendant painfully cut her pubic hair. He penetrated her vagina, twisted her body, and inserted his penis into her backside, all while she was handcuffed to the bed. Defendant removed the gag and repeatedly rammed his penis into her mouth, and threatened her while holding a knife to her throat. He bit her legs and thighs.

Defendant then handcuffed her to a railing in the living room and offered to take her home if she would drink a glass of Seagram’s VO. After M.V finished most of the glass, defendant took her to the bathroom, where she vomited. He put her in the shower and penetrated her again. M.V lost consciousness and woke up later with all four limbs cuffed to the bed. She was gagged and, judging from the sunlight, she knew a few hours had passed. Defendant later handcuffed her to a chair and gave her cereal. When she picked up the chair and tried to escape, defendant held a knife to her throat and threatened her. He then cuffed her to the kitchen table, cut her hair with a knife, and began cutting the inside of her arms. Defendant smiled and said he liked it. Defendant bit her nipples so hard that she cried. He told her, “shut up, that doesn’t hurt.” He then bit her neck, breasts, stomach, crotch, and legs. He penetrated her vaginally, then blindfolded her and put the gag back in. Then he recuffed her hands behind her back, put her face down on the sofa, and penetrated her vaginally from behind. He bit her buttocks, “like wanting to rip off your skin.” He squeezed her buttocks, twisted them, spread them apart, and repeatedly rammed his penis into her anus. Defendant then simultaneously penetrated her with a foreign object and his penis, alternating orifices with the object and his penis.

Defendant moved her to another room, removed the gag, and penetrated her orally. M.V was on the floor with her hands handcuffed behind her back. She recalled: “Every bone in my body hurt.” Then she saw defendant grab a fireplace poker, and she related what followed:

“He shoved the handle of the fireplace poker in my anus. He rammed it in as hard as he could. *** [H]e started making it go up and down and over and over and out and in and I felt like my insides were getting ripped out. I kept crying. He kept doing it and doing it. I thought I was going to die because it hurt so bad. He just kept doing it, forcing it in farther and farther and farther.”

Defendant stopped when the phone rang. He gagged M.V, bound her ankles, stuck her inside a sleeping bag, and threw her in a crawl space. He told her not to do anything stupid or he would kill her; then he left.

With her hands still cuffed and her legs bound, she rolled and hopped until she eventually got outside. A neighbor who lived across the street saw M.V with her feet and hands tied. M.V was crying, shaking, hysterical, and had scarves tied around her mouth.

The police later determined that defendant’s father and brother had gone on a trip for the weekend. As a result of the incident, defendant was convicted of aggravated criminal sexual assault, aggravated kidnapping and armed violence, and was subsequently sentenced to 14 years’ imprisonment.

With respect to the seven victims who did not survive, the State introduced defendant’s videotaped statements, along with evidence corroborating those statements.

Defendant’s statement regarding the murder of Stacey Frodel was published to the jury. In that statement, defendant related that his wife, Charlene, was a friend of Stacey and she suggested a threesome with Stacey and defendant. In January of 1995, Stacey came over to defendant’s house and became drunk. According to defendant, Charlene became mad at Stacey and told defendant to kill her. While Stacey slept, defendant took a weight and hit Stacey on the head. Defendant then put Stacey’s body on a plastic sheet and had vaginal sex with her. She was handcuffed. Defendant then had sex with Charlene. After a while, defendant looked over at Stacey and noticed she had not moved and was not breathing. The next day, defendant dismembered Stacey in the bathtub. Using a saw, he cut her hands, ankles, legs, arms, torso, and head, and placed the body parts in garbage bags. Thereafter, he and Charlene borrowed a car and drove toward Wisconsin, scattering body parts as they went.

Corroboration was supplied by physical evidence and witness statements. Recovered bones showed evidence of cutting. Stacey’s skull showed evidence of injury consistent with having been struck by a barbell weight. A sample of carpet taken from a bedroom in the townhouse where defendant and Charlene had lived contained traces of Stacey’s blood. Dina Bartolini, who lived in that townhouse with defendant and Charlene, said that on January 3, 1995, Charlene indicated she was looking forward to Stacey coming over for a visit. When Stacey came over, they drank, and eventually Charlene told Dina that Stacey would be staying the night. The next day, defendant and Charlene borrowed Dina’s car and used more than half a tank of gas. Dina said she had sex four or five times with defendant, including a threesome with Charlene, and including the day that Charlene went to the hospital to give birth.

Defendant’s two videotaped statements about the murders of Dzeneta (Janet) and Amela Pasanbegovic were published to the jury. In the second statement, defendant related that, in July of 1995, he told Estella Herrera, a coworker, that his wife was looking for help with her cleaning business. Although Charlene did not have a cleaning business, she eventually spoke to Estella and later told defendant she was going to meet people interested in the job. The real reason for Charlene to meet them was to see if they were willing to have a sexual foursome with Charlene and defendant. Charlene later indicated to defendant that the girls were really attractive.

On July 12, 1995, Charlene brought the Pasanbegovic sisters to the Runge home. When defendant suggested that they submit to sex for money, Janet Pasanbegovic got up and ran upstairs. Defendant caught her outside on the driveway and pulled her down by the hair, her head hitting the concrete driveway. He said he might have hit her again. In any event, Janet was rendered unconscious. Defendant then picked her up and brought her back into the house. When Amela saw Janet, Amela got up. Defendant then dropped Janet on the stairs, grabbed Amela, and took her into the weight room, where he cuffed her to a weight bar. Defendant also put Janet in the weight room. Defendant then went upstairs to see if the police were coming; Charlene went outside and cleaned up the blood outside and on the stairs. Inside, Janet vomited a black liquid. Defendant proceeded to have oral sex with Amela. Thereafter, he went upstairs to see what was going on, and then went back downstairs and had sex with Amela while her hands were cuffed behind her back. Defendant ejaculated on her stomach and wiped it off with her clothing. Amela asked about Janet, and defendant then took Janet and put her in a water-filled bathtub with the shower running. He left her there. When he later returned, she was under water. He pulled her up and discovered she was not breathing. Defendant informed Amela that her sister had drowned; he then choked Amela until she passed out. Thereafter, defendant dismembered both bodies with a saw and put them into 8 to 10 bags. After he ate dinner, he placed the bags in dumpsters in apartment complexes.

In defendant’s first statement to police, he lied about the location of the murders and the dumpsters into which he deposited body parts because the murders took place in Du Page County and Du Page County authorities seemed more intent on pursuing the death penalty.

Estella Herrera worked with the Pasanbegovic sisters before she worked with defendant. She learned that the sisters had been laid off and told defendant about them when he said his wife was looking for people to work for her. Defendant asked if they had family in the area. Estella was subsequently contacted by someone identifying herself as defendant’s wife and Estella gave her Amela and Janet’s phone number. Later, Estella received a phone call from the same person, who said she had gone to pick up the girls, but they were not there. The woman asked Estella to check and see if there was a problem. A neighbor and former coworker of the sisters, who saw them almost every day, never saw them after July 11, 1995. The sisters had mentioned they had a job offer, from a woman named Lisa (the name used by defendant’s wife), who wanted them to stay overnight.

Defendant’s videotaped statement regarding the murder of Dorota (Dorothy) Dzibak was introduced as evidence. In the statement, defendant related that his 7-Up route took him along Touhy Avenue in Chicago. On the morning of January 10, 1997, defendant was on Touhy Avenue when he saw a “For Sale By Owner” sign in front of a house. He stopped at the house and knocked on the door. A woman answered whom defendant considered attractive. Defendant said he was interested in looking at the house and she let him in. Defendant asked to see the furnace, which she indicated was working sporadically, and he pretended to know what was wrong with it. When she came over to look at it, defendant grabbed her by the back of the neck and pushed her to the floor. Defendant told her to be quiet if she wanted to see her daughter. He walked her into the bedroom and made her perform oral sex on him. Then he told her to he down and had vaginal sex with her. Afterward, he took her to the bathroom and directed her to wash her vaginal area, as he was concerned about the presence of semen. When she came out of the bathroom, he tied her hands behind her back. While she lay face down on a pillow on the bed, he leaned on the high part of her back and neck. When he got off of her, she was not moving or breathing. Defendant grabbed a match and threw it in the closet in an area with paper and clothing. He left after starting the fire.

Physical evidence corroborated aspects of defendant’s statement. A heating and air conditioning technician reported the fire around 12:30 p.m. A firefighter, who subsequently entered the house, saw the fire coming from a bedroom closet, removed Dorothy from the bed, and turned her over to other firefighters. In the opinion of a former senior fire marshall, who investigated the scene, the fire was deliberately set and could have been started with a match to a piece of clothing in the closet.

Dr. Scott Denton reviewed the autopsy of Dorothy performed by Dr. Eupil Choi. Dorothy’s body showed signs of extensive hemorrhages in the eyes, hemorrhages on the vocal cords and hypopharynx in the neck, and a loose joint in the hyoid bone, which are injuries consistent with manual strangulation. Pressure would have to be applied to the neck for 3½ to 5 minutes to cause death by strangulation. There was no carbon monoxide or soot in her airways, which is consistent with death occurring before the fire. There were extensive areas of burning to her skin. In the opinion of Dr. Denton, death occurred by strangulation. Photographs of her left and right wrists revealed a red line consistent with some restraint having been placed on her wrists.

Defendant gave a videotaped statement regarding the murder of Kazmiera Paruch. On March 14, 1997, as defendant was driving in the area of 4730 North Kenneth in Chicago, he saw a “For Sale By Owner” sign in front of an apartment or condominium building. Defendant, wearing a 7-Up uniform, stopped and went inside to the unit listed. When a woman answered the door, defendant asked to look at the unit. The woman, Kazmiera Paruch, took defendant through the residence. At some point defendant grabbed her from behind and pulled her on the back of the neck down to the floor. Defendant drove her face into the floor and she bled profusely. Defendant stood her up and walked her to the bathroom. He then pulled off her panties and had vaginal sex with her. He ejaculated on her stomach and wiped it off with a Kleenex. She reached into a cabinet, pulled out an iron, and tried to swing it at him, but he blocked it with his arm and the iron flew toward the toilet. He noticed that her eyes had rolled back in her head and she was not breathing. Defendant said he poured a liquid on her body, lit a match, and left.

A firefighter responding to a reported fire at the residence subsequently found the fire emanating from the bathroom and discovered Kazmiera’s body therein. Her lower body was unclothed and an electric cord was across her neck. The firefighter noticed an iron on the bathroom floor.

Carl Hopkins, a fire investigator, responded to the scene and found the severely burned victim with a wire cord wrapped around her neck and a large gash to the side of her neck. A pair of bloody jeans was on the floor of the bathroom, along with an iron. There was a great deal of blood spatter on the wall. The fire was deliberately set. An empty can of stripper was found on the floor of the closet, just outside the bathroom. A meat cleaver hanging on the wall of the kitchen was smeared with Kazmiera’s blood.

Dr. Denton reviewed the autopsy of Kazmiera performed by Dr. Larry Sims. Approximately 70 to 80% of the body was burned. An incise wound and a smaller irregular wound were noted on the right side of Kazmiera’s neck. The meat cleaver could have caused those injuries. There were multiple hemorrhages within the neck organs or tissues and the hyoid bone was fractured. Those injuries were consistent with a severe case of strangulation. On the left side of her brain there was a subarachnoid and subdural hemorrhage, as well as some bruising in the deeper brain tissue. Those injuries were consistent with blunt trauma to the head and could be consistent with being struck by an iron.

In addition to the evidence of defendant’s seven murders, and eight sexual assaults, the State presented evidence of defendant’s escape from DHS custody. On October 6, 2000, Rick Schroeder of DHS was transporting three DHS recipients, including defendant and inmate Conley, from Sheridan Correctional Facility to court in Cook County. Defendant and Conley were restrained with leg shackles and walking restraints. En route, Conley complained that he was sick. Once the vehicle stopped, Conley said “Hey, Rick,” and when Schroeder turned around he was sprayed in the face and felt a sharp pain in his eye. He stumbled across the street, and when he regained some degree of vision, he noticed glass on the highway on the passenger side of the van. Defendant and Conley were gone. Schroeder was taken to the hospital and missed work for five weeks.

Sergeant Greg Bell of the Naperville police department received a dispatch about the escape and positioned his patrol car to monitor traffic. He saw a car fitting the description of the vehicle given in the dispatch, followed it, and eventually pulled the car over. The officers drew their weapons and defendant, a female, and a third person were arrested. The woman informed the police there was a gun in the car. The following items were recovered from the car: a Radio Shack plastic bag containing a 9mm pistol, a police scanner, batteries, an Illinois map; a white bag containing a can of pepper spray, two pairs of wrist shackles, and clothing; and a handcuff key and homemade knife. The DHS van had two pairs of unlocked leg shackles and the passenger side window had been completely shattered with an outward motion.

Defendant told police that he and Conley began devising a plan to escape about six months in advance. Defendant had noticed that Illinois Department of Corrections guards no longer accompanied unarmed DHS guards in transporting individuals to and from court. Defendant befriended a DHS guard named Doris Harper. He described their relationship as romantic, but not sexual. Pursuant to the plan, Harper provided two cans of pepper spray inside the facility. Defendant also received a handcuff key from Harper via another DHS guard. Harper purchased clothing for defendant and had $2,000 cash to be used en route to Mexico after the escape. She also arranged for a rental car and was to follow the van to Cook County until the escape. Harper was then to have driven defendant and Conley away. Harper no longer worked at Sheridan by the time of the October escape. Phone records showed multiple calls from Sheridan to Harper’s home from July 8 through October 5, 2000. The rear cargo area of Harper’s car in Ottawa was loaded with clothing, duffel bags, a .25-caliber handgun, a holster, and ammunition; the car also contained a bolt cutter and 35 rounds of 9mm ammunition. Inside her home police found a notebook containing step-by-step directions from the Sheridan facility to the courthouse in Chicago.

The State’s evidence in aggravation concluded with Ramon Rivera, Yolanda’s father and Jessica’s grandfather, reading a victim impact statement, in which he described the many positive attributes of Yolanda and Jessica, the loving relationship he had with them, the shock and horror he experienced upon learning of the circumstances of their deaths, and the loss he and his family felt.

In mitigation, Doris Harper testified that the escape from DHS custody was her idea, and defendant told her to pull over when Harper noticed a police vehicle behind them. Under cross-examination, Harper stated that she had become “emotionally attached” to defendant and, “had circumstances been different,” would have been “intimate with” him. The plan had been for her and the defendant to escape to Mexico and have a “long term relationship.” Harper described defendant as “mannerly,” “charming,” and “smart.” She was equivocal when asked if she had been manipulated, stating: “I really don’t know. I can’t say either way.” She admitted that she gave defendant a handcuff key and mace to facilitate the escape and compiled an array of supplies— including weapons — in furtherance thereof.

Other mitigation the jury heard was based primarily, as had been the insanity defense, upon expert testimony of defendant’s deviant sexuality, mental disorders, and the disputed evidence of brain abnormality. Dr. Rabin, a psychologist who had not testified at trial, diagnosed defendant slightly differently than the other experts in that he did not find sufficient evidence to support a diagnosis of sexual sadism. Rabin testified to three psychological tests given to defendant. On a test that screens for brain damage, he found the results suggested neurological problems, but in the average range. The Rorschach test indicated chronic depression, inferiority feelings, impulsiveness to reduce stress, and a lack of understanding of how others view him. The MMPI tests of self perception indicated that defendant is impulsive, self-centered, uncaring about others, and lacks insight as to his own behavior. Rabin testified that defendant “seems to get along adequately in a male situation, male society.” His violence and aggression are “pretty much *** aimed at women.” Rabin stated there is no indication that defendant is “any more violent or any more dangerous than anyone else would be who is located within the prison system.”

Correctional officers testified that defendant had no infractions of jail rules in four years.

Defendant’s adoptive father, Richard Runge, testified on direct examination that he and his wife had adopted defendant as an infant. At age two, defendant lost consciousness briefly after a fall from a grocery cart, but no medical treatment was sought. When he was eight or nine years old, defendant was asked to leave a Catholic school because he was “bothering” girls. At age 11, defendant used a knife to cut up a table and his father’s thermal underwear. Defendant told his parents he was “just playing,” but they were concerned that he “wasn’t conversing *** well” with them, and they sent him to counseling. Defendant was still unresponsive, but thereafter he went to summer camp, and when he returned he “seemed to be fine.” At age 14, defendant had sex with two girls his age. He was arrested, as the girls initially claimed they had been attacked, but later, at the police station, the girls said it was consensual, and defendant was allowed to go home. At age 15, defendant had consensual sex with a woman catering a wedding he attended with his parents. Mr. Runge testified that defendant was emotionally close to his adoptive mother. Defendant, who was then 17 years old, was home with his adoptive mother on the day she died of cancer. He carried her to the car so the attending nurse could drive her to the hospital. Mrs. Runge passed out a short distance from the house and the nurse drove back to the house. Defendant carried her back into the house, called his father to come home, and Mrs. Runge passed away before he could return. Defendant and his younger brother were there. Mr. Runge expressed continuing love for defendant, notwithstanding his actions. He noted that defendant fathered a child with Charlene when he was married to her.

Under cross-examination, Mr. Runge acknowledged that he had never previously told anyone about his son’s fall from a grocery cart. He had never sought psychiatric help for his son. He “[djidn’t think he needed it.” Mr. Runge testified that girls tended to gravitate to his son; he conceded that defendant could properly be characterized as a manipulative con artist.

After hearing all the testimony in aggravation and mitigation, the jury returned a death penalty verdict.

ANALYSIS

Defendant first contends that a biased juror (Juror A) served on his jury, denying him an impartial jury, and the trial court’s failure to question other jurors about Juror A’s activities denied defendant due process.

Trial before a biased tribunal would deprive defendant of a substantial right and constitute structural error requiring reversal. People v. Rivera, 227 Ill. 2d 1, 20 (2007), aff’d, 556 U.S. 148, 173 L. Ed. 2d 320, 129 S. Ct. 1446 (2009); Ross v. Oklahoma, 487 U.S. 81, 85, 101 L. Ed. 2d 80, 88, 108 S. Ct. 2273, 2277 (1988) (“Had [a biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court’s failure to remove [the juror] for cause, the sentence would have to be overturned”). The standard for juror impartiality is whether the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant. Patton v. Yount, 467 U.S. 1025, 1035, 81 L. Ed. 2d 847, 856, 104 S. Ct. 2885, 2891 (1984). What is required for purposes of due process is “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 86, 102 S. Ct. 940, 946 (1982).

In the latter respect, questions of possible intra-jury influence or misconduct are treated differently from contamination by external influences. United States v. Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007); Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001), citing United States v. Williams-Davis, 90 F.3d 490, 501 (D.C. Cir. 1996). Thus, the presumption and hearing requirements announced in Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 656, 74 S. Ct. 450, 451 (1954) — to the extent they survive (compare People v. Ward, 371 Ill. App. 3d 382, 402-05 (2007), with People v. McLaurin, 382 Ill. App. 3d 644, 651-52 (2008), appeal allowed, 229 Ill. 2d 646 (2008) (table)) — have been interpreted so as to apply only in situations where “extraneous materials are brought into the jury room” or there is a “third-party contact” with a juror or jurors. See United States v. Spano, 421 F.3d 599, 605 (7th Cir. 2005); Whitehead, 263 F.3d at 723, 725 (compiling cases); compare United States v. Vasquez-Ruiz, 502 F.3d 700, 705, 707 (7th Cir. 2007) (juror found a note in her notebook that could have been “written by an outsider”), with United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998) (an internal misconduct or bias case, quoted, approvingly, as follows in Vasquez-Ruiz: “Not every allegation of jury misconduct is sufficiently substantial or sufficiently well substantiated to warrant putting the jurors on the spot in this fashion. *** Quizzing a juror, or perhaps all the jurors, in the middle of a trial is likely to unsettle the jury, and the judge is not required to do so unless there is a much stronger indication of bias or irregularity than there was here”). Even in situations where some extraneous information is brought into the jury room, as in Spano, the Seventh Circuit still held that no inquiry of jurors was necessary where the trial judge had observed the jurors carefully and concluded that the likelihood of influence was “too slight to warrant hauling the jurors before him for an examination.” Spano, 421 F.3d at 605-06 (addressing posttrial interrogation). Indeed, reviewing courts have recognized that “sometimes less is more” when it comes to judicial investigation of alleged juror misconduct; that a trial court, in exercising its investigatory discretion, must assess the particular circumstances before it to ascertain whether questioning individual jurors might compound the problem by drawing attention to it. United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004); United States v. Zizzo, 120 F.3d 1338, 1349 (7th Cir. 1997).

In any case, the question of whether jurors have been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial involves a determination that must rest in sound judicial discretion. People v. Whitehead, 169 Ill. 2d 355, 402 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998); Spano, 421 F.3d at 605-06; United States v. Hernandez, 330 F.3d 964, 990 (7th Cir. 2003) (a trial judge will always be in a better position than a court of review to assess the probable reactions of jurors in a case over which he or she has presided). As the court of appeals noted in United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000):

“District court judges deal with jurors on a regular basis, and those judges are in the trenches when problems arise. The problems that present themselves are seldom clearly defined and a number of variables have to be considered. There are often no obviously right or wrong answers to the questions that arise. For all of these reasons, a trial judge is vested with broad discretion in responding to an allegation of jury misconduct, and that discretion is at its broadest when the allegation involves internal misconduct such as premature deliberations ***.”

As the court of appeals aptly observed in Dominguez, “[t]he whole point of discretion is that there is [a] range of options open, which means more than one choice is permissible. The broader the discretion, the greater the range of choice and the less room for reversal.” Dominguez, 226 F.3d at 1247. The trial judge’s discretion clearly extends to the initial decision of whether to interrogate jurors. Dominguez, 226 F.3d at 1246. The applicable standard of review, after the trial judge has made an appropriate inquiry, is an abuse of discretion standard, which recognizes that the trial court has wide discretion in deciding how to handle and respond to allegations of juror bias and misconduct that arise during a trial. United States v. Marti-Lon, 524 F.3d 295, 300 (1st Cir. 2008). After an inquiry, significant deference must be accorded the judgment of the trial judge on the question of bia