People v. Nelson (235 Ill. 2d 386, 2009)

JUSTICE GARMAN

delivered the judgment of the court, with opinion.

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

Justice Kilbride dissented, with opinion.

OPINION

Following a jury trial in October 2006, in the circuit court of Will County, defendant, Brian Nelson, was convicted of 16 counts of first degree murder (720 ILCS 5/9 — 1(a)(1), (a)(2), (a)(3) (West 2002)), four counts of home invasion (720 ILCS 5/12 — 11(a)(1) (West 2002)), and four counts of aggravated arson (720 ILCS 5/20— 1.1(a)(1) (West 2002)). The jury found death to be the appropriate sentence on the murder convictions and the circuit court of Will County imposed a sentence of death on those convictions. The court sentenced defendant to concurrent prison terms of 30 years on the home invasion and aggravated arson convictions.

BACKGROUND

Defendant was accused of the murders of Harold Tennant, his children Sara Tennant and Eric Tennant, and Harold’s girlfriend, Jean Bookwalter. The murders took place in the early morning hours of May 31, 2002, at the home of Harold Tennant, located on Gray Road in Custer Park. Sara was the former girlfriend of defendant. She had broken off their relationship some months prior to the murders and had recently started dating another man. Defendant and Sara had a young child together named Amber. Police and firefighters were alerted to a fire at the Tennant home on the night of the murders by Matt Grivetti, a friend of Eric Tennant who was spending the night at the Tennant home and who escaped the burning house. The bodies were discovered in the burning structure. Amber was found outside the house in Sara’s car, unharmed.

Defendant was questioned and made a statement confessing to the murders. He then gave a videotaped statement. He filed various pretrial motions, one of which was a motion to suppress his inculpatory statements. In connection with this motion, he sought admission of certain scientific evidence supporting his theory that his statements confessing guilt were false and that he was unusually susceptible to giving a false confession. The trial court denied his motion to suppress and denied admission of the scientific evidence. At the guilt phase of the trial, the following evidence was heard.

Jodi Keele, the daughter of Jean Bookwalter, testified that her mother moved into Harold Tennant’s house at the beginning of 2002. She and Harold had been dating since sometime in 2001. Her mother was 46 years old when she died.

Debra Tennant, mother of Sara and Eric Tennant and former wife of Harold Tennant, testified that she was married to Harold for almost 28 years prior to their divorce. Sara was born in April 1983 and Eric was born in April 1986. They moved to the home in Custer Park in 1994. Sara began dating defendant in the fall or winter of 1999. She became pregnant and gave birth to Amber in March 2001. Debra and Harold tried to prohibit Sara from dating defendant. Debra drove Sara to and from school and she was allowed very few activities. However, Sara and defendant continued to date. Sara graduated from high school in 2001 and she broke up with defendant at the end of that year. Sara entered Joliet Junior College in the spring of 2002.

Richard Quigley, a locksmith, testified that he and Harold were close friends. Quigley went to Harold’s home on three different occasions to rekey all the locks. The first time was right after Harold’s divorce. The second and third times were during 2002. Quigley was last at the Tennant home about a week prior to May 31, 2002. The purpose of his visit was to rekey the locks. Sara and defendant were in the living room that day. They were “having words.” Quigley knew there was some kind of conflict between them because their voices were loud. While Quigley was rekeying the locks near his parked van, he saw defendant leave the house. Defendant had a child’s toy in his hand, which he threw into his vehicle. When defendant left in his car, he spun his wheels, which caused rocks to hit Quigley’s van.

Next, Todd Hardecopf testified he met Sara at Joliet Junior College and they started dating in May 2002. Following the spring semester, he went to Montana on an internship obtained through the school. Sara went to Montana to visit him, arriving on May 23, 2002. She stayed for a week. He spoke with her by telephone a few times after she left. He also wrote her a letter. He was familiar with Sara’s code to access her voicemail messages on her cell phone. He gave that information to the police.

Ramona King testified that she owned an insurance agency in Buckley. In 2001, Harold Tennant purchased the agency from her. Sara worked at the agency three days a week. Sara was working there on May 30, 2002. While King, Sara, and another employee were in the conference room that day eating lunch, King took a call from a person who identified himself as Brian. He asked to speak to Sara. Sara refused to speak to him. He told King he was sorry and asked King to tell Sara that he was sorry. Later, while they were still in the conference room, they looked out the window and saw a black Pontiac with temporary license plates pull into the parking lot. They also saw a man in the parking lot. Sara ran and hid behind the wall to avoid being seen. They called the police. The man left before the police arrived. The police spoke with Sara. From the time they received the phone call from Brian, Sara seemed very upset, nervous, and scared.

Christine Bewsey, owner and operator of Digital Communications Plus in Bourbonnais, a Nextel retail store, testified that Sara Tennant was a customer. She had two Nextel cell phones activated in her name. Sara and defendant were both on her account and each had a phone. In January 2002, Bewsey put a suspension on defendant’s phone, at Sara’s request, meaning that his phone could no longer be used. Shortly thereafter, defendant came into the store and Bewsey set up an account in Janet Nelson’s name, mother of defendant. The phone was assigned to defendant. Both Sara’s and Janet Nelson’s accounts were active through May 31, 2002.

The parties presented a stipulation that if called to testify, Eric Tyrell, custodian of records at Sprint Nextel, would testify that he reviewed the Nextel billing records for the account of Sara Tennant, with the user name “Sara,” and the account of Janet Nelson, with user name “Brian.” From those records, he determined that the phone number assigned to user name “Brian” called the phone number assigned to user name “Sara” 129 times from May 23, 2002, through May 31, 2002. During the same time period, the phone number assigned to user name “Sara” called the phone number assigned to user name “Brian” one time.

Jeff Smith, a sergeant with the Joliet Junior College police department, testified that he was working at the college on May 30, 2002. Sara came to the office to report a theft from her vehicle. She reported that $80 in cash was missing. She did not report that a picture of someone named Todd was taken out of her purse.

Detective Michael Guilfoyle testified that on the morning of May 31, 2002, he was directed to go to the Tennant home in Custer Park in connection with a possible fire and four deaths. When he got there, he met with Lieutenant Van Dyke and Detective John Ruettiger. They first went to the basement of the house. Several items in the bedroom were smoldering from the fire. A deceased female was lying on the bed. There was a hole in the center of her head. The officers were unable to view any other part of the house because it was unsafe due to the fire. Guilfoyle and Ruettiger drove back to their office in separate cars. Ruettiger took Matt Grivetti with him for the purpose of interviewing him, since Grivetti had been in the house at the time of the fire. Guilfoyle and Ruettiger also spoke to defendant after receiving a call from an Iroquois County sheriffs deputy that he had taken a report regarding defendant attempting to talk to Sara at her place of employment. Prior to interviewing defendant, the detectives requested that defendant undergo a gun powder residue test. They did not receive the results of that test right away.

Prior to asking defendant any questions, Ruettiger read defendant his Miranda rights. Defendant signed the form, waiving his rights, and agreed to talk to the detectives. Next, Ruettiger asked defendant a series of questions referred to as the Reid questions. This is a method of interrogation used to get a feel for the person the detectives are talking to. Guilfoyle did not write down the specific questions and answers that defendant gave. He does not recall what those were. Defendant was asked what he had done the previous day. He told them that he received a phone call from Sara about someone breaking into her vehicle. Defendant admitted to her that he broke into her car and removed a photo of her new boyfriend. After Sara hung up on him, defendant drove to her place of employment and tried to see her, but she refused to talk to him. That evening, he called Sara 10 to 12 times, trying to speak with her, but she did not answer her phone. Defendant wanted to rekindle their relationship. Defendant then stated that he went to sleep about 11:30 p.m.

Following the initial interview, which lasted about 30 minutes, the detectives left the room to talk about what to do next. When they went back into the room, Guilfoyle told defendant that the results of their investigation indicated that defendant was responsible for the four murders and that the detectives believed defendant did it. Defendant made no response to this accusation. Guilfoyle then told defendant that they believed he loved Sara and that if he did have anything to do with the murders, it would not mean he did not love her. Guilfoyle spoke for about 15 minutes on this subject. He then asked defendant again if he had anything to do with the deaths. At that point, defendant said he did and he began to cry. In response to further questions, defendant stated that he did not go to sleep that night. He still wanted to save his relationship with Sara, so he drove to her house, leaving his residence around 2 or 2:30 a.m. He entered the Tennant residence through an unlocked door and went to the basement, where Sara’s bedroom was located. He woke her up and they talked for a period of time about their situation. Sara told him she did not want to be with him and she told him to leave. Defendant left the basement and went to the garage for about 20 minutes, thinking about what to do. He picked up a crowbar and went back to the basement. Sara, who was lying on her bed, told him to go away and rolled over with her back to defendant. This rejection made him angry. He told Sara he loved her, then hit her in the head twice with the crowbar.

Guilfoyle testified that, at that point in the interview, defendant became extremely distraught and emotional and was still crying. Defendant stated that he decided to kill the other people in the residence because he believed they would know who had killed Sara. Defendant walked to the upper level of the house and as he reached the top of the stairs, Harold Tennant walked out of his bedroom. Defendant struck Harold in the head with the crowbar. Harold’s girlfriend, Jean Bookwalter, then also walked out of the bedroom and defendant struck her in the head with the crowbar. He struck both of them more than once. Defendant then went to the bedroom of Sara’s brother, Eric Tennant. Eric was sleeping in a reclinen Defendant struck Eric in the head with the crowbar at least three times. Defendant stated he believed he dropped the crowbar in Eric’s bedroom or in the kitchen. Defendant changed from his bloody clothes into some clothes he kept at the Tennant house. He took some paper, set it on fire, and set fire to the chair where Eric’s body was sitting. He then lit some more paper and set some clothes on fire that were lying between the bodies of Harold and Jean. He then set Sara’s bed on fire, along with his bloody clothes. He removed his daughter from Sara’s bedroom and placed her in Sara’s car outside the residence. Defendant then left and went back home.

Guilfoyle stated that the total time of the second interview was approximately IV2 hours. At that point, the detectives gave defendant some pizza and something to drink. The detectives contacted the evidence technicians who were still at the crime scene and told them to look for a crowbar. The technicians could not find a crowbar and they advised the detectives that an accelerant had been used to start the fire. However, defendant told the detectives that he did not use any accelerant. They also pressed defendant concerning the whereabouts of the crowbar. Defendant stated that he had just told Guilfoyle that he killed four persons and that he did not know what he did with the crowbar. Defendant did not mention stabbing any of the victims. Defendant agreed to give a statement on videotape.

At that point, the videotaped statement was played for the jury.

Guilfoyle then testified that he took notes during defendant’s statement. He destroyed those notes after he used them to complete a police report. On June 3, 2002, Guilfoyle was contacted by an officer who works at the jail where defendant was being housed. The officer said defendant had asked to speak to Guilfoyle and Ruettiger again. They went to the jail and spoke with defendant. Defendant was again read his Miranda rights and he signed the form, waiving those rights. When asked why he wanted to see the detectives, defendant told them that he had sexual intercourse with Sara prior to killing her. The interview concluded after that statement.

Guilfoyle acknowledged that he asked defendant some leading questions during his videotaped statement and that he prompted defendant to get him to talk a little more. Because defendant was “broken up” during the videotaped statement, Guilfoyle attempted to assist him in telling what happened. After getting defendant to the point where he said he left his house to go to Sara’s house, Guilfoyle asked defendant to tell what happened in his own words. Defendant said on the videotape that he was going to leave after Sara told him to go and he went out through the garage. At that point, instead of asking defendant what happened next, Guilfoyle asked defendant what he did in the garage. He also asked defendant if he got anything from the garage. Defendant said he got a crowbar and told Sara he loved her and he hit her. When Guilfoyle asked defendant on videotape why he went upstairs, defendant said he did not know. Guilfoyle reminded defendant that in their prior conversation, defendant said he went upstairs because the people there would know that he did something. Defendant answered, “Yeah.” Guilfoyle testified that he was unaware at the time of defendant’s interview that two of the victims had been stabbed.

Guilfoyle testified that he was not trying to get defendant to say he was responsible for the murders. The strategy the detectives employed would allow defendant to feel free to talk about it if he was responsible. Before he interviewed defendant, Guilfoyle was told by the evidence technicians that Sara may have sustained a gunshot wound. However, Guilfoyle did not know the exact nature of the wound and he did not mention that to defendant. Guilfoyle also testified that defendant did not mention that he called Sara at 5:30 a.m. on May 31, 2002. Also, Guilfoyle did not know that defendant had taken a picture of a man named Todd out of Sara’s car when he broke into it two days before the murders until defendant told him that in the interview. Guilfoyle also did not know the location of the other three victims until defendant told him where they were when he struck them with the crowbar. Nor did Guilfoyle know how they had died until defendant told him.

Bryan Mitchell, forensic pathologist, testified that he performed an autopsy on Jean Bookwalter. He found five separate injuries to her head, as well as underlying skull fractures. The injuries would be consistent with being inflicted by a heavy object, such as a crowbar. Mitchell also found a large stab wound in the upper left portion of Bookwalter’s back. This stab wound went all the way through her body, fracturing one of the ribs on the back side of the body, perforating the lung, fracturing another rib on the front side of her body, and exiting near the left breast. This wound was inflicted while Bookwalter’s heart was still beating. The cause of death was both the blunt trauma to her head and the stab wound. Mitchell’s examination revealed that Bookwalter was not alive at the time of the fire. The stab wounds were likely inflicted with a single-edged blade.

Mitchell testified that he also conducted an autopsy on Sara Tennant. He found four blunt lacerations on the left side and the back of her head and he observed skull fractures beneath the wounds. The injuries were consistent with blunt force trauma and could have been caused by a crowbar. Mitchell stated that his internal examination of the body indicated that Sara was not alive during the fire. Most of the heat damage was located on the back side of her body. The cause of Sara’s death was the injuries to her head involving the skull and brain as a result of multiple blunt force trauma. The head wounds were inflicted with a heavy object swung with enough force to break the skin and fracture the skull. Mitchell found seminal fluid in Sara’s vaginal vault. There were no injuries to her genitals. It was not possible to determine whether the sexual intercourse was premortem or postmortem.

Mitchell testified regarding Harold Tennant’s autopsy. There were blunt lacerations to the left side and top of Harold’s head. There were also two stab wounds on his left upper back. He sustained three wounds to the left side of his head. These wounds would be consistent with a crowbar. There was one wound to the top of the head. Both of the stab wounds penetrated the chest cavity. The head wounds were consistent with a heavy object that struck the skull, splitting the skin and fracturing the skull. The cause of death was due to multiple blows to the head causing skull fractures and trauma to the brain, along with stab wounds to the back causing blood loss into the chest cavity. There was no evidence that Harold was alive at the time of the fire.

Mitchell also performed an autopsy on Eric Tennant. The fire damage to Eric’s body was extensive. There were four blunt injuries to the top of his head and his forehead. As with the other victims, the injuries were inflicted with a heavy object using sufficient force to break the skin and cause skull fractures. A crowbar could cause that type of damage. The location of the injuries to Eric’s head could be consistent with him lying back on a reclinen There was no evidence that Eric was alive at the time of the fire. Eric’s cause of death was as a result of the injuries to his skull and brain.

Mitchell testified that he could not determine the time of death for any of the four victims. Nor could he determine who died first. The wounds on the victims were inconsistent with gunshot wounds. Mitchell could not say how much blood the assailant would have had on him or her due to killing the four victims.

Matt Grivetti testified that he was a friend of Eric Tennant. He spent a lot of time at the Tennant house, including many overnight stays. On May 30, 2002, he was helping Eric plow a field and plant corn. They stopped working when it got dark. Grivetti stayed the night at the Tennant house because he and Eric intended to continue their work the next morning. They arrived at the house around 11 p.m. They watched television in Eric’s bedroom for about an hour. Grivetti sat on Eric’s bed and Eric sat in the reclinen Grivetti went into the spare bedroom to sleep. He closed the door to the bedroom when he went to bed. He awoke to the sound of a smoke alarm and smoke in the bedroom. It was light outside. He opened a window in the bedroom and put his head outside to get some air. He looked to his left and saw flames coming out the window of Eric’s bedroom. Grivetti climbed out the window and ran around to the front of the house. He went inside the house and it was full of smoke. He grabbed his cell phone. He went outside to a nearby barn and called 9-1-1. He then called his father, who was a firefighter. The police arrived and then the fire department.

Grivetti testified the police told him at the scene that he could go home. His mother picked him up and he took a shower. His mother put his clothes out on the porch because they smelled of smoke. After that, he went back to the Tennant house. Grivetti was interviewed twice by the police. The second time he spoke with the police was at the suggestion of his attorney. The reason for the second interview was that the first interview was cut short. He was only 15 years old at the time and his parents obtained an attorney and the attorney stopped the questioning. He told the police that when he made the 9-1-1 call, he was leaning against a diesel fuel tank. The police had taken his clothes that he was wearing that night.

James Lahey, arson investigator for the State Fire Marshal, testified that he went to the scene of the fire at the Tennant house to investigate the cause of that fire. Most of the burning was in the northwest second-floor area, which was extensively burned. He and his team ruled out the gas and electrical service as playing any part in the fire. There was no major fire damage on the first floor nor was there any fire activity in the kitchen. They next went to the basement, where they observed fire damage in the north section of the bedroom area. Lahey smelled an odor of some type of ignitable liquid. He called his office to send an officer with a canine trained to sniff for accelerants. When the dog arrived, it was taken into the basement. After the dog completed its work, samples were taken. Lahey and his team found no accidental causes of the fire. There was fire on most portions of the bed in the basement; most of the bed had been consumed by the fire. There was not a lot of fire damage in the rest of the room. Lahey’s opinion is that the origin of the fire in the basement was in the north area where the bed was located. He could not be more specific. His opinion as to the cause of the fire in the basement was an open flame, such as a cigarette lighter or charcoal lighter, meaning that it was started by a human. Lahey later learned that the samples taken from the bed tested positive for medium petroleum distillate and gasoline.

Lahey proceeded up to the second floor of the house, where there was a tremendous amount of fire damage to the northwest portion of the structure. The greatest fire damage was to the northwest bedroom. That was the bedroom in which Eric Tennant’s body was located. Portions of the floor were burned away. Lahey also found fire damage in the hallway; this fire was of some combustible products laying in the hallway. He could not determine whether that fire was a separate fire because there was total destruction to the area. He found no accidental causes of the fire on the second floor. The origin of the fire on that floor was in the northwest bedroom and the cause was an open flame. The fires in the basement and on the second floor were separately set. Lahey gave his preliminary findings to personnel from the Will County sheriffs department.

Juliann Budde, Will County deputy sheriff and crime scene technician, testified that she responded to the scene of the fire at the Tennant house. She collected bloodstains from areas on the exterior of the house. She also collected several knives from the kitchen and a pry bar and a crowbar outside on the grounds. In addition, she collected a plastic container that was partially melted. That container was located on Sara’s bed behind her body. Budde viewed the label on the container under an alternative light source. The label had the word “kerosene” on it.

Budde stated that she examined the first-floor bathroom in the house and she did not see any blood there. There were a few drops of what appeared to be blood at the top of the basement stairs. The technicians took pieces of wallboard from the upstairs southwest bedroom and the upstairs hallway, which appeared to have blood spatter on them. The area from which those pieces were taken were very close to areas of bloodstains on the floor where the bodies of Harold and Jean were located. Budde did not talk to the investigators at all.

Howard Young, evidence technician, testified that on May 31, 2002, he went to defendant’s residence to collect evidence. He examined a dumpster and burn barrels at a residence located at defendant’s house. One of the barrels had been on fire and was still warm to the touch. In the dumpster, Young found a driver’s license with the name of a Sara Grollemond on it, a camera enclosed in a case, a receipt with Sara Tennant’s name on it, some photographs, and two business cards lying on top of some garbage bags. One of the business cards was for a dental appointment and it had the name Brian on it. Young and the other evidence technicians went inside the residence and collected certain clothing. He did not find any dirty clothing. Young also collected a knife from defendant’s residence. On June 3, 2002, Young went to the Tennant residence and retrieved a crowbar that was lying next to a corn bin. It was rusty and dirty.

Young testified that he did not send the items retrieved from the dumpster to the crime lab for possible fingerprint analysis. He also took some swabbings from the floor of a shower at defendant’s house. He collected a pair of boots from defendant’s residence. He does not know what was done with them afterward. He also looked inside defendant’s vehicle with a flashlight, looking for bloodstains. He found none. He took swabbings from the driver’s seat, driver’s floor mat, the steering wheel, and driver’s side door panel.

Ralph Meyer, a forensic scientist employed by the Illinois State Police, testified that he analyzed samples of Sara’s clothing, a plastic item, a bed sheet, and cloth. All the items contained a medium petroleum distillate, such as those used in paint thinners, naphthas, dry cleaning solvents, and some brands of charcoal starters. Those items also contained gasoline. Other items Meyer tested were shorts, a shirt, and a washcloth. Those items contained the medium petroleum distillates, but he could not confirm the presence of gasoline in those items. (The parties stipulated that these last items were Matt Grivetti’s clothes recovered from his house.) The cans containing the items had holes in them. The items were collected in 2002. Meyer did the tests on the items in May 2005. With the holes, there is the possibility of evaporation of the flammable liquids over time. However, the testing that was done on the Grivetti items did not show the results for gasoline that the other items from the Tennant residence showed.

Wilburn Wilkins, forensic scientist with the Illinois State Police Forensic Science Command, testified that he specializes in latent fingerprints. One of the latent fingerprints submitted to his laboratory matched the left index fingerprint of defendant. Wilkins examined a knife and none of his tests showed the presence of any latent fingerprints on either the blade or the handle. Fingerprints are very fragile and are easily obliterated. Heat and fire would very likely have an adverse effect on fingerprints.

William Anselme, forensic biologist employed by the Illinois State Police, testified that in June 2002, he tested a sexual assault collection kit obtained from Sara Tennant. He got a strong reading of semen on the vaginal swabs. This is the strongest possible reading. He also found prostate fluid on the rectal swab. The stronger the reading for the presence of semen, the more recent the deposit of it, i.e., “within several days, three days.”

Katherine Sullivan, forensic biologist for the Illinois State Police, testified that she analyzed bloodstains from the basement wall at the Tennant house. She performed a DNA analysis and determined that the blood belonged to Harold Tennant. With regard to the vaginal swabs from Sara, Sullivan concluded from her DNA analysis that the semen found in those swabs was consistent with having originated from defendant.

The jury returned verdicts of guilty on all counts. The trial court entered judgment on the convictions and the trial proceeded to the eligibility phase of the capital sentencing hearing. At that hearing, the trial court took judicial notice of the judgments of conviction. The jury returned a verdict finding defendant eligible for the death penalty.

At the second stage of the sentencing hearing, the jury heard the following testimony in aggravation.

Bobby Bundren, trooper with the Illinois State Police, testified that on April 27, 2000, he was dispatched to a car crash in Kankakee County. A semi and a red Ford pickup truck had collided. Defendant was the driver of the pickup truck. Bundren ran the truck’s license plates and registration and learned that the plates and the truck had been reported stolen. Bundren read defendant his Miranda rights and defendant waived them. He told Bundren that the truck was stolen by someone else and that it had been left at the residence of defendant’s mother about a month earlier. Bundren later learned that defendant’s statement was false.

Allen Ramsey, deputy sheriff for Kankakee County, testified that on March 19, 2000, he responded to a call of a domestic battery at defendant’s mother’s residence. She told Ramsey that she and defendant had been arguing and that defendant pushed her into a table and cut her finger. After a search of the residence, the officers found five long guns in defendant’s bedroom. Defendant told the officers that they were stolen, but that he had bought them from a friend.

Richard Girot, Will County deputy sheriff, testified that on March 19, 2000, he went to Harold Tennant’s residence for a report of stolen weapons. Harold told him that about a week earlier, someone had come into the house and taken some guns. Harold often left his house unlocked and there was no sign of forced entry. Girot talked to defendant later in the day about the guns. Defendant said he had purchased five guns from a man named Jack Cane. Defendant gave a written statement as to how he had come to purchase the guns. He stated that Sara told him later that her father’s guns had been stolen, but he did not think the guns he bought belonged to Harold Tennant.

Dennis Carey, detective with the Will County sheriff’s police, testified that on March 20, 2000, he interviewed defendant concerning stolen firearms. At first, defendant maintained the story about buying the guns from someone he met at a party for $500. After a while, however, he told Carey that he had stolen the guns because he needed money to fix his truck. Defendant gave a written statement.

Raymond Fairfield of the Kankakee County sheriffs department, testified that in 2000, he was assigned to the auto theft unit. On April 3, 2000, he investigated a case of possession of a stolen motor vehicle. The vehicle involved was a 1989 Ford pickup truck. The truck was found abandoned on Route 17. It had been stolen out of Lake County, Indiana. It did not have any license plates. Someone had tried to set fire to the truck with paper and matches. Fairfield learned that the owner of the truck was defendant’s brother-in-law. Several days later, Fair-field received an anonymous tip that defendant had possibly stolen the truck. He interviewed defendant about the stolen truck and about a dump truck that was stolen previously and had been found damaged and spray painted. Defendant admitted to stealing both trucks. Fairfield also talked to defendant about the theft of some rifles from the house of Harold Tennant. Defendant admitted he stole the guns. Defendant gave a videotaped statement and later pleaded guilty to the charges. He told Fairfield that he took his brother-in-law’s truck so he could go see his girlfriend.

Corey Pious testified that he dated Sara Tennant for about a month and a half in 1998. On August 9, 2000, at around 9 p.m., Pious was at his mother’s house in Momence. He received a phone call from Sara, saying she wanted to go out. Then a friend of his came over to the house and said there was someone outside the house and he looked suspicious. Pious went outside and met defendant. Defendant wanted to go for a walk and talk about Sara. Defendant asked Pious what his occupation was and whether he thought Sara was cute. Pious started to feel uncomfortable and turned to go back to the house. At that point, defendant grabbed him around the neck, slammed the handle of a knife in his back, and said he was going to kill Pious. As Pious turned in defendant’s grasp, defendant bit him on the arm. Pious slammed defendant on the ground and held him there. After letting defendant up, defendant lunged at Pious and stabbed him with the knife. Pious put pressure on his wound and yelled for help. Defendant ran to his truck and left. Pious was taken to the hospital where he talked to the police. He identified defendant’s photograph.

Pious testified that he and Sara did not have a normal dating relationship. They had to sneak phone calls and they only went out one time. Pious denied that when defendant confronted him, defendant accused Pious of raping Sara. Pious gave a written statement to the police about the incident. He wrote that defendant apologized to him and that defendant said that he did it for Sara. Pious did not put in the statement that defendant bit him. In the statement, Pious said defendant had two pocket knives.

Tracy Nolte, police officer for the city of Momence, testified that he talked to Corey Pious at the hospital after the stabbing incident. He also talked to defendant, who agreed to accompany Nolte to the police station. Defendant gave a written statement. He said that he, his sister, and Sara had gone to church that evening, then went to Hardee’s restaurant, and then to Wal-Mart. They got home about 10:30 p.m. Nolte also interviewed Sara, who stated that defendant did not go to church that evening, or to Hardee’s or to Wal-Mart. Nolte interviewed defendant’s sister and mother. They confirmed what Sara told Nolte. After that, Nolte received a phone call from defendant, stating that his statement was false. Defendant stated that he had instead been in Braidwood, IIlinois, where he cut some tires on a vehicle belonging to a Danny Hoffman. Nolte called the Braidwood police department, which verified that no damage had been done to Hoffman’s vehicle on August 9, 2000. Defendant was later charged with aggravated battery with bodily harm in the Pious case. Defendant was arrested on that warrant in Oklahoma. Defendant pleaded guilty to the charge. Nolte did not recall whether Pious had a bite mark on his body.

Megan Stacy testified that she dated defendant for six months while they attended Beecher Elementary School. This was during her seventh-grade year and defendant’s eighth-grade year. Defendant was very obsessive, controlling, and manipulative. She had to do what he told her to do and she had to be with defendant all the time. He said that if he did not have her, no one would. During this time, she did not have any male friends because they were afraid of defendant. Defendant took a BB gun and shot her name on his chest. She further testified that he carved “Megan 4 — the number 4, e-v-a, forever.” She told defendant a few times that she wanted to break up with him. Each time, he told her he was in love with her forever and if she ever left him, he would kill her and himself. One time she tried to break up with defendant at his house. He told her she could not leave him and he was scaring her, so she called her mother to pick her up. Defendant ran off screaming that he was going to kill himself. After that, Stacy’s mother separated her completely from the situation. They talked to the principal of her school and she had to leave class early so she would not encounter defendant in the hallways. Defendant called her numerous times and wrote notes to her. On the occasions defendant threatened to kill her or himself, Stacy did not see a weapon. However, defendant gave her bullets to take home to show her how serious he was.

Paul Fotopoulos, investigator for the Illinois Attorney General’s office, testified that he interviewed Richard Preston, former principal at Beecher Elementary School. He prepared a written report of the interview and because Preston was unavailable to testify, Fotopoulos read his report to the jury.

Preston told Fotopoulos that defendant got into trouble from the time he was in the sixth grade and his behavior problems escalated as he got older. He was suspended several times for insubordination. Preston described defendant as emotionally unstable, unpredictable, and volatile. Defendant and his friends were considered unmanageable and were disruptive. Defendant’s mother was overly protective of him and was unable to comprehend the problems defendant was causing or was not willing to accept them. The faculty of the school was intimidated by defendant and his friends. Preston believed that defendant was capable of harming others. During Preston’s tenure at the school, he was frightened by defendant. After defendant left the school, he came back once to talk to Preston. Although the visit proved to be uneventful, Preston notified the administration that if defendant attempted to visit the school again, the police should be notified as a precaution.

Brad Jerkatis, who was a correctional officer at the jail during the time defendant was incarcerated there, testified that he received a letter confiscated by another correctional officer. It appeared to be a hate letter with a drawing that could be seen through the envelope. The officers conducted an inspection of defendant’s cell. Defendant told them he was mailing the letter for someone else. The officers opened the sealed envelope. It was addressed to Nick and Angelo Zuccolo in Beecher. Defendant’s name and identification number were on the return address. Two letters were inside the envelope. One was signed by Brian Richard. Jerkatis is aware from correctional records that defendant’s middle name is Richard.

The letters contained racial slurs and one stated that defendant was “happily more racist.” It also stated that a lot of people were going to pay for the “hell” they put in defendant’s life. The letter also said that “one of these days me and John are going to set this place up. The shit’s going to hit the fan then!”

The jury also heard evidence concerning another letter signed by “Brian” found in the Will County jail property room in another inmate’s belongings. The letter was in some kind of code and addressed to that inmate. The letter referred to what the two of them would do once they got out of jail. It stated that the first thing they would do was “get into an honest business. That way, we’ve got a cover for all the thieving, killing, and torturing we intend on doing, bro.”

The State introduced certified copies of defendant’s convictions, as follows: (1) on September 18, 2000, defendant was convicted of unlawful possession of a stolen vehicle, a Class 2 felony, regarding a stolen vehicle belonging to Thomas Burdock. He was sentenced to three years in prison, with a recommendation for impact incarceration; (2) on September 18, 2000, defendant was convicted of aggravated battery, a Class 3 felony, for the stabbing of Corey Pious. He was sentenced to 12 months of conditional discharge; (3) on September 25, 2000, defendant was convicted of theft, a Class 3 felony, for the theft of guns from Harold Tennant. He was sentenced to two years in prison with a recommendation for impact incarceration.

The jury heard mitigation evidence, including the following.

John Weigel testified that he is a farmer and owns a construction business. Defendant worked for him at his farm off and on for approximately two years. Defendant was a good worker. He stayed as late in the evening as Weigel needed him to and never complained about it. Weigel got to know defendant personally and thought he was a nice, hard-working, honest person. Defendant was always respectful to Weigel.

Janet Nelson, defendant’s mother, testified that defendant was born in Texas. His natural father is Thomas West. Defendant has four sisters and a brother. When defendant was about a year old, she decided to move to Wisconsin with her children. West did not move with the family, as he decided he wanted to stay in Texas. In 1984, she moved to Dyer, Indiana. She met and married a man named Tom Nelson. They were married for five years. Nelson was very good to the children. Defendant looked up to him. When defendant was seven years old, Nelson was killed in a car/train accident. Defendant took the loss very hard. Brian’s natural father was out of the picture, although they heard from him by telephone at times. Defendant has several nieces, nephews, and half-siblings and he gets along well with them. Five years after Tom Nelson died, Janet married a man named Ray Wroblewski. He was chief of police in Beecher. Defendant has always been a hard worker. He was in a car accident in 2000. He was in the hospital for several days.

Raymond Wroblewski testified that he was married to defendant’s mother for about five years. He was the chief of police in Beecher until he retired in 1998. Their household consisted of him, Janet, defendant, and defendant’s sister, Carrie. Defendant was always working and was respectful to him. There were some discipline problems, but no major ones. Defendant’s relationship with his mother was good; he obeyed her very well. Wroblewski has remained in contact with defendant over the last couple of years. He usually saw him once a week.

Larry Hendrix testified that he is a farmer and that he employed defendant from 1999 to the date of the murders. Defendant was a good worker and was prompt and thorough. He knew defendant personally. He would see defendant six days a week. He has two sons near defendant’s age and defendant would eat meals at his house. He also supervised some visits between defendant and defendant’s daughter, Amber. The bond between defendant and Amber was apparent. Defendant wanted to support Amber financially. Hendrix helped defendant set up a direct deposit from his account to Sara’s account. That was in effect for about a year. Hendrix never saw defendant be violent or aggressive. Hendrix would recommend defendant to any potential employer. He was honest and trustworthy, loyal and dependable, and Hendrix would hire him back tomorrow if he could.

Stacy Luecke testified that she went to school with defendant. She saw him almost every day from first grade to her junior year of high school. He was “awesome,” someone who would make you feel good if you were having a bad day. She knew two of defendant’s girlfriends. He treated them well. She never saw any aggressive or obsessive behavior toward them. She did not witness any problems between defendant and Richard Preston. She would describe defendant as a perfect gentlemen, kindhearted, and generous.

Robert Heilbronner, director of the Chicago Neuropsychology Group, testified that neuropsychology is a subspecialty of the field of psychology that concerns itself with the study of the brain and how brain function and dysfunction affects an individual’s thinking skills, personality, behavior, and emotional functioning. He primarily performs neuropsychological evaluations of a variety of patients. In July 2004, Heilbronner conducted a neuropsychological evaluation of defendant. The purpose of the evaluation was to provide a comprehensive assessment of defendant’s neuropsychological strengths and weaknesses. This is done through administration of tests that provide a valid and reliable measure of neuropsychological functioning. Heilbronner tested defendant over a full day. Defendant did reasonably well on the majority of the tests. From a cognitive perspective, defendant performed at a level that Heilbronner would expect for a man defendant’s age and with his educational background.

Heilbronner examined defendant’s medical records, including those from a hospital stay after he sustained a significant head injury in a motor vehicle accident. Based on a number of factors, it is Heilbronner’s opinion that the injury was moderate, if not severe. His understanding of the accident is that defendant was ejected from the vehicle about 30 feet and landed in a ditch. Defendant’s score on the Glasgow Coma Scale was 13 out of 15, which indicates a mild injury. This, however, is contradicted by defendant’s memory loss of events surrounding the accident, the fact that he was combative and aggressive in the emergency room, which is often seen in someone whose brain has been damaged, and the CT scan of the brain, which showed a brain lesion. This suggests a moderate to severe brain injury. The head injury was essentially left untreated because there was no recommendation for any rehabilitation or follow up.

The frontal lobe of the brain controls emotions and behavior. It is responsible for curbing impulsivity and poor judgment. When someone has a severe frontal lobe injury, there is increased aggressiveness, primitive behavior, use of profanity, and impulsive acting out. While such an injury does not create a whole new personality, it often exaggerates who the person was before the injury. For instance, someone who was aggressive before the injury will be even more aggressive after the injury. It is difficult to function in a logical, organized manner in an environment that is not structured. Heilbronner’s opinion, to a reasonable degree of neuropsychological certainty, is that defendant’s brain injury was a significant factor in the lack of control of his behavior after the accident. Heilbronner reviewed defendant’s mental health records from the Riverside Medical Center. Defendant was admitted there twice, once in 1997 and once in 2000, after the accident. There was evidence of behavioral problems before the accident, but not to the degree and frequency seen after the accident. Defendant suffered more depression and got into more trouble with the law.

Heilbronner testified that brain scans themselves are not always diagnostic because sometimes in significant brain injuries, a CT scan or MRI can look completely normal, but there will be prominent neuropsychological impairment or changes in behavior. Defendant’s CT scan showed evidence of damage in the basal ganglia, which is a part of the brain that is connected to the frontal lobes. There was also evidence of a shear injury to the neurons, which is what happens when the brain is moving about a lot. The neurons and axons get torn and sheared.

Heilbronner acknowledged that defendant’s records from Riverside showed that two years prior to the accident, he had been referred there for his agitated, aggressive behavior. He had begun engaging in random acts of vandalism at that time. He had stated he threw hay bales and mannequins over viaducts and he indicated he had escalated in his aggression and agitation. This was apparently in response to breaking up with a girlfriend.

Heilbronner also acknowledged that the results of an MRI and an EEC administered to defendant after the accident in 2000 were normal. Heilbronner administered a test to defendant to measure his executive functioning, which involves planning, problem solving, organizing, and initiating activities. While defendant had some difficulties with the test, his results were within normal limits with no significant impairments on any of the measures. Defendant also scored in the normal range on another test that measured abstract thinking, reasoning, and problem-solving skills.

Heilbronner testified that based upon everything he looked at, he did not find real prominent evidence of brain dysfunction. However, the changes in personality and behavior are the real manifestations of brain damage. It is not unusual for an MRI done some months or years after a head injury to show normal results.

Randi Zoot, a clinical psychologist in private practice, testified that part of her practice is in forensic psychology. She has had extensive experience with the criminal population. She was head of the mental health department at Stateville Prison for six years. Prior to that, she was a psychologist at the Cook County jail. She conducted a psychological evaluation of defendant in July and August 2006. In doing so, she had access to all of the discovery materials exchanged between the parties and defendant’s medical and mental health records. The two most significant events in defendant’s pre-teen years were the loss of Tom Nelson and the rejection he felt from his natural father. Defendant’s hospitalization in 1997 was precipitated by a breakup with a girlfriend. He was extremely depressed and anxious. He had increasingly angry outbursts and some self-inflicted injuries, including shooting himself with a BB gun in the chest and burning himself with a cigarette. One of defendant’s core difficulties noted by the staff at Riverside was rejection and loss of love.

Zoot testified that she reviewed Heilbronner’s report and she agrees with his conclusions that the head injury defendant suffered may have affected him emotionally and behaviorally. After the accident, defendant’s behavior seemed increasingly out of control and increasingly impulsive and emotional. Defendant was admitted to Riverside again in 2000. His diagnosis was organic effective syndrome and traumatic brain injury. There was a concern that he may have reinjured his head when he bumped his head in another car accident. Regarding defendant’s relationships with his two previous girlfriends, they were characterized by obsessive behavior and over-involvement on defendant’s part in an attempt to fill some significant dependency needs. With respect to his relationship with Sara Tennant, defendant was very obsessive about the relationship. He was terrified of being rejected and of being alone. The incidents involving the theft of guns and the trucks, and the stabbing of Corey Pious all related to defendant’s relationship with Sara.

Zoot testified that she administered two well known psychological tests to defendant, the Minnesota Multiphasic Personality Inventory (MMPI) and the Rorschach test. They give a good indication of a person’s psychological makeup. The MMPI showed defendant to be someone who has a naive view of himself and is not aware of his angry and hostile impulses. He is a passive dependent person, who relies very strongly on a relationship and would make excessive, unrealistic demands. The loss of a love relationship would be the number one destabilizing factor in defendant’s life. He would react to the loss with fear, anxiety, depression, anger, and rage. It is very likely that the early loss of his adopted father and the rejection by his biological father set the stage for those reactions.

Zoot’s opinion is that defendant could function well in a structured environment such as a prison. She diagnosed defendant with major depression which is currently in remission with medication. She also believes he has a borderline personality disorder of which overwhelming fear of abandonment and rejection are elements. People with these kinds of personalities engage in reckless behavior. She does not believe that defendant would pose any kind of risk in a prison setting. Zoot also opined that a hypothetical 19-year-old person with defendant’s personality traits, who experiences the loss of a romantic relationship and who hardly eats or sleeps for a week and makes a number of obsessive phone calls leaving desperate messages trying to repair the relationship, is suffering from an extreme emotional disorder.

Zoot acknowledged she knew of the two letters written by defendant while he was in the Will County jail and is also aware that there were 35 incidents with defendant in the jail. During his first two years there, he had 10 major infractions, with the incidents being more minor in 2005 and 2006. She is also aware from Heilbronner’s report that he interviewed Janet Nelson and she told him that after the car accident in 2000, defendant was “pretty much the old Brian.” However, the mother also said that defendant had trouble controlling his temper after the accident.

Vincent Cerri testified that he is a mitigation expert. He did an investigation into defendant’s social background to bring to light any mitigating factors. He is an attorney and a former judge with 24 years on the bench. He spoke to several of defendant’s elementary school teachers. In kindergarten through third grade, defendant was quiet and shy. He caused no trouble. He was an average student and a hard worker. He was held back in school for a year after kindergarten. When Tom Nelson died, defendant did not show any grieving, nor did his sister, Carrie. School officials recommended to defendant’s mother that she obtain counseling for the children, but she did not feel they needed counseling and thought she could handle it. Defendant never talked about his family. He seemed to bottle things up inside. When defendant was in grades three through five, he began to exhibit some changes in his behavior, such as being disruptive and angry. Many teachers, however, did not recall having any specific problems with defendant. He was somewhat of a loner. When he became upset, he would be loud and verbal. Defendant’s physical education teacher from the sixth, seventh, and eighth grades recalled that defendant was taller than most of the other students and that he had a “quick fuse.”

Cerri stated that defendant’s liberal arts teacher from the sixth through the eighth grade described defendant as an average student who was capable of doing better. She got along well with him and never had trouble with him. Cerri stated that defendant was suspended twice in the seventh grade and a number of times when he was in eighth grade. His grades went down. The teachers said that defendant came into the school a quiet, shy child who was very respectful and polite and then in the seventh and eighth grades, he was anything but that. Defendant’s problems seemed to escalate as his mother was having problems in her marriage to Ray Wroblewski.

Defendant was admitted into Riverside due to an outburst at home when he was just entering eighth grade. He had crying spells and intense anger. He was diagnosed with major depression, dysthymic disorder, and anxiety. He had panic attacks. During defendant’s readmission to Riverside in 2000, the evaluation indicated that defendant exhibited marked disregard for accepted social standards and had problems with authority figures, manifested by inappropriate and antisocial behavior. Both after the 1997 and 2000 hospitalizations, it was recommended that defendant have follow-up outpatient treatment, “[b]ut somewhere along the line, it went by the board.” It was recommended that defendant be home schooled during high school. He received about a year of that, then he began full time employment. Cerri testified that defendant successfully completed impact incarceration, i.e. “boot camp” in 2000. He responded very well to the discipline and structure of that environment.

The jury returned a verdict finding death to be the appropriate sentence. The trial court sentenced defendant to death and set an execution date of January 5, 2007. The death sentence has been stayed pending direct review by this court. 134 Ill. 2d Rs. 603, 609(a).

ANALYSIS

Defendant makes the following allegations of error: (1) the trial court erred in precluding cross-examination of Detectives Guilfoyle and Ruettiger concerning then-pending civil litigation against them involving the detectives’ interrogation of a suspect in a different case; (2) the trial court erred in excluding from evidence a psychological test relied on by defendant’s expert; (3) the trial court erred in denying defendant’s motion for mistrial due to improper remarks made by the prosecutor in his opening statement at the guilt phase of the trial; (4) the trial court erred in discharging a juror during deliberations at the second stage of the sentencing hearing; (5) the trial court erred in replacing the dismissed juror with an alternate juror; (6) defendant was denied a fair second-stage sentencing hearing where the prosecutor made improper remarks during rebuttal closing argument; (7) the death penalty is fundamentally unjust in light of the mitigation evidence; (8) Illinois’ death penalty statute violates due process under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the State is not required to prove beyond a reasonable doubt that death is the appropriate sentence; and (9) Illinois’ death penalty is unconstitutionally excessive because it fails to satisfy its legislative purposes.

I. Preclusion of Cross-examination Regarding Civil Complaint

Defendant argues that the trial court erred in granting the State’s motion in limine to exclude any testimony about a federal complaint filed by Kevin Fox, a former suspect in a murder case. Fox had been accused of the murder of his young daughter and he was interrogated by Guilfoyle and Ruettiger. The detectives were named defendants in the Fox case, which, at the time of defendant’s trial, was pending in the Northern District of Illinois. Fox alleged that the detectives violated his civil rights, eventually coercing him into making a false confession that he had killed his daughter. DNA tests subsequently exonerated Fox and the charges against him were dropped. Defendant alleges that Guilfoyle and Ruettiger used interrogation methods on him similar to the ones they used on Fox, leading to a false confession by defendant. The trial court granted the State’s motion in limine, noting that the allegations of the Fox complaint were not proof and that there was no evidence of disciplinary action taken by the police department against either Guilfoyle or Ruettiger.

Defendant cites what he believes are similarities between his interrogation by the detectives and the interrogation alleged in the Fox complaint. He argues that the detectives were aware that their testimony in the instant case could have been used against them in the Fox civil suit to show a pattern of interrogation methods. Thus, the Fox suit gave the detectives a financial interest in minimizing what defendant calls the suggestive, emotional nature of their interrogation of him. According to defendant, the trial court’s order deprived him of his sixth amendment right of confrontation.

Generally, a decision on an evidentiary motion, such as a motion in limine, is committed to the trial court’s discretion and a reviewing court will not disturb that decision absent an abuse of discretion. People v. Harvey, 211 Ill. 2d 368, 392 (2004). A defendant has a fundamental, constitutional right to confront the witnesses against him, which includes a reasonable right of cross-examination to inquire into a witness’s bias, interest, or motive to testify falsely. However, the evidence used to impeach must raise an inference that the witness has something to gain or lose by his testimony; the evidence must not be remote or uncertain. People v. Coleman, 206 Ill. 2d 261, 278 (2002).

Case law establishes that the trial court did not abuse its discretion in refusing to allow defendant to use the Fox case to impeach the detectives. For example, in People v. Davis, 193 Ill. App. 3d 1001 (1990), a police officer had kicked the