{ "id": 3228807, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS V. ODLE, Appellant", "name_abbreviation": "People v. Odle", "decision_date": "1988-12-21", "docket_number": "No. 63753", "first_page": "111", "last_page": "147", "citations": [ { "type": "official", "cite": "128 Ill. 2d 111" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "107 S. Ct. 1329", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "94 L. Ed. 2d 180", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "479 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6559402, 6559372, 6559345, 6559450, 6559324 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/479/1101-04", "/us/479/1101-03", "/us/479/1101-02", "/us/479/1101-05", "/us/479/1101-01" ] }, { "cite": "112 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538892 ], "year": 1987, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0324-01" ] }, { "cite": "101 S. Ct. 59", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "66 L. Ed. 2d 14", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "449 U.S. 811", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11719936, 11719968, 11720160, 11720292, 11720006, 11720073, 11720117, 11719897 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/449/0811-02", "/us/449/0811-03", "/us/449/0811-07", "/us/449/0811-08", "/us/449/0811-04", "/us/449/0811-05", "/us/449/0811-06", "/us/449/0811-01" ] }, { "cite": "104 S. Ct. 200", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "78 L. Ed. 2d 175", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "100 S. Ct. 1603", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "63 L. Ed. 2d 788", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "445 U.S. 953", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777890, 1777309, 1777767, 1777514, 1777866, 1777806, 1777458, 1777592, 1777335, 1777720, 1777467, 1777725 ], "opinion_index": 0, "case_paths": [ "/us/445/0953-01", "/us/445/0953-11", "/us/445/0953-05", "/us/445/0953-06", "/us/445/0953-09", "/us/445/0953-10", "/us/445/0953-04", "/us/445/0953-12", "/us/445/0953-02", "/us/445/0953-07", "/us/445/0953-03", "/us/445/0953-08" ] }, { "cite": "77 Ill. 2d 531", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489531 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/77/0531-01" ] }, { "cite": "123 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551204 ], "year": 1979, "pin_cites": [ { "page": "44-45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0001-01" ] }, { "cite": "446 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183794 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/446/0420-01" ] }, { "cite": "428 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176749 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/428/0153-01" ] }, { "cite": "408 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782791 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/408/0238-01" ] }, { "cite": "486 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217116 ], "weight": 15, "pin_cites": [ { "page": "356" }, { "page": "382" }, { "page": "1859" }, { "page": "362" }, { "page": "380" }, { "page": "1858" }, { "page": "364" }, { "page": "382" }, { "page": "1859" }, { "page": "364" }, { "page": "382" }, { "page": "1859" } ], "opinion_index": 0, "case_paths": [ "/us/486/0356-01" ] }, { "cite": "94 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105961 ], "weight": 2, "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0378-01" ] }, { "cite": "122 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549773 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0266-01" ] }, { "cite": "79 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070652 ], "weight": 3, "pin_cites": [ { "page": "539-40" }, { "page": "534" }, { "page": "541-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0508-01" ] }, { "cite": "121 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202152 ], "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0364-01" ] }, { "cite": "385 N.Y.2d 708", "category": "reporters:state", "reporter": "N.Y.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173780 ], "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0256-01" ] }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "weight": 2, "pin_cites": [ { "page": "181-82" }, { "page": "181-182" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "122 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549839 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "239" }, { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0221-01" ] }, { "cite": "106 S. Ct. 204", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "88 L. Ed. 2d 173", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "474 U.S. 883", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401608 ], "opinion_index": 0, "case_paths": [ "/us/474/0883-01" ] }, { "cite": "105 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141477 ], "year": 1985, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0414-01" ] }, { "cite": "105 S. Ct. 362", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "83 L. Ed. 2d 298", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "469 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12034269, 12034334 ], "opinion_index": 0, "case_paths": [ "/us/469/0963-01", "/us/469/0963-02" ] }, { "cite": "102 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156739 ], "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0023-01" ] }, { "cite": "104 S. Ct. 2364", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "80 L. Ed. 2d 836", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "466 U.S. 981", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6380213 ], "opinion_index": 0, "case_paths": [ "/us/466/0981-01" ] }, { "cite": "97 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515941 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "302" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0252-01" ] }, { "cite": "462 U.S. 862", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195530 ], "weight": 3, "pin_cites": [ { "page": "880-90" }, { "page": "252-58" }, { "page": "2744-50" } ], "opinion_index": 1, "case_paths": [ "/us/462/0862-01" ] }, { "cite": "463 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202510 ], "weight": 3, "pin_cites": [ { "page": "3428-29" } ], "opinion_index": 1, "case_paths": [ "/us/463/0939-01" ] }, { "cite": "446 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183794 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/446/0420-01" ] }, { "cite": "486 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217116 ], "weight": 9, "pin_cites": [ { "page": "364" }, { "page": "378" }, { "page": "1856" }, { "page": "362" }, { "page": "380" }, { "page": "1858" } ], "opinion_index": 1, "case_paths": [ "/us/486/0356-01" ] }, { "cite": "79 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070652 ], "weight": 2, "pin_cites": [ { "page": "525-26" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/79/0508-01" ] } ], "analysis": { "cardinality": 1921, "char_count": 62641, "ocr_confidence": 0.764, "pagerank": { "raw": 3.123146930792093e-07, "percentile": 0.8607631178497279 }, "sha256": "8624a310e318698997d34b967f1e8460503191113c6138645da3de15b1dc6884", "simhash": "1:ad5378b4f76594d4", "word_count": 10374 }, "last_updated": "2023-07-14T19:54:46.843720+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JUSTICE STA.MOS joins in this special concurrence." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS V. ODLE, Appellant." ], "opinions": [ { "text": "CHIEF JUSTICE MORAN\ndelivered the opinion of the court:\nDefendant, Thomas V. Odle, v?as charged by information in the circuit court of Jefferson County under section 9 \u2014 l(aXl) of the Criminal Code of 1961 (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(aXl)) for the murders of Robert, Carolyn, Sean, Robyn and Scott Odie. A jury found defendant guilty of all five murders. The State requested a hearing to consider whether the death penalty should be imposed. (111. Rev. Stat. 1985, ch. 38, par. 9\u2014 1(d).) Defendant waived a jury, and the trial court found defendant eligible for the death, penalty. After hearing evidence in aggravation and mitigation, the trial court sentenced defendant to death. The death sentence was stayed (107 111. 2d R. 609(a)), pending direct appeal to this court (111. Const. 1970, art. VI, \u00a74(b); 107 HI. 2d R. 603).\nThe issues presented for review are: (1) whether the trial court erred in denying defendant a surrebuttal closing argument at the guilt phase of the trial; (2) whether the prosecutor\u2019s statements during closing argument denied defendant a fair trial; (3) whether the trial court\u2019s reference to a New York case defining \u201cextreme mental and emotional disturbance\u201d demonstrates that it adopted too strict a definition of this mitigating factor at the sentencing phase; (4) whether the trial court\u2019s consideration of evidence and adjudications from juvenile court proceedings violated defendant\u2019s rights under the Juvenile Court Act; (5) whether there are sufficient mitigating factors to preclude imposition of the death penalty. Defendant also asks that we reconsider prior cases holding the Illinois death penalty statute constitutional.\nOn Friday, November 8, 1985, officers from the Mount Vernon police department and the Jefferson County sheriff\u2019s office discovered the dead bodies of defendant\u2019s father, mother, two brothers and sister in the family residence. Defendant became the prime suspect in the investigation of the murders, and was apprehended the next morning. Defendant was read his Miranda rights and waived his right to have an attorney present during questioning. During questioning on the day after the murders, he made an oral statement in which he confessed to the murders. The confession was tape-recorded and later transcribed.\nDefendant\u2019s tape-recorded confession as well as the transcript of the confession were admitted into evidence at trial. In that confession, he recounted the events surrounding the murders. He stated that on November 8, 1985, he awoke at approximately 9:30 a.m. He was alone in the house except for his father, Robert Odle, who was in the kitchen. After smoking a cigarette and taking a shower, he went into the kitchen to find something to eat. Before returning to his bedroom, he removed a butcher knife with a five- to six-inch blade from a rack in the kitchen. A few moments later, he placed the knife in his pants, placed the lower portion of the shirt he was wearing over the knife, and reentered the kitchen. Defendant then stabbed Mr. Odle with the knife on the right side of the throat. Mr. Odle attempted to reach for the phone but defendant waved him off with the knife and told him to stay away from the phone. Mr. Odle sat down in a chair in the kitchen and defendant stabbed him in the left side of the neck and in the stomach.\nDefendant stated that his mother was expected to re? turn home at approximately 11:30 a.m. He dragged his father\u2019s body into the bathroom, laid towels on the floor to cover the trail of blood his father\u2019s body left, and used a mop and cleaner to remove the remaining blood before his mother returned.\nDefendant stated that when his mother, Carolyn Odle, returned home, he hid behind the back door and stabbed her as she walked into the house. Mrs. Odle ran into the living room while defendant continued to stab her. He maneuvered her toward his parent\u2019s bedroom and told her to \u201clook at Dad.\u201d Mrs. Odle fell to the floor, and he placed her body on the floor at the foot of his parents\u2019 bed.\nDefendant removed the clothes he was wearing, washed them, and changed into another set of clothes. Defendant stated that at approximately 12 p.m., he drove to the high school to see his girlfriend, Theresa Blevins. He returned home at approximately 2 p.m., removed the blood which remained on the television, refrigerator, floor, table and chairs, and watched television.\nAt 3:10 p.m., his brother Scott, age 11 years, came home. When Scott asked him about some blood marks on the walls, defendant told him that it was paint. When Scott asked further questions, he told Scott their parents had left for the weekend. He then told Scott to go into the back bedroom that he and Scott shared with their brother Sean. When they reached the bedroom, defendant began to strangle Scott with his hands. Defendant stated that at this point his hands became tired. He then tied a pajama bottom around Scott\u2019s neck and continued to strangle him. Defendant dragged Scott\u2019s body into his parents\u2019 bedroom and laid him next to Mrs. Odle.\nDefendant further stated that because his mother usually drove his brother Sean and his sister Robyn home from school at 3:30 p.m., he picked them up. When they returned home, defendant blindfolded Sean, took him into the bedroom where their mother and brother lay, and tied his hands behind his back with a towel. Defendant stabbed Sean in the throat three times, and then stabbed him in the cheek and head. Defendant left the room to get his sister but heard noises in the room he had just left. Realizing that Sean was still alive, defendant returned to the room and again stabbed Sean in the head and the back of the neck.\nDefendant stated he then changed back into the blue jeans he had washed earlier that day, changed his shirt, and went to get his sister Robyn. He told her to come to the bedroom which contained the bodies of their two brothers and their mother, held his hand over her eyes as they entered the room, and told her he had a surprise. Defendant then uncovered her eyes, showed her the bodies of her mother and her brothers, and stabbed her in the neck four to five times and once in the side.\nDefendant stated he noticed he had blood all over him. He also noticed that he had cut his hands when they slipped off the handle of the knife and onto the blade while stabbing the victims in the head. He washed himself in a sink, changed clothes, locked up the house, took his father\u2019s car and drove around for about an hour. He then picked up Theresa Blevins at a gas station near the high school. Defendant stated they went to a motel room where they spent the night.\nWhen asked if he had told Blevins anything about the incident, he said he had not. He stated that the first Blevins heard of the incident was when she called a friend from the motel room the morning after the murders, and was told the police were looking for defendant because he was suspected of having murdered a family of five. Defendant stated he \u201ctold her she was crazy.\u201d\nUpon further questioning, defendant said that he and his parents had argued the day before the murders. When asked what he and his parents had argued about, defendant replied they argued about \u201cevery day nonsense. *** They bitched at me for every little thing I did. I look at them wrong. What are you looking at me like that for? Constantly jumping on [sic] my throat. Constantly, constantly pressuring me.\u201d When asked how long this had occurred, defendant replied, \u201cYears.\u201d Defendant stated that his parents had told him he had to \u201cfind another place to live\u201d by the time his father left for work the next day at 4 p.m.\nWhen asked why he had killed his siblings, defendant stated that once his parents were dead, there was no one to take care of the children. When asked if the children could have lived with relatives, defendant stated the children \u201cwould find [Mr. and Mrs. Odle] and they would run and tell.\u201d In response to an officer\u2019s question regarding what defendant planned to do after leaving the motel room, defendant said he was going to \u201cjust drive\u201d and \u201c[f]ind a pole to hit or something.\u201d\nThe testimony adduced at trial reveals the following. Dr. Richard Garretson, the Jefferson County coroner, testified on behalf of the State. His testimony concerned the condition of the victims when found and the manner in which they died. Dr. Garretson testified that Scott\u2019s neck had been compressed to the size of an adult man\u2019s wrist. In contrasting Scott\u2019s strangulation death from the stabbing deaths of the other victims, Dr. Garretson stated that \u201cit\u2019s a suffocation death even though we call it immediate on the coroner\u2019s death certificate. It takes minutes for somebody to die. That would be [a] very agonizing death.\u201d\nDefendant\u2019s friends, Larry Owens, Kim Cates and Theresa Blevins, testified at trial on behalf of the State. Their testimony indicates that they were with defendant at various times during the day of the murders, and that a few days before the murder, defendant told them Mr. and Mrs. Odle were going out of town for the weekend and that his brothers and sister were going to spend the weekend at his grandmother\u2019s house.\nOwens also testified that on the day of the murders he telephoned the defendant\u2019s house at approximately 9:30 a.m. and received a busy signal. He stated that he eventually reached defendant, and that defendant was breathing hard when he answered the phone. When he asked defendant what was wrong, defendant answered that he had spilled some red paint on the hallway carpet and wanted to clean it up before his father returned. When defendant asked Owens if he wanted to drive around with him, Owens said he would. Owens then drove to defendant\u2019s house along with his girlfriend, Kim Cates.\nWhen they reached defendant\u2019s house, they sounded the car horn and defendant emerged from the house. Defendant told them to park their car at the city park and he would pick them up. Owens stated he and his girlfriend drove to the park and defendant picked them up in Mr. Odle\u2019s car. Defendant told Owens that his father and mother had gone for the weekend, leaving him the car.\nOwens further testified that they drove to the high school and met Theresa Blevins there between 11:30 a.m. and noon. He stated that when Blevins mentioned to defendant that he had some blood on his neck, defendant looked in the rear view mirror of the car and wiped off the blood. He stated that after Blevins went back to school, they went riding around in the car. Owens stated that while they drove defendant asked him if he could ever kill anyone. Owens testified that he \u201cconfronted [defendant] about it\u201d; however, defendant did not respond.\nOwens testified that defendant called him later that day at approximately 4 p.m. or 4:30 p.m., and asked him if he wanted to go riding around again. Owens stated he and Cates went riding with defendant and picked Blevins up at a gas station. He stated that they visited Owen\u2019s brother, who was staying at a local motel, where they talked for approximately 30 minutes and left. Defendant then drove them to another motel and rented a room. Owens stated that all four of them went into the motel room and stayed there until defendant drove him and Cates back to Cates\u2019 house at approximately 9:30 p.m.\nOwens\u2019 girlfriend, Kim Cates, also testified on behalf of the State. Her testimony substantially corroborated Owens\u2019 testimony. In addition, Cates testified that when defendant picked them up in the afternoon, she noticed defendant had two cuts on his left hand and one on his right hand. When she asked defendant where he had received the cuts, she testified defendant told her he had slammed his left hand in the car door. Defendant did not explain the cut on his right hand.\nTheresa Blevins testified on behalf of the State. Blevins\u2019 testimony corroborated Owens\u2019 and Cates\u2019 testimony regarding their activities on the day of the murders. In addition, Blevins testified that a few days before the murders she and defendant made plans for the weekend to spend the night together at defendant\u2019s house or a motel.\nBlevins further testified that when she met defendant, Owens and Cates at the gas station, she noticed that defendant had blood streaks on the inside of his right arm from his wrist to his elbow. Blevins testified that she did not ask, nor did defendant say how the blood got on his arm.\nBlevins stated that she and defendant spent the night together at the motel. Blevins testified that the next morning, she telephoned a friend from the motel and was told that defendant was on the news regarding the murder of a family. Blevins testified that she laughed and told her friend that she would go to the police station and \u201cstraighten everything out.\u201d When she hung up the phone and related the story to defendant, his reaction was \u201c[rjeally, wow.\u201d Blevins stated that defendant told her he would go to the police station and \u201cstraighten everything out\u201d after he dropped Blevins off at her friend\u2019s house.\nBlevins described defendant as a quiet person, but indicated that defendant was more so on the day of the murders. Blevins testified that defendant acted the same way at noon that day as he did later in the second motel. Blevins stated that as far as she knew, defendant did not have trouble sleeping that night.\nYvonne Sexton, a friend of Mrs. Odle, testified on behalf of the State. She testified that on the day of the murders she went to the Odle home to show something to Mrs. Odle. She stated defendant came out of the house and told her Mrs. Odle had left with a woman in a green car. She testified defendant was calm and friendly when she spoke with him.\nKim Twiggs testified she overheard a conversation defendant was having with another person in the city park two days before the murders. She stated that defendant said he was going to have the family car that weekend and that there was going to be a party at his house.\nThe defense raised at trial was insanity. In support of his theory, defendant presented a substantial amount of testimony from friends, neighbors, and family counselors and Department of Children and Family Services (Department) employees. Some of the Department employees had counseled the Odle family after they had received reports that the family was physically and emotionally abusing Sean. Other employees were called to testify concerning the Department\u2019s actions after the filing of a juvenile proceeding in which defendant was adjudicated delinquent for one count of felony theft, four counts of residential burglary, and one count of attempted residential burglary. All of the witnesses were called to either describe the Odle family and its members, the parents\u2019 treatment of the Odle children, or defendant\u2019s drug use.\nDr. Henry Conroe, a psychiatrist, testified on behalf of defendant. He was unable to render an opinion as to defendant\u2019s sanity on the day of the murders because three questions, which he stated were essential to the diagnosis, remained unanswered after his review of the defendant\u2019s records and his interview with defendant. First, he was unable to determine why defendant murdered his father and his brother, Scott, while expressing considerable affection for them during their interview. Second, he stated he was unable to determine why defendant continued to murder his family while feeling nauseated and repulsed during the slayings. The third question which remained unanswered was what defendant tangibly hoped to gain from the murders.\nDr. Conroe testified that during their interview, defendant expressed fondness for his father but felt Mr. Odle was \u201cunavailable\u201d and passive. Defendant described his mother as being two different people, in that she was active in the community yet very violent and physically and emotionally abusive toward her children.\nDr. Conroe testified that the collateral sources he reviewed corroborated defendant\u2019s characterization of Mrs. Odle. He testified that there was evidence that Sean had been chained to his bed at night, and that when Mrs. Odle struck the children with a belt to discipline them she was unable to stop herself at times. He also testified that when defendant was younger Mrs. Odle had smashed his head against a wall and that Sean had told Department of Children and Family Services employees that Mrs. Odle had \u201ctaken a hammer to\u201d defendant, used a dog chain to tie defendant to his bed at night, and restricted defendant to the yard when playing with friends until he was 15 years old.\nDr. Conroe stated that during their interview, defendant stated that he felt his mother was overly harsh, punitive and restrictive; however, defendant also cited instances in which Mrs. Odle left the children alone while Mr. Odle worked. Defendant told Dr. Conroe that he suspected Mrs. Odle was seeing other men at these times.\nDr. Conroe also stated that just prior to the murders, defendant had been discharged from the military in June of 1985 because of a knee injury. Upon returning home, he was unable to find work, broke up with a girlfriend, and was subjected to constant friction between himself and his family. He testified that defendant became depressed and suicidal. According to Dr. Conroe, defendant began to think about killing his parents the day before the murders, when he was told he was being evicted from the family home.\nDr. Conroe stated that in his opinion defendant suffers from a borderline personality disorder and mixed substance abuse. He testified there are two types of mental disorders. One type is a \u201cpsychosis where a person is out of touch with reality.\u201d The other type is a \u201cneurosis where the person can feel a lot of inner pain yet they can be functioning pretty well on the outside.\u201d He explained that a person with a borderline personality disorder \u201ccan slip either into deep depressions or can slip into psychosis *** when they are stressed terribly, [and] can lose touch with reality for a brief period of time and then pull themselves together again.\u201d\nAccording to Dr. Conroe, persons with a borderline personality disorder have \u201clong-standing problems controlling their impulses, *** have difficulty controlling their anger\u201d and \u201chave unstable and intense relationships with other people.\u201d In his opinion, a person with a borderline personality disorder cannot tolerate being alone. He found that significant in this case because the day before the murders defendant had been told he could no longer live at home. Dr. Conroe opined that defendant\u2019s commission of these murders was the result of a \u201cmalignant family system\u201d which exhibited \u201cunavailability,\u201d \u201cabsence\u201d and \u201ccoldness.\u201d\nWhen asked if defendant could be diagnosed as having an antisocial personality disorder, Dr. Conroe testified the diagnosis would only be appropriate where the person exhibits a certain \u201ccoldness\u201d and the commission of antisocial acts is central to the subject\u2019s personality. Dr. Conroe found defendant did not exhibit these traits. He testified that an antisocial personality is not able to form bonds with anyone and would not have been able to demonstrate affection as defendant did for his brother Scott during their interview.\nOn cross-examination, the State elicited from Dr. Conroe the fact that none of the reports he received from the Department of Children and Family Services concerning the Odle family were generated in response to the family\u2019s treatment of defendant; rather, they were generated in response to the family\u2019s treatment of Sean. Dr. Conroe stressed however that the Department\u2019s actual recommendations concerned the entire family.\nAs to Dr. Conroe\u2019s diagnosis of defendant, he testified on cross-examination that someone with a borderline personality disorder does not generally engage in criminal behavior such as thefts and burglaries, and admitted he had reviewed police reports which indicated defendant committed some burglaries and thefts when he was 15 years old.\nDefendant also introduced the testimony of Dr. Michael Althoff, a psychologist. He did not testify in order to render an opinion as to the defendant\u2019s sanity; rather, his testimony concerned defendant\u2019s motivation for committing the crimes and whether there was a relationship between the alleged physical and emotional abuse defendant suffered and his criminal behavior.\nDr. Althoff testified that there were eight psychological characteristics of an abused child and that defendant exhibits all eight of these characteristics to some degree. He testified that these factors as well as the collateral information he reviewed led him to believe defendant was an abused child.\nHe further testified as to defendant\u2019s motivations on the day of the murders. He stated that defendant\u2019s background as an abused child, his living in a \u201cdysfunctional family,\u201d as well as his drug use, led defendant to have periodic thoughts of killing his family for years because defendant felt \u201cemotionally murdered by his family at times.\u201d He testified defendant felt alienated, had a damaged sense of self and was depressed and extremely bitter. He also stated that in his opinion, defendant\u2019s act of stabbing his father unleashed the anger and hate defendant had been storing up for years, and defendant \u201ctook the power that his father never used and assumed the role of the avenger\u201d and killed his mother. In his opinion, after defendant killed his mother, he:\n\u201cidentified with her and took care of the rest of his family like he viewed his mother having taken care of him. In other words, [defendant] felt that he had been emotionally murdered, so to speak, by his mother for years. After he took her life, he acted in a way in which he viewed her. And then a \u2014 and thus the remaining homicides.\nAnother way of understanding that is that [defendant] felt like he needed to take care of the rest of his siblings, to protect them from the awful horror which he has previously perpetrated. Thus, the remaining homicides.\u201d\nDr. Althoff stated that in his opinion defendant suffers from mixed substance abuse disorder and mixed personality disorder with borderline antisocial features. He defined a mixed personality disorder with borderline antisocial features as \u201ca significant disturbance concerning his relationships with others, his sense of self, his behavior and his emotions.\u201d He testified that a person with these disorders could have psychotic episodes, but the mere presence of these disorders does not mean a person is psychotic.\nOn cross-examination, the State attempted to demonstrate that much of the information regarding the character of the Odle family and defendant\u2019s drug use, upon which Dr. Althoff relied for his diagnosis, was derived from defendant\u2019s own statements. For example, Dr. Althoff admitted there was \u201cno clear, consistent evidence\u201d from sources other than defendant that he was physically abused. In addition, Dr. Althoff\u2019s conclusion that defendant smoked one marijuana cigarette, a few marijuana cigarette butts, and one-half of a half pint of whiskey before he committed the murders was not corroborated by any collateral sources; however, Dr. Althoff stated defendant\u2019s personality was such that if he were to lie, he would probably lie in order to ensure punishment rather than to escape punishment.\nTestimony was also introduced concerning defendant\u2019s drug use. Some of the witnesses testified that defendant mainly used marijuana and drank liquor, and were not of the opinion that defendant was under the influence of drugs a majority of the time. Other witnesses contradicted this testimony, indicating that defendant was a regular drug user, and that in addition to marijuana and liquor, they had either seen or defendant told them he had used other drugs such as PCP, LSD and cocaine.\nThe State introduced the testimony of Dr. Lawrence Jeckel, a psychiatrist. Dr. Jeckel stated defendant was not legally insane at the time of the murders. He testified that based upon his review, defendant suffers from an antisocial personality disorder. He considered other person\u2019s observations of defendant\u2019s behavior at the time of the murders to be particularly valuable given the fact he found defendant\u2019s subjective truthtelling ability suspect, and stated that the people who observed defendant on the day of the murders did not find that he engaged in any bizarre behavior, indicative of hallucinations or psychosis. He ruled out the possibility defendant suffers from a borderline personality disorder, stating defendant does not exhibit the unstable behavior, mood and self-image consistent with the diagnosis. He also opined defendant was only an occasional or \u201crecreational\u201d user of drugs, and that if he did abuse a drug it was most likely marijuana.\nThe jury rejected defendant\u2019s insanity defense and found him guilty of all five murders. The State moved for a death penalty hearing, and defendant waived his right to a jury at the sentencing phase. Based on the evidence introduced at the eligibility phase of the proceedings, the trial court found defendant to be 18 years of age at the time of the offense (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(b)), and also found defendant had been convicted of two or more murders (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(bX3)). Finally, the court found defendant had been convicted of killing an individual under the age of 12, and that the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(bX7).) Based on these findings, the court found defendant eligible for the death penalty and heard evidence in aggravation and mitigation.\nThe State introduced the testimony of a friend of the Odle family who had known them for approximately two years. The witness testified about several incidents concerning defendant, most of which were gleaned from hearsay statements various Odle family members made to the witness. The witness testified that Mr. and Mrs. Odle told her defendant had stolen bicentennial collectors quarters and 15 silver dollars from the Odle home in the spring of 1985. The witness also testified defendant kicked a hole in the kitchen wall while talking on the phone, chased Sean Odle with a knife, made Sean stand up with his nose to a wall, forced his brothers Scott and Sean to steal purses from cars parked at a local church, hid his sister\u2019s lunch money, struck his grandmother, threw Mrs. Odle against a wall and stole a knife from one of his friends.\nThe State also introduced the testimony of several other people who were acquainted with various members of the Odle family, including two neighbors of the Odle family, and the owner and the manager of a local market. These witnesses testified regarding defendant\u2019s various acts of vandalism, theft, sale of stolen property and intimidation. The trial court indicated that it discounted much of this testimony because of its hearsay nature.\nThe State also introduced the testimony of a girl who claimed that when she was 13 or 14 years old, she left her home at night without her parents\u2019 permission and had sex with defendant on three or four occasions at his home. The witness claimed she continued this practice until she was caught by her parents and the police, because she was afraid of what defendant might do if she stopped. When the witness was called later to testify on behalf of the defense, she admitted writing a letter to defendant, expressing her affection for him. The letter and the witness\u2019 testimony were introduced into evidence to contradict the State\u2019s claim that their intercourse was less than consensual.\nA similar act of intercourse with a minor was also introduced into evidence, without defense objection, through a transcript of defendant\u2019s testimony in a juvenile court proceeding. In the transcript, defendant admitted having sex with a sixth grade girl while he was a sophomore in high school.\nThe State introduced, without defense objection, the entire contents of two juvenile court files. The first file was from the juvenile proceeding adjudicating defendant delinquent for one count of felony theft, four courts of residential burglary, and one count of attempted residential burglary. The second court file was from a juvenile proceeding brought regarding Sean Odle, which contained an allegation that defendant had physically abused Sean. The file contained an order requiring Mr. and Mrs. Odle to make reasonable efforts- to prevent defendant from physically abusing Sean. Finally, the State introduced, over defense objection, photographs depicting the victims after they were slain.\nIn mitigation, the defense offered into evidence a letter from Dr. Althoff regarding defendant\u2019s potential for rehabilitation. The letter stated defendant is not a threat to the community at large and if defendant:\n\u201creceived appropriate treatment, if his chemical dependency problems are successfully rehabilitated and if he does not become involved in close relationships which approximate the types of relationships in his previous familiar circumstances, the likelihood of him reengaging in similar violent behavior would be acceptably low.\u201d\nThe defense next introduced testimony from an investigator with the Richland County sheriff\u2019s office who was assigned to the defendant\u2019s security detail during the trial. The investigator testified defendant had expressed interest in making a videotape to help other people addicted to drugs. On cross-examination the witness testified that neither the Richland County sheriff\u2019s office nor defendant had ever done any follow-up work concerning the videotape. This witness, as well as another jail employee, testified that defendant had never caused any trouble while in jail.\nThe next defense witness testified that he had known the defendant for three or four years. The witness testified he and a friend had purportedly observed an injury to defendant\u2019s face, and that defendant explained he had argued with his father. The witness did not describe the nature of the injury or indicate whether Mr. Odle had struck defendant, but merely stated, \u201c[i]t didn\u2019t look in the best of health,\u201d and that he had observed defendant\u2019s face in this condition on a number of occasions. On cross-examination the witness testified he was currently in the Illinois Department of Corrections serving a sentence for delivery of a controlled substance. Upon further cross-examination the witness further described the injury as red underneath defendant\u2019s eyes and that he would characterize the injury as a bruise.\nAs their final witness the defense called defendant\u2019s maternal grandmother. She stated that she was against capital punishment when asked whether defendant should receive the death penalty.\nThe court then heard the arguments of counsel and allowed defendant to speak. Defendant stated:\n\u201cYour Honor, in response to the state\u2019s accusation that I have no remorse, they\u2019re dead wrong. I may not be like a normal individual when it comes to feelings, remorse and general stuff like that. I look at it this way, I\u2019m sorry for what I did and I feel that I should be punished, but sitting around crying, walking around like a zombie is not going to bring them back. I would like to remember them the way they was, the good times, the bad times. That\u2019s all I have left. They might not have been the best parents in the world, but in some terms they were good parents. I can just say that I\u2019m going to cherish all the good times and the bad times that we all shared together.\u201d\nThe court found that the evidence showed all of the murders were premeditated, and committed in a brutal and heinous manner without provocation; defendant\u2019s demeanor during his confession was the best evidence of defendant\u2019s lack of remorse regarding the murders; and that defendant had a considerable record of criminal activity and antisocial behavior.\nIn mitigation, the court gave consideration to defendant\u2019s drug use and the abuse suffered at the hands of his parents. The court gave the greatest consideration to the question of whether defendant suffered from an extreme mental and emotional disturbance. As to this factor, the court stated it found the testimony of the State\u2019s psychiatrist, Dr. Jeckel, to be the \u201cclosest to reality with respect to the Defendant\u2019s state of mind.\u201d The court found that \u201cwhatever was happening in the Odle family, was not a license for the defendant to kill his family members.\u201d Further questioning whether defendant was operating under an extreme mental or emotional disturbance, the court stated, \u201cDefendant may have been the victim of some emotional abuse on the part of his parents toward him, but what did his brothers and sisters [sic] do to him to justify what he did to them?\u201d Finding there were no mitigating factors sufficient to preclude imposition of the death penalty, the court sentenced defendant to death.\nDefendant first contends that he should have been given the opportunity for surrebuttal during closing arguments at the guilt phase of the trial. Defendant asserts that because he admitted that he committed the crimes, the only issue to be decided was the issue of his sanity at the time of the offenses. Illinois law requires that \u201cdefendant bearQ the burden of proving by a preponderance of evidence his insanity at the time of the offense.\u201d (111. Rev. Stat. 1985, ch. 38, par. 3 \u2014 2(b).) According to defendant, the party bearing the burden of proof on an issue is entitled to an opening and closing argument. Defendant concludes that he was the party with the burden of proof and that he was therefore entitled to present a surrebuttal argument on the issue of insanity.\nContrary to defendant\u2019s contention, the issue of his guilt was not eliminated at trial because of his confession to the crimes. When the defense of insanity is presented during a trial, the Criminal Code specifically places on the State the burden of proving every element of the underlying offense beyond a reasonable doubt, and states that the jury may not consider the issue of defendant\u2019s sanity unless and until it first finds that the State has proven the defendant guilty of the offense beyond a reasonable doubt. 111. Rev. Stat. 1985, ch. 38, par. 6 \u2014 2(e).\nFurthermore, Supreme Court Rule 233 provides that \u201c[t]he parties shall proceed at all stages of the trial, including *** opening and closing statements ***, in the order in which they appear in the pleadings unless otherwise agreed by all parties or ordered by the court.\u201d (107 Ill. 2d R. 233.) Pursuant to Rule 233, the State had the right to proceed first during closing arguments unless otherwise agreed or ordered by the court. (People v. Williams (1983), 97 Ill. 2d 252, 302, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) The decision of whether to grant defendant a surrebuttal argument on the insanity issue was in the sound discretion of the trial court. (97 Ill. 2d at 302.) Defendant points to no error of law or actual prejudice resulting from the trial court\u2019s decision. We therefore hold that it was not an abuse of discretion to deny defendant\u2019s request for a surrebuttal argument. See People v. Caballero (1984), 102 Ill. 2d 23, 48 (surrebuttal can only be repetitious of what has already been stated), cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298,105 S. Ct. 362.\nDefendant next asserts that some of the prosecutor\u2019s statements denied him a fair trial. We need not address defendant\u2019s contention as to one of these alleged improper statements because the record reveals that defendant\u2019s objection to the prosecutor\u2019s remark was sustained and the court took proper steps to admonish the jury that the court would instruct them as to the law. (People v. Del Vecchio (1985), 105 Ill. 2d 414, 442-43, cert. denied (1985), 474 U.S. 883, 88 L. Ed. 2d 173, 106 S. Ct. 204.) As to the other allegedly improper statements, defendant failed to object to any of these statements at trial and failed to raise any of these issues in his post-trial motions, which contained a total of 140 allegations of error. Failure to object to an alleged error at trial and in a post-trial motion results in waiver of the issue through procedural default, and our review of these issues is limited to plain errors or defects in substantial rights which deprive the accused of a substantial means of enjoying a fair and impartial trial or which occur in cases in which the evidence is closely balanced. (People v. Gacho (1988), 122 Ill. 2d 221, 239; People v. Holman (1984), 103 Ill. 2d 133, 181-82 (Ryan, C.J., concurring in part and dissenting in part).) We have carefully reviewed the record and find that as to these statements, no plain errors or defects in substantial rights occurred; therefore, we deem these issues waived through procedural default.\nDefendant\u2019s next contention concerns the trial court\u2019s consideration of factors in mitigation at the sentencing hearing. Defendant asserts that the trial court\u2019s reference to a New York case defining the phrase \u201cextreme mental and emotional disturbance\u201d caused the court to adopt too restrictive a definition of this mitigating factor and denied him a fair sentencing hearing. Defendant also failed to object during sentencing and failed to raise the issue in his post-sentencing motions, which would ordinarily result in waiver of the issue through procedural default; however, we have previously held application of the waiver rule inappropriate where the trial court gives improper consideration to a statutory factor in aggravation at a sentencing hearing. (People v. Saldivar (1986), 113 Ill. 2d 256, 266.) By logical extension, it would also be inappropriate to apply the waiver rule where a trial court gives improper consideration to a statutory factor in mitigation. We therefore address defendant\u2019s contention but limit our review to plain errors or defects in substantial rights. People v. Gacho (1988), 122 Ill. 2d 221, 239; People v. Holman (1984), 103 Ill. 2d 133, 181-182 (Ryan, C.J., concurring in part and dissenting in part).\nWhen announcing its decision regarding the imposition of the death penalty, the trial court stated that:\n\u201cWith respect to whether or not the defendant was suffering from extreme mental or emotional disturbance, the court under Illinois law gives the provision of the law its plain ordinary, its common sense meaning. I believe that it\u2019s not defined any further in Illinois law that the court is aware[.]\n[A]s to how other states define the same or similar provisions in their laws[,] People v. Shelton, 88 MISC [sic] 2d. 136, 385 N.Y.2d 708, 1976 provides a definition adopted then in New York. An extreme [mental] or emotional disturbance is the emotional state of an individual who (a) has no mental disease or defect that rises to the level of insanity and, (b) is exposed to an extremely unusual and overwhelming stress and, (c) has an extreme emotional reaction to it as a result of which there is a loss of self-control and reasons [sic] overborne by intense feelings such as passion, anger, stress, grief, excessive agitation or other similar emotions.\nThe court\u2019s not adopting [the] New York definition as the Illinois definition, but the New York definition at least provides some background for the court to use in trying to give the Illinois provision its plain and ordinary, its common sense meaning.\u201d\nThe record belies defendant\u2019s contention that the trial court adopted the New York test. The trial court did not apply the three-prong Shelton test to defendant\u2019s case; rather, the court simply referred to the definition once when rendering its decision, and then only to provide a background in which to give the Illinois statute its plain, ordinary, commonsense meaning. The record demonstrates that the court considered all of the evidence presented at trial concerning defendant\u2019s state of mind, and we find no error in the trial court\u2019s consideration of the mitigating factor of extreme mental or emotional disturbance.\nDefendant next contends that the trial court\u2019s consideration of evidence and adjudications from juvenile court proceedings at the sentencing phase violated his rights under the Juvenile Court Act. (See Ill. Rev. Stat. 1985, ch. 37, par. 702 \u2014 10(l)(b).) Defendant admits in his reply brief that this argument was recently addressed and decided adversely to him in People v. Orange (1988), 121 Ill. 2d 364, 388.\nDefendant next asserts that there were sufficient mitigating factors to preclude imposition of the death penalty. Defendant argues that the evidence demonstrates he was operating under an extreme mental and emotional disturbance. (111. Rev. Stat. 1985, ch. 38, par. 9\u2014 l(cX2).) Defendant also cites to his young age, his background as an abused child, the testimony concerning his abuse of drugs and the evidence concerning his rehabilitative potential as mitigating factors. Defendant also contends that he has shown remorse for the murders.\nWhen reviewing a sentence of death, this court will make a separate evaluation of the record but will not overturn a trial court\u2019s findings when amply supported by the evidence. (People v. Brownell (1980), 79 Ill. 2d 508, 539-40.) We agree with the trial court that there are no mitigating factors sufficient to preclude imposition of the death penalty.\nWhile defendant contends that he was operating under an extreme mental or emotional disturbance, no expert rendered an opinion at trial or at the sentencing hearing as to whether defendant was acting under an extreme mental or emotional disturbance. In addition, the trial court may have concluded from the evidence that defendant planned the murders well before he was threatened with eviction from the family home. The evidence also shows that defendant made every effort to methodically conceal the crimes by cleaning and locking the family home after the murders. The evidence further shows that defendant was able to deal calmly with callers to the house and with his friends during and after the murders. He was able to explain his parents\u2019 absence to friends and neighbors, and the presence of blood marks on his neck and arm and the cuts on his hands. Finally, he was able to calmly and rationally deny he committed the crimes to his girlfriend, once she learned he was implicated in the murders. The record demonstrates that the trial court carefully considered the evidence and found that any mental or emotional disturbance from which the defendant may have suffered was not sufficient to preclude imposition of the death penalty. We see no reason to disturb this finding. See People v. Crews (1988), 122 Ill. 2d 266, 283.\nThe evidence concerning defendant\u2019s drug use was, at best, conflicting. While some of defendant\u2019s friends and two experts testified defendant was a heavy marijuana and alcohol user, and experimented with such drugs as LSD, PCP and cocaine, other witnesses and the State\u2019s expert testified that defendant was only an occasional or \u201crecreational\u201d drug user, and that if he did abuse a drug it was most likely marijuana. Furthermore, there was no evidence, other than defendant\u2019s statement to Dr. Althoff, that he used drugs on the day of the murders. Indeed, the witnesses who saw and spoke with the defendant on the day of the murders all testified that defendant did not appear to be under the influence of drugs. Cf. People v. Gleckler (1980), 82 111. 2d 145 (sentence of death vacated where alcoholic defendant was likely intoxicated at the time the crimes were committed and did not act alone).\nDefendant\u2019s argument that his history of child abuse and the threatened eviction from the family home motivated him to commit these crimes is totally inconsistent with his own actions in killing not only his mother and father \u2014 the persons who allegedly perpetrated this abuse \u2014 but his two brothers and his sister as well. In an attempt to harmonize the killing of his brothers and sister with the patently inconsistent motive of reacting to the abuse he suffered at the hands of his parents, defendant initially claimed that he killed his siblings because there was no one left to take care of them. However, defendant suggested in his statement to the police that he killed his siblings to avoid detection, stating that his brothers and sister \u201cwould run and tell.\u201d Defendant has also attempted to explain the killing of his brothers and sister by stating that he wanted to spare them from the pain of their parents\u2019 death; however, defendant failed to spare his sister the horror of her mother\u2019s death when he showed her Mrs. Odle\u2019s body before murdering her in the same manner.\nDefendant\u2019s prior record of criminal and antisocial behavior is also significant. Defendant\u2019s record included four counts of residential burglary, one count of attempted residential burglary and five counts of theft. There was also evidence that he had beaten his brother Sean, coerced his brothers into committing acts of theft, engaged in sexual intercourse with one sixth-grade girl when he was a sophomore in high school and may have coerced a 14-year-old girl to engage in intercourse.\nDefendant contends that he has shown remorse for the murders. Remorse is, by definition, a subjective factor. The trial court in this case found that defendant\u2019s demeanor during his confession was the best evidence of his lack of remorse. We find nothing in the record to disturb this finding. Defendant also asserts that the fact that he was 18 years of age at the time the murders were committed is a mitigating factor; however, given the nature of the crime and the character of this defendant, we find no reason to overturn the trial court\u2019s finding that there are no mitigating factors sufficient to preclude imposition of the death penalty. People v. Free (1983), 94 Ill. 2d 378, 428-29.\nWe note parenthetically the Supreme Court\u2019s recent decision in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, which was decided after this case was briefed and argued. We further note that the issue involved in Maynard has not been raised in this case.\nThe Supreme Court remanded the Maynard case for resentencing, holding that defendant\u2019s death sentence was based in part on a vague and overbroad statutory factor in aggravation; namely, that the murder defendant was convicted of committing was \u201cespecially heinous, atrocious, or cruel.\u201d (Maynard, 486 U.S. at 356, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) Relying in part on section 9 \u2014 1(b)(7) of the Criminal Code of 1961 (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(b)(7)), the trial court in this case found defendant eligible for the death penalty because one of \u201cthe murdered individuals] was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d While the word \u201cheinous\u201d and the noun form of the word \u201ccruel\u201d are contained in section 9 \u2014 l(bX7) of the Illinois statute, we do not believe that the section as applied in this case suffers from the same constitutional infirmity as the statute in Maynard.\nThe Supreme Court began its analysis in Maynard by looking to its decision in Furman v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726. The Court stated that:\n\u201cFurman held that Georgia\u2019s then-standardless capital punishment statute was being applied in an arbitrary and capricious manner; there was no principled means provided to distinguish those that received the penalty from those that did not. [Citations.] Since Furman, our cases have insisted that the channeling and limiting of the sentencer\u2019s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.\u201d (Maynard, 486 U.S. at 362, 100 L. Ed. 2d \u00e1t 380,108 S. Ct. at 1858.)\nThe Court held that the Oklahoma statute, as applied to that defendant, was vague and overbroad in that the words \u201cespecially heinous, atrocious, or cruel\u201d failed to sufficiently guide or limit the discretion of the sentences (Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) The Court rejected Oklahoma\u2019s assertion that the addition of the word \u201cespecially\u201d was sufficiently limiting, stating that:\n\u201c[t]o say that something is \u2018especially heinous\u2019 merely suggests that the individual jurors should determine that the murder is more than just \u2018heinous,\u2019 whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is \u2018especially heinous.\u2019 \u201d Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 382,108 S. Ct. at 1859.\nSection 9 \u2014 1(b)(7) of our Criminal Code states that a person convicted of murder may be eligible for the death penalty if:\n\u201cthe murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d\nWe view our statute as being much more specific in describing the conduct which qualifies an accused for the death penalty than the Oklahoma statute which was considered in Maynard, and not susceptible to arbitrary application when the requirements of the statute are strictly followed.\nJust as the Supreme Court in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, found a similar provision of the Georgia code not to be unconstitutional on its face, we consider section 9\u2014 1(b)(7) of the Criminal Code not to be facially unconstitutional. We emphasize, however, as the Supreme Court held in Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, that although the statute may be constitutional on its face, it cannot be applied in the maimer that leads to arbitrary results. That is, certain qualifying requirements of the statute cannot be omitted so that its application is left unchanneled. Thus, the victim must be under the age of 12, and the conduct which brings about the victim\u2019s death must not only be exceptionally brutal or heinous, it must also be such that it is indicative of wanton cruelty.\nAs previously noted, section 9 \u2014 l(bX7) is not facially invalid. Moreover, there can be no doubt that the trial court in this case did not apply the section in an arbitrary or capricious manner. Defendant began to murder 11-year-old Scott Odle by strangling him with his hands. Realizing that his hands were tiring, defendant chose to finish murdering Scott by tying a pajama bottom around Scott\u2019s neck until he had succeeded in compressing Scott\u2019s neck to the size of an adult man\u2019s wrist. Certainly, defendant\u2019s decision to murder Scott in a manner expert testimony characterized as agonizing, and the determined manner in which he carried out this inexplicable crime, can only be described as exceptionally brutal or heinous behavior, indicative of wanton cruelty.\nDefendant\u2019s final arguments relate to the constitutionality of the Illinois death penalty statute. Defendant does not raise any new challenges to the constitutionality of the statute; rather, he asks us to reconsider our prior cases upholding the statute's validity. We decline the invitation. The death penalty\u2019s sentencing scheme is not unconstitutional for the discretion it vests in the prosecutor in deciding to seek the death penalty. (People v. Spreitzer (1988), 123 Ill. 2d 1, 44-45; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, cert. denied sub nom. Brown v. Illinois (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603.) The State is not constitutionally required to bear a burden of persuasion at the second stage of the sentencing hearing. (People v. Free (1983), 94 Ill. 2d 378, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200; see also People v. Brownell (1980), 79 Ill. 2d 508, 534, pet. for cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59.) The statute provides for adequate comparative review, and adequately narrows the group of persons eligible for death from others guilty of murder. People v. Olinger (1986), 112 Ill. 2d 324, 352, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329; People v. Brownell (1980), 79 Ill. 2d 508, 541-44, pet. for cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59.\nFor the reasons set forth above, we affirm the defendant\u2019s murder convictions and his sentence of death. We hereby direct the clerk to enter an order fixing Wednesday, March 15, 1989, as the date on which the sentence of death entered by the circuit court of Jefferson County shall be carried out. The defendant shall be executed by lethal injection in the manner provided by section 119 \u2014 5 of the Code of Criminal Procedure of 1963 (HI. Rev. Stat. 1987, ch. 38, par. 119 \u2014 5). A certified copy of this mandate shall be transmitted by the clerk of this court to the Director of Corrections, the warden of Stateville Correctional Center, and to the warden of the institution where the defendant is confined.\nJudgment affirmed.", "type": "majority", "author": "CHIEF JUSTICE MORAN" }, { "text": "JUSTICE MILLER,\nspecially concurring:\nI concur in the court\u2019s decision affirming the defendant\u2019s convictions and sentence of death. I do not believe that it is necessary in this case, however, to consider the constitutionality of the aggravating circumstance provided by section 9 \u2014 l(bX7) of the Criminal Code of 1961 (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(bX7)), and therefore I do not join that part of the majority\u2019s opinion.\nThe sentencing hearing in this case was conducted by the trial judge alone, the defendant having waived his right to a jury for that purpose. In the first stage of the proceeding, the trial judge found the existence of two statutory aggravating circumstances rendering the defendant eligible for the death penalty: that the defendant had been convicted of murdering two or more persons (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(b)(3)), and that the defendant\u2019s strangulation murder of his 11-year-old brother Scott was exceptionally brutal or heinous behavior indicative of wanton cruelty (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 1(b)(7)). The parties then proceeded to submit evidence in aggravation and mitigation. At the conclusion of the hearing, the trial judge found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty and accordingly sentenced the defendant to death. Although the defendant raises a number of arguments against his death sentence, he has made no challenge, in either the circuit court or this court, to the trial judge\u2019s findings regarding the existence of the two statutory aggravating circumstances. Nonetheless, the majority considers on its own motion the constitutionality of section 9 \u2014 1(b)(7), which provided the second statutory aggravating circumstance found by the trial judge in this case.\nThe majority states that its inquiry is prompted by the United States Supreme Court\u2019s recent decision in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853. In Maynard the Court considered a provision in Oklahoma\u2019s capital sentencing law permitting the imposition of the death penalty in cases in which the murder was \u201cexceptionally heinous, atrocious, or cruel.\u201d {Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 378, 108 S. Ct. at 1856.) The Court noted, as a requirement of a constitutionally valid system of capital sentencing, that the sentencer\u2019s discretion be channeled and limited so that \u201cthe risk of wholly arbitrary and capricious action\u201d can be reduced. {Maynard, 486 U.S. at 362, 100 L. Ed. 2d at 380, 108 S. Ct. at 1858.) Relying on Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, which ruled that a similar statutory aggravating circumstance had been applied in an unconstitutional manner by a jury, the Maynard Court held that the language of the Oklahoma statute was vague and failed to provide sufficient guidance to the sentencing authority.\nThe aggravating circumstance at issue here permits the imposition of the death penalty if \u201cthe murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(bX7).) The majority notes the similarity between the language used in section 9 \u2014 1(b)(7) and the language used in the Oklahoma statute. The majority believes, however, that the Illinois provision is \u201cmuch more specific in describing the conduct which qualifies an accused for the death penalty than the Oklahoma statute which was considered in Maynard, and not susceptible to arbitrary application when the requirements of the statute are strictly followed.\u201d (128 111. 2d at 140.) Relying on the autoptic evidence presented at trial, the majority concludes that the circuit judge did not act arbitrarily or capriciously in applying section 9 \u2014 1(b)(7) to the defendant\u2019s murder of the 11-year-old victim.\nUnlike the majority, I see no reason to determine in this appeal the appropriate construction to be given to the \u201cexceptionally brutal or heinous\u201d aggravating circumstance provided by section 9 \u2014 1(b)(7). Even if we were to assume that the \u201cexceptionally brutal or heinous\u201d aggravating circumstance was applied unconstitutionaUy in this case \u2014 and I express no opinion on that question \u2014 the defendant would not be entitled to a new sentencing hearing. (See Barclay v. Florida (1983), 463 U.S. 939. 956-58. 77 L. Ed. 2d 1134. 1148-49. 103 S. Ct. 3418, 3428-29 (plurality opinion); Zant v. Stephens (1983), 462 U.S. 862, 880-90, 77 L. Ed. 2d 235, 252-58, 103 S. Ct. 2733, 2744-50.) Here, the trial judge expressly found the existence of an additional statutory aggravating circumstance, the multiple-murder provision of section 9 \u2014 l(bX3) of the Criminal Code of 1961 (111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 l(bX3)), which independently rendered the defendant eligible for the death penalty. Moreover, the trial judge\u2019s finding of the existence of the separate aggravating circumstance under section 9\u2014 1(b)(7) did not introduce any otherwise inadmissible evidence into the sentencing process. Having found in the first stage of the capital sentencing proceeding the existence of an independent and uncontested circumstance that rendered the defendant eligible for the death penalty, the trial judge was free to consider, at the second stage of the proceeding, the circumstances of the defendant\u2019s offenses. The Illinois death penalty statute does not accord any added significance to the existence of multiple statutory aggravating circumstances. Therefore, in light of the admissibility of the evidence on which the sentence was based, it cannot be said that the trial judge\u2019s finding of the existence of a second statutory aggravating circumstance, under section 9 \u2014 l(bX7), could have prejudiced the rights of the defendant.\nPeople v. Brownell (1980), 79 Ill. 2d 508, is not to the contrary. The defendant in that case was convicted of murder, aggravated kidnapping, and rape. In a bench proceeding, the trial judge found the existence of two statutory aggravating circumstances rendering the defendant eligible for the death penalty: that the victim was killed in the course of the commission of a felony, and that the victim was an eyewitness against the defendant (see 111. Rev. Stat. 1977, ch. 38, pars. 9\u2014 l(bX6), (bX7)). Following a consideration of the aggravating and mitigating evidence, the trial judge sentenced the defendant to death for the murder conviction; sentences of imprisonment were imposed for the convictions for aggravated kidnapping and rape. On appeal, the Brownell court held that the first aggravating circumstance was applicable to the facts in that case but that the second circumstance was not. Referring to the trial judge\u2019s use of the \u201cmurdered eyewitness\u201d aggravating circumstance, this court stated:\n\u201cThe court appears to have made the finding that the victim was an eyewitness upon the evidence adduced at trial \u2014 that the victim, as the subject of the aggravated kidnapping and rape, could have later testified against the defendant. We do not think this particular factual situation was intended by the General Assembly to be included within this aggravating factor. Rather, we think the General Assembly intended to include situations where, during an investigation or prosecution of a separate offense which has previously taken place, a witness is killed in an attempt to stymie the investigation or prosecution.\u201d Brownell, 79 Ill. 2d at 525-26.\nThis court affirmed the defendant\u2019s convictions and sentences of imprisonment but vacated the defendant\u2019s death sentence and remanded the cause for a new capital sentencing hearing. The court explained:\n\u201cThe partial resentencing hearing'is essential because of the profound importance we attach to the trial court\u2019s role in weighing aggravating and mitigating factors. In this instance, the trial court weighed an aggravating factor which we have concluded figured erroneously in the court\u2019s sentencing decision. We have now removed that factor from the scale. Whether the scale will remain stable or will tip as a result of our conclusion is initially for the trial court to determine. For us either to affirm or reverse the trial court\u2019s sentence, without providing the trial court an opportunity to resentence in light of our conclusion of law, would usurp the trial court\u2019s function as the sentencing authority.\u201d Brownell, 79 111. 2d at 535-36.\nIn Brownell the sentencing judge construed the defendant\u2019s conduct as giving rise to an aggravating circumstance that was not actually warranted by the evidence. Thus, the trial judge\u2019s finding of the existence of the \u201cmurdered eyewitness\u201d circumstance introduced into the case, and therefore into his sentencing determination, factual matters that should not have been considered. The present case is different, for even a declaration of the invalidity of the \u201cexceptionally brutal or heinous\u201d aggravating circumstance found in section 9\u2014 l(bX7) of the Criminal Code would not preclude the sentencing judge from considering the evidence of the manner in which the defendant committed the murder of his 11-year-old brother.\nJUSTICE STA.MOS joins in this special concurrence.", "type": "concurrence", "author": "JUSTICE MILLER," } ], "attorneys": [ "Theodore A. Gottfried and Gary S. Rapaport, of the Office of the State Appellate Defender, of Springfield, and Ann Bodewes, lav? student, for appellant.", "Neil E Hartigan, Attorney General, of Springfield (Shav?n W. Denney, Solicitor General, and Terence M. Madsen and Nathan P. Maddox, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 63753.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS V. ODLE, Appellant.\nOpinion filed December 21, 1988.\nRehearing denied May 26,1989.\nTheodore A. Gottfried and Gary S. Rapaport, of the Office of the State Appellate Defender, of Springfield, and Ann Bodewes, lav? student, for appellant.\nNeil E Hartigan, Attorney General, of Springfield (Shav?n W. Denney, Solicitor General, and Terence M. Madsen and Nathan P. Maddox, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0111-01", "first_page_order": 121, "last_page_order": 157 }