{ "id": 1302606, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARLIE RAY DAVIS, Appellant", "name_abbreviation": "People v. Davis", "decision_date": "2002-02-22", "docket_number": "No. 89704", "first_page": "349", "last_page": "381", "citations": [ { "type": "official", "cite": "205 Ill. 2d 349" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "185 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121968 ], "weight": 9, "year": 1998, "pin_cites": [ { "page": "346" }, { "page": "347" }, { "page": "347" }, { "page": "346" }, { "page": "346" }, { "page": "347" }, { "page": "351-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0317-01" ] }, { "cite": "166 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198907 ], "year": 1995, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0001-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "169 Ill. 2d 409", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909168 ], "year": 1996, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0409-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "year": 1999, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "189 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224813 ], "year": 2000, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0401-01" ] }, { "cite": "455 U.S. 104", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304091 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "114-15" }, { "page": "11" }, { "page": "877" } ], "opinion_index": 0, "case_paths": [ "/us/455/0104-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 15, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "496" }, { "page": "459" }, { "page": "2366" }, { "page": "496" }, { "page": "459" }, { "page": "2366" }, { "page": "497" }, { "page": "459" }, { "page": "2366" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "88 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083469 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "144" }, { "page": "144-45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0129-01" ] }, { "cite": "101 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160364 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "494" }, { "page": "493-94" }, { "page": "494" }, { "page": "494-95" }, { "page": "494-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0470-01" ] }, { "cite": "176 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544855 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "255", "parenthetical": "\"the sentencer may consider in aggravation evidence of a defendant's prior misconduct, including juvenile delinquency, 'although the misconduct may not have resulted in prosecution or conviction' \"" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0217-01" ] }, { "cite": "116 Ill. 2d 323", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543221 ], "year": 1987, "pin_cites": [ { "page": "346-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0323-01" ] }, { "cite": "98 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121913 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "467" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0439-01" ] }, { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "296" }, { "page": "296" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "156 Ill. 2d 354", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777548 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "366" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0354-01" ] }, { "cite": "497 U.S. 639", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6218483 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/0639-01" ] }, { "cite": "79 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070652 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "524" }, { "page": "523" }, { "page": "526-27" }, { "page": "524" }, { "page": "527" }, { "page": "524" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0508-01" ] }, { "cite": "196 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351226 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "280" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0269-01" ] }, { "cite": "198 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29934 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "71" }, { "page": "71" }, { "page": "71-72" }, { "page": "74" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0068-01" ] }, { "cite": "145 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596379 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "448" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0441-01" ] }, { "cite": "63 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427199 ], "year": 1976, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0023-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "Scalia, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ." }, { "parenthetical": "Scalia, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ." }, { "parenthetical": "Scalia, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ." } ], "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "95 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111039 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "28" }, { "page": "29" }, { "page": "29" }, { "page": "29-30" }, { "page": "29-30" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0001-01" ] }, { "cite": "185 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121968 ], "year": 1998, "pin_cites": [ { "page": "352", "parenthetical": "Harrison, C.J., concurring in part and dissenting in part" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/185/0317-01" ] }, { "cite": "204 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609695 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "631-36", "parenthetical": "Harrison, C.J., dissenting" }, { "page": "636-40", "parenthetical": "Kilbride, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/204/0585-01" ] }, { "cite": "185 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121977 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ill-2d/185/0179-01" ] }, { "cite": "204 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609709 ], "year": 2001, "pin_cites": [ { "page": "581-85", "parenthetical": "Kilbride, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/204/0536-01" ] }, { "cite": "179 Ill. 2d 205", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801351 ], "year": 1997, "pin_cites": [ { "page": "220-21" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/179/0205-01" ] } ], "analysis": { "cardinality": 1852, "char_count": 58228, "ocr_confidence": 0.771, "pagerank": { "raw": 1.467702746358638e-07, "percentile": 0.6585858866675238 }, "sha256": "e6f062ad8221c3887a3f0e6df7da0a826fe731bf29c46de666eb56cbc5fae88d", "simhash": "1:fb664cdc7744ce7f", "word_count": 9596 }, "last_updated": "2023-07-14T20:57:31.634154+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARLIE RAY DAVIS, Appellant." ], "opinions": [ { "text": "JUSTICE GARMAN\ndelivered the opinion of the court:\nDefendant was convicted after a jury trial in Henry County of multiple counts of first degree murder (720 ILCS 5/9 \u2014 1(a) (West 1994)), and of other crimes in connection with the killing of Laurie Gwinn. After the jury found defendant eligible for the death penalty, he waived his right to a jury for the second phase of the sentencing hearing. The circuit court imposed the death penalty for the murder. In addition, the circuit court imposed prison sentences for some of the convictions and vacated others as lesser-included offenses. Defendant filed a motion for a new trial and sentencing hearing, which the circuit court denied.\nOn direct appeal, this court affirmed the convictions and the prison terms, but vacated the sentence of death and remanded for a new sentencing hearing only, there being no question that defendant was eligible for the death penalty. People v. Davis, 185 Ill. 2d 317 (1998). The basis for vacating the death sentence was the circuit court\u2019s apparent refusal to consider certain evidence in mitigation. We held that although the sentencer may give little weight to evidence properly offered in mitigation, it may not entirely exclude such evidence from consideration. Davis, 185 Ill. 2d at 346. Specifically, defendant offered evidence of his good behavior while incarcerated pending and during trial. The circuit court commented that it did not care \u201chow great a prisoner he is, the real test is ... what\u2019s going to happen upon release.\u201d We agreed with defendant that this statement expressed the judge\u2019s categorical belief that such evidence is never relevant to the capital sentencing decision. Davis, 185 Ill. 2d at 347. Consequently, defendant was deprived \u201cof the individualized consideration required by the eighth and fourteenth amendments,\u201d and resentencing was required. Davis, 185 Ill. 2d at 347.\nOn remand, defendant\u2019s request that the original sentencing judge recuse himself was granted and a new judge was assigned. Defendant again waived a jury and the circuit court again imposed the death penalty. Because defendant was sentenced to death, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). As the facts of his crimes are set out in detail in our earlier opinion (Davis, 185 Ill. 2d 317); we will summarize here only the testimony at the second sentencing hearing.\nTHE SECOND SENTENCING HEARING\nThe State presented the testimony of four women, all of them admitted former prostitutes. Each woman told of being assaulted between January 1993 and the summer of 1994 by a man who picked her up in the Madison Square area in the north end of Peoria. None of the women reported the attack at the time. Between November 1994 and January 1995, however, each woman gave a statement to the police describing the attack and identifying defendant as her attacker. Laurie Gwinn was killed in August 1995.\nKari B. testified that on a summer afternoon in 1993, she agreed to perform a sex act for money and entered a man\u2019s car. He drove into the country and stopped near what she described as \u201can abandoned farmhouse.\u201d She noticed that the door handle and the window crank were torn out from the passenger side door. The man turned to her and said \u201cBitch, I\u2019m gonna kill you,\u201d and he put his hands on her throat. She struggled and was able to climb through the open car window. She fell to the ground, then got up and ran to the road, with him chasing her. A passing driver gave her a ride back into town. Kari admitted that she had been using cocaine at the time of the attack and had been \u201cup for a few days.\u201d She also acknowledged a criminal record that included prostitution, possession of a controlled substance, and robbery. At the time she testified, she was on parole. She first told the story of her attack to the police in January 1995, when she was being interviewed after one of her arrests. When asked why she did not report the attack when it occurred, she said she \u201cwas on cocaine bad\u201d and \u201cjust didn\u2019t want to get involved with the police.\u201d In addition, she \u201cdidn\u2019t really think that they would listen\u201d to her because of her \u201cbackground.\u201d Kari identified the defendant from a photo array in January 1995. She also identified him in the courtroom, stating that she had \u201cno doubt whatsoever\u201d that he was the man who attacked her and that she could \u201cnever forget his face.\u201d\nOn cross-examination, Kari admitted that in 1993 she had been addicted to crack cocaine. She stated that when she first reported the attack to police, she told Peoria police officer Terry Pyatt that the car\u2019s inside door handle was missing. However, she also admitted telling Pyatt that she opened the car door and that both she and her attacker fell out of the car. When asked if her memory had improved in the five years since the incident, she said, \u201cI was on a lot of narcotics back [then].\u201d Kari also acknowledged that she told Pyatt she had been arrested later that same night. However, when defense counsel produced a list of her five arrests in the summer and fall of 1993, she could not pinpoint the date of the attack.\nDenise T. testified that she had been employed as a roofer for about a year and a half, but that she had previously worked as a prostitute. In addition to arrests for prostitution, she had also been convicted of obstruction of justice and three counts of retail theft. About 10 p.m. one day in late April 1994, she agreed to pose for nude photographs in exchange for money and entered a man\u2019s car. She identified the car as defendant\u2019s, based on a photograph of his car that was admitted into evidence. He drove to a remote wooded area. She felt \u201cdazed\u201d and explained that she thought the man struck her in the back of the head. When she came to, she was in the backseat of the car with her hands handcuffed behind her. The man was strangling her with an orange extension cord, which he would loosen until she regained consciousness and then tighten again. This went on for several hours, until morning, with defendant repeatedly masturbating and ejaculating onto her chest. The pressure from the cord being pulled tight around her neck caused one of her eyes to \u201cpop out\u201d of its socket. She has a permanent injury as a result. After she told the attacker that her husband had seen her get into his car, he took her to a Peoria hotel, took her up in an elevator, pushed her out, and fled. Denise did not immediately seek medical attention for her injuries, because she was afraid of going to jail. She explained that there were \u201ca couple\u201d of outstanding warrants for her arrest and she did not want the police to be contacted. When her condition did not improve after a few days, she went to the emergency room for treatment. She eventually spoke to the police in November 1994 and identified defendant from a photo array. She admitted to using drugs in April 1994, but testified that there was \u201cno doubt\u201d in her mind that defendant was the man who attacked her.\nOn cross-examination, Denise could not explain why she initially told Pyatt that the attack occurred in January. She acknowledged that she arrived at the April date only after her hospital records showed a May 1, 1994, emergency room visit for treatment of her eye injury. Defense counsel also questioned her recollection of the time of day at which the attack occurred. Denise insisted it had happened at night and that she had been picked up \u201cat the Mexican store on Perry.\u201d She denied telling Pyatt that she had been picked up at 12:30 in the afternoon or telling Officer Rod Huber that she had been picked up outside a bar called Mulvaney\u2019s. Denise said she was not sure what defendant hit her with and was not sure if she had told the police it was something metal. She stated that she told Pyatt about defendant\u2019s masturbating on her, but she could not recall if she told him about the car\u2019s missing door handle.\nThe State also called a nurse from Methodist Hospital in Peoria who verified Denise\u2019s eye injury and explained that it could have been caused by excessive pressure on the blood vessels of the neck.\nMichelle U. testified that a man picked her up in a blue car at about 11 a.m. one day in the summer of 1994. She was a cocaine user at the time, but had not used any drugs that morning. He drove her to a secluded area at the end of a dead-end street. The door handle and window crank were missing from the passenger door. She performed the sex act they had agreed upon, but he demanded more. She insisted that he pay her more money. He then grabbed her throat, pushed her down on the seat, and completed the act. He got out of the car, went around to the passenger side, opened her door, and threw her out. He called her \u201cbitch\u201d and \u201cwhore.\u201d Her pimp, who had followed them, arrived and took her back to town. She did not report the attack because she was \u201cscared\u201d and \u201cembarrassed.\u201d She wanted to avoid contact with the police and did not think she would be believed. Michelle\u2019s record includes \u201ca drug case\u201d in addition to arrests for prostitution. She told her story to the police in December 1994 and identified defendant from a photo array. In court, she expressed certainty that \u201c[h]e\u2019s the one.\u201d\nOn cross-examination, Michelle acknowledged that she previously had been addicted to crack cocaine and had made her initial identification of defendant while undergoing rehabilitation at an inpatient treatment facility.\nMaria N. was a prostitute before she began working as a food service worker in a nursing home. Her record includes charges of prostitution, driving under the influence, possession of a controlled substance, and obstruction of justice. She got into a car with a man at 2 a.m. one day in January 1993 and he drove down a back road to a wooded area behind a furniture warehouse. He told her to remove her blouse while he got into the backseat to undress. Then he reached from behind her, put a belt around her neck, and started choking her. She passed out. When she came to, she was on the floor of the backseat and it was daylight. She got her clothing from the front seat, left the car, and walked to the road, where she found a ride. She did not go to the police because she knew that what she was doing \u201cwas wrong.\u201d She gave a statement to Pyatt in January 1995 and identified the defendant from a photo array. Maria admitted that she told Pyatt she woke up naked on the ground rather than in the car, but insisted that her testimony was accurate.\nOn cross-examination, Maria described the car as a \u201cbrownish colored station wagon with wood on the sides.\u201d She again acknowledged telling Pyatt that she regained consciousness on the ground, not in the car.\nThe State called Officer Pyatt to testify regarding his investigation of these attacks. He stated that he was present in February 1995 when defendant\u2019s \u201colder blue Dodge\u201d was searched. Among the items recovered from the car were an orange extension cord and a set of handcuffs. In addition, the inside door handle and the mechanism to roll the window up and down were missing from the passenger-side door.\nWithout objection by the defense, he also testified regarding the statements made to him by the four women. His testimony generally confirmed that they testified consistently with their earlier statements as recorded in his notes. However, Maria N. did tell him that she had been \u201cdumped nude with her clothing.\u201d\nOn cross-examination, Pyatt acknowledged that during his first interview with Denise, she indicated that the attack had occurred in late January 1994. When police investigation of hospital records revealed her emergency room visit on May 1, 1994, the date was revised to late April 1994. There was no mention in his written report and he did not recall Denise mentioning that the door or window handles were missing from the car. His report says that Denise claimed to have been picked up at 12:30 in the afternoon, not at night. His report did not contain any mention of the attacker\u2019s masturbating on her, but he stated that he did recall Denise talking about this. Pyatt acknowledged that defendant was charged with aggravated battery based on this incident, but that the matter was dismissed with leave to refile. Pyatt also stated that Kari described a \u201cbig green car\u201d and that neither the missing door handles nor the threat \u201cBitch, I\u2019m gonna kill you\u201d were mentioned in his report.\nThe State agreed to defense counsel\u2019s request to stipulate that Huber, if called to testify, would say that Denise told him the attack occurred after she was picked up outside Mulvaney\u2019s bar at around 10 p.m.\nIn addition to the testimony summarized above, the State also presented the testimony of the victim\u2019s father, who read a short statement; two Henry County deputies, who testified regarding defendant\u2019s conduct while confined in the county jail awaiting resentencing; several correctional officers, who testified to his conduct while in state custody; and the records custodian from the Department of Corrections, who testified regarding defendant\u2019s disciplinary record. Because the circuit court gave little, if any, weight to this information, we need not detail it here.\nEvidence in mitigation included the testimony of defendant\u2019s uncle, the transcript of defendant\u2019s late mother\u2019s testimony at the first sentencing hearing, and a written statement prepared by Dr. George L. Savarese, a mitigation specialist. In addition, defendant\u2019s driving abstract, which reveals one conviction for driving under the influence and citations for speeding and driving without a valid license, was admitted as evidence of defendant\u2019s minimal prior criminal history.\nBecause defendant argues that the circuit court failed to properly consider a statutory mitigating factor, specifically the lack of a significant history of criminal activity, we find it necessary to quote at length from the circuit court\u2019s remarks upon sentencing. The court first acknowledged its \u201cduty to make a diligent inquiry to find mitigating factors that are sufficient, individually or collectively, to preclude the death penalty, if they indeed exist.\u201d The court noted the aggravating factors that the State had proven at the eligibility stage, in accordance with section 9 \u2014 1(b) of the Criminal Code of 1961: that defendant \u201cactually and personally struck and strangled Laurie Gwinn, intentionally committing murder while in the course of committing three forcible felonies: robbery, aggravated criminal sexual assault, and aggravated kidnapping.\u201d 720 ILCS 5/9 \u2014 1(b) (West 1994). In addition, the court noted:\n\u201c[T]he State has supplemented the record during the course of this hearing by presenting the testimony of four women who describe similar savage attacks *** by Arlie Davis, similar to each other and similar to the factual basis of this case.\nIn this manner the State attempts to demonstrate that the lack of a history of criminal convictions, a clean record except for a driving under the influence charge and ... traffic charges, ... belies Arlie Ray Davis\u2019 true character, a character the State contends is sinister, violent, and perverse.\nNow I find that I must comment on the testimony of [the four women]. Each is a cocaine addict, plunged deep into a life of prostitution, theft, and prevarication. Each has accumulated a deplorable criminal record. Each took the witness stand and looking directly at the defendant presented testimony in an emotional, blunt, and convincing manner about incidents in their lives that are likely to be indelibly fixed for a lifetime.\nIndividually their credibility is certainly questionable, suspect, and enigmatic. But, having assessed their emotion, their grim determination, their manner while testifying, and considering how their experiences coincide in many respects with the facts and circumstances surrounding the killing of Laurie Gwinn, the Court finds these women believable and their testimony relevant.\nAdditional significance is attached to the curious manner in which they are corroborated by evidence in the State\u2019s case-in-chief, namely handcuffs in the glove compartment, an orange extension cord in the back seat, manipulation of his victims to lonely, secluded places, and a penchant for strangulation of his victims followed by perverse sexual attacks.\nThe Court has determined that collectively their testimony reveals an intentional evil mindset of the defendant and portrays a pattern of criminal behavior that is appropriately considered in this Court\u2019s sentencing decision. Let there be no mistake, however, this Court will impose sentence for the murder of Laurie Gwinn, not for charges that have not been filed.\nThe testimony of these women is considered for the narrow purpose of understanding Arlie Ray Davis\u2019 character, the likelihood that he can be restored to useful citizenship, and his potential for rehabilitation in or out of prison.\u201d\nThe court observed that Laurie Gwinn was unlike these four earlier victims in that \u201cLaurie Gwinn would be expected to identify and prosecute her assailant. Arlie Davis knew she had no fear of authorities.\u201d Thus, the court implied, defendant killed Laurie Gwinn, but allowed the prostitutes he attacked to live, because he thought he could count on them not to report the crime, or perhaps not to be taken seriously if they had.\nThe court then turned to its \u201cquest to find one or more mitigating factors which would preclude imposition of the death penalty.\u201d Using the statute (720 ILCS 5/9\u2014 1(c) (West 1994)) as a guide, the court considered each of the statutory factors individually, finding only section 9 \u2014 1(c)(1) applicable: \u201cthe defendant has no significant history of prior criminal activity.\u201d With regard to this factor, the court commented:\n\u201cWhile defendant has minor traffic violations including a conviction for DUI, I find that the events which occurred in Peoria in 1993 and 1994 establish a significant recent history of prior criminal activity, thus this is not a mitigating factor.\u201d\nIn its \u201cquest\u201d to find mitigation, the court then considered the 13 statutory mitigating factors that are applicable to minimizing a sentence of imprisonment. 730 ILCS 5/5 \u2014 5\u20143.1 (West 1994). None of these factors offered any support for mitigation.\nThe Court also considered the evidence presented at the first sentencing of defendant\u2019s model behavior while incarcerated prior to and during trial and the evidence presented at this hearing of his breaches of prison discipline. The court stated that it was \u201cnot willing to disregard\u201d the evidence of earlier good behavior \u201csimply because he misbehaved on seven occasions in the past three-and-a-half years.\u201d\nThe testimony of defendant\u2019s uncle and mother revealed some positive relationships with family members, but also a \u201cdark side\u201d to defendant, the court found. The report of the mitigation expert described defendant\u2019s \u201cdysfunctional family\u201d and a \u201cwretched, misdirected life.\u201d\nIn the end, the court concluded that although there \u201care glimmers of mitigation in the life of Arlie Davis,\u201d the court could \u201cnot find that any factors in mitigation are sufficient to preclude the imposition of the death penalty.\u201d\nANALYSIS\nDefendant claims that the trial court abused its discretion by considering the testimony of four prostitutes, none of whom was \u201cworthy of belief, as the stories they told were incredible and motivated by self interest.\u201d In support of this assertion, he notes that each of the four women was a convicted felon and an admitted drug addict and that none of the women reported the alleged assault at the time it occurred. Although defendant raised this issue in a post-sentencing motion, the State responds that this argument is waived for failure to make a contemporaneous objection. People v. Mahaffey, 166 Ill. 2d 1, 27 (1995). We agree. Our case law clearly requires that to avoid procedural default, the defendant must make a contemporaneous objection and raise the issue in a post-trial motion. In the alternative, the defendant must demonstrate plain error or another exception to the rule of procedural default. See People v. Enoch, 122 Ill. 2d 176, 190 (1988). The defendant has not attempted to do so.\nIn any event, even if defendant had argued plain error, he could not have prevailed because there was no error. Defendant admits that the testimony of the four women was relevant and admissible. Therefore, his argument really goes to their credibility. Defense counsel cross-examined each witness and pointed out any discrepancies between her testimony and her earlier statements to the police. Defense counsel also made a forceful argument in closing that these witnesses\u2019 memories were unreliable because they were impaired by drug use at or near the time of the attacks and their frequent arrests might make them eager to shape their testimony to fit the State\u2019s case. The circuit court considered their testimony, their demeanor, and the arguments of counsel, and, in the end, determined that the testimony was credible.\nWe must defer to the sentencing judge in this matter. When the defendant has waived a jury for the sentencing phase, assessing the witnesses\u2019 credibility is exclusively within the province of the circuit court as the trier of fact. People v. Oaks, 169 Ill. 2d 409, 467 (1996). In the present case, the court was aware of several reasons to regard the witnesses\u2019 testimony with skepticism. On the other hand, their demeanor was apparently quite convincing. Some details of their testimony were corroborated by physical evidence. And their encounters with defendant were chillingly similar to the manner in which he abducted and killed Laurie Gwinn. The trial court was well within its discretion to credit the testimony of these witnesses.\nBefore we address defendant\u2019s second issue, we pause to comment on the tenor of defendant\u2019s brief. Although we appreciate that appellate counsel must zealously represent the client, we find counsel has stepped very close to the line between zealous advocacy and incivility toward the court and opposing counsel. For example, counsel charges that the State, \u201clacking any legitimate evidence in aggravation to present, elected to present the testimony of criminals and drug addicts to sway the fact finder toward a verdict of death\u201d and, further, that the circuit court \u201cwas beguiled\u201d by this evidence. The brief asserts that the court\u2019s comments reveal that the court did not find the witnesses \u201cworthy of belief individually, but because the prosecution managed to find four prostitutes to testify, the testimony suddenly became believable.\u201d In that same vein, counsel argues that \u201cthe fact that the prosecution could find no witness who had allegedly been attacked by Mr. Davis other than prostitutes, known to curry favor with the police, is significant in its omission.\u201d\nCounsel\u2019s tone, which mocks the trial court and witnesses that it found credible, does not assist this court in addressing the merits of the issues, a duty which we take most seriously. The comments of the circuit court reveal the court\u2019s understanding that the State found no living witness, other than these four women, who had been attacked by defendant because the very traits that made them vulnerable to attack \u2014 their work as prostitutes, their drug use, and their run-ins with the law \u2014 meant that they did not pose a threat to defendant and, thus, he could allow them to survive. Laurie Gwinn might have made a compelling witness, one whose credibility would not have been in question, had she survived her encounter with defendant.\nDefendant\u2019s second argument is that counsel was ineffective for failing to object to the testimony of police officer Pyatt. According to defendant, Pyatt\u2019s testimony was hearsay and cumulative and merely bolstered the testimony of the four women who accused him of assault. As a result, he argues, the testimony would not have been allowed if counsel had made a timely objection.\nClaims of ineffective assistance of counsel are evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984), which requires the defendant to demonstrate both that counsel\u2019s performance fell below an objective standard of reasonableness and a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reviewing court assesses counsel\u2019s performance using an objective standard of competence under prevailing professional norms. To establish deficient performance, the defendant must overcome the strong presumption that counsel\u2019s action or inaction was the result of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). As a result, counsel\u2019s strategic choices that are made after investigation of the law and the facts are virtually unassailable. People v. Richardson, 189 Ill. 2d 401, 413 (2000).\nIn the present case, the transcript makes it clear that counsel did not object to Pyatt\u2019s testimony because counsel\u2019s strategy was to impeach the credibility of the four earlier witnesses by showing numerous discrepancies between their testimony at the sentencing hearing and their earlier statements to the officer. Indeed, when the State called only one of the two investigating officers to testify, the defense requested that the State stipulate to the testimony of the absent officer so that it, too, could be used to expose an inconsistency in the testimony of one of the women. The strategy was not unreasonable, even though it was ultimately unsuccessful. Because defendant cannot meet the first prong of the Strickland test, he cannot prevail on a claim of ineffective assistance of counsel.\nDefendant\u2019s third argument is based on our opinion in his first appeal, in which we concluded that the \u201cdispositive inquiry\u201d was whether the sentencing judge refused, as a matter of law, to consider certain mitigating evidence. Davis, 185 Ill. 2d at 346. We cited Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), for the firmly established rule that \u201cwhile a capital sentencer \u2018may determine the weight to be given relevant mitigating evidence,\u2019 the sentencer \u2018may not give it no weight by excluding such evidence\u2019 from its consideration.\u201d Davis, 185 Ill. 2d at 346, quoting Eddings, 455 U.S. at 114-15, 71 L. Ed. 2d at 11, 102 S. Ct. at 877. Defendant argues that the judge in his second sentencing hearing committed precisely the same error that resulted in the need for a second hearing \u2014 outright refusal to consider relevant mitigating evidence. In particular, defendant asserts that the circuit court refused to consider evidence that he had \u201cno significant history of prior criminal activity\u201d (720 ILCS 5/9 \u2014 1(c)(1) West 1994)), other than insignificant traffic offenses. As a result, defendant seeks a third sentencing hearing. His argument hinges on a single sentence from the trial court\u2019s lengthy remarks upon sentencing:\n\u201cWhile defendant has minor traffic violations including a conviction for DUI, I find that the events which occurred in Peoria in 1993 and 1994 establish a significant recent history of prior criminal activity, thus this is not a mitigating factor.\u201d (Emphasis added.)\nWe reject defendant\u2019s argument that these few words demonstrate that the resentencing judge committed the same error as the original sentencing judge. The flaw in defendant\u2019s first sentencing hearing was that \u201cthe judge expressed the categorical belief\u201d that evidence of defendant\u2019s positive adjustment to incarceration was \u201cnever relevant to a capital sentencing decision. The judge\u2019s comments thus demonstrate] that he did not consider defendant\u2019s proffered mitigating evidence *** based upon the judge\u2019s mistaken belief that such evidence is not mitigating.\u201d Davis, 185 Ill. 2d at 347. At the second sentencing hearing, the judge did not categorically refuse to consider evidence of defendant\u2019s lack of a significant criminal record.\nDefendant also raises several other arguments with respect to this statutory mitigating factor. He argues that: (1) only a significant history of prior criminal convictions, as opposed to prior criminal activity, may be used to \u201cnegate\u201d this factor, (2) when evidence of lack of a history of criminal convictions is presented, the court must make a specific finding that this mitigating factor is present, even if it then considers evidence of uncharged crimes as a nonstatutory aggravating factor, and (3) due process requires any fact that increases the maximum penalty for a crime must be proven to a jury beyond a reasonable doubt, citing the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000).\nDefendant cites People v. Lewis, 88 Ill. 2d 129, 144 (1981), in which this court considered whether the statutory phrase \u201c \u2018no significant history of prior criminal activity\u2019 \u201d is impermissibly vague. We held that while this phrase \u201ccan, perhaps, be construed or applied by courts so as to render it ovrly broad, there is no reason to assume it will be. *** We believe the phrasing of section 9 \u2014 1(c)(1) is not a constitutionally impermissible basis for calling to the jury\u2019s attention the absence of significant criminal convictions.\u201d (Emphasis added.) Lewis, 88 Ill. 2d at 144-45. He notes that we later decided a case in which evidence of a prior juvenile proceeding that did not result in an adjudication of delinquency and of a prior criminal charge that did not result in a conviction were considered by the sentencing court, holding that:\n\u201cEven if these two dispositions were improperly considered by the trial judge, the error was harmless because the defendant still had a significant history of criminal activity; i.e., convictions for two burglaries, misdemeanor theft, possession of a controlled substance, and two for unlawful-use-of weapons charges.\u201d People v. Stewart, 101 Ill. 2d 470, 494 (1984).\nReading Lewis and Stewart together, defendant concludes that only prior criminal convictions, or the lack thereof, may be considered by the sentencer to determine whether the mitigating factor is present and, further, any error resulting from consideration of other criminal activity is harmless only if the defendant also has a significant history of criminal convictions. Thus, he concludes, it was error for the circuit court to find that the mitigating factor did not exist based on evidence of criminal activity that did not result in conviction and, further, the error could not have been harmless because he had no other significant criminal convictions on his record.\nThe State responds that the trial court\u2019s single comment that \u201cthis is not a mitigating factor\u201d must be read in the context of the court\u2019s lengthy remarks, and that the court did, in fact, acknowledge that defendant did not have a significant history of criminal convictions before concluding that this fact was outweighed by the existence of a nonstatutory aggravating factor, that is, substantial evidence of uncharged criminal activity.\nDefendant does not attempt to argue that the circuit court erred by admitting and considering evidence of uncharged criminal conduct. To do so would have been futile in any event. See People v. Smith, 176 Ill. 2d 217, 255 (1997) (\u201cthe sentencer may consider in aggravation evidence of a defendant\u2019s prior misconduct, including juvenile delinquency, \u2018although the misconduct may not have resulted in prosecution or conviction\u2019 \u201d), quoting People v. Lego, 116 Ill. 2d 323, 346-47 (1987).\nUpon careful reading of the circuit court\u2019s comments, we note that the court referred to the evidence of uncharged crimes as the State\u2019s having \u201csupplemented the record,\u201d a clear reference to the court\u2019s understanding that this evidence was offered as a nonstatutory aggravating factor, presented in the State\u2019s case in chief to supplement the aggravating factors proven at the first stage of sentencing.\nThe court also stated that defendant\u2019s lack of criminal history, as reflected by his record of convictions, was \u201cbelied\u201d by the evidence of his attacks on the four women. To \u201cbelie\u201d a fact is to demonstrate its falsity. See B. Garner, Dictionary of Modern Legal Usage 102 (2d ed. 1995) (\u201cbelie = (1) to disguise, give a false idea of; (2) to leave unfulfilled; or (3) to contradict or prove the falsity of\u2019). When a defendant offers evidence in mitigation, the State is permitted to offer evidence to \u201cbelie\u201d its factual basis. The State did so, for example, in People v. Ramirez, 98 Ill. 2d 439, 467 (1983), by having its own psychiatric expert testify after the defendant offered evidence that he committed the murder while \u201cunder the influence of extreme mental or emotional disturbance\u201d (720 ILCS 5/9 \u2014 1(c)(2) (West 1994)). We found that \u201c[s]ince the defendant himself raised the issue of his mental condition at the time of the offense, it was not improper for th\u00e9 State to try to disprove his assertion.\u201d Ramirez, 98 Ill. 2d at 467.\nIn People v. Flores, 153 Ill. 2d 264, 296 (1992), the defendant presented mitigating evidence that his prior adjudications for delinquency were for nonviolent crimes, for which he received probation. While we did not \u201cdiscount the significance\u201d of this mitigation evidence, we also found it significant that between the murder of Gilbert Perez, for which he faced the death penalty, and his arrest, defendant shot Louis Rosero five times, rendering him a paraplegic. Flores, attempting to minimize the significance of Rosero\u2019s testimony at the sentencing hearing, argued that \u201che was never convicted of the Rosero shooting.\u201d Flores, 153 Ill. 2d at 296. We noted that \u201cthis evidence was admissible, for, certainly, prior uncharged criminal conduct is relevant in a sentencing determination. [Citation.] If believed, the jury may have considered that defendant\u2019s mitigation evidence was insufficient to overcome the aggravating factors.\u201d Flores, 153 Ill. 2d at 296.\nIn the present case, defendant pointed to his lack of a criminal record as evidence that he had \u201cno significant history of prior criminal activity\u201d (720 ILCS 5/9 \u2014 1(c)(1) (West 1994)). He introduced the record of his traffic offenses, including a DUI, as evidence that any prior lawbreaking on his part was not \u201csignificant.\u201d The State, anticipating that he would rely on this particular mitigating factor, put on evidence of quite significant criminal activity in the two years immediately preceding the murder. The circuit court, considering all of the evidence, commented: \u201cIn this manner the State attempts to demonstrate that the lack of a history of criminal convictions, a clean record except for a driving under the influence charge and *** traffic charges, *** belies Arlie Ray Davis\u2019 true character, a character the State contends is sinister, violent, and perverse.\u201d\nWe conclude, based on the record of the circuit court\u2019s comments, that the court did find that the statutory mitigating factor was present, but that its significance was clearly outweighed, or \u201cbelied,\u201d by the evidence of uncharged crimes properly introduced by the State. This conclusion is supported by the circuit court\u2019s statement that it was considering the other-crimes evidence \u201cfor the narrow purpose\u201d of understanding defendant\u2019s \u201ccharacter, the likelihood that he can be restored to useful citizenship, and his potential for rehabilitation.\u201d\nDefendant acknowledges that it would have been entirely appropriate for the circuit court to find that the statutory mitigating factor was present, but that the evidence of nonstatutory aggravating factors \u201creduced the impact of this factor.\u201d He argues, however, that the court\u2019s remark that \u201cthis is not a mitigating factor\u201d demonstrates that it was not engaging in this kind of balancing and, without citation to authority, he asserts that the circuit court was required to make an express finding that the factor was present before finding it outweighed by other factors. The State responds that \u201c[w]hile the court\u2019s language may not have been as precise\u201d as it could have been, this court has previously permitted a sentencing court to weigh the lack of a prior criminal record against evidence of prior uncharged criminal activity. Both parties cite Smith, in which we found \u201cno error where the trial court first found the presence of the statutory mitigating factor, and then \u2018tempered\u2019 that finding by noting evidence of defendant\u2019s juvenile misconduct.\u201d Smith, 176 Ill. 2d at 255.\nWe also find Stewart instructive. In that case, the defendant argued that the trial judge failed to consider, or improperly considered, certain factors in mitigation, including his lack of a significant history of prior criminal activity. Stewart, 101 Ill. 2d at 493-94. The judge made a remark quite similar to the disputed comment in this case when he concluded that there was \u201c \u2018nothing to mitigate the offense committed here.\u2019 \u201d Stewart, 101 Ill. 2d at 494. As in the present case, the judge\u2019s remark was made in the context of describing his consideration of all of the evidence presented: \u201c T have indulged in many hours of reflective introspection seeking to find some factors in mitigation. *** I have searched my conscience and my soul and I cannot find any basis in law or in fact that would preclude the death penalty in this case.\u2019 \u201d Stewart, 101 Ill. 2d at 494-95. We found that the record in Stewart, despite the single comment relied on by the defendant, did not demonstrate that the judge failed to consider factors in mitigation. Stewart, 101 Ill. 2d at 494-95. Similarly, in the present case, the judge\u2019s remarks, taken as a whole, reflect careful consideration of all of the statutory and nonstatutory factors offered by the parties and the reluctant conclusion that the death penalty was proper. Implicit in the single, isolated comment that \u201cthis is not a mitigating factor\u201d is the judge\u2019s conclusion that the mitigating factor was not sufficient to outweigh the aggravating factors.\nDefendant\u2019s final argument with regard to this mitigating factor is that the trial court\u2019s reliance on allegations of criminal conduct that were not proven at trial violates the constitutional guarantee of due process as interpreted in Apprendi. This argument is entirely without merit. Apprendi held that any fact that increases the statutory maximum penalty for a crime, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Supreme Court in Apprendi expressly excluded death penalty proceedings from its reach. Apprendi, 530 U.S. at 496, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.\nIn the present case, when evidence of uncharged crimes was offered during the second stage of sentencing, defendant had already been proven eligible for the death penalty based on the presence of three aggravating factors. Thus, the maximum sentence he faced was death. No fact that was offered at the second stage of sentencing could have had the effect of increasing the maximum penalty. Apprendi concerns are, thus, not implicated here.\nIn the end, defendant\u2019s arguments with regard to this mitigating factor are nothing more than an invitation to \u201cassign greater weight to the mitigation evidence than did the trial court.\u201d People v. Turner, 156 Ill. 2d 354, 366 (1993). We will not engage in such reweighing. \u201cThe trial court reviewed the evidence and observed the witnesses. The court expressly cited the factors in aggravation and mitigation which it considered in arriving at its sentencing determination. Our review of that determination is weighted with a heavy measure of deference.\u201d Turner, 156 Ill. 2d at 366.\nDefendant also argues that what he calls the \u201cIllinois Death Penalty Statute,\u201d actually sections (b) through (j) of the statute defining first degree murder (720 ILCS 5/9 \u2014 1(b) through (j) (West 1994)), is unconstitutional because it does not require the sentencer to find beyond a reasonable doubt that aggravating factors outweigh mitigating factors. He bases this argument on Apprendi as well. Defendant acknowledges that the Court stated that the rule it was announcing in Apprendi would not \u201crender invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.\u201d Apprendi, 530 U.S. at 496, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, citing Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). Nevertheless, he argues that the Apprendi rule should be applied to Illinois\u2019 death penalty sentencing scheme because it differs from the scheme described by the Court in Apprendi. He notes that \u201cthere is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder.\u201d People v. Brownell, 79 Ill. 2d 508, 524 (1980). Thus, he argues, because he was found guilty of \u201cmurder,\u201d but not \u201ccapital murder,\u201d any further findings of fact permitting imposition of a sentence in excess of the 60-year statutory maximum for murder (730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1994)) must be proved by the State beyond a reasonable doubt, including a finding that the aggravating factors are not outweighed by mitigating factors.\nThe State responds that defendant has waived this argument by failing to raise it in his first appeal. However, Apprendi was decided more than a year after his first appeal, while his resentencing was pending, so this argument was not available to him at that time. In addition, this proceeding is a direct appeal, albeit a second one. The doctrine of waiver does not bar a defendant from raising a constitutional issue on direct appeal, even if he failed to raise it at trial. See People v. Wagener, 196 Ill. 2d 269, 280 (2001).\nDefendant\u2019s argument hinges on the underlying proposition that the statutory maximum sentence for murder is established in every case by section 5 \u2014 8\u2014 1(a)(1)(a) of the Unified Code of Corrections. 730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 1994) (stating that the sentence for first degree murder, absent a finding of fact regarding certain aggravating factors, shall be a determinate term \u201cnot less than 20 years and not more than 60 years\u201d). If this is so, then imposition of an extended-term sentence (730 ILCS 5/5 \u2014 5\u20143.2(b)(2), 5 \u2014 8\u20142(a)(1), (b) (West 1994)), or the death penalty (720 ILCS 5/9 \u2014 1(b) through (j) (West 1994)), would always implicate the due process concerns addressed in Apprendi. But what of the case in which the defendant who, after being convicted of murder, is found eligible for the death penalty? This question has already been addressed by this court in People v. Ford, 198 Ill. 2d 68 (2001), and our holding in that case forecloses defendant\u2019s argument.\nEric Ford was convicted of first degree murder after a bench trial. When the State sought the death penalty, he waived a jury for both phases of the capital sentencing hearing. The trial court found him eligible for the death penalty on two separate bases: the murder was committed in the course of another felony and the murder was intentional and involved the infliction of torture. Ford, 198 Ill. 2d at 71. Following receipt of mitigating evidence, the trial court declined to impose the death penalty, based on Ford\u2019s youth, his lack of a significant history of criminal activity, his confession, and his cooperation with the police. Nevertheless, because the murder \u201c \u2018was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty/ \u201d the trial court imposed an extended-term sentence of 100 years, rather than the 60-year sentence that would have been proper absent the aggravating factor. Ford, 198 Ill. 2d at 71. Ford argued that his 100-year extended-term sentence was unconstitutional under Apprendi because the maximum sentence for the offense of murder is a 60-year prison term. The State\u2019s position was that Apprendi does not ever apply to sentencing under Illinois\u2019 first degree murder statute because the maximum penalty authorized by that statute is death. Ford, 198 Ill. 2d at 71-72.\nThe first degree murder statute permits the State to seek imposition of the death penalty for any defendant found guilty under the statute by proving that the defendant is at least 18 years of age and that one or more of the listed aggravating factors is met. 720 ILCS 5/9\u2014 1(b) (West 1994). The State must meet this burden by proving the existence of the aggravating factor or factors beyond a reasonable doubt. 720 ILCS 5/9 \u2014 1(f) (West 1994). Once the State has met this burden, the maximum sentence facing the particular defendant is death.\nAs applied to Ford, because he had been found eligible for the death penalty, a 100-year sentence, even though it was an \u201cextended-term\u201d sentence, did not exceed the statutory maximum he was facing \u2014 death. The trial court\u2019s finding that the murder \u201c \u2018was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty/ \u201d although a finding of fact, \u201cdid nothing to increase the penalty\u201d that he was facing. Ford, 198 Ill. 2d at 74.\nIn the present case, the jury found the defendant guilty of murder and of the three felonies that served as aggravating factors (720 ILCS 5/9 \u2014 1(b)(6)(a) (West 1994)). The jury also found, beyond a reasonable doubt, that he was eligible for the death penalty. \u201cAt this point, and based exclusively upon facts that were proved beyond a reasonable doubt, defendant faced a prescribed statutory maximum sentence of death.\u201d Ford, 198 Ill. 2d at 74. Consideration of mitigating factors, or even consideration of nonstatutory aggravating factors, at the second stage of sentencing cannot increase the penalty for the crime beyond that maximum. Indeed, mitigating factors can only reduce the likelihood that the maximum penalty will be imposed. The remaining question at this stage\u2014 whether sufficient mitigating factors exist to preclude imposition of the death penalty \u2014 thus need not be submitted to the jury and proven beyond a reasonable doubt.\nWe, therefore, conclude that the rule announced in Apprendi is not applicable in the mitigation phase of a death penalty sentencing hearing.\nDefendant raises another Apprendi-based claim \u2014 that his indictment was flawed because it did not set forth all of the elements of the crime. The omitted elements, according to defendant, are that he was over the age of 18 at the time of the commission of the crime, that he actually killed Laurie Gwinn, that the killing occurred in the course of one or more of the specified felonies, and that mitigating factors are not sufficient to preclude the imposition of the death penalty. Thus, he contends that he may not constitutionally be sentenced to death.\nDefendant\u2019s brief also states in its summary of the \u201cNature of the Case\u201d that \u201cno issue is raised concerning the sufficiency of the charging instruments.\u201d Perhaps this language is just boilerplate, or perhaps it reflects counsel\u2019s recognition that the time for raising any challenge to the sufficiency of the indictment is long past. \u201cWhen an indictment or information is attacked for the first time on appeal, it is sufficient that the indictment or information \u2018apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.\u2019 \u201d People v. Thingvold, 145 Ill. 2d 441, 448 (1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976). In other words, the question on appeal is \u201cwhether the defect in the information or indictment prejudiced the defendant in preparing his defense.\u201d Thingvold, 145 Ill. 2d at 448.\nIn the present case, defendant did not challenge the indictment at trial or in his first direct appeal. Thus, unless he demonstrates that he was prejudiced in preparing his defense, this issue is waived. Defendant makes no claim of prejudice, however. Instead, he packages his challenge to the indictment in Apprendi wrapping and raises it as a constitutional claim that was not available to him at the time of his first appeal.\nDefendant\u2019s attempt to create an Apprendi issue is unavailing because the Supreme Court, in Apprendi, specifically excluded capital sentencing schemes in which eligibility for the death penalty must be proven to a jury beyond a reasonable doubt from its scope:\n\u201c \u2018Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed .... The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.\u2019 \u201d Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366, quoting Almendarez-Torres v. United States, 523 U.S. 224, 257 n.2, 140 L. Ed. 2d 350, 377 n.2, 118 S. Ct. 1219, 1237 n.2 (1998) (Scalia, J., dissenting, joined by Stevens, Souter and Ginsburg, JJ.).\nDefendant argues that this dicta in Apprendi regarding capital sentencing applies only to those states with criminal laws that distinguish between the offenses of murder and capital murder. Because Illinois\u2019 criminal code defines only one offense of first degree murder, he argues that a charge of first degree murder does not adequately inform the accused that he may face the death penalty. He claims that Apprendi implicitly overturns our decision in People v. Brownell, 79 Ill. 2d 508 (1980).\nIn Brownell, the defendant argued that a capital sentencing hearing, conducted after his conviction for first degree murder, violated double jeopardy principles. He characterized his trial as having convicted him of the \u201clesser included offense of murder,\u201d and his sentencing hearing as having tried him again for the offense of \u201ccapital murder.\u201d Brownell, 79 Ill. 2d at 523. He also made an eighth amendment argument that his indictment was defective because the prosecutor could initiate a death penalty hearing without having charged him with \u201caggravated murder.\u201d Brownell, 79 Ill. 2d at 526-27. We noted that \u201cthere is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder.\u201d Brownell, 79 Ill. 2d at 524. Further, \u201c[t]here is no offense of \u2018aggravated,\u2019 as opposed to simple, murder, in Illinois. There is simply one murder statute, which includes within it a provision for the imposition of the death sentence.\u201d Brownell, 79 Ill. 2d at 527. Thus, an indictment for murder is sufficient if it sets out \u201cwith such specificity or particularity that the accused is informed of the offense with which he is charged and enabled to prepare his defense and, further, that he is protected against being later prosecuted for the same crime.\u201d Brownell, 79 Ill. 2d at 524. In addition, when the indictment contains allegations that the defendant murdered the victim in the course of committing certain other felonies, such as aggravated kidnapping or rape, the defendant is \u201cfully apprised, from indictment on, that he could potentially receive the death sentence.\u201d Brownell, 79 Ill. 2d at 525.\nWe relied on Brownell in People v. Davis, 95 Ill. 2d 1 (1983), in which the defendant argued that the indictment was insufficient to support a death sentence because it failed to allege a statutory aggravating factor. Davis, 95 Ill. 2d at 28. After again noting that there is only one offense of murder under Illinois law, and that the defendant did not assert that the necessary elements of that crime were insufficiently alleged in the indictment, we stated:\n\u201cThe aggravating factors are not necessary elements of the offense, and are relevant only to a determination of the appropriate punishment. Therefore, the real question concerns defendant\u2019s knowledge that the death penalty would be sought, and his ability to adequately prepare a defense.\u201d (Emphases in original.) Davis, 95 Ill. 2d at 29.\nAs in Davis, this defendant \u201cdoes not allege that he was unaware of the aggravating factors upon which the State would rely.\u201d Davis, 95 Ill. 2d at 29. Indeed, in the present case, defendant was also charged with three separate felonies, any one of which, if proven, would have provided an aggravating factor to make him eligible for the death penalty. \u201cThis is not, therefore, a situation in which the indictment either failed to specify aggravating factors or defendant received no pretrial notice.\u201d Davis, 95 Ill. 2d at 29-30.\nWe recognized in Wagener that \u201cApprendi contains isolated statements which on their face might appear to support the conclusion that the jury must find beyond a reasonable doubt each and every fact which might have any real-world impact on the length of time the defendant might spend in prison.\u201d Wagener, 196 Ill. 2d at 286. Nothing in Apprendi, however, causes us to reconsider our holdings in Brownell and its progeny. Aggravating factors are not elements of the offense of murder. They are sentencing factors. When the State is considering seeking the death penalty, the defendant must be put on notice of this possibility either by the inclusion of specific aggravating factors in the indictment or some other form of pretrial notice, so that he may adequately prepare his defense. Davis, 95 Ill. 2d at 29-30. If such notice is provided, the defendant can show no prejudice and the indictment is a sufficient basis upon which to predicate the death penalty. Davis, 95 Ill. 2d at 30.\nDefendant\u2019s final arguments are that the Illinois death penalty statute is unconstitutional because it places a burden of proof on defendants to show that mitigating evidence outweighs aggravating evidence; allows sentencers to weigh a vague aggravating factor, namely, \u201cany other reason\u201d beyond the statutory factors why a defendant should be sentenced to death (see 720 ILCS 5/9 \u2014 1(c), (e) (West 1994)); and fails to sufficiently minimize the risk of arbitrarily imposed death sentences. This court has repeatedly addressed these claims; indeed, we did so in defendant\u2019s first appeal (Davis, 185 Ill. 2d at 351-52). He offered no reason then, and offers no reason now, why we should reconsider our prior decisions. Therefore, we again reject these claims.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court. We direct the clerk of this court to enter an order setting Tuesday, May 13, 2002, as the date on which the sentence of death entered by the circuit court of Henry County shall be carried out. Petitioner shall be executed in the manner provided by law. 725 ILCS 5/119 \u2014 5 (West 2000). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where petitioner is now confined.\nAffirmed.", "type": "majority", "author": "JUSTICE GARMAN" }, { "text": "CHIEF JUSTICE HARRISON,\ndissenting:\nWhen this matter was last before the court, I did not take issue with the validity of Davis\u2019 convictions. People v. Davis, 185 Ill. 2d 317, 352 (1998) (Harrison, C.J., concurring in part and dissenting in part). My view has now changed. During the pendency of Davis\u2019 appeal, our court adopted a comprehensive set of new rules governing the conduct of cases in which the State is seeking the death penalty. For the reasons set forth in my dissenting opinion in People v. Hickey, 204 Ill. 2d 585, 631-36 (2001) (Harrison, C.J., dissenting), the procedures contained in those rules are indispensable for achieving an accurate determination of innocence or guilt and are applicable to all capital cases now coming before us. Because Davis was tried, convicted and sentenced without the benefit of the new rules, his convictions and death sentence should be vacated, and the cause should be remanded to the circuit court for a new trial.\nEven if Davis were not entitled to the benefit of the new rules, his sentence of death could not stand. As I wrote when this matter was last before us, and for the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 2). Absent the new rules, there is no basis for altering that conclusion. At a minimum, Davis\u2019 sentence of death should therefore be vacated, and he should be sentenced to a term of imprisonment. 720 ILCS 5/9 \u2014 l(j) (West 1994).\nJUSTICE KILBRIDE,\nalso dissenting:\nFor the reasons set forth in my dissents in People v. Hickey, 204 Ill. 2d 585, 636-40 (2001) (Kilbride, J., dissenting), and People v. Simpson, 204 Ill. 2d 536, 581-85 (2001) (Kilbride, J., dissenting), I believe this cause should be remanded for a new trial conducted in compliance with the new rules governing capital cases. As I stated in my dissents, the procedures in capital cases prior to this court\u2019s adoption of the new rules were inherently unreliable and did not sufficiently protect a defendant\u2019s constitutional rights. For this reason, I believe that the new rules should be applied retroactively. See People v. Caballero, 179 Ill. 2d 205, 220-21 (1997). Therefore, I respectfully dissent.", "type": "dissent", "author": "CHIEF JUSTICE HARRISON, JUSTICE KILBRIDE," } ], "attorneys": [ "Charles M. Schiedel, Deputy Defender, and Lawrence Bapst, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "James E. Ryan, Attorney General, of Springfield, and Terrance Patton, State\u2019s Attorney, of Cambridge (Joel D. Bertocchi, Solicitor General, and William L. Browers and Michael M. Glick, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 89704.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARLIE RAY DAVIS, Appellant.\nOpinion filed February 22, 2002.\nRehearing denied April 1, 2002.\nHARRISON, C.J., and KILBRIDE, J., dissenting.\nCharles M. Schiedel, Deputy Defender, and Lawrence Bapst, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nJames E. Ryan, Attorney General, of Springfield, and Terrance Patton, State\u2019s Attorney, of Cambridge (Joel D. Bertocchi, Solicitor General, and William L. Browers and Michael M. Glick, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0349-01", "first_page_order": 361, "last_page_order": 393 }