{ "id": 3623585, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL RUNGE, Appellant", "name_abbreviation": "People v. Runge", "decision_date": "2009-05-21", "docket_number": "No. 103529", "first_page": "68", "last_page": "173", "citations": [ { "type": "official", "cite": "234 Ill. 2d 68" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "227 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705676 ], "year": 2007, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/227/0001-01" ] }, { "cite": "556 U.S. 148", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3653360 ], "weight": 6, "year": 2009, "pin_cites": [ { "page": "162" }, { "page": "331-32" }, { "page": "1456" } ], "opinion_index": 0, "case_paths": [ "/us/556/0148-01" ] }, { "cite": "487 U.S. 81", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774920 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "85" }, { "page": "88", "parenthetical": "\"Had [a biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove [the juror] for cause, the sentence would have to be overturned\"" }, { "page": "2277", "parenthetical": "\"Had [a biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove [the juror] for cause, the sentence would have to be overturned\"" } ], "opinion_index": 0, "case_paths": [ "/us/487/0081-01" ] }, { "cite": "467 U.S. 1025", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212213 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "1035" }, { "page": "856" }, { "page": "2891" } ], "opinion_index": 0, "case_paths": [ "/us/467/1025-01" ] }, { "cite": "430 F.3d 1", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1594256 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "11" }, { "page": "12" }, { "page": "11" }, { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/f3d/430/0001-01" ] }, { "cite": "455 U.S. 209", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304618 ], "weight": 9, "year": 1982, "pin_cites": [ { "page": "217" }, { "page": "86" }, { "page": "946" }, { "page": "217" }, { "page": "86" }, { "page": "946" } ], "opinion_index": 0, "case_paths": [ "/us/455/0209-01" ] }, { "cite": "480 F.3d 171", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3896578 ], "year": 2007, "pin_cites": [ { "page": "184-85" } ], "opinion_index": 0, "case_paths": [ "/f3d/480/0171-01" ] }, { "cite": "263 F.3d 708", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9485107 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "723" }, { "page": "723, 725", "parenthetical": "compiling cases" }, { "page": "722" }, { "page": "722" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/f3d/263/0708-01" ] }, { "cite": "90 F.3d 490", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3694939, 9046263 ], "year": 1996, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/319/0267-01", "/f3d/90/0490-01" ] }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "229" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "98 L. 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who is on the front lines, sensitive to the nuances of the case before him - substantial discretion in determining\" possible prejudicial influence" } ], "opinion_index": 0, "case_paths": [ "/f2d/889/1158-01" ] }, { "cite": "908 F.2d 728", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539075 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "733" }, { "page": "734" }, { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/f2d/908/0728-01" ] }, { "cite": "384 F.3d 628", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9183239 ], "weight": 10, "year": 2004, "pin_cites": [ { "page": "652" }, { "page": "652-53" }, { "page": "652" }, { "page": "652" }, { "page": "652-53" }, { "page": "653" }, { "page": "653" }, { "page": "653" }, { "page": "653", "parenthetical": "\"What is crucial is 'not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury' \"" } ], "opinion_index": 0, "case_paths": [ "/f3d/384/0628-01" ] }, { "cite": "4 F.3d 843", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11936037 ], "year": 1993, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/f3d/4/0843-01" ] }, { "cite": "151 F.3d 970", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11714329 ], "year": 1998, "pin_cites": [ { "page": "974", "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/f3d/151/0970-01" ] }, { "cite": "494 F.2d 394", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 192841 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "396", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/f2d/494/0394-01" ] }, { "cite": "464 U.S. 548", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201349 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "553" }, { "page": "669" }, { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/us/464/0548-01" ] }, { "cite": "178 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385536 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "160-61" }, { "page": "160-61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0141-01" ] }, { "cite": "852 F.2d 740", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10545015 ], "year": 1988, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/f2d/852/0740-01" ] }, { "cite": "3 F.3d 684", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513817 ], "year": 1993, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/f3d/3/0684-01" ] }, { "cite": "40 F.3d 1384", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10532128 ], "year": 1994, "pin_cites": [ { "page": "1396" } ], "opinion_index": 0, "case_paths": [ "/f3d/40/1384-01" ] }, { "cite": "532 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9302102 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "750" }, { "page": "977-78" }, { "page": "1815" } ], "opinion_index": 0, "case_paths": [ "/us/532/0742-01" ] }, { "cite": "206 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578352 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "81" }, { "page": "80" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0065-01" ] }, { "cite": "706 N.W.2d 500", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8908759 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "507" }, { "page": "508" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nw2d/706/0500-01" ] }, { "cite": "289 Ill. 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], "weight": 2, "year": 2005, "pin_cites": [ { "page": "11" } ], "opinion_index": 1, "case_paths": [ "/f3d/430/0001-01" ] }, { "cite": "908 F.2d 728", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539075 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "734" } ], "opinion_index": 1, "case_paths": [ "/f2d/908/0728-01" ] }, { "cite": "384 F.3d 628", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9183239 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "652-53" } ], "opinion_index": 1, "case_paths": [ "/f3d/384/0628-01" ] }, { "cite": "3 F.3d 684", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513817 ], "weight": 16, "year": 1993, "pin_cites": [ { "page": "687" }, { "page": "687" }, { "page": "688" }, { "page": "688" }, { "page": "688" }, { "page": "694" }, { "page": "691" }, { "page": "691" }, { "page": "690" }, { "page": "690" }, { "page": "690" }, { "page": "694" }, { "page": "694" }, { "page": "689" }, { "page": "689" } ], "opinion_index": 1, "case_paths": [ "/f3d/3/0684-01" ] }, { "cite": "40 F.3d 1384", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10532128 ], "year": 1994, "pin_cites": [ { "page": "1396" } ], "opinion_index": 1, "case_paths": [ "/f3d/40/1384-01" ] }, { "cite": "54 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932686 ], "year": 1973, "pin_cites": [ { "page": "411" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/54/0401-01" ] }, { "cite": "144 Ill. 140", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3081309 ], "year": 1893, "pin_cites": [ { "page": "163-64" } ], "opinion_index": 1, "case_paths": [ "/ill/144/0140-01" ] }, { "cite": "222 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602575 ], "year": 2006, "pin_cites": [ { "page": "35", "parenthetical": "because of the seriousness of a capital case, the record should be subject to \"intense scrutiny\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/222/0001-01" ] }, { "cite": "194 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096301 ], "year": 2000, "pin_cites": [ { "page": "475" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/194/0467-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "273 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142780 ], "weight": 3, "year": 1973, "opinion_index": 1, "case_paths": [ "/us/273/0510-01" ] }, { "cite": "379 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731209 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "471-472" }, { "page": "428" } ], "opinion_index": 1, "case_paths": [ "/us/379/0466-01" ] }, { "cite": "15 Ill. App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461896 ], "weight": 6, "year": 1973, "pin_cites": [ { "page": "110" }, { "page": "111" }, { "page": "111" }, { "page": "111" }, { "page": "111" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/15/0110-01" ] }, { "cite": "135 F.3d 1178", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11877198 ], "weight": 7, "year": 1998, "pin_cites": [ { "page": "1185" }, { "page": "1185" }, { "page": "1185" }, { "page": "1185" }, { "page": "1186" }, { "page": "1188" } ], "opinion_index": 1, "case_paths": [ "/f3d/135/1178-01" ] }, { "cite": "610 F.2d 344", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11099 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "346" }, { "page": "348" } ], "opinion_index": 1, "case_paths": [ "/f2d/610/0344-01" ] }, { "cite": "5 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703077 ], "year": 1954, "pin_cites": [ { "page": "184" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/5/0176-01" ] }, { "cite": "553 U.S. 35", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3673813 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "84", "parenthetical": "Stevens, J., concurring" }, { "page": "453", "parenthetical": "Stevens, J., concurring" }, { "page": "1550", "parenthetical": "Stevens, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/553/0035-01" ] } ], "analysis": { "cardinality": 4066, "char_count": 191606, "ocr_confidence": 0.849, "pagerank": { "raw": 2.5117002076149105e-07, "percentile": 0.8105955212060626 }, "sha256": "97a4d8105d85ae65b918a1183379aaa7113439f31c9939c238f0f8d0ac2bf28c", "simhash": "1:9b2aeb0e7e445cf3", "word_count": 32242 }, "last_updated": "2023-07-14T19:57:50.922370+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL RUNGE, Appellant." ], "opinions": [ { "text": "JUSTICE KARMEIER\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Thomas and Garman concurred in the judgment and opinion.\nJustice Burke dissented, with opinion, joined by Justices Freeman and Kilbride.\nOPINION\nDefendant, Paul Runge, was indicted in the circuit court of Cook County for the first degree murders of Yolanda Gutierrez and Jessica Muniz. See 720 ILCS 5/9\u2014 1(a) (West 1996). The State filed notice of intent to seek the death penalty. A jury subsequently convicted defendant of both murders. Thereafter, the jury found defendant eligible for the death penalty on eight statutory grounds. After considering evidence in aggravation and mitigation, the jury concluded that death was the appropriate sentence. See 720 ILCS 5/9 \u2014 1(g) (West 1996). The circuit court sentenced defendant to death. Because defendant was sentenced to death, his appeal was brought directly to this court. Ill. Const. 1970, art. VI, \u00a74(b); 134 IH. 2d R. 603.\nOn appeal, defendant contends that (1) a biased juror served on his jury, denying him an impartial jury, and the trial court\u2019s failure to question other jurors about that juror\u2019s activities denied defendant due process; (2) the trial court erred in excluding, as irrelevant, the sexually violent person petition filed against the defendant, as the petition constituted a party admission, and was the basis for a defense argument of judicial estoppel; (3) denying depositions of the prosecution\u2019s experts, while allowing depositions of the defense experts, was an unbalanced, unauthorized, and excessive sanction, when defendant, on the advice of counsel from another county, invoked his right to remain silent when examined by the prosecution\u2019s expert on the murder charges in this case; (4) the prosecution\u2019s closing argument inaccurately denigrated the testimony of two defense experts, based upon misstatements of testimony; (5) the prosecutor improperly asked irrelevant questions concerning victim impact evidence pertinent only to other crimes; (6) the prosecutor\u2019s closing sentencing argument improperly relied on irrelevant, extraneous assertions and specious reasoning to defeat mitigation based on the death of defendant\u2019s mother; (7) \u201cdeath is cruel and unusual punishment for crimes committed under the influence of a neuropsychological disorder that may have biological causes, that distorts reality, diminishes impulse control and memory, and for which state legislatures provide for civil commitment and medical treatment\u201d; and (8) the Illinois death penalty statute violates due process under Apprendi v. New Jersey because the State is not required to prove beyond a reasonable doubt that, after weighing the factors in aggravation and mitigation, death is the appropriate sentence.\nWe begin our discussion with a summary of the principal evidence adduced at trial. Facts pertaining to procedural issues will be provided separately in the context of our analyses of those issues.\nBACKGROUND\nOn the morning of February 3, 1997, a neighbor discovered flames coming from the Chicago apartment occupied by Yolanda Gutierrez and her 10-year-old daughter, Jessica Muniz. When firefighters arrived, they found the bodies of Yolanda and Jessica on a burned bed. John Escamilla, a cause and origin investigator with the Chicago fire department, noted pour patterns, indicating the use of an accelerant on the rug around the bed. He also observed what appeared to be a restraint on Jessica\u2019s wrist. In his opinion, the fire resulted from the deliberate act of pouring a liquid accelerant onto the bed and the victims and igniting the accelerant.\nDr. Scott Denton performed autopsies on Yolanda\u2019s and Jessica\u2019s bodies. Yolanda\u2019s body was clad in burned and fragmented clothing, and she had a gaping sharp-force wound to the neck that cut her carotid artery and jugular vein. The wound went deep through the front muscles of the neck, through the large side muscle of the neck, and involved the back of the throat. About half her body had extensive burning and charring. Her vaginal opening was gaping open, which was consistent with a sexual assault. Denton testified that Yolanda died from an incise wound to her neck.\nJessica, like her mother, wore fragmented, burned clothing. She had a gaping sharp-force wound across her neck and was nearly decapitated. Approximately 75% of her body was burned. In addition, on her shoulder Den-ton noted a stab wound two inches by one inch and one inch deep. During the examination, a tampon, with the plastic applicator still on it, fell from her vagina. Two areas of tearing of her vaginal opening were evident, consistent with sexual assault. In addition, there was redness in the upper and lower parts of her anus, again consistent with sexual assault. At the back of Jessica\u2019s throat, Denton noted an area of purple hemorrhage that could have been consistent with the insertion of an adult penis to the back of her throat. He found pulmonary foam from the lung in her airway and observed that her brain was swollen. The swelling indicated loss of oxygen to the brain, which would take perhaps two minutes to begin swelling. At the time Jessica\u2019s throat was slashed her brain was deprived of oxygen. Denton believed it would take approximately three to five minutes of oxygen deprivation for her to die from her injuries or suffer irreversible brain damage.\nSolveig Sullivan worked as a forensic scientist for the Illinois State Police (ISP). In February of 1997, he received blood standards and vaginal, oral, and rectal swabs from the bodies of Jessica and Yolanda. Sullivan found no semen on Yolanda\u2019s swabs, but a preliminary test indicated blood on her vaginal swab. Blood was indicated on all three of Jessica\u2019s swabs and semen was identified on her rectal and oral swabs.\nKarla Cluck, a forensic scientist for the ISF obtained a male DNA profile from Jessica\u2019s oral swab and Jessica\u2019s DNA profile. Karen Abbinanti, another forensic scientist for the ISP, obtained a DNA profile from a standard taken from defendant and compared it to the male DNA profile from Jessica\u2019s oral swab. Abbinanti determined that defendant could not be excluded as the source of the male DNA from Jessica\u2019s oral swab. In fact, that DNA profile would be expected to occur in only 1 in 32 trillion Caucasians. Abbinanti concluded that the semen from the oral swab was consistent with having originated from defendant.\nChicago police department Detective Frank Cappitelli received a report from the ISP in September 2000 and met with defendant on June 7, 2001, at the Will County jail. Defendant initially denied any knowledge of the murders; however, when Cappitelli confronted defendant with the ISP crime labs reports, defendant looked at them for a period of time, then said, \u2018You know I did it, you got me.\u201d Subsequently, Assistant State\u2019s Attorney Bob Milan met with defendant and went over the lab report with him. Milan stated that the semen in Jessica\u2019s mouth was defendant\u2019s, and defendant agreed. Defendant agreed to make a videotaped statement.\nIn the statement, defendant admitted that, on January 31, 1997, he contacted Yolanda Gutierrez about a Hooked on Phonics program she was advertising for sale. He went to her apartment and discussed the program with her, then said he would discuss it with his wife, and he left. Defendant said he and his wife, Charlene, went to Yolanda\u2019s apartment on February 3 to view the program. According to defendant, Charlene argued with Yolanda and grabbed her. Defendant claimed that Yolanda grabbed a knife and told Charlene to leave. He said he grabbed the knife from Yolanda and pushed her to the floor. Defendant stated that he asked Charlene for something to tie up Yolanda, and Charlene brought him duct tape which he used to tie Yolanda\u2019s and Jessica\u2019s hands. Defendant then put Yolanda and Jessica on the bed. Defendant said he attempted to calm Charlene, then had sex with her on the bed between Yolanda and Jessica. Defendant stated he then pulled down Yolanda\u2019s shorts and had vaginal, anal, and oral intercourse with her. Thereafter, he pulled down Jessica\u2019s sweatpants and had vaginal, anal, and oral intercourse with her as well. He pulled both their pants up afterward, and proceeded to cut Yolanda\u2019s throat with a knife and cut Jessica\u2019s neck as well. According to defendant, Charlene came to him with a can of turpentine-like fluid. He ignited the bed with a match, and he and Charlene left.\nOn June 10, 2001, Cappitelli interviewed defendant\u2019s ex-wife, Charlene, regarding her involvement in the murders. Subsequently, Milan and Cappitelli spoke to defendant and advised him of what Charlene had said. Eventually, defendant admitted that he had lied about Charlene\u2019s participation; he admitted she was not present when he committed the crimes.\nDefendant then gave a second statement wherein he admitted he went to the Gutierrez apartment alone on February 3, having been there previously on January 31, at which time he discussed the Hooked on Phonics program and observed both Yolanda and Jessica. On the latter date, defendant entered the apartment intending to rape Yolanda, and he had duct tape and a knife in his coat pocket in furtherance of that objective. Once inside the apartment, defendant closed the door, pulled out the knife, and grabbed Yolanda around the front, placing the knife to her throat. Defendant told Yolanda to be quiet and come to the bed and to direct her daughter to do so. Once he had both Yolanda and Jessica on the bed, he taped their hands behind their backs. He said he then had vaginal, anal, and oral intercourse with each of them, as indicated in his initial statement. Although defendant did not recall ejaculating, he admitted he must have. After defendant had intercourse with the little girl, she was bleeding from her vagina. In response, defendant found a tampon and put it in her vagina. He then put Jessica\u2019s pants back on. Thereafter, defendant located a can of turpentine or remover and set it by the bed. He then took his knife and cut Yolanda\u2019s neck. A gurgling sound came from her neck, and her blood flowed onto the bed. Defendant moved over to Jessica, and cut her neck as well. Again, there was a gurgling sound, and blood sprayed onto the bed. After he had slit their throats, he picked up the can, poured the liquid over them, lit a match, and threw it on the bed. Defendant said he did that to hide the fact that he had slashed their throats. After setting the fire, defendant took the duct tape, the knife, and the can, and he left the apartment. In his videotaped statement, defendant indicated he could help with other unsolved cases.\nFor purposes of clarification, we note, in passing, that those other unsolved crimes were, like the crimes at issue here, perpetrated between 1994, when defendant was paroled for an earlier offense, and August of 1997, when his parole was revoked and he was again incarcerated. That revocation was the result of an FBI search of defendant\u2019s home in March of 1996, a search wherein weapons were found. A petition was eventually filed in 1999 for defendant\u2019s civil commitment under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)), and defendant was held in the custody of the Department of Human Services (DHS) during the pendency of that action. That petition was withdrawn when charges were filed in this matter. With those observations, we continue with our recitation of the facts in this case.\nDr. Michael Stone, a clinical psychologist, testified for the defense. Stone indicated that he evaluated defendant on August 29, 2005, after having interviewed him face-to-face for about 90 minutes. Stone diagnosed defendant as a sexual sadist with borderline antisocial personality disorder and narcissistic features. Stone described a sexual sadist as someone who derives sexual pleasure from the fear, pain, and restriction of another. Stone noted there are degrees of sexual sadism corresponding to the person\u2019s ability to control violent fantasies and compulsion; not all sexual sadists are criminal and homicidal. Much of a sadist\u2019s initial behavior is conscious and deliberate, but as he gets into his particular obsession, it becomes harder to control the situation because it is very emotionally driven and sexually fulfilling to the sadist. According to Stone, defendant demonstrated \u201cminimal ability to control\u201d his behavior. Stone believed that the onset of defendant\u2019s sexual sadism occurred at age 17, that his mother\u2019s death around that time was traumatic for him and could have affected his ability to control his sexual sadism \u2014 though Stone could not be sure how much defendant\u2019s mother\u2019s death caused any of his actions \u2014 and that his condition worsened over the years, with reduced control over his behavior and increased influence of sexual and violent stimuli.\nSpecifically, Stone testified that defendant, at the time of the murders, was suffering from a progressive loosening of control and was at risk of impulsively acting out. He stated that defendant lacked the ability to control his behavior. In that regard, Stone expressed the opinion that defendant was insane for purposes of criminal responsibility.\nStone subsequently acknowledged, under cross-examination, how someone acts upon their sexual sadism is a \u201cchoice\u201d they make. In defendant\u2019s case, he identifies particular types of women, looks for an opportunity, looks for specific vulnerability, and isolates that person and situation. Stone stated that defendant makes \u201ca composite decision\u201d to act or not. Stone acknowledged that defendant would conduct surveillance of a particular woman to determine whether it was feasible to have violent sex with her. Stone noted \u201cit\u2019s a combination of the circumstance and the person turning him on, that it being something where he\u2019s not likely to get caught and go to jail.\u201d Stone could not rule out that defendant\u2019s actions included a component of destroying evidence in addition to inflicting pain. He agreed that, as a consequence of earlier offenses perpetrated upon a different victim, who survived, defendant may have learned that allowing a victim to live, after a sexual assault, could result in his arrest and imprisonment. In Stone\u2019s words, \u201cThat\u2019s certainly one take on it, yes.\u201d\nStone acknowledged that there were occasions in late 1996 and early 1997 when defendant encountered women, isolated them, intended to act sexually and violently, but chose not to do so because there was a presence involved that he did not want to deal with. In other instances, defendant had planned, identified women, gathered information, acted upon his intent, and concealed his actions. Stone admitted defendant would be less likely to act if a police officer were present. In Stone\u2019s notes, he wrote that defendant said he knew exactly what he was doing and that he was aware of the seriousness of his crimes and took personal responsibility for them.\nDr. Barry Leavitt, a clinical psychologist, was called by the defense to testify. Leavitt did not evaluate defendant for the purpose of establishing whether he had a \u201cmental illness,\u201d as defined by Illinois law, or whether defendant was insane. Leavitt had no opinion as to whether defendant was sane or mentally ill at the time of the charged offenses. Instead, Leavitt had evaluated defendant in March of 1999 to determine whether defendant met the statutory criteria for commitment as a sexually violent person under Illinois law. The issues Leavitt was called upon to address in that context were whether defendant had a \u201cmental disorder\u201d which predisposed him to future acts of sexually violent behavior and whether, if he had such a disorder, there was a substantial probability that he would re-offend in the future. Leavitt conducted his evaluation on behalf of the DHS to determine whether defendant would be recommended for civil commitment following his parole. The conclusions of Leavitt\u2019s report were in accord with those contained in a report submitted by Dr. Jonas, which was filed in support of a petition for commitment under the Sexually Violent Persons Commitment Act.\nLeavitt noted that, in 1987, defendant had lured a 14-year-old girl to his home, while his father and brother were out of town, and had sexually assaulted her. Defendant restrained the girl with handcuffs, used duct tape to cover her eyes and mouth, used a knife, and raped her vaginally, anally, and orally. Defendant claimed it was consensual, and that he did not threaten, intimidate her, or use violence. In that respect, Leavitt did not believe defendant was being truthful, as there was a marked contrast between the information Leavitt had about the 1987 sex offense and defendant\u2019s description of the event. Leavitt said it was common for criminals to minimize their behavior and that is consistent with sanity and with people suffering no mental illness. Based on his examination of defendant and the 1987 incident, Leavitt saw elements of planning and forethought that indicated defendant had a capacity for control. There was an opportunistic quality to the way he carried out the crime. Defendant ran when the police responded to his home, indicating that he knew he had done something wrong. Dr. Leavitt took into consideration Dr. Kaplan\u2019s 1987 examination, finding that defendant was able to conform his conduct to the requirements of the law and was sane at the time of that offense. However, Leavitt did suggest the more severe the disorder, the more difficult it might be for a sexual sadist to resist his urges. Leavitt was not aware of any instances when defendant lost control of his sexual urges in public.\nDefendant described his upbringing to Leavitt as \u201cessentially normal.\u201d Defendant admitted to a fairly early interest in various types of pornography. He described his plan, while incarcerated, to collect virtually every type of pornographic magazine and rent them out to other inmates as a \u201chustle.\u201d Leavitt felt that spoke to defendant\u2019s propensity to brag and his capacity to be shrewd, calculating, and manipulative. Although defendant was incarcerated for six years as a result of the 1987 sex offense, he chose not to participate in sex offender counseling.\nLeavitt testified that defendant functions, intellectually, within the normal range, with no evidence of mental or cognitive impairment. On the Minnesota Multiphasic Personality Inventory (MMPI), defendant\u2019s answers indicated he was highly self-centered, possessed a strong need for immediate gratification, and lacked insight into his psychological issues. The test also indicated he was likely to be impulsive and would have \u201cpotential issues\u201d controlling his behavior; however, Leavitt acknowledged that the MMPI results did not prove that defendant could not control his behavior.\nLeavitt diagnosed defendant with sexual sadism and personality disorder not otherwise specified with antisocial and narcissistic features. His diagnosis of sexual sadism was based on defendant\u2019s documented history of sexual behavior, particularly the 1987 case. He noted that a diagnosis of sexual sadism does not necessarily mean a person will engage in criminal behavior. When asked if sexual sadism is a serious \u201cmental illness,\u201d Leavitt responded that it is a \u201cserious psychological condition.\u201d He said it is possible for someone suffering from a severe kind of sexual sadism to be insane or mentally ill, or, on the other hand, to commit a crime and be sane and not mentally ill.\nDr. James Merikangas, a neurologist and psychiatrist, conducted a 90-minute, face-to-face interview with defendant. His notes of the examination do not reflect all the topics they discussed. Merikangas did not talk to defendant about the murders in this case, and he did not videotape the interview. He has personally treated or evaluated approximately six persons with sexual sadism. Merikangas diagnosed defendant with sexual sadism and opined that defendant showed subtle signs of brain damage often associated with sexual sadism. He suggested that one subtle sign of brain damage was the existence of a palmomental reflex on the right side of defendant\u2019s lower lip. Merikangas acknowledged a study suggesting that over 10% of normal people have the soft neurological sign of the palmomental reflex, and that the reflex itself does not support a specific diagnosis. Merikangas also stated that defendant has motor impersistence of the tongue, which Merikangas believed correlates to poor impulse control. Merikangas acknowledged that defendant does not suffer from impulsivity all the time. As part of his evaluation of defendant, Merikangas conducted a partial mental status examination, and concluded that defendant was quite intact and normal.\nMerikangas also reviewed CT and MRI scans of defendant\u2019s brain. From an MRI scan, Merikangas discerned what he believed were two abnormalities: an enlarged ventricle on the right temporal lobe and enlarged sulci in the right posterior parietal lobe. He opined that the temporal lobe is the structure \u201cmost implicated in the scientific studies on sexual sadism.\u201d Merikangas described the enlarged sulci as spaces in the brain resulting from atrophic shrinkage. He could not say that such shrinkage had a specific effect, he simply considered it an abnormality. Merikangas further testified there was an enlarged space in the right frontal lobe at the top of the brain, and indicated there were subtle changes that the \u201caverage radiologist\u201d would not see as a problem. He acknowledged it is the job of radiologists to look for such abnormalities, that they \u201cperform CT examinations and MRI examinations all day long, all year long,\u201d and that they found no abnormalities at all in defendant. Merikangas conceded that nothing on any scans had a direct correlation to behavior in and of itself:\n\u201cPROSECUTOR: In other words, we could have ten people whose MRI looked identical to that [of defendant] and all ten of them could be not criminals or not mentally ill; is that correct?\nMERIKANGAS: That\u2019s possible, yes.\nPROSECUTOR: They could even be from all walks of life, correct?\nMERIKANGAS: They could be lawyers.\u201d\nMerikangas described defendant as being normal 95% of the time, but when his urges built up he would become extremely violent and would rape and murder. Afterward, defendant would be repulsed by the scene and would tend to clean up. On direct examination, Merikangas testified that defendant, during his \u201cfrenzy,\u201d would have little control and would act on his urges even \u201cif there was someone in the next room, *** without regard for anything else around him.\u201d On cross-examination, Merikangas conceded that, to his knowledge, defendant had never committed a sexually sadistic act in the middle of the street, or in a store, or anywhere in public. Merikangas opined that, on the day the crimes were committed, defendant lacked substantial capacity to conform his conduct to the requirements of the law, i.e., he was legally insane. Merikangas stated that defendant does not have to act on his sexual sadism all the time, but sometimes he does. Merikangas testified that the acts of sexual sadism are separate from the concealment of the crime. Merikangas acknowledged that setting the victims\u2019 bodies on fire was likely an act of concealment, not part of defendant\u2019s sexual sadism. Merikangas testified, \u201cAfter the sexual sadistic acts he takes measures to prevent being caught. That\u2019s self-preservation.\u201d\n\u201cPROSECUTOR: And obviously killing [the victims] prevents them from testifying against him; is that correct?\n;\u00a1c % ^\nMERIKANGAS: Yes. I mean, they can only testify through the autopsy that was performed and which gave the DNA which allowed him to be captured.\u201d\nMerikangas doubted that defendant would have committed the acts in this case if a police officer had been present. He acknowledged that he relied upon the findings of Drs. Obolsky and Kaplan, and that Obolsky had found defendant to be sane.\nDr. Park Dietz, a forensic psychiatrist, testified for the prosecution. Among his other credentials, Dietz has served on two committees involved in rewriting the Diagnostic and Statistical Manual of Mental Disorders (DSM-III and IV). One of his responsibilities was the section pertaining to sexual sadism and sexual masochism.\nDietz examined defendant November 7-9, 2005, from approximately 9 a.m. to 5 p.m. each day. Dietz noted that evaluations of defendant performed in 1987, 1994, 1997, 1998, 1999, and 2000 showed no major depression, no organic brain dysfunction, and no psychosis. Dietz stated those \u201cthree things related to mental disease or defect had never been observed.\u201d Dietz testified that defendant never had any neurological symptoms other than migraines, he has a normal IQ, has no history of head trauma, never showed abnormalities in mental status examinations, and had normal CT and MRI scans of the brain. In his opinion, there was no brain dysfunction of any significance. Dietz conducted a mental status examination of defendant and found him to be normal.\nIn his opinion, defendant does not suffer from any mental disease, defect or mental illness. Defendant has sexual and personality problems. Dietz said only a tiny percentage of sexual sadists actually commit crimes against strangers for sexual pleasure. Sexual sadists do whatever they wish about their impulses because their behavior is in their control. \u201c[W]hat is clear is the vast majority of sadists don\u2019t commit crimes because they have a conscience, they are law-abiding, they don\u2019t want to go to prison, they draw a line somewhere what they are willing to do for the sake of an orgasm.\u201d\nSpeaking to defendant\u2019s ability to control his behavior, Dietz observed:\n\u201cMr. Runge told me that he didn\u2019t assault the women in *** two cases because of the presence of a baby. And then he said he likes babies and did not want to take the mother away from the baby and knew that if he raped them he would probably kill them.\n* * *\nThat indicates that he is in control of what he is going to do. He already had the intent. He had already picked a target. He had made his plan. And yet something as simple as seeing a baby there allows him to stop himself and leave. That could not occur if he were in some frenzy as he begins to do this.\n* * *\nHe told me the presence of a baby was enough for him to be able to leave. It shows that he can stop. He said that after raping [his first victim, M.V], figuring out what to do next was the worst of his problems; that is he had no plan for what to do after he was done with the attack. Because he was in prison after the attack on [M.V] he had a lot of time to think about what happens when you let a torture victim live, you go to prison because they talk.\nIn 1995, he engaged in two unlawful sexual incidents that involved planning, isolation of victims and concealment. But then for nearly a year and a half he was involved in no known incidents. That year and a half corresponded to the time that he was under surveillance by law enforcement and knew it, which shows that when he knows that law enforcement might be following him, he can avoid having any incidents.\u201d\nDietz noted, \u201cNone of his unlawful sexual incidents was done in public.\u201d In Dietz\u2019s opinion, defendant freely chose to commit crimes to fulfill his sexual desires and he killed to conceal his rapes and escape the consequences.\nDr. Helen Mayberg, a clinical neurologist and professor of psychiatry and neurology, testified for the prosecution. In the opinion of Dr. Mayberg, the neurological exam performed by Dr. Merikangas was complete and normal and did not indicate the need for further neurological testing. Merikangas\u2019 second report gives an interpretation of behaviors, such as poor planning, as well as poor judgment and impulse control, that were never described as problems in the mental status exam, which was normal. Mayberg said impulse control problems are pervasive and will not be limited to any particular activity. If a person had a problem with impulsivity, one would expect to see elements of that in the mental status exam. Mayberg noted: \u201c[I]f you really think somebody\u2019s got [an] impulse control problem, there are a lot of standardized tests of that part of the frontal lobe to give you quantitative measures that that part of the brain isn\u2019t working. Those weren\u2019t ordered here, they weren\u2019t asked for, they weren\u2019t done. And there was a normal mental status exam.\u201d Mayberg testified that Merikangas\u2019 opinion that defendant had developed an abnormal sex drive was inconsistent with the mental status exam he performed. She stated that sexual sadism is not related to congenital brain abnormality.\nMayberg described defendant\u2019s CT and MRI scans as \u201ctotally normal.\u201d She stated, with respect to the CT scan: \u201cThere\u2019s no lesions, there\u2019s no small frontal lobes, everything is symmetric. The fluid spaces are where they are supposed to be, of the appropriate size. There\u2019s no evidence of an old stroke, an old hemorrhage, an old contusion. Like a scar. It\u2019s normal, healthy-looking brain.\u201d Mayberg had the same opinion after looking at MRI scans, concluding: \u201c[I]t\u2019s a normal study.\u201d After examining the CT and MRI images in question and comparing them to the conclusions made by Dr. Merikangas, Mayberg concluded that defendant had a normal neurological exam with Merikangas, defendant\u2019s MRI images showed no abnormalities of any kind, and there was nothing to support a link between a brain defect and defendant\u2019s behavior at the time of the crimes.\nFollowing the presentation of evidence at the guilt/ innocence phase of trial, the jury was instructed that it could find defendant not guilty of the murders, not guilty by reason of insanity, guilty but mentally ill, or guilty of the murders. After due deliberation, the jury rejected verdicts based upon psychological impairment, and found defendant guilty of the first-degree murders of Yolanda Gutierrez and Jessica Muniz.\nThereafter, the jury found defendant eligible for the death penalty on eight statutory grounds: (1) the murdered person, Jessica Muniz, was under 12 years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty; (2) Jessica Muniz was killed during the course of another felony; (3) the murder of Jessica Muniz was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (4) the murder of Jessica Muniz was intentional and involved the infliction of torture; (5) the murder of Yolanda Gutierrez was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (6) the murder of Yolanda Gutierrez was intentional and involved the infliction of torture; (7) Yolanda Gutierrez was killed during the course of another felony; and (8) defendant was convicted of murdering two or more persons.\nThe cause proceeded to the aggravation/mitigation phase of capital sentencing, commencing with evidence of the sexual assaults and murders defendant perpetrated against other victims.\nDefendant\u2019s first victim, M.V, went to school with defendant and was three years younger. On August 17, 1987, when M.V was 14 years old, defendant asked her to meet him to help a girl they both knew get marijuana out of her house. Defendant drove her to his house, motioned her to a room, and struck her over the head, causing her to fall. She was confused and disoriented. Defendant then jumped on her, ripped off her clothes, pinned her arms and put his penis in her mouth. He put a knife to her throat and said, \u201cDon\u2019t bite or I\u2019ll kill you.\u201d He handcuffed her hands behind her back and blindfolded her with a bandana. Defendant moved her to a bed, handcuffed her to it, and repeatedly ground his penis into her mouth as hard as he could. Defendant then stuffed her mouth and put duct tape over it, and bit her vagina and pubic area so hard that she cried. Defendant painfully cut her pubic hair. He penetrated her vagina, twisted her body, and inserted his penis into her backside, all while she was handcuffed to the bed. Defendant removed the gag and repeatedly rammed his penis into her mouth, and threatened her while holding a knife to her throat. He bit her legs and thighs.\nDefendant then handcuffed her to a railing in the living room and offered to take her home if she would drink a glass of Seagram\u2019s VO. After M.V finished most of the glass, defendant took her to the bathroom, where she vomited. He put her in the shower and penetrated her again. M.V lost consciousness and woke up later with all four limbs cuffed to the bed. She was gagged and, judging from the sunlight, she knew a few hours had passed. Defendant later handcuffed her to a chair and gave her cereal. When she picked up the chair and tried to escape, defendant held a knife to her throat and threatened her. He then cuffed her to the kitchen table, cut her hair with a knife, and began cutting the inside of her arms. Defendant smiled and said he liked it. Defendant bit her nipples so hard that she cried. He told her, \u201cshut up, that doesn\u2019t hurt.\u201d He then bit her neck, breasts, stomach, crotch, and legs. He penetrated her vaginally, then blindfolded her and put the gag back in. Then he recuffed her hands behind her back, put her face down on the sofa, and penetrated her vaginally from behind. He bit her buttocks, \u201clike wanting to rip off your skin.\u201d He squeezed her buttocks, twisted them, spread them apart, and repeatedly rammed his penis into her anus. Defendant then simultaneously penetrated her with a foreign object and his penis, alternating orifices with the object and his penis.\nDefendant moved her to another room, removed the gag, and penetrated her orally. M.V was on the floor with her hands handcuffed behind her back. She recalled: \u201cEvery bone in my body hurt.\u201d Then she saw defendant grab a fireplace poker, and she related what followed:\n\u201cHe shoved the handle of the fireplace poker in my anus. He rammed it in as hard as he could. *** [H]e started making it go up and down and over and over and out and in and I felt like my insides were getting ripped out. I kept crying. He kept doing it and doing it. I thought I was going to die because it hurt so bad. He just kept doing it, forcing it in farther and farther and farther.\u201d\nDefendant stopped when the phone rang. He gagged M.V, bound her ankles, stuck her inside a sleeping bag, and threw her in a crawl space. He told her not to do anything stupid or he would kill her; then he left.\nWith her hands still cuffed and her legs bound, she rolled and hopped until she eventually got outside. A neighbor who lived across the street saw M.V with her feet and hands tied. M.V was crying, shaking, hysterical, and had scarves tied around her mouth.\nThe police later determined that defendant\u2019s father and brother had gone on a trip for the weekend. As a result of the incident, defendant was convicted of aggravated criminal sexual assault, aggravated kidnapping and armed violence, and was subsequently sentenced to 14 years\u2019 imprisonment.\nWith respect to the seven victims who did not survive, the State introduced defendant\u2019s videotaped statements, along with evidence corroborating those statements.\nDefendant\u2019s statement regarding the murder of Stacey Frodel was published to the jury. In that statement, defendant related that his wife, Charlene, was a friend of Stacey and she suggested a threesome with Stacey and defendant. In January of 1995, Stacey came over to defendant\u2019s house and became drunk. According to defendant, Charlene became mad at Stacey and told defendant to kill her. While Stacey slept, defendant took a weight and hit Stacey on the head. Defendant then put Stacey\u2019s body on a plastic sheet and had vaginal sex with her. She was handcuffed. Defendant then had sex with Charlene. After a while, defendant looked over at Stacey and noticed she had not moved and was not breathing. The next day, defendant dismembered Stacey in the bathtub. Using a saw, he cut her hands, ankles, legs, arms, torso, and head, and placed the body parts in garbage bags. Thereafter, he and Charlene borrowed a car and drove toward Wisconsin, scattering body parts as they went.\nCorroboration was supplied by physical evidence and witness statements. Recovered bones showed evidence of cutting. Stacey\u2019s skull showed evidence of injury consistent with having been struck by a barbell weight. A sample of carpet taken from a bedroom in the townhouse where defendant and Charlene had lived contained traces of Stacey\u2019s blood. Dina Bartolini, who lived in that townhouse with defendant and Charlene, said that on January 3, 1995, Charlene indicated she was looking forward to Stacey coming over for a visit. When Stacey came over, they drank, and eventually Charlene told Dina that Stacey would be staying the night. The next day, defendant and Charlene borrowed Dina\u2019s car and used more than half a tank of gas. Dina said she had sex four or five times with defendant, including a threesome with Charlene, and including the day that Charlene went to the hospital to give birth.\nDefendant\u2019s two videotaped statements about the murders of Dzeneta (Janet) and Amela Pasanbegovic were published to the jury. In the second statement, defendant related that, in July of 1995, he told Estella Herrera, a coworker, that his wife was looking for help with her cleaning business. Although Charlene did not have a cleaning business, she eventually spoke to Estella and later told defendant she was going to meet people interested in the job. The real reason for Charlene to meet them was to see if they were willing to have a sexual foursome with Charlene and defendant. Charlene later indicated to defendant that the girls were really attractive.\nOn July 12, 1995, Charlene brought the Pasanbegovic sisters to the Runge home. When defendant suggested that they submit to sex for money, Janet Pasanbegovic got up and ran upstairs. Defendant caught her outside on the driveway and pulled her down by the hair, her head hitting the concrete driveway. He said he might have hit her again. In any event, Janet was rendered unconscious. Defendant then picked her up and brought her back into the house. When Amela saw Janet, Amela got up. Defendant then dropped Janet on the stairs, grabbed Amela, and took her into the weight room, where he cuffed her to a weight bar. Defendant also put Janet in the weight room. Defendant then went upstairs to see if the police were coming; Charlene went outside and cleaned up the blood outside and on the stairs. Inside, Janet vomited a black liquid. Defendant proceeded to have oral sex with Amela. Thereafter, he went upstairs to see what was going on, and then went back downstairs and had sex with Amela while her hands were cuffed behind her back. Defendant ejaculated on her stomach and wiped it off with her clothing. Amela asked about Janet, and defendant then took Janet and put her in a water-filled bathtub with the shower running. He left her there. When he later returned, she was under water. He pulled her up and discovered she was not breathing. Defendant informed Amela that her sister had drowned; he then choked Amela until she passed out. Thereafter, defendant dismembered both bodies with a saw and put them into 8 to 10 bags. After he ate dinner, he placed the bags in dumpsters in apartment complexes.\nIn defendant\u2019s first statement to police, he lied about the location of the murders and the dumpsters into which he deposited body parts because the murders took place in Du Page County and Du Page County authorities seemed more intent on pursuing the death penalty.\nEstella Herrera worked with the Pasanbegovic sisters before she worked with defendant. She learned that the sisters had been laid off and told defendant about them when he said his wife was looking for people to work for her. Defendant asked if they had family in the area. Estella was subsequently contacted by someone identifying herself as defendant\u2019s wife and Estella gave her Amela and Janet\u2019s phone number. Later, Estella received a phone call from the same person, who said she had gone to pick up the girls, but they were not there. The woman asked Estella to check and see if there was a problem. A neighbor and former coworker of the sisters, who saw them almost every day, never saw them after July 11, 1995. The sisters had mentioned they had a job offer, from a woman named Lisa (the name used by defendant\u2019s wife), who wanted them to stay overnight.\nDefendant\u2019s videotaped statement regarding the murder of Dorota (Dorothy) Dzibak was introduced as evidence. In the statement, defendant related that his 7-Up route took him along Touhy Avenue in Chicago. On the morning of January 10, 1997, defendant was on Touhy Avenue when he saw a \u201cFor Sale By Owner\u201d sign in front of a house. He stopped at the house and knocked on the door. A woman answered whom defendant considered attractive. Defendant said he was interested in looking at the house and she let him in. Defendant asked to see the furnace, which she indicated was working sporadically, and he pretended to know what was wrong with it. When she came over to look at it, defendant grabbed her by the back of the neck and pushed her to the floor. Defendant told her to be quiet if she wanted to see her daughter. He walked her into the bedroom and made her perform oral sex on him. Then he told her to he down and had vaginal sex with her. Afterward, he took her to the bathroom and directed her to wash her vaginal area, as he was concerned about the presence of semen. When she came out of the bathroom, he tied her hands behind her back. While she lay face down on a pillow on the bed, he leaned on the high part of her back and neck. When he got off of her, she was not moving or breathing. Defendant grabbed a match and threw it in the closet in an area with paper and clothing. He left after starting the fire.\nPhysical evidence corroborated aspects of defendant\u2019s statement. A heating and air conditioning technician reported the fire around 12:30 p.m. A firefighter, who subsequently entered the house, saw the fire coming from a bedroom closet, removed Dorothy from the bed, and turned her over to other firefighters. In the opinion of a former senior fire marshall, who investigated the scene, the fire was deliberately set and could have been started with a match to a piece of clothing in the closet.\nDr. Scott Denton reviewed the autopsy of Dorothy performed by Dr. Eupil Choi. Dorothy\u2019s body showed signs of extensive hemorrhages in the eyes, hemorrhages on the vocal cords and hypopharynx in the neck, and a loose joint in the hyoid bone, which are injuries consistent with manual strangulation. Pressure would have to be applied to the neck for 3\u00bd to 5 minutes to cause death by strangulation. There was no carbon monoxide or soot in her airways, which is consistent with death occurring before the fire. There were extensive areas of burning to her skin. In the opinion of Dr. Denton, death occurred by strangulation. Photographs of her left and right wrists revealed a red line consistent with some restraint having been placed on her wrists.\nDefendant gave a videotaped statement regarding the murder of Kazmiera Paruch. On March 14, 1997, as defendant was driving in the area of 4730 North Kenneth in Chicago, he saw a \u201cFor Sale By Owner\u201d sign in front of an apartment or condominium building. Defendant, wearing a 7-Up uniform, stopped and went inside to the unit listed. When a woman answered the door, defendant asked to look at the unit. The woman, Kazmiera Paruch, took defendant through the residence. At some point defendant grabbed her from behind and pulled her on the back of the neck down to the floor. Defendant drove her face into the floor and she bled profusely. Defendant stood her up and walked her to the bathroom. He then pulled off her panties and had vaginal sex with her. He ejaculated on her stomach and wiped it off with a Kleenex. She reached into a cabinet, pulled out an iron, and tried to swing it at him, but he blocked it with his arm and the iron flew toward the toilet. He noticed that her eyes had rolled back in her head and she was not breathing. Defendant said he poured a liquid on her body, lit a match, and left.\nA firefighter responding to a reported fire at the residence subsequently found the fire emanating from the bathroom and discovered Kazmiera\u2019s body therein. Her lower body was unclothed and an electric cord was across her neck. The firefighter noticed an iron on the bathroom floor.\nCarl Hopkins, a fire investigator, responded to the scene and found the severely burned victim with a wire cord wrapped around her neck and a large gash to the side of her neck. A pair of bloody jeans was on the floor of the bathroom, along with an iron. There was a great deal of blood spatter on the wall. The fire was deliberately set. An empty can of stripper was found on the floor of the closet, just outside the bathroom. A meat cleaver hanging on the wall of the kitchen was smeared with Kazmiera\u2019s blood.\nDr. Denton reviewed the autopsy of Kazmiera performed by Dr. Larry Sims. Approximately 70 to 80% of the body was burned. An incise wound and a smaller irregular wound were noted on the right side of Kazmiera\u2019s neck. The meat cleaver could have caused those injuries. There were multiple hemorrhages within the neck organs or tissues and the hyoid bone was fractured. Those injuries were consistent with a severe case of strangulation. On the left side of her brain there was a subarachnoid and subdural hemorrhage, as well as some bruising in the deeper brain tissue. Those injuries were consistent with blunt trauma to the head and could be consistent with being struck by an iron.\nIn addition to the evidence of defendant\u2019s seven murders, and eight sexual assaults, the State presented evidence of defendant\u2019s escape from DHS custody. On October 6, 2000, Rick Schroeder of DHS was transporting three DHS recipients, including defendant and inmate Conley, from Sheridan Correctional Facility to court in Cook County. Defendant and Conley were restrained with leg shackles and walking restraints. En route, Conley complained that he was sick. Once the vehicle stopped, Conley said \u201cHey, Rick,\u201d and when Schroeder turned around he was sprayed in the face and felt a sharp pain in his eye. He stumbled across the street, and when he regained some degree of vision, he noticed glass on the highway on the passenger side of the van. Defendant and Conley were gone. Schroeder was taken to the hospital and missed work for five weeks.\nSergeant Greg Bell of the Naperville police department received a dispatch about the escape and positioned his patrol car to monitor traffic. He saw a car fitting the description of the vehicle given in the dispatch, followed it, and eventually pulled the car over. The officers drew their weapons and defendant, a female, and a third person were arrested. The woman informed the police there was a gun in the car. The following items were recovered from the car: a Radio Shack plastic bag containing a 9mm pistol, a police scanner, batteries, an Illinois map; a white bag containing a can of pepper spray, two pairs of wrist shackles, and clothing; and a handcuff key and homemade knife. The DHS van had two pairs of unlocked leg shackles and the passenger side window had been completely shattered with an outward motion.\nDefendant told police that he and Conley began devising a plan to escape about six months in advance. Defendant had noticed that Illinois Department of Corrections guards no longer accompanied unarmed DHS guards in transporting individuals to and from court. Defendant befriended a DHS guard named Doris Harper. He described their relationship as romantic, but not sexual. Pursuant to the plan, Harper provided two cans of pepper spray inside the facility. Defendant also received a handcuff key from Harper via another DHS guard. Harper purchased clothing for defendant and had $2,000 cash to be used en route to Mexico after the escape. She also arranged for a rental car and was to follow the van to Cook County until the escape. Harper was then to have driven defendant and Conley away. Harper no longer worked at Sheridan by the time of the October escape. Phone records showed multiple calls from Sheridan to Harper\u2019s home from July 8 through October 5, 2000. The rear cargo area of Harper\u2019s car in Ottawa was loaded with clothing, duffel bags, a .25-caliber handgun, a holster, and ammunition; the car also contained a bolt cutter and 35 rounds of 9mm ammunition. Inside her home police found a notebook containing step-by-step directions from the Sheridan facility to the courthouse in Chicago.\nThe State\u2019s evidence in aggravation concluded with Ramon Rivera, Yolanda\u2019s father and Jessica\u2019s grandfather, reading a victim impact statement, in which he described the many positive attributes of Yolanda and Jessica, the loving relationship he had with them, the shock and horror he experienced upon learning of the circumstances of their deaths, and the loss he and his family felt.\nIn mitigation, Doris Harper testified that the escape from DHS custody was her idea, and defendant told her to pull over when Harper noticed a police vehicle behind them. Under cross-examination, Harper stated that she had become \u201cemotionally attached\u201d to defendant and, \u201chad circumstances been different,\u201d would have been \u201cintimate with\u201d him. The plan had been for her and the defendant to escape to Mexico and have a \u201clong term relationship.\u201d Harper described defendant as \u201cmannerly,\u201d \u201ccharming,\u201d and \u201csmart.\u201d She was equivocal when asked if she had been manipulated, stating: \u201cI really don\u2019t know. I can\u2019t say either way.\u201d She admitted that she gave defendant a handcuff key and mace to facilitate the escape and compiled an array of supplies\u2014 including weapons \u2014 in furtherance thereof.\nOther mitigation the jury heard was based primarily, as had been the insanity defense, upon expert testimony of defendant\u2019s deviant sexuality, mental disorders, and the disputed evidence of brain abnormality. Dr. Rabin, a psychologist who had not testified at trial, diagnosed defendant slightly differently than the other experts in that he did not find sufficient evidence to support a diagnosis of sexual sadism. Rabin testified to three psychological tests given to defendant. On a test that screens for brain damage, he found the results suggested neurological problems, but in the average range. The Rorschach test indicated chronic depression, inferiority feelings, impulsiveness to reduce stress, and a lack of understanding of how others view him. The MMPI tests of self perception indicated that defendant is impulsive, self-centered, uncaring about others, and lacks insight as to his own behavior. Rabin testified that defendant \u201cseems to get along adequately in a male situation, male society.\u201d His violence and aggression are \u201cpretty much *** aimed at women.\u201d Rabin stated there is no indication that defendant is \u201cany more violent or any more dangerous than anyone else would be who is located within the prison system.\u201d\nCorrectional officers testified that defendant had no infractions of jail rules in four years.\nDefendant\u2019s adoptive father, Richard Runge, testified on direct examination that he and his wife had adopted defendant as an infant. At age two, defendant lost consciousness briefly after a fall from a grocery cart, but no medical treatment was sought. When he was eight or nine years old, defendant was asked to leave a Catholic school because he was \u201cbothering\u201d girls. At age 11, defendant used a knife to cut up a table and his father\u2019s thermal underwear. Defendant told his parents he was \u201cjust playing,\u201d but they were concerned that he \u201cwasn\u2019t conversing *** well\u201d with them, and they sent him to counseling. Defendant was still unresponsive, but thereafter he went to summer camp, and when he returned he \u201cseemed to be fine.\u201d At age 14, defendant had sex with two girls his age. He was arrested, as the girls initially claimed they had been attacked, but later, at the police station, the girls said it was consensual, and defendant was allowed to go home. At age 15, defendant had consensual sex with a woman catering a wedding he attended with his parents. Mr. Runge testified that defendant was emotionally close to his adoptive mother. Defendant, who was then 17 years old, was home with his adoptive mother on the day she died of cancer. He carried her to the car so the attending nurse could drive her to the hospital. Mrs. Runge passed out a short distance from the house and the nurse drove back to the house. Defendant carried her back into the house, called his father to come home, and Mrs. Runge passed away before he could return. Defendant and his younger brother were there. Mr. Runge expressed continuing love for defendant, notwithstanding his actions. He noted that defendant fathered a child with Charlene when he was married to her.\nUnder cross-examination, Mr. Runge acknowledged that he had never previously told anyone about his son\u2019s fall from a grocery cart. He had never sought psychiatric help for his son. He \u201c[djidn\u2019t think he needed it.\u201d Mr. Runge testified that girls tended to gravitate to his son; he conceded that defendant could properly be characterized as a manipulative con artist.\nAfter hearing all the testimony in aggravation and mitigation, the jury returned a death penalty verdict.\nANALYSIS\nDefendant first contends that a biased juror (Juror A) served on his jury, denying him an impartial jury, and the trial court\u2019s failure to question other jurors about Juror A\u2019s activities denied defendant due process.\nTrial before a biased tribunal would deprive defendant of a substantial right and constitute structural error requiring reversal. People v. Rivera, 227 Ill. 2d 1, 20 (2007), aff\u2019d, 556 U.S. 148, 173 L. Ed. 2d 320, 129 S. Ct. 1446 (2009); Ross v. Oklahoma, 487 U.S. 81, 85, 101 L. Ed. 2d 80, 88, 108 S. Ct. 2273, 2277 (1988) (\u201cHad [a biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court\u2019s failure to remove [the juror] for cause, the sentence would have to be overturned\u201d). The standard for juror impartiality is whether the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant. Patton v. Yount, 467 U.S. 1025, 1035, 81 L. Ed. 2d 847, 856, 104 S. Ct. 2885, 2891 (1984). What is required for purposes of due process is \u201ca jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.\u201d Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 86, 102 S. Ct. 940, 946 (1982).\nIn the latter respect, questions of possible intra-jury influence or misconduct are treated differently from contamination by external influences. United States v. Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007); Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001), citing United States v. Williams-Davis, 90 F.3d 490, 501 (D.C. Cir. 1996). Thus, the presumption and hearing requirements announced in Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 656, 74 S. Ct. 450, 451 (1954) \u2014 to the extent they survive (compare People v. Ward, 371 Ill. App. 3d 382, 402-05 (2007), with People v. McLaurin, 382 Ill. App. 3d 644, 651-52 (2008), appeal allowed, 229 Ill. 2d 646 (2008) (table)) \u2014 have been interpreted so as to apply only in situations where \u201cextraneous materials are brought into the jury room\u201d or there is a \u201cthird-party contact\u201d with a juror or jurors. See United States v. Spano, 421 F.3d 599, 605 (7th Cir. 2005); Whitehead, 263 F.3d at 723, 725 (compiling cases); compare United States v. Vasquez-Ruiz, 502 F.3d 700, 705, 707 (7th Cir. 2007) (juror found a note in her notebook that could have been \u201cwritten by an outsider\u201d), with United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998) (an internal misconduct or bias case, quoted, approvingly, as follows in Vasquez-Ruiz: \u201cNot every allegation of jury misconduct is sufficiently substantial or sufficiently well substantiated to warrant putting the jurors on the spot in this fashion. *** Quizzing a juror, or perhaps all the jurors, in the middle of a trial is likely to unsettle the jury, and the judge is not required to do so unless there is a much stronger indication of bias or irregularity than there was here\u201d). Even in situations where some extraneous information is brought into the jury room, as in Spano, the Seventh Circuit still held that no inquiry of jurors was necessary where the trial judge had observed the jurors carefully and concluded that the likelihood of influence was \u201ctoo slight to warrant hauling the jurors before him for an examination.\u201d Spano, 421 F.3d at 605-06 (addressing posttrial interrogation). Indeed, reviewing courts have recognized that \u201csometimes less is more\u201d when it comes to judicial investigation of alleged juror misconduct; that a trial court, in exercising its investigatory discretion, must assess the particular circumstances before it to ascertain whether questioning individual jurors might compound the problem by drawing attention to it. United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004); United States v. Zizzo, 120 F.3d 1338, 1349 (7th Cir. 1997).\nIn any case, the question of whether jurors have been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial involves a determination that must rest in sound judicial discretion. People v. Whitehead, 169 Ill. 2d 355, 402 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998); Spano, 421 F.3d at 605-06; United States v. Hernandez, 330 F.3d 964, 990 (7th Cir. 2003) (a trial judge will always be in a better position than a court of review to assess the probable reactions of jurors in a case over which he or she has presided). As the court of appeals noted in United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000):\n\u201cDistrict court judges deal with jurors on a regular basis, and those judges are in the trenches when problems arise. The problems that present themselves are seldom clearly defined and a number of variables have to be considered. There are often no obviously right or wrong answers to the questions that arise. For all of these reasons, a trial judge is vested with broad discretion in responding to an allegation of jury misconduct, and that discretion is at its broadest when the allegation involves internal misconduct such as premature deliberations ***.\u201d\nAs the court of appeals aptly observed in Dominguez, \u201c[t]he whole point of discretion is that there is [a] range of options open, which means more than one choice is permissible. The broader the discretion, the greater the range of choice and the less room for reversal.\u201d Dominguez, 226 F.3d at 1247. The trial judge\u2019s discretion clearly extends to the initial decision of whether to interrogate jurors. Dominguez, 226 F.3d at 1246. The applicable standard of review, after the trial judge has made an appropriate inquiry, is an abuse of discretion standard, which recognizes that the trial court has wide discretion in deciding how to handle and respond to allegations of juror bias and misconduct that arise during a trial. United States v. Marti-Lon, 524 F.3d 295, 300 (1st Cir. 2008). After an inquiry, significant deference must be accorded the judgment of the trial judge on the question of bias because he or she can appraise the jurors face to face (Marti-Lon, 524 F.3d at 300), something a court of review obviously cannot do. See also United States v. Nazzaro, 889 F.2d 1158, 1167 (1st Cir. 1989) (\u201cthe law wisely affords the trier \u2014 who is on the front lines, sensitive to the nuances of the case before him \u2014 substantial discretion in determining\u201d possible prejudicial influence). That determination requires \u201can inference, from the facts and circumstances, that a fair trial had or had not been interfered with.\u201d Whitehead, 169 Ill. 2d at 402. The most controlling facts or circumstances involve the character and nature of the allegedly prejudicial information or acts. Whitehead, 169 Ill. 2d at 402. Each case must be determined on its own facts and circumstances. Whitehead, 169 Ill. 2d at 402.\nRecognizing that the processes of trial and deliberation take place in the real world, rather than a wholly manageable environment, the Supreme Court has acknowledged that \u201cdue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.\u201d Smith, 455 U.S. at 217, 71 L. Ed. 2d at 86, 102 S. Ct. at 946.\nWith these principles in mind, we turn to the facts and circumstances of this case, beginning with the voir dire of Juror A. During jury selection, Juror A was initially questioned by the trial court, counsel for defendant, and the State.\n\u201cTHE COURT: [Juror A], as I said in the courtroom, if the Defendant is found guilty of the offenses charged in this case, the State will seek the death penalty in a separate proceeding.\n[JUROR A]: Yes.\nTHE COURT: Along those lines, I want to ask you do you have any scruples, by which I mean strong feelings by reason of religion, morals or conscience against the imposition of the death penalty?\n[JUROR A]: No.\nTHE COURT: Would your beliefs about the death penalty prevent you or substantially impair your ability to reach a fair and impartial decision as to whether the Defendant is guilty?\n[JUROR A]: No, sir.\nTHE COURT: Do you have strong feelings in favor of the death penalty?\n[JUROR A]: Not necessarily.\nTHE COURT: Are your beliefs about that such that regardless of the facts of the case or the background of the Defendant, but if the Defendant were found guilty as charged, you would automatically vote to impose the death penalty and not consider signing a verdict which would result in a sentence of imprisonment?\n[JUROR A]: No.\n* *\nTHE COURT: All right. Also, the defense of insanity may be presented in this case. The law provides a Defendant is not criminally responsible for his conduct if as a result of a mental disease or defect he lacks the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Do you have any feelings or view points concerning the defense of insanity in a criminal case?\n[JUROR A]: No.\nTHE COURT: If the evidence of insanity were presented, would you consider it together with all the other evidence in the case?\n[JUROR A]: Absolutely.\nTHE COURT: Have you or anyone close to you had any experience with a psychiatrist or a psychologist?\n[JUROR A]: Yes.\nTHE COURT: Tell me briefly and generally what happened and who was involved with that?\n[JUROR A]: I\u2019ve seen psychiatrists before.\nTHE COURT: Are you still seeing one?\n[JUROR A]: No.\nTHE COURT: How long ago was it you saw one?\n[JUROR A]: About three years ago.\nTHE COURT: Would those experiences in any way affect your ability to consider such testimony of that type of a witness?\n[JUROR A]: Not at all.\nTHE COURT: Mr. Murray [assistant State\u2019s Attorney], any questions?\nMR. MURRAY: Just regarding the question on the experience with a psychiatrist or psychologist.\nMR. MURRAY: That wouldn\u2019t cause you, because the testimony is presented on that topic of insanity, that wouldn\u2019t cause you automatically to vote against the death penalty, would it?\n[JUROR A]: No.\nMR. MURRAY: You still would consider that as part of all the testimony presented and weigh it out against everything else?\n[JUROR A]: Yes, definitely.\n* * *\nMR. JORDAN [defense counsel]: Would you consider a person suffering \u2014 the fact that a person suffers from a mental illness a mitigating factor?\n[JUROR A]: Yes.\nMR. JORDAN: Okay. And would you be able to consider that mitigating factor along with any other aggravating or mitigating factors that may be presented to you at the trial?\n[JUROR A]: Yes, sir.\nMR. JORDAN: Do you think that a person could be guilty but still suffer from a mental illness?\n[JUROR A]: Absolutely.\u201d\nSubsequent questioning by the court revealed that Juror A had a wife and young child, he worked as a drywall finisher, and he had been the victim of a \u201cminor theft.\u201d After Juror A was selected as a juror, he approached the court to apprise the court of the financial hardship he would suffer during his service as a juror:\n\u201c[JUROR A]: I want to mention that, I mean, you know, this process being what it is, little intimidating, and if I don\u2019t go to work, I don\u2019t get paid. I\u2019m the only provider in my household. My wife is employed. It is a meager income. Kind of a financial hardship. I know it is [a] civic duty.\u201d\nThe court told Juror A, \u201cthere\u2019s probably a lot people in your situation,\u201d and afforded counsel for both sides the opportunity to question Juror A, an opportunity that both declined. Juror A was sent out of the room and the court asked counsel, \u201cWhat do you want to do?\u201d Both sides indicated they wanted to keep Juror A on the jury. When the court informed Juror A of the decision, he replied simply, \u201cOkay.\u201d The court told Juror A it would inform him when the jury would not convene for full days so he might \u201csneak in a job here or there.\u201d Juror A expressed his appreciation. The court concluded: \u201cWe\u2019ll do the best we can. We don\u2019t want to hold you up any longer than we need to. Thank you for serving, and we\u2019ll see you that next date.\u201d Juror A responded, \u201cAll right, thank you.\u201d\nIn the course of the first several days of trial, during recesses and adjournments, the court repeatedly instructed the jurors not discuss the case among themselves or with others.\nOn the fifth day of the nine-day guilt/innocence phase of trial, at the conclusion of the prosecutor\u2019s case-in-chief, the court received a communication from Juror B expressing concern over Juror A\u2019s behavior. The court had Juror B brought to chambers so that she might air her concerns. At that time, the following colloquy ensued:\n\u201cTHE COURT: You brought something to my deputy\u2019s attention.\n[JUROR B]: Yes. My heart\u2019s beating so fast. I have a couple concerns over one of the other jurors. Two I might just be hypersensitive about, overreactive, and the other I don\u2019t think I am.\nThe first two occurred on Friday, once toward the end of the case. I can\u2019t \u2014 I wish I had written it down, but I didn\u2019t. The prosecution had made some points, I think this was cross-examination. It was something that the defense was trying to go forward for. The man behind me was like yes. Yes, yeah. Like cheering out loud vocally. I thought it was real\u2014\nTHE COURT: In the courtroom?\n[JUROR B]: In the courtroom. I was aghast. I thought it was horribly inappropriate. I think you had gone back to have a discussion, maybe came back out. I can\u2019t remember exactly when it was. It was a monumental point and the prosecution said something. It kind of disproved whatever the defense was trying to push. He was like yes, yeah. I thought it was really inappropriate.\nThen when we were back in the room that day, too. We had had like an extra break. He had his cell phone out. Kind of made a beeping noise and he was like oh, check that later. I\u2019m sure that had nothing to do with the case. I\u2019m sure he was checking to see if he had a message from his wife or something like that. But we were told not to use our cell phones.\nMaybe I\u2019m being overreactive about those. I just take things really seriously. But this morning, no one\u2019s talking about the case. But one of the girls said she\u2019s reviewing her notes and she said I don\u2019t know if I can ask this question. But does anyone know if that one term was called transferrance [sic] like if you touch something. And then someone said yeah, that\u2019s what it\u2019s called. He said something like yeah, that\u2019s what it\u2019s called, blah, blah, blah.\nThen another girl started talking about the show that she had seen over the weekend. On television. It was about a babysitter that was watching a baby. The baby died. Had gone to court. And I said I think I saw that on 20/20 couple years ago. So bunch of people started chit-chatting about she\u2019d shaken the baby real hard and baby died. Goes on to say but the mother was on cocaine and boyfriend and mother were doing cocaine, blah, blah, blah. She gets done with the story.\nAnd then this man proceeded to say well, as assistant State\u2019s Attorney, if that\u2019s the wrong term I\u2019m sorry, Milan said the other day in court. He repeated an exact quote that after you had come back here for discussion, you came back out and told us to disregard. I have it. I can tell you what it was, but I crossed it out in my notes.\nTHE COURT: Okay. I\u2019ll ask you to go back to the jury-room, please don\u2019t discuss anything about what you said here with anyone.\n[JUROR B]: I don\u2019t want them to think it was me though.\u201d\nWhen the juror exited chambers, defense counsel opined that the jurors were \u201cobviously talking about the facts of the case before defense has even had a chance to present any evidence.\u201d Defense counsel asked the court to declare a mistrial. The State responded: \u201c[Juror B] said that people were not discussing the case. Whatever the comment was that the other jurors said yes to was after [a] sidebar, so it was not the comment that was objected to, it was some other piece of testimony.\u201d The prosecutor further stated that the discussion about transference did not appear to be \u201ca wholesale discussion of facts and coming to conclusions before the jury\u2019s heard the end of all of the evidence.\u201d The prosecutor asked that the court again admonish the jurors not to discuss the case amongst themselves. Defense counsel rejoined: \u201cObviously we have one juror who if his mind is not made up, is certainly he\u2019s already evidencing acute prejudice towards the defense by his comments and by his actions. We would ask that that particular juror *** be excused.\u201d The prosecutor stated his belief that a juror \u201csaying yes like that\u201d is not part of a discussion with other jurors and is \u201cnot conclusive evidence he\u2019s made up his mind.\u201d The prosecutor described Juror A\u2019s conduct as at most \u201cbad behavior\u201d which did not warrant his removal. The court denied the defense motion for mistrial and stated it would make a determination on the motion to remove Juror A at a later time. The jurors were subsequently admonished not to discuss the case among themselves. Neither Juror A nor any other juror was questioned concerning his or her conduct.\nThe next day, during a recess in the midst of the presentation of defendant\u2019s case, one of defendant\u2019s attorneys asked to \u201cspeak to an incident that just happened in the jury box.\u201d Defense counsel Thompson informed the court:\n\u201c[Juror A], the same juror that was complained of by [Juror B], when you overruled the State\u2019s last objection and allowed the doctor to answer, he threw the notes he was writing against the wall.\nYour Honor, at this time given the display of contempt for the evidence that we\u2019re presenting, and to your rulings, along with the complaint of another juror that he is talking about the case, that he is openly cheering in the jury box for the prosecution\u2019s case before the end of the evidence, we would again request that he be removed from the jury.\u201d\nThe court thereafter conducted an in camera examination of Juror A, as to the note-throwing incident only:\n\u201cTHE COURT: [Juror A], have a seat. I observed you in the jury box. Are you having difficulty with the case of some kind? What\u2019s happening?\nJUROR A: Hum. Well, yeah, I have some difficulty, but I have my own opinion and things. And sometimes as a lot of people in there just stated, definitions that we would like to obtain or jot down, there is just no way you\u2019re going to be able to write that stuff down in the time we\u2019re given, so I set my notepad down and gave up.\nTHE COURT: Is that why you did that?\nJUROR A: Yep, that\u2019s why I did that.\nTHE COURT: Did you formulate any opinions about this case at all, whether or not\u2014\nJUROR A: No final opinions because I don\u2019t have all the evidence and facts, yet.\nTHE COURT: I told earlier, at the beginning of the case, the defendant is presumed to be innocent of the charge against him.\nJUROR A: Absolutely.\nTHE COURT: You still understand that?\nJUROR A: Yes, I do.\nTHE COURT: Do you have any problem being able to follow that rule of law basically?\nJUROR A: No, sir. No.\nTHE COURT: Okay. Do you have any opinions as to whether or not the defendant\u2019s guilty or innocent of the charge against him at the present time?\nJUROR A: Not completely, no.\nTHE COURT: What do you mean by that?\nJUROR A: Well, I don\u2019t have all the facts.\nTHE COURT: Okay. Is there any point, based upon your inability to maybe take notes as fast as maybe you would like to\u2014\nJUROR A: It just gets frustrating, your Honor, at some point, trying to ascertain this information and, you know, upon entering the jury room just now, a couple people asked, did anybody get that definition, did anybody get it and we all agreed that a lot of us would like to that [sic] information, but were unable to write it down in time and so, you know, I take that information that I think is pertinent to this investigation and try to keep that for myself to read.\nTHE COURT: Is there anything about what\u2019s happened with the trial so far that would in any way prevent you from giving either side in this case a fair trial.\nJUROR A: No.\nTHE COURT: I\u2019m going to ask you to go back to the jury room. Please don\u2019t discuss anything we said back here, as well. Thank you.\nJUROR A: Yes, sir.\u201d\nAfter Juror A left the room, the court asked: \u201cAnybody want to say anything?\u201d In response, one of defendant\u2019s attorneys equated Juror A\u2019s conduct to contempt of court and asked that he be excused. Another defense attorney observed:\n\u201c[T]his also doesn\u2019t answer, you know, the problem that was expressed yesterday, that he is voicing agreement with the prosecution\u2019s case, that he is in the back attempting to talk about the case. He has essentially, and given, he has started to form opinions. Now, whether or not there is \u2014 I guess there is a philosophical or semantic difference between starting to form opinions and as opposed to having an opinion. But he has essentially started his deliberation process, which he is not supposed to do. Given all of these problems, this will affect the entire deliberation process, his ability to interact with other jurors. And frankly, Judge, although we believe that one can argue that there is a semantic difference, I would argue legally, in fact, there is no difference and he has made up his mind.\u201d\nThe prosecutor responded, \u201cIt\u2019s not a semantic difference,\u201d noting Juror A\u2019s explanation that he was frustrated because he could not write down definitions fast enough \u201cso he could be able to read them and use them later on in his deliberations.\u201d Moreover, the prosecutor observed: \u201cHe said to you that he had not made up his mind. He had not heard all the evidence. That [is] what we ask all jurors to do, to contemplate the evidence and not to make up their minds until they do that.\u201d The prosecutor concluded that Juror A was still taking notes on the evidence and should be allowed to continue serving as a juror.\nThe court decided that Juror A would continue as a juror, stating:\n\u201cI take him at his word from what he said right now, the reason why he did what he did is out of frustration. Our reporter asked you to slow down a few times also, Mr. Wolf [defense counsel].\n% }f\u00ed 5-i\nThere is nothing unusual about that and I don\u2019t see any reason by what he told me or my inclination that he\u2019s not going to be able to give both sides in this case a fair trial. That\u2019s all I want. I don\u2019t want to do this case over again because of something a juror did or [did] not do properly in the course toward reaching a verdict in this case. So I firmly believe that my decision is the right one here.\u201d\nJuror A subsequently signed the guilty verdict in this case and the death penalty eligibility verdict.\nOn the sixth day of death penalty proceedings, before any mitigation had been presented, Juror B sent the judge a note dated February 22, 2006. The note, which purported to recite statements made by Juror A and others, read as follows:\n\u201cAfternoon\nEvery day that we\u2019re out there is one more day the Runge [sic] gets to breathe. Has anyone noticed that Runge is the last to get up when they say All rise for the jury\u2014 not helping him too much there\nMorning\nMany comments referring to the immunity of Charlene [Runge] and how fucked up it is \u2014 My comment: he was upset. He does not want someone named Lisa [Charlene Runge\u2019s alias] calling his house.\nQuestion from other juror \u2014 Why didn\u2019t you raise your hand when he asked if you read that newspaper that would have gotten you off...\nComment from other juror \u2014 You have back ups \u2014 there are plenty of backups (jurors).\nMaybe I\u2019ll get kicked off and use Jay\u2019s tickets to Ireland \u2014 My comment: a joke.\nMany comments about Paul Runge being present during jury selection and knowing his personal information including family information.\nComment from other juror \u2014 You should talk to Donna/ Ask Donna these questions.\u201d\nJuror B was called into chambers and questioned about the note:\n\u201cTHE COURT: Come in, have a seat. Donna [apparently the bailiff] handed me this note; was that from you?\n[JUROR B]: Yes.\nTHE COURT: Can you tell me about it?\n% # ifc\n[JUROR B]: I wrote those remarks that were made yesterday; I labeled them afternoon and morning so that you would know when they were made, and those remarks that were made in the jury room by a juror.\nTHE COURT: One?\n[JUROR B]: One juror.\nTHE COURT: And that\u2019s [Juror A]?\n[JUROR B]: Yes.\nTHE COURT: Okay.\n[JUROR B]: It\u2019s the same juror as the one that I had spoken to you about before.\nTHE COURT: Okay.\n[JUROR B]: I wasn\u2019t sure what the appropriate thing\u2014\nTHE COURT: You\u2019ve labeled some things on here \u2018my comments\u2019 or whatever.\n[JUROR B]: When I showed it to Donna this morning, she said \u2014 well, he was upset, because I wrote, I tried to write it as directly as he stated it, and then I put that was my synopsis comment; that when he made several comments about \u2014 can they hear me?\nTHE COURT: No.\n[JUROR B]: \u2014about the immunity of the wife, and that\u2019s his language on there; it\u2019s not mine. And he was very loud and he was semi-irate. He was definitely, his voice was loud and he was angry. And a lot of the other jurors were all kind of looking at each other, with eyes, like, what should we do, kind of. And I said to the gentleman to my right, I said, \u2018I\u2019m very uncomfortable with this\u2019.\nTHE COURT: What\u2019s the comment on here from another juror, \u2018You should talk to Donna or ask Donna these questions\u2019? What\u2019s that about?\n[JUROR B]: He then was saying his \u2014 the basic summary of his comments about the immunity were that, from what I would say, that he was concerned that this woman was just going to show up at his house some day. So I think his anger was kind of from the perspective of a father and a husband, maybe, and he was kind of channeling that.\nTHE COURT: Who are you saying this about?\n[JUROR B]: [Juror A]. Because he was saying, \u2018I don\u2019t want my wife to get a call one day from someone named Lisa.\u2019 And he went on to say, he was going on and on about, \u2018How come Paul Runge was in the room the day that the jurors were selected; he knows who I am; he knows where I live; he knows who the people in my family are.\u2019 That\u2019s when he asked these questions and then someone said, \u2018Well, we think maybe he gets a say in who is in on it\u2019; and someone else says, \u2018Well, he gets a fair trial\u2019; and then another juror said, \u2018Well, why don\u2019t you talk to Donna about this, you know, all these questions.\u2019\nTHE COURT: Okay. Does anybody want to [discuss] with [Juror B] anything about the \u2014 [.]\u201d\nAt that point, Juror B interrupted, apologizing, apparently, for her syntax, as English was her second language. She then continued:\n\u201cI didn\u2019t write this, you know, for someone to take a deliberate action. Everyone really likes him. He\u2019s a really nice person. He\u2019s very witty. He\u2019s very clever. He keeps \u2014 he kind of keeps the morale going well, so everyone really, really likes him; but my main concerns were that these kinds of comments would come out when the trial is over and the people talk to their family and friends, what were the jurors like. I think if a comment like that came out, like every day that we\u2019re in trial is another day that he gets to breathe; I just would have concerns.\nTHE COURT: Is there anything about whatever he may have said that would prevent you from being able to give Mr. Runge and the State a fair hearing from this point?\n[JUROR B]: Absolutely not. No. Then this morning, after I spoke with Donna, because my conclusion this morning was that I would just write these up and show it to Donna and take her advice on what to do; one juror said, T wonder if we\u2019ll get to see Charlene\u2019; and he said, \u2018I wonder if I\u2019ll ever get to see her on my front porch.\u2019 And then he said \u2014 I had just come out of the bathroom and I heard him say something about lyrics, like he was going to write a song or something; then he started singing \u2018Charlene, you\u2019re so mean, something, something about a spleen.\u2019 So I think he goes for like a comedy relief or something.\nBut I just wanted to \u2014 I would hate for, after the trial for this to come to your attention and for you to think, why didn\u2019t she tell me, if she told me about something earlier in the trial.\nTHE COURT: I\u2019m going to ask you to go back to the jury room and don\u2019t discuss anything we said back here.\n[JUROR B]: No. They think that I\u2019m here because I needed a letter for my Thursday night class, but I don\u2019t.\u201d\nAfter Juror B departed, one of defendant\u2019s attorneys stated, \u201cI think we have to talk to the juror in question.\u201d Another defense attorney remarked: \u201cMy only feeling about that, judge, is I just found his other answer about throwing the notebook completely incredible.\u201d The court responded, \u201cWe\u2019re past that. I remember what happened before. Let\u2019s deal with what we have here before us right now.\u201d The court decided: \u201cI\u2019m going to bring it in here; I\u2019m going to put it to him, if I\u2019m not satisfied with his answers, I\u2019m going to excuse him and keep him separated from the rest of the jurors until that time, until that decision is made. If I do excuse him, I\u2019ll have the deputy go in there with him to get him out of there then.\u201d\nWhen Juror A was brought into chambers, the following colloquy ensued:\n\u201cTHE COURT: How are you doing?\n[JUROR A]: Fine.\nTHE COURT: Sorry we have to bring you back here again. I just wanted to ask you, are you having a rough time with this case at all?\n[JUROR A]: I have some issues from time to time.\nTHE COURT: What about, basically, if you can tell me?\n[JUROR A]: Well, if I\u2019m allowed to, yeah.\nTHE COURT: Yeah, whatever you want.\n[JUROR A]: I was uncomfortable with the fact that, you know, Charlene was given immunity, is out there in the world. I don\u2019t know this person, you know. It sounds dangerous to me. I don\u2019t like that our names were mentioned on the first day and people know what my family consists of; and I think some information was divulged at that point that was unnecessary. But other than that, no; I really don\u2019t have a problem. I mean, the case being what it is, you know, it\u2019s kind of rough, yeah, but I\u2019m okay with it.\nTHE COURT: How about the fact that \u2014 is there anything about the type of sentence involved in this case, in other words, you think it should be \u2014 we should be done with all this by now; you know what I mean?\n[JUROR A]: Well, I don\u2019t understand your world, you know. I come from the drywall industry and I\u2019m falling into this thing and I\u2019m starting to realize, I know there is a lot of detail that has to be covered, it feels like it\u2019s taking a long time; and it costs me $250 a day, every day I\u2019m sitting here, and it\u2019s been a month without a paycheck. I indicated to you on day one that that was going to be kind of a problem with me, but I\u2019ve come this far so, you know, it seems like it\u2019s taking a long time, yeah.\nTHE COURT: Have you talked about anything, any of these issues, like Charlene, with any of the other jurors or anything like that?\n[JUROR A]: I think everybody feels about the same way about that. I think it\u2019s a little strange, you know, but it is what it is and it\u2019s done.\nTHE COURT: What do you think about the possible \u2014 I mean, do you think that Mr. Runge should be getting the death penalty in this case?\n[JUROR A]: I do.\u201d\nShortly thereafter, Juror A was taken from chambers and the court asked counsel for comments:\n\u201cMR. WOLF [defense counsel]: Judge, at this time it is our position, given his answers, given that this is the same juror who before had started discussing the case, or there were at least allegations, and this is the same juror who threw down his pad\u2014\nTHE COURT: Get to the point, Mr. Wolf.\nMR. WOLF: We would be asking at this point in time to vacate the jury\u2019s verdicts finding of guilty, as well as the verdict of eligibility, given that he has \u2014 Judge, we\u2019re essentially saying he\u2019s been dishonest through this entire process. It\u2019s not enough to discharge him at this point in time; the jury verdict must be vacated and a mistrial and everything must be declared.\u201d\nThe State responded that neither Juror A\u2019s previous comments nor his conduct warranted either vacating the trial verdicts or declaring a mistrial.\nThe court decided to excuse Juror A and replace him with an alternate. The court denied the defense motions. The judge allowed Wolfs request to speak further, upon the condition that he had something \u201cother than what you\u2019ve already said.\u201d Wolf asked that the court question individual jurors \u201cto find out how long [Juror A\u2019s] feelings have been expressed in any appropriate or inappropriate way, so that we can find out if the eligibility verdict has been tainted or the guilt/innocence verdict has been tainted.\u201d The court denied that request, noting, \u201cGiven the consciousness [sic] of our foreperson bringing this to our attention and her detail as to when this happened, and my other questioning of jurors on other dates, I don\u2019t think that is necessary at this time. If I did, I would certainly do that.\u201d The court also denied defense counsel\u2019s request to inquire if any other jurors had made up their minds on the appropriateness of the death penalty.\nWhen the jury returned to the courtroom, after Juror A had been replaced, the court addressed the jury:\n\u201cTHE COURT: Ladies and gentlemen of the jury, I just wanted to mention one other thing to you. As I\u2019ve said earlier in this case, it is essential that you not arrive at any decisions or conclusions of any kind until you have heard all the evidence, the arguments of the attorneys, and the law that applies to this case and have begun your deliberations in the privacy of your jury room.\nAre all of you still able to comply with that Court directive that I gave you?\nTHE JURORS: Yes.\nTHE COURT: If you are not able to comply with that directive, please raise your hand.\u201d\nThe record indicates that no hands were raised by any members of the jury, and the trial proceeded. An alternate juror subsequently replaced Juror A. The cause proceeded through the presentation of evidence and argument to deliberations on the penalty to be imposed. The jury ultimately concluded that death was the appropriate penalty.\nWe return to defendant\u2019s contention that reversal is required due to Juror A\u2019s service on the jury and the trial court\u2019s failure to question other jurors about Juror A\u2019s activities.\nWe note, initially, that the pertinent facts and circumstances support the trial court\u2019s determination that Juror A be allowed to continue as a juror through the guilt/innocence and eligibility phases of the trial. The trial court, who had the best opportunity to view Juror A\u2019s demeanor and assess his credibility, questioned Juror A three times before finally excusing him. The court\u2019s observation of Juror A throughout the trial was supplemented by Juror B\u2019s reports of his activity.\nThe court first questioned Juror A in voir dire, as did the prosecutor and defense counsel. What emerged from that questioning was Juror A\u2019s belief that he could be a fair and impartial juror \u2014 notwithstanding his concerns about the projected length of the trial \u2014 in that he did not have any strong beliefs for or against the death penalty, he would \u201cabsolutely\u201d consider evidence supporting an insanity defense, and he would further consider any mental illness defendant was suffering to be a mitigating factor in sentencing. Juror A acknowledged that he himself had utilized the services of psychiatrists, and those experiences would not affect his ability to consider psychiatric testimony. Obviously, defense counsel\u2019s observations of Juror A during voir dire led to the conclusion that Juror A could be a fair and impartial juror.\nThe next time the court questioned Juror A was after the alleged \u201cnote-throwing\u201d incident, which occurred subsequent to Juror B\u2019s initial report of Juror A \u201ccheering,\u201d checking his cell phone, responding to another juror\u2019s inquiry about the term, \u201ctransference,\u201d and responding to yet another juror\u2019s story about a television show with a quote from the assistant State\u2019s Attorney in this case regarding a matter Juror B said they were instructed to disregard. Although the court did not ask Juror A directly about Juror B\u2019s prior accusations \u2014 only the first of which would have suggested that Juror A had a biased view of the case \u2014 the court did inquire of Juror A whether he had formed any opinions, thus touching indirectly on the issue of impartiality. Juror A responded, appropriately, that he had \u201cno final opinions\u201d because he did not have \u201call the evidence and facts.\u201d He stated that he \u201cabsolutely\u201d agreed with the proposition that defendant was presumed innocent of the charges against him, and that he had no opinions as to whether defendant was guilty or innocent at that time because, again, he did not have all the facts. He insisted there was nothing that had happened in the course of the trial to prevent him from giving either side a fair trial. Juror A twice explained that he \u201cset [his] notepad down and gave up\u201d because he could not take notes as fast as the defense testimony was coming from the witness stand. He stated there were others in the jury who also had problems keeping up. The court subsequently observed, after Juror A had left the room, that the court reporter had asked defense counsel to slow down as well.\nWe would observe that Juror A must have realized at that juncture that certain negative answers to the court\u2019s questions would likely have gotten him off the jury and returned him to gainful employment if that was his desire. Yet, he did not follow that course. His diligence in trying to take notes during the defendant\u2019s case seems to confirm his response to the court that he had formed \u201cno final opinions.\u201d If he had, what would be the point of taking notes? Moreover, there is no reason to believe that Juror A was less than candid in his earlier responses to the court\u2019s questions, inasmuch as his candor was evident \u2014 admitting that he had formed a premature opinion on the death penalty \u2014 when he was questioned during the sentencing phase of trial. Finally, the court had the opportunity to observe Juror A during its guilt-phase questioning and obviously believed he was impartial and qualified to continue as a juror.\nAlthough, after Juror B\u2019s final report from the jury room, and the court\u2019s subsequent questioning of Juror A, the court later determined that Juror A had by that time inappropriately formed a premature opinion on the suitability of death as punishment in this case, we see in this record insufficient facts and circumstances to overturn the circuit court\u2019s assessment that Juror A was qualified to serve as a juror through the guilt/innocence and eligibility phases of the trial. Since Juror A was replaced by an alternate juror at the sentencing phase of the trial, his participation there is not an issue.\nWe find support for our conclusion in the Eleventh Circuit Court of Appeals\u2019 decision in United States v. Harris, 908 F.2d 728 (11th Cir. 1990)\u2014quoted approvingly in Dominguez\u2014and the Ninth Circuit\u2019s disposition in Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004).\nIn Harris, the defendants alleged that a juror sitting in the jury box said \u201cdo it to him good\u201d as a witness for the prosecution was taking the stand to testify. Harris, 908 F.2d at 733. The district court chose not to investigate the remark. Harris, 908 F.2d at 734. On appeal, the court of appeals held that the trial court had not abused its discretion in declining to investigate because the meaning of the remark was ambiguous and the district court was in a better position to judge whether the \u201cstatement *** reflect[ed] serious juror contamination.\u201d Harris, 908 F.2d at 734.\nWe believe Juror B\u2019s report of Juror A\u2019s \u201ccheering\u201d is at least as ambiguous, as to intent and context, as the remark attributed to the juror in Harris. Significantly, Juror B reported that Juror A was \u201ccheering out loud vocally\u201d when \u201cthe prosecution had made some points.\u201d If that were true, the parties and the trial judge would have heard it if they were in the courtroom. At one point during her report, Juror B told the trial court, \u201cI think you had gone back to have a discussion, maybe came back out. I can\u2019t remember exactly when it was.\u201d Of course, if the parties and the trial judge were out of the courtroom, the \u201ccheering\u201d could hardly have occurred contemporaneously with \u201ca monumental point\u201d in the prosecution\u2019s cross-examination, as Juror B represented. In any event, unlike the district court in Harris, the trial court in this case did subsequently question Juror A to determine whether he could give defendant a fair trial and decide the case solely on the evidence presented. Juror A indicated he could. Juror A in fact stated that he had formed no final opinions because he had not heard all the evidence. The trial judge, who had the advantage of observing Juror A\u2019s manner and demeanor during questioning, was satisfied that Juror A could impartially judge defendant\u2019s guilt or innocence.\nWe believe Davis also supports the actions taken by the trial judge and our disposition on this issue. In Davis, a death penalty case, the trial court received a note from the jury foreman, R.C. Schwartz, before deliberations had begun. The note read in pertinent part:\n\u201cQuestion One: If we cannot come to unanimous agreement on the penalty phase for the defendant, what will happen next?\nQuestion Two: If we decide on the gas chamber as penalty, is there any reason that we should expect that his punishment will ever actually occur in California?\nThree: If we decide on life without parole as penalty and our original verdict of guilty is not overturned, will the defendant actually spend life in prison without parole or can he later be paroled by some higher authority?\nFour: Can you describe the impact on the legal system (and taxpayers) which would likely occur for either of the two penalty decisions? In other words, it has been said that the death penalty decision results in millions of dollars of legal expense for the taxpayers of California due to appeals, et cetera. In the end the penalty is not administered.\nFive: Can you reassure us that this phase is not just a legal formality and that the result of our deliberation will really have some significance in seeing that justice will prevail?\nSix: It is my impression that a death penalty sentence will actually result in life without parole; a life without parole sentence will not stick, i.e., the defendant will later be paroled. Can you comment on this?\u201d\nIt was not clear whether the note was from Schwartz only or from some larger faction of the jury. Defendant\u2019s counsel asked the court to dismiss Schwartz and to inquire whether any of the jurors had discussed the case or the law. The judge denied counsel\u2019s request, reasoning that curative instructions would be appropriate. The trial court then instructed the jury in a manner that addressed each of the concerns expressed in the note. Davis, 384 F.3d at 652. The trial court did not conduct any individual inquiry of jurors, did not collectively admonish jurors not to discuss the case, and did not inquire whether jurors could still render a verdict based only on the evidence and applicable law. See Davis, 384 F.3d at 652-53.\nSeveral months after the trial ended, Schwartz wrote a letter to a newspaper approving of the outcome in the trial. Defendant subsequently alleged that the questions Schwartz submitted to the judge, in combination with his letter, demonstrated a pro death penalty bias. Defendant also contended that the use of the pronoun \u201cwe\u201d in the questions raised the inference that the jury may have discussed the case before submission. Defendant argued that the trial judge should have conducted an inquiry, that the letter established bias, and that the proper remedy was to remand for an evidentiary hearing before the district court or a retrial of the penalty phase. Davis, 384 F.3d at 652.\nThe Ninth Circuit Court of Appeals disagreed. The court of appeals began its analysis by emphasizing that the \u201cNinth Circuit takes the spectre of jury bias very seriously\u201d and \u201c \u2018even a single partial juror violates a defendant\u2019s constitutional right to fair trial.\u2019 \u201d Davis, 384 F.3d at 652, quoting in part, United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993). The court acknowledged that \u201c \u2018[a] court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances.\u2019 \u201d Davis, 384 F.3d at 652-53, quoting Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998) (en banc). However, the court of appeals observed:\n\u201cWere we to assume that premature deliberations occurred, such an exchange, though not necessarily proper, is not as serious as \u2018private communication, contact, or tampering *** with a juror during a trial [or] *** influence of the press upon the jury,\u2019 nor does \u2018every incident of juror misconduct require[ ] a new trial.\u2019 United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (internal citations and quotation marks omitted). What is crucial is \u2018not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury.\u2019 Id. Although a hearing might have laid to rest any lingering question about premature deliberations or bias, we do not construe the circumstances as mandating a hearing then or now.\u201d Davis, 384 F.3d at 653.\nThe court of appeals noted there was no evidence in defendant\u2019s case that any of the jurors relied on extrinsic evidence in reaching a death verdict, or that any of the jurors reached a sentencing determination prematurely. The court observed that defendant was \u201c \u2018entitled to a fair trial, but not a perfect one, for there are no perfect trials.\u2019 \u201d Davis, 384 F.3d at 653, quoting McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553, 78 L. Ed. 2d 663, 669, 104 S. Ct. 845, 848 (1984). The court concluded that the trial court\u2019s decision not to hold a hearing on juror bias was not inconsistent with substantial justice, and the district court did not abuse its discretion in denying the request for an evidentiary hearing. Davis, 384 F.3d at 653.\nAs in Davis, the trial judge in this case \u2014 with even less evidence of juror bias than that extant in Davis\u2014 took steps appropriate to the circumstances to ensure that no biased juror sat on defendant\u2019s jury, that the jury did not reach a verdict prematurely, and that defendant received a fair trial. Specifically, the judge questioned Juror A \u2014 the only juror whose impartiality was ever really in question \u2014 during the guilt/innocence phase of the proceedings to ensure that Juror A would accord defendant the presumption of innocence, that he could give both sides in this case a fair trial, and that he had not arrived at a premature opinion as to defendant\u2019s guilt. Juror A agreed that defendant was \u201cabsolutely\u201d presumed innocent, he maintained that he could give both sides a fair trial, and he informed the judge that he had not arrived at an opinion as to defendant\u2019s guilt or innocence, as he did not \u201chave all the evidence and facts, yet.\u201d The trial judge, who had the opportunity to observe Juror A\u2019s demeanor, found Juror A credible. Subsequently, during the aggravation/mitigation phase of sentencing, after Juror A had been exposed to graphic evidence of defendant\u2019s other crimes, Juror A had to be excused and replaced with an alternate. However, prior to sentencing, it appears to us that the trial judge acted appropriately and there was no indication of juror bias such that removal of Juror A was warranted at that time.\nAlthough we have already touched upon facts and authorities pertinent to defendant\u2019s claims that the impartiality of other jurors was adversely affected by Juror A\u2019s conduct or presence, that the trial court erred in not conducting individual questioning of other jurors, and that the possibility of premature discussions of the case might warrant some type of relief, we now turn specifically to those contentions.\nIn this regard, we note, again, that Juror B appeared to be extremely diligent in reporting perceived juror improprieties to the court; yet, her concerns centered only on Juror A\u2019s behavior. It is a reasonable inference that she would have reported others had she believed there was a need to do so. The court essentially made that observation when it declined the defendant\u2019s request to question jurors individually. We note, in passing, that Juror B\u2019s hesitancy to be known to other jurors as an informant did not result in a reluctance to report, in detail, the conduct of others, some of which was collateral to the consideration of this case in any event. For example, when Juror A allegedly repeated a comment of the prosecutor that had been stricken, it was in the context of a juror\u2019s discussion about a television show, not this case. We do not consider that a \u201cdiscussion of the case,\u201d nor does it, or a brief conversation concerning clarification of the meaning of the term \u201ctransferrance,\u201d support the accusation that the jury \u201cdiscussed the case and evidence throughout the trial.\u201d Beyond that, addressing speculative claims that Juror A unduly influenced other jurors, we note that Juror B\u2019s second report indicates that other jurors\u2019 comments to Juror A \u2014 indicating he could get off the jury if he wanted to and that defendant \u201cgets a fair trial\u201d \u2014 and their physical reaction to Juror A when he became \u201csemi-irate,\u201d suggest that other jurors were not in accord with Juror A\u2019s feelings, and that they did not consider his actions appropriate. Finally, the trial court did, of course, conduct an inquiry of Juror B individually, asking her if there was \u201canything about whatever [Juror A] may have said\u201d that would prevent her from giving both sides a fair trial. She responded, \u201cAbsolutely not.\u201d The court also questioned remaining jurors collectively, reminding them that they were not to arrive at any decisions or conclusions until they had heard all the evidence, and asking them whether they were \u201cstill able to comply with that court directive.\u201d They responded affirmatively. Under the circumstances, we cannot say that the trial court erred in not conducting a more extensive inquiry or questioning jurors individually before proceeding. The trial court could have reasonably concluded that extensive questioning of each juror as to premature discussions the jury may have had concerning the case, or his or her interaction with Juror A over the course of this lengthy trial, would have been a substantial and unnecessary distraction from the serious and complex issues that the jury was charged to decide. Pertinent case authority appears to support this conclusion.\nAs this court observed in People v. Cloutier, 178 Ill. 2d 141, 160-61 (1997), quoting from American Jurisprudence:\n\u201c \u2018As a rule, it is improper for jurors to discuss among themselves the case or any subject connected with the trial until all of the evidence has been presented and the case has been submitted to them after final instructions by the trial court. ***\n*** Even assuming that discussion by jurors of a case during recesses in the proceedings constitutes juror misconduct, the test for reversibility is whether the misconduct has prejudiced the defendant to the extent that he has been denied a fair trial. The important question in this regard is not whether the jurors kept silent with each other about the case, but whether each juror kept an open mind until the case was submitted to them.\u2019 \u201d Cloutier, 178 Ill. 2d at 160-61, quoting 75B Am. Jur. 2d Trial \u00a71610, at 379-80 (1992).\nSee also Davis, 384 F.3d at 653 (\u201cWhat is crucial is \u2018not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury\u2019 \u201d), quoting Klee, 494 F.2d at 396.\nIndeed, courts have recognized \u201c[i]t may *** be unrealistic to think that jurors will never comment to each other on any matter related to a trial.\u201d Stockton v. Commonwealth of Virginia, 852 F.2d 740, 747 (4th Cir. 1988). Even the court of appeals in United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993), acknowledged, \u201cwhen there are premature deliberations among jurors with no allegations of external influence on the jury, the proper process for jury decisionmaking has been violated, but there is no reason to doubt that the jury based its ultimate decision only on evidence formally presented at trial.\u201d (Emphasis in original.) Though, as recognized in Dominguez, the Third Circuit Court of Appeals has since \u201cretreated somewhat from Resko\u2019s stringent standard for investigation into jury misconduct\u201d (Dominguez, 226 F.3d at 1248 n.13), limiting the \u201c \u2018holding [in Resko] to the facts of that case, facts which [it] thought \u2014 and still think[s] \u2014 unlikely to recur\u2019 \u201d (Dominguez, 226 F.3d at 1248 n.13, quoting United States v. Bertoli, 40 F.3d 1384, 1396 (3d Cir. 1994)), Resko\u2019s quoted acknowledgment is apt and survives, even as its holding has been limited and restricted to \u201cfacts unlikely to recur.\u201d Clearly, some indication of occasional and isolated discussions in the jury room prior to submission does not always warrant inquiry or remedial action. In that regard, we find the trial court\u2019s action appropriate and sufficient here.\nAs for the speculative allegation that Juror A\u2019s conduct influenced other jurors, we would observe that courts have also tended to minimize the impact that one juror\u2019s views may have on others. See United States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005); United States v. Paneras, 222 F.3d 406 (7th Cir. 2000).\nIn Yeje-Cabrera, a juror who vocally expressed her views prior to submission of the case was dismissed by the trial court. The jury was thereafter polled en masse, but the trial court denied a defense request to interview the remaining jurors individually. On appeal, defendant claimed that the dismissed juror, although removed from the jury, had likely expressed her strongly felt views to the other jurors and thus tainted jury deliberations. YejeCabrera, 430 F.3d at 12. In finding that the trial judge acted appropriately, the court of appeals noted that the judge was confronted with \u201ca difficult situation\u201d and \u201cacted well within the range of permissible options.\u201d Yeje-Cabrera, 430 F.3d at 11. As the court of appeals observed, \u201cEven if the one juror had communicated her views to the other jurors, there is also no reason to think those jurors were dissuaded from following the instructions of the judge, much less that this somehow led jurors to penalize the defendants for their decision not to take the stand.\u201d Yeje-Cabrera, 430 F.3d at 11. In Yeje-Cabrera, the court of appeals acknowledged defendant\u2019s claim that the court could not \u201cengage in meaningful appellate review, because the district court\u2019s failure to conduct individualized inquiries deprived it and [the court of appeals] of essential information,\u201d concluding, however: \u201cSuch hyperbole does not win the day.\u201d Yeje-Cabrera, 430 F.3d at 11.\nIn Paneras, the court of appeals considered the impact of a cartoon drawn by a member of the jury. The district court had denied a motion for a new trial based upon the cartoon. As the court of appeals observed, the cartoon \u201cwas a humorous depiction of the defendant\u2019s activities as they were described at trial, and it did not make any reference to events that were not part of the evidentiary record nor expose the jury to any new evidence.\u201d Paneras, 222 F.3d at 411. The court of appeals determined it could not conclude that the district court abused its discretion in denying defendant\u2019s motion for a new trial, stating:\n\u201cIn this situation, it is significant that the cartoon expressed one juror\u2019s view of the case, and was subject to the scrutiny and the questioning of other jurors. We also note that the evidence of the defendant\u2019s fraud in this case was overwhelming, a factor which militates against a finding that the introduction of the disputed cartoon effected the jury\u2019s verdict.\u201d Paneras, 222 F.3d at 411.\nThose observations apply to this case as well. The jurors in this case were instructed, at the outset, to keep \u201can open mind\u201d until they had \u201cheard everything there is to hear.\u201d When asked by the trial judge, upon Juror A\u2019s departure, whether they could still abide by that directive, they unanimously stated that they could and would keep open minds until the matter of sentencing was submitted to them. We have no reason to believe that they lied to the trial court when they made that affirmation and, obviously, neither did the judge, who had observed them throughout the trial \u2014 a trial in which the evidence amply supported the jury\u2019s verdict. In sum, this defendant received \u201cprecisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense[s].\u201d See Rivera v. Illinois, 556 U.S. at 162, 173 L. Ed. 2d at 331-32, 129 S. Ct. at 1456. Given the facts and circumstances of this case, we find no abuse of discretion in the trial court\u2019s handling of this matter.\nWe next consider Runge\u2019s contention that \u201cthe trial court erred in excluding as irrelevant the sexually violent person (SVP) petition filed against defendant,\u201d which he characterizes as \u201ca party admission bearing on his ability to conform his conduct to the law,\u201d and his argument that \u201cjudicial estoppel and due process preclude prosecutors from presenting evidence that defendant could control his conduct after their earlier contrary position.\u201d\nDefendant bases his arguments upon an SVP petition filed by the State in 1999, a petition supported by an evaluation performed by Dr. Agnes Jonas, who stated, in part, that defendant is \u201ca compulsive, sexual sadist, who cannot stop his sadistic acts.\u201d As a result of the petition, defendant was not released after completing his sentence, but was transferred to DHS custody for treatment. There was a finding of probable cause pursuant to the petition, and defendant was held on the petition until he was indicted in 2001, whereafter the petition was withdrawn. The trial court in this case rejected defense arguments that the petition was a party admission relevant to defendant\u2019s mental condition and his ability to control his sexual violence. The court also denied defense motions, based upon principles of judicial estoppel, to bar the State from taking a position at trial that was inconsistent with the position it took during SVP proceedings. During the guilt/innocence phase of the trial, the jury nonetheless learned of the petition as regards experts\u2019 consideration of it, and the petition went to the jury during death penalty deliberations.\nWe begin our discussion of these related issues with a review of principles of judicial estoppel. Judicial estoppel is an equitable doctrine invoked by the court at its discretion. New Hampshire v. Maine, 532 U.S. 742, 750, 149 L. Ed. 2d 968, 977-78, 121 S. Ct. 1808, 1815 (2001); People v. Caballero, 206 Ill. 2d 65, 81 (2002). As this court stated in Caballero, five elements are \u201cgenerally required\u201d before that discretion comes into play. The party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it. Caballero, 206 Ill. 2d at 80.\nWe find the doctrine of judicial estoppel inapplicable in this instance because any arguable change in the State\u2019s position is justified by evidence that came to light after the SVP proceeding was initiated. As the Minnesota Supreme Court recently recognized in State v. Pendleton, 706 N.W.2d 500, 507 (Minn. 2005), the justification for the application of judicial estoppel is at best uncertain where a party changes its position after the previous proceedings due to the discovery of new evidence, as parties who change their theories after they discover new evidence bearing upon the issue are not acting in bad faith. Pendleton, 706 N.W.2d at 508. \u201cSuch changes are consistent with the court\u2019s truthfinding role.\u201d Pendleton, 706 N.W.2d at 508. In such a situation, that party is not playing \u201cfast and loose\u201d with the court, the kind of conduct the doctrine is intended to address. See generally Caballero, 206 Ill. 2d at 80.\nHere, after the filing of the SVP petition, the State obtained another expert opinion in the form of Dr. Dietz\u2019s assessment of defendant, wherein Dietz concluded that defendant could control his actions. Moreover, the circumstances of defendant\u2019s seven murders subsequently came to light, demonstrating defendant\u2019s capacity for the exercise of judgment and self-control in the selection of his victims and in the time and place chosen for the commission of the offenses. It seems self-evident that a party\u2019s position cannot be deemed \u201cfactually inconsistent\u201d with a former stance if new facts provide an objective justification for a different position. To hold otherwise would tend to stymie the truthseeking function of legal proceedings. Thus, where as here the discovery of new facts justifies a change in position, and there is no indication of bad faith, judicial estoppel does not apply. We next consider whether the circuit court erred in excluding the SVP petition, which defendant claims was admissible as a \u201cparty admission.\u201d We note, for purposes of clarification, that the SVP petition could not be a \u201cjudicial admission\u201d because the petition was not a pleading filed in the same court proceeding. See Green v. Jackson, 289 Ill. App. 3d 1001, 1008 (1997). Therefore, the question is whether the petition should have been admitted as an \u201cevidentiary admission,\u201d which, if admitted into evidence, may be controverted or explained. See Green, 289 Ill. App. 3d at 1008.\nEven if otherwise admissible, admissions, like any other evidence, are subject to exclusion where jury confusion might result. See generally People v. Cruz, 162 Ill. 2d 314, 348 (1994); United States v. Young, 248 F.3d 260, 268 (4th Cir. 2001). We certainly see that danger in this case, where the ultimate issues in the SVP proceeding and the subsequent criminal trial were not identical, where the two proceedings presented questions concerning defendant\u2019s state of mind at points in time two years apart, and where the expert opinion rendered in support of the SVP petition was formulated without the benefit of the facts surrounding defendant\u2019s seven murders. Having made that observation, we see no indication in the record that the circuit court excluded the proffered evidence on that basis. Rather, the court determined the SVP petition was \u201cnot an admission by a party opponent.\u201d In that regard, we are not prepared to say that the SVP petition was not admissible or that it had no evidentiary value whatsoever; we are, however, convinced that, given its proper weight and impact \u2014 and disregarding its very real potential for confusing or misleading the jury \u2014 its admission would not have resulted in a different outcome. As we have already mentioned in our discussion of judicial estoppel, and as we will explain more in depth in our analysis of claims of prosecutorial misconduct hereafter, the circumstances of defendant\u2019s seven murders, in our view, unequivocally demonstrate defendant\u2019s capacity for the exercise of judgment and self-control. Thus, any error in the exclusion of the SVP petition is harmless beyond a reasonable doubt.\nFinally, we will acknowledge and briefly address defendant\u2019s summary argument \u2014 occupying less than one full page of his brief \u2014 that the State\u2019s \u201cinconsistent positions\u201d in the SVP proceeding and the subsequent criminal proceeding violate due process of law. In this \u201cargument,\u201d defendant cites, but does not discuss, the Supreme Court\u2019s abbreviated, per curiam decision in Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979), and the Court\u2019s more recent decision in Bradshaw v. Stumpf, 545 U.S. 175, 162 L. Ed. 2d 143, 125 S. Ct. 2398 (2005). We note that the former decision does not discuss or explicitly address the consequences of a prosecuting authority taking inconsistent positions in different proceedings. In the latter case the Supreme Court found that the Court of Appeals was \u201cwrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley cases required voiding of Stumpf s guilty plea,\u201d and the Court failed to reach, and thus \u201cexpressed] no opinion\u201d with respect to, the question of whether the State\u2019s \u201callegedly inconsistent theories\u201d constituted a due process violation at sentencing. See Stumpf, 545 U.S. at 186-87, 162 L. Ed. 2d at 156, 125 S. Ct. at 2407-08. Defendant fails to explain how Green or Stumpf would justify our finding a due process violation in his case. Similarly, defendant cites our opinion in Caballero, but he provides no meaningful discussion of the facts of that case or the principles expressed therein. He makes no attempt to compare the facts of Caballero to his own circumstances. In short, defendant fails to demonstrate how his due process rights were violated and we see no basis for such a finding.\nDefendant next contends that \u201cdenying depositions of the prosecution\u2019s experts, while allowing depositions of the defense experts, was an unbalanced, unauthorized, excessive sanction, when defendant, on the advice of counsel from another county, invoked his right to remain silent when examined by the prosecution\u2019s psychiatric expert on the pending murder charges in the other county.\u201d This issue arises from defendant\u2019s refusal\u2014 apparently upon the advice of counsel representing defendant in Du Page County on the Pasanbegovic murder charges \u2014 to speak to Dr. Dietz regarding the Pasanbegovic murders. Defendant did speak to his own expert, Dr. Merikangas, about the murders, and one could assume that he spoke with another defense expert, Dr. Stone, because Stone joined in Merikangas\u2019 conclusions, which explicitly cited the Du Page County homicides.\nIn response to defendant\u2019s refusal, the trial court allowed prosecutors to depose defense experts with respect to the Pasanbegovic murders. Defense attorneys were not allowed to depose prosecution experts. Defendant argues that the sanction of allowing depositions is not authorized by section 115 \u2014 6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 6 (West 2006))\u2014 though depositions are allowed in capital cases pursuant to Supreme Court Rule 416(e) (188 Ill. 2d R. 416(e))\u2014 because section 115 \u2014 6 does not explicitly provide that depositions may be employed as a sanction. Section 115 \u2014 6 specifically provides that any statements a defendant makes to an examining expert shall be admissible against him only if he raises the defenses of insanity or drugged condition, and in that case they are admissible \u201conly on the issue of whether he was insane or drugged.\u201d 725 ILCS 5/115 \u2014 6 (West 2006). As far as refusal is concerned, the statute provides:\n\u201cThe refusal of the defendant to cooperate in such examinations shall not automatically preclude the raising of the aforesaid defenses but shall preclude the defendant from offering expert evidence or testimony tending to support the defenses if the expert evidence or testimony is based upon the expert\u2019s examination of the defendant. If the Court, after a hearing, determines to its satisfaction that the defendant\u2019s refusal to cooperate was unreasonable it may, in its sound discretion, bar any or all evidence upon the defense asserted.\u201d 725 ILCS 5/115 \u2014 6 (West 2006).\nDefendant asserts that the statute does not give the court discretion to \u201cimprovise\u201d other sanctions for a lack of cooperation. Defendant contends, \u201c[t]he statute only allows the court to bar the entire affirmative defense, or alternatively to bar any evidence upon the defense asserted.\u201d Defendant suggests that the \u201cfair, balanced, and authorized sanction for defendant\u2019s minor lack of cooperation in relation to the Du Page County case would have been to bar defense expert testimony relying on the Du Page County murders based solely on what defendant told the experts about them, while allowing Dr. Dietz to rely on the facts of those murders, which were known from defendant\u2019s confessions and his wife\u2019s account of the murders.\u201d Defendant opines that he was prejudiced by the depositions insofar as the \u201cState learned what the defendant\u2019s experts would say, how they would say it, and what their courtroom demeanor would be.\u201d In contrast, \u201cthe defense had little or no advanced knowledge of Dr. Dietz\u2019s testimony or demeanor.\u201d\nThe State complains that defendant\u2019s refusal to cooperate was unreasonable and the sanction of depositions as a response thereto should be considered in conjunction with \u201cthe defense experts\u2019 skimpy and tardy compliance with discovery.\u201d Noting that the trial court is empowered to order depositions pursuant to Rule 416(e), the State argues: \u201cIt cannot be the case that the trial court has this power except when the defendant unreasonably refuses to cooperate with discovery.\u201d Quoting in part from section 115 \u2014 6, the State points out that the trial could have barred \u201cany and all\u201d evidence on defendant\u2019s defense, but chose a less severe \u201csanction.\u201d\nWe find it unnecessary to decide whether the ordering of depositions was an appropriate \u201csanction\u201d in this context. It is our prerogative to forgo the determination of issues unnecessary to the outcome of a case (DeLuna v. Burciaga, 223 Ill. 2d 49, 83 (2006)), and that principle is no less applicable in capital cases where any conceivable error would be harmless (People v. Mertz, 218 Ill. 2d 1, 73 (2005)). That is certainly the case here.\nWhile defendant may be dismayed that the \u201cState learned what the defendant\u2019s experts would say, how they would say it, and what their courtroom demeanor would be,\u201d and he suggests that \u201cthe defense had little or no advanced knowledge of Dr. Dietz\u2019s testimony or demeanor,\u201d the truth of the matter is that any asymmetry in the discovery procedure was occasioned by defendant\u2019s unreasonable behavior, and the parties were, in any event, subject to certain basic obligations of disclosure in discovery, so there was little chance that either side would be surprised by the position taken by the other\u2019s experts.\nAs this court stated in People v. Pasch, 152 Ill. 2d 133, 181-82 (1992), the Supreme Court\u2019s decision in Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973) (cited here by defendant), does not require discovery to be perfectly symmetrical. Nor does Wardius require reversal unless there is a substantial probability that the alleged error \u201cmay have infected the verdict.\u201d Wardius, 412 U.S. at 479, 37 L. Ed. 2d at 90, 93 S. Ct. at 2214. We see no chance of that in this case. We do not reverse judgments upon pure speculation. See People v. Redd, 173 Ill. 2d 1, 39-41 (1996) (defendant\u2019s contention that a different result \u201cprobably\u201d would have obtained had the court allowed standby counsel to cross-examine a witness was \u201cpurely speculative\u201d). We are confident that familiarity with the nuances of the witness\u2019 manner of testifying in this case would not have changed the outcome given the strength of the State\u2019s case.\nWe next consider defendant\u2019s various allegations of prosecutorial overreaching. Defendant contends that reversal is required because (1) the prosecution\u2019s closing argument at the guilt/innocence phase of trial \u201cinaccurately denigrated two key defense experts, based upon misstatements of testimony as to Dr. Stone\u2019s credentials and Dr. Merikangas\u2019 alleged mistake in reading a brain scan; (2) \u201cquestions on irrelevant victim impact evidence for other crimes were erroneously asked by the prosecutors in aggravation\u201d; and (3) \u201cprosecution sentencing arguments improperly relied on irrelevant, extraneous assertions and specious reasoning to defeat mitigation based on the death of defendant\u2019s mother.\u201d\nThe first of defendant\u2019s three arguments is founded upon two prosecutorial statements in closing argument. In the first, the prosecutor said that Dr. Stone \u201cdidn\u2019t seem fit to the challenge,\u201d that \u201csome of his accreditations were mail-ins. He mailed in a form and got a diploma.\u201d The prosecutor\u2019s comments in closing were based upon a brief exchange with Dr. Stone in which the prosecutor asked Stone about his certification for the Association of Forensic Testing. Stone replied: \u201cInvolves credential review to a committee, related experience and then mandatory continuing education. And I was grandfathered in so in my case there was no actual exam, which there is today.\u201d The prosecutor asked if he had to appear in front of a board or respond to peer questioning. Stone said that would be required if there were \u201cany questions on the application\u201d or if \u201cthe letters of reference don\u2019t check out,\u201d otherwise \u201cthere\u2019s no actual face-to-face review with a committee.\u201d The prosecutor stated: \u201cSo it\u2019s \u2014 basically it\u2019s a mail-in type of situation.\u201d Stone replied: \u201cWell again you mail in your application, credential review, right.\u201d\nThe second component of defendant\u2019s first argument concerns another brief comment the prosecutor made in rebuttal argument concerning the earlier testimony of Dr. Mayberg. Mayberg had initially testified that Merikangas had circled the left parietal lobe of defendant\u2019s brain on the brain scan at issue, when Merikangas\u2019 testimony and report referred to the right parietal lobe. Almost immediately after making that mistake, Mayberg stated: \u201cI stand corrected. This is right 1.0. Sorry, we are looking at two different images here. He has circled right. We are looking at right.\u201d Later, in rebuttal argument, speaking of Dr. Merikangas\u2019 evaluation of defendant\u2019s brain scan, the prosecutor stated:\n\u201cHe criticized professionals at Rush and says he can see more than they can, but yet, when you hear testimony, marking up exhibits, remember it was the right parietal part of the brain, the right side of the brain. Well, Dr. May-berg testified that he, Dr. Merikangas, had circled the left side.\u201d\nThe defense objected, and the court overruled the objection, stating, \u201cthe jury has heard the evidence in this case.\u201d Before moving on, the prosecutor asked, \u201cHow do you make that mistake?\u201d\nThe second of defendant\u2019s three arguments is that the prosecutor, in the aggravation/mitigation phase of trial, asked improper questions concerning irrelevant victim impact evidence pertaining to other crimes committed by defendant. As defendant notes, this court, in People v. Hope, 184 Ill. 2d 39, 52 (1998), held that \u201cthe unforeseen effects of *** prior crimes on their victims are of no such assistance\u201d in the capital sentencing process, as they are \u201csimply too attenuated to be relevant.\u201d The improprieties alleged here concern two questions posed to witnesses, neither of which was ever answered, and a brief statement by the prosecutor in an otherwise lengthy argument.\nAt the conclusion of the testimony of M.V, the first aggravation witness, the prosecutor asked M.V. to describe how defendant\u2019s assault and torture of her still impacted her life. An objection was overruled, but immediately thereafter the prosecutor concluded her questioning and the question was never answered.\nAnother witness, Mensur Pasanbegovic, the father of the sisters who were murdered, testified regarding the circumstances of their disappearance. Before concluding the questioning of Pasanbegovic, the prosecutor asked whether Pasanbegovic had \u201cerected a memorial in Sarejevo.\u201d That question was cut off by an objection, which the court sustained. No other question was asked along that line.\nDuring closing argument, the prosecutor made the following remarks concerning M.V\u2019s experience:\n\u201cYou want to talk about a natural life sentence. Take the victim\u2019s point of view. That 32 year old woman, when she testified up here, she was fourteen years old again. She was fourteen years old when she testified to you. She relived the horror of that night for you. And when she reflects back to that point in her life, when she was caused to think back on it, she sees the face of Paul Runge. She relives that horrific night, and what happened to her. She has been sentenced by Paul Runge to natural life.\u201d\nAn objection was overruled.\nThe third and final contention of prosecutorial overreaching concerns the prosecutor\u2019s argument at sentencing that defendant\u2019s mother\u2019s death was not related to his assault upon M.V The prosecutor observed that other young people lose parents and do not commit crimes as a result of their loss. The prosecutor argued: \u201cThere is no connection whatsoever between his mother\u2019s death and his actions and his crimes. There is a connection between his dad and his brother going away and leaving him behind.\u201d After defense counsel acknowledged that defendant had had prior police contact before the offense against M.V, counsel stated: \u201cHis mother dies in his arms of cancer from a long debilitating disease. The first time his father and brother go out of town, he kidnaps and rapes [M.V]. That\u2019s what the empirical evidence is.\u201d The prosecutor subsequently responded:\n\u201cHow many thousands, how many hundreds of thousands of children suffer the loss of a parent every year. With Paul Runge, he would have you believe within two weeks or maybe three weeks *** he went from the grieving over the loss of his mother to the horrific assault on [M.V]\n* * *\nThis was just the opportunity when his father, or no parental supervision was in the house. Yes, it is very sad when a parent dies at an early age. But the logic to equate that with why he is the way he is is fractured.\u201d\nAt that point an objection was overruled. The prosecutor then stated: Now, maybe we should muster all the FBI agents we can find and all the police officers and head over to all the orphanages.\u201d An objection to that statement was sustained, and the prosecutor was directed to \u201crefer to this case only.\u201d\nWe note that prosecutors are generally accorded wide latitude in the content of their closing arguments. People v. Perry, 224 Ill. 2d 312, 347 (2007); People v. Evans, 209 Ill. 2d 194, 225 (2004). They may comment on the evidence and on any fair and reasonable inference the evidence may yield. Perry, 224 Ill. 2d at 347. Reviewing courts will consider the closing argument as a whole, rather than focusing on selected phrases or remarks, and will find, reversible error only if the defendant demonstrates that the improper remarks were so prejudicial that real justice was denied or that the verdict resulted from the error. Perry, 224 Ill. 2d at 347; Evans, 209 Ill. 2d at 225. The complained-of questions and remarks in this case fall far short of that standard.\nAll of the comments were brief and isolated in the context of lengthy closing arguments, a factor we have found significant in assessing the impact of such remarks on a jury verdict. See People v. Harris, 225 Ill. 2d 1, 33 (2007); People v. Caffey, 205 Ill. 2d 52, 105 (2001). Moreover, objections were sustained in two instances, and the jury was subsequently instructed that it should disregard such questions and comments, as well as any arguments not supported by the evidence. Those considerations are also appropriate factors in our assessment. People v. Bannister, 232 Ill. 2d 52, 91 (2008) (\u201cimproper inferences from the prosecutor\u2019s comments were cured by the trial court sustaining defense counsel\u2019s objections and the court\u2019s instructions to the jury to disregard comments to which objections were sustained\u201d); Harris, 225 Ill. 2d at 33 (in considering the possibility of prejudice this court noted that \u201cdefense counsel\u2019s objection to the comments was sustained and the jury was properly instructed that the arguments of counsel were not evidence that it could consider\u201d).\nAddressing defendant\u2019s arguments in the order we have presented them, we note, first, that Dr. Stone\u2019s certification for the Association of Forensic Testing was, essentially, a \u201cmail-in\u201d accreditation, as the prosecutor characterized it; Stone did not have to take an exam and he did not have to appear before a panel of his peers. Stone admitted as much. When the prosecutor, referring to the accreditation procedure, stated, \u201cbasically it\u2019s a mail-in type of situation,\u201d Stone replied: \u201cWell again you mail in your application, credential review, right.\u201d Whether that characterization of Stone\u2019s credentials \u201cdenigrated\u201d Stone\u2019s qualifications was a matter for the jury to decide. However, one way or the other, we do not believe that it played a significant part in the jury\u2019s assessment of his testimony, and that it is far more likely that the jury judged the credibility of Stone\u2019s testimony by considering it against the conflicting backdrop of defendant\u2019s conduct \u2014 conduct evincing an ability to control his behavior when circumstances dictated that he do so. Cf. People v. Urdiales, 225 Ill. 2d 354, 434 (2007) (\u201cthe attendant facts and circumstances of defendant\u2019s crimes are themselves a compelling refutation of testimony given by the defense experts\u201d).\nThe same is true of Merikangas\u2019 testimony. The jury heard Dr. Mayberg correct herself, stating that Dr. Merikangas had indeed circled the right side of defendant\u2019s brain on the brain scan. We are confident that the jury judged Merikangas\u2019 testimony on its merits, or lack thereof, not the prosecutor\u2019s brief and isolated remark.\nWith respect to defendant\u2019s second argument\u2014 regarding improper victim impact evidence \u2014 we note that the question asked of M.V was never even answered, and an objection was sustained when the prosecutor asked Pasanbegovic about a memorial to his daughters in Sarejevo. The prosecutor\u2019s brief comments about M.V\u2019s testimony appear to be an attempt to elicit sympathy for M.V by describing the impact defendant\u2019s assault has had on her years after the incident. In that respect, the comments were improper pursuant to the reasoning espoused in Hope; however, we find they did not affect the overall fairness of the sentencing hearing. Our review of other cases supports that finding.\nIn People v. Kokoraleis, 132 Ill. 2d 235, 285 (1989), the prosecutor commented on the victims\u2019 rights to get married, have families, have children, and spend time with their families. Although this court found that the prosecutor\u2019s comments were improper, the court concluded that the remarks did not affect \u201cthe overall fairness of the sentencing hearing.\u201d Kokoraleis, 132 Ill. 2d at 285. This court reached the same conclusion in People v. Emerson, 189 Ill. 2d 436, 508-10 (2000), where the prosecutor argued:\n\u201cHer name was Belinda Byrd. Belinda Byrd, a victim in this case. She had a life. She had hopes. She had dreams. They were taken away from her by Bennis Emerson. They were taken away from her only because he cared about nothing. Nothing, but himself. The last moments of her life were spent struggling for breath while 90 percent of her skin was being burned. Imagine her terror. Imagine her fear. ***\n*** This is the defendant that did that to her, that turned her into a corpse, who took away all her hopes and dreams and took away all of what she could contribute to society and to the community, and all of what she could contribute to everyone that knew her and enriched their lives.\u201d\nIn Urd\u00edales, a case that has remarkable similarities to this case \u2014 the jury heard the testimony of Dietz and Merikangas, as well as the details of defendant\u2019s multiple murders and the graphic testimony of a lone surviving victim \u2014 the prosecutor referred to the families the victim left behind and speculated about \u201chow many children and grandchildren will not be born because of the actions of the defendant.\u201d Urdiales, 225 Ill. 2d at 447. We found that the prosecutor\u2019s \u201cbrief and isolated comments, while improper, were not so prejudicial as to deprive the defendant of a fair sentencing hearing or change the outcome of the proceeding.\u201d Urdiales, 225 Ill. 2d at 448. We so find in this case.\nFinally, we believe it was proper for the prosecutor to note that thousands of children lose parents every year and do not embark upon a life of crime as a result, and to suggest that defendant committed the assault against M.V, not because of his mother\u2019s death, but due to the opportunity furnished him when his father and brother went out of town, leaving the house to defendant. We note, initially, that Dr. Stone did not testify with certainty that the death of defendant\u2019s mother affected defendant\u2019s ability to control his sexual sadism; rather, he testified on direct examination that it was \u201cpossible.\u201d He admitted he could not be sure how much defendant\u2019s mother\u2019s death caused any of his actions. Dr. Leavitt testified that he did not find anything in defendant\u2019s early history or background information to be clinically significant. Merikangas testified that defendant was attached to his mother. Though Dietz acknowledged that the loss of one\u2019s mother would be a stressor for anyone, he observed that reports indicated defendant was fine thereafter:\n\u201c[N]o one reports his having had any unusual response to his mother\u2019s death. His father told a social worker that Mr. Runge seemed upset for about two weeks and was then f\u00edne. And it seems to me that a more significant issue was it was the first time that he had the whole house alone to do this in.\u201d\nThere was in this instance no unequivocal testimony or evidence that the death of defendant\u2019s mother affected his ability to control his sexual sadism. There was at most speculation. On the other hand, there was also testimony suggesting that the loss of defendant\u2019s mother was not a significant factor in the sexual assault and torture of M.V\nAs this court has observed, a prosecutor may comment on the facts and legitimate inferences that may be drawn therefrom. People v. Enis, 163 Ill. 2d 367, 407 (1994). It has been held that prosecutors may discuss subjects of common experience or common sense in closing argument as well. See People v. Beard, 356 Ill. App. 3d 236, 242 (2005). Indeed, since this court has acknowledged that jurors do not leave their common sense behind when they enter court (People v. Steidl, 142 Ill. 2d 204, 238 (1991)), it would seem proper for prosecutors to couch arguments in those terms and make appeals thereto.\nThat is what the prosecutor did in this case, arguing that criminal activity is not a normal consequence of the loss of one\u2019s mother and that a more reasonable explanation for defendant\u2019s assault on M.V was, as Dietz suggested, the opportunity furnished when defendant\u2019s father and brother went out of town, leaving him alone in the house.\nIn sum, we find that the prosecutorial conduct of which the defendant complains was either proper or was cured by the sustaining of objections and appropriate instructions to the jury. Moreover, any error was undoubtedly harmless given the brief and isolated comments and the strength of the State\u2019s case.\nIn the latter regard, the evidence adduced at the guilt/innocence phase was, in our opinion, wholly inconsistent with defendant\u2019s claims that he could not control his behavior or that his judgment was impaired. The evidence in fact showed that defendant, in pursuit of sexual gratification, exercised judgment and self-control in the selection of his victims and in the time and place chosen for the commission of the offenses. He did not commit offenses in public. He was able to refrain from criminal conduct during an extended period in which he knew he was under surveillance. He obviously would not have committed the crimes if police had been present. His actions showed planning and organization in that he brought supplies with him to carry out the crimes. He killed his victims after the sexual assaults so they would not be around to testify against him. We cannot help but notice the similarities to the defenses advanced and rejected in People v. Urdiales, 225 Ill. 2d 354 (2007). They were properly rejected here as well. The evidence overwhelmingly supported defendant\u2019s guilt and the jury\u2019s verdict.\nWith respect to the jury\u2019s final verdict, finding death to be the appropriate sentence, we again conclude that prosecutorial error could not have affected the outcome. As we have heretofore chronicled, the evidence in aggravation was overwhelming. The lone survivor of an assault by defendant testified extensively and graphically to the torture \u2014 mental and physical \u2014 that defendant inflicted upon her. Defendant\u2019s summary accounts of the sexual assaults and murders of seven other victims were admitted as evidence. Although defendant, in mitigation, supplemented his psychological evidence from the guilt/ innocence phase with the testimony of Dr. Rabin, that testimony added little to the evidence previously presented by defendant and rejected by the jury. Doris Harper\u2019s testimony, in which she attempted to take the blame for planning and helping to execute defendant\u2019s escape from DHS custody, was transparent, and it did little or nothing to help defendant. Instead, it merely underscored his ability to manipulate others. The testimony of correctional officers, that defendant had no infractions of jail rules in four years, is not particularly significant, because, as we noted in People v. Thompson, 222 Ill. 2d 1, 44 (2006), a defendant awaiting trial for a capital crime has every incentive to behave flawlessly while incarcerated. Finally, the testimony of defendant\u2019s father was what one might expect from a parent asking a sentencing jury to spare his son. Mr. Runge\u2019s testimony did raise the possibility that defendant suffered brain trauma early in life \u2014 something that he had never reported to anyone before; however, Mr. Runge\u2019s actions for the many years after the incident to which he testified do not indicate any concern over defendant\u2019s mental condition, other than during a brief period in adolescence. Mr. Runge acknowledged that his son could be properly characterized as a manipulative con artist. Irrespective of any minor prosecutorial transgressions, we are confident the verdicts would not have been otherwise.\nDefendant next argues that \u201cdeath is cruel and unusual punishment for crimes committed under the influence of a neuropsychological disorder that may have biologic causes, that distorts reality, diminishes impulse control and memory, and for which state legislatures provide for civil commitment and medical treatment.\u201d In support of this argument, defendant notes that the Supreme Court has held the eighth and fourteenth amendments forbid imposition of the death penalty on offenders who were under 18 years of age when their crimes were committed (Roper v. Simmons, 543 U.S. 551, 161 L. Ed. 2d 1, 125 S. Ct. 1183 (2005)) and the eighth amendment prohibits imposition of the death penalty on mentally retarded offenders (Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002)). Defendant posits that:\n\u201cThe death penalty is cruel and unusual punishment inconsistent with evolving standards of decency in light of the progress that medical science is making in understanding sexual sadism. Murders influenced by sexual sadism are less culpable than murders committed by normal adults motivated by greed or anger. Punishment for such offenders should allow for rehabilitation potential with the aid of medical treatment and exclude punishment by death.\u201d\nWe note that defendant is neither under the age of 18 nor mentally retarded. He is not \u201cguilty but mentally ill\u201d as that term is used in subsections (c) and (d) of section 6 \u2014 2 of the Criminal Code of 1961 (720 ILCS 5/6 \u2014 2(c), (d) (West 1996)). Even if he were, as this court held in People v. Crews, 122 Ill. 2d 266, 280-81 (1988), that would not preclude imposition of the death penalty. This court recently affirmed that principle in People v. Manning, 227 Ill. 2d 403, 413 (2008). In Urdiales, we affirmed a death sentence under facts very similar to those in this case.\nIn any event, as we have noted, the evidence adduced at trial overwhelmingly established that this defendant could control his behavior when it suited his purposes, and the judgment he exercised in the planning and commission of these offenses showed no signs of impairment. These were premeditated acts. Defendant would have us believe that the murders he committed after these sexual assaults were somehow different and \u201cless culpable\u201d than the murders committed by other criminals. We fail to see the difference between this defendant and any other who kills his victim in order to prevent the victim from testifying against him. We adhere to our prior holdings, and we find, under the circumstances of this case, that the death penalty is not cruel and unusual punishment with respect to this defendant.\nFinally, we acknowledge defendant\u2019s argument that the Illinois death penalty statute violates due process under Apprendi v. New Jersey because the State is not required to prove beyond a reasonable doubt that, after weighing the factors in aggravation and mitigation, death is the appropriate sentence. As defendant is well aware, we have addressed and rejected that argument in People v. Thompson, 222 Ill. 2d 1, 52-54 (2006), People v. Mertz, 218 Ill. 2d 1, 93-94 (2005), and People v. Ballard, 206 Ill. 2d 151, 202-05 (2002). We decline to revisit the issue.\nWe find in defendant\u2019s arguments no basis for reversal or remand. Although defendant has not separately argued that the evidence is insufficient to support his death sentence, it is our responsibility in every death penalty case to consider the appropriateness of the sentence. People v. Heard, 187 Ill. 2d 36, 85 (1999). After careful consideration of the evidence adduced, we concur in the jury\u2019s determination that death is the appropriate penalty. Pursuant to section 9 \u2014 1(i) of the Criminal Code (720 ILCS 5/9 \u2014 1(i) (West 2006)), we find no fundamental injustice in this case.\nFor the reasons stated herein, we affirm the defendant\u2019s conviction and death sentence. We direct the clerk of this court to enter an order setting Tuesday, November 10, 2009, as the date on which the sentence of death shall be carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119 \u2014 5 (West 2006). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the institution where defendant is confined.\nAffirmed.\nSupplemental Opinion Upon Denial of Rehearing\nIn his petition for rehearing, defendant charges that we \u201comitted analysis of a key indication of juror bias, fear of defendant and his wife, arising from Juror A\u2019s mistaken belief the defendant learned the jurors\u2019 personal information during jury selection.\u201d In the argument portion of his original brief on this point, defendant devoted only three sentences to what he now calls this \u201ckey indication of juror bias.\u201d Although this point was not specifically discussed in our initial disposition, it was not overlooked.\nThe personal information to which defendant refers was very general, usually limited to the prospective juror\u2019s name, the area of the county wherein he or she resided, and other information only as considered pertinent to issues that might arise during trial, such as whether the juror would be predisposed in the reception of psychiatric testimony, and whether he or she, or a family member, had been a victim of a crime. At the time of their selection, having disclosed that information, the jurors, knowing that they would be hearing a death penalty case, assured the court and the parties that they could give each side a fair trial. Clearly, the disclosure of information in defendant\u2019s presence was not a significant cause for concern at that point or during the guilt/ innocence and eligibility phases of the trial \u2014 for anyone on the jury. Of course, as to that phase of the trial, defendant would have no motive to harm a juror if he were acquitted and no opportunity to do so personally if he were not.\nIn any case, the event alleged to have caused Juror A concern was the revelation that Charlene Runge had been granted immunity. The jurors did not learn of Charlene Runge\u2019s immunity until the aggravation/ mitigation phase of sentencing. Whether in fact that was a real concern for Juror A \u2014 who was also upset over his loss of income while serving on the jury \u2014 we note that he was, according to Juror B, able to joke about Charlene Runge (making up a silly song about her), and he expressed no fear of defendant himself. In any event, Juror A did not render a verdict in the aggravation/ mitigation phase of the trial \u2014 where the immunity was disclosed \u2014 so Juror A\u2019s feelings in that regard \u2014 real or feigned \u2014 are irrelevant. With respect to the other jurors, we note that none of them expressed concern to the court during the trial, and Juror B did not report any improprieties with respect to them or concerns voiced by them. When questioned after Juror A\u2019s departure, all indicated that they would not arrive at any decisions until they had heard all the evidence, listened to arguments of the attorneys, and had been given the law to be applied in the case. Those assurances are not consistent with jurors who were disposed to sentence the defendant to death for their own security, a course of action which would not account for the freedom of Charlene Runge anyway, even assuming arguendo there was any modicum of genuine concern. In short, no rational juror would believe that sentencing defendant to death would save him or her from Charlene, but then again, no rational juror would think that Charlene Runge, having cooperated with the police, would have a motive to harm jurors.\nWe would observe that this court, and the federal court of appeals, in circumstances more compelling than these, have found that no posttrial inquiry into jurors\u2019 fears was indicated. In People v. Whitehead, 169 Ill. 2d 355 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998), defendant alleged, in a postconviction petition, that he was denied the right to an impartial jury by publication of the jurors\u2019 names and addresses in a local newspaper, his theory being that the jurors thereby acquired the incentive to convict defendant because of their fear of him and their desire to conform to prevailing community pressures. Whitehead, 169 Ill. 2d at 401. In support of his claim, defendant included, inter alia, the affidavits of juror Charlene Joneson, Rose Marie Bell, the clerk of the circuit court, and Linda Meza, a social psychologist. Joneson stated in her affidavit that jurors were displeased about publication of their names and two complained to the clerk because \u201c[a] person who might be a murderer would have their names and addresses if he were set free.\u201d Bell stated that the jury had contacted her as the clerk of the court and complained that their names and addresses had appeared in the local newspaper. Meza stated that with publication of the jurors\u2019 names, their privacy and anonymity, which ensures a neutral vote concerning guilt or innocence, was lost. Whitehead, 169 Ill. 2d at 401.\nOn these facts, this court found that defendant had \u201cnot demonstrated a substantial violation of constitutional rights.\u201d Whitehead, 169 Ill. 2d at 401. This court identified the vital question to be determined as \u201cwhether the jurors had been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial.\u201d Whitehead, 169 Ill. 2d at 401-02. While acknowledging that the publication of jurors\u2019 names and addresses was bound to have some impact, this court concluded: \u201cWe cannot infer *** on this basis that an honest juror would therefore give sway to his emotions and disregard the fundamental requirement of a fair trial and decide to convict a person in order to be absolutely secure.\u201d Whitehead, 169 Ill. 2d at 402-03.\nWhen the matter subsequently came before the Seventh Circuit Court of Appeals, that court reached the same conclusion. Whitehead v. Cowan, 263 F.3d 708 (7th Cir. 2001). The court of appeals, citing Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982), noted, \u201cthe mere fact that the jury was exposed to something which could theoretically affect its vote is not sufficient to require a new trial.\u201d Whitehead, 263 F.3d at 722. The court observed: \u201cEvidence that the jury was displeased that their anonymity was lost in a murder trial *** is a long way from evidence that jurors were less than impartial. *** There is no reasonable possibility that the publication of names and addresses affected the jury\u2019s verdict, and this is fatal to Whitehead\u2019s claim.\u201d Whitehead, 263 F.3d at 722. The court concluded there was no duty to investigate under the reasoning of Remmer, as \u201c[tjhis is not a third-party contact of the sort described in Remmer.\u201d Whitehead, 263 F.3d at 723.\nThe facts and circumstances of this case present even less cause for concern and inquiry than those at issue in Whitehead. The jurors\u2019 addresses in this case were not disclosed to the defendant or published in a public forum; therefore, neither the defendant nor the public would know where the jurors resided. Thus, the defendant in this case would have no more information about the jurors than the multitude of other defendants in criminal cases prosecuted in this state. The one juror (Juror A) who did express concern \u2014 genuine or otherwise \u2014 after learning (during sentencing) of the immunity granted to Charlene Runge was dismissed from the jury and did not sign the sentencing verdict. Unlike the situation in Whitehead, where the issue arose posttrial, the trial court in this case questioned the remaining jurors after Juror A\u2019s dismissal, and their response to the court was consistent with jurors who were willing and able to decide the case on its merits alone. Moreover, as we have noted, the court in this case had the benefit of Juror B\u2019s reports, which raised concerns only over Juror A\u2019s statements and activities. Finally, we underscore, again, the illogical premises posited by defendant. When the jurors learned of Charlene Runge\u2019s immunity, they had already found defendant guilty and eligible for the death penalty. Obviously, he could not have been a threat to them personally, irrespective of the final outcome of deliberations, and Charlene Runge would have been an unlikely threat, given her cooperation with the police.\nGiven the facts and circumstances of this case, we find that the trial court acted appropriately in this regard and defendant was sentenced by an impartial jury. Defendant\u2019s argument, in his petition for rehearing, does not persuade us to grant rehearing or alter our disposition of this case.", "type": "majority", "author": "JUSTICE KARMEIER" }, { "text": "JUSTICE BURKE,\ndissenting:\nI respectfully dissent from the majority decision on the juror misconduct issue. The majority concludes that the trial court committed no error in retaining Juror A for the guilt phase of defendant\u2019s trial and finds that the court timely removed Juror A during the sentencing phase. For the reasons below, I do not agree with the first conclusion and would grant defendant a new trial.\nOn the fifth day of the nine-day guilt phase of defendant\u2019s trial, at the conclusion of the State\u2019s case in chief, Juror B sent a note to the trial judge expressing concerns about Juror A\u2019s conduct, including:\n\u2022 Juror A cheered loudly in the jury box, saying \u201cyes. Yes, yeah\u201d after the State made some point that disproved a defense theory;\n\u2022 Juror A checked his cell phone for messages during a break, although the jurors had been instructed not to do so;\n\u2022 In the jury room that morning, one juror, reviewing her notes from trial, asked whether anyone knew if the term used in testimony was \u201ctransferrance\u201d [sic] and Juror A responded in the affirmative; and\n\u2022 In the jury room that morning, Juror A and at least one other juror were discussing a television show where a mother, her boyfriend, and the babysitter were implicated in the death of a baby, and Juror A \u201crepeated an exact quote\u201d the assistant State\u2019s Attorney had made a few days prior. The quote was, the \u201conly thing worse than committing crimes like these would be to implicate an innocent person.\u201d The jury had been twice instructed to disregard this comment as it had been stricken.\nAfter receiving the note, the trial court interviewed Juror B. The prosecutor and defense counsel were present. Juror B indicated she was \u201caghast\u201d by Juror A\u2019s cheering and believed this conduct was \u201chorribly inappropriate,\u201d particularly since it occurred at a \u201cmonumental point\u201d in the case. Juror B thereafter reiterated that Juror A\u2019s conduct was \u201creally inappropriate.\u201d Juror B was then excused and returned to the jury room.\nFollowing Juror B\u2019s interview, defense counsel requested a mistrial. Counsel noted that the jurors were obviously discussing the case before all the evidence had been presented; in fact, before defendant had even begun to present his case. Defense counsel further noted that Juror A, if his mind had not already been made up, certainly was evincing \u201cacute\u201d prejudice toward the defense through his comments and actions. Counsel requested that the trial court dismiss Juror A. The State, in response, argued there was no evidence to show Juror A\u2019s mind had been made up and described his conduct as, at most, \u201cbad behavior.\u201d The court denied defendant\u2019s motion for a mistrial and declined to rule on his request to dismiss Juror A until a later time. The jurors were returned to the courtroom and admonished not to discuss the case. The court did not question Juror A or any other juror regarding Juror A\u2019s conduct, nor did the trial court ascertain whether each of the jurors could keep an open mind until the case was submitted to him or her.\nThe next day, during the testimony of a defense expert, Juror A threw his notebook against the jury box wall. At this time, defense counsel renewed his motion to remove Juror A because he had shown contempt for the defense. The trial judge conducted an in camera interview of Juror A. Juror A advised the judge that he was having \u201csome difficulty, but I have my own opinions and things.\u201d Juror A further indicated that many of the jurors were frustrated because they could not write down everything they wanted to. The court then inquired of Juror A:\n\u201cTHE COURT: Did you formulate any opinion about this case at all, whether or not\u2014\nJUROR A: No final opinions because I don\u2019t have all the evidence and facts, yet.\nTHE COURT: I told earlier [stc], at the beginning of the case, the defendant is presumed to be innocent of the charge against him.\nJUROR A: Absolutely.\nTHE COURT: You still understand that?\nJUROR A: Yes, I do.\nTHE COURT: Do you have any problem being able to follow that rule of law basically?\nJUROR A: No, sir. No.\nTHE COURT: Okay. Do you have any opinions as to whether or not the defendant\u2019s guilty or innocent of the charge against him at the present time?\nJUROR A: Not completely, no.\nTHE COURT: What do you mean by that?\nJUROR A: Well, I don\u2019t have all the facts.\n* * *\nTHE COURT: Is there anything about what\u2019s happened with the trial so far that would in any way prevent you from giving either side in this case a fair trial.\nJUROR A: No.\u201d\nThe court dismissed Juror A back to the jury room. Defense counsel again requested that Juror A be excused. The court refused, taking Juror A at his word. The court found that Juror A threw his notes because he was frustrated, which the trial court did not view as unusual. The court did not inquire of any other juror as to how Juror A\u2019s conduct may have affected them. Thereafter, the jury returned guilty verdicts against defendant.\nBoth the United States and Illinois Constitutions guarantee an accused the right to trial by an impartial jury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7\u00a7 8, 13; People v. Strain, 194 Ill. 2d 467, 475 (2000); see generally G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 41 (1969). This right \u201cis so basic that a violation of the right requires a reversal[] (Chapman v. California, 386 U.S. 18; Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437[ ])\u201d since it \u201cviolates even the minimal standards of due process. Turner v. Louisiana, 379 U.S. 466, 471-472, 13 L. Ed. 2d 424, 428, 85 S. Ct. 546.\u201d People v. Cole, 54 Ill. 2d 401, 411 (1973). To be impartial, a juror \u201cshould stand indifferent between the parties. *** \u2018It is essential that every juryman should be wholly free, even from the suspicion of bias, and be omni exceptione majores [above all exception].\u2019 Dauncey v. Berkeley, cited in 3 Chit. Gen. Prac., 795.\u201d (Emphasis added.) Coughlin v. People, 144 Ill. 140, 163-64 (1893).\nThe majority acknowledges that a trial by a biased jury deprives a defendant of a fair trial and warrants reversal. Yet, even with the brazen conduct of Juror A, the misconduct of the other jurors in discussing the evidence and stricken comments, and the lack of even minimal inquiry by the trial court to ascertain whether Juror A or the other jurors remained impartial, the majority concludes that the facts support the trial court\u2019s determination to allow Juror A to remain on the jury through the guilt and eligibility stages. I do not agree.\nThe majority first relies on the fact the trial court examined Juror A during voir dire, at which time Juror A indicated that he could be fair, that he held no strong beliefs about the death penalty, and that he would consider evidence regarding insanity. I disagree that the voir dire questioning can support a finding that the trial court acted properly.\nThis questioning occurred long before Juror A engaged in misconduct and has no bearing on what ultimately occurred at defendant\u2019s trial. The voir dire conducted prior to trial is irrelevant to whether Juror A formed or began to form an opinion during the trial or later became biased against defendant.\nInstructive on this question is People v. Peterson, 15 Ill. App. 3d 110 (1973). In Peterson, after the jury had been sworn, one of the jurors approached defendants\u2019 attorney and stated she \u201cwas praying that the defendants will plead guilty\u201d so she could go home. Peterson, 15 Ill. App. 3d at 110. Defense counsel requested that the court remove the juror. The record discloses there was little discussion of the matter and that the trial court summarily denied defense counsel\u2019s request. Peterson, 15 Ill. App. 3d at 111. On appeal, the appellate court disagreed with the State\u2019s contention that the juror\u2019s comment \u201cdid not warrant any inquiry on the part of the trial judge to determine the juror\u2019s attitude because her impartiality had already been determined during the voir dire.\u201d Peterson, 15 Ill. App. 3d at 111. Rather, the court concluded that \u201cthe remark itself vitiates any previous conclusion made as to impartiality on voir dire, and, without further inquiry, there was no way for the trial court to make a sound judgment on her present state of mind.\u201d Peterson, 15 Ill. App. 3d at 111.\nAs in Peterson, Juror A\u2019s misconduct, not only in cheering in the jury box when the State made a point at a \u201cmonumental moment,\u201d but also in throwing his notes during the defense expert\u2019s testimony, \u201cvitiates any previous conclusion made as to impartiality on voir dire.\u201d Peterson, 15 Ill. App. 3d at 111. As such, the majority\u2019s reliance on voir dire questioning is inappropriate in determining whether Juror A remained impartial at defendant\u2019s trial.\nThe majority further relies on the fact that, during the guilt phase of the trial, the judge repeatedly admonished the jurors not to discuss the case before all the evidence was heard. Again, I do not agree that this action was sufficient. The record firmly establishes these admonishments were ineffective. The jurors did not obey the court\u2019s directives but instead discussed the case and evidence throughout the trial. This included a discussion of transference, a term that related to defendant\u2019s insanity defense \u2014 the core issue at trial \u2014 and a portion of the testimony that was stricken from the record. Therefore, I cannot agree that the court\u2019s admonitions were sufficient to cure any problem as the majority concludes.\nThe majority also emphasizes that the determination of juror impartiality rests within the sound discretion of the trial judge: \u201cThe applicable standard of review, after the trial judge has made an appropriate inquiry, is an abuse of discretion standard ***.\u201d (Emphasis added.) 234 Ill. 2d at 105. There is no question this is a correct statement of the law. However, I do not believe that the record is sufficient to demonstrate the trial judge in the case sub judice properly exercised his discretion since there is no evidence that he conducted an \u201cappropriate\u201d inquiry.\nIn United States v. Resko, 3 F.3d 684 (3d Cir. 1993), the Third Circuit emphasized the importance of an adequate record so that a reviewing court would have the means to ascertain the propriety of the trial court\u2019s decision. In Resko, seven days into the nine-day trial, the district court learned that the members of the jury had been discussing the case during recesses and while waiting in the jury room. Resko, 3 F.3d at 687. Defendant\u2019s attorneys moved to question each juror individually, but the court denied the request. Resko, 3 F.3d at 687. The court also denied defense counsel\u2019s motion for a mistrial. Resko, 3 F.3d at 688. Rather, the court summoned the jurors, informed them collectively of the problem, and gave them a two-part written questionnaire. The questionnaire asked the jurors: (1) whether he or she had discussed the facts of the case with one or more of the jurors; and (2) if yes, whether, because of those discussions, he or she had formed an opinion about the guilt or innocence of the defendant. Resko, 3 F.3d at 688. Each juror responded in the affirmative to the first question and in the negative to the second. The district court investigated no further. Thereafter, the jury returned guilty verdicts against both of the defendants. Resko, 3 F.3d at 688. On appeal, the Third Circuit found that it simply had an insufficient record upon which to evaluate any potential prejudice to the defendants. The court concluded that \u201cin the circumstances here, in which there is unequivocal proof of jury misconduct discovered mid-trial coupled with a failure by the district court to evaluate the nature of the jury misconduct or the existence of prejudice, *** a new trial is warranted.\u201d Resko, 3 F.3d at 694.\nThe Resko court found that the method utilized by the district court was inadequate to fulfill its responsibility of determining whether the defendants suffered any prejudice from the jury\u2019s misconduct. Resko, 3 F.3d at 691. The court concluded that the district court should have engaged in further inquiry, such as individualized questioning, to determine whether the jurors maintained open minds. Resko, 3 F.3d at 691. Even though every juror admitted to premature discussions, the district court failed to engage in any additional investigation beyond the cursory questionnaire. Because of this, \u201cthere [wa]s no evidence in the record one way or the other regarding prejudice to the defendants.\u201d Resko, 3 F.3d at 690. Specifically, without further inquiry by the district court, the reviewing court had \u201cno way to know the nature of the jurors\u2019 discussions and whether these discussions in fact resulted in prejudice to the defendants.\u201d Resko, 3 F.3d at 690. Moreover, \u201cthe absence of information and the consequent inability of the district court meaningfully to assess the nature and extent of the jurors\u2019 premature discussions in order to ascertain whether there ha[d] been any prejudice to the defendants create[d] a highly problematic situation.\u201d Resko, 3 F.3d at 690. The Resko court noted that \u201c[a] trial judge does not possess talismanic powers.\u201d Therefore, in the absence of any effort to evaluate the effect of the juror misconduct, \u201cthe judge can only guess as to the existence or non-existence of prejudice.\u201d Resko, 3 F.3d at 694. Likewise, in the absence of any record, a reviewing court is similarly left to speculate whether the district court acted properly. Resko, 3 F.3d at 694; accord United States v. Bertoli, 40 F.3d 1384, 1396 (3d Cir. 1994) (distinguishing Resko on its facts but holding, in reliance on Resko, that a reviewing court must satisfy itself that the trial court engaged in a meaningful assessment of whether there was any prejudice to defendant, and that when a trial court fails to conduct a meaningful assessment, a reviewing court cannot evaluate its conduct and, thus, remand for a new trial is proper).\nIn United States v. McClinton, 135 F.3d 1178 (7th Cir. 1998), two jurors were overheard by other jurors making potentially racist comments, which also appeared to indicate that at least one of the jurors had prejudged the defendants\u2019 guilt. McClinton, 135 F.3d at 1185. When one of the defendants moved for a mistrial, the district court questioned each of the jurors individually, asking, \u201cwhether they had any personal knowledge of the conversation, heard any other statements of this sort, shared any of these beliefs about African-Americans, or had any bias or prejudice toward African-Americans.\u201d McClinton, 135 F.3d at 1185. The court further inquired of each juror, whether \u201cthe statements influenced the jurors in any way; whether they could keep an open mind about the defendants\u2019 guilt or innocence; and whether they could not be impartial for any reason.\u201d McClinton, 135 F.3d at 1185. Not only did the district court judge question each juror individually and in detail, she also allowed the attorneys to question the jurors. In the course of this questioning, the district court judge was able to determine which jurors had made inappropriate comments and the exact nature of the comments. McClinton, 135 F.3d at 1185. After doing so, the court excused one of the jurors and admonished the rest regarding the importance of keeping an open mind. On appeal, the Seventh Circuit noted that \u201c[t]he tool for examining an intrinsic influence like juror bias *** is a voir dire.\u201d McClinton, 135 F.3d at 1186. The court then held that the district court\u2019s handling of the matter and the decision to question individual jurors was \u201ca reasonable response to a difficult situation\u201d and, therefore, was not an abuse of discretion. McClinton, 135 F.3d at 1188.\nIn United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007), the Seventh Circuit was again faced with the problem of juror misconduct. Interpreting McClinton, the Vasquez-Ruiz court noted: \u201cThe broader point here [in McClinton\u2019s holding] is that the district court\u2019s actions resulted in the development of a record that enabled both that court and this one to evaluate the degree of prejudice that had developed, and to come to a reasoned conclusion on the question whether the curative steps were adequate.\u201d Vasquez-Ruiz, 502 F.3d at 706. In Vasquez-Ruiz, however, the court found the record was \u201ctoo sparse\u201d and lacked information. Therefore, the reviewing court could not conclude there was no prejudice to the defendants from juror misconduct. Vasquez-Ruiz, 502 F.3d at 707.\nThe unifying principle in these cases is that, once it is established there has been jury misconduct, the trial court must make an adequate record. In the absence of an adequate record, the reviewing court cannot make an intelligent review of the trial court\u2019s conduct.\nApplying these principles to the case at bar, the trial judge should have interviewed Juror A after the court learned that he cheered in the jury box. The majority acknowledges that Juror A\u2019s \u201ccheering\u201d for the prosecution \u201cwould have suggested that Juror A had a biased view of the case.\u201d 234 Ill. 2d at 121. Nevertheless, the majority fails to explain, let alone address, why the trial court need not have questioned Juror A at that juncture regarding his \u201ccheering.\u201d In my view, the trial court should have ascertained exactly what Juror A was cheering about and why. Only in this way could the court determine whether Juror A remained impartial or whether he was in fact biased against defendant. Since we have no record from which to conclude that Juror A remained impartial at this time and because his conduct points to the contrary, I would find that the trial court erred when it refused defense counsel\u2019s request that Juror A be dismissed.\nI additionally believe that the trial judge also should have inquired of Juror B whether Juror A\u2019s cheering influenced her in any way. This is especially true in light of the fact she admitted to the court she was \u201caghast\u201d by Juror A\u2019s conduct and believed it \u201chorribly\u201d and \u201creally\u201d inappropriate. Instead of ascertaining the effect Juror A had on Juror B, the trial court simply sent Juror B back to the jury room. Lastly, I believe that when the court received Juror B\u2019s note and became aware of the misconduct of Juror A and others, the judge had a responsibility to inquire of all of the jurors whether Juror A\u2019s misconduct had any effect on their opinions or beliefs in the case.\nThe trial court failed to engage in any investigation after Juror B reported misconduct by Juror A and other jurors. Thus, the trial court possessed no ability to meaningfully assess the situation. There is simply no way to know whether Juror A\u2019s cheering or the premature discussions of the evidence influenced any of the jurors to the extent that they were no longer impartial. The trial court had no means to evaluate the jurors\u2019 demeanor or credibility in making a finding regarding a historical fact, i.e., whether or not each juror retained an open mind. Accordingly, the record here is entirely inadequate for us to determine whether the trial court properly exercised its discretion.\nThe facts of the case sub judice are akin to Resko and Vasquez-Ruiz. Here, we have unequivocal proof of juror misconduct, yet the trial judge did nothing to make an adequate record from which it could make a reasoned decision about the jurors\u2019 continued impartiality. Accordingly, we too can only speculate.\nIt is true that the trial judge did question Juror A following the \u201cnote throwing incident.\u201d Regarding this event, the majority states:\n\u201cWe would observe that Juror A must have realized at th[is] juncture that certain negative answers to the court\u2019s questions would likely have gotten him off the jury and returned him to gainful employment if that was his desire. Yet, he did not follow that course. His diligence in trying to take notes during the defendant\u2019s case seems to confirm his response to the court that he had formed \u2018no final opinions. \u2019 If he had, what would be the point of taking notes?\u201d (Emphasis added.) 234 Ill. 2d at 121-22.\nI respectfully submit that the majority is engaging in pure speculation here. One could just as easily conclude that Juror A desired to remain on the jury because he had developed a bias against defendant and wanted to stay on the jury to convict him. It is possible that Juror A took notes in order to better sway the other jurors to his biased view. As the court in Resko stated, \u201conce a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion.\u201d Resko, 3 F.3d at 689. Moreover, one could also argue that the evidence tends to support this alternative conclusion since the record shows that the jurors were discussing transference and were talking about evidence they were instructed to disregard.\nDespite the inadequacy of the record, the majority concludes that there are insufficient facts and circumstances to overturn the trial court\u2019s determination that Juror A was qualified to serve. In support of its conclusion, the majority relies upon United States v. Harris, 908 F.2d 728 (11th Cir. 1990), and Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004).\nWith respect to Harris, the majority finds:\n\u201cWe believe Juror B\u2019s report of Juror A\u2019s \u2018cheering\u2019 is at least as ambiguous, as to intent and context, as the remark attributed to the juror in Harris. Significantly, Juror B reported that Juror A was \u2018cheering out loud vocally\u2019 when \u2018the prosecution had made some points.\u2019 If that were true, the parties and the trial judge would have heard it if they were in the courtroom. At one point during her report, Juror B told the trial court, \u2018I think you had gone back to have a discussion, maybe came back out. I can\u2019t remember exactly when it was.\u2019 Of course, if the parties and the trial judge were out of the courtroom, the \u2018cheering\u2019 could hardly have occurred contemporaneously with \u2018a monumental point\u2019 in the prosecution\u2019s cross-examination, as Juror B represented.\u201d (Emphases in original.) 234 Ill. 2d at 123.\nJuror A\u2019s \u201ccheering\u201d would not be ambiguous, either in intent or context, if the trial court had simply questioned Juror A about it. Moreover, the majority\u2019s comments regarding the timing of the cheering are again speculative. Had the trial court inquired of Juror A, we would know precisely when the comment was made and whether it was truly a \u201cmonumental\u201d point of the State\u2019s case.\nMoreover, Harris is not persuasive authority. In Harris, in addition to finding the comment ambiguous, the Eleventh Circuit noted that the district court refused to investigate the juror\u2019s remark because \u201cafter several weeks of trial the jurors would naturally begin to form an opinion of the case.\u201d Harris, 908 F.2d at 734. In finding this to be a valid rationale, the Eleventh Circuit relied upon Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980), where the court found no abuse of discretion when the district court denied a motion for a new trial after a juror remarked that \u201c \u2018as far as I\u2019m concerned, [from] what I heard already he\u2019s [the defendant\u2019s] guilty.\u2019 \u201d Grooms, 610 F.2d at 346. The Grooms court reasoned that the comment, which was made at the end of the prosecution\u2019s case but before the defense presented any evidence, \u201cdoes not reflect serious prejudice, but only an objective evaluation of the evidence presented to date in the trial.\u201d Grooms, 610 F.2d at 348.\nThe Grooms court cited no authority for this proposition, which is contrary to the principles of jury deliberation and defies common sense. Jurors are not supposed to evaluate evidence and form an opinion on the merits of the case until all the evidence has been heard, they have been properly instructed by the court, and they assemble as a group for deliberation. This is so because, \u201conce a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion.\u201d Resko, 3 F.3d at 689. The Grooms decision is poorly reasoned and, in my view, warrants rejecting Harris as persuasive authority.\nI also believe the majority\u2019s reliance on Davis is misplaced. Unlike the case at bar, Davis did not involve any allegation of juror misconduct. Rather, at issue in Davis was whether a juror\u2019s note asking questions about the death penalty indicated juror bias. Davis, 384 F.3d at 652-53. Accordingly, the Davis court did not engage in any analysis regarding juror misconduct, the relevant question here.\nFurther, I disagree with the majority\u2019s statement that there was \u201ceven less evidence of juror bias\u201d here \u201cthan that extant in Davis.\u201d 234 Ill. 2d at 126. In Davis, one juror sent a note to the trial judge and there was no evidence the other jurors were even aware of it. Here, however, we have two instances of misconduct on the part of Juror A, of which other jurors were clearly aware, and instances of misconduct by other jurors as well. Moreover, I do not agree with the majority\u2019s statement that only Juror A\u2019s impartiality was \u201cever really in question.\u201d 234 Ill. 2d at 126. Again, other jurors engaged in misconduct, yet were never interviewed. It is pure speculation as to whether they remained impartial. Thus, while the majority concludes that it \u201cappears\u201d (234 Ill. 2d at 126) the trial judge acted appropriately, I do not believe the record is sufficient for us to make that determination.\nAddressing the question of whether the impartiality of other jurors was adversely affected by Juror A\u2019s misconduct, the majority finds that because Juror B, the foreperson, was \u201cextremely diligent\u201d in reporting Juror A\u2019s improprieties, and her concerns centered only on Juror A, \u201c[i]t is a reasonable inference that she would have reported others had she believed there was a need to do so.\u201d 234 Ill. 2d at 127.\nAgain, this is pure speculation on the part of the majority. I note that Juror B was hesitant to bring these matters to the attention of the trial judge and that she did not want the other jurors to know she was reporting the misconduct. Thus, one could just as easily conclude that Juror B turned a blind eye to other problems or failed to report them because she was concerned the rest of the jury would perceive her as a \u201ctroublemaker.\u201d After all, Juror B stated that Juror A was popular and well-liked on the panel, that he was \u201creally nice,\u201d \u201cvery witty,\u201d \u201cvery clever,\u201d and \u201ckeeps morale going well.\u201d According to Juror B, \u201ceveryone really really like[d] [Juror A].\u201d\nMoreover, the majority\u2019s speculation assumes Juror B witnessed all instances of misconduct. However, given the length of the trial, Juror B may not have been privy to all misconduct. Similarly, even if Juror B was \u201cdiligent,\u201d her diligence was not necessarily shared by the other jurors. Lastly, Juror A was not the only jury member who engaged in some of the misconduct Juror B reported. The other jurors\u2019 misconduct demonstrates that they did not follow the court\u2019s directives and instructions, but rather ignored them and violated them. Therefore, it cannot be presumed from Juror B\u2019s \u201cdiligence\u201d that the other jurors remained impartial. In any event, the majority\u2019s speculation and assumption would be unnecessary had the trial court granted defense counsel\u2019s requests and questioned each juror individually.\nIn support of its conclusion that the trial court\u2019s actions in this case were \u201cappropriate and sufficient\u201d (234 Ill. 2d at 129), the majority comments that courts tend to \u201cminimize the impact that one juror\u2019s views may have on others.\u201d 234 Ill. 2d at 129. The majority relies on United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), and United States v. Paneras, 222 F.3d 406 (7th Cir. 2000), to support this rationale. Neither case is persuasive here.\nIn Yeje-Cabrera, a juror sent a note to the district court judge stating her belief that the defendants should be cross-examined. There was no evidence she expressed this view to other jurors or that they were aware of the note. Thereafter, the district court strongly admonished the jurors regarding the burden of proof and the fact they were not to discuss the case. The court further instructed the jurors that if each could not follow these instructions, he or she was to speak to the clerk. The court then polled the jury as a whole, asking for a show of hands as to whether any had discussed the case. No hands were raised. Thereafter, the only juror to contact the clerk and court was the sender of the note, who was dismissed. Importantly, there was no contact between the sender of the note and the rest of the members of the jury between the time the jury panel was admonished and the sender of the note was dismissed.\nYeje-Cabrera is clearly distinguishable from the case at bar. First, the note in Yeje-Cabrera did not demonstrate bias, while Juror A\u2019s conduct in this case did. Moreover, unlike Yeje-Cabrera, there is no question in this case that other jurors were exposed to and were aware of Juror A\u2019s conduct. Further, in Yeje-Cabrera the court observed that, \u201c[e]ven if the one juror had communicated her views to the other jurors, there is also no reason to think those jurors were dissuaded from following the instructions of the judge.\u201d Yeje-Cabrera, 430 F.3d at 11. Here, in contrast, the record clearly discloses that other jurors did not follow the court\u2019s instructions or directives. Finally, and perhaps most important, unlike Yeje-Cabrera, the jurors in this case were not admonished following the cheering incident or the note-throwing incident in any manner, let alone told that if they had any sort of problem, they should contact the clerk or the court. Thus, Yeje-Cabrera simply does not support the conclusion that the trial judge did not err in this case.\nPaneras is similarly inapposite. In Paneras, the juror, a professional artist, drew a humorous depiction of the defendant\u2019s acts as described during the trial. The district court found that the conduct was \u201cfairly benign.\u201d Paneras, 222 F.3d at 411. Here, in contrast, Juror A\u2019s conduct in cheering and throwing his notes in the jury box during the course of trial cannot, in any sense, be described as \u201cbenign.\u201d Moreover, the challenged conduct in Paneras occurred during jury deliberation, the time when the jurors should be discussing the case, expressing their views, and reaching a decision. In this case, the conduct occurred during the course of defendant\u2019s trial, when jurors should not express any views or have formed any opinion. Accordingly, Paneras does not support a finding that the trial court\u2019s inaction in this case was appropriate.\nThe majority further relies on the collective questioning of jurors, and the trial court\u2019s reminder to them that they were not to arrive at any conclusions before all the evidence was heard. When asked whether they could still comply with this directive, the jury responded in the affirmative. The majority states, \u201cWe have no reason to believe that they lied to the trial court when they made this affirmation,\u201d and concludes that \u201cunder the circumstances, we cannot say that the trial court erred in not conducting a more extensive inquiry or questioning jurors individually before proceeding.\u201d 234 Ill. 2d at 131.\nI find this reasoning to be faulty. First and most importantly, this questioning occurred during the sentencing phase, not during the trial. During the guilt phase, the trial court never inquired collectively, let alone individually, as to whether the jurors could comply with this directive or whether they remained impartial. Whether the jurors could comply with this directive at sentencing, after already convicting defendant, is irrelevant to whether they remained impartial during the guilt phase.\nMoreover, through this collective admonishment, the circuit court allowed the jurors to decide their own impartiality. This is improper. \u201cIt has been held that jurors themselves are incapable of knowing the effect which prejudicial matters might have upon their unconscious minds.\u201d People v. Hryciuk, 5 Ill. 2d 176, 184 (1954). Again, I do not believe reliance on this belated collective questioning is appropriate to support a finding that the trial court acted properly.\nThe majority acknowledges that a trial judge has a duty under the law to be \u201c \u2018ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.\u2019 \u201d 234 Ill. 2d at 103, quoting Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 86, 102 S. Ct. 940, 946 (1982). This is particularly true in a capital case. See People v. Thompson, 222 Ill. 2d 1, 35 (2006) (because of the seriousness of a capital case, the record should be subject to \u201cintense scrutiny\u201d). See also Baze v. Rees, 553 U.S. 35, 84, 170 L. Ed. 2d 420, 453, 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring) (\u201crisk of error in capital cases may be greater than in other cases because the facts are often so disturbing\u201d).\nYet here, where there was obvious misconduct by Juror A and other jurors in a capital case, the trial judge did nothing to determine what effect Juror A\u2019s misconduct had on the other jurors, nor did it ascertain whether all the jurors remained impartial during the guilt phase. It is the failure to inquire, in my mind, that constitutes reversible error and warrants a new trial. I do not agree with the majority\u2019s conclusion that \u201cdefendant received \u2018precisely what due process required: a fair trial before an impartial and properly instructed jury.\u2019 \u201d 234 Ill. 2d at 131, quoting Rivera v. Illinois, 556 U.S. at 162, 173 L. Ed. 2d at 331-32, 129 S. Ct. at 1456. Because of the trial judge\u2019s failure to question the members of the jury, there are insufficient facts from which to make this determination.\nI recognize that the crimes at issue here, described in lengthy detail by the majority, were horrific. But it is precisely these types of cases that test our commitment to the principle of law. We must not allow ourselves to be swayed by emotion. Given Illinois\u2019 past history with capital cases, the majority\u2019s opinion sends the wrong message about how these cases will be treated in Illinois.\nBecause I believe defendant is entitled to a new trial, I need not address, or render any findings, regarding the misconduct that occurred during the sentencing phase and whether the trial court timely dismissed Juror A.\nJUSTICES FREEMAN and KILBRIDE join in this dissent.", "type": "dissent", "author": "JUSTICE BURKE," } ], "attorneys": [ "Michael J. Pelletier, State Appellate Defender, Charles M. Schiedel, Deputy Defender, and Steven Clark, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.", "Lisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg and Jon J. Walters, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 103529.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL RUNGE, Appellant.\nOpinion filed May 21, 2009.\nModified upon denial of rehearing September 28, 2009.\nMichael J. Pelletier, State Appellate Defender, Charles M. Schiedel, Deputy Defender, and Steven Clark, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.\nLisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg and Jon J. Walters, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0068-01", "first_page_order": 80, "last_page_order": 185 }