{ "id": 4261573, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTIS DOUGLAS, Defendant-Appellant", "name_abbreviation": "People v. Douglas", "decision_date": "2005-10-21", "docket_number": "No. 1\u201403\u20142564", "first_page": "65", "last_page": "82", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 65" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "798 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "207 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974997 ], "year": 2003, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0288-01" ] }, { "cite": "757 N.E.2d 589", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 354", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570403 ], "year": 2001, "pin_cites": [ { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0354-01" ] }, { "cite": "723 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "210", "parenthetical": "stating that \"[t]he propriety of the sentence imposed in a particular case cannot properly be judged by the sentence imposed in another, unrelated case\"" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224785 ], "year": 1999, "pin_cites": [ { "page": "56", "parenthetical": "stating that \"[t]he propriety of the sentence imposed in a particular case cannot properly be judged by the sentence imposed in another, unrelated case\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0048-01" ] }, { "cite": "718 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131039 ], "year": 1999, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0271-01" ] }, { "cite": "617 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "399", "parenthetical": "Doyle, J., dissenting" }, { "page": "399" }, { "page": "400" }, { "page": "402", "parenthetical": "Doyle, J., dissenting" } ], "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 518", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928616 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "536-38", "parenthetical": "Doyle, J., dissenting" }, { "page": "532-33" }, { "page": "534" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0518-01" ] }, { "cite": "758 N.E.2d 430", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570714 ], "year": 2001, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0448-01" ] }, { "cite": "782 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "870" }, { "page": "870", "parenthetical": "considering those circumstances in deciding whether the defendant was eligible for a life sentence based on exceptionally brutal or heinous behavior indicative of wanton cruelty" } ], "opinion_index": 0 }, { "cite": "336 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599200 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "431" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0425-01" ] }, { "cite": "779 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 2002, "pin_cites": [ { "page": "498" }, { "page": "499" }, { "page": "503" }, { "page": "503" }, { "page": "500" }, { "page": "499", "parenthetical": "noting that an absence of criminal history is a mitigating factor in sentencing under section 5 - 5-3.1(7) of the Code (730 ILCS 5/5 - 5-3.1(7) (West 1998))" } ], "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521945 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "1003" }, { "page": "1004" }, { "page": "1008" }, { "page": "1008" }, { "page": "1004-05" }, { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0993-01" ] }, { "cite": "592 N.E.2d 940", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "949" } ], "opinion_index": 0 }, { "cite": "148 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283348 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0070-01" ] }, { "cite": "548 N.E.2d 1025", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "1032" }, { "page": "1032" } ], "opinion_index": 0 }, { "cite": "132 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589223 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "466" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0451-01" ] }, { "cite": "750 N.E.2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "683", "parenthetical": "rejecting a similar argument urging de novo review" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126378 ], "year": 2000, "pin_cites": [ { "page": "720", "parenthetical": "rejecting a similar argument urging de novo review" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0707-01" ] }, { "cite": "797 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "224" }, { "page": "223" } ], "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718257 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "338-39" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0331-01" ] }, { "cite": "821 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3218000 ], "year": 2004, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0760-01" ] }, { "cite": "781 N.E.2d 292", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "202 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442047 ], "year": 2002, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0378-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "687 N.E.2d 820", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "178 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385528 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/178/0065-01" ] }, { "cite": "493 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3537245 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0840-01" ] }, { "cite": "632 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 942", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864084 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0942-01" ] }, { "cite": "676 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544449 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0485-01" ] }, { "cite": "529 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "124 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217740 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/124/0166-01" ] }, { "cite": "642 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1232" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477542 ], "year": 1994, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0224-01" ] }, { "cite": "502 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "352" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501430 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "1020" }, { "page": "1021" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/1009-01" ] }, { "cite": "718 N.E.2d 1025", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "1031-32" }, { "page": "1031-32" } ], "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 518", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173523 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "527-28" }, { "page": "528" }, { "page": "528" }, { "page": "527-28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0518-01" ] }, { "cite": "688 N.E.2d 1166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1169" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801345 ], "year": 1997, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0319-01" ] }, { "cite": "470 N.E.2d 1176", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1179", "parenthetical": "noting that \"prejudice is the natural result of erroneously instructing the jury on an uncharged offense\" (emphasis in original)" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525233 ], "year": 1984, "pin_cites": [ { "page": "563", "parenthetical": "noting that \"prejudice is the natural result of erroneously instructing the jury on an uncharged offense\" (emphasis in original)" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0560-01" ] }, { "cite": "497 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3570862 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0632-01" ] }, { "cite": "94 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "406 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2634838 ], "year": 1950, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill/406/0323-01" ] }, { "cite": "84 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "402 Ill. 558", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617975 ], "year": 1949, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0558-01" ] }, { "cite": "718 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "157" }, { "page": "157" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131040 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "312" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0301-01" ] }, { "cite": "789 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1245" } ], "opinion_index": 0 }, { "cite": "204 Ill. 2d 332", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609698 ], "year": 2003, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0332-01" ] }, { "cite": "491 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "428" }, { "page": "428" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3447944 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "37-38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0021-01" ] }, { "cite": "669 N.E.2d 1253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1258" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. 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OTIS DOUGLAS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GALLAGHER\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Otis Douglas was convicted of home invasion and of the first degree murder of Michael Carter. The trial court imposed an extended-term sentence of 70 years for the murder and a consecutive 30-year term for the home invasion. On appeal, defendant challenges the effectiveness of his trial counsel, contending that his attorneys failed to object to hearsay evidence and did not request an instruction on concealment of a homicide even though counsel conceded that defendant concealed Carter\u2019s death. Defendant also raises several arguments regarding his extended-term sentence, which was imposed based on the jury\u2019s finding that the killing was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and the trial court\u2019s consideration of various factors. For the reasons that follow, we affirm defendant\u2019s convictions and sentence.\nDefendant was charged with first degree murder, home invasion and concealment of a homicidal death. Before trial, the State dismissed the concealment count via a nolle prosequi and tried defendant on the remaining two offenses.\nThe testimony presented at trial revealed a love triangle among Carter, defendant and Donna Lindo. Lindo testified that she and Carter began dating in the early 1990s and that they lived together. When Carter moved to Maryland in February 1999, they maintained a long-distance dating relationship. Later in 1999, Lindo met defendant at a club, and they began dating. Lindo testified that shortly thereafter, she told defendant about her romantic relationship with Carter. Defendant told Lindo that he lived with another woman and their child but that his relationship with the woman was not good.\nLindo stated that Carter visited her in November 1999 and stayed for two weeks. Meanwhile, Lindo and defendant began to see each other three times a week, with defendant spending the night at Lin-do\u2019s townhouse in Des Plaines. However, Carter was planning to return to Illinois from Maryland and wanted to live with Lindo. Lindo testified that when defendant told her he wanted to move in with her, she said he could not because her boyfriend was \u201ccoming home.\u201d Lindo said defendant \u201cseemed upset\u201d at that news. Defendant told Lindo he wanted to continue their relationship after Carter moved in, and Lindo refused.\nHowever, defendant spent the night at Lindo\u2019s residence on February 14, 2000. The next day, Lindo told defendant that Carter would be visiting her that week and asked defendant not to call her or come to her townhouse during Carter\u2019s visit. Lindo testified that she communicated with defendant solely via his cellular phone and did not know his last name or home address.\nLindo expected Carter to arrive on the morning of February 17, 2000, and she stayed home from work that morning to wait for him and also to await a furniture delivery. When Lindo left for work at 10 a.m. after the furniture was delivered, Carter had not yet arrived. Lindo testified that on her way to work, she called defendant and they had a \u201ccasual conversation\u201d about her new furniture.\nCarter called Lindo between noon and 12:30 p.m. to tell her he had arrived at her townhouse and was watching TV and eating crackers in the basement. Carter called Lindo a second time and told her someone had been calling the townhouse and hanging up when he answered. Lindo suggested that Carter check the caller ID to determine the origin of the calls. Carter did and said the caller\u2019s number was blocked. Lindo called defendant and asked if he had been calling her home and hanging up. Defendant said he was not.\nLindo testified that at about 1:30 p.m., she spoke to Carter for a third and final time. During their conversation, another call came through via call waiting. Carter switched to the other call and then returned to Lindo and told her the phone was \u201cmessing up.\u201d At that point, their call was disconnected. Lindo\u2019s repeated calls to her home were unanswered.\nBetween 3:30 and 4 p.m., Lindo\u2019s son called Lindo as he customarily did when he returned home from school. Lindo asked him to see if Carter was in the basement. Lindo\u2019s son told her no one was in the basement and that \u201cred stuff\u201d was on the floor and some speakers had been overturned. Lindo returned home to find splashes of blood on the walls of her basement laundry room and clothing on the floor. A handwritten note left on Lindo\u2019s bed upstairs stated: \u201cBicth [sic], when I come back I\u2019m going to kill you.\u201d A jacket and luggage also were found in Lindo\u2019s bedroom; those items were later identified by Carter\u2019s mother as belonging to her son.\nDes Plaines police and evidence technicians testified that blood was found on the floor of the laundry room and throughout the room, including in the utility sink. A plate of crackers was found on the floor of the basement near the laundry room. Footprints led from the laundry room to Lindo\u2019s bedroom, where the threatening note was found.\nThe testimony of Izette Curtis and Wilton Jackson, two acquaintances of defendant, established that defendant borrowed a car from them on February 17 and that he was carrying an ax. Curtis and Jackson later found bloodstains on a tool found in the car\u2019s trunk. In a search of defendant\u2019s residence on February 18, police recovered a pair of jeans with bloodstains and DNA that matched Carter.\nLindo had testified that defendant drove a white Lexus. Salvador Avalos, who lived in the townhouse next to Lindo\u2019s, testified that he saw a white Lexus parked near Lindo\u2019s unit at about 2:30 p.m. on February 17. On prior occasions, Avalos had seen defendant in the Lexus; Avalos later identified defendant in a police lineup. A second witness testified to seeing a white Lexus in the townhouses\u2019 parking lot between 2 and 4 p.m. Donald Donerson, a neighbor of defendant, testified that he saw defendant washing his car with a hose and cleaning out the trunk between 3:40 and 4 p.m. on February 17.\nThe parties stipulated to defendant\u2019s cell phone number and Lin-do\u2019s home phone number and to record . of phone calls made from and received at those numbers. The parties also stipulated that defendant cancelled his cellular phone account on February 17 and received a new cell phone number.\nOn February 29, Carter\u2019s partially burned body was recovered from an auto body shop. Adrienne Segovia, a deputy Cook County medical examiner, testified that she performed an autopsy on Carter\u2019s body, which was headless. The forearms and lower legs had been severed. Stab wounds were present on the chest and back, and Segovia testified that based on evidence of hemorrhaging in the wounds and inhaled blood in the lungs, the stab wounds occurred while Carter was still alive. An ax wound near Carter\u2019s spinal cord showed signs of hemorrhaging, which indicated that the wound was inflicted while Carter was alive. Segovia testified that the irregular nature of the wounds that severed Carter\u2019s head and limbs also was consistent with being caused by an ax. The limbs were severed after death. Photographs of Carter\u2019s wounds were shown to the jury.\nThe jury was instructed that if it found defendant guilty of first degree murder, it must then decide whether the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The jury convicted defendant of first degree murder and home invasion and also found that Carter\u2019s death was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.\nBefore sentencing, the trial court heard testimony in aggravation and mitigation. The court sentenced defendant to an extended term of 70 years for the murder and a consecutive 30-year sentence for home invasion. Defendant\u2019s motion for reduction or modification of his sentence was denied.\nANALYSIS\nDefendant raises three arguments of ineffectiveness of his trial counsel. Defendant first asserts that Lindo\u2019s testimony detailing her telephone conversations with Carter prior to the murder was hearsay and counsel was ineffective in failing to object to its admission. Defendant also argues that his attorney was ineffective in conceding defendant\u2019s guilt as to the concealment of Carter\u2019s body and failing to request an instruction on that offense. Defendant\u2019s third claim of ineffectiveness involves the absence of jury instructions defining \u201cbrutal\u201d and \u201cheinous\u201d and outlining the factors to be considered in finding defendant eligible for an extended-term sentence. We initially address defendant\u2019s first two ineffective assistance coritentions, and we will consider his argument as to the propriety of certain jury instructions and factors pertaining to his extended-term sentence along with his additional challenges to his sentence.\n1. Defense Counsel\u2019s Failure to Object to Lindo\u2019s Testimony\nDefendant first contends that his trial counsel was ineffective in failing to object to Lindo\u2019s testimony about her three telephone conversations with Carter after he arrived at her townhouse. He asserts that the content of those conversations was inadmissible hearsay that discredited the defense\u2019s theory that although defendant concealed Carter\u2019s body, he did not commit the murder.\nTo support a claim of ineffective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and, furthermore, that counsel\u2019s actions resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Because a defendant must satisfy both prongs of this test to prove ineffective assistance of counsel, the failure to establish either point is fatal. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.\nHearsay is an out-of-court statement offered to prove the truth of the matter asserted. People v. Moss, 205 Ill. 2d 139, 159, 792 N.E.2d 1217, 1229 (2001). When an out-of-court statement is offered for a purpose other than for its truth, the statement is not hearsay and is admissible. People v. Brandon, 283 Ill. App. 3d 358, 365, 669 N.E.2d 1253, 1258 (1996). To use the often-cited Wigmore example illustrating hearsay, if witness A testifies that \u201c \u2018B told me that event X occurred,\u2019 \u201d A\u2019s testimony would be admissible to establish what B said to A. Northern Trust Co. v. American Airlines, Inc., 142 Ill. App. 3d 21, 37-38, 491 N.E.2d 417, 428 (1985), quoting 6 J. Wigmore, Evidence \u00a7 1766, at 250 (Chadbourn rev. 1976). However, A\u2019s testimony would not be admissible if it was offered to prove that event X occurred because its probative value would be based on B\u2019s knowledge and B would not be present for cross-examination. Northern Trust, 142 Ill. App. 3d at 38, 491 N.E.2d at 428, citing 6 J. Wigmore, Evidence \u00a7 1766, at 250 (Chadbourn rev. 1976).\nDefendant argues that Lindo\u2019s testimony was offered for its truth, i.e., to prove that Carter had arrived at Lindo\u2019s townhouse and was in the basement, that someone repeatedly called and hung up, and that those phone calls came from a blocked number. The State responds that Lindo\u2019s testimony was offered to show that Carter was alive in the afternoon of February 17 (to counter the theory offered by defendant that Lindo killed Carter herself before she went to work) and also to illustrate Lindo\u2019s state of mind and subsequent course of conduct that afternoon.\nHaving considered those assertions and the testimony at issue, we conclude that Lindo\u2019s account of her conversations with Carter was offered to establish that Carter spoke to Lindo in the afternoon while Lindo was at her workplace, countering the defense\u2019s theory that Carter had been slain that morning. Furthermore, the testimony was offered to show that Lindo spoke to Carter and that he told her of the repeated phone calls and hangups, prompting Lindo to call defendant and ask if he was calling her home.\nThe State offered independent evidence, in the form of telephone records, to prove that calls were made from defendant\u2019s cellular phone to Lindo\u2019s home phone at 11:20 a.m., 12:52 p.m. and 1:45 p.m. on February 17. The records of defendant\u2019s cellular phone calls indicate that in making those calls, defendant used the *67 feature to block his identifying information from appearing on Lindo\u2019s caller ID. The State also elicited independent testimony to prove Carter\u2019s presence at Lin-do\u2019s residence via his luggage and jacket in the master bedroom.\nBecause Lindo\u2019s testimony was not offered for its truth and therefore was not hearsay, defense counsel\u2019s failure to object to the admissible testimony did not constitute ineffective assistance. Because defendant has not met the first prong of Strickland, we need not consider his contentions that Lindo\u2019s account was prejudicial to his case. See People v. Ceja, 204 Ill. 2d 332, 358, 789 N.E.2d 1228, 1245 (2003).\n2. Defense Counsel\u2019s Failure to Request Jury Instruction on Concealment of a Homicide\nDefendant next contends that his counsel was ineffective in failing to request a jury instruction on concealment of a homicide. He further contends that the absence of that instruction was prejudicial because although counsel maintained that defendant did not kill Cart\u00e9r, counsel conceded that defendant concealed Carter\u2019s body. Although defendant acknowledges that conceding guilt to a lesser offense is an acceptable trial strategy, he asserts that because counsel did not request an instruction consistent with his defense, the jury\u2019s only option was to convict him of first degree murder.\nAs we noted in considering defendant\u2019s first argument on appeal, defendant\u2019s claim of ineffectiveness of counsel is defeated if he is unable to prove either that counsel\u2019s performance fell below an objective standard of reasonableness or that he was prejudiced as a result. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.\nAlthough defendant was initially charged with first degree murder and also with concealing Carter\u2019s death, the prosecution nol-prossed the concealment count before trial. A State motion for nolle prosequi formally indicates that it is unwilling to prosecute the case, and the entry of a nolle prosequi in the record dismisses the indictment or charge at issue and terminates all further prosecution. People v. Daniels, 187 Ill. 2d 301, 312, 718 N.E.2d 149, 157 (1999). A motion to nol-pros a charge is comparable to a motion to dismiss. Daniels, 187 Ill. 2d at 312, 718 N.E.2d at 157.\nDefendant concedes that concealment of a homicide is not a lesser-included offense of first degree murder. Nevertheless, he maintains he was entitled to a concealment instruction because much of the evidence offered at trial was not proof of how Carter was killed but, instead, of how Carter\u2019s body was concealed. At issue therefore is whether defendant\u2019s counsel can be deemed ineffective for failing to request a jury instruction for a charge that was nol-prossed before trial but that remained the focus of the defense\u2019s theory.\nThe Illinois Supreme Court concluded in early opinions that a jury could not be instructed as to an offense other than the crime charged. In People v. Stanko, 402 Ill. 558, 561, 84 N.E.2d 839, 841 (1949), the court held that an accurate instruction as to a charged offense did not cure the giving of an instruction defining a different, uncharged crime, since it is impossible to know which instruction the jury followed. Shortly thereafter, in People v. Thompson, 406 Ill. 323, 327, 94 N.E.2d 163, 165 (1950), the supreme court relied on Stanko in holding that the jury should not have been instructed as to an uncharged offense; however, Thompson held that any error was harmless because the jury convicted the defendant of the charged offense and apparently did not take into account the erroneous instruction. More recent appellate court decisions have considered defendants\u2019 claims of prejudice from jury instructions on uncharged offenses. See People v. Harris, 146 Ill. App. 3d 632, 497 N.E.2d 177 (1986); People v. Olson, 128 Ill. App. 3d 560, 563, 470 N.E.2d 1176, 1179 (1984) (noting that \u201cprejudice is the natural result of erroneously instructing the jury on an uncharged offense\u201d (emphasis in original)).\nDespite defendant\u2019s admission that concealment is not a lesser-included offense of first degree murder, he asserts that the jury should have been instructed as to concealment because that charge was contained in the original indictment and is a lesser offense to first degree murder. Defendant is correct that he can be entitled to a jury instruction on a less serious offense if that offense is included in the charged offense. See People v. Hamilton, 179 Ill. 2d 319, 323, 688 N.E.2d 1166, 1169 (1997). He argues that one of the murder charges was based on the brutality and the heinous nature of his behavior, which included the removal of Carter\u2019s head and limbs and the disposal of Carter\u2019s body.\nIn similar cases, this court has rejected defendants\u2019 claims that a concealment instruction was required. In People v. Becerril, 307 Ill. App. 3d 518, 527-28, 718 N.E.2d 1025, 1031-32 (1999), the defendant was indicted for first degree murder on an accountability theory, and he asserted that a concealment instruction was warranted. The appellate court disagreed, noting that offense requires: (1) knowledge that a homicidal death has occurred; and (2) an affirmative act of concealment by the defendant. Becerril, 307 Ill. App. 3d at 528, 718 N.E.2d at 1032. The court held that the elements of murder with which the defendant was charged did not include the offense of concealment. Becerril, 307 Ill. App. 3d at 528, 718 N.E.2d at 1032. See also People v. Cannon, 150 Ill. App. 3d 1009, 1020, 502 N.E.2d 345, 352 (1986).\nHere, the murder charges based on the brutality of defendant\u2019s conduct did not include the element of concealing Carter\u2019s body. \u201cEach offense requires different acts as well as different states of mind; each requires proof of facts that the other does not.\u201d Cannon, 150 Ill. App. 3d at 1021, 502 N.E.2d at 352. The offense of concealment of a homicidal death requires proof that the defendant concealed the victim\u2019s body. We do not find that offense encompassed within the charge that defendant killed Carter and that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The brutality of a particular murder is not affected by whether the body was concealed after the fact.\nFurthermore, given defendant\u2019s concession that concealment is not a lesser-included offense of first degree murder, we find his reliance on People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), to be misplaced because that case addressed the necessity of a jury instruction on a lesser-included offense. We also find distinguishable the cases that defendant cites in which counsel was found ineffective for failing to offer jury instructions that were consistent with the defense\u2019s theory and with the evidence presented. See People v. Pegram, 124 Ill. 2d 166, 529 N.E.2d 506 (1988); People v. Serrano, 286 Ill. App. 3d 485, 676 N.E.2d 1011 (1997); People v. Parker, 260 Ill. App. 3d 942, 632 N.E.2d 214 (1994); People v. Jaffe, 145 Ill. App. 3d 840, 493 N.E.2d 600 (1986). Those cases considered the failure of defense counsel to request instructions on affirmative defenses (specifically compulsion, provocation and self-defense), as opposed to lesser, uncharged offenses.\nHere, defense counsel was presented with a paradox. Had counsel requested a jury instruction on the concealment charge that the State dismissed prior to trial, defendant would be free to claim on appeal that he did not receive a fair trial because the jury was instructed as to a crime with which he was not charged. See, e.g., People v. Griffin, 178 Ill. 2d 65, 687 N.E.2d 820 (1997). In proceeding without a concealment instruction, defense counsel now faces the argument that the failure to request the instruction was ineffective assistance. The elements of concealment of a homicidal death are not contained in the charged offense of first degree murder. See Becerril, 307 Ill. App. 3d at 527-28, 718 N.E.2d at 1031-32. Defense counsel did not render ineffective assistance by failing to request a jury instruction on the concealment charge. Therefore, defendant has not met the first prong of Strickland on this issue.\n3. Extended-Term Sentence Based on Finding of Exceptionally Brutal or Heinous Behavior Indicative of Wanton Cruelty\nDefendant was sentenced to an extended term of 70 years in prison for first degree murder pursuant to section 5 \u2014 8\u20142(a)(1) of the Unified Code of Corrections (the Code) (730 ILCS 5/5 \u2014 8\u20142(a)(1) (West 2002)). That provision allows a judge to impose a sentence of between 60 and 100 years for first degree murder upon a finding of one or more of the aggravating factors enumerated in section 5 \u2014 5\u20143.2 of the Code (730 ILCS 5/5 \u2014 5\u20143.2 (West 2002)). One of those factors is the commission of a felony accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 730 ILCS 5/5 \u2014 5\u2014 3.2(b)(2) (West 2002). Because the jury concluded that Carter\u2019s murder met that standard, defendant was eligible for an extended-term sentence.\na. Definitions of \u201cBrutal,\u201d \u201cHeinous\u201d and \u201cWanton Cruelty\u201d\nDefendant\u2019s first assertions regarding his extended-term sentence involve the absence of jury instructions defining \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty.\u201d He contends that his counsel was ineffective in failing to request that the jury be instructed as to those definitions in considering if Carter\u2019s death was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant further argues that despite his counsel\u2019s decision, the trial judge had an independent duty to instruct the jury on the meaning of those terms. He asks this court to vacate his extended-term sentence and remand his case for resentencing.\nThe jury was instructed that if it found defendant guilty of first degree murder, it then must determine if the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. At the jury instructions conference, the State offered an instruction that defined the terms \u201cbrutal\u201d and \u201cheinous,\u201d using the widely accepted descriptions of \u201cbrutal\u201d as cruel, cold-blooded and devoid of mercy or compassion, and \u201cheinous\u201d as enormously and flagrantly criminal, hatefully or shockingly evil or grossly bad. Defense counsel asked that the instruction defining \u201cbrutal\u201d and \u201cheinous\u201d not be given.\nDefendant argues that without being instructed as to those definitions (and without any definition of \u201cwanton cruelty\u201d), the jury could not have uniformly concluded that his behavior met that standard because each juror\u2019s own view of those terms likely varied. The State responds that defense counsel\u2019s decision not to instruct the jury on those definitions constituted trial strategy and, given the physical evidence and eyewitness testimony linking defendant to the murder, his counsel\u2019s best tactic was to try to minimize his culpability for the offense and deemphasize the testimony of Carter\u2019s injuries. The State contends that defendant\u2019s best hope was that jurors would disagree on the definitions of \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty\u201d and whether defendant\u2019s actions fit that description.\nOur research has unearthed no cases addressing the specific issue of whether counsel\u2019s failure to request jury instructions defining \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty\u201d automatically renders counsel\u2019s performance deficient. This is not surprising, however, since the consideration of the \u201cexceptionally brutal or heinous behavior indicative of wanton cruelty\u201d standard by a jury, as opposed to a judge, is a relatively new development under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). While the trial court previously considered whether a defendant\u2019s actions met that standard, the United States Supreme Court held in Apprendi that, other than the fact of a prior conviction, any factual finding which increases a defendant\u2019s sentence beyond the maximum permitted by statute must be proven to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; see also People v. Swift, 202 Ill. 2d 378, 392, 781 N.E.2d 292, 300 (2002).\nAgain, to support an ineffective assistance claim, a defendant must show both that his counsel\u2019s representation fell below an objective standard of reasonableness and also that his case was prejudiced as a result; the failure to meet either prong is fatal. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Counsel\u2019s decision as to what jury instructions to tender is one of several determinations widely recognized as matters of trial strategy that are generally immune from ineffective assistance claims. People v. Lowry, 354 Ill. App. 3d 760, 766, 821 N.E.2d 649, 655 (2004).\nDefendant argues that his counsel\u2019s strategy was not sound because each juror could have applied his or her subjective meanings of \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty\u201d that differed from the standard definitions listed above. However, considering the graphic testimony in this case, defense counsel engaged in reasonable strategy by foregoing the instructions to minimize the emphasis on Carter\u2019s injuries and direct as little attention as possible to the details of the crime.\nDefendant contends that regardless of his attorney\u2019s request, the trial court was independently required to instruct the jury on the definitions of \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty.\u201d The State asserts, and defendant does not dispute, that this issue was waived when defense counsel did not offer an alternate instruction to the court after requesting that the defining instructions not be given. Defendant asks this court to engage in a plain error analysis to determine whether the instructions\u2019 absence affected his right to a fair trial.\nThe parties also disagree on the standard of review to be applied. The State argues that an abuse of discretion standard is appropriate, and defendant responds that the trial court\u2019s ruling should be reviewed de novo, asserting that whether a jury was instructed on the applicable law is a question of law. We agree with the State that a trial court\u2019s refusal to issue a specific jury instruction is reviewed under an abuse of discretion standard. People v. Moore, 343 Ill. App. 3d 331, 338-39, 797 N.E.2d 217, 224 (2003); People v. Pinkney, 322 Ill. App. 3d 707, 720, 750 N.E.2d 673, 683 (2000) (rejecting a similar argument urging de novo review).\nDefendant asserts that even under the abuse of discretion standard, the trial court had a duty to instruct the jury on the definitions and that the court\u2019s failure to offer those instructions constituted an abuse of its discretion. Defendant relies on several opinions that discuss the court\u2019s duty to educate the jury on the legal principles relevant to the case to allow it to reach an informed decision.\nThe record indicates that when the trial court granted defense counsel\u2019s request not to instruct the jury on the definitions of those terms, the court stated:\n\u201c[The instruction] will not be given. We will hold it to the side. If in fact this jury should come with a note asking for a definition, you know, then I would reconsider at that time. But unless they indicate they need a definition of brutal and heinous, it will not be given.\u201d\nInstructions should guide the jury in its deliberations and help it to reach a proper verdict through the application of legal principles to the evidence presented. Moore, 343 Ill. App. 3d at 338, 797 N.E.2d at 223. However, the trial court does not have a duty to submit a jury instruction over defense counsel\u2019s specific objection. The above-quoted comments in the record reflect that the court gave due consideration to the need to define \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty\u201d for the jury, stating that it would instruct the jury on the definitions of those terms if the jury required such assistance. The trial court indicated that it would balance defense counsel\u2019s request with the jury\u2019s need to be instructed on the legal principles in the case.\nIn summary, we conclude that defense counsel was not ineffective in requesting that the jury not receive instructions defining \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty.\u201d Moreover, the trial court was not required to provide those definitions to the jury over counsel\u2019s objection.\nb. Sufficiency of the Evidence\nDefendant\u2019s final contention on appeal is that the State did not present adequate evidence to support the jury\u2019s finding that Carter\u2019s death was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. He asserts that the State did not offer evidence that he had a violent or extensive criminal history or that he exhibited a lack of remorse about the crime, and he contends that the jury was required to consider those factors in determining his eligibility for an extended-term sentence. He also argues that the State presented no evidence that Carter experienced prolonged pain or suffering. Defendant further contends that his counsel was ineffective in failing to inform the jury that it could consider those factors in determining whether his conduct was exceptionally brutal or heinous behavior indicative of wanton cruelty.\nHere, the jury found the existence of an aggravating factor that rendered defendant eligible for an extended-term sentence. See 730 ILCS 5/5 \u2014 5\u20143.2(b)(2) (West 2002) (the commission of a felony .\u201caccompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty\u201d). The State argues that once that threshold finding of eligibility is made, the trial court weighs certain aggravating and mitigating factors, including those discussed by defendant, in determining whether to impose an extended-term sentence and, if so, where the sentence should fall within the statutory range. Defendant agrees that the trial court can exercise discretion in imposing an extended term; however, he contends he was not eligible for such a sentence because the jury did not consider his minimal criminal history of one misdemeanor and no felonies or give weight to his remorsefulness for his actions.\nThe majority of cases addressing the determination of exceptionally brutal or heinous behavior indicative of wanton cruelty date from the pre-Apprendi era when the trial court, not a jury, determined whether a defendant\u2019s conduct met that standard and rendered the defendant eligible for an extended-term sentence. The trial court then considered various factors in aggravation and mitigation in imposing a sentence within the range of years provided by statute. In Apprendi, the United States Supreme Court held that any factual finding which increases a defendant\u2019s sentence beyond the maximum permitted by statute must be proven to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Therefore, a bifurcated process now takes place: the jury makes the initial determination of a defendant\u2019s eligibility for an extended-term sentence (here, based on the existence of exceptionally brutal or heinous behavior indicative of wanton cruelty). If that finding is made, the trial court has the discretion to sentence the defendant to an extended term within the statutory range.\nDefendant argues that the jury did not consider all of the pertinent evidence in deciding that he was eligible for an extended term, citing, inter alia, the Illinois Supreme Court decisions in People v. Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025 (1989), and People v. Palmer, 148 Ill. 2d 70, 592 N.E.2d 940 (1992). In Andrews, the supreme court found an extended-term sentence unjustified because the defendant did not have a violent criminal history and no evidence was offered to show that he demonstrated a callous demeanor or lack of remorse; furthermore, the defendant expressed sorrow for his crime at his sentencing hearing. Andrews, 132 Ill. 2d at 466, 548 N.E.2d at 1032.\nDefendant contends that his lack of a felony history and his attitude of remorsefulness were relevant to his eligibility for an extended-term sentence and that the State therefore was required to present evidence to the jury on those points. This court addressed a defendant\u2019s similar contention in People v. Lewis, 334 Ill. App. 3d 993, 779 N.E.2d 490 (2002), which involved a trial court\u2019s assessment of whether a defendant\u2019s behavior was exceptionally brutal or heinous indicative of wanton cruelty that would make him eligible for a life sentence. Relying on Andrews, the defendant contended that the trial court abused its discretion by failing to consider his criminal history, remorse or lack thereof and premeditation, among other factors. Lewis, 334 Ill. App. 3d at 1003, 779 N.E.2d at 498. Although the court considered those factors set out in Andrews, it found Andrews to be factually distinct. Lewis, 334 Ill. App. 3d at 1004, 779 N.E.2d at 499. Lewis noted that additional factors used in weighing exceptionally brutal and heinous behavior indicative of wanton cruelty involve the details of the crime and the defendant\u2019s conduct in particular. Lewis, 334 Ill. App. 3d at 1008, 779 N.E.2d at 503.\nWhen considering whether an offense rises to the level of exceptionally brutal or heinous behavior indicative of wanton cruelty, courts have focused largely on the totality of the facts surrounding the offense as opposed to the extent or nature of the defendant\u2019s participation or other factors unique to the defendant. Palmer, 148 Ill. 2d at 89, 592 N.E.2d at 949; People v. Kennedy, 336 Ill. App. 3d 425, 431, 782 N.E.2d 864, 870 (2002). Factors traditionally considered in assessing a crime\u2019s brutality or heinousness have included premeditation, the unprovoked or senseless nature of the attack, the number of wounds inflicted and the extent of the victim\u2019s injuries. See Kennedy, 336 Ill. App. 3d at 431, 782 N.E.2d at 870 (considering those circumstances in deciding whether the defendant was eligible for a life sentence based on exceptionally brutal or heinous behavior indicative of wanton cruelty); Lewis, 334 Ill. App. 3d at 1008, 779 N.E.2d at 503.\nHere, defendant\u2019s enhanced sentence was triggered by the jury\u2019s finding of exceptionally brutal or heinous behavior indicative of wanton cruelty. A finding that a crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty is a factual question that involves the weighing of the evidence presented at trial. People v. Bryant, 325 Ill. App. 3d 448, 457, 758 N.E.2d 430, 437 (2001). As both parties to the instant case discuss, this analysis was noted in the dissent in People v. Lindsay, 247 Ill. App. 3d 518, 536-38, 617 N.E.2d 389, 399 (1993) (Doyle, J., dissenting). In Lindsay, the majority cited Andrews to support its inclusion of premeditation, remorse and the defendant\u2019s criminal history among the factors to be considered in finding whether the defendant engaged in exceptionally brutal or heinous behavior indicative of wanton cruelty. Lindsay, 247 Ill. App. 3d at 532-33, 617 N.E.2d at 399. The court concluded that the trial court erred in holding that the defendant exhibited exceptionally brutal or heinous behavior indicative of wanton cruelty, reviewing the details of the crime and noting the defendant\u2019s age of 19 and the nonviolent nature of his criminal record. Lindsay, 247 Ill. App. 3d at 534, 617 N.E.2d at 400.\nThe dissent in Lindsay opined that the majority erroneously intertwined the issue of whether the defendant displayed exceptionally brutal or heinous behavior indicative of wanton cruelty with the separate consideration of the number of years to which the defendant should be sentenced given the aggravating and mitigating factors in the case:\n\u201cSection 5 \u2014 5\u20143.2(b)(2) specifically refers to \u2018the offense\u2019 of which the defendant was convicted. It seems to follow, therefore, that any determination of whether the offense has been accompanied by exceptionally brutal or heinous behavior must be limited to an examination of a defendant\u2019s actions surrounding the commission of the offense as opposed to the various other factors of aggravation and mitigation. Yet, in an effort to explain the apparent conclusion that the sentence was excessive, the majority refers to the defendant\u2019s age and nonviolent criminal record as if those factors are relevant to the issue of how [the] defendant acted while committing the crime.\u201d Lindsay, 247 Ill. App. 3d at 537, 617 N.E.2d at 402 (Doyle, J., dissenting).\nBecause we agree with the viewpoint espoused in the dissent in Lindsay, we hold that the jury here was not required to consider defendant\u2019s criminal history in determining whether he was eligible for an extended-term sentence. As we will discuss further below, the defendant\u2019s criminal record was properly considered by the trial court in determining what sentence defendant should receive within an extended term. Accordingly, defendant\u2019s counsel was not required to tell the jury it could consider defendant\u2019s criminal history in deciding whether his actions constituted exceptionally brutal or heinous behavior indicative of wanton cruelty.\nAs juries and judges operate in the post-Apprendi, two-stage process of imposing an extended-term sentence, the jury\u2019s initial consideration of whether the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty must be based on the defendant\u2019s conduct and the facts pertinent to the offense. Those facts can include premeditation and lack of remorse for a crime, since those considerations relate to the defendant\u2019s behavior and whether an act was accompanied by \u201cwanton cruelty.\u201d See Lewis, 334 Ill. App. 3d at 1004-05, 779 N.E.2d at 500. Here, defendant acknowledges that the State offered evidence as to premeditation. As to defendant\u2019s remorse or lack thereof, the record is devoid of any evidence or testimony by defendant that he felt or exhibited regret for Carter\u2019s death, and defendant does not direct our attention to any.\nHaving considered the senseless nature of Carter\u2019s murder and the extent of his injuries, we conclude that the jury was presented with evidence that was more than sufficient to support a finding that the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The evidence established that Carter received multiple stab wounds to his neck and spinal cord while he was still alive. The medical examiner testified that one of the neck wounds inflicted before Carter died was consistent with being produced by an ax. The evidence further showed that Carter\u2019s arms and legs were severed with an ax after he died. Defendant\u2019s conduct was devoid of mercy or compassion.\nDefendant further contends that any wounds inflicted after Carter died should not have been considered in determining whether Carter experienced prolonged pain and suffering, which is relevant to a finding of \u201cwanton cruelty.\u201d Defendant relies upon People v. Nielson, 187 Ill. 2d 271, 299, 718 N.E.2d 131, 148 (1999), in which the supreme court observed that one \u201ccannot consciously seek to inflict pain and suffering on a dead body, as a dead body feels nothing.\u201d He asserts that Carter could have died of the stab wounds before the ax was used and therefore was not subjected to prolonged pain. Defendant also argues that the fact that Carter\u2019s body was partially burned after he died was not relevant to the exceptionally brutal or heinous analysis because it pertained to the concealment of the crime and not to the manner of Carter\u2019s death.\nAlthough the medical examiner testified that it was unclear whether Carter was alive when his head was cut off, she stated that a wound near Carter\u2019s spinal cord and other neck wounds were consistent with being inflicted by an ax while Carter was alive. The evidence clearly supported a finding that defendant\u2019s behavior was exceptionally brutal or heinous and indicative of wanton cruelty. After the jury found the existence of that triggering factor, thus making defendant eligible for an extended-term sentence, it was the trial court\u2019s role to consider aggravating and mitigating circumstances in deciding whether to impose an extended-term sentence and determining a sentence within the statutory range of 60 to 100 years.\nThe record reflects that the trial court weighed defendant\u2019s lack of a violent criminal record in determining the length of his sentence. See Lewis, 334 Ill. App. 3d at 1004, 779 N.E.2d at 499 (noting that an absence of criminal history is a mitigating factor in sentencing under section 5 \u2014 5\u20143.1(7) of the Code (730 ILCS 5/5 \u2014 5\u20143.1(7) (West 1998))). At sentencing, the trial court noted its review of the presentence report indicating that defendant had one prior misdemeanor conviction and no prior felony convictions. Defense counsel argued to the court that defendant\u2019s criminal record was limited. However, the lack of a felony record did not outweigh the other evidence presented as to Carter\u2019s death, and the trial court was not required to give defendant\u2019s criminal history more emphasis than any other factor.\nLastly, we note that defendant compares his personal circumstances to those of other defendants in a number of cases in which extended-term sentences were reversed or where the evidence was not found to prove exceptionally brutal or heinous behavior indicative of wanton cruelty beyond a reasonable doubt. We agree with the State that such comparisons are of no value. See People v. Fern, 189 Ill. 2d 48, 56, 723 N.E.2d 207, 210 (1999) (stating that \u201c[t]he propriety of the sentence imposed in a particular case cannot properly be judged by the sentence imposed in another, unrelated case\u201d); People v. Blackwell, 325 Ill. App. 3d 354, 361-62, 757 N.E.2d 589, 596 (2001).\nBecause the State proved beyond a reasonable doubt that defendant acted in an exceptionally brutal or heinous manner indicative of wanton cruelty and the trial court considered the evidence presented in aggravation and mitigation, we will not disturb defendant\u2019s extended-term sentence. We recognize that, as the supreme court has stated, all murders are inherently brutal and heinous and the extended-term sentencing provisions are intended to impose higher penalties for killings that are exceptionally so. See Andrews, 132 Ill. 2d at 466, 548 N.E.2d at 1032. However, based on the circumstances of this case, the evidence supported the jury\u2019s finding that defendant engaged in exceptionally brutal or heinous behavior indicative of wanton cruelty and further supported the trial court\u2019s imposition of a 70-year sentence.\nIn summary, we hold that defendant\u2019s counsel was not ineffective in failing to object to Lindo\u2019s testimony or failing to request an instruction on the offense of concealment. In addition, the trial court was not required to instruct the jury on the definitions of \u201cbrutal,\u201d \u201cheinous\u201d and \u201cwanton cruelty\u201d over defense counsel\u2019s objection. Moreover, the evidence was sufficient to support defendant\u2019s 70-year extended-term sentence for first degree murder based on the circumstances of Carter\u2019s death.\nAccordingly, defendant\u2019s convictions and sentence are affirmed.\nAffirmed.\nO\u2019MARA FROSSARD and NEVILLE, JJ., concur.\nThe State did not offer an instruction on \u201cwanton cruelty,\u201d which requires proof that the defendant consciously intended to inflict pain and suffering on the victim. See People v. Kaczmarek, 207 Ill. 2d 288, 303, 798 N.E.2d 713, 723 (2003).", "type": "majority", "author": "PRESIDING JUSTICE GALLAGHER" } ], "attorneys": [ "Michael J. Pelletier and J. Michael True, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Alan J. Spellberg, and Jessica J. Lechter, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTIS DOUGLAS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201403\u20142564\nOpinion filed October 21, 2005.\nMichael J. Pelletier and J. Michael True, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Alan J. Spellberg, and Jessica J. Lechter, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0065-01", "first_page_order": 83, "last_page_order": 100 }