People v. Nitz , 302 Ill. Dec. 418 ( 2006 )

Docket No. 99712.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and
Cross- Appellee, v. RICHARD C. NITZ, Appellee and Cross-
Appellant.
Opinion filed April 20, 2006.
JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, and Karmeier concurred in the judgment and
opinion.
Justice Kilbride specially concurred, with opinion.
OPINION
In the second trial in this case, a jury in the circuit court of
Williamson County convicted defendant of first degree murder.
Ill. Rev. Stat. 1987, ch. 38, par. 9B1. The circuit judge found
that defendant=s crime was accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty. Ill. Rev.
Stat. 1987, ch. 38, par. 1005B8B1(a). Based on this finding, the
trial court sentenced defendant to life imprisonment. Ill. Rev.
Stat. 1987, ch. 38, par. 1005B8B1(a). The appellate court
affirmed defendant=s conviction, but modified his sentence to a
60-year prison term. People v. Nitz, 319 Ill. App. 3d 949, 969
(2001). We directed the appellate court to reconsider its
decision. People v. Nitz, 206 Ill. 2d 637 (2003) (supervisory
order). It did so, affirming defendant=s life sentence in an
unpublished order. People v. Nitz, No. 5B98B0657 (2004)
(unpublished order under Supreme Court Rule 23). We then
directed the appellate court to issue a single published opinion
or unpublished order disposing of all issues in defendant=s
appeal. People v. Nitz, 209 Ill. 2d 594 (2004) (supervisory
order). In doing so, the appellate court again modified
defendant=s sentence to a 60-year prison term. 353 Ill. App. 3d
978, 1005. We granted the State=s petition for leave to appeal.
177 Ill. 2d R. 315. The defendant requested cross-relief. We
now reverse the judgment of the appellate court in part, and
affirm the judgment of the circuit court.
I. BACKGROUND
Defendant was originally convicted in 1988 of the first
degree murder of Michael Miley. He was sentenced to death by
the circuit court of Williamson County. This court affirmed his
conviction and death sentence. People v. Nitz, 143 Ill. 2d 82
(1991). This court later reversed the trial court=s dismissal of
defendant=s postconviction petition and remanded the cause
for a new trial. People v. Nitz, 173 Ill. 2d 151 (1996). In 1998,
defendant was again convicted of first degree murder in this
case. Evidence presented at trial indicated that defendant
struck Miley repeatedly in the head with a baseball bat, shot
him, and severed Miley=s head in an attempt to conceal the
ballistics evidence. The applicable first degree murder statute
read as follows:
A(a) A person who kills an individual without lawful
justification commits first degree murder if, in performing
the acts which cause the death:
(1) He either intends to kill or do great bodily harm to
that individual or another, or knows that such acts will
cause death to that individual or another; or
(2) He knows that such acts create a strong
probability of death or great bodily harm to that
individual or another[.]@ Ill. Rev. Stat. 1987, ch. 38, par.
9B1.
The jury received three different sets of verdict forms, each
addressing a different way that a defendant may commit the
offense of first degree murder. The jury found defendant not
guilty of killing Miley with the intent to kill or do great bodily
harm. It also found defendant not guilty of killing Miley with the
knowledge that his acts would cause death or great bodily
harm. However, the jury found defendant guilty of killing Miley
with the knowledge that his acts created a strong probability of
death or great bodily harm.
The trial court sentenced defendant to life imprisonment
after the trial judge found that defendant=s crime was
accompanied by exceptionally brutal or heinous behavior
indicative of wanton cruelty. Section 5B8B1(a) of the Unified
Code of Corrections provided the statutory basis for this
sentence:
A(a) Except as otherwise provided in the statute
defining the offense, a sentence of imprisonment for a
felony shall be a determinate sentence set by the court
under this Section, according to the following limitations:
(1) for first degree murder, (a) a term shall be not
less than 20 years and not more than 60 years, or (b) if
the court finds that the murder was accompanied by
exceptionally brutal or heinous behavior indicative of
wanton cruelty ***, the court may sentence the
defendant to a term of natural life imprisonment ***.@ Ill.
Rev. Stat. 1987, ch. 38, par. 1005B8B1(a).
The appellate court affirmed the trial court=s verdict. Nitz,
319 Ill. App. 3d 949. However, it reduced defendant=s sentence
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to a 60-year prison term. Nitz, 319 Ill. App. 3d at 969. The
appellate court based this reduction on Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000). The Apprendi Court held that A[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.@ Apprendi,
530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. In
this case, the trial court increased defendant=s sentence based
on the fact that defendant=s crime was accompanied by
exceptionally brutal or heinous conduct indicative of wanton
cruelty. The trial judge, rather than a jury, made this factual
finding. The appellate court held that basing defendant=s life
sentence on a judge-made finding violated the holding of
Apprendi. Nitz, 319 Ill. App. 3d at 969. The court reduced
defendant=s sentence to the maximum sentence authorized
upon the facts determined by the trial jury. Nitz, 319 Ill. App. 3d
at 969.
In the exercise of this court=s supervisory authority, we
directed the appellate court to vacate its judgment and
reconsider its decision in light of People v. Crespo, 203 Ill. 2d
335 (2001), People v. Thurow, 203 Ill. 2d 352 (2003), People v.
Swift, 202 Ill. 2d 378 (2002), and People v. Kaczmarek, 207 Ill.
2d 288 (2003). People v. Nitz, 206 Ill. 2d 637 (2003)
(supervisory order). These cases trace the development of this
court=s approach to Apprendi errors. In Swift, we held that facts
taking a sentence for first degree murder above the sentencing
range of 20 to 60 years= imprisonment must be found by a jury
beyond a reasonable doubt. Swift, 202 Ill. 2d at 392. Although
we vacated the Swift defendant=s extended-term sentence, we
have since established that an Apprendi error does not
necessarily require resentencing. Rather, the doctrines of
harmless error (Thurow, 203 Ill. 2d at 368) and plain error
(Crespo, 203 Ill. 2d at 347) apply. In Kaczmarek, we applied
plain-error review to affirm a murder defendant=s life sentence
imposed in violation of Apprendi, concluding that a jury would
have found that the crime was committed in a brutal and
heinous manner indicative of wanton cruelty. Kaczmarek, 207
Ill. 2d at 303-04.
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In response to our supervisory order, the appellate court
issued an unpublished order finding the Apprendi error to have
been harmless beyond a reasonable doubt. People v. Nitz, No.
5B98B0657 (2004) (unpublished order under Supreme Court
Rule 23). This order, however, failed to vacate the appellate
court=s previous judgment, and failed to address the other
issues covered by the court=s opinion.
We then issued a second supervisory order, directing the
appellate court to issue a single published opinion or
unpublished order disposing of all issues in defendant=s
appeal. People v. Nitz, 209 Ill. 2d 594 (2004) (supervisory
order). Rather than merging its previously issued judgments,
the appellate court ordered the parties to submit supplemental
briefs in light of the United States Supreme Court=s opinion in
Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124
S. Ct. 2531 (2004). Specifically, it asked the parties to address
the following question: A[D]oes the United States Supreme
Court=s recent pronouncements [sic] about the meaning of
Apprendi cast doubt upon the continued viability of our
Supreme Court=s holdings that harmless-error analysis can be
applied to jury verdicts that did not reflect a fact necessary to a
given punishment?@
After briefing was complete, the appellate court filed a
single published opinion. 353 Ill. App. 3d 978. The opinion
affirmed defendant=s conviction, applying the same rationale as
the original appellate opinion. 353 Ill. App. 3d at 980-91; see
also Nitz, 319 Ill. App. 3d 949. However, the new opinion=s
treatment of the Apprendi issue differed markedly.
The new opinion noted that, in the years since defendant=s
case was first appealed, this court has established that the
sentencing scheme applied to defendant does not comport with
the right to trial by jury as construed in Apprendi. 353 Ill. App.
3d at 993; see also People v. Swift, 202 Ill. 2d 378, 383 (2002).
Thus, the appellate court did not revive its original analysis on
that issue. 353 Ill. App. 3d at 993. Instead, the court turned its
attention to the proper remedy for an Apprendi violation. It
attempted to analyze the views of individual United States
Supreme Court justices, as reflected by the shifting
composition of majorities and dissenters in the Court=s cases
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concerning the right to a jury trial under the sixth amendment to
the United States Constitution. 353 Ill. App. 3d at 996-1001.
Based in part on language in Blakely that emphasized the
fundamental nature of the right to a jury, the appellate court
concluded that the dissenting opinion in Neder v. United
States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999),
now reflected the views of a majority of the Court. 353 Ill. App.
3d at 1000. In Neder, the majority held that failing to submit an
element of a crime for the jury=s deliberation was subject to
harmless-error analysis. Neder, 527 U.S. at 15-16, 144 L. Ed.
2d at 51, 119 S. Ct. at 1837. The dissent argued that this
violation was a structural error that could never be harmless.
Neder, 527 U.S. at 30, 144 L. Ed. 2d at 60, 119 S. Ct. at 1844
(Scalia, J., concurring in part and dissenting in part, joined by
Souter and Ginsburg, JJ.). The appellate court noted that this
court relied on Neder when determining that harmless-error
analysis applies to an Apprendi violation. 353 Ill. App. 3d at
1002; see also Thurow, 203 Ill. 2d at 371. It concluded that,
absent a decision by a higher court expressly overruling Neder
or Thurow, the appellate court was bound by Thurow to apply a
harmless-error analysis to defendant=s case. 353 Ill. App. 3d at
1002.
In applying that analysis, however, the appellate court
determined that it should not use an objective standard when
determining whether a jury would have found defendant=s
crime to be brutal and heinous. 353 Ill. App. 3d at 1002.
Rather, it concluded that defendant Awas constitutionally
entitled to have each element of his guilt decided beyond a
reasonable doubt by a jury of his choosing.@ (Emphasis in
original.) 353 Ill. App. 3d at 1003. Thus, the appellate court
considered Awhat Nitz=s jury, not some hypothetical jury, would
have decided had it been allowed to decide.@ 353 Ill. App. 3d at
1003.
The court noted that the jury in this case was presented
with three different verdict forms reflecting three different ways
in which defendant could be guilty of first degree murder. 353
Ill. App. 3d at 1003. Given that choice, the jury found defendant
guilty of Akilling Miley while acting with a state of mind generally
deemed the least culpable mens rea to accompany murderous
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acts that cause another person=s death.@ 353 Ill. App. 3d at
1003. The appellate court concluded that because the jury
acquitted defendant of the two Amore reprehensible@ murder
counts, it could not say that the jury would have unanimously
decided the killing was accompanied by brutal or heinous
behavior indicative of wanton cruelty. 353 Ill. App. 3d at 1004.
The appellate court further considered the length of the jury
deliberations and the fact that defense counsel noted for the
record that four jurors were crying in the courtroom. 353 Ill.
App. 3d at 1004. It also considered a juror affidavit which
stated that four jurors did not think the prosecution proved
defendant guilty beyond a reasonable doubt. 353 Ill. App. 3d at
1004. The affiant juror stated that she signed the Aleast
culpable@ verdict form only because she believed defendant
would receive a lenient sentence. 353 Ill. App. 3d at 1004.
Based on this information, the appellate court concluded that
the jury had reached a compromise verdict. 353 Ill. App. 3d at
1004. The court decided that the four alleged hold-out jurors
would not have agreed to the more serious finding that
defendant=s crime was accompanied by brutal or heinous
behavior indicative of wanton cruelty. 353 Ill. App. 3d at 1004-
05. Thus, the court concluded that the Apprendi error was not
harmless beyond a reasonable doubt, and resentenced
defendant to a 60-year prison term. 353 Ill. App. 3d at 1005.
We allowed the State=s petition for leave to appeal. 177 Ill.
2d R. 315. In this opinion, we first address the proper analysis
with which to review defendant=s sentence. Second, we
consider the merits of the sentencing issue. Finally, we
address defendant=s request for cross-relief. The facts of
defendant=s case are set forth in our first opinion (Nitz, 143 Ill.
2d 96) and will be included below only as they are relevant to
the issues raised in this appeal.
II. PLAIN ERROR
At the outset, there is no question that defendant=s
sentence violates Apprendi. We have already established that
the only permissible sentence for first degree murder based on
an ordinary jury verdict of guilt is 20 to 60 years= imprisonment.
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Swift, 202 Ill. 2d at 392. Facts which take a sentence above
this range must be found by a jury beyond a reasonable doubt,
including the fact that a crime was brutal or heinous. Swift, 202
Ill. 2d at 392. Thus, the trial court violated Apprendi when it
imposed defendant=s life sentence based on the judge=s finding
that defendant=s crime was brutal or heinous and indicative of
wanton cruelty.
However, we have determined that this sort of violation
does not necessarily invalidate a defendant=s sentence. In
Thurow, we considered the appropriate remedy for an
Apprendi error. The trial judge in Thurow increased the
defendant=s sentence based on a judge-made finding that the
victim was a member of the defendant=s household. Thurow,
203 Ill. 2d at 354. The defendant properly objected to this
process as an Apprendi violation. Thurow, 203 Ill. 2d at 363.
We determined that harmless-error analysis applies to an
Apprendi violation when the defendant has made a timely
objection. Thurow, 203 Ill. 2d at 363. However, when a
defendant has failed to object to an error, plain-error analysis
applies. Thurow, 203 Ill. 2d at 363. The difference, we noted,
lies in the burden of proof. Under a harmless-error analysis, the
State must prove beyond a reasonable doubt that the result
would have been the same absent the error. Thurow, 203 Ill.
2d at 363. Under plain-error analysis, the defendant must
persuade the court that the error was prejudicial. Thurow, 203
Ill. 2d at 363.
Following Thurow, we applied plain-error analysis to
Apprendi violations in Crespo (203 Ill. 2d at 347) and
Kaczmarek (207 Ill. 2d at 302). In Crespo, as in the instant
case, the defendant=s extended term sentence for first degree
murder was based on a posttrial finding by the circuit court that
the crime was committed in a both brutal and heinous manner
indicative of wanton cruelty. Crespo, 203 Ill. 2d at 346. We
determined that a jury would have reached the same
conclusion when considering the undisputed evidence that
defendant stabbed his victim 24 times and ripped out a large
chunk of her scalp. Crespo, 203 Ill. 2d at 348-49. Thus, we
concluded that the defendant failed to show the Apprendi error
was prejudicial, and affirmed his extended-term sentence.
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Crespo, 203 Ill. 2d at 348-49. In Kaczmarek, we again
determined that a defendant did not warrant resentencing,
even though he received an extended-term sentence based on
a judge=s finding that the crime was brutal and heinous.
Kaczmarek, 207 Ill. 2d at 302. Examining evidence that the
defendant beat, stabbed, and strangled an 86-year-old woman,
we held that his conduct undoubtedly qualified as both
exceptionally brutal and heinous. Kaczmarek, 207 Ill. 2d at 303.
Thus, the defendant could not show he was prejudiced by the
Apprendi error. Kaczmarek, 207 Ill. 2d at 302.
In the instant case, defendant did not make a timely
objection to the extended-term sentence he received based on
the trial judge=s finding that his conduct was brutal or heinous.
Thus, plain-error analysis applies to a review of his sentence.
Thurow, 203 Ill. 2d at 363; Crespo, 203 Ill. 2d at 347;
Kaczmarek, 207 Ill. 2d at 302. The appellate court erred by
applying harmless-error analysis.
In addition to ignoring the plain-error analysis of Crespo and
Kaczmarek, the appellate court=s opinion indicates that it
applied even harmless-error analysis begrudgingly. See 353 Ill.
App. 3d at 1002 (Awe firmly believe that a majority of the
justices on today=s United States Supreme Court would never
allow the harmless error analysis that we are about to engage
in@). Based in part on the Court=s statements in Blakely
concerning the fundamental nature of the right to a jury, the
appellate court contended that an Apprendi violation
constitutes structural error that can be remedied only by
resentencing. 353 Ill. App. 3d at 995-1001, citing Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531
(2004). Defendant relies on Blakely to make a similar argument
before this court. The State responds that the United States
Supreme Court sanctioned the use of plain-error and harmless-
error review in Apprendi cases by its opinion in United States v.
Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738
(2005).
In Booker, the Court held that the United States
ASentencing Guidelines@ violated the sixth amendment, as
interpreted in Apprendi, by mandating certain sentences based
on judicial fact-finding. Booker, 543 U.S. at 226-27, 160 L. Ed.
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2d at 639, 125 S. Ct. at 746. The Court in Blakely had reached
a similar conclusion about a sentencing scheme at the state
level. Blakely, 542 U.S. at 305, 159 L. Ed. 2d at 414-15, 124 S.
Ct. at 2538. Relevant to this case, however, is the Booker
Court=s discussion of the consequences of applying its decision
to all cases on direct review:
A[The retroactivity of Booker] does not mean that we
believe that every sentence gives rise to a Sixth
Amendment violation. Nor do we believe that every
appeal will lead to a new sentencing hearing. That is
because we expect reviewing courts to apply ordinary
prudential doctrines, determining, for example, whether
the issue was raised below and whether it fails the
>plain-error= test. It is also because, in cases not
involving a Sixth Amendment violation, whether
resentencing is warranted or whether it will instead be
sufficient to review a sentence for reasonableness may
depend upon application of the harmless-error doctrine.@
Booker, 543 U.S. at 268, 160 L. Ed. 2d at 665, 125 S.
Ct. at 769.
Thus, Booker establishes that it is appropriate to apply the
doctrines of plain error and harmless error to sentences that
violate Apprendi. This aligns with our decisions to apply
harmless-error review when a defendant has timely objected to
an Apprendi error and plain-error review when a defendant has
not objected. See Thurow, 203 Ill. 2d at 363; Crespo, 203 Ill. 2d
at 347; Kaczmarek, 207 Ill. 2d at 302. Accordingly, we reject
defendant=s contention that the Apprendi error in this case is
structural.
After the appellate court first erred by applying harmless-
error review instead of plain-error review, it compounded this
error by creating a new and unprecedented harmless-error
analysis. In Thurow, we held that a court reviewing a claim of
harmless error should ask: A >Is it clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty
absent the error?= @ Thurow, 203 Ill. 2d at 368-69, quoting
Neder, 527 U.S. at 18, 144 L. Ed. 2d at 53, 119 S. Ct. at 1838.
We answered this question in the affirmative in Thurow
because of the uncontested and overwhelming evidence that
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supported the finding made by the judge. Thurow, 203 Ill. 2d at
369; see also Kaczmarek, 207 Ill. 2d at 302 (A[i]t is *** clear,
after Thurow and Crespo, that an Apprendi violation of this kind
will not warrant resentencing where there is overwhelming
evidence that the crime was committed in a brutal and heinous
manner indicative of wanton cruelty@); People v. Jones, 219 Ill.
2d 1, ___ (2006) (finding Apprendi violation to be harmless
error where State presented uncontested and overwhelming
evidence of fact found by judge). However, the appellate court
in this case did not examine the evidence to determine what a
rational jury would have found. Instead, the appellate court
reviewed the behavior of the actual jury and speculated as to
the motivations of the 12 men and women empaneled to
decide defendant=s case.
It is extremely difficult for a reviewing court to read a jury=s
subjective thoughts. See Preston v. Simmons, 321 Ill. App. 3d
789, 800 (2001); People v. Pankey, 58 Ill. App. 3d 924, 927
(1978); see also Yates v. Evatt, 500 U.S. 391, 404-05, 114 L.
Ed. 2d 432, 449, 111 S. Ct. 1884, 1893 (1991) (noting that
harmless-error inquiry Acannot be a subjective one into the
jurors= minds@), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4, 116 L. Ed. 2d 385, 399 n.4, 112
S. Ct. 475, 482 n.4 (1991). Accordingly, the test for harmless
error does not ask a reviewing court to undertake this
impossible task. Rather, Thurow establishes that an appellate
court reviewing an Apprendi error must examine the evidence
and determine what a rational jury would have found. Thurow,
203 Ill. 2d at 368-69. We have recognized the tension between
this responsibility and the Apprendi Court=s holding that it is
unconstitutional for a judge and not a jury to make a factual
finding that increases the penalty for a crime beyond the
prescribed statutory maximum. Thurow, 203 Ill. 2d at 369. A[I]n
applying harmless-error analysis here,@ we noted in Thurow,
Awe are engaging in the very practice that Apprendi forbids: we,
as judges, are making the factual determination that [the victim]
was a member of defendant=s household.@ Thurow, 203 Ill. 2d
at 369-70. Our acknowledgment in Thurow of the tension
inherent in this process emphasizes the proper task of the
reviewing court. An appellate court cannot escape this task by
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purporting to read the minds of the trial jurors. Thus, the
appellate court in this case erred when it failed to examine the
evidence presented at trial and instead attempted to divine the
thoughts of the 12 jurors who heard that evidence.
In sum, we reaffirm the holdings of Thurow, Crespo, and
Kaczmarek that plain-error review applies to Apprendi errors to
which the defendant has not timely objected, while harmless-
error analysis applies when the defendant has objected to the
error. We therefore hold that plain-error review is the
appropriate standard in this case. To execute either analysis, a
reviewing court must examine the evidence adduced at trial
and determine objectively whether a rational jury would have
made the finding in question.
III. DEFENDANT=S SENTENCE
Having determined that plain-error analysis is appropriate in
this case, we proceed to apply this analysis to the error alleged
by defendant. We recently summarized the proper approach to
plain error in People v. Herron, 215 Ill. 2d 167 (2005):
A[T]he plain-error doctrine bypasses normal forfeiture
principles and allows a reviewing court to consider
unpreserved error when either (1) the evidence is close,
regardless of the seriousness of the error, or (2) the
error is serious, regardless of the closeness of the
evidence. In the first instance, the defendant must prove
>prejudicial error.= That is, the defendant must show both
that there was plain error and that the evidence was so
closely balanced that the error alone severely
threatened to tip the scales of justice against him. The
State, of course, can respond by arguing that the
evidence was not closely balanced, but rather strongly
weighted against the defendant. In the second instance,
the defendant must prove there was plain error and that
the error was so serious that it affected the fairness of
the defendant=s trial and challenged the integrity of the
judicial process.@ Herron, 215 Ill. 2d at 186-87.
In Herron, the State argued against this formulation of plain-
error doctrine and asked us to instead adopt the four-part plain-
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error test used by the United States Supreme Court. Herron,
215 Ill. 2d at 179. Under the federal test, a reviewing court may
correct an error not raised at trial if (1) there is error, (2) the
error is plain, (3) the error affects substantial rights, and (4) the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Herron, 215 Ill. 2d at 179-80,
citing United States v. Cotton, 535 U.S. 625, 631-32, 152 L.
Ed. 2d 860, 868, 122 S. Ct. 1781, 1785 (2002). We referred to
this test in Thurow and in Crespo when we established that
plain-error review was appropriate for Apprendi violations.
Thurow, 203 Ill. 2d at 362; Crespo, 203 Ill. 2d at 348. While we
declined in Herron to adopt the federal test, we did determine
that the analysis applied in Thurow and in Crespo complied
with the two-pronged plain error analysis summarized in
Herron. Herron, 215 Ill. 2d at 186.
Herron=s two prongs establish two categories of plain error:
prejudicial errors, which may have affected the outcome in a
closely balanced case, and presumptively prejudicial errors,
which must be remedied although they may not have affected
the outcome. Herron, 215 Ill. 2d at 185. Our analysis in Crespo
and Kaczmarek indicates that the Apprendi violation defendant
complains of in this caseBa sentence based on a judge-made
finding that a murder was brutal or heinousBis not a
presumptively prejudicial error that must be remedied
regardless of its effect on the trial=s outcome. In each of those
cases, we required the defendants to prove that they were
prejudiced by the error. See Crespo, 203 Ill. 2d at 348;
Kaczmarek, 207 Ill. 2d at 302. Thus, the second prong of the
Herron plain error analysis is inapplicable to defendant=s case.
In applying the first prong of the Herron analysis, we require
defendant to prove both that there was an error (see People v.
Sims, 192 Ill. 2d 592, 621 (2000) (ABefore invoking the plain
error exception, however, >it is appropriate to determine
whether error occurred at all= @), quoting People v. Wade, 131
Ill. 2d 370, 376 (1989)) and that the evidence was closely
balanced. Herron, 215 Ill. 2d at 187. Defendant has satisfied
one part of this analysis. The Apprendi violation he complains
of is unquestionably error. See Swift, 202 Ill. 2d at 392. To
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determine whether defendant has satisfied the remainder of
the analysis, we examine the evidence adduced at trial.
At trial, witness Betty Boyer testified that she was baby-
sitting at defendant=s mobile home on April 6, 1988. When
defendant and his wife left that evening, they had a firearm with
them. After they returned home, Boyer watched another car
pull up in their driveway. She testified that defendant then
retrieved a baseball bat from his own vehicle. She heard
defendant tell the driver of the other car, a young man, to get
off his property or he would kill him. When the other man
turned to walk away, she saw defendant strike him in the back
of the head with the bat. She testified that defendant continued
his assault with the bat as the young man fell to the ground.
Defendant and his wife then picked up the other man and put
him into the trunk of his own car. They left the property, with
defendant=s wife driving the other man=s car and defendant
leading the way in another vehicle.
Two witnesses testified about conversations they had with
defendant in April 1988. Michael Stearns testified that
defendant told him he had killed a homosexual by shooting him
in the head after the victim followed him home. Stearns also
testified that defendant told him he had cut off the victim=s head
with a knife so that if a weapon should ever be found, the
ballistics could not be traced. Defendant then stated that he
had buried the head and got rid of the body.
Danny Walker also testified that defendant told him he had
killed a homosexual by shooting him in the head. Walker
testified that defendant said he then cut off the victim=s head to
conceal it from ballistics testing, and put the remainder of the
body in the trunk of the victim=s car. Defendant told Walker that
he and his wife took the body to a rural area known as Rocky
Comfort and tried to burn the car after removing its stereo.
Walker went with defendant to see the area where the victim=s
car was. When they reached the Rocky Comfort area, they saw
police cars and an ambulance, and defendant commented that
the authorities had already found the victim.
Stipulated testimony at trial indicated that Miley=s body was
discovered by a group of campers in Union County on April 9,
1988. The campers came upon an abandoned vehicle, later
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identified as Miley=s car, in the Rocky Comfort area. They
smashed the car=s windows, shot at it, and rolled it onto its
roof. After they turned the car over, its trunk popped open,
revealing Miley=s headless body. The campers then contacted
police.
Pathologist Dr. Beverly Tsai testified that the remainder of
Miley=s body showed no bruises or injuries. She testified that
the clean cut to the neck indicated the head was severed after
Miley=s death. A toxicology report showed small amounts of
carbon dioxide and alcohol in Miley=s system. Due to the
missing head, the pathologist could not make a finding as to
the cause of Miley=s death.
Inspector Frank Cooper of the Illinois State Police testified
that the vehicle where Miley=s body was found had some fire
damage. Its radio was missing, and investigators did not find a
wallet or wristwatch with Miley=s body.
A search of defendant=s residence and vehicle revealed a
wristwatch identified as Miley=s, cassette tapes which Miley
kept in his car, and a car stereo of the type that was removed
from Miley=s car. The search also revealed clothing, shoes, and
stereo speakers that were purchased with Miley=s credit cards
at department stores in Paducah, Kentucky, on April 8, 1988.
Employees of those stores identified defendant in a photo
lineup as the person who used Miley=s credit cards to make
those purchases.
The terms Abrutal,@ Aheinous,@ and Aindicative of wanton
cruelty@ are given their ordinary and popular meaning. People
v. La Pointe, 88 Ill. 2d 482, 499 (1981). For behavior to be
heinous, it must be Ahatefully or shockingly evil; grossly bad;
enormously and flagrantly criminal.@ Kaczmarek, 207 Ill. 2d at
303 (citing People v. Nielson, 187 Ill. 2d 271, 299 (1999),
People v. Lucas, 132 Ill. 2d 399, 445 (1989), and La Pointe, 88
Ill. 2d at 501). We define brutal behavior as Abehavior that is
grossly ruthless, devoid of mercy or compassion; cruel and
cold-blooded.@ Kaczmarek, 207 Ill. 2d at 303 (citing Nielson,
187 Ill. 2d at 299, Lucas, 132 Ill. 2d at 445, and La Pointe, 88
Ill. 2d at 501). Brutal or heinous behavior generally involves
prolonged pain, torture, or premeditation (Lucas, 132 Ill. 2d at
445), but does not necessarily require them (La Pointe, 88 Ill.
-15-
2d at 501). Behavior must qualify as either brutal or heinous for
the sentencing enhancement to apply. Ill. Rev. Stat. 1987, ch.
38, par. 1005B8B1(a) (codified as amended at 730 ILCS
5/5B8B1(a)(1)(b) (West 2004)).
In addition to being exceptionally brutal or heinous, the
crime must also be indicative of wanton cruelty. A >[W]anton
cruelty= requires >proof that the defendant consciously sought to
inflict pain and suffering on the victim of the offense.= @ Nielson,
187 Ill. 2d at 299, quoting People v. Pastewski, 164 Ill. 2d 189,
194 (1995). Thus, wanton cruelty cannot be perpetrated on a
corpse. Nielson, 187 Ill. 2d at 299. In Nielson, this court found
that burning two victims= bodies and stuffing them in a duffle
bag was brutal and heinous. Nielson, 187 Ill. 2d at 299.
However, it did not indicate wanton cruelty because defendant
could not inflict pain and suffering on a corpse. Nielson, 187 Ill.
2d at 299. Therefore, actions taken to conceal a murder cannot
show wanton cruelty, but may still be brutal or heinous.
Defendant told Stearns and Walker that he cut off Miley=s
head in an attempt to conceal it from ballistics testing. Expert
testimony indicated that Miley was already dead when this
occurred, and thus this evidence does not support a finding of
wanton cruelty. However, it is cold-blooded to sever and
conceal a victim=s head, denying his family the closure of
burying their loved one intact. This act by defendant was
certainly devoid of mercy or compassion. While it does not
indicate wanton cruelty, it does indicate brutality. Thus, the
evidence supports a finding that defendant=s crime was, at the
least, brutal. We find that defendant has not met his burden of
proof that the evidence was closely balanced as to whether
defendant=s crime was exceptionally brutal or heinous.
Defendant also told Stearns and Walker that he killed Miley
by shooting him in the head. Based on this evidence, a jury
could have concluded that when defendant administered the
beating witnessed by Betty Boyer, he did not kill his victim, but
merely inflicted the pain and suffering that is the hallmark of
wanton cruelty. Boyer testified that defendant struck Miley in
the head with a baseball bat when Miley had his back to
defendant, and continued to strike Miley repeatedly after the
victim fell to the ground. This evidence supports the finding that
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defendant intentionally inflicted pain and suffering upon Miley,
and thus displayed wanton cruelty. We find that defendant has
not proved that the evidence was closely balanced on the issue
of wanton cruelty.
Defendant argues that Miley Acould have been dead before
his body was placed in the trunk,@ and thus did not suffer
prolonged pain. He also argues that because Stearns and
Walker did not testify that defendant told them he struck Miley
with a bat, it is questionable whether that beating occurred.
However, these possibilities are not adequate to meet
defendant=s burden of proof. Defendant also compares the
evidence in this case to the circumstances of Crespo and
Kaczmarek. He argues that the amount of force used in this
case pales in comparison to the Crespo defendant=s repeated
stabbing of his victim and the Kaczmarek defendant=s beating,
stabbing, and strangling of an elderly woman. However, the
possibility that the conduct of other defendants may be even
more reprehensible does not establish that the evidence of
brutal or heinous conduct indicative of wanton cruelty was
closely balanced in this case.
Finally, defendant argues that he was acquitted of the two
Amore culpable@ counts of first degree murder, and therefore
his crime must not have been brutal or heinous. The
sentencing statute in question makes no distinction among the
different ways that first degree murder may be committed. It
merely provides that a defendant convicted of this crime may
receive an enhanced sentence if the trier of fact finds that the
murder was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty. Ill. Rev. Stat. 1987, ch.
38, par. 1005B8B1(a) (codified as amended at 730 ILCS
5/5B8B1(a)(1)(b) (West 2004)). It contains no exception for
defendants convicted of supposedly Aless culpable@ first degree
murders. If the trier of fact has made the proper findings, a
court may apply the enhancement to any defendant convicted
of first degree murder, regardless of the language on the
verdict form. Thus, the enhancement may be applied to
defendant.
In sum, we find that defendant has not met his burden of
proving that the evidence was closely balanced as to whether
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his crime was exceptionally brutal or heinous and indicative of
wanton cruelty. Thus, defendant has failed to show he was
prejudiced by the trial court=s erroneous imposition of a
sentencing enhancement based on a judge-made finding.
Because he has not satisfied this court=s plain-error test, we
decline to excuse defendant=s procedural default of the
Apprendi violation. Accordingly, we reverse the judgment of the
appellate court as it pertains to defendant=s sentence. We
affirm the circuit court=s imposition of a sentence of life
imprisonment.
IV. CROSS-RELIEF
The defendant also requests cross-relief, arguing that he
has presented evidence to show that multiple jurors answered
falsely to questions about potential bias or prejudice during voir
dire. In support of this allegation, he points to a postverdict
affidavit from juror Joan Davis and a letter that jury foreman
Bart Masters wrote to the trial judge after the court sentenced
defendant.
The contents of Davis= affidavit are as follows:
AI, Joan Davis, affiant, affirm and swear as follows:
1. That I was a juror in the trial of Richard Nitz held
in April 1998.
2. Many of the jurors knew about the case before the
trial and at least one juror stated that >he=s already been
convicted once; how can we let him out=. She said this
several times during the deliberations as did other
jurors.
3. Many jurors commented on the fact that Richard
did not testify and because Mr. Nitz did not testify, he
must be guilty.
4. I was one of four >hold out= jurors because I did
not believe that the state proved the case against
Richard Nitz. I felt pressured into signing the guilty
verdict and did so only because I was told by other
jurors that Richard Nitz would be sentenced to time
served for the offense if we signed the least culpable
verdict form.
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5. I was upset that other jurors would consider the
other trials, including Richard Nitz=[s] wife=s trial results
and that they would consider the fact that Mr. Nitz didn=t
testify.@
Masters= letter to the trial judge complimented the judge on
his conduct of the trial and reflected on Masters= experience as
a juror. The following paragraph of the letter is relevant to
defendant=s argument for cross-relief:
AI recently learned of the sentence that you handled [sic]
down in this case. I too, thought that Mr. Nitz was a
danger to society 10 years ago and is still a threat. I
think justice was served for [the victim=s parents] and for
the citizens of the state of Illinois.@
This paragraph echoed a comment the trial judge made when
sentencing defendant: AThe court believes that Mr. Nitz was
dangerous when he murdered Mr. Miley and is still dangerous.@
Defendant argues that this material shows jurors answered
falsely when they were asked during voir dire if they could give
defendant the presumption of innocence and decide the case
based only on the evidence presented in court. The trial court
found that the Davis affidavit was inadmissible because it
addressed the nature and process of jury deliberations. It
denied defendant=s posttrial motion for a new trial. The
appellate court affirmed this judgment, noting that Awe will not
invite a massive attack on the sanctity of verdicts by allowing
the use of comments made during jury deliberations to suggest
that jurors did not perform their duty to follow the law or
otherwise shirked some commitment to legal principle made
during voir dire.@ 353 Ill. App. 3d at 985. Defendant cross-
appeals the appellate court=s decision, requesting relief in the
form of a new trial. Alternatively, he asks us to remand the
cause for an evidentiary hearing on this issue.
As a general rule, testimony by jurors is not admissible to
impeach a jury verdict. People v. Tobe, 49 Ill. 2d 538, 543
(1971), quoting People v. Pulaski, 15 Ill. 2d 291, 300 (1958).
However, certain exceptions to this rule exist. Defendant bases
his argument on one such exception: that juror testimony is
admissible to show that a juror answered falsely on voir dire
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about a matter of potential bias or prejudice (Department of
Public Works & Buildings v. Christensen, 25 Ill. 2d 273, 279
(1962)). To prevail on a motion for a new trial based on false
testimony during voir dire, a defendant must establish that (1) a
juror answered falsely during voir dire and (2) prejudice
resulted. Pekelder v. Edgewater Automotive Co., 68 Ill. 2d 136,
139 (1977), quoting Christensen, 25 Ill. 2d at 279-80; People v.
Harris, 74 Ill. 2d 472, 475 (1979). This two-part test cannot be
applied, however, to evidence that is inadmissible. Thus, we
consider first whether the trial court erred when it declined to
admit defendant=s evidence of alleged juror bias. We review
the trial judge=s decision for abuse of discretion. Pekelder, 68
Ill. 2d at 138.
First, we find that any argument regarding Masters= letter
has been procedurally defaulted. Defendant first raised his
juror bias argument in his posttrial motion for a new trial on
May 22, 1998. That motion based this argument on Davis=
affidavit and the promise of two similar affidavits from other
jurors, although the latter two affidavits never materialized. The
trial court denied this motion and sentenced the defendant on
July 29, 1998. On August 10, 1998, the court received Masters=
letter and entered it into the record. Defendant filed a motion to
reconsider his posttrial motion more than two weeks later, on
August 29, 1998. That motion did not refer to Masters= letter,
nor did defendant=s attorneys raise this evidence at a motion
hearing on October 7, 1998. However, defendant argues on
appeal that Masters= letter supports his allegations of juror bias.
A court cannot consider evidence argued for the first time on
appeal. People v. Brooks, 187 Ill. 2d 91, 128 (1999); People v.
Steidl, 142 Ill. 2d 204, 226 (1991). Defendant had the
opportunity to raise Masters= letter when he renewed his
posttrial motion or when the trial court heard arguments on that
motion. He did not do so, and thus deprived the trial court of
the opportunity to rule on whether this evidence was
admissible. Accordingly, we will not consider it on appeal. See
Brooks, 187 Ill. 2d at 128.
Turning to the statements of juror Davis, we must decide
whether the trial court abused its discretion when it found
Davis= affidavit inadmissible. Our analysis is guided by People
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v. Holmes, 69 Ill. 2d 507 (1978), a case in which this court
thoroughly detailed the principles that govern admissibility of
juror affidavits. The evidence in Holmes included shoe prints
that were left in the snow at the scene of a robbery attempt.
Holmes, 69 Ill. 2d at 509. Unbeknownst to the court, several
members of the jury visited a shoe store during the trial to
investigate shoe sole patterns. Holmes, 69 Ill. 2d at 510. Both
the circuit court and appellate court found evidence of the jury=s
extraneous investigation to be inadmissible. Holmes, 69 Ill. 2d
at 510-11. We made the following observation about
postverdict juror testimony:
A[T]he situations in which the testimony or affidavit of a
juror is offered in an attempt to impeach a jury verdict
fall into two broad categories. In the first category are
those instances in which it is attempted to prove by a
juror=s testimony or affidavit the motive, method or
process by which the jury reached its verdict. These,
almost without exception, have been held inadmissible.
[Citations.] The second category involves those
situations in which the testimony or affidavit of a juror is
offered as proof of conditions or events brought to the
attention of the jury without any attempt to show its
effect on the juror=s deliberations or mental processes.
In most jurisdictions such proof is admissible.@ Holmes,
69 Ill. 2d at 511-12.
The difference between the two types of testimony is that
the former attempts to show the working of the minds of
individual jurors, while the latter speaks merely to the
extraneous existence of conditions or occurrence of events.
Holmes, 69 Ill. 2d at 512, quoting State v. Kociolek, 20 N.J. 92,
99-100, 118 A.2d 812, 816 (1955). This second type of juror
testimony is subject to verification by other evidence. Holmes,
69 Ill. 2d at 513. Thus, juror testimony about extraneous
prejudicial information is admissible, while testimony about the
effect of that information on the mental processes of jury
members would not be admissible. Holmes, 69 Ill. 2d at 514,
516, citing Pulaski, 15 Ill. 2d at 300. Because evidence of the
shoe-store expedition was extraneous, we held it to be
admissible. Holmes, 69 Ill. 2d at 516.
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The difference between the two types of evidence is
illustrated by our decision in People v. Hobley, 182 Ill. 2d 404
(1998). In Hobley, we found juror affidavits admissible
regarding an incident where several nonjurors attempted to
intimidate jurors at the hotel where the jury was sequestered.
Hobley, 182 Ill. 2d at 459. However, we found that affidavits
accusing the jury foreperson of improperly intimidating other
jurors into a guilty vote were inadmissible because they
pertained to the jury=s motive, method, or process of
deliberation. Hobley, 182 Ill. 2d at 463; see also People v.
Pitsonbarger, 205 Ill. 2d 444, 469 (2002) (refusing to consider
juror affidavits which Adeal[t] exclusively with the content of
private jury deliberations, albeit deliberations engaged in
improperly and in violation of the court=s instructions@).
When courts have admitted evidence of juror bias under the
Christensen exception now relied on by defendant, it has been
evidence that complies with the rule set forth in Holmes. Such
evidence relates not to the motive, method, or process of jury
deliberations, but to the existence of some extraneous event or
condition which may prejudice a juror, and which should have
been revealed in voir dire to allow the parties and the court to
make informed decisions when empaneling the jury. In
Christensen, for example, jurors in an eminent domain case
had been asked in voir dire whether they or any close relatives
had been involved in any condemnations. Christensen, 25 Ill.
2d at 278. All jurors answered the question in the negative, but
during deliberations one juror revealed that her brother had
been involved in two condemnation suits. Christensen, 25 Ill.
2d at 278. We held that the trial court did not abuse its
discretion by considering an affidavit on this point. Christensen,
25 Ill. 2d at 279-80. The fact that a juror=s brother has been
involved in two condemnation suits can be easily verified by
extraneous evidence. An affidavit which states this fact does
not involve the mental process of any juror. Thus, its
admissibility complies with both Christensen and Holmes. See
also Pekelder, 68 Ill. 2d at 137-38 (considering posttrial
testimony that juror was involved in separate lawsuit at time of
his jury service, something he denied in voir dire); People v.
Porter, 111 Ill. 2d 386, 403 (1986) (defendant could have
-22-
submitted affidavit showing nature of relationship between juror
and victim=s mother to support his claim of concealed bias);
Schulz v. Rockwell Manufacturing Co., Rockwell International
Corp., 108 Ill. App. 3d 113, 122 (1982) (considering posttrial
affidavits stating that one juror had been fired by defendant and
the husband of another juror had been involved in a lawsuit
against defendant, neither of which was revealed in voir dire).
Although defendant argues that the affidavit of juror Davis
shows prejudice not disclosed in voir dire, it is nevertheless
inadmissible under Holmes because it concerns the jury=s
motive, method, or process of deliberations. Davis= allegations
that jurors inappropriately considered defendant=s previous trial
and his failure to testify are not subject to extraneous proof.
Unlike the fact of involvement in another lawsuit (see, e.g.,
Christensen, 25 Ill. 2d at 278; Pekelder, 68 Ill. 3d at 137-38) or
connection with a victim=s relative (see, e.g., Porter, 111 Ill. 2d
at 403), the statements in Davis= affidavit cannot be verified by
evidence other than the jury=s own motive, method, or process.
Like the affidavits in Pitsonbarger, Davis= affidavit addresses
only the jury=s private deliberations, even if those deliberations
were conducted in violation of the court=s instructions. See
Pitsonbarger, 205 Ill. 2d at 469. Although Christensen admits
juror affidavits to show bias or prejudice concealed on voir dire
(Christensen, 25 Ill. 2d at 279), such affidavits must concern
some evidence external to the jury=s motive, method, or
process (see Holmes, 69 Ill. 2d at 514). Thus, we hold that the
trial court did not abuse its discretion in refusing to admit Davis=
affidavit to show that jurors answered falsely on voir dire. Our
decision as to the affidavit=s inadmissibility makes it
unnecessary to consider whether the affidavit satisfies
defendant=s burden to show that he was prejudiced by a juror=s
false testimony on voir dire. See Pekelder, 68 Ill. 2d at 139.
V. CONCLUSION
For the reasons stated, we reverse the appellate court=s
modification of defendant=s sentence. We affirm the trial court=s
imposition of a sentence of life imprisonment. We affirm the
decisions of the trial court and the appellate court as they
pertain to defendant=s request for cross-relief.
-23-
Judgments affirmed in part
and reversed in part.
JUSTICE KILBRIDE, specially concurring:
While I agree with the majority that the application of the
plain-error doctrine in Apprendi cases is permissible under the
Supreme Court=s recent decision in Booker (slip op. at 8-9), I
am troubled for two reasons by the majority=s additional
approval of the harmless-error doctrine in those cases.
First, the Booker quotation cited by the majority (slip op. at
9) plainly sets forth two distinct rationales for the Court=s beliefs
that not Aevery sentence gives rise to a Sixth Amendment
violation@ and not Aevery appeal will lead to a new sentencing
hearing.@ Booker, 543 U.S. at 268, 160 L. Ed. 2d at 665, 125 S.
Ct. at 769. The Court=s initial rationale is Abecause [the Court]
expect[s] reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was
raised below and whether it fails the >plain-error= test.@ Booker,
543 U.S. at 268, 160 L. Ed. 2d at 665, 125 S. Ct. at 769. See
slip op. at 9. This statement provides an appropriate basis for
the majority=s conclusion that cases involving sixth amendment
violations are subject to plain-error analysis, and I concur in
that assessment.
The Booker Court then notes the second rationale
underlying its beliefs, stating A[i]t is also because, in cases not
involving a Sixth Amendment violation, whether resentencing is
warranted or whether it will instead be sufficient to review a
sentence for reasonableness may depend upon application of
the harmless-error doctrine.@ (Emphasis added.) Booker, 543
U.S. at 268, 160 L. Ed. 2d at 665, 125 S. Ct. at 769. While this
statement does not expressly bar the use of harmless-error
analysis in sixth amendment/Apprendi cases, it most assuredly
does so implicitly. Indeed, I can conceive of no reason for
adding that carefully tailored limitation other than to remove
those cases from the broad category of matters subject to the
doctrine of harmless error. That limitation on the use of
harmless error is particularly striking because the Booker
Court=s approval of the use of plain-error analysis in the
-24-
immediately preceding sentence contains no hint of any similar
limitation. For this reason, I believe the majority=s opinion
improperly relies on Booker to support the unjustified
reaffirmation of prior holdings on the use of harmless-error
analysis in Apprendi cases as announced in Thurow and its
progeny. Slip op. at 11, 12.
Not only do I believe the majority errs in reaffirming prior
harmless-error holdings by overlooking the specific limitations
expressed in Booker, but I also conclude that the majority
reaches that decision prematurely and unnecessarily. Prior to
beginning its Booker discussion, the majority correctly notes
that, under this court=s prior case law, plain-error analysis
applies when a defendant has failed to object to an alleged
error while harmless-error applies when a defendant has raised
a timely objection. Slip op. at 7. As the majority properly
concludes, A[i]n the instant case, defendant did not make a
timely objection to the extended-term sentence he received
based on the trial judge=s finding that his conduct was brutal or
heinous. Thus, plain-error analysis applies to a review of his
sentence. [Citations.] The appellate court erred by applying
harmless-error analysis.@ Slip op. at 8.
If at that point the majority had examined the effect of the
Booker decision on the use of plain-error analysis in this case,
found it to be permissible, conducted its own plain-error review,
and ultimately concluded that plain error was not shown, I
would have had no qualm with the opinion. Instead, the
majority engages in a dicta-laden discussion of the applicability
of harmless-error analysis in sixth amendment cases, ending in
its extension of the harmless-error doctrine to those matters
under the auspices of Booker. Only after treading down that
dubious path, does the majority focus on the resolution of
defendant=s plain-error claim.
As the majority repeatedly concedes, Nitz is a plain-error
case. Slip op. at 8, 11. It is not a harmless-error case. For this
reason, I disagree with the majority=s unnecessary discussion
-25-
of the application of that doctrine to sixth amendment cases.
By properly deciding this case on the basis of plain error, the
majority has no need to consider the propriety of the harmless-
error doctrine in this or any other sixth amendment case and,
further, to conclude that the use of harmless-error analysis
announced in Thurow has now been given the Supreme
Court=s imprimatur of approval in Booker. As I have explained,
Booker simply does not support that conclusion. Accordingly, I
reject those portions of the majority=s analysis, while concurring
in its plain-error review as well as the remainder of its opinion.
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