People v. Mata ( 2006 )

No. 2--03--0446 filed: 8/1/06
_________________________________________________________________________
_____
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________________
_____
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 98--CF--110
)
BERNINA MATA, )
Honorable
)
Gerald F. Grubb,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________
_____
JUSTICE GILLERAN JOHNSON delivered the opinion of the court:
Following a jury trial, the defendant, Bernina Mata, was convicted of first degree
murder (720 ILCS 5/9--1(a)(2) (West 1998)). The same jury found the defendant eligible
for the death penalty pursuant to section 9--1(b)(11) of the Criminal Code of 1961 (the
Criminal Code) (720 ILCS 5/9--1(b)(11) (West 1998)) and determined that there were no
mitigating factors sufficient to preclude the imposition of that sentence. Subsequently, the
trial court sentenced the defendant to death. The defendant directly appealed to the Illinois
Supreme Court, raising nine contentions. On January 11, 2003, former Governor George
Ryan commuted the defendant's death sentence to a term of natural life imprisonment
without the possibility of parole.
Upon her appeal being transferred to this court, the defendant filed a motion
requesting to withdraw eight of her contentions. We granted this motion. The defendant's
No. 2--03--0446
sole remaining contention was that she was entitled to a new sentencing hearing because
the State failed to prove beyond a reasonable doubt that she was eligible for the death
penalty in that she committed murder in a cold, calculated, and premeditated manner. In
light of the fact that the defendant's death sentence had been commuted, we dismissed the
defendant's appeal as moot. See People v. Mata, 353 Ill. App. 3d 784 (2004).
On December 15, 2005, the Illinois Supreme Court reversed the judgment of this
court, reasoning that the defendant's contention did not concern her sentence. See People
v. Mata, 217 Ill. 2d 535 (2005). Rather, pursuant to Apprendi v. New Jersey, 530 U.S. 466,
147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the defendant's contention concerned the
sufficiency of proof on a "functional equivalent" of an element of the offense of which she
was convicted. The supreme court remanded the cause with the direction that we consider
the merits of the defendant's contention. See Mata, 217 Ill. 2d at 551-52.
Upon remand to this court, the defendant requested leave to file a supplemental
brief raising the additional argument that due to several errors of constitutional magnitude,
she was denied a fair sentencing hearing. We granted the defendant's motion. We now
address the merits of the defendant's two contentions on appeal: (1) whether the defendant
was proved eligible for the death penalty beyond a reasonable doubt and (2) whether the
defendant was denied a fair sentencing hearing due to inadequate jury instructions and
misleading arguments by the State.
BACKGROUND
The facts relevant to this appeal are as follows. Following a jury trial in October
1999, the defendant was convicted of first degree murder (720 ILCS 9--1(a)(2) (West
1998)), in connection with the stabbing death of John Draheim. At the trial, Russell
-2-
No. 2--03--0446
Grundmeier testified that in June 1998, the defendant was his roommate. At that time,
Russell was in love with the defendant and believed that the defendant was in love with
him. Russell and the defendant had a sexual relationship. However, the defendant had
informed Russell that she was a lesbian, and the two of them had an understanding that
the defendant could have sex with women.
On the evening of June 27, 1998, Russell and the defendant went to Sporty's bar in
Belvidere to celebrate Russell's birthday. Around 7 p.m., Russell dropped off the defendant
at the bar and then left to pick up some Listerine for the defendant's newly-pierced tongue,
which needed to be rinsed every hour. Russell returned to the bar around 7:15 p.m. and
found the defendant sitting with a man she introduced as John.
Russell remained at the bar until 10 p.m. While he was there, the defendant was
drinking heavily, flirting, and walking around. Before he left the bar, the defendant walked
over to Russell and whispered to him that she was going to kill John and that he was going
to help. The defendant's tone of voice was angry. Russell responded that he was not
going to help. The defendant sat down next to John, and Russell left the bar soon after.
Russell arrived home around 10:15 p.m. The defendant arrived home 15 to 20
minutes later, with James Clark, a neighbor of theirs, and John. The four of them talked
and, with the exception of James, drank alcohol. James left after about 20 minutes. The
defendant and John sat on the couch and flirted with each other. Russell got mad and
went outside because he thought that he was supposed to be the only guy the defendant
was with. When Russell eventually went back inside, he heard moaning coming from the
defendant's bedroom.
-3-
No. 2--03--0446
Russell went into the defendant's room. The defendant and John were having what
appeared to be consensual sex. Russell grabbed John by the arm and pulled him off of the
defendant. The two men struggled and the defendant slipped off the bed and out of sight.
Russell, who weighed around 300 pounds, was able to get control of John, who weighed
only about 180 pounds. As Russell was holding John, the defendant appeared with a knife
and stabbed John in the chest several times. Russell was shocked and sickened.
However, he eventually helped the defendant dispose of John's body and clean up her
bloodstained bedroom.
Detective Kurt Ditzler of the Winnebago County sheriff's police 1 testified that he
interviewed the defendant regarding John's disappearance. During the first interview, the
defendant stated that on June 27, 1998, she was at Sporty's bar for her roommate
Russell's birthday. She struck up a conversation at the bar with a man named John, whom
she had seen in the bar on prior occasions. The defendant stated that John had given her
a ride home and ended up coming inside. John left at approximately 11:30 p.m. During the
second interview, the defendant admitted that she had stabbed John in her apartment on
June 27. The defendant claimed that she did so because John was trying to rape her.
During a third interview, the defendant admitted that John had not tried to rape her. The
defendant maintained that she and John never had sex.
Deputy Daniel Liston of the Winnebago County sheriff's police testified that he
searched the defendant's room, pursuant to her consent. Deputy Liston found stains that
1
The Winnebago County sheriff's police joined the investigation because the victim's
body was found in Winnebago County.
-4-
No. 2--03--0446
appeared to be blood on the bedroom closet doors, two pillow cases, and two towels. The
stains tested positive for blood. Deputy Liston also testified that a decomposed body, later
determined through dental records to be John, was found on July 13, 1998, in a secluded
wooded area in Winnebago County.
Inspector Dexter Bartlett, a crime scene investigator with the Illinois State Police,
was qualified as an expert in bloodstain analysis. Inspector Bartlett testified that he
assisted in the investigation of the scene of the stabbing. Inspector Bartlett testified that
there were six bloodstains on the closet doors he examined. Inspector Bartlett opined that
based on the cast-off patterns of the blood spatters, the victim had been stabbed a
minimum of six times. According to Inspector Bartlett, Russell's version of the events was
consistent with the blood spatters found.
Dr. Larry Blum, a forensic pathologist engaged in private practice, testified that he
performed an autopsy on John. Dr. Blum testified that a stab wound to the chest caused
John's death. John suffered a minimum of three stab wounds, all of which penetrated the
heart. Because the body was badly deteriorated, Dr. Blum could not determine the
maximum number of stab wounds John could have suffered.
Henrietta Glover testified that on July 14, 1998, she was in the Boone County jail,
having been arrested for forgery. Glover asked the defendant if she was really in for
murder. The defendant pulled out her papers and stated, "Yeah, I killed that motherfucker."
The defendant appeared happy. The defendant stated that she killed the victim because
he had made her angry. The victim had touched the defendant on her shoulder and she
told him to get his hands off of her or she would "snap his neck." The victim then touched
her on the thigh. The defendant stated that she invited the victim to her house so she could
-5-
No. 2--03--0446
kill him. The defendant led the victim to believe that they would have sex. The defendant
stated that she stabbed the victim seven or eight times. The defendant became excited
and exclaimed, "You should have saw the blood, it was cool. It shot out thick as your
thumb." The defendant also stated that she would be on her way to Florida if Russell had
not "ratted" her out. The defendant was angry at Russell for "ratting" on her, and more than
10 times she threatened to kill him. Olicia Taylor testified that on July 14, 1998, she
was in the Boone County jail on charges of forgery. Taylor asked the defendant what she
was in for and the defendant replied that she was in for murder. The defendant told Taylor
she had killed a man in a bar who had asked her out on a date. The defendant explained
that she became angry when the man touched her, because she is a lesbian. The
defendant stated that she asked the man home, intending to kill him.
Angela Wright testified that on July 15, 1998, she was detained in the Boone County
jail. The defendant confessed to Wright that she had stabbed a man. The defendant told
Wright that after the man had touched her for a second time she decided to "teach him a
lesson." The defendant denied ever having sex with the victim and claimed never to have
had sex with a man. The defendant told Wright that she hated men.
Detective Daniel Smaha of the Belvidere police department testified that he obtained
an order permitting him to use an eavesdropping device on Glover for the purpose of
obtaining further information from the defendant. Several statements were elicited from the
defendant, including (1) "the rush from killing somebody is a much more better rush than a
fucking fantastic orgasm"; (2) "if they do some more checking, if they really want to check it
out, they will find out it is premeditated, and that's worse"; and (3) "I had an alibi that was so
fucking airtight that I had them believing it." Dr. David Levine, a licensed psychiatrist,
-6-
No. 2--03--0446
testified on behalf of the defendant. Dr. Levine first had contact with the defendant on
December 5, 1997, at the Janet Wattles Community Mental Health Center. The defendant
reported having been sexually abused as a child by her stepfather and having a history of
alcohol, marijuana, and cocaine use. The defendant also talked about having
hallucinations. The defendant told Levine that sometimes when she hallucinated she would
hear the voice of her grandfather, who was important in her life. Dr. Levine diagnosed the
defendant with chronic depression and substance abuse by history. Dr. Levine prescribed
Wellbutrin for the defendant.
Dr. Levine saw the defendant again on December 19, 1997. He believed that the
defendant was not responding to her medication, although she was not suffering from
hallucinations at that time. Dr. Levine next saw the defendant on January 30, 1998, and
he believed that the defendant was improving. The defendant reported having no
hallucinations. Dr. Levine saw the defendant on April 22, 1998, and the defendant was
guarded and less open. The defendant reported that she had gotten angry at someone
while at work at Sam's Club in the auto department and had thrown a tire in that person's
direction. On May 22, 1998, Dr. Levine saw the defendant, and she appeared well.
However, the defendant's roommate had called the defendant's case manager and
reported that the defendant had not been taking her medicine and was becoming difficult to
live with. Dr. Levine explained to the defendant why taking her medicine was important.
May 22 was the last time Dr. Levine saw the defendant before the June 27 incident.
Dr. Levine testified that he never knew the defendant to be violent or aggressive,
although when she was not feeling well she was guarded and mistrustful. Alcohol could
-7-
No. 2--03--0446
have an adverse effect on someone with the defendant's mental state. Dr. Levine did not
have an opinion as to whether the defendant was sane at the time of her offense.
Cynthia Lloyd testified that she met the defendant in May 1998. They became
intimately involved in June 1998. Cynthia and the defendant would occasionally kiss or
hold hands in front of Russell. Russell was never very friendly to Cynthia.
The morning of June 27, 1998, the defendant was at Cynthia's house in Ingleside,
Illinois. As far as Cynthia was aware, the defendant was not taking her medication and had
not drunk any alcohol. The defendant left Cynthia's house and went home sometime
during the day. Cynthia talked to the defendant briefly around 7:30 p.m. that evening, after
the defendant had her tongue pierced. Cynthia talked to the defendant again at 11 p.m.
that evening.
During the 11 p.m. call, the defendant was screaming and crying. The defendant
told Cynthia that a man had tried to rape her and that there was a dead man in her
bedroom. The defendant told Cynthia that she could not talk and to call back at 1:30 a.m.
Cynthia called the defendant back around 11:30 p.m. and Russell answered the phone.
Cynthia spoke briefly with Russell, during which time she could hear the defendant crying in
the background. On June 28, 1998, the defendant went to stay with Cynthia and remained
there until she was arrested.
Dr. Frank Cushing, a licensed psychologist, testified that he evaluated the defendant
as to her mental state at the time of the crime and her competency to stand trial. Dr.
Cushing met with the defendant in the Boone County jail five times between November 6,
1998, and March 19, 1999. According to Dr. Cushing, the defendant suffered from severe
chronic post-traumatic stress disorder, stemming from being sexually abused as a child by
-8-
No. 2--03--0446
her stepfather. Dr. Cushing testified that besides the sexual abuse of the defendant by her
stepfather, the defendant's mother indicated to him that the defendant's father may have
also sexually abused her and the defendant's father may have allowed his friends to abuse
her. The defendant was in remission from alcohol and substance abuse and was being
treated with psychotropic medicine.
During the evaluations, the defendant related to Dr. Cushing that on the night of the
stabbing, she saw her stepfather's face on John's body. Dr. Cushing explained that
flashbacks such as those the defendant reported experiencing are usually caused by
stimuli that recall the original trauma. The defendant reportedly never received any care for
her rape trauma. Dr. Cushing and seven other mental health professionals have diagnosed
the defendant with borderline personality disorder. Dr. Cushing opined that the
defendant's significant mental illness interfered with her ability to think through all of the
ramifications and consequences of her actions. Dr. Cushing did not believe that the
defendant would have been able to premeditate this crime. Dr. Cushing believed, however,
that the defendant was sane on June 27, 1998, and that she was able to appreciate the
criminality of her actions.
David Wheeler, a case manager with the Illinois Department of Children and Family
Services (DCFS), testified that a case was opened for the defendant in 1974 when she was
sexually abused by her mother's boyfriend. The defendant was placed in foster care but
then sent home after four or five months when it was determined that the abuser was no
longer in the mother's home. Wheeler had contact with the defendant again in 1983 after
the defendant had developed a poor relationship with her mother, who felt she had no
-9-
No. 2--03--0446
control over the defendant. DCFS took custody of the defendant, and she remained in
foster care and other residential placement for the next five years.
Dr. Edward Mahoney, a psychologist retained by the State, testified in rebuttal that
he interviewed the defendant four times between March 30, 1999, and May 28, 1999. Dr.
Mahoney believed that the defendant was sane on June 27, 1998. Dr. Mahoney explained
that at the time of the offense, the defendant knew the wrongfulness of her acts and was
able to conform her behavior to the requirements of the law. In Dr. Mahoney's opinion, the
defendant was able to premeditate the crime. Dr. Mahoney opined that the defendant
suffered from depression, borderline personality disorder, and antisocial personality
disorder. Dr. Mahoney did not believe that the defendant suffered from post-traumatic
stress disorder, although he acknowledged that many of the symptoms were present. Dr.
Mahoney opined that the defendant's IQ is in the low average range.
Following the above testimony, the jury found the defendant guilty of first degree
murder. Subsequently, the case proceeded to a two-part death penalty hearing. During
the eligibility phase of the death penalty hearing, neither party offered any additional
evidence. The State argued that the defendant committed the murder in a cold, calculated,
and premeditated manner pursuant to a preconceived plan. The State argued that the
testimony of Russell, Glover, Taylor, and Wright established that the defendant planned
the murder two to three hours in advance. The defense argued that the stabbing was the
result of a passionate, angry fight and that the murder was not cold, calculated, or
premeditated. The defense further argued that all three individuals were drunk and out of
control on the night of the incident. In rebuttal, the State argued that there was no "magical
meaning" to the terms "premeditated" and "preconceived plan." The State further argued,
-10-
No. 2--03--0446
"A preconceived plan can occur ten seconds before the act actually occurs. Preconceived
actually means that you came up with that plan before you committed the act. ***
Premeditation is simply making up your mind what you will do ahead of time."
The jury was instructed pursuant to Illinois Pattern Jury Instructions, Criminal, No.
7B.07 (4th ed. 2000) as follows:
"Before the defendant may be found eligible for a death sentence under the
law the State must prove the following propositions:
First proposition: That the defendant was 18 years old or older at the time of
the commission of the murder of which she was found guilty at the trial of this case;
and
Second proposition: That the following statutory aggravating factor exists;
The murder was committed in a cold, calculated, and premeditated manner
pursuant to a preconceived plan, scheme, or design to take a human life by unlawful
means, and the conduct of the defendant created a reasonable expectation that the
death of a human being would result therefrom.
If you find from your consideration of all of the evidence that the first and
second propositions have been proved beyond a reasonable doubt, then the
defendant is eligible for a death sentence.
If you cannot unanimously find that both the first and second propositions
have been proved beyond a reasonable doubt, then the defendant is not eligible for
a death sentence."
After deliberating for an hour, the jury found the defendant eligible for the death penalty
pursuant to section 9--1(b)(11) of the Criminal Code.
-11-
No. 2--03--0446
At the sentencing phase of the death penalty hearing, the State offered aggravating
evidence as to the defendant's lack of remorse, a threatening letter the defendant had sent
to Russell, and the victim impact testimony of John's sister. The defendant offered
mitigating evidence as to the defendant's mental illness, her history of sexual abuse, her
lack of significant criminal history, and her feelings of remorse. After deliberating for five
hours, the jury informed the trial court that it was deadlocked as to whether to impose the
death penalty. Over the objection of the defense, the trial court informed the jury that it
needed to reach a unanimous verdict in that "in order to return a verdict, all jurors must
agree to it." After eight more hours of deliberation, the jury determined that there were no
mitigating factors sufficient to preclude the death penalty and that the trial court should
impose a sentence of death.
The defendant's first contention on appeal is that the State failed to prove beyond a
reasonable doubt that she was eligible for the death penalty in that she committed the
murder in a cold, calculated, and premeditated manner.
In reviewing the sufficiency of the evidence to support a finding of death eligibility, we determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the elements necessary to establish the defendant's death eligibility beyond a reasonable doubt. People v.
Emerson, 189 Ill. 2d 436, 474-75 (2000). Determinations of the credibility of witnesses, the
weight to be given their testimony, and the reasonable inferences to be drawn from the
evidence are the trier of fact's responsibility. People v. Ramsey, 205 Ill. 2d 287, 292
(2002).
In this case, the defendant was found eligible for the death penalty solely under the
aggravating factor in section 9--1(b)(11) of the Criminal Code. Section 9--1(b)(11) of the
Criminal Code provides for death penalty eligibility where (1) the defendant was 18 years or older at the time of
-12-
No. 2--03--0446
the offense and where (2) Athe murder was committed in a cold, calculated and premeditated manner pursuant to
a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant
created a reasonable expectation that the death of a human being would result therefrom." 720 ILCS
5/9--1(b)(11) (West 1998). The defendant does not dispute that she was over the age of 18 when she
committed the offense. Rather, the defendant challenges that the murder was committed in a cold, calculated,
and premeditated manner.
The terms "cold" and "calculated and premeditated" as used in section 9--1(b)(11) of the Criminal
Code provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the
many cases in which it is not. People v. Williams, 193 Ill. 2d 1, 36 (2000). For a murder to be
cold, it must be "not motivated by mercy or the emotion of the moment." The defendant must " 'kill without
feeling or sympathy.' " People v. Brown, 169 Ill. 2d 132, 166 (1996). For a murder to be
calculated and premeditated pursuant to a preconceived plan, scheme, or design, it must have been "deliberated or
reflected upon for an extended period of time." Williams, 193 Ill. 2d at 37. Words such as
"premeditated" and "design" import forethought, careful reflection, or a deliberately arranged purpose, ideas all
involving in their structures the essential element of time. Williams, 193 Ill. 2d at 31. A preconceived
plan, scheme, or design is one that is "thought out well in advance of the crime." Williams, 193 Ill. 2d at
31. As artfully explained by Representative Ed Petka during the legislative debates concerning section 9--
1(b)(11), "This provision is intended to apply to those situations in which a defendant basically takes the life of
another person after deliberating upon it for extended periods of time." 85 Ill. Gen. Assem., House
Proceedings, June 29, 1987, at 55 (statements of Representative Petka).
In People v. Macri, 185 Ill. 2d 1 (1998), the supreme court upheld a finding of death penalty
eligibility under section 9--1(b)(11) where the defendant murdered a roommate with a crowbar. Ten months
prior, the defendant had told a friend of his that he intended to hit the victim over the head with a crowbar, rape
-13-
No. 2--03--0446
her, steal her car, and flee to New York City, all of which eventually transpired. Macri, 185 Ill. 2d at
54.
In People v. Haynes, 174 Ill. 2d 204 (1996), the supreme court upheld a finding of death
penalty eligibility under section 9--1(b)(11) where the defendant, over a period of days, contemplated the murder
of a cosmetic surgeon. The defendant had decided to act out against perpetrators of ' "fake Aryan cosmetics.' "
Haynes, 174 Ill. 2d at 255. He selected a cosmetic surgeon out of the phone book and a few days prior
to the crime made an appointment with the doctor under a false name. Haynes, 174 Ill. 2d at 255. The
defendant shot the doctor during his appointment. Haynes, 174 Ill. 2d at 255.
In People v. Williams, 173 Ill. 2d 48 (1996), the supreme court upheld a death penalty
eligibility finding under section 9--1(b)(11) where the defendant contemplated the murder of his ex-fiancée a day
prior to shooting her. The day before the murder, the defendant had attacked his ex-fiancée and her new
boyfriend with a butcher knife and threatened to kill them if he saw them together again. The next day, the
defendant shot his ex-fiancée after seeing her with her new boyfriend at the mall.
In People v. Brown, 169 Ill. 2d 132 (1996), the supreme court upheld a finding of death
penalty eligibility under section 9--1(b)(11) where the defendant devised a plan to murder a rival gang member
several hours in advance. Three hours prior to the killing, the defendant had obtained a rental car and his
accomplice had obtained a gun. Brown, 169 Ill. 2d at 166.
Whereas, in People v. Williams, 193 Ill. 2d 1 (2000), the supreme court overturned a
finding of death penalty eligibility under section 9--1(b)(11) where the defendant and an
accomplice entered a convenience store, robbed it, and shot the clerk. A video camera
recording showed that the defendant took the store clerk behind the counter and shot her
as she was opening the cash register drawer for him. Williams, 193 Ill. 2d at 38. However,
there was no evidence that the defendant considered killing the store clerk " 'well in
advance' [citation] of the crime." Williams, 193 Ill. 2d at 38.
-14-
No. 2--03--0446
In the present case, the jury could have found beyond a reasonable doubt that the
defendant committed the murder in a cold, calculated, and premeditated manner pursuant
to a preconceived plan, scheme, or design to take a human life by unlawful means. The
murder was certainly cold or without feeling or sympathy. Furthermore, ample evidence supports that the
murder was deliberated or reflected upon for an extended period of time and had been planned out well in
advance. Russell testified that when he returned to the bar around 7:15 p.m., the
defendant was sitting with John. Shortly before Russell left the bar around 10 p.m., the
defendant told him that she was going to kill John and that he was going to help. The
defendant arrived home with John around 10:30 p.m. About one-half hour later, Russell
observed the defendant and John in what appeared to be consensual sex. Russell pulled
John off of the defendant and the two men struggled. As Russell was holding John, the
defendant appeared with a knife and stabbed John in the chest numerous times. The
defendant admitted to several of her cell mates that she decided to kill John because he
had made her angry in the bar. John had touched her and she did not like that, because
she is a lesbian. The defendant admitted to her cell mates that she invited John to her
house so she could kill him and that she had led John to believe that they would have sex.
In sum, the evidence was sufficient to prove the defendant eligible for the death penalty
under section 9--(b)(11) of the Criminal Code.
The defendant's next contention on appeal is that the eligibility stage of her
sentencing hearing was marred by constitutional error. More specifically, the defendant
contends that due to inadequate jury instructions and misleading arguments by the State,
the defendant was denied a fair sentencing hearing. The defendant argues that
premeditation, pursuant to a preconceived plan, requires "both a substantial period of time
and proof of reflection or deliberation" and that the jury instructions did not explain the
-15-
No. 2--03--0446
requirement of planning over time. Furthermore, the defendant argues that the State
misinformed the jury when it stated that "a preconceived plan can occur ten seconds before
the act actually occurs" and that "premeditation is simply making up your mind what you will
do ahead of time."
The defendant has forfeited review of this claim. See People v. Enoch, 122 Ill. 2d
176, 185-87 (1988). During the instruction conference of the eligibility phase, the defense
made no objection to the proposed jury instructions. Nor did the defense object when the
State gave its supposed faulty argument. Furthermore, the defendant did not include these
claims in any of her posttrial motions. The doctrine of waiver has been applied to errors
made at the sentencing phase of a death penalty case. See Macri, 185 Ill. 2d at 72.
Nevertheless, the defendant contends that the doctrine of plain error applies. We disagree.
The plain error doctrine applies when the evidence is closely balanced or when the
error is of such magnitude that it deprives the defendant of a fair hearing. Macri, 185 Ill. 2d
at 72. The evidence in this case was not closely balanced. The defendant contemplated
the murder of her victim for several hours. She admitted to becoming upset sometime
between 7:30 p.m. and 10 p.m. in the bar when John touched her. She then invited John
home with her and made him believe that they would have sex, all the while intending to kill
him. The defendant eventually carried out her plan sometime around 11 p.m., when she
stabbed John after having sex with him. Furthermore, the alleged errors were not of such
magnitude that the defendant was deprived of a fair hearing. First, the record reveals that
the jury was given all of the appropriate instructions in the Illinois Pattern Jury Instructions
manual. Second, the State's two isolated comments concerning the meanings of
premeditation and a preconceived plan, even if arguendo they were inaccurate, could not
have influenced the jury's decision. A review of the State's argument as a whole shows
-16-
No. 2--03--0446
that the State consistently argued that the defendant devised her plan to murder John
several hours in advance. Accordingly, we do not believe that the defendant was deprived
of a fair death penalty eligibility hearing.
For the foregoing reasons, the judgement of the circuit court of Boone County is
affirmed.
Affirmed.
McLAREN and BYRNE, JJ., concur.
-17-