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                            "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nAfter a jury trial, defendant, William Albrecht, was convicted of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(d) (now 720 ILCS 5/12 — 16(d) (West 1992))) and two counts of criminal sexual abuse (Ill., Rev. Stat. 1987, ch. 38, par. 12 — 15(b) (now 720 ILCS 5/12 — 15 (West 1992))), involving three minors, D.C., E.K., and P.O. Defendant was sentenced to six years’ imprisonment for the aggravated criminal sexual abuse convictions and 364 days for each of the criminal sexual abuse convictions with the sentences to run concurrently.\nOn appeal, defendant asserts that (1) he did not validly waive his right to counsel because the police did not inform him that a retained attorney was present and requesting to speak with Mm; (2) the State improperly presented extensive evidence of other crimes or misconduct; and (3) the convictions for criminal sexual abuse of D.C. should be reversed because the indictment did not allege that the sexual acts occurred within the statute of limitations.\nPrior to trial, defendant filed motions to suppress his statements and evidence, which were denied.\nWheeling police officer Robert MacDonald testified that he and Officer Jerome Hermes arrested defendant at his home on May 3, 1988, pursuant to a warrant. According to MacDonald, he did not hear defendant tell anyone to call an attorney, but defendant did tell his son to call Mrs. Albrecht at work.\nAt the police station, MacDonald advised defendant of Ms Miranda rights. Defendant stated that he understood and signed an advisement of rights form. MacDonald left the interrogation room at 4:30 p.m, but returned at 5:40 p.m. to give Detective William Hubner a note informing him that an attorney was present at the station and was asking to see defendant. MacDonald testified that the officers did not want defendant to know that an attorney was at the station because defendant had not asked for one. MacDonald then saw Hubner and defendant come from the interrogation room. When Hubner asked defendant whether he wanted to speak to an attorney, defendant declined. MacDonald did not hear anyone else say anything to defendant at that time.\nDetective Hubner’s testimony regarding events at the police station was essentially the same as MacDonald’s. In addition, Hubner testified that he spoke with defendant until 6:15 p.m., at which time he introduced Assistant State’s Attorney Diane Romza to defendant and left the interrogation room. Around 7:30 p.m., Hubner returned to the interrogation room at Romza’s request to witness defendant’s signature on the typewritten statement. Around 8:30 p.m., defendant signed a consent to search form.\nAssistant State’s Attorney Romza testified that she went to the Wheeling police station at 4:45 p.m. where she saw defendant speaking to Officers Hines and Hubner in an interrogation room. At that time, she learned that defendant had waived his rights. Around 5:30 or 5:45 p.m., Romza received a telephone call from attorney Michael Norris, who said he represented defendant and asked whether any questioning had begun. Romza told Norris that defendant had waived his rights, had not asked for an attorney, and was being questioned by the Wheeling police. Romza also told Norris that she would tell defendant that Norris had called.\nAfter the phone call, Romza informed the police that an attorney had called for defendant. Romza then saw an officer take a note to Hubner in the interrogation room. When Hubner and defendant came out of the room, Hubner asked defendant if he wanted to speak with an attorney. Defendant said that he did not want an attorney and wanted to continue to speak with Hubner. According to Romza, she then told defendant that an attorney had called and asked if defendant wanted to speak with him.\nLater, Romza spoke with defendant alone in the interrogation room. After showing defendant the advisement of rights form he had signed earlier and advising him of his Miranda rights, Romza spoke with him for 25 to 30 minutes. Defendant agreed to have their conversation typed in the form of a statement. Around 7:30 p.m., defendant was given the typed statement. After reading a paragraph to prove that he could read, defendant signed the statement without making any corrections or changes. Defendant then signed a consent form to search his house.\nPolice officer Kuzynowski saw Hubner bring defendant out of the interrogation room at 5:30 p.m. and ask whether he understood his rights and wanted an attorney present during the interview. Defendant responded that he understood his rights and wanted to continue speaking with Hubner. Kuzynowski did not hear anyone tell defendant that there was an attorney present who wanted to speak with him.\nTen or fifteen minutes later, Kuzynowski spoke to Norris and defendant’s wife in the police station lobby. Kuzynowski told Norris that defendant voluntarily waived his rights, did not say he was represented by an attorney, and did not ask for an attorney. Since defendant never requested an attorney, Norris was not allowed to see him.\nMary Albrecht testified that she called the Wheeling police department around 4 p.m. After Officer Kuzynowski told her that her husband was under arrest, she called attorney Norris, then went to the police station. When she arrived around 4:30 p.m. and the officers would not let her see her husband, Mary informed them that she had contacted an attorney who was coming to the station. At 5:45 p.m., Norris arrived at the police station, but Kuzynowski would not allow him to see defendant.\nDefendant testified that he was arrested at his home at 3:30 p.m. on May 3, 1988. After the police officers refused to let him call his attorney, he told his son to call Norris and Mrs. Albrecht to tell them that he was under arrest. At the police station, defendant was informed of his rights. He understood those rights, but told Hubner and MacDonald that he wanted to speak to an attorney. He was not allowed to call Norris.\nThe trial court found that defendant did not tell his son to call attorney Norris, but that defendant’s wife, Mary Albrecht, had called Norris. The trial court also found that defendant had waived his rights, had never asked to consult an attorney during the interview process, and had made a knowing and intelligent waiver of his right to counsel. In addition, the trial court found that attorney Norris was present at the police station, but defendant was not informed of his presence. It was error to deny defendant’s motion to suppress.\nAt trial, Officer MacDonald testified to essentially the same facts as during the pretrial hearing. In addition, MacDonald stated that during the interview with Hubner, defendant said that he loved the boys, knew that he had a problem, and knew it was getting out of control. Defendant stated that he had had this problem before and received counseling without success. MacDonald also testified that when Romza interviewed defendant, he admitted he knew he was a pedophile and that he had had sexual conduct with the four boys.\nMacDonald further testified that after defendant signed a consent to search form, he and several other police officers searched defendant’s home. They found a thermometer, blood pressure device, package of electrodes, electric wires, and scrub gowns.\nRomza testified that she asked defendant if he knew what a pedophile was and he indicated that a pedophile is a person who does sexual things to a child and does not stop. When she asked defendant if he had done sexual things with children, he admitted that he had.\nAccording to Romza, defendant stated that he met P.O. through his children. In December 1987, defendant asked P.O. to come to his bedroom where he told P.O. he was conducting a hospital experiment. Defendant told P.O. to remove his clothes and then masturbated him. After that, defendant put a thermometer into P.O.’s anus. Defendant admitted that he had masturbated P.O. on three other occasions.\nDefendant also told Romza that during the summer of 1987, he masturbated R.G. once and E.K. twice, telling them that it was part of a hospital experiment. Defendant said that he did the same thing to R.B. in 1988. Romza stated that defendant gave a written statement, which contained essentially the same facts as in the oral statements described above.\nOver defense counsel’s objection, Lisa Pinto, a Ph.D. in clinical psychology, testified as an expert witness. She testified that sexual abuse results in anti-social and self-destructive behavior by the victim. Pinto stated that she treated P.O. for six months for the effects of long-term sexual abuse. At that time, P.O. was withdrawn, tearful, and fearful of contact with people. He had self-inflicted razor marks on his chest, was anti-social, and was involved in a gang and vandalism. His family relationships had deteriorated and he had threatened to hurt people. According to Pinto, this was consistent with post-traumatic stress syndrome.\nNext, D.C. testified that he met defendant’s son in December 1986 when D.C. was 14 years old. D.C. often went to defendant’s home after school to play computer games, including sexual fantasy games. In January 1987, D.C. was at the Albrecht home playing computer games when defendant asked D.C. if he would be interested in working on a computer program that involved a medical data base. Defendant told D.C. that he would get weekly checkups for which he would get paid. Defendant told D.C. not to tell anyone about the project. When D.C. returned later that evening, he agreed to participate.\nDuring the first week of February 1987, defendant took D.C. to a bedroom where defendant had D.C. remove his shirt. Defendant checked D.C.’s muscles, then made notes. D.C. then lowered his pants halfway and pulled down the front of his underwear. Defendant put his hand into D.C.’s underwear and felt his penis and testicles with three fingers to \"see if everything was working properly.” Again, defendant made notes. The entire examination took about 20 minutes, and D.C. received $4 or $5.\nA couple of weeks later, defendant performed a second \"examination,” which was like the first one. When defendant explained that the rest of the program would involve getting an erection and holding it while he checked everything, D.C. said that he wanted out because he felt uncomfortable. Defendant agreed. A few days later, defendant gave D.C. money for the second examination.\nIn addition to these sessions, D.C. testified that defendant conducted initiations to bring other people into the Albrecht extended family. D.C.’s initiation occurred after school in May or June of 1987. Defendant tackled D.C., held him to the floor, and put ice cubes down the front of his pants.\nD.C. stated that he saw about 12 initiations at the Albrecht house. He recalled P.O.’s initiation in October 1987, which was done with the assistance of D.C. and two of his friends, who held P.O. down while defendant stuffed the ice cubes.\nNext was B.O.’s testimony, to which defendant objected on the basis that it was inadmissible prior bad acts being used to show a propensity to commit the crimes charged. The State argued that the testimony was being presented to show common scheme, design, plan, absence of mistake, and intent.\nB.O. testified that he was 14 years old when he became friendly with defendant’s son. During January of 1986 or 1987, B.O. had a conversation with defendant that began in the Albrechts’ living room and continued in a bedroom. Defendant put his arm around B.O. and began stroking himself. He asked if he could put a needle in B.O.’s penis to see if the blood turned a different color and talked about initiating B.O. into the family by placing ice cubes in his pants. Defendant said he would pay B.O. and that B.O. should consider whether he wanted to participate. After the conversation, B.O. did not return to the Albrecht home.\nNext, P.O. testified that he met the Albrecht family during the summer of 1986, when he was 13 years old. He was at their home almost every day playing computer games, which included adult games that defendant taught him. About a month after P.O. met the Albrechts, defendant asked if he would be interested in working on a computer project for which P.O. would be paid $2,000. Five weeks later, they started the project. Defendant explained that he was going to take measurements of P.O.’s body, take his temperature, take a sperm sample, and do a drug screen.\nDefense counsel objected that this testimony was prior acts of misconduct not charged in the indictments and which only served to show a propensity to commit crime. The State argued that it went to the lack of mistake, modus operandi, and common scheme. The trial court overruled the objection on the basis that the evidence went to modus operandi.\nP.O. stated that the project with defendant began in the middle of the summer and lasted until just before Christmas. There were approximately 10 sessions, all occurring in the Albrecht home when defendant and P.O. were alone. Defendant took measurements of P.O.’s body, his blood pressure, and his temperature by way of his rectum. The examination bothered P.O., but he wanted the $2,000.\nThree weeks before Christmas, defendant masturbated P.O. in order to get a sperm sample. P.O. thought this was unusual, but was not very upset. At the end of that session, P.O. got dressed and went downstairs where other people were playing computer games. Although P.O. was traumatized, he stayed and played computer games for a half hour.\nShortly after Christmas in 1986, P.O. was sick of the project, but went to the Albrechts’ home because he was dating defendant’s 14-year-old daughter, Colleen. In the spring of 1987, defendant brought out tarot cards and discussed witchcraft with P.O. Because P.O. wanted to learn about witchcraft, defendant told him that he had to prove he was loyal by wearing a ring around his testicles for 24 hours. Defendant did not have a ring so he used a paper clip. P.O. did not wear it for the entire 24 hours because it hurt.\nIn December 1987, defendant approached P.O. about participating in a project where defendant could turn P.O. into a super stud and in which 10 other children across the country were participating. P.O. agreed to participate. On December 17, 1987, defendant had P.O. remove all his clothes and opened the windows to get P.O.’s temperature in cold weather. Defendant took P.O.’s temperature by way of his rectum, then masturbated him to get a sperm sample.\nDuring this second project, P.O. met with defendant four times. Defendant felt P.O.’s testicles five times to check for cancer and took a drug scan by putting a Q-tip up his penis. P.O. said that defendant was grunting and moaning while he conducted the project. During the last session, defendant shaved P.O.’s pubic hair and gave him shock treatments with wires. After defendant shocked P.O. two or three times, he turned up the intensity of the shocks. P.O. asked him to stop, but he did not, so P.O. ripped off the electrodes and left.\nDuring April 1988, P.O. stopped dating Colleen. Although defendant had broken up the relationship, P.O. denied that he went to the police to hurt defendant. P.O. stated that he joined a gang, started using drugs, and began having trouble with the police after he participated in defendant’s experiments. During those two years, P.O. was initiated into the family five times by having ice cubes put down, his underwear. In 1989, P.O. was admitted to the hospital.\nNext, E.K. testified that in 1988 when he was 13 or 14 years old, he met the Albrecht family through his best friend. He went to their house every day to watch television or play video games. At the end of March or beginning of April 1988, E.K. was initiated into the family.\nDuring April 1988, E.K. had a conversation with defendant in the Albrecht kitchen. Defendant asked E.K. if he wanted to participate in a computer program defendant was putting together for the hospital. A week later, defendant told E.K. that the project would involve taking a physical and obtaining a sperm sample. Defendant said he would pay E.K. $10 for each portion of the program, and E.K. agreed to participate.\nA week later, E.K. went to defendant’s bedroom while other people were downstairs. After defendant locked the bedroom door, he had E.K. remove all his clothes and lie on the floor while defendant squeezed E.K.’s muscles. Defendant also took E.K.’s temperature and blood pressure, then checked for cancer by lifting E.K.’s penis and touching his testicles. After the examination, E.K. got dressed and went downstairs to play with the computer. E.K. stated that he did not think this examination was unusual because he trusted defendant. Defendant did not pay E.K. for that session.\nIn addition, four other boys testified about their experiences with defendant. At the conclusion of this testimony, defense counsel made a motion for directed verdicts on all the indictments. The trial court granted the directed verdict motion as to the charges regarding R.G. and RB. Defendant did not testify.\nAfter deliberations, the jury found defendant guilty of criminal sexual abuse of D.C., E.K., and P.O., and aggravated criminal sexual abuse of E.K. and P.O. Defendant was sentenced to six years’ imprisonment for the aggravated criminal sexual abuse convictions and 364 days for each of the criminal sexual abuse convictions with the sentences to run concurrently.\nOn appeal, defendant asserts that he did not validly waive his right to counsel at the police station since the police did not inform him that a retained attorney was present and requesting to speak with him. We agree.\nIn its recent decision in People v. McCauley (1994), 163 Ill., 2d 414, the Illinois Supreme Court ruled that there can be no knowing waiver of the right to counsel if the police withhold information from a suspect that his attorney is present and seeking to consult with him. (McCauley, 163 Ill., 2d at 425.) If the police do not allow an attorney to consult with an accused, they violate Illinois’ constitutional guarantee against self-incrimination (Ill., Const. 1970, art. I, § 10) and due process rights (Ill., Const. 1970, art. I, § 2). It is not sufficient for authorities to merely advise a suspect of a generalized right to an attorney. McCauley, 163 Ill. 2d at 442.\nIllinois \"favor[s] a person having the assistance of counsel during custodial interrogation and contemplates prohibiting interference with that assistance by governmental authorities.*** [D]ue process is violated when police interfere with a suspect’s right to his attorney’s assistance and presence by affirmatively preventing the suspect, exposed to interrogation, from receiving the immediately available assistance of an attorney hired or appointed to represent him.” (Emphasis in original.) (McCauley, 163 Ill., 2d at 444.) By withholding information from an accused that his attorney is in the police station available to consult with him, the police conduct bears directly on the accused’s right to counsel. (McCauley, 163 Ill., 2d at 445.) It is irrelevant whether the attorney is appointed or retained, whether the defendant or the defendant’s family retains the attorney, or whether the defendant knows about the retention. McCauley, 163 Ill. 2d at 437-38.\nBased on the McCauley decision, defendant’s motion to suppress statements and evidence should have been granted because the police officers’ and the assistant State’s Attorney’s conduct violated the Illinois constitutional guarantee against self-incrimination and due process rights.\nAmong the statements and evidence obtained by the State and introduced at trial from defendant was his written confession, his oral statement that he was a pedophile and that he had had sexual conduct with the named boys, and that there had been a 1973 incident. He signed a consent to search his home, where the police recovered a thermometer, blood pressure device, electrodes and other evidence.\nThus, we reverse defendant’s conviction and remand the case to the trial court for a new trial.\nNext, defendant asserts that he was denied his right to a fair trial because the State improperly presented extensive evidence of other crimes or misconduct. Specifically, defendant complains of evidence presented about the ice cube initiations, his interest in witchcraft, other types of sexual conduct, and his possession of computer games of a sexual nature. Defendant argues that this evidence was either irrelevant, highly prejudicial with little or no probative value, or both.\nIn response, the State asserts that this evidence was admissible to show modus operandi. The State maintains that defendant’s modus operandi was that (1) the sexual abuse occurred in an upstairs room in his home; (2) the sexual abuse was always pretexted under the guise of a medical computer experiment or data base; (3) three of the victims were promised remuneration for their participation; (4) defendant masturbated three of the victims; and (5) some of the victims were asked to undergo shock treatments to their pubic area. P.O. did, in fact, receive such shock treatments. The State contends that other aspects of defendant’s modus operandi were that defendant attempted to be a father figure, provided rides to his children’s friends, and sometimes gave them money. Furthermore, the State asserts that the trial court gave the jury a limiting instruction that the other crimes evidence was to be considered for intent or modus operandi.\nWhile evidence of sexual misconduct with other children is admissible only if it is relevant for purposes other than showing a defendant’s propensity to commit the crime charged, the evidence is admissible if it shows the defendant’s modus operandi. (People v. Daniels (1988), 172 Ill. App. 3d 616, 624, 527 N.E.2d 59.) This case is similar to People v. Jendras (1991), 216 Ill. App. 3d 149, 159, 576 N.E.2d 229, where the pattern of the incidents constituted modus operandi. Although the defendant was indicted for aggravated criminal sexual abuse of only M.T., E.N. and D.N. were allowed to testify about the defendant’s other bad acts. (Jendras, 216 Ill. App. 3d at 151-59.) All three victims were the defendant’s male students who went alone to his apartment to go swimming. Their parents were separated and the victims lived with their mothers. In all three cases, the acts of touching and fondling were similar. (Jendras, 216 Ill. App. 3d at 159.) The court agreed that the incidents were similar enough to constitute a pattern that showed modus operandi. Jendras, 216 Ill. App. 3d at 159.\nThe evidence in this case was properly admitted as modus operandi. The ice cube initiations, witchcraft lessons, and computer games were admissible because they created a family atmosphere and were used to gain the victims’ confidence. In addition, the evidence of other types of sexual conduct was also admissible as modus operandi.\nDefendant also contends that his statements should have been redacted to eliminate any mention that he was a pedophile, had a problem with a child in 1973, and had received counseling that did not help him. We do not need to address this issue because defendant’s statement will not be admissible in a new trial.\nFinally, defendant asserts that the convictions for criminal sexual abuse of D.C. should be reversed because the indictment did not allege that the sexual acts occurred within the statute of limitations. Defendant’s failure to raise this issue in his post-trial motion constituted waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Also, the filing of the original indictments, although dismissed, tolled the statute of limitations. Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(c).\nBased on our determination that the cause must be remanded for a new trial, we must consider the sufficiency of the evidence in order to protect defendant’s constitutional right against double jeopardy. (People v. Reynolds (1994), 257 Ill. App. 3d 792, 806, 629 N.E.2d 559.) Although we are not making a finding as to defendant’s guilt or innocence that will be binding in a new trial, we conclude that the evidence presented at trial was sufficient for a jury to decide that defendant was guilty beyond a reasonable doubt.\nAccordingly, the trial court’s order denying defendant’s motion to suppress statements and evidence obtained after the arrival of defendant’s attorney is reversed. Defendant’s convictions are also reversed and the case is remanded for a new trial and such further proceedings as the trial court shall determine. At a new trial, statements made to the police officers and assistant State’s Attorney before the arrival of attorney Norris at the police station, if any, shall be admissible based upon the McCauley decision.\nReversed and remanded.\nGREIMAN, P.J., and RIZZI, J., concur.",
                            "author": "JUSTICE CERDA",
                            "type": "majority"
                        }
                    ],
                    "attorneys": [
                        "Michael Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.",
                        "Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Matthew J. McQuaid, Assistant State’s Attorneys, of counsel), for the People."
                    ],
                    "head_matter": "First District (3rd Division)\nNo. 1—91—0994\nTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM ALBRECHT, Defendant-Appellant.\nModified opinion filed April 26, 1995.\nOpinion filed February 15, 1995.\nRehearing denied April 25, 1995.\nMichael Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.\nJack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Matthew J. McQuaid, Assistant State’s Attorneys, of counsel), for the People."
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            "name": "UNITED STATES v. ONE BOOK ENTITLED ULYSSES BY JAMES JOYCE (RANDOM HOUSE, Inc., Claimant)",
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            "name": "April C. MITCHELL, Plaintiff-Appellant, v. GOLDKIST, INC.; the City of Nashville, Defendants-Appellees",
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                            "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nBefore us are two criminal cases we have consolidated for review, People v. Adams, No. 75111, and People v. Valdez, No. 75654. Although these cases involve wholly unrelated facts, they share a common feature. In both cases the appellate court reversed the defendants’ convictions on the grounds that the State had failed to prove venue beyond a reasonable doubt.\nWe granted the State leave to appeal in each case. (134 Ill. 2d R. 315.) For the reasons that follow, we agree with the appellate court’s conclusion that venue is a material allegation that must be proved by the State beyond a reasonable doubt along with the other elements of an offense. We hold, however, that the State did meet its burden of establishing venue in these cases. Accordingly, the judgments of the appellate court are reversed, and the cases are remanded for consideration of the remaining issues which the parties raised, but the appellate court did not reach.\nIn People v. Adams, the evidence showed that Edward Peterson owned a 1979 Chevrolet, which he allowed his live-in girlfriend to use. Peterson kept the car at the couple’s residence, which was located in the City of Chicago. On May 24, 1991, the girlfriend, Valerie Warren, lent the car to her uncle, Melvin Warren. By the next day, the car was gone. Valerie contacted the police to report it stolen.\nPeterson next saw the car at the Chicago police pound on May 27. It had been towed there after the defendant, Donald Adams, crashed it on Interstate 290 near the community of Addison. Two days later, Adams flagged down a Chicago police officer and said that he wanted to turn himself in. Adams told the officer that \"he had taken Ed Peterson’s car, he was mad at somebody.” He also stated that \"he was left alone in the car and that he took the car and he crashed it at Addison.\nThe officer took Adams to the police station. There the officer discovered that a stolen car report listing Adams as the offender had been filed by Peterson. After the police advised Adams of his Miranda rights, he repeated his story about taking the car and crashing it. When the police asked him what had become of the keys, he took them out of his pocket. The Cook County State’s Attorney subsequently charged Adams by information with burglary and possession of a stolen vehicle.\nAt trial Adams did not deny that he had been in possession of Peterson’s car. Rather, his defense was that he had permission to use it. Adams claimed that he had a close relationship with Peterson’s girlfriend, Valerie, and that the two of them had driven around together in Peterson’s car on the night of May 24 and during the early morning hours of May 25. According to Adams, they purchased and used alcohol and cocaine. In Adams’ version of the story, they drove to Maywood at 2:30 a.m. to borrow money from Jessie Williams to buy drugs. The pair subsequently drove back to Chicago to buy cocaine. Adams claimed that when the drugs were used up, he left Valerie at a crack house and drove to Williams’ home a second time to borrow more money from him. There is no dispute that Maywood is located in Cook County, as, of course, is Chicago.\nDisavowing his previous confession, Adams asserted that Valerie had given him permission to take the car on the second trip to Williams’ house and that he had intended to drive back to Valerie after he had borrowed the money. As previously noted, however, he ultimately crashed the car on the interstate near Addison, which is several miles and several highway exits northwest of Maywood. He was driving in the opposite direction of Maywood, although he claimed that the crash occurred when he was trying to make a u-turn. Adams never explained what he was doing on the highway, going west, except to say that he was trying to burn up some gas he had bought for the car.\nAdams’ story was contested by the other witnesses at trial. Jessie Williams did confirm that he had loaned money to Adams twice during the early hours of May 25, but testified that he did not see Valerie in Adams’ company. Although Valerie admitted that she knew Adams, she denied dating him and denied seeing him on May 24. In addition, both Valerie and Ed Peterson testified that Adams had no authority to use the car.\nBased on this evidence, the circuit court of Cook County, sitting without a jury, acquitted Adams of the burglary charge, but found him guilty of possession of a stolen motor vehicle, in violation of section 4 — 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 103(a)(1)). The court sentenced Adams to 30 months’ probation and ordered him to pay restitution in the amount of $150, the cost of repairing the damage to Peterson’s car.\nIn the Valdez case, the record showed that on September 19, 1986,# the defendant, Gloria Valdez, boarded an airliner in Miami, along with two male associates, Victor Valdez and Raul Torres. The airliner was bound for Minneapolis-St. Paul, with one scheduled stop in Chicago.\nAll three individuals were holding one-way tickets. Gloria had purchased her ticket with cash on the day of departure using the name Louise A. Diaz. Victor and Raul had also bought their tickets that day using cash. The tickets bore consecutive serial numbers. Raul’s ticket was purchased under the name Guillermo Valdez.\nAfter the three boarded the plane, a flight attendant noticed that Victor and Raul used the restroom separately, about 30 seconds after one another. The attendant regarded this as unusual because people do not usually go to the restroom before takeoff. The attendant did not see any of the other passengers use the restroom before Victor and Raul did.\nBefore the plane departed, an airline ticket agent informed an airline service manager of the tickets Victor and Raul had purchased. The manager boarded the plane and advised Victor and Raul that they would have to disembark, which they did. The manager and airline security then searched the two and their luggage for weapons. When none were found, Victor and Raul were allowed to return to the plane.\nAfter the plane departed, the flight attendant who had previously observed Victor and Raul searched the restroom they had used. He discovered four sandwich-type plastic bags containing cocaine. The bags were hidden under the liner of a trash receptacle located beneath the sink. The attendant initially locked the restroom door, but reopened it after talking to the captain. Later, during the flight, he saw Victor and Raul each try to use the restroom. The attendant testified that they were unable to do so because the facilities were occupied and that they then used a different lavatory across the aisle.\nWhen the flight landed in Chicago for its one scheduled stop, Chicago police and agents of the Drug Enforcement Agency boarded the plane. The police seized the bags of cocaine from the restroom and they, along with the DEA agents, escorted Gloria, Victor and Raul from the plane.\nDuring questioning by police in a passenger waiting room, Gloria denied that the drugs belonged to her, denied having any knowledge of the drugs, and denied knowing Victor and Raul. She stated that she was travelling to Minneapolis to see her son and to perform witchcraft for the sum of $300.\nGloria consented to a search of her purse. Authorities found six dollars and a cleaning ticket bearing the name Gloria Valdez. In addition, there were miscellaneous items, including material that \"looked like bones or something.” Gloria explained that these were used in her witchcraft ritual.\nAfter the search was concluded, police took Gloria’s photograph and fingerprints and allowed her to leave. They later discovered that her fingerprints matched latent prints on the tape used to seal the plastic bags of cocaine. As a result, Gloria was arrested for possession of a controlled substance with intent to deliver in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 561h, par. 1401).\nOver objection, the jury was instructed on constructive possession and accountability. The jury found her guilty, and the court sentenced her to 15 years in prison and imposed a fine of $50,000.\nAdams and Gloria subsequently filed appeals in their respective cases. Each raised various grounds for reversal, but in both cases the appellate court reversed on the sole ground that the State had failed to prove venue beyond a reasonable doubt. (Adams, No. 1 — 91— 3009 (unpublished order under Supreme Court Rule 23); Valdez, 249 Ill. App. 3d 1058.) The remaining issues raised by Adams and Gloria were not addressed.\nIn its appeal to this court, the State first argues that the appellate court erred in holding that venue must be proven by the State beyond a reasonable doubt. The State cites section 1 — 6(a) of the Crimiiial Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 1 — 6(a)), which provides that \"[a]ll objections of improper place of trial are waived by a defendant unless made before trial.” The State also invokes section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1). Subsection (a)(7) of that statute states that the court may dismiss an indictment, information or complaint on the grounds that the county is an improper place of trial \"[u]pon the written motion of the defendant made prior to trial.” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(a)(7).) Subsection (b) specifies that where such motions are not filed in a timely fashion, they shall not be considered and that the grounds for those motions, with some exceptions, \"are waived.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(b).\nBased on these statutes, the State contends that the General Assembly has now established that venue is not a substantive element of any criminal offense. In the State’s view, it is, instead, a personal, procedural right which is waived if not raised by a defendant prior to trial. Because neither Adams nor Gloria brought such a pretrial challenge here, the State asserts that they should have been barred from raising the question of venue later in the proceedings.\nThis court has recently reiterated its long-held view that venue is a material allegation which must be proved by the State beyond a reasonable doubt along with the other elements of an offense. (People v. Hagan (1991), 145 Ill. 2d 287, 300.) Contrary to the State’s argument, this rule has not been supplanted by the provisions of section 1 — 6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 1 — 6(a)) or section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1).\nThose statutes provide a procedural mechanism for defendants to seek a change of venue in accordance with their constitutional right (Ill. Const. 1970, art. I, § 8) to be tried in the county where the crime is alleged to have taken place. (See People v. Carroll (1992), 260 Ill. App. 3d 319, 327.) They do not alter the State’s obligation to prove at trial that the county where the crime is alleged to have been committed is the county where the crime, in fact, took place. As the committee comments to section 1 — 6(a) explain, the waiver provision in that statute\n\"is in accord with the rule that if a defendant desires a change of venue he must apply therefor before trial commences. (See People v. Davis, 10 Ill. 2d 430, 140 N.E.2d 675 (1957), and People v. Gregory, 16 Ill. App. 2d 576, 149 N.E.2d 198 (1958).) It is not intended to change in any way the prosecution’s duty to allege the place where the offense was committed in accordance with the provisions of Section 1 — 6, and to prove such allegations in the usual manner.” (Emphasis added.) 720 ILCS Ann. 5/1 — 6, Committee Comments — 1961, at 23 (West 1992).\nIn the two cases before us, neither Adams nor Gloria has claimed that venue was improper in the sense that the charging instruments alleged that the crimes were committed somewhere other than the counties where the trials were held. In each case the charging instruments alleged that the crimes occurred in Cook County, and in each case Cook County was the site of the trial.\nThe problem here is quite different. Defendants’ objections are not with the allegations of the charging instruments, but with the State’s failure to prove those allegations. This failure of proof is not a matter that defendants could possibly have been required to raise in a pretrial motion. The presumption of innocence relieved them of any obligation to contest the factual basis for the State’s case before trial commenced. See People v. McClellan (1977), 46 Ill. App. 3d 584, 587.\nBecause a pretrial motion was not required where, as here, the question of venue involved an alleged failure of proof, it necessarily follows that the absence of such a pretrial motion cannot divest defendants of their right to challenge the sufficiency of the venue evidence following conviction. The question of venue was therefore properly considered by the appellate court in these cases. For the reasons which follow, however, the appellate court erred in concluding that the State had not met its burden of proving venue beyond a reasonable doubt.\nIn the Adams case, the appellate court reversed the conviction for possession of a stolen motor vehicle, which was alleged to have been committed in Cook County, because \"testimony indicated that the offense may have occurred in another county.” This statement suggests that the appellate court may not have been mindful of the proper standard of review. We recently reiterated that a court of review may not reverse a guilty verdict unless the evidence, viewed in the light most favorable to the State, was so palpably contrary to the verdict, so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. We further held that a reviewing court may not substitute its judgment for that of the trier of fact, and that it may not reverse a conviction verdict if any rational trier of fact could have reached the conclusion below. People v. Harre (1993), 155 Ill. 2d 392, 398.\nUnder this standard, there is no basis for disturbing the trial court’s verdict. The vehicle started out in Cook County, where Peterson, the owner, and his girlfriend, Valerie, lived. By Adams’ own account, he ultimately gained exclusive possession of the automobile and drove it in Cook County. Both Valerie and Peterson testified that he had no authorization to do so.\nAdams contends that his conviction must nevertheless be set aside because the State failed to show that he intended to permanently deprive Peterson of the vehicle. In Adams’ view, the most he was guilty of was \"joyriding.” We note, however, that the intent to deprive an owner of his property may be inferred simply from the act of taking another’s property. Likewise, it may be inferred from the lack of evidence of intent to return the property or to leave it in a place where the owner could safely recover it. See People v. Pozdoll (1992), 230 Ill. App. 3d 887, 890.\nHere, Adams confessed to police that he had taken Peterson’s car, and the evidence showed that his flight in the vehicle ended only after he crashed it on the highway. Until that time, he was headed away from Chicago and Valerie. Although he claimed that he intended to return the car to Valerie after using up all the gas, the trier of fact was not required, in light of the totality of the circumstances shown by the evidence, to accept his version of the facts. The totality of the circumstances here supports a conclusion that Adams possessed the requisite intent and that he possessed that intent in Cook County where he took exclusive and unauthorized possession of the car. The appellate court therefore erred in reversing Adams’ conviction on the ground that the State had failed to meet its burden of establishing venue.\nWe reach the same conclusion with respect to the appellate court’s reversal of Gloria Valdez’s conviction. As we have discussed, the jury in Gloria’s case was instructed on theories of accountability and constructive possession. Based on our review of the evidence, there was an adequate basis for the jury to conclude that Gloria’s associates maintained constructive possession of the illegal drugs in Cook County and that Gloria is liable for the offense under principles of accountability.\nIn reversing the jury’s verdict, the appellate court focused on the question of constructive possession. It believed that there could be no constructive possession in Cook County because neither Gloria nor her associates had control of the restroom where the drugs were hidden. That, however, was not required.\nIn reviewing a conviction for possession of a controlled substance, the dispositive issue is not whether a defendant had control over the place where the drugs were found, but whether the defendant had possession of the drugs themselves. Proof that a defendant had control over the premises where the drugs were located can help resolve this issue because it gives rise to an inference of knowledge and possession of the drugs (People v. Jones (1982), 105 Ill. App. 3d 1143, 1148), but it is not a prerequisite for conviction. Indeed, not only does a defendant not need to control the premises, he does not even need to have actual, personal, present dominion over the drugs themselves. (People v. Frieberg (1992), 147 Ill. 2d 326, 361.) Constructive possession may exist even where an individual is no longer in physical control of the drugs, provided that he once had physical control of the drugs with intent to exercise control in his own behalf, and he has not abandoned them and no other person has obtained possession. People v. Fox (1962), 24 Ill. 2d 581, 585.\nIn this case, the jury could certainly have concluded that Gloria’s associates had physical control of the drugs with intent to exercise control in their own behalf. Evidence showed that the two carried the cocaine on board and hid it in the restroom. No other person obtained possession of the drugs prior to their seizure by police in Cook County, and no serious claim can be made that the drugs were ever abandoned. Gloria’s associates concealed them in the restroom only so they could escape detection until the plane reached its destination. Constructive possession therefore existed, and it existed in Cook County. Accordingly, as in Adams, the appellate court erred in reversing Gloria’s conviction on the ground that the State had failed to meet its burden of establishing venue.\nFor the foregoing reasons, the judgments of the appellate court are reversed, and these causes are remanded to the appellate court for consideration of the remaining issues which the parties raised, but the appellate court did not reach.\nReversed and remanded.",
                            "author": "JUSTICE HARRISON",
                            "type": "majority"
                        },
                        {
                            "text": "JUSTICE MILLER,\nconcurring:\nI concur in the judgment of the court. I do not agree, however, with the majority’s conclusion that venue is a material fact in every prosecution and must be established at trial by proof beyond a reasonable doubt. The statutes at issue here are not unconstitutional, and our own doctrine regarding venue is not constitutionally compelled. Accordingly, I would enforce the provisions in our statutory law that require an accused to make, in advance of trial, any challenge to the county in which trial is being conducted.\nArticle I, section 8, of the Illinois Constitution grants to an accused the right \"to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” (Ill. Const. 1970, art. I, § 8.) Earlier constitutions contained similar guarantees. (Ill. Const. 1870, art. II, § 9; Ill. Const. 1848, art. XIII, § 9; Ill. Const. 1818, art. VIII, § 9.) The constitution speaks in terms of vicinage, or the location from which the jury must be drawn, but the concepts of venue and vicinage are closely related. See 2 W. LaFave & J. Israel, Criminal Procedure § 16.1, at 334-35 (1984).\nAt an early point in our case law, venue became identified with jurisdiction. (See, e.g., Campbell v. People (1884), 109 Ill. 565, 570 (\"Under the constitution and laws of this State, as at common law, the local jurisdiction of all offences is in the county where the offence is committed”).) Early cases also required that the evidence presented at trial affirmatively show that the charged offense was committed in the county in which the offense was alleged to have occurred. (Dougherty v. People (1886), 118 Ill. 160, 163; Jackson v. People (1866), 40 Ill. 405, 406; Rice v. People (1865), 38 Ill. 435, 436.) An allegation of the place of the offense was said to be a \"material averment” (Moore v. People (1894), 150 Ill. 405, 407) or a \"jurisdictional fact” (People v. Adams (1921), 300 Ill. 20, 24; People v. McIntosh (1909), 242 Ill. 602, 604) that the prosecution was required to show. A 1921 decision, People v. Kubulis (1921), 298 Ill. 523, 528, declared the State’s burden in establishing venue to be by proof beyond a reasonable doubt. Kubulis did not cite any authority for that proposition. The requirement of proof beyond a reasonable doubt was not questioned, however, and later decisions reaffirmed the rule. People v. Long (1950), 407 Ill. 210, 212-13; People v. Church (1937), 366 Ill. 149, 158; People v. Gregor (1935), 359 Ill. 402, 404; People v. Strook (1932), 347 Ill. 460, 465.\nUnder prior law, the jurisdiction of a trial court was \"limited by its territorial boundaries.” (Weyrich v. People (1878), 89 Ill. 90, 94.) A court without venue therefore lacked jurisdiction. The identification of venue with jurisdiction explains why earlier decisions finding a failure of proof of venue would reverse and remand the cause for further proceedings rather than simply reverse the conviction outright without ordering a remand, as one would expect when there was inadequate proof of an element of the offense. The failure to establish venue would have rendered the initial decision a nullity, making possible a subsequent trial in a forum possessing jurisdiction over the matter. (See Campbell v. People (1884), 109 Ill. 565, 573.) Under this rule, venue was considered to be a jurisdictional prerequisite, and not an element of the offense. More recently, however, venue has virtually come to be treated in the same manner as an element of the offense, and the failure to establish venue has resulted in the outright reversal of the conviction. People v. McClellan (1977), 46 Ill. App. 3d 584.\nVenue is no longer defined in jurisdictional terms, and our law now draws a clear distinction between the two concepts. (People v. Caruso (1987), 119 Ill. 2d 376, 390; People v. Goins (1988), 119 Ill. 2d 259, 264-65.) Accordingly, under current law, \"The place of trial is not jurisdictional and may be waived by the defendant.” (People v. Ondrey (1976), 65 Ill. 2d 360, 363.) The contemporary view of venue thus stands in sharp contrast to former practice, as exemplified by People v. Powell (1933), 353 Ill. 582, 591, in which the court declared, \"Venue is not a matter of form — it is a matter of substance. It is jurisdictional.”\nSection 1 — 6(a) of the Criminal Code of 1961 states:\n\"Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law. All objections of improper place of trial are waived by a defendant unless made before trial.” (720 ILCS 5/1— 6(a) (West 1992).)\nOther provisions specify where venue will lie for transitory and continuing offenses and for offenses in which venue would be proper in more than one place. 720 ILCS 5/1 — 6(b) through (r) (West 1992).\nSection 114 — 1 of the Code of Criminal Procedure of 1963 provides, in pertinent part:\n\"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:\n^ if: 5|<\n(6) The court in which the charge has been filed does not have jurisdiction;\n(7) The county is an improper place of trial;\n* * *\n(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” (725 ILCS 5/114 — • 1(a), (b) (West 1992).)\nIf necessary, an evidentiary hearing may be conducted prior to trial to resolve any disputed issues of fact raised by a motion to dismiss. (725 ILCS 5/114 — 1(d) (West 1992).) If venue is not proper, the judge may either dismiss the action outright or transfer the matter to an appropriate place of trial; the defendant may be charged anew with the same offense if the cause is dismissed for improper venue. 725 ILCS 5/114 — 1(e), (f) (West 1992).\nAlthough our prior cases have at times characterized venue as a material averment of a charge, if not an essential element of an offense, to be established by proof beyond a reasonable doubt, due process does not require that venue be treated in that fashion. Because venue is not defined as an element of any offense in Illinois, there is no requirement under the Federal Constitution that the prosecution in a criminal case establish venue beyond a reasonable doubt. (See McMillan v. Pennsylvania (1986), 477 U.S. 79, 85-86, 91 L. Ed. 2d 67, 75-76, 106 S. Ct. 2411, 2415; In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072-73.) Consistent with that view, courts of other States have concluded that venue is not an element of a charged offense and need not be established at trial by proof beyond a reasonable doubt. See, e.g., State v. Allen (Iowa 1980), 293 N.W.2d 16; State v. Lopez (1973), 84 N.M. 805, 508 P.2d 1292; State v. Cauble (Utah 1977), 563 P.2d 775.\nOther statutory provisions reinforce the view that venue is not to be regarded as an element of an offense in Illinois. Section 111 — 3 of the Code of Criminal Procedure, concerning the requisites of a charging instrument, distinguishes the elements of the offense from the place of its commission. Thus, section 111 — 3(a)(3) requires that a charge set forth \"the nature and elements of the offense,” while a separate provision, section 111 — 3(a)(4), requires that a charge state \"the date and county of the offense as definitely as can be done.” (725 ILCS 5/111— 3(a)(3), (a)(4) (West 1992).) If venue is actually an element of the offense, and thus a matter controlled by section 111 — 3(a)(3), as the majority believes, then the separate reference in section 111 — 3(a)(4) to the location of the offense must be superfluous.\nThe requirement that venue be established by proof beyond a reasonable doubt is a judicially created construct that may be altered either by us or by the legislature. As can be seen, the driving force behind the evolution of this doctrine was the identification of venue with jurisdiction. Venue was viewed as a jurisdictional imperative, and it became the State’s burden to provide affirmative proof of it; the failure to establish venue meant that the trial court lacked jurisdiction over the matter. Because venue and jurisdiction are no longer synonymous, the reasons for the doctrine have disappeared.\nThe constitution itself is silent on what means are necessary to protect and effectuate a criminal defendant’s venue right. As one member of the court explained more than a century ago, in agreeing with the majority in a case that upheld the power of the legislature to enact statutes regarding venue in criminal cases and to prescribe measures for their enforcement:\n\"The right guaranteed to the defendant is.that of trial by an impartial jury of the county. Whether the burthen of showing that he has not been deprived of that right shall rest upon the People, wholly or only in part, or whether the burthen shall rest upon him to show that he has been deprived of that right, are questions with which the constitution does not deal. Having guaranteed the right, it leaves all questions of detail as to the mode of ascertaining when it shall have been violated, to the legislature, and manifestly, therefore, the question of where the burthen of proof, in this respect, shall in the first instance rest, is purely one of legislative policy.” Watt v. People (1888), 126 Ill. 11, 35-36 (Scholfield, J.).\nOne may question whether legislative authority over this subject is as broad as the preceding quote suggests. Nonetheless, I believe that the provisions found in section 1 — 6 of the Criminal Code and section 114 — 1 of the Code of Criminal Procedure are adequate to protect the constitutional right of an accused to have the matter tried in the county where the offense allegedly occurred. Because neither defendant in the two cases consolidated here made a timely challenge to the place in which his or her trial was being conducted, I would find, pursuant to statute, that both defendants have waived any challenge to the venue of the circuit court.\nThe majority, however, concludes that the provisions of the Criminal Code and Code of Criminal Procedure do not control the problem here, the State’s asserted failure to establish venue at trial. Citing our recent decision in People v. Hagan (1991), 145 Ill. 2d 287, 300, the majority asserts that venue \"must be proved by the State beyond a reasonable doubt along with the other elements of an offense” (161 Ill. 2d at 341), suggesting, of course, that venue itself is an element of the offense. The majority concludes that venue must be established at trial by proof beyond a reasonable doubt and, without identifying the source of that requirement, finds that the waiver provisions of sections 1 — 6 and 114 — 1 are irrelevant here. The majority’s theory would seemingly leave to these statutes a relatively minor role: that of correcting improper designations of venue that are apparent on the face of the charging instrument. An examination of the authorities relied on by the majority, however, reveals that those cases have in essence manufactured two rights out of one.\nIn People v. McClellan (1977), 46 Ill. App. 3d 584, cited by the majority, the defendant was charged in Champaign County with the commission of several offenses there. The evidence presented at trial, however, showed that one of the crimes actually occurred in Cook County. On appeal the defendant challenged his conviction for that offense, arguing that the State did not prove a material averment in the indictment because it failed to establish the commission of the crime in the county in which he was tried. Relying on section 1 — 6 of the Criminal Code, the State argued that the defendant had waived this contention by failing to raise it prior to trial. The appellate court declined to find the issue waived:\n\"But the State mistakes defendant’s argument. As defendant states, there is no question of improper venue. Defendant has a constitutional right to trial in the county in which the offense is alleged to have been committed. (Ill. Const. 1970, art. I, § 8.) The indictment alleges that the offense occurred in Champaign County and trial was properly had there. There was no defect in the indictment. The problem here is a failure of proof.\nThe State’s argument can be phrased this way: Defendant has an obligation to raise, before trial, an objection to venue based on his belief that the State will be unable to prove venue as alleged. Merely to make the statement is to refute it. McClellan pleaded not guilty and is presumed to be innocent. He cannot be burdened with such an obligation. Accordingly, the judgment and sentence for attempt murder must be reversed.” McClellan, 46 Ill. App. 3d at 587.\nThis line of reasoning led the appellate court in People v. Carroll (1992), 260 Ill. App. 3d 319, also cited by the majority, to discern in the constitutional guarantee two separate aspects of venue:\n\"[The] substantive element of venue differs from the related and equally well-established procedural aspect of venue, which, in Illinois, means that although criminal cases are to be tried in the county where the offense was committed [citation], 'all objections of improper place of trial are waived by a defendant unless made before trial.’ (Ill. Rev. Stat. 1987, ch. 38, par. 1 — 6(a); People v. McClellan (1977), 46 Ill. App. 3d 584, 587, 360 N.E.2d 1225, 1227.) The former addresses 'a failure of proof,’ that is, whether the State has proved beyond a reasonable doubt that the defendant committed the offense in the county where he was tried [citations], while the latter guarantees that the trial takes place in the county where the indictment alleges that the offense was committed. [Citations].” People v. Carroll (1992), 260 Ill. App. 3d 319, 327.\nThe court in Carroll went on to describe \"the substantive aspect of venue” as \"a necessary element of an offense.” (Carroll, 260 Ill. App. 3d at 327.) Yet the distinction suggested by Carroll between the two types of venue is illusory rather than real, as the opinion’s subsequent discussion demonstrates. Carroll noted that the courts of this State \"have consistently applied the provisions of [section 1 — 6] to determine questions regarding the substantive as well as the procedural aspect of venue,” and the court concluded, \"in order to sufficiently establish venue in a particular county the State must prove beyond a reasonable doubt only that which is required by section 1 — 6.” (Carroll, 260 Ill. App. 3d at 328.) If, in fact, section 1 — 6 fully describes the State’s burden with respect to venue at trial, as the Carroll court believes, then one must ask why the remaining statutory provisions relevant here cannot be given full and equal effect, including the provisions mandating waiver of untimely venue objections.\nThe majority and its authorities — Carroll and McClellan — mistakenly assume that a pretrial hearing, such as that contemplated by section 114 — 1, is not sufficient to protect a defendant’s right to be tried in the county where the offense allegedly occurred and, further, that a substantive right of venue exists apart from the procedural guarantee protected by the statutes. Yet the source of this separate right is nowhere identified, and even Carroll allowed that the \"substantive aspect of venue,” like its supposed procedural counterpart, is controlled by section 1 — 6 of the Criminal Code, with the added fillip that venue must be established beyond a reasonable doubt. At bottom, Carroll and McClellan are perhaps best understood as efforts to reconcile the judicial doctrine of venue with the legislative provisions addressing the same subject.\nAssuredly, venue is an important right. It is, however, procedural rather than substantive, and one that the defendant may be required to invoke prior to trial. Sections 1 — 6 and 114 — 1 provide the tools necessary for a defendant to challenge the venue of the court in which the charge is being brought, and I agree with the State that an accused, armed with the information available to him through modern discovery procedures, may be held to the requirement of making that challenge in advance of trial. As I have noted, section 114 — 1 provides for an evidentiary hearing when disputed questions of fact exist. Although the statute does not specify what burden of proof governs the proceeding, having the State establish venue at that time by a preponderance of the evidence would be appropriate.\nRequiring the defendant to object to venue is essentially no different from requiring a defendant to raise, before trial, other procedural guarantees of constitutional dimension, such as the right to a speedy trial, protected by the same provision of our constitution (Ill. Const. 1970, art. I, § 8). (See People v. Manley (1990), 196 Ill. App. 3d 153, 171-74 (Steigmann, J„ concurring in part and dissenting in part).) Nor does enforcing the venue right through these procedural means require an accused to strip himself of the presumption of innocence enjoyed by a defendant in a criminal case. One making a challenge to the venue of a criminal prosecution can turn to statements of witnesses, police reports, bills of particulars, and other forms of disclosure mandated by our criminal discovery rules, if the charging instrument itself fails to prompt the necessary objection.\nThe committee comments to section 1 — 6, cited by the majority, similarly fail to support the rule perpetuated here. The majority quotes a portion of the comments to the effect that the waiver provision found in section 1 — 6 \"is not intended to change in any way the prosecution’s duty to allege the place where the offense was committed *** and to prove such allegations in the usual manner.” (720 ILCS Ann. 5/1 — 6, Committee Comments — 1961 (Smith-Hurd 1992).) As the remainder of the committee comments to section 1 — 6 demonstrates, however, the effect of the new statute was not as limited as the preceding quotation might suggest. Referring to the waiver provision of section 1 — 6(a), the comments go on to state:\n\"It is designed to prevent a defendant who knows that the place of trial is improperly alleged from saying nothing until his gamble on the verdict has lost and then raising the issue for the first time. This rule is now applicable in civil actions [citation]. It is contemplated that hearings on objection, [sic] to place of trial will be conducted in the same manner as in civil actions.” 720 ILCS Ann. 5/1 — 6, Committee Comments — 1961 (Smith-Hurd 1992).\nIn section 114 — 1 of the Code of Criminal Procedure of 1963, the legislature later specified the practice to be followed in making objections to venue. The committee comments to that statute explain:\n\"Subsection (a)(7) provides for a motion to dismiss in cases of improper venue. Substantive provisions will be found in Ill. Crim. Code of 1961, section 1 — 6. It should be noted that objections to venue if not made prior to trial are considered waived under that section and under section 114 — 1(b) of this Code. The place of trial should be distinguished from the problem of state criminal jurisdiction and the problem of the jurisdiction of particular courts. The place of trial is fixed by the Ill. Const, of 1870, Art. II, § 9, as '... the county or district in which the offense is alleged to have been committed.’ ” 725 ILCS Ann. 5/114 — 1, Committee Comments — 1963 (Smith-Hurd 1992).\nAgain, as the comments state, current law draws a sharp distinction between venue and jurisdiction. Through the provisions found in section 114 — 1, the treatment of venue in criminal cases is now more closely aligned with venue practice in civil cases. (See 735 ILCS 5/2 — 104(b) (West 1992) (objections to improper venue in civil action waived if not raised in timely manner); Horn v. Rincker (1981), 84 Ill. 2d 139, 145-46.) The rule espoused by the majority, however, will simply permit defendants to continue to make the gamble condemned in the 1961 committee comments, unencumbered by the sensible rule of waiver formulated by the legislature a generation ago.\nProperly regarded, venue is a nonjurisdictional procedural right, a personal privilege that an accused may waive. (See Hagner v. United States (D.C. Cir. 1931), 54 F. 446, 449.) The legislature has provided the means of enforcing that right through the provisions of section 1 — 6 of the Criminal Code of 1961 and section 114 — 1 of the Code of Criminal Procedure of 1963, which together provide a mechanism for challenging venue in advance of trial. In declining to take a fresh look at an old rule, the majority perpetuates an obsolete practice and frustrates the legislature’s constitutionally sound intent to provide a pretrial determination of venue.\nJUSTICE McMORROW joins in this concurrence.",
                            "author": "JUSTICE MILLER,",
                            "type": "concurrence"
                        }
                    ],
                    "attorneys": [
                        "Roland Burris, Attorney General, of Springfield, and Jack O’Malley, State’s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, Susan Schierl and Linda J. Jakubs, Assistant State’s Attorneys, of counsel), for the People.",
                        "Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellee.",
                        "Roland Burris, Attorney General, of Springfield, and Jack O’Malley, State’s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, Susan Schierl and Linda J. Jakubs, Assistant State’s Attorneys, of counsel), for the People.",
                        "Michael J. Pelletier, Deputy Defender, and Anna Ahronheim, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee."
                    ],
                    "head_matter": "(Nos. 75111, 75654 cons.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DONALD ADAMS, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GLORIA VALDEZ, Appellee.\nOpinion filed August 4, 1994.\nRehearing denied October 3, 1994.\nRoland Burris, Attorney General, of Springfield, and Jack O’Malley, State’s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, Susan Schierl and Linda J. Jakubs, Assistant State’s Attorneys, of counsel), for the People.\nRita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellee.\nRoland Burris, Attorney General, of Springfield, and Jack O’Malley, State’s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, Susan Schierl and Linda J. Jakubs, Assistant State’s Attorneys, of counsel), for the People.\nMichael J. Pelletier, Deputy Defender, and Anna Ahronheim, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.\nMILLER, J., joined by McMORROW, J., concurring."
                }
            }
        },
        {
            "id": 801652,
            "url": "https://api.case.law/v1/cases/801652/",
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                            "text": "Donald L. Corbin, Justice.\nAppellant, Walter Anthony Webb, appeals the judgment of the Greene County Circuit Court finding him guilty of two counts of capital murder for the murders of Aurora Carney and James Graves on October 8, 1994. Appellant was tried by a jury and sentenced to life imprisonment without parole on both counts. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises three arguments for reversal: (1) That there was insufficient evidence of premeditation and deliberation to convict him of capital murder in both deaths; (2) that the trial court erred in allowing the State to present hearsay evidence of a statement made by Appellant to a clinic nurse; (3) and that the trial court erred in refusing to grant a mistrial when a law enforcement officer testified about what Appellant had told him concerning Carney’s participation in witchcraft and voodoo. We do not reach the merits of Appellant’s first point due to a procedural bar, and we find no merit to the remaining arguments and affirm the trial court’s judgment.\nI. Facts\nThe evidence presented at trial revealed the following facts. On Sunday morning, October 9, 1994, Ginger Sain went to her father’s apartment in Rector, Arkansas, to check on his welfare. When she arrived at the apartment, she unexpectedly discovered her father, James Graves, lying on his back on the floor with blood coming out of his nostrils and an unknown woman, later identified as Aurora Carney, sitting slumped over in a chair. Mrs. Sain contacted her husband and then contacted the paramedics and the police. The paramedics confirmed that Graves and Carney were dead. The state medical examiner later determined that Carney died as a result of a single gunshot wound to the left side of her head and that Graves died as a result of two gunshot wounds to the head, one on either side.\nThe same day the bodies were discovered, Investigator Steve Huddleston, of the Arkansas State Police, conducted an interview with Appellant. At trial, Huddleston testified that when he informed Appellant that Carney, who was Appellant’s fiancee, was dead, Appellant seemed to be in shock. Huddleston stated that Appellant’s response was, “In a car accident?” Upon being informed by Huddleston that Carney had been murdered, Appellant began supplying the officer with the names of several men who might commit such a crime, one of whom had allegedly been blackmailing Carney. Appellant told the officer that he had not seen or heard from Carney since Thursday, October 6, 1994.\nInvestigator Huddleston interviewed Appellant again three days later on October 12, 1994. Appellant stated that he loved Carney and that they had planned to be married. Huddleston testified that those were the only complimentary things Appellant said about his future wife and that Appellant then proceeded to speak of Carney’s drunkenness and of fights and conflicts between the couple. Appellant informed the officer that Carney was a member of a necromanic society, which Appellant described as a “book of death society,” and that Carney was interested in witchcraft and voodoo. Appellant further stated that Carney actually had a voodoo doll constructed to represent her ex-husband and that she had buried the doll in her backyard as a ritualistic act of her desire to see her ex-husband dead. Again, as in the first interview, Appellant offered no information about the killings, although he later admitted to being present when the deaths occurred.\nAppellant left the state of Arkansas on October 13, 1994, the day after his second interview with the police. On October 21, 1994, and again on October 26, 1994, Appellant called his friend, Judy Quigley, and informed her that he had been at Graves’s apartment on the night of the murders and that Graves had shot Carney. Appellant told Quigley that he had struggled with Graves over the gun and killed Graves in self-defense, shooting him once in the stomach and once in the head.\nSusan Elliott, Appellant’s ex-wife, testified that she, too, had received telephone calls from Appellant during the time he had removed himself from the state, in which he informed her of his participation in the deaths of Graves and Carney. In describing the struggle that took place between himself and Graves, Appellant told Elliott that after he wrestled the gun away from Graves, “I did the fatal deed. I took the gun and I shot him in the head.”\nDr. Charles Sturner, Chief Medical Examiner at the Arkansas State Crime Laboratory, testified that the gunshot wound to the left side of Aurora Carney’s head was a contact or near-contact wound. Dr. Sturner further stated that the wound to Aurora Carney’s head was consistent with an “execution” wound because the wound was inside the left ear, which indicated that the gun would have had to have been held either against or extremely close to a vital organ, in this case the head and neck area. Dr. Sturner described a similar gunshot wound to the left side of James Graves’s head, as well as an additional gunshot wound on the right side of Graves’s head. Dr. Sturner stated that either shot in and of itself would have been fatal and that a second shot was not necessary to ensure the victim’s death. Regarding the gunshot wound to the left side of Graves’s head, Dr. Sturner stated that the gun would have actually been placed in close proximity to the head. As for the wound on the right side of Graves’s head, Dr. Sturner stated that the gun would have been a little farther away, approximately six inches or less from the head. Dr. Sturner stated further that it was possible that the superficial injuries to Graves’s hands could have resulted from his being shot and falling to the ground. Finally, contrary to Appellant’s version of the night’s events, Dr. Sturner stated unequivocally that there was no gunshot wound to Graves’s stomach.\nGary Lawrence, a criminalist with the trace evidence section of the Arkansas State Crime Laboratory, tested the gun that was used in the murders and conducted tests for the presence of gunshot residue on the hands of both victims. Lawrence stated that he found gunshot residue on the hands of James Graves. Lawrence stated that when gunshot residue is found on a person, it means that the person has either fired a gun, or has been in close proximity to the firing of a gun, or has been in a gunshot residue environment. Lawrence testified that he found that the residues from the test-firings of the murder weapon conducted at the crime lab were higher than the residues found on Graves’s hands. Lawrence stated that the test-firing was representative of someone who had fired the gun and that the residues on Graves’s hands were not consistent with that.\nAppellant took the stand in his own defense and testified that during the evening of Friday, October 7, 1994, he had made numerous attempts to contact Carney. He stated that when he left his bookstore in Blytheville, Arkansas, just after 12:00 a.m. on Saturday, October 8, 1994, he went to Carney’s home in Kennett, Missouri, to see if she had left him a message. Appellant stated that when he noticed her car was not in the driveway, he became curious as to Carney’s whereabouts, because she had told him on Friday that she was going to a Alcoholics Anonymous retreat and that she would be riding with another person. Appellant stated that he left Carney’s house and drove to Graves’s apartment in Rector because he thought Carney might be there. Appellant arrived sometime around 2:00 a.m., and, after having seen Carney’s car parked in the alleyway, he went to the door of the apartment and shook the door until Graves answered the door. Appellant stated that when he was let into the apartment, he took a set of keys belonging to Graves out of the door lock, because he did not want to get locked inside in the event there was trouble.\nAppellant testified that he did not bring a gun to the apartment but that it was Carney who initially secured the gun, which belonged to Graves, and pointed it at Appellant while threatening to shoot him. Appellant stated that he convinced Carney to give him the gun, which he set down on a nearby suitcase, and that she had decided to leave with him when Graves picked up the gun. Appellant stated that Graves began waving the gun around in the vicinity of Carney, and that the gun went off, shooting Carney in the head. Appellant stated that he then began to struggle with Graves over the gun, and that ultimately, he had shot Graves once in the stomach and once in the head in self-defense.\nAppellant stated that when he realized Carney and Graves were both dead, he left the apartment. He stated further that when he got into his van, he realized he had left the gun in the apartment and he went back in and got the gun. Appellant stated that he later drove to Burdette, Arkansas, and threw the gun off a bridge into the water. Appellant stated that before he disposed of the gun, however, he emptied the shells and threw them in an area near the edge of the bridge. Appellant stated that he then drove to another bridge and disposed of Graves’s keys.\nOn cross-examination, Appellant stated that he was forty-one years old at the time, stood over six feet tall, weighed over 240 pounds, and was nearly a black belt in judo. Appellant stated further that Graves was sixty-four years old, stood five feet ten inches tall, and weighed a litde over 150 pounds. Appellant admitted that he did nothing to help either victim after they had been shot and that he later lied to the police. He admitted further that, although he was in shock, he had the forethought to go back and retrieve the gun from the apartment and dispose of it along with Graves’s keys. Appellant admitted that the day after his second interview with the police, he left the state and did not return for almost three months. Appellant admitted that after he fired the shot that he said entered the stomach area of Graves’s body, Graves’s hands went down to the ground and he was no longer struggling with Appellant for the gun. Lastly, Appellant admitted that it was after Graves had stopped struggling that he shot Graves in the head.\nII. Evidence of Premeditation and Deliberation\nAppellant argues on appeal that there was insufficient evidence presented at trial to sustain a finding that Appellant acted with premeditation and deliberation in the deaths of Aurora Carney and James Graves. The State contends that we should affirm this point on the ground that Appellant’s motion for directed verdict was not sufficiently specific in violation of A.R.Cr.P. Rule 33.1 and this court’s recent case law. We agree with the State and thus we do not reach the merits because Appellant failed to preserve this argument in the trial court.\nAt the close of the State’s case, Appellant’s attorney made the following motion:\nYour Honor, the defendant Anthony Webb would move for a directed verdict of acquittal, stating that the State has not provided a prima facie case of capital murder against Anthony Webb and makes a motion that the Court enter a finding of a directed verdict of acquittal on the charges of capital murder both as to Aurora Carney and James Graves and further wants to reallege and readopt the arguments and the contention about the admissions as previously made.\nThe trial court denied the motion and Appellant then presented his defense, consisting of testimony from himself and two other witnesses. At the close of all the evidence, Appellant’s attorney stated:\nYour Honor, at this time the defense would renew its motion for a directed verdict of acquittal indicating that the State has not provided prima facie evidence of the defendant’s guilt of capital murder of either Aurora Carney or James Graves.\nAgain, the trial court denied the motion.\nArkansas Rule of Criminal Procedure 33.1 provides:\nWhen there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal of a previous motion for a directed verdict at the close of all of the evidence preserves the issue of insufficient evidence for appeal. [Emphasis added.]\nRecently, in Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996), this court had occasion to address this issue. Lovelady contended the evidence was not sufficient to sustain the conviction. At the end of the state’s case-in-chief, his attorney stated, “‘[T]he defense would move that the charges against the defendant be dismissed on the basis that the State has failed to meet its burden of proof.’” Id. at 197, 931 S.W.2d at 431. This court held:\nWe have made it clear that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). “The reason underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Id. at 109, 883 S.W.2d 831 at 832 (quoting Brown v. State, 316 Ark. 724, 726, 875 S.W.2d 828, 830 (1994)). Here, Lovelady did not specify the proof alleged to be insufficient; consequently, the issue was not preserved for appellate review.\nId. at 197-98, 931 S.W.2d at 431-32. Here, Appellant’s motion was nothing more than a general motion based on insufficient evidence and did nothing to inform the trial court of the allegedly missing proof.\nIn Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), relied upon by the court in Lovelady, this court stated that “[w]e draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion.” Id. at 109, 883 S.W.2d at 832. Appellant argues that his directed-verdict motion was sufficient in this case because it was obvious to the trial court that he was challenging the State’s evidence of premeditation and deliberation on both counts. Evidence of Appellant’s state of mind is but one element of the offense of capital murder; causation of the death of another person must also be proved. How then, in this particular instance, was it obvious to the trial court that Appellant was only attacking the alleged deficient proof of premeditation and deliberation when Appellant had additionally maintained that he had not even caused the death of Aurora Carney? Appellant’s directed-verdict motion was thus insufficient to properly apprise the trial court of the alleged missing proof.\nAppellant argues alternatively that this court is nonetheless compelled to address the merits of the point pursuant to Ark. Sup. Ct. Rule 4-3(h). That rule requires that, “[w]hen the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113(a)Ark. Code Ann § 16-91-113(a) (1987) provides that, “[t]he Supreme Court heed only review those matters briefed and argued by the appellant, except that, where either a sentence for life imprisonment or death has been imposed, the Supreme Court shall review all errors prejudicial to the rights of the appellant.”\nWhile it is true that Rule 4-3 (h) requires us to review the record for error in life and death cases, this review presupposes that an objection was made at trial. See Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). In Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996), the appellant had been convicted of capital murder and sentenced to life imprisonment without parole. This court nonetheless held:\nIt is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. Neither appellant’s original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court’s attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal.\nId. at 658-59, 916 S.W.2d at 738 (citations omitted). Thus, because Appellant failed to make a specific motion for directed verdict indicating the particular deficiencies in the State’s proof, it is as if he failed to object at all, and that failure below precludes our review of the sufficiency of the evidence on appeal. We thus affirm as to Appellant’s first point.\nIII. Appellant’s Spontaneous Admission\nFor his second point on appeal, Appellant argues that the trial court erred by allowing the State to introduce hearsay evidence of a spontaneous statement made by Appellant to a nurse who was drawing a sample of his blood. The conversation took place at the Piggott Clinic where Appellant had been taken by officers to have samples drawn pursuant to court order. During the suppression hearing below, the nurse, Donna Ray, stated that when she was drawing blood from Appellant’s arm, Appellant commented on how painless the procedure was and that he would like for her to be the one to give his lethal injection.\nDon Poole, one of the officers who had transported Appellant to the clinic, testified that he, too, was present when Appellant made the statement to the nurse, and that he remembered Appellant stating that if he got the lethal injection, would she (the nurse) be the one to administer it. Jerry Brogdon, the other officer who had accompanied Appellant to the clinic, testified that to the best of his recollection, Appellant stated, “I did not feel a thing when she stuck the needle in my arm. When it comes time to do the lethal injection, I want her to administer the needle.” Brogdon stated further that he recalled Appellant stating that, “It may come to that. It may not.”\nAppellant testified that the statement he made was one in jest, in an attempt to relieve the nurse’s apparent nervousness. Appellant recalled telling the nurse that the injection was absolutely painless and that a lethal injection would not be so bad if she was the one administering it. Appellant maintained that he made the statement as a joke and that he did not believe he was going to receive a lethal injection because he was innocent of the crimes. The trial court found the statement to be an admission under A.R.E. Rule 801(d)(2) and that it was up to the jury to decide whether the statement was made seriously, indicating some guilty knowledge of the homicides, or as a joke.\nAppellant asserts on appeal that the statement was hearsay and was not a proper admission as provided in Rule 801(d)(2) because he never manifested his belief in the truth of the statement. The State argues that the statement was relevant as evidence of Appellant’s consciousness of his guilt of the crimes and that the statement was an admission by a party opponent as provided in Rule 801(d)(2)(i). A trial court is accorded wide discretion in evidentiary ruhngs and will not be reversed on such ridings absent a manifest abuse of discretion. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id.; A.R.E. Rule 401. A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Misskelley, 323 Ark. 449, 915 S.W.2d 702; Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).\nRule 801(d)(2) provides in part that a statement is not hearsay if:\n[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. [Emphasis added.]\nAppellant’s reliance on subsection (ii) of that rule is misplaced because the statement at issue here was made by Appellant, and therefore subsection (i) clearly applies. There can be no doubt that the statement was offered by the prosecution against Appellant and that the statement was Appellant’s own words. Thus, there is no need to look beyond subsection (i) to determine whether Appellant manifested his belief in the truth of the statement, because it is evident that each subsection in Rule 801(d)(2), connected by the conjunction “or,” is an alternative way of demonstrating statements that are admissible as admissions by party opponents. See Woodward v. State, 16 Ark. App. 18, 696 S.W.2d 759 (1985). Furthermore, Appellant’s claim that the statement was inadmissible because he was joking when he said it goes not to the admissibility of the evidence, but only to its weight, which lies within the province of the jury. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). Because we conclude that the statement was not hearsay, as it was a statement made by Appellant, its admission at trial against Appellant was not erroneous.\nAppellant additionally argues that the statement should have been excluded on the grounds that it was unfairly prejudicial in violation of A.R.E. Rule 403. The State argues that the statement was relevant evidence of Appellant’s consciousness of his guilt in the homicides and that the probative value was not substantially outweighed by the danger of unfair prejudice. Appellant offers no authority in support of his argument, and thus, we will not address it. This court has repeatedly held that where an appellant has cited no authority for his argument, we will not consider the merits of it. See, e.g., Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773, cert. denied, 116 S. Ct. 168 (1995).\nLasdy, Appellant argues that the admission of the statement violated his Fifth Amendment privilege against self-incrimination, because it compelled him to take the stand in his own defense in order to explain the statement. Again, Appellant provides no authority for this argument and, likewise, we will not address it. We note, however, that Appellant did file a notice of defense prior to trial stating that he would rely upon a defense of self-defense in the death of James Graves, which would virtually necessitate Appellant’s testifying in his own behalf.\nIV. Mistrial\nLastly, Appellant argues that the trial court erred in refusing to grant a mistrial when Investigator Huddleston testified that Appellant had informed him that Aurora Carney was involved in witchcraft or voodoo. Appellant asserts that the trial court entered an order in limine which prohibited any witness from testifying concerning the occult, witchcraft, or related subjects, and that the State violated that order by eliciting the testimony concerning Carney’s involvement in witchcraft and voodoo. The State argued below that it was not offering the testimony to show that Carney was in fact involved in such activity, but rather to demonstrate the way in which Appellant was defaming the victim, the woman he was supposed to have loved enough to marry, only days after she had been murdered. The State further argued that the testimony that was elicited from Investigator Huddleston was outside the scope of the order because it was a statement made by Appellant himself. The trial court stated that it had recalled meeting with the attorneys on the previous day and discussing the substance of Appellant’s motion in limine in regard to Appellant’s statements to the police. The trial court ruled that the testimony would be allowed as a statement by a party opponent to show how Appellant was vilifying the woman he loved shortly after her murder.\nWe have often held that a mistrial is a drastic remedy which should be resorted to only when there has been error so prejudicial that justice cannot be served by continuing the trial. See, e.g., Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). A trial judge’s denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). Appellant offers no authority in support of his contention that a mistrial was warranted, nor has he demonstrated any reason why the admission of such testimony was prejudicial to him. This court will not reverse in the absence of prejudice. Misskelley, 323 Ark. 449, 915 S.W.2d 702. Furthermore, the record is devoid of any request by Appellant for any other remedy, such as an admonition to the jury. For these reasons, we cannot conclude that the trial court abused its discretion in allowing such testimony. In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.",
                            "author": "Donald L. Corbin, Justice.",
                            "type": "majority"
                        }
                    ],
                    "attorneys": [
                        "McDaniel & Wells, P.A., by: Phillip Wells, for appellant.",
                        "Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee."
                    ],
                    "head_matter": "Supreme Court of Arkansas\nCR 96-220\n938 S.W.2d 806\nWalter Anthony WEBB v. STATE of Arkansas\nOpinion delivered January 21, 1997\nMcDaniel & Wells, P.A., by: Phillip Wells, for appellant.\nWinston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee."
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            "id": 929940,
            "url": "https://api.case.law/v1/cases/929940/",
            "name": "Buchanan v. Pierie, Appellant",
            "name_abbreviation": "Buchanan v. Pierie",
            "decision_date": "1903-02-23",
            "docket_number": "Appeal, No. 168",
            "first_page": "123",
            "last_page": "131",
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                    "cite": "205 Pa. 123"
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            "name": "In the Matter of Mariana Simon, Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. MARIANA SIMON, Appellant",
            "name_abbreviation": "State v. Simon",
            "decision_date": "2002-03-20",
            "docket_number": "0009-70124; A111912",
            "first_page": "255",
            "last_page": "264",
            "citations": [
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                    "cite": "180 Or. App. 255"
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                    "cite": "42 P.3d 374"
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                "full_name": "Oregon Reports, Court of Appeals"
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                "id": 8811,
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            "name": "Scharay-Drenaena BURNETT, Petitioner-Appellant, v. Nola BLACKBURN, Warden, Wyoming Department of Corrections Women’s Center; Patrick Crank, Wyoming Attorney General, State of Wyoming, Respondents-Appellees",
            "name_abbreviation": "Burnett v. Blackburn",
            "decision_date": "2005-11-29",
            "docket_number": "No. 05-8037",
            "first_page": "662",
            "last_page": "666",
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                    "cite": "160 F. App'x 662"
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                "id": 8771,
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            "name": "FIRST UNITED CHURCH, INC. et al. v. UDOFIA et al.",
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            "decision_date": "1996-12-05",
            "docket_number": "A96A1299",
            "first_page": "849",
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            "name": "Ziehm, by etc., v. Vale",
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            "decision_date": "1918-06-21",
            "docket_number": "No. 15789",
            "first_page": "306",
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            "url": "https://api.case.law/v1/cases/960873/",
            "name": "The State of Ohio v. Nieto",
            "name_abbreviation": "State v. Nieto",
            "decision_date": "1920-12-06",
            "docket_number": "No. 16624",
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            "name": "The Local Telephone Co. v. The Cranberry Mutual Telephone Co.",
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            "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PATRICK PAGE, Appellant",
            "name_abbreviation": "People v. Page",
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                        "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PATRICK PAGE, Appellant."
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                        {
                            "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nDefendant, Patrick Page, was charged in the circuit court of Cook County with two separate murders and various other offenses. Defendant was first tried for the May 1987 murder of John Goodman. The jury found defendant guilty of murder, armed robbery, and home invasion. The jury then found that defendant was eligible for the death penalty (seeIll. Rev. Stat. 1985, ch. 38, pars. 9 — 1(b)(3), (b)(6)), and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court therefore sentenced defendant to death for the murder conviction. The trial court imposed concurrent 60-year terms of imprisonment for defendant’s remaining convictions. On direct appeal, this court affirmed defendant’s convictions and sentences. People v. Page, 155 Ill. 2d 232 (1993) (Goodman case).\nDefendant was next tried for the fall 1985 murder of Charles Howell. The jury found defendant guilty of murder and armed robbery. The jury also found that defendant was eligible for the death penalty (see Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(b)(3), (b)(6)), and that there were no mitigating factors sufficient to preclude a death sentence. The trial court sentenced defendant to death for the murder conviction and to an extended 60-year term of imprisonment for the armed robbery conviction. This court affirmed defendant’s convictions and sentences on direct appeal. People v. Page, 156 Ill. 2d 258 (1993) (Howell case).\nDefendant filed a pro se post-conviction petition in the Goodman case. Appointed counsel filed a post-conviction petition in the Howell case. Appointed counsel later filed a supplemental post-conviction petition that consolidated the issues in both cases. The State filed a motion to dismiss the post-conviction petition in each case. Appointed counsel subsequently filed a consolidated amended post-conviction petition that superseded all prior post-conviction petitions but refers to exhibits attached to those earlier petitions. The State filed a motion to dismiss the consolidated amended post-conviction petition (post-conviction petition). After hearing arguments on the State’s motion, the trial court dismissed defendant’s post-conviction petition without an evidentiaryhearing.\nDefendant now appeals from the dismissal of his post-conviction petition. For the reasons set forth below, we affirm the trial court’s dismissal of defendant’s post-conviction petition.\nBACKGROUND\nThe facts relating to defendant’s trials are set forth in this court’s opinions on direct appeal. Because an understanding of some of the trial evidence is necessary to evaluate defendant’s arguments in this post-conviction proceeding, we present a summary of that evidence.\nDefendant has been convicted of three murders, the Goodman and Howell murders at issue in this case, as well as the murder of Dale Andrew Devine. On May 16, 1987, defendant was arrested by the Olympia Fields police department as part of the investigation into Goodman’s murder. Over the next several days, defendant gave law enforcement authorities several statements admitting his involvement in the three murders. On two occasions during that time, defendant led Olympia Fields police officers on an unsuccessful search of the area in Wisconsin where defendant claimed that he buried Goodman’s body.\nOn May 19, 1987, defendant gave a court-reported statement in which he confessed to the three murders. Defendant revealed that, during the fall of 1985, defendant, Kenneth Cheney, and Gerald Feinberg murdered Devine. Devine and Cheney became involved in a drug deal in which Devine apparently “ripped off’ Cheney. Devine was residing with defendant at this time. Defendant contacted Feinberg and told him that Devine was at his house. Feinberg came to defendant’s house, and defendant and Feinberg tied up Devine with an extension cord. Defendant then called Cheney and told him that Devine was at his house. Cheney came over and, using a hypodermic needle, injected Devine with barbiturates. Defendant took approximately $100 from Devine’s pocket and gave it to Cheney.\nDefendant, Feinberg, and Cheney then transported Devine to a wooded area near Wilmington, Illinois. Cheney asked Devine how he wanted to die, either by being stabbed with a knife or by being injected with a hypodermic needle. Devine indicated that he preferred the injection. Cheney attempted to inject an air bubble into Devine’s bloodstream. When this did not kill Devine, Cheney slit Devine’s throat with the knife. Cheney then directed defendant and Feinberg to stab Devine, which they did. After the murder, defendant, Cheney, and Feinberg drove to Cheney’s home, where they drank alcohol and smoked marijuana. Two days later, defendant and Cheney returned to the murder scene, and Cheney poured gasoline on Devine’s body and set it on fire. Defendant was convicted in the circuit court of Will County of the murder of Devine, and was sentenced to a 60-year term of imprisonment. The appellate court affirmed defendant’s murder conviction and sentence. People v. Page, 196 Ill. App. 3d 285 (1990) (Devine case).\nDefendant also confessed to the fall 1985 murder of Charles Howell. Defendant stated that he and Feinberg killed Howell because Howell had been a roommate of Devine, and Devine’s disappearance would make Howell suspicious. Defendant and Feinberg decided to murder Howell and bury him in a forest preserve in Park Forest, Illinois. Defendant and Feinberg planned the murder in advance by drawing a map of the area where they would bury Howell, taking shovels from defendant’s home and from the home of a neighbor, going to the planned burial site in advance to dig a hole, and luring Howell to the site under the pretense of having a party and engaging in a drug transaction there. Defendant stabbed Howell, and Feinberg hit him in the head with a large stick. Defendant and Feinberg laid Howell in the hole that they had dug, covered him with dirt and branches, and started a fire over the grave with lighter fluid. Feinberg, who had taken Howell’s car keys from the pocket of Howell’s jeans prior to burying him, gave the keys to defendant as they were leaving the forest preserve. Defendant stated that he wanted the keys because Howell’s car was parked in front of defendant’s house. After the murder, defendant and Feinberg went to defendant’s house, smoked marijuana, and drove around in Howell’s car. A few days later, defendant sold Howell’s car to a junkyard.\nDefendant’s statement also included a confession to the murder of John Goodman. Defendant stated that, on May 6, 1987, he and Feinberg made plans to rob and kill Goodman. Defendant originated the plan because he had a grudge against Goodman. On Thursday, May 7, 1987, defendant and Feinberg visited Goodman’s home in Olympia Fields. When Goodman was in another room, defendant displayed a knife to Feinberg. Defendant then approached Goodman and asked Goodman about some photographs that Goodman had taken of defendant. When Goodman began to laugh, defendant stabbed him in the chest four times. Defendant said that Goodman had not touched him prior to that.\nDefendant and Feinberg then put Goodman’s body in the bathtub while they wiped the house clean of their fingerprints. They stole credit cards and cash from Goodman’s wallet. They wrapped Goodman’s body in a sheet and a rug and placed the body in the trunk of Goodman’s car. Defendant and Feinberg obtained a shovel and a can of gasoline and left in Goodman’s car. After stopping at a tavern in southeastern Wisconsin to eat and play pool, they drove to a rural area in Wisconsin, dug a hole, and buried Goodman’s body. They then burned the sheet and rug over the grave.\nDefendant further stated that, on May 9, 1987, he and a friend transported some electronic equipment from Goodman’s house to defendant’s father’s house. Defendant described his and his friends’ use of Goodman’s credit cards during the weekend following the murder. Defendant and Feinberg abandoned Goodman’s car at a commuter station the following Tuesday or Wednesday.\nAs discussed, defendant was convicted of all three murders and received the death penalty for the murders of Goodman and Howell. This appeal follows the dismissal of defendant’s post-conviction petition without an evidentiary hearing in the Goodman and Howell cases. For the reasons set forth below, we hold that the trial court properly dismissed defendant’s post-conviction petition without an evidentiary hearing. We therefore affirm the judgment of the trial court.\nANALYSIS\nThe Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 1998)) provides a remedy to criminal defendants who claim that substantial violations of their federal or state constitutional rights occurred in their trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). A post-conviction action, however, is a collateral proceeding, not an appeal from the underlying judgment. Towns, 182 Ill. 2d at 502. The purpose of the post-conviction proceeding is to allow inquiry into constitutional issues involved in the conviction and sentence that have not been, and could not have been, adjudicated previously on direct appeal. Towns, 182 Ill. 2d at 502. The doctrine of res judicata bars consideration of issues that were raised and decided on direct appeal. Towns, 182 Ill. 2d at 502; People v. Griffin, 178 Ill. 2d 65, 73 (1997). Issues that could have been presented on direct appeal, but were not, are waived. Towns, 182 Ill. 2d at 503; Griffin, 178 Ill. 2d at 73.\nA defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Rather, an evidentiary hearing is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant’s constitutional rights have been violated. Hobley, 182 Ill. 2d at 428; Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503. Assertions that are nonfactual and nonspecific and that merely amount to conclusions are not sufficient to require an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). A trial court’s determination regarding the sufficiency of the allegations contained in a post-conviction petition is reviewed de novo. Coleman, 183 Ill. 2d at 388-89. With these principles in mind, we review de novo the trial court’s dismissal of defendant’s post-conviction petition without an evidentiary hearing.\nI. Ineffective Assistance of Counsel\nDefendant first raises a series of challenges to the effectiveness of his counsel during trial, sentencing, and on direct appeal.\nTo establish a claim of ineffective assistance of counsel, a defendant must first show that counsel’s performance was deficient in that it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). In satisfying this prong, a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.\nA defendant must also establish prejudice by proving that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome; namely, that counsel’s deficient performance either rendered the result of the trial unreliable or rendered the proceeding fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. When challenging a death sentence, a defendant must prove that there is a reasonable probability that, absent counsel’s deficient performance, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.\nA defendant must establish both prongs of the Strickland test to prevail on a claim of ineffective assistance of counsel. A court, however, may resolve an ineffectiveness claim by reaching only the prejudice prong, as lack of prejudice renders irrelevant the issue of counsel’s alleged deficient performance. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.\nA. Failure to Present Sufficient Evidence of a Voluntary Manslaughter Defense\nDefendant argues that trial counsel was ineffective during the Goodman trial for failing to present sufficient evidence to support defendant’s voluntary manslaughter theory of defense. At the time of the offense, the homicide statute provided that a person commits voluntary manslaughter if at the time of the killing he either had an actual but unreasonable belief regarding the need for self-defense, or was acting under a sudden and intense passion resulting from serious provocation. Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.\n1\nSerious provocation is conduct sufficient to excite an intense passion in a reasonable person. 111. Rev. Stat. 1985, ch. 38, par. 9 — 2. This court has recognized the following categories of provocation: substantial physical injury or substantial physical assault; mutual quarrel or combat; illegal arrest; and adultery with the offender’s spouse. People v. Garcia, 165 Ill. 2d 409, 429 (1995); People v. Chevalier, 131 Ill. 2d 66, 71 (1989).\nDuring the opening argument in the Goodman trial, defense counsel told the jury that defendant had committed the homicide charged, but maintained that defendant was guilty of voluntary manslaughter rather than murder. Later, however, the trial court denied defendant’s request that the jury be instructed on voluntary manslaughter, finding that the evidence was not sufficient to support the instruction. The trial court also directed defense counsel not to argue the theory of voluntary manslaughter in summation.\nOn direct appeal in the Goodman case, defendant argued that his trial counsel was ineffective for presenting the voluntary manslaughter theory of defense. Defendant argued that this theory was not supported by either the law or the facts of the case. This court noted that trial counsel sought to demonstrate that defendant killed Goodman while defendant was acting under a sudden and intense passion resulting from serious provocation. Page, 155 Ill. 2d at 261. Trial counsel sought to establish the provocation form of the offense by showing evidence of mutual combat between defendant and Goodman. Page, 155 Ill. 2d at 261. Although defendant did not testify, trial counsel was able to elicit evidence, during cross-examination of one of the prosecution witnesses, about an altercation between defendant and Goodman. Trial counsel asked the witness about an inculpatory statement made by defendant prior to his formal confession. In that statement, defendant said that he and Goodman argued for 10 to 15 minutes over some photographs that Goodman refused to surrender. According to defendant, Goodman had taken photographs of defendant and Goodman having a homosexual relationship. Defendant said that he punched and stabbed Goodman when Goodman refused to move from the bathroom doorway, where the two were standing. In addition to this evidence, defendant, in his formal statement, said that he stabbed Goodman after Goodman began laughing at his request for the photographs. See Page, 155 Ill. 2d at 261.\nThis court rejected defendant’s argument that trial counsel was ineffective for arguing voluntary manslaughter. We held that trial counsel’s decision to present the voluntary manslaughter defense was a matter of trial strategy, and that the record showed that defendant expressly consented to this strategy. Page, 155 Ill. 2d at 262-63. We found that, in light of the overwhelming evidence of defendant’s involvement in Goodman’s murder, defense counsel might reasonably have considered a voluntary manslaughter theory to be the only reasonable course of defense. Page, 155 Ill. 2d at 262. We then recounted the overwhelming evidence of defendant’s guilt. Defendant confessed in detail to the crimes. An eyewitness saw defendant at Goodman’s house shortly before Goodman disappeared. Other witnesses established that defendant was in possession of property belonging to Goodman, including his car and credit cards. Another witness testified that defendant had access to Goodman’s house shortly after he disappeared. See Page, 155 Ill. 2d at 266.\nIn these post-conviction proceedings, defendant now argues that his trial counsel was ineffective for failing to present sufficient evidence to support the voluntary manslaughter defense. Defendant has waived review of this argument by failing to raise it on direct appeal. See People v. Towns, 182 Ill. 2d 491, 503 (1998). Indeed, this argument is directly contrary to the argument defendant did raise on direct appeal, i.e., that trial counsel was ineffective for presenting the voluntary manslaughter defense.\nDefendant, however, appears to argue that his claim is not waived because it is based on evidence outside the original trial record. This exception to the waiver rule in post-conviction appeals refers to those claims that the reviewing court on direct appeal could not have considered because the claim’s evidentiary basis was de hors the record. See People v. Whitehead, 169 Ill. 2d 355, 372 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998). Defendant argues that there was evidence available to trial counsel to substantiate defendant’s voluntary manslaughter defense. Defendant claims that he has now “submitted police reports and evidence of other statements, from numerous individuals, substantiating and establishing the manslaughter defense, including: evidence that the pictures being argued over were evidence of a homosexual attack perpetrated by the victim and his friends; evidence that such tendencies and similar photographs were discovered concerning the victim (as well as additional material involving the defendants); and evidence that in addition to an altercation over the pictures, the victim attempted homosexual contact with the defendant.”\nThe evidence that defendant cites in support of his argument is as follows. Defendant provides his own affidavit which states that “John Goodman had pictures of Gerald Feinberg. Cheyney [sic] told Gerald that if he helped Cheyney get Andy and Chuck, Cheyney would help Gerald get Goodman for what he had done to him. John Goodman and his friend had drugged Feinberg and performed unnatural sex acts on him. Feinberg was very upset about this, and wanted to get them back.”\nDefendant attaches the affidavit of Edward Torres, an investigator from the Capital Litigation Division. Torres interviewed Kenneth Berksen, who was once Gerald Feinberg’s cellmate at the Cook County jail. According to Torres’ affidavit, Berksen stated that Feinberg told him that, on the night of Goodman’s murder, Goodman made a sexual advance toward defendant, which enraged defendant and caused defendant to stab Goodman. In this regard, defendant also provides a report from the Olympia Fields police department which relates that Greg Wilson, a friend of Goodman, spoke to a man named John Dixon, who spoke to Feinberg, who said that “Goodman tried to make out with Pat Page, and then they stabbed him.”\nDefendant also cites numerous other reports from the Olympia Fields police department which discuss relations among defendant, Goodman, and Feinberg. One report recounts that a certain newspaper reporter gave the Olympia Fields police department a photograph of Goodman and defendant. The reporter received the photograph from a third party who had received it from the photographer. The reporter advised police that the source had stated that the photograph was taken one week before Goodman’s murder while on a weekend fishing trip in Illinois. Another report discusses information received from Greg Wilson. According to Wilson, defendant had been to Goodman’s home and had been videotaped in one of Goodman’s “home movies.”\nAn additional report from the Olympia Fields police department describes an interview with Glen Rogers, a friend of Goodman. Rogers stated that he led a homosexual lifestyle which included a relationship with Feinberg, and that approximately one month prior to the interview, Goodman told Rogers that Goodman and Feinberg had a sexual encounter the previous weekend. One report discusses Goodman’s homosexual lifestyle and the police department’s possession of photographs of Goodman with Glen Rogers and an unidentified nude male. Another report describes a telephone call that the police department received from an individual named Bill Davis. Davis “wanted to know why the S&M angle of this homicide has not been followed up on in the news media.” According to Davis, Goodman “used to hang out” at a Chicago bar “frequented by ‘male hustlers’ with homosexual and S&M tendencies.” Davis recognized defendant and Feinberg as being patrons of this bar.\nThe other evidence that defendant cites in support of his current argument references personal details of Goodman’s lifestyle. Defendant has attached an affidavit from Appolon Beaudouin, Jr., an investigator for the Capital Litigation Division. This affidavit references Beaudouin’s interview with Michelle Kury, defendant’s former girlfriend. According to Beaudouin, Kury stated that “Patrick told her that Goodman was into sex videos.” Defendant further cites a report from the Olympia Fields police department that lists property recovered from Goodman’s home. The list of property references “pornographic homosexual assorted photos” and a “copy of Gay Chicago Magazine for January, 87.”\nDefendant argues that, had trial counsel presented this evidence, he would have been entitled to a jury instruction on voluntary manslaughter. We hold that defendant has failed to make a substantial showing that he was prejudiced by trial counsel’s failure to present this evidence.\nDefendant’s argument is that this evidence would have supported a defense that he killed Goodman while acting under a sudden and intense passion resulting from serious provocation. Defendant’s theory of provocation appears to be that Goodman made unwanted sexual advances toward him on the night of the murder. The only evidence that could have supported this theory is (1) the affidavit from the Capital Litigation Division investigator which recounts that a former cellmate of Feinberg stated that Feinberg told him that, on the night of Goodman’s murder, Goodman made a sexual advance toward defendant which enraged defendant and caused defendant to stab Goodman; and (2) the police report which relates that Greg Wilson spoke to a man named John Dixon, who spoke to Feinberg, who said that “Goodman tried to make out with Pat Page, and then they stabbed him.” The remaining evidence is simply not evidence that Goodman made an unwanted sexual advance toward defendant on the night of the murder. Indeed, defendant’s own affidavit states that Goodman performed unwanted sexual acts on Feinberg, not on defendant.\nEven focusing on the evidence that could have supported defendant’s theory of provocation, and accepting all of this evidence as true, we hold that defendant has failed to make a substantial showing that trial counsel was ineffective for failing to present this alleged evidence of voluntary manslaughter. Initially, we note that this evidence is hearsay and would likely not have been admissible at defendant’s trial. Defendant has failed to provide an affidavit from Feinberg attesting to the information which has been attributed to him, and stating that he would have been willing to testify to this information at defendant’s trial. In any event, defendant’s theory is that he killed Goodman while he was acting under a sudden and intense passion resulting from serious provocation. Defendant argues that the provocation here is that Goodman made sexual advances toward him. This is not one of the categories of provocation that this court has recognized. See Garcia, 165 Ill. 2d at 429; Chevalier, 131 Ill. 2d at 71. Thus, even if evidence that Goodman made a sexual advance toward defendant on the night of the murder had been admitted at trial, this evidence would not have entitled defendant to a voluntary manslaughter instruction.\nDefendant, however, argues that, in People v. Saldivar, 113 Ill. 2d 256 (1986), and in People v. Lenser, 102 Ill. App. 3d 214 (1981), the defendants received jury instructions for voluntary manslaughter in cases similar to defendant’s case. Although Saldivar and Lenser involved fact scenarios where the victim made a homosexual advance toward the defendants, the question of whether the evidence was sufficient to entitle the defendants to a voluntary manslaughter instruction was not at issue. Also, in Saldivar, the stipulated evidence revealed that the defendant stated that, after the victim made the sexual advance, “a struggle ensued,” and the defendant stabbed the victim with a kitchen knife. Saldivar, 113 Ill. 2d at 260-61. Thus, it appears that the defendant received the voluntary manslaughter instruction on the basis of mutual combat, not the sexual advance.\nDefendant cites additional cases which he contends “discuss what could be termed the ‘homosexual panic’ defense and demonstrate the accepted use of this ‘defense’ to obtain a manslaughter instruction.” While these cases likewise involve fact scenarios where the victims made homosexual advánces toward the defendants, the defendants’ theories of voluntary manslaughter were based on the unreasonable belief in the need for self-defense, not on serious provocation, which is the theory advanced by defendant in this case. See, e.g., People v. Henne, 23 Ill. App. 3d 567 (1974); People v. Barnes, 23 Ill. App. 3d 390 (1974). These cases, therefore, are inapposite.\nFor the foregoing reasons, we hold that defendant has failed to make a substantial showing that trial counsel was ineffective for failing to present the alleged evidence of voluntary manslaughter.\nB. Failure to Adequately Present Defendant’s Motion to Suppress His Confession\nDefendant argues that trial counsel was ineffective in both the Goodman and Howell cases in presenting defendant’s motion to suppress his confession. We note that defendant was represented by the same two attorneys in both the Goodman and Howell cases. The facts relevant to this issue are outlined extensively in our opinions on direct appeal. See People v. Page, 156 Ill. 2d 258, 284-85 (1993) (Howell case); People v. Page, 155 Ill. 2d 232, 246-59 (1993) (Goodman case). We review those facts necessary to address defendant’s argument in this appeal.\nDefendant was arrested around 10 p.m. on Saturday, May 16, 1987, and remained in police custody, in Cook County, until May 20, when he was taken before a judge for a bond hearing. Defendant gave law enforcement officers numerous statements with respect to the Goodman murder on May 16, 17, 18, and 19. On May 19, defendant also gave authorities formal statements regarding the murder of Andrew Devine, committed in Will County, and the murder of Charles Howell, committed in Cook County.\nThe first case to go to trial was the Will County prosecution for Devine’s murder. In that proceeding, defendant moved to suppress his statements. Defendant’s motion did not specify which statements were being challenged. In his motion, defendant argued that the interrogating officers made unfulfilled promises of leniency; that defendant was led to believe that the only court proceedings in which his statements would be used would be those in which the promises of leniency would be enforced; that the officers did not honor his wishes to consult with an attorney; and that the officers threatened to charge defendant’s father with the offenses in the Goodman case.\nThe Will County trial court held a hearing at which the parties introduced testimony regarding the entire time period during which defendant was in custody. The State presented the testimony of three members of the Olympia Fields police department, the assistant State’s Attorney who had questioned defendant in all three cases, and the court reporter who had transcribed defendant’s formal statements to the Devine and Howell murders. These witnesses testified that defendant received Miranda warnings and waived these rights prior to each session of questioning, and that defendant was not mistreated while in custody. These witnesses further denied that any promises of leniency were made to defendant or that he or his family members were threatened in any way.\nDefendant testified at the suppression hearing. Defendant stated that, shortly after he was taken into custody, the police showed defendant a booking photograph of his father and told defendant that his father would be charged in the Goodman case if defendant did not confess. We note that defendant’s father had been arrested when police learned that property belonging to Goodman was in defendant’s father’s home. Defendant’s father was released soon after defendant’s arrest. At the suppression hearing, defendant also testified that the police refused defendant’s request to contact an attorney or a family member. Defendant further testified that, prior to making the statements regarding the Devine and Howell cases, the assistant State’s Attorney promised defendant that he would receive only a 20-year sentence for those offenses if he confessed to the crimes.\nDefendant’s mother and sister testified on behalf of defendant at the suppression hearing. They stated that during the weekend of defendant’s arrest, they repeatedly called the Olympia Fields police department, and their requests to speak with defendant were denied. The defense also presented the testimony of Leila Naszkiewicz, the mother of Michael Naszkiewicz, who had also been arrested in connection with the Goodman murder. Leila Naszkiewicz testified that she too encountered difficulty in attempting to contact her son while he was in police custody.\nFollowing the suppression hearing, the Will County trial court denied defendant’s motion to suppress his statements. The trial court held that defendant had given his statements voluntarily. The trial court did not distinguish among the different statements made by defendant.\nSubsequently, in both the Cook County Howell and Goodman cases, defendant moved to suppress his statements. The trial court in both cases granted the State’s motion to strike defendant’s motion to suppress. The trial court in both cases held that the Will County trial court had already resolved the admissibility of defendant’s statements, and that defendant was therefore collaterally estopped from challenging that determination.\nOn direct appeal in the Goodman case, this court extensively reviewed this issue and concluded that the Will County trial court, in rejecting defendant’s claims, “necessarily determined issues pertinent to all three sets of statements made by the defendant while in police custody.” Page, 155 Ill. 2d at 254. This court stated that “we have carefully examined the evidence and arguments presented at the Will County suppression hearing. Our analysis leads us to conclude that the Will County judge’s ruling on the admissibility of the Devine statements resolved as well factual issues pertinent to the Goodman and Howell statements.” Page, 155 Ill. 2d at 257. Likewise, on direct appeal in the Howell case, this court stated that “[w]e have carefully examined the record of the Will County proceedings and the record in the instant case and have found nothing to dissuade us from our earlier conclusion” in the Goodman case that defendant is collaterally estopped from challenging the admissibility of his statements. Page, 156 Ill. 2d at 285.\nDefendant argues in these post-conviction proceedings that trial counsel was ineffective in both the Goodman and Howell cases in presenting the motions to suppress defendant’s statements. Defendant contends that he has made a substantial showing that, had trial counsel presented certain other evidence, the trial court would not have held that defendant was collaterally estopped from challenging the admissibility of his statements. Defendant suggests that this new evidence includes “the extensive searches and cooperation with authorities in searching for the Goodman and Howell bodies; their promises relating to these searches; and the additional conversations on these outings.”\nWe review the evidence that defendant now cites in support of his argument that trial counsel was ineffective in presenting his motion to suppress his statements in Cook County. Defendant attaches his own affidavit in which he repeats allegations to which he testified at the suppression hearing. In this affidavit, defendant also states that he rehearsed his statements both before and after the court reporter arrived. Defendant states that, before the court reporter arrived, the assistant State’s Attorney reminded defendant that he would help defendant “get 20 [years] or less.” However, the assistant State’s Attorney told defendant that “since he could not promise me anything, [h]e would have to ask me if there was a promise, that I would have to say no.” Defendant further alleges that he “found that Michael Naszkiewicz and Michelle Kury repeatedly asked for attorneys and Michael’s mother tried to get an attorney, but the police would not let her.” Finally, defendant states that he “was told that my family and I would be killed if I did not take the rap.”\nDefendant also references an affidavit from the investigator for the Capital Litigation Division, who interviewed Michelle Kury on June 13, 1997. During this interview, Kury stated that she was in the Village of Matteson jail for four days and could not get an attorney or talk to her family for that period of time.\nDefendant further cites a report from the Olympia Fields police department which discusses a May 15, 1987, meeting between a police officer and Leila Naszkiewicz, whose son Michael was in custody at the time. Naszkiewicz apparently requested that she be notified when her son had a bond hearing, and requested information regarding representation for her son by the public defender’s office. Naszkiewicz was advised that her son was being held on burglary charges but that the charges could change as the investigation progressed.\nIn this regard, defendant attaches an affidavit from his brother. His brother states that when defendant “was in the Richton Park jail, my mother and I tried to see him and the police almost arrested me for sitting in the parking lot. They held Pat [defendant] for at least 72 hours, and told me that he had not been charged, he did not need a lawyer and did not need to see anyone.”\nDefendant also attaches an affidavit from his father. His father relates that defendant told him that he confessed to the crimes because the police showed him a picture of his father in a jail cell. Finally, defendant cites two Olympia Fields police department reports which recount that defendant was transported to Wisconsin to search for Goodman’s body. These reports also state that defendant voluntarily gave statements after being advised of his Miranda rights.\nDefendant fails to explain how any of this evidence would have resulted in a holding by the trial court that defendant was not collaterally estopped from challenging the admissibility of his statements. Most of this evidence is cumulative of the evidence that the trial court considered, and which this court reviewed, in determining that defendant was collaterally estopped from relitigating his motion to suppress his statements. The other evidence, namely, the circumstances surrounding the arrests of Michelle Kury and Michael Naszkiewicz, is simply not relevant to a determination of the voluntariness of defendant’s statements.\nWe therefore hold that defendant has failed to make a substantial showing that, had trial counsel presented this evidence, there is a reasonable probability that the trial court would not have held that defendant was collaterally estopped from challenging the admissibility of his statements.\nWe note that defendant also suggests in this regard that trial counsel in the Howell and Goodman cases were ineffective for failing to ensure that appellate counsel in the Devine case challenged the admissibility of defendant’s statements. In the Devine case, defendant did not receive the death penalty. Thus, defendant’s appeal in that case was heard by the appellate court. See People v. Page, 196 Ill. App. 3d 285 (1990). Appellate counsel in the Devine case did not challenge the admissibility of defendant’s statements. Defendant now argues that trial counsel in the Goodman and Howell cases “failed to insure that some level of appellate review was had of these statements,” and that as a result of this “failure,” the issue of the admissibility of defendant’s statements was never reviewed. This, of course, is an improper argument, as we are not reviewing the Devine case. Furthermore, defendant fails to offer any argument to support the notion that a challenge to the admissibility of his statements would have been successful.\nAs a final matter, defendant suggests that trial counsel were ineffective for failing to adequately present defendant’s motion to quash his arrest and suppress evidence. Defendant attaches police reports regarding the taking of defendant into custody, and the obtainment of permission from defendant’s mother to search her house.\nThe Will County trial court denied defendant’s motion to quash his arrest and suppress evidence. On direct appeal in the Goodman case, we noted that the trial court in the Goodman case granted the State’s motion to strike defendant’s motion to quash his arrest and suppress evidence on the basis that defendant was collaterally estopped from challenging the Will County trial court’s prior determination. See People v. Page, 155 Ill. 2d 232, 248 (1993) (Goodman case). We further noted that the Cook County trial court’s disposition of defendant’s motion to quash his arrest and suppress evidence was not at issue in the appeal. Page, 155 Ill. 2d at 248.\nDefendant offers no argument to support his suggestion that trial counsel were ineffective for failing to adequately present defendant’s motion to quash his arrest and suppress evidence. We therefore hold that defendant has waived any argument in this regard. See 177 Ill. 2d R. 341(e)(7) (stating that an appellant’s brief must include an argument, “which shall contain the contentions of the appellant and the reasons therefor”).\nC. Failure to Present Mitigating Evidence\nDefendant argues that he has made a substantial showing that trial counsel was ineffective at sentencing in both the Goodman and Howell cases for failing to present certain mitigating evidence. The alleged mitigating evidence to which defendant cites includes information regarding defendant’s involvement in a cult and the interplay of that cult involvement with defendant’s psychiatric history. Defendant contends that, had trial counsel presented this evidence at the sentencing hearings, there is a reasonable probability that the jurors would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.\nThe following is the evidence that was presented in mitigation at defendant’s sentencing hearings in the Goodman and Howell cases. In the Goodman case, Arlene Messner-Peters, a social worker, testified regarding a mitigation report that she prepared at the request of trial counsel. She interviewed defendant’s family members, reviewed material from the Department of Corrections, and reviewed defendant’s confessions. MessnerPeters testified that defendant’s childhood was unstable. Defendant’s parents were often involved in physical altercations with each other. Defendant’s father was an alcoholic and would become abusive toward his wife and children.\nMessner-Peters also testified regarding defendant’s difficulties in school, both academically and socially. Defendant suffered from a learning disability. Also, a congenital condition affecting defendant’s eye muscles had caused defendant’s eyes to drift apart and to cross. The children at school teased defendant because of this condition. Defendant also had a history of using marijuana and LSD.\nDr. Gerard Girdaukas, a licensed clinical psychologist, testified that he administered psychological tests to defendant and diagnosed him with a learning disability and with a “non-specific personality disorder.” Defendant exhibited symptoms of depression, paranoia, delusional thinking, and organic brain impairment. Dr. Girdaukas concluded that defendant was under the influence of extreme emotional disturbance at the time of the Goodman murder. Dr. Girdaukas recommended that defendant take antipsychotic medication and attend support groups, and he recommended further testing.\nDefendant’s parents, Paul and Patricia Page, and defendant’s sister, Grace Page, testified on defendant’s behalf. Their testimony reiterated the evidence regarding defendant’s academic and social problems. The testimony also revealed that defendant’s parents separated when defendant was eight years old. Defendant lived with each parent at various times in his childhood. The testimony further described defendant’s father’s alcoholism, abusive behavior, and infidelity.\nA neighbor also testified regarding her relationship with defendant’s family, and about defendant’s good nature. Further, a clergyman, who had visited defendant while he was an inmate at the Cook County jail, testified about defendant’s interest in religion and his desire to be baptized.\nAt the sentencing hearing in the Howell case, defendant presented almost all of the same mitigating evidence that was presented at the Goodman sentencing hearing. However, defendant’s mother, sister, and neighbor did not testify at this sentencing hearing.\nDefendant claims that trial counsel was ineffective for failing to investigate and present evidence regarding defendant’s involvement in a cult. According to defendant, this evidence showed that defendant’s involvement in a cult was “so extreme that it was labeled by numerous mental health professionals, years before the murders, as evidencing delusional thought processes and psychotic behavior.” Defendant argues that this evidence would have helped to explain to the jurors “how he was associated with these murders (and how others were more culpable) and how he came to be able to be involved in such acts.”\nDefendant attached to his post-conviction petition a 1981 psychiatric summary report from the Psychiatric Institute of Cook County regarding defendant’s fitness for trial of the pending burglary charge against him. The psychiatrist who examined defendant concluded that defendant was fit for trial, stating that defendant “does not display any psychotic behavior nor show any psychotic symptoms.” The psychiatrist reported that defendant “relates an interest in the occult [and] talks about getting together with other young men to have some sort of seances involving ‘black magic.’ ” Defendant insisted that “being sent to jail is not right and he needs to be in a hospital for his ‘problem.’ ” According to the psychiatrist, defendant appeared “quite manipulative.”\nDefendant also attached a 1981 psychological examination from the Psychiatric Institute which recounts defendant’s statements that he has “gone pretty far into the occult” and that he saw devils in inkblots. Defendant next referenced a psychological summary that was conducted by a psychologist who concluded that defendant was not fit for trial on his pending burglary case. Defendant reported to the psychologist that he was experiencing hallucinations and paranoid delusions, and expressed concern about his involvement in witchcraft. Specifically, defendant stated that he was engrossed in the study of black magic, and that he and several friends, led by a 24-year-old warlock, held services, conjured demons, and cast spells. The psychologist concluded that, although defendant’s request for psychiatric treatment seemed genuine, defendant “is shrewd enough to seek treatment as a possible alternative to incarceration.”\nDefendant also provided a May 17, 1987, report from the Olympia Fields police department. The report states that Feinberg told police officers that “there are people who believe that Mr. Patrick Page is the anti-Christ, and that Page derived a power from the location where Chuck Howell’s body was buried.” The report further recounts that Feinberg “indicated that Patrick Page was the leader of a Satanic cult.” Another report from the Olympia Fields police department describes a call that the reporting officer received from Marty Carson, who identified himself as a friend of defendant. Carson stated that he had accompanied defendant to a campfire site where defendant would “party,” and from where defendant stated he derived a “special power.” Defendant further provided some unattributed notes regarding defendant’s involvement in black magic, rituals, and sacrifices.\nDefendant attached his own affidavit, which states that “I was involved in certain practices from a young age, and am still in fear of individuals who were involved and may still be involved in these practices.” Defendant likewise attached affidavits from his father and brother. These affidavits relate that, when defendant was 16 years old, he was involved in “some kind of cult or devil worship.”\nFinally, defendant provided reports from a physician and a psychologist regarding the workings of cults. These doctors essentially reviewed the information we have just discussed and postulated that defendant was under the influence of a cult leader at the time he committed the murders at issue. These doctors also generally described the mind-control techniques used by leaders of cults.\nAfter reviewing this allegedly mitigating evidence, we hold that there is no reasonable probability that, had counsel presented this evidence at the sentencing hearings, the juries would have concluded that the mitigating factors were sufficient to preclude the death sentence. See Strickland v. Washington, 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2069 (1984). Contrary to defendant’s argument, the jurors likely would have viewed this evidence of cult involvement as aggravating evidence. This evidence describes defendant’s involvement in devil worship and ritualistic sacrifices. Even worse, some of this evidence shows that defendant was the leader of the cult engaged in these practices. Significantly, the evidence also shows that the doctors to whom defendant mentioned his cult involvement suggested that defendant was manipulative and might be trying to avoid prison by relying on his cult involvement. In any event, defendant fails to explain how any of this evidence showed a “cult connection to the murders” of Howell and Goodman.\nFurthermore, the aggravating evidence in this case far outweighs the mitigating evidence. The State presented defendant’s confession to the murders of Devine, Howell, and Goodman. Defendant, Feinberg, and Kenneth Cheney murdered Devine because Devine “ripped off’ Cheney in a drug deal. They tied up Devine with an extension cord and transported him to a wooded area, where they stabbed him to death. After the murder, defendant, Cheney, and Feinberg drove to Cheney’s home, where they drank alcohol and smoked marijuana.\nDefendant and Feinberg later murdered Howell because they were worried that Devine’s disappearance would make Howell suspicious. Defendant and Feinberg planned the murder in advance. They drew a map of the area where they would bury Howell, went to the planned burial site and dug a hole, and lured Howell to the site under the pretense of having a party there. Defendant stabbed Howell, and Feinberg hit him over the head with a large stick. They buried Howell and set his grave on fire. After the murder, defendant and Feinberg went to defendant’s house, smoked marijuana, and drove around in Howell’s car.\nA year and a half later, defendant originated the plan to murder Goodman because defendant held a grudge against Goodman. Defendant stabbed Goodman in the chest four times. Defendant and Feinberg stole credit cards and cash from Goodman’s wallet before wrapping Goodman’s body in a sheet and a rug and placing it in the trunk of Goodman’s car. After stopping at a tavern in southeastern Wisconsin to eat and play pool, defendant and Feinberg drove to a rural area in Wisconsin, dug a hole, and buried Goodman’s body. They then burned the sheet and the rug over the grave.\nThe State also presented details of defendant’s criminal history. The State introduced certified copies of defendant’s conviction following a guilty plea on May 11, 1982, to seven charges of burglary. Defendant was sentenced to five years’ imprisonment for the offenses. After defendant had served a portion of this prison sentence, he was assigned to a prerelease center. Residents were allowed to leave the center during the day to work, but were required to return each night. A supervisor from the center testified that defendant signed out on the morning of December 5, 1983, and did not come back until January 2, 1984. Defendant said that he did not return on December 5 because he had gotten drunk and fallen asleep. Because defendant knew that he was on escape status anyway, he decided to stay out for the holidays. Consequently, defendant was returned to the custody of the Illinois Department of Corrections.\nA casework supervisor from the Logan Correctional Center testified that defendant was incarcerated at Logan beginning in September 1982, and remained there until May 1983, when he was assigned to the prerelease center. Defendant was returned to Logan in February 1984, and was released on parole two months later. Defendant received 27 disciplinary tickets while an inmate at Logan. Defendant received these tickets for physical or verbal altercations with other inmates, insulting behavior toward the staff, possession of contraband, and failing to go to school.\nCaptain Robert Maeyama of the Park Forest police department also testified regarding various contacts he had with defendant while defendant was a juvenile. Captain Maeyama stated that he apprehended defendant in connection with several different charges during a period from June 1977 to October 1980. These charges included three batteries or aggravated batteries, two burglaries, a theft, a car theft, and disorderly conduct.\nA review of this aggravating evidence shows that defendant is a domineering and remorseless murderer. Given defendant’s extensive criminal history, as well as the heinous nature of the crimes in this case, defendant has failed to establish the requisite prejudice under Strickland. There is no reasonable probability that the outcome of defendant’s sentencing hearings would have been different had the alleged mitigating evidence at issue been presented.\nAs a final matter, defendant requests this court to order a limited remand so that he may have a complete neurological examination conducted. Defendant initially filed a motion for funds so that defendant could retain a neurological expert to perform “full neurological testing” of defendant. Defendant argued that the limited evaluation conducted by Dr. Girdaukas showed possible brain damage or neurological disorders. Defendant sought funds to retain an expert to conduct this testing. The trial court denied defendant’s motion. In accordance with our preceding discussion, we hold that the trial court did not abuse its discretion in denying this motion.\nDefendant, in his reply brief in this court, states that the Capital Litigation Division now has sufficient funds to pay for the requested neurological testing. Defendant, therefore, requests a limited remand “for the purpose of conducting the Neurological Assessment and the Cult-related Psycho-Social investigation.”\nWe decline to order a limited remand in this case. Defendant presented the testimony of Dr. Girdaukas, a licensed clinical psychologist, at both sentencing hearings. Dr. Girdaukas administered numerous psychological tests to defendant and presented his findings to the jurors. There is no reasonable probability that the outcome of defendant’s sentencing hearings would have been different had evidence of defendant’s cult involvement been presented. We therefore decline to remand this case for the testing defendant now seeks.\nD. Failure to Challenge Proportionality of Defendant’s Sentence\nDefendant argues that appellate counsel was ineffective for failing to challenge the proportionality of defendant’s death sentences to the natural life sentences of his codefendant, Feinberg. On direct appeal in the Howell case, appellate counsel argued that the trial court improperly precluded defendant from presenting to the jury, at the second stage of the sentencing hearing, nonstatutory mitigation evidence that his codefendant, Gerald Feinberg, had pled guilty and was sentenced to natural life imprisonment for the murder of Howell. See People v. Page, 156 Ill. 2d 258, 270 (1993). We noted that defendant was not requesting “that this court undertake a review of the proportionality of his sentence,” Page, 156 Ill. 2d at 271. Rather, defendant was arguing “that his codefendant’s sentence and relative degree of participation in the murder should have been considered by the jury at the second stage of his sentencing hearing.” Page, 156 Ill. 2d at 271. We rejected this argument and held that defendant’s request to have the jury consider evidence of a codefendant’s sentence is neither constitutionally required nor relevant to the jury’s examination of the individual defendant’s characteristics and the circumstances of his offense. Page, 156 Ill. 2d at 270-72.\nDefendant now contends that appellate counsel in the Howell case should have instead argued that defendant’s death sentence is disproportionate to the natural life sentence of his codefendant Feinberg. Defendant also suggests that appellate counsel in the Goodman case was likewise ineffective for failing to challenge the proportionality of defendant’s death sentence to the natural life sentence of Feinberg.\nComparative proportionality review in death penalty cases is not required by either the United States Constitution (see Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984)) or the Illinois death penalty statute (see People v. Palmer, 162 Ill. 2d 465, 491 (1994)). This court has, however, considered whether a sentence of death in a particular case is disproportionately harsh in comparison with a less severe sanction imposed on a codefendant convicted of the same crime. See, e.g., People v. Burt, 168 Ill. 2d 49, 80-81 (1995); People v. Flores, 153 Ill. 2d 264, 294-96 (1992); People v. St. Pierre, 146 Ill. 2d 494, 513 (1992); People v. Bean, 137 Ill. 2d 65, 134 (1990). Such judicial review acknowledges the necessity to avoid arbitrary or capricious death sentences by insuring that the cases in which death is imposed are rationally distinguished from those in which it is not imposed. St. Pierre, 146 Ill. 2d at 513. The focus of this review is on the particular defendant’s involvement in the crime, the nature of the crime, the character and background of the defendant, including any criminal record, and the defendant’s potential for rehabilitation. See Burt, 168 Ill. 2d at 80; Flores, 153 Ill. 2d at 294.\nThe record reveals the following relevant information regarding defendant’s involvement in the crimes. In the Goodman case, it was defendant who originated the plan to rob and kill Goodman because defendant held a grudge against Goodman. Defendant stabbed Goodman in the chest four times; Feinberg did not inflict any injuries on Goodman. In the Howell case, defendant stabbed Howell in the chest, and Feinberg hit Howell in the head with a stick.\nMoreover, defendant had a substantial criminal history while Feinberg had no criminal convictions. Details of defendant’s criminal history were introduced at the sentencing hearings in the Goodman and Howell cases. As we have previously discussed, this criminal history includes defendant’s conviction for burglary, and his escape from the prerelease center where he was serving a portion of his sentence for this conviction. Additionally, defendant received 27 disciplinary tickets while an inmate at Logan Correctional Center. These disciplinary tickets were for physical or verbal altercations with other inmates, insulting behavior toward the staff, possession of contraband, and failing to go to school. Furthermore, defendant was charged with numerous offenses while a juvenile, including three batteries or aggravated batteries, two burglaries, a theft, a car theft, and disorderly conduct.\nGiven defendant’s role as the leader in the crimes in this case, defendant’s criminal background, and defendant’s lack of potential for rehabilitation, defendant’s death sentences were not disproportionate to Feinberg’s natural life imprisonment sentences. Defendant, therefore, has failed to make a substantial showing that he received ineffective assistance of appellate counsel in this regard.\nII. Perjured Testimony\nDefendant next argues that his constitutional right to due process was violated at trial because the State failed to correct false testimony.\nThe State’s knowing use of perjured testimony to obtain a criminal conviction constitutes a violation of due process of law. People v. Jimerson, 166 Ill. 2d 211, 223 (1995). A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict. People v. Olinger, 176 Ill. 2d 326, 345 (1997), citing United States v. Bagley, 473 U.S. 667, 678-80, 87 L. Ed. 2d 481, 492, 105 S. Ct. 3375, 3381-82 (1985).\nThese principles likewise apply where the State, although not soliciting the false testimony, allows it to go uncorrected. Olinger, 176 Ill. 2d at 345, citing Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177 (1959). This is so even where the witness’ false testimony goes only to that witness’ credibility. Olinger, 176 Ill. 2d at 345, citing Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct. at 1177.\nDefendant’s claim revolves around the testimony of Glen Rogers and Greg Wilson, who testified at the Goodman murder trial. Glen Rogers and Greg Wilson testified that on Monday, May 11, 1987, they went to Goodman’s house and looked in the windows. They noticed that a television set and stereo equipment were missing. They then called the Olympia Fields police department. Goodman had been murdered the preceding Thursday.\nDefendant references the cross-examination of these witnesses. Rogers denied that he had sexual relations with Feinberg at Goodman’s house, and also denied that he had any sexual relations with Feinberg other than one time at his own house. Wilson denied that there was any relationship involving cocaine or homosexual conduct between himself and Goodman.\nDefendant now argues that the testimony by Rogers and Wilson was false, and that the State should have corrected the testimony. In support of this claim, he attaches a May 14, 1987, report from the Olympia Fields police department. This report describes the reporting officer’s meeting with Rogers. Rogers stated that he had two or three sexual encounters with Feinberg during the past two months and three or four sexual encounters with Feinberg during the past year. Defendant also attaches a page of a May 17, 1987, Olympia Fields police department report which recounts that Wilson told the officer that Feinberg had just called Wilson and asked to speak to Rogers, who lived with Wilson. Feinberg wanted to know if Rogers had any cocaine.\nDefendant argues that this alleged “homosexual and drug-related conduct went directly to the heart of the [voluntary] manslaughter defense, and it also served to impeach the State’s witnesses.” As we have discussed, defendant’s theory of defense at the Goodman trial, was that he killed Goodman while acting under a sudden and intense passion resulting from serious provocation, and therefore committed voluntary manslaughter. The alleged provocation is that Goodman made a sexual advance toward him. The number of sexual encounters between Rogers and Feinberg, and their involvement in possessing or using cocaine, is not relevant to defendant’s establishing a voluntary manslaughter defense based on Goodman’s alleged sexual overture to defendant.\nFurthermore, even if Rogers and Wilson had been impeached at trial with the evidence defendant cites, there is no reasonable likelihood that their testimony could have affected the jury’s verdict. The testimony of Rogers and Wilson played a minor role in the State’s case, and, as this court stated on direct appeal in the Goodman case, the evidence of defendant’s guilt was overwhelming. See People v. Page, 155 Ill. 2d 232, 262 (1993). In particular, defendant confessed in detail to the crime, and an eyewitness saw defendant at Goodman’s house shortly before Goodman disappeared. Thus, defendant has failed to make a substantial showing of a constitutional violation in this regard.\nIII. Brady Violation\nDefendant also contends that the State violated his right to due process by failing to disclose to the defense all exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Defendant argues that the State violated the Brady rule by failing to disclose evidence regarding the victim Goodman’s past homosexual conduct and evidence regarding defendant’s involvement in cult activities.\nTo establish a Brady violation, the suppressed evidence must be both favorable to the accused and material. Favorable evidence is material in this context “ ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” People v. Hobley, 182 Ill. 2d 404, 432-33 (1998), quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). A “ ‘reasonable probability’ ” of a different result is a “ ‘probability sufficient to undermine confidence in the outcome.’ ” Hobley, 182 Ill. 2d at 433, quoting Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3383. To determine whether evidence is material, a court must consider the cumulative effect of all suppressed evidence favorable to the defense. Hobley, 182 Ill. 2d at 433, 435. Furthermore, the prosecution cannot escape its duty under Brady by contending that the suppressed evidence was known only to police investigators and not to the prosecutors. Hobley, 182 Ill. 2d at 433, citing Kyles v. Whitley, 514 U.S. 419, 438, 131 L. Ed. 2d 490, 508-09, 115 S. Ct. 1555, 1568 (1995).\nThe allegedly suppressed evidence to which defendant refers is the evidence of defendant’s involvement in a cult, which we previously discussed in addressing defendant’s claim that his trial counsel was ineffective for failing to present mitigating evidence. Defendant also references allegedly suppressed evidence of Goodman’s “homosexual conduct and contacts with the defendants.” This is the evidence that we previously discussed in addressing defendant’s claims that trial counsel was ineffective for failing to present sufficient evidence of a voluntary manslaughter defense, and that the State failed to correct perjured testimony.\nDefendant has failed to offer any argument as to how there is a reasonable probability that this allegedly suppressed evidence would have changed the result of the proceedings. Moreover, our resolution of defendant’s other arguments which reference the allegedly suppressed evidence demonstrates that there is no reasonable probability that this evidence would have changed the result of the proceedings. We therefore hold that defendant has failed to make a substantial showing of a Brady violation.\nWe also note that defendant offers no basis upon which to conclude that his trial counsel did not in fact possess these police reports. In this regard, however, defendant argues that the post-conviction trial court abused its discretion in denying his motion to depose trial counsel. We hold that the trial court did not abuse its discretion in denying defendant’s motion to depose his trial counsel. Because this allegedly suppressed evidence is not material within the meaning of Brady, there is no need to inquire of defense counsel whether they possessed it.\nIV Death Penalty Instructions\nDefendant argues that the instructions given to the jury at his sentencing hearings are confusing, misleading, and violate his constitutional rights. Defendant has waived this issue by failing to raise it on direct appeal. See People v. Towns, 182 Ill. 2d 491, 503 (1998). Defendant, however, argues that this argument is not waived because its evidentiary basis was de hors the trial record. See People v. Whitehead, 169 Ill. 2d 355, 372 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998).\nDefendant relies on the studies of Professor Hans Zeisel and Professor Shari Diamond in arguing that we should remand the cause for an evidentiary hearing on the fairness of the instructions. Both the Zeisel and Diamond studies purported to test the ability of potential jurors to comprehend certain Illinois death penalty instructions. The 1990 Zeisel study, which concluded that the instructions resulted in misunderstanding and confusion, formed the basis for a federal district court’s holding that the death penalty instructions were constitutionally infirm. See United States ex rel. Free v. Peters, 806 F. Supp. 705 (N.D. Ill. 1992). The Court of Appeals for the Seventh Circuit, however, reversed the district court’s holding. United States ex rel. Free v. Peters, 12 F.3d 700 (7th Cir. 1993); see also Gacy v. Wellborn, 994 F.2d 305 (7th Cir. 1993). This court has agreed that the Zeisel study does not establish that the Illinois death penalty instructions are unconstitutional. See People v. Jackson, 182 Ill. 2d 30, 93 (1998); People v. Brown, 172 Ill. 2d 1, 55-56 (1996).\nDefendant, however, cites the study by Professor Diamond, which was conducted after the Zeisel study. The Diamond study was designed to address two primary objections to the Zeisel study: (1) that the Zeisel study did not use a control group to determine whether revised jury instructions would improve performance and (2) that the Zeisel study did not take into account jury deliberations. The results of the Diamond study confirmed the conclusion of the Zeisel study that the death penalty instructions were confusing.\nThis court has already rejected the argument that the Diamond study provides a basis for invalidating the Illinois death penalty instructions. See People v. Terrell, 185 Ill. 2d 467, 518-19 (1998); Jackson, 182 Ill. 2d at 93; People v. Hobley, 182 Ill. 2d 404, 467-70 (1998); Brown, 172 Ill. 2d at 55-57. Specifically, in Brown, we stated:\n“[A]lthough the Diamond study claims to correct two deficiencies in the Zeisel study, there still remain more generalized problems with the research. Perhaps the most fundamental objection is'the ‘lack of comparability between the test setting and the sentencing hearing.’ See Free, 12 F.3d at 705. There is no reason to suppose that actual jurors who have sat through trial and a sentencing hearing would respond to the sentencing instructions in the same way as the test subjects who simply listened to an audiotaped description of the evidence presented in the case and an audiotape of the instructions, as was done in the Diamond study.” Brown, 172 Ill. 2d at 57.\nWe adhere to our prior holdings and hold that an evidentiary hearing is not warranted on defendant’s claim that the death penalty instructions are unconstitutional.\nIn this regard, defendant also argues that the post-conviction trial court abused its discretion in denying defendant’s request for production of the juror cards for the 12 jurors who sat at the guilt and sentencing proceedings in the Goodman case. Defendant seeks to locate and interview the jurors so that he may “support the claim that the instructions used in the instant case were confusing or misled the jury.”\nThis court in People v. Hobley, 182 Ill. 2d 404, 467-70 (1998), addressed a related issue. In Hobley, the defendant likewise argued that the death penalty instructions are unconstitutional. In addition to citing the Zeisel and Diamond studies, the defendant submitted affidavits from the jurors in his case. Some of the jurors stated that they found the instructions to be confusing; that they felt obligated to impose the death penalty as a result of their guilty verdict; and that they believed that the defendant could be released on parole if they did not impose the death penalty. Hobley, 182 Ill. 2d at 470. This court held that this information pertains to the method, motive, or process by which the jurors reached their verdict and therefore, may not be used to impeach the jury’s verdict. Hobley, 182 Ill. 2d at 470.\nAccordingly, the information defendant seeks pursuant to his motion for production of the juror cards may not be used to support his current argument. Thus, we hold that the trial court did not abuse its discretion in denying defendant’s request for production of the juror cards.\nCONCLUSION\nFor the reasons stated, the judgment of the circuit court of Cook County dismissing defendant’s post-conviction petition without an evidentiary hearing is affirmed. We direct the clerk of this court to enter an order setting Tuesday, November 14, 2000, as the date on which the sentence of death, entered by the circuit court of Cook County, shall be carried out. Defendant shall be executed in the manner provided by law. 725 ILCS 5/119 — 5 (West 1998). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the institution where defendant is confined.\nAffirmed.\n1 Effective July 1, 1987, the legislature amended section 9 — 2 of the Criminal Code of 1961 and replaced the offense of voluntary manslaughter with the offense of second degree murder. See 720 ILCS 5/9 — 2 (West 1998). The second degree murder statute incorporates the mitigating factors of sudden and intense passion and unreasonable belief in the need for self-defense. See People v. Tenner, 157 Ill. 2d 341, 371-72 (1993).",
                            "author": "JUSTICE BILANDIC",
                            "type": "majority"
                        },
                        {
                            "text": "CHIEF JUSTICE HARRISON,\nconcurring in part and dissenting in part:\nI agree that Page’s convictions should not be disturbed. In my view, however, his sentence of death cannot be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Page’s sentence of death should therefore be vacated, and the cause should be remanded for imposition of a sentence of imprisonment. 111. Rev. Stat. 1985, ch. 38, par. 9 — l(j). Because Page has been found guilty of murdering more than one victim, the term of his imprisonment must be natural life. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(c).",
                            "author": "CHIEF JUSTICE HARRISON,",
                            "type": "concurring-in-part-and-dissenting-in-part"
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                    "attorneys": [
                        "John C. Greenlees and Terri L. Marroquin, of the Office of the State Appellate Defender, of Chicago, for appellant.",
                        "James Ryan, Attorney General, of Springfield, and Richard A. Devine, State’s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb and Linda D. Woloshin, Assistant State’s Attorneys, of counsel), for the People."
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                    "head_matter": "(Nos. 83921, 83922 cons.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PATRICK PAGE, Appellant.\nOpinion filed August 10, 2000.\nRehearing denied October 2, 2000.\nJohn C. Greenlees and Terri L. Marroquin, of the Office of the State Appellate Defender, of Chicago, for appellant.\nJames Ryan, Attorney General, of Springfield, and Richard A. Devine, State’s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb and Linda D. Woloshin, Assistant State’s Attorneys, of counsel), for the People.\nHARRISON, C.J., concurring in part and dissenting in part."
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