Docket No. 86408-Agenda 7-March 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DANIEL J. EDWARDS, Appellant.

Opinion filed January 29, 2001.

JUSTICE MILLER delivered the opinion of the court:

The defendant, Daniel J. Edwards, brings this appeal from anorder of the circuit court of Kankakee County dismissing, withoutan evidentiary hearing, his amended post-conviction petition.Because the defendant received the death sentence for theunderlying first degree murder conviction, the present appeal liesdirectly to this court. 134 Ill. 2d R. 651(a).

Following a jury trial in the circuit court of Kankakee County,the defendant was convicted of first degree murder and aggravatedkidnapping. The same jury found the defendant eligible for thedeath penalty because of his commission of first degree murderduring the course of another felony, aggravated kidnapping. SeeIll. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6). At the conclusion of thesentencing hearing, the jury determined that there were nomitigating circumstances sufficient to preclude a sentence ofdeath, and the trial court therefore imposed the death sentence forthe conviction for first degree murder. On direct appeal, this courtaffirmed the defendant's convictions and death sentence. Peoplev. Edwards, 144 Ill. 2d 108 (1991). The United States SupremeCourt denied the defendant's petition for a writ of certiorari.Edwards v. Illinois, 504 U.S. 942, 119 L. Ed. 2d 204, 112 S. Ct.2278 (1992).

The defendant commenced the present action for post-conviction relief in the circuit court of Kankakee County inNovember 1992. With the assistance of counsel, the defendantfiled an initial and later an amended post-conviction petition,raising a number of challenges to the trial and sentencingproceedings. The State moved to dismiss the defendant's amendedpetition. The circuit court granted the State's motion anddismissed the amended petition without an evidentiary hearing.This appeal followed. 134 Ill. 2d R. 651(a).

We will briefly summarize the evidence presented at trial. Thedefendant was charged with first degree murder and aggravatedkidnapping for the abduction and death of Stephen Small ofKankakee. Small had been buried alive in a wooden box, where hewas being held for payment of a $1 million ransom.

Around 12:30 a.m. on September 2, 1987, someone claimingto be a Kankakee police officer called the Small home and toldStephen Small that a burglary had occurred at his office. Small gotdressed and left the house. Around 3:30 that morning someonecalled the Small residence and told Stephen's wife, Nancy, "Wehave your husband." Nancy then heard her husband say that he hadbeen handcuffed inside a box underground. Small told his wife toobtain $1 million in cash. The caller directed Mrs. Small not toreport the matter to the police.

The matter was reported to the authorities, however, anddevices were connected to the Smalls' telephone line to recordincoming calls and to determine their origins. At 5:03 thatafternoon, the same person called again, asking Mrs. Small howmuch money had been collected. This call was placed from atelephone located at a Phillips 66 gas station in Aroma Park. Thedefendant was seen there at that time, in the company of a blonde-haired woman.

At 5:40 p.m., Jean Alice Small, Stephen Small's aunt,telephoned the Small residence to tell them of a call she had justreceived. Jean said that the caller had told her that he knew thatNancy Small's telephone was tapped. After telling Jean that thevictim was buried, the caller threatened to kill Jean's husband.

Nancy Small received another telephone call from thekidnapper at 11:28 that night. This call originated from atelephone at a Sunoco station in Aroma Park, where an FBI agentsaw a white male at a telephone, and a blonde-haired woman in acar that was later identified as belonging to Nancy Rish, thedefendant's girlfriend; Rish had blonde hair. The caller played atape recording of Stephen Small's voice. On the tape, Stephenprovided instructions for delivering the ransom. After audioenhancement, a voice in the background could be heardthreatening Small.

Nancy Small received one more telephone call from thekidnapper, at 11:46 that night. The call was placed from aMarathon service station in Kankakee. The caller accused Nancyof having notified the police and refused her offer of the ransom.Minutes later, at 11:50 p.m., an Illinois state police officer sawRish's car, with its trunk partly open, driving from Kankakeetoward Aroma Park.

Law enforcement officers then placed the defendant's homeunder surveillance. They saw a dark-colored Buick, with its trunkpartly open, arrive at the house in Bourbonnais where thedefendant and Rish lived. The defendant and a white woman withblonde hair left the car and went inside.

Officers carried out a search of the residence later thatmorning, on September 3, and the defendant was arrested at thattime. Later that day, the defendant led law enforcement officers tothe site where the victim was buried. There, officers dug up awooden box and found the victim's body inside. The boxmeasured about six feet long and three feet wide, and wasconstructed of plywood.

A medical examiner later determined that the victim died ofasphyxiation caused by suffocation. The medical examinerbelieved that the victim would not have survived more than threeor four hours inside the enclosed box. The medical examiner notedthat the pipe extending from the box into the open air was too longfor its diameter to serve as an adequate air-exchange system.

The State presented other evidence connecting the defendantto these offenses. On the night of the victim's disappearance,around midnight, a neighbor of the defendant heard the defendantsay, "Let's go, let's hit it," get into his car, and drive off. Also, twoneighbors of the Small family saw the defendant's van, or onesimilar to it, parked in their neighborhood after midnight onSeptember 2. One neighbor also noticed a mid-sized car at thattime, heard two car doors slam, and saw the car and thedefendant's van drive away with their lights off.

Several witnesses saw the defendant constructing a woodenbox in his garage during summer 1987, preceding the offenseshere. The defendant gave various explanations for the project,saying that it would be used for a lemonade stand, or by hisbrother for transporting things, or at his brother's pool in Florida.A neighbor of the Smalls had seen a white van similar to thedefendant's van driving through an alley next to the Small's homeabout 10 times that summer. While the defendant and Rish werevisiting a boat store that summer, the defendant saw StephenSmall leaving the store in a sports car; the defendant was heard tosay, "Boy, it sure would be nice to afford stuff like that."

The search of the defendant's residence at the time of hisarrest turned up a Kankakee telephone book with the name"Small" circled. The defendant's boots were found behind awasher and dryer at the residence, and soil on the boots matcheda sample from the location where the box was buried. Soil in thedefendant's van also matched the sample. White caulking materialon gloves found in the defendant's trash had the same chemicalcomposition as the caulking material used to fill in the seams ofthe wooden box in which the victim had been buried. Thedefendant's fingerprints were found on PVC pipe and duct taperecovered from the box.

A person who owed the defendant money had had a pair ofhandcuffs stolen from him, and the same pair was later discoveredon the victim. Another person who owed the defendant money hadhad a gun stolen, and it was found by investigators in thecountryside near Aroma Park. The defendant purchased a batterythat was found in the wooden box. Bolt cutters belonging to acompany owned by the defendant's brother were found at a pointbetween where the box was uncovered and where the victim's carwas found, and they could have been the implement used to cut thechain connecting the handcuffs on the victim's wrists.

At the close of evidence, the jury found the defendant guiltyof first degree murder and aggravated kidnapping. A capitalsentencing hearing was then conducted. At the first stage of thehearing, the jury found the defendant eligible for the death penaltybecause of his commission of murder during the course of anotherfelony, aggravated kidnapping. See Ill. Rev. Stat. 1985, ch. 38, par.9-1(b)(6). At the second stage of the hearing, the parties presentedevidence in aggravation and mitigation. At the conclusion of thehearing, the jury determined that there were no mitigatingcircumstances sufficient to preclude a sentence of death. The trialjudge accordingly sentenced the defendant to death for theconviction for first degree murder.

I

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through122-7 (West 1994)) provides a method by which a defendant maychallenge a conviction or sentence for violations of federal or stateconstitutional rights. People v. Tenner, 175 Ill. 2d 372, 377(1997); People v. Thompkins, 161 Ill. 2d 148, 157 (1994). Anaction for post-conviction relief is a collateral proceeding ratherthan an appeal from the underlying judgment. People v. Williams,186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief,a defendant must demonstrate a substantial deprivation of federalor state constitutional rights in the proceedings that led to thejudgment being challenged. 725 ILCS 5/122-1 (West 1994);People v. Morgan, 187 Ill. 2d 500, 528 (1999). Principles of resjudicata and waiver narrow the range of issues available to a post-conviction petitioner "to constitutional matters which have notbeen, and could not have been, previously adjudicated." People v.Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings onissues that were previously raised at trial or on direct appeal areres judicata, and issues that could have been raised in the earlierproceedings, but were not, will ordinarily be deemed waived.People v. Tenner, 175 Ill. 2d 372, 378 (1997); People v. Coleman,168 Ill. 2d 509, 522 (1995).

The defendant raises a number of contentions in this appeal,arguing generally that the post-conviction court erred in dismissingthe petition without an evidentiary hearing. A court considering apost-conviction appeal will conduct a de novo review of a petitionthat has been dismissed without an evidentiary hearing. People v.Coleman, 183 Ill. 2d 366, 389 (1998). With several exceptions, wewill discuss these issues in the same sequence in which thedefendant has presented them in his brief before this court.

II

The defendant argues that the affidavit submitted by MasterSergeant William Willis of the Illinois State Police in support ofthe search warrant was defective in various respects. On directappeal, this court considered a number of the same or relatedcontentions involving the affidavit and the issuance of the searchwarrant. Edwards, 144 Ill. 2d at 129-33. At that time, the courtheld that various misstatements in the affidavit would not haveaffected the judge's decision to issue the requested warrant. Thedefendant renews here a number of the same allegations, andsupplements them with an additional circumstance that he believesentitles him to an evidentiary hearing. Specifically, the defendantargues that Willis should have stated in the affidavit that Mrs.Small heard a tape recording of her husband's voice, rather thanhis actual voice, during the kidnapper's first call to her; that thevictim said that "he was handcuffed, instead of being handcuffed";that the 11:50 telephone call originated from a Marathon gasstation in Kankakee, not from a Sunoco station in Aroma Park;and that FBI agents did not see a white male go to Rish's homeafter leaving the pay telephone at 11:40.

On direct appeal, the defendant also raised the discrepancy inthe origin of the 11:50 telephone call, and a number of other issuesconcerning the affidavit. Edwards, 144 Ill. 2d at 129-33. Despitethose matters, this court concluded that the warrant was valid andthat the defendant was not entitled to a hearing into the accuracyof the affidavit under Franks v. Delaware, 438 U.S. 154, 57 L. Ed.2d 667, 98 S. Ct. 2674 (1978). We adhere to that decision. Evenwith the changes urged by the defendant, the Willis affidavitwould still have provided sufficient information to justify theissuance of the search warrant.

In renewing his challenge to the affidavit in this appeal, thedefendant places special emphasis on a comment made by OfficerWillis that appears in a transcript of remarks by Officer Willis fora television program called "Top Cops." According to thedefendant, on that occasion, in May 1990, after the trial, Willistold the reporter on the program:

"Wanted the warrant to stand up in case we're right. Weknow Edwards is it. We have no proof, but we know bycop instinct this guy is involved. He made the secondphone call. Got to know where he's at. Small might be atthe house. So we made the decision to get the searchwarrant."

The defendant argues that the comment "We have no proof"shows that Willis intentionally made material misstatements in theaffidavit he submitted in support of the warrant. Rejecting thisargument, the post-conviction judge characterized the officer'scomment as "theatrics." We agree with the judge's assessment.The remark "We have no proof" is belied by the extensivediscussion preceding it in the transcript, in which Willis detailedthe steps in the investigation and the events leading to the decisionto focus on the defendant as a suspect in the case.

In addition, we question the relevance of the comment. Theofficer made the remark several years after the issuance of thewarrant. We do not believe that Officer Willis' latercharacterization of the case is relevant to the determination ofprobable cause made earlier by the judge who issued the warrant.Even without the items criticized by the defendant, the affidavitcontained sufficient grounds to justify the issuance of the warrant.

III

The defendant next argues that the prosecution presentedhypnotically refreshed testimony at trial, in violation of state law,without first disclosing the nature of the evidence to the defense.According to the defendant, the evidence in question wasintroduced during the testimony of Deputy Sheriff Jan Krizik,which, the defendant alleges, was enhanced through hypnosis. Thedefendant complains specifically that Krizik's identification of thedefendant's van was the product of hypnosis the witnessunderwent before trial. At trial, Krizik testified that she identifiedthe defendant's van as having been on the street near the Smallresidence, and outside her own home, in the early morning hoursof September 2 by the presence of decals on one of its rearwindows. The defendant argues that Krizik acquired thisdetail-the presence of the decals-as a result of hypnosis. Thedefendant maintains that the State's failure to disclose theoccurrence of the hypnosis denied him his right to confront thewitness. Apparently, the defense did not become aware of thehypnosis until Krizik testified at the trial of codefendant Rish.

Assuming that the hypnotically induced portion of a witness'testimony should have been excluded from evidence at the time ofthe defendant's trial (see People v. Zayas, 131 Ill. 2d 284 (1989);People v. Wilson, 116 Ill. 2d 29 (1987)), we do not believe that thedefendant has shown what portion of Krizik's testimony wasaffected by hypnosis. The defendant has not established in whatrespect the hypnosis altered or influenced Krizik's recollection ofthe events in question. In support of this contention, the defendantsubmitted to the post-conviction court an affidavit from the personwho performed the hypnosis, Joseph Tremonti, a priest. FatherTremonti stated in his affidavit that during hypnosis Krizik"related further facts [ ] not related initially." The affidavit doesnot specify, however, what the new information consisted of.

As further proof that the witness' description of the decalswas enhanced through hypnosis, the defendant points to a reportof an interview of Krizik conducted by another law enforcementofficer, Officer Hancock. In relating what Krizik said, the reportdoes not mention the presence of decals on the van's windows.The defendant believes that the absence of this information fromthe report shows that the decals were a detail that the witness didnot describe initially but mentioned later only as a consequence ofhypnosis.

In testimony at trial, however, Krizik said that she toldHancock about the decals when he questioned her on September2. In the absence of evidence that it was in fact the presence of thedecals that Krizik recalled through hypnosis, we are unable toconclude that the testimony was altered in a material way.

Even if Krizik's testimony on this point should have beenbarred because it was hypnotically induced or refreshed, exclusionof the testimony would not have made a difference in the case.There existed other, substantial evidence connecting the defendantto the offenses charged here. As noted earlier, in the summary ofevidence presented at trial, the defendant led law enforcementofficers to the site where the box was buried. The defendant hadbeen seen constructing a similar box in the weeks preceding thevictim's abduction, and the defendant's fingerprints were found onmaterials in the box. The defendant was seen in the places fromwhich telephone calls were made to the victim's family. Assumingthat Deputy Krizik's testimony was erroneously admitted, we donot believe that the error had any effect on the outcome of the trial,given the strong evidence establishing the defendant's guilt forthese offenses.

IV

The defendant next argues that the State failed to disclosebefore trial certain information that it was required to reveal to thedefense under the principles announced in Brady v. Maryland, 373U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny.The defendant contends that the information would have supportedthe defendant's theory that other persons also took part in thecommission of these offenses and that the defendant's own role inthe crimes was the product of compulsion. The defendant's briefand amended post-conviction petition refer to a number of itemsof evidence, and we will briefly consider these.

The defendant first refers to a statement by Officer Willis thatis included in the transcript of remarks made by Willis for thetelevision program "Top Cops," discussed earlier. The defendantcites Willis' comment, "Danny built the box with a ventilationsystem, candy bars and water, to keep this guy alive." Thedefendant believes that this remark was favorable to the defense,showing that he made efforts to assist the victim. The citedremark, however, was made by Willis after, rather than before, thedefendant's trial on these charges, and thus was not a matterwithheld from the defense.

The defendant also cites a report showing that the federalgovernment declined to prosecute, in an unrelated case, a personabout whom the defendant was supplying information. Accordingto the report, the prosecution was dropped because the defendant'scredibility would be seriously undermined by his involvement inthe present offenses. The defendant contends, however, thatdisclosure of this report would have lent weight to his theory thatthe federal suspect arranged the commission of these crimes as away of discrediting the defendant.

The defendant offers no credible evidence in support of histheory that the present offenses were the work of the suspect in thefederal investigation. Relief is not available under Brady unlessthe defendant can establish that the evidence improperly withheldwas material to the defense. In this context, favorable evidence ismaterial " 'if there is a reasonable probability that, had theevidence been disclosed to the defense, the result of theproceeding would have been different.' " People v. Coleman, 183Ill. 2d 366, 393 (1998), quoting United States v. Bagley, 473 U.S.667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). Wefail to see how the report regarding the decision not to bring thefederal prosecution was material to the present case.

The defendant also mentions the destruction of a "drug list,"apparently referring to items of evidence seized following thearrest of the defendant for a drug-related offense. The defendantdoes not explain the relevance of that inculpatory evidence to thepresent case or how its suppression would be a violation of Brady.

The defendant's other Brady-related claims are alsounavailing. An FBI report stated that nothing of known value wasfound in a search of the defendant's home, even though at thattime investigators found a telephone book with the name "Small"circled. The report merely states one writer's opinion, however,and does not amount to a violation. See People v. Mack, 128 Ill.2d 231, 247-48 (1989). The defendant says that he did not performmany of the acts the prosecution attributed to him at trial, but hedoes not elaborate on that point. He contends further that theprosecution did not provide information about a witness namedThad Wells, who testified at codefendant Rish's trial that he sawtwo white males and one black male in a light-colored van in thevicinity of St. Anne around the time the box was buried in theground. The defendant fails to allege, however, how that bit ofinformation is favorable to him. The defendant also says that theState did not provide records showing that someone named KathyGoodrich called his home in Bourbonnais at the same time thekidnapper placed one of the calls. The prosecution did not allegethat the defendant made the calls from his own home, however,and therefore we question how this information would haveassisted the defendant. The defendant also refers to flights madeover the area, during the investigation of these offenses, by an FBIreconnaissance airplane known as "Night Stalker." The defendantdoes not explain what information might have been revealed, orhow that would have assisted the defense. Finally, the defendantalleges that the prosecution altered a store receipt by adding thenames "Edwards and Rish" so that it would identify the purchasersof a quantity of wire ties. The State was not allowed to introducethe wire ties into evidence at the defendant's trial, however(Edwards, 144 Ill. 2d at 170-71), and therefore we fail to see thesignificance of the allegedly altered receipt. In sum, the defendanthas not established, whether through the record or affidavits, hisentitlement to a hearing on this claim.

V

The defendant next argues that trial counsel and appellatecounsel were ineffective in numerous ways. The competence ofcounsel is measured against the standard announced by theSupreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim ofineffective assistance, a defendant must show both a deficiency incounsel's performance and prejudice resulting from the allegeddeficiency. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104S. Ct. at 2064.

To show a deficiency in counsel's performance, a defendantmust establish "that counsel's representation fell below anobjective standard of reasonableness." Strickland, 466 U.S. at 688,80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny ofcounsel's performance is highly deferential, and a courtconsidering a claim of ineffective assistance "must indulge astrong presumption that counsel's conduct falls within the widerange of reasonable professional assistance." Strickland, 466 U.S.at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

To demonstrate prejudice resulting from an alleged deficiencyin counsel's performance,"[t]he defendant must show that there isa reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermineconfidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed.2d at 698, 104 S. Ct. at 2068.

Because a defendant's failure to satisfy either part of theStrickland test will defeat a claim of ineffective assistance, a courtis not required to "address both components of the inquiry if thedefendant makes an insufficient showing on one." Strickland, 466U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. Accordingly,a court considering a claim of ineffective assistance "need notdetermine whether counsel's performance was deficient beforeexamining the prejudice suffered by the defendant as a result ofthe alleged deficiencies." Strickland, 466 U.S. at 697, 80 L. Ed. 2dat 699, 104 S. Ct. at 2069.

Allegations of ineffective assistance of appellate counsel areresolved under the same standard that governs the performance oftrial counsel. People v. West, 187 Ill. 2d 418, 435 (1999). Thus, adefendant who alleges that appellate counsel was ineffective mustestablish both a deficiency in counsel's performance and prejudiceresulting from the asserted deficiency. People v. Flores, 153 Ill. 2d264, 283 (1992). Appellate counsel is not required to brief everyconceivable issue on appeal, however, and it is not incompetencefor counsel to refrain from raising issues that counsel believes arewithout merit. People v. Johnson, 154 Ill. 2d 227, 236 (1993). Forthese reasons, unless the underlying issue is meritorious, adefendant cannot be said to have incurred any prejudice fromcounsel's failure to raise the particular issue on appeal. People v.Childress, 191 Ill. 2d 168, 175 (2000).

A

The defendant complains of several acts and omissions bycounsel during the pretrial proceedings. The defendant first arguesthat counsel was ineffective for failing to examine more closelythe affidavit submitted by Officer Willis in support of the requestfor a search warrant. The defendant believes that closer inspectionof the affidavit would have brought to counsel's attention thealleged alterations to the document and would have enabledcounsel to successfully challenge the issuance of the warrant onthe basis of the alterations. There is no evidence that thealterations were made after the warrant was issued. As we havealready concluded in this opinion, however, as well as in theopinion on direct appeal, we do not believe that the deficienciesalleged by the defendant, even if they had been called to theattention of the judge who issued the warrant, would haveprecluded its issuance.

The defendant next argues that trial counsel erred in failing toseek the suppression of tape recordings of calls made to NancySmall by the kidnapper and by Jean Small. The defendantcontends that the calls to the Small residence were recorded inviolation of the state eavesdropping statute, section 108A-1 of theCode of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38,par. 108A-1). On direct appeal, this court found that thedefendant's objection to the introduction of the evidence waswaived by his failure to raise the issue in the trial court. Edwards,144 Ill. 2d at 163-64. The defendant now argues that counsel wasineffective for failing to properly preserve the question.

We do not agree with the defendant that the calls wererecorded in violation of the statute. In People v. Beardsley, 115 Ill.2d 47 (1986), and People v. Herrington, 163 Ill. 2d 507 (1994),this court determined that authorization is not required under thatprovision when recordings are made with the consent of one of thepersons taking part in the conversation. In the present case, thecalls were recorded with Nancy Small's consent. Thus, we mustconclude that no statutory violation occurred in thesecircumstances. Counsel cannot be considered ineffective forfailing to make or pursue what would have been a meritlessobjection.

In a further challenge to his lawyer's pretrial actions, thedefendant argues that counsel was ineffective for failing to seek tolimit the times when the wooden box in which the victim had beenburied was present in the courtroom. Apparently it was therethroughout the defendant's trial. The defendant notes that a motionto that effect was made and granted in the prosecution of hiscodefendant, Nancy Rish. The defendant contends that trialcounsel should have made a similar motion in his case.

Even if the defendant's motion had been granted, thedefendant still could not have been able to exclude the boxentirely. It still would have been present at various times duringtrial, for identification by witnesses who saw the defendantbuilding it, and for identification by officers who were presentwhen it was discovered in the ground. Moreover, the presence ofthe box does not appear to have been an element in the jury'sdetermination of guilt. As the State observes, Rish was alsoconvicted of these offenses, though the wooden box was not in thecourtroom during every moment of her trial. Thus, it does notappear that the presence of the box was an influentialconsideration in the jury's guilty verdicts here.

The defendant also argues that the first lawyer appointed torepresent him in this case was ineffective for failing to obtain, ina timely manner, the appointment of another lawyer to assist himin the case.

Before trial, the defendant's appointed attorney asked for theappointment of co-counsel. The trial court at first denied therequest, but when the motion was raised again, the courtauthorized the appointment of another lawyer. After that personwithdrew from the case, the court appointed another person,several weeks before the beginning of trial. Thus, the defendantwas represented by two lawyers at both the guilt phase and thesentencing phase of the proceedings.

We find no merit in the defendant's complaint. First, itappears that counsel did all that could have been expected of himin seeking the appointment of a second lawyer in the case. Counselpersisted in his requests for the appointment of co-counsel and wasultimately successful, obtaining the services of a second lawyerbefore trial. Moreover, the defendant has failed to show that theappointment of co-counsel was necessary at an earlier point in theproceedings, that the court's delay in authorizing the appointmentof another lawyer was prejudicial in any manner, or that co-counsel's earlier appearance in the case would have been helpfulor beneficial to the defendant.

B

The defendant next raises a series of challenges to counsel'sperformance during the guilt phase of the proceedings. Thedefendant first argues that trial counsel should have presented tothe jury evidence that would have supported a defense ofcompulsion. With respect to that defense, section 7-11(a) of theCriminal Code of 1961 provides:

"A person is not guilty of an offense, other than anoffense punishable with death, by reason of conductwhich he performs under the compulsion of threat ormenace of the imminent infliction of death or great bodilyharm, if he reasonably believes death or great bodily harmwill be inflicted upon him if he does not perform suchconduct." Ill. Rev. Stat. 1985, ch. 38, par. 7-11(a).

The defendant contends that trial counsel was ineffective forfailing to present this defense to the jury. The defendantacknowledges that compulsion is not a defense to a felonypunishable by death, but he asserts that it would have been adefense to the charges of aggravated kidnapping.

In support of this claim, the defendant's petition mentions thatthe sheriff believed that a "hit" had been placed on the defendant,and that after his arrest in this case the defendant told Rish and lawenforcement officers that this had been something he had had to door Rish and her son would have been killed. We do not see theconnection between the supposed "hit" and the defendant'sconduct in this case. Moreover, the defendant's fears regardingRish and her son, even if supported by the record or by affidavit,would not establish the defense of compulsion, which bydefinition is shown only by threats of harm to the actor.

The defendant next refers to this court's statement on directappeal that the defendant waived his right to ask for an instructionlimiting the jury's consideration of what have been referred to as"the house tape" and "the road tape." These were the taperecording of calls made by the kidnapper to the Small residence("the house tape"), and a tape recording made by the kidnapper ofthe victim's voice, played during calls to the Small residence andlater found along a country roadside ("the road tape"). Edwards,144 Ill. 2d at 163. In this post-conviction appeal, the defendantargues that trial counsel was ineffective for waiving an objectionto the State's use of this evidence, and that appellate counsel wasineffective for failing to challenge trial counsel's performance.

The trial court ruled that the tapes were admissible asevidence of the corpus delicti in this case. Edwards, 144 Ill. 2d at166. On direct appeal, this court found that there was sufficientproof for the admission of the tapes as evidence of the defendant'sguilt in this case. Edwards, 144 Ill. 2d at 168. Regarding the housetape, this court noted that the defendant was seen at places wheretwo of the kidnapper's calls were made, at the times when theywere made. With respect to the road tape, the court cited Mrs.Small's testimony that the voice that can be heard speaking to herhusband on that tape was the same voice that she spoke with on allfour ransom calls. Given this court's determination of the properuse of this evidence, we believe that any effort by the defensecounsel to exclude the tapes or limit their use would have beenunsuccessful.

The defendant next argues that trial counsel was ineffectivefor failing to object to the prosecutor's suggestion during trial thatthe defendant was trying to keep damaging information from thejury. This occurred during the direct examination of a prosecutionwitness, when, in response to an objection by the defendant, theprosecutor stated, "Well, judge, you know, he opens this up andthen when I clarify it everything is objectionable. He doesn't wantit to come out."

Contrary to the defendant's argument, defense counselobjected, and the trial judge sustained the objection and instructedthe jury to disregard the line of questioning. The judge's favorableruling striking the entire line of questioning included within itsscope the particular comment made by the prosecutor. Generally,a ruling sustaining a defense objection is sufficient to cure anyprejudice (People v. Baptist, 76 Ill. 2d 19, 30 (1979)), and we seeno reason to reach a different conclusion in this case.

The defendant also contends that counsel rendered ineffectiveassistance by failing to point out on cross-examination of a Statewitness the presence of 12 unidentified fingerprints in the woodenbox in which the victim was buried.

The defendant does not dispute that his fingerprints werefound on materials inside the box. The unidentified prints couldhave belonged to any number of persons who had been in contactwith the box and its materials while it was being constructed orafter it was discovered. We do not see how the introduction ofevidence of the unidentified prints would have assisted thedefendant. As we have previously noted, the defendant canmarshal only vague assertions in support of a compulsion defense;the existence of unidentified prints on the box, of unknown ageand provenance, is too remote to be of help here.

The defendant next argues that counsel was ineffective at trialfor failing to impeach several witnesses with certain information.First, the defendant cites an FBI report that an employee of theservice station where the 5 p.m. call originated believed that ablack male made a telephone call at that time, after getting out ofa car that contained another black male and a black female. Next,the defendant refers to FBI reports describing the interview withDeputy Jan Krizik, which do not mention the decals that sheclaimed to see in the van's windows. Finally, the defendant citesan FBI report that said that a search of the defendant's home didnot turn up anything of value, even though other evidence showedthat officers found a local telephone book with name "Small."

In response to these contentions in the circuit court, the Stateargued that the defendant had failed to develop them with therequired specificity. The defendant's amended petition presentedthis issue in summary fashion, stating only that trial counsel wasineffective for failing to impeach witnesses with information thatcounsel knew or should have known. The petition then cited alengthy summary of the police investigation. We agree with theState that an evidentiary hearing is not warranted on theseallegations, for the materials submitted by the defendant fail tomake a substantial showing of a violation of his constitutionalrights. See People v. Maxwell, 173 Ill. 2d 102, 107 (1996); Peoplev. Owens, 129 Ill. 2d 303, 308 (1989). In any event, we do notbelieve that the impeachment value of this material was great.

Finally, the defendant challenges trial counsel's failure topreserve objections to certain comments made by the prosecutorduring closing argument at the guilt phase of the proceedings. Thedefendant first cites the prosecutor's statement, "He-by his ownwords, he has said 48 hours of air existed if you believe him andI don't for a second." The prosecutor was referring to one of thekidnapper's calls to Mrs. Small, in which the kidnapper said thather husband would be able to breathe for 48 hours. The defendantargues that the prosecutor improperly stated his own opinionregarding the evidence in this case.

Defense counsel objected to that comment, and the trial judgesustained the defense objection and instructed the jury to disregardthe remark. We believe that any error in the prosecutor's commentwas cured by the trial judge's action in sustaining the objectionand instructing the jury to disregard the comment. This shouldhave been sufficient to cure any prejudice.

The defendant also challenges the prosecutor's argument thata neighbor said that the defendant looked proud when he built thewooden box. Even if this comment was not supported by theevidence, we do not believe that it denied the defendant a fair trial.This was a brief comment, and we do not believe that it wouldhave affected the jury's determination here.

The defendant next takes issue with the prosecutor'sstatement in closing argument that the victim scratched, clawed,and pulled in an effort to escape from the wooden box in which hehad been placed. The defendant contends that there was noevidence to support the prosecutor's comment.

Contrary to the defendant's view, we believe that thecomment finds support in the evidence. Chemical analysis of thewood inside the box showed contact with human skin. Also, themedical examiner reported finding abrasions on the victim'sforehead, right hand, and elbow. This was sufficient to support theinference that the victim struggled while inside the box, in aneffort to free himself.

The defendant also challenges the prosecutor's remark that thekidnapper, in his call to Jean Small, told Jean that he would killJean's husband "too"; the defendant contends that the evidenceshowed that the kidnapper said only that he would kill Jean'shusband, without using the word "too." Given the defendant'sconduct in causing the victim's death, we do not see how thedefendant could have incurred any prejudice as a result of theprosecutor's paraphrase of the testimony.

C

The defendant also argues that counsel rendered ineffectiveassistance at the capital sentencing hearing conducted in this case.In this context, the inquiry into prejudice under Strickland requiresan examination of the effect of counsel's error on the sentencer'sdecision. People v. Tenner, 175 Ill. 2d 372, 384 (1997); People v.Sanchez, 169 Ill. 2d 472, 491 (1996); People v. Ashford, 168 Ill.2d 494, 505 (1995); People v. Coleman, 168 Ill. 2d 509, 536(1995). The relevant question here, then, is "whether there is areasonable probability that, absent the errors, thesentencer-including an appellate court, to the extent that itindependently reweighs the evidence-would have concluded thatthe balance of aggravating and mitigating circumstances did notwarrant death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698,104 S. Ct. at 2069.

At the second stage of the sentencing hearing, defense counselsought to introduce into evidence videotapes of the defendant'stwo children, in which they spoke of their feelings for their father.The State objected to the evidence, arguing that the children mightnot be competent to testify and observing that their videotapedcomments were not made under oath and were not subject tocross-examination. The trial judge sustained the State's objectionto the evidence. On direct appeal, this court upheld the judge'sruling. Edwards, 144 Ill. 2d at 174-75. This court also noted thatthe defendant had declined an offer by the prosecution to stipulateto the substance of the children's statements on the tapes. Thedefendant now argues that trial counsel was ineffective for failingto accept the State's offer to stipulate to the evidence.

We believe that defense counsel's decision not to stipulate tothe evidence was essentially a matter of trial strategy and thereforewill not support a claim of ineffective assistance of counsel. At thesentencing hearing, in refusing the State's offer to stipulate to thechildren's statements, defense counsel explained that he believedthat the tapes were admissible and that the stipulation was not anadequate substitute for their contents. The decision whether toaccept the State's offer was in essence a matter of trial strategy,and a reviewing court generally will not second-guess a decisionof that nature. Strickland v. Washington, 466 U.S. 668, 690-91, 80L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066 (1984); People v.Franklin, 167 Ill. 2d 1, 22 (1995); People v. Palmer, 162 Ill. 2d465, 479 (1994). We see no reason to do so here.

The defendant next argues that trial counsel was ineffectivefor failing to offer, as mitigation, evidence that the defendant hadpreviously cooperated with police following his arrest in a priordrug-related case. Counsel might have believed that the evidencewould have focused more attention on the defendant's priormisconduct, and also that the jury would simply think that thedefendant had been acting out of self-interest at that time. Webelieve that this was essentially a question of strategy, and we willnot further consider counsel's decision here.

The defendant also contends that counsel was ineffective forfailing to have a police officer testify at the sentencing hearingabout the defendant's reaction at the site where the victim's bodywas found. The defendant suggests that Detective RobertAnderson would have testified that the defendant was frantic andstarted digging in the ground with his hands.

We do not believe that counsel can be deemed ineffective forfailing to offer this evidence. The additional testimony proposedby the defendant would have been cumulative of testimony alreadyadmitted into evidence. Counsel had already presented similartestimony from two other law enforcement officers. Officer JohnGerard testified that the defendant cried, "Oh, no, oh, no," whentold that the victim was dead. Sergeant Maurice Mietzner testifiedthat the defendant got down on his knees to help dig up the victimand cried out, "Oh, no, oh, no, he can't be dead," when informedof the victim's death. The witnesses also said that the defendantseemed to quickly resume his prior behavior shortly after that.Defense counsel was not required to present a third witness totestify about what two other witnesses had already described to thejury, and we do not believe that any particular advantage wouldhave been gained by offering this additional testimony.

The defendant next argues that trial counsel was ineffectiveat the sentencing hearing because he failed to call as a witnessMary DeSloover, who had prepared a report about the defendantthat was admitted into evidence as mitigation. The defendantargues that the witness' testimony could have helped establish, asmitigation in this case, the defendant's history of psychologicalproblems. In the report, DeSloover provided information about thedefendant's history of drug abuse and cited evidence that heavydrug use can lead to psychological problems.

We believe that counsel's failure to present DeSloover as awitness was essentially a matter of trial strategy. DeSloover'sreport was admitted into evidence over the State's objection. Inobjecting to the report, the State challenged both the witness'qualifications and her conclusions. Although the trial courtadmitted the report into evidence, the defendant chose not topresent her live testimony also. Defense counsel could haveviewed this arrangement as advantageous to the defendant, for thereport was admitted into evidence, but its author was not subjectedto cross-examination by the State. Defense counsel's decision notto call DeSloover to testify was essentially a question of strategy,and we will not attempt to second-guess that choice here.

The defendant also argues that counsel was ineffective forfailing to raise compulsion at the capital sentencing hearingconducted in this case. The defendant notes that althoughcompulsion is not a defense to a crime punishable by death, it mayqualify as a mitigating circumstance at a capital sentencinghearing. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(4).

As we noted earlier in this opinion, in rejecting the companionargument that counsel should have presented a compulsiondefense during the guilt phase of the proceedings, the defendanthas failed to provide any evidence in support of this theory of thecase. The defendant, in his brief, refers only to the defendant'sown statement that he told Rish that he had to do what he wasdoing to protect his family, her, and her son from some undefinedharm. In addition, the defendant makes vague references to thepossible involvement of others in these offenses. We do notbelieve that the defendant has presented sufficient grounds thatwould warrant a hearing or other relief on these allegations.

The defendant also complains that trial counsel and appellatecounsel failed to preserve objections to certain comments in theprosecutor's closing argument at the second stage of the capitalsentencing hearing. On direct appeal, this court found a number ofobjections waived. Edwards, 144 Ill. 2d at 175-76. The defendantfirst cites the prosecutor's comment that evidence of thedefendant's good family background, offered by the defense inmitigation, was actually aggravating. We consider this to be a faircomment on the evidence, and therefore counsel cannot beconsidered ineffective for failing to object to the remark. The Stateis not required to accept the defendant's characterization ofevidence offered in mitigation. In this case, one could argue thatthe defendant's later criminal conduct shows that he rejected hisupbringing, and that he turned to crime despite his favorablebackground.

The defendant also complains of the prosecutor's commentthat the jury should not consider sympathy in making its decision.We find no error in this remark, and therefore counsel cannot bedeemed ineffective for failing to object to it. The prosecutor'sstatement was entirely consistent with a jury instruction,previously approved by this court, advising jurors that sympathyshould not influence their sentencing decision. See People v.Walker, 109 Ill. 2d 484, 507 (1985); People v. Stewart, 104 Ill. 2d463, 493-94 (1984).

The defendant also takes issue with the prosecutor's argumenturging the jury to imagine the feelings of the victim as he wasplaced in the wooden box. A defense objection to this commentwas overruled. The State concedes that the comment was improper(see People v. Henderson, 142 Ill. 2d 258, 321-22 (1990); Peoplev. Spreitzer, 123 Ill. 2d 1, 37-38 (1988)) but contends thatappellate counsel's apparent failure to preserve the issue does notconstitute ineffective assistance. We agree. The remark wasisolated and fleeting, and we do not believe that it affected theoutcome of the sentencing hearing.

Finally, the defendant contends that trial counsel wasineffective for failing to object to comments by the prosecutor thatcalled his actions here less than human. The prosecutor stated,"What Danny Edwards did was not the actions of a human being,a civilized human being. They are the actions of something less."The defendant asserts that the prosecutor's argument was improperbecause it effectively equated him with an animal, and that counselwas ineffective when he did not preserve an objection to this partof the State's closing argument.

Even if the prosecutor's characterization of the defendant wasimproper, we do not believe that the comment was prejudicial tothe defendant, or that counsel was ineffective for failing topreserve an objection to it. Comments like the one challenged heredo not warrant reversal unless they result in substantial prejudiceto the defendant. People v. Coleman, 129 Ill. 2d 321, 347 (1989).The prosecutor's remark here was brief and isolated, and we donot believe that it could have denied the defendant a fairsentencing hearing.

VI

The defendant also challenges, on two separate grounds, themanner in which the jury was selected for trial and sentencing. Thedefendant first argues that the prosecutor improperly exercisedperemptory challenges against prospective jurors who expressedreservations about the death penalty but who were not removablefor cause under the principles announced in Witherspoon v.Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968),and its progeny. The defendant contends that the State may notexercise a challenge against a prospective juror because of his orher views regarding capital punishment. Rejecting the sameargument, this court has previously held that the Witherspoon lineof authority does not limit the prosecution's power to exerciseperemptory challenges against prospective jurors whose viewsabout the death penalty would not support a challenge for cause.See People v. Coleman, 168 Ill. 2d 509, 548-49 (1995); People v.Williams, 161 Ill. 2d 1, 55-56 (1994); People v. Howard, 147 Ill.2d 103, 136-38 (1991); People v. Stewart, 104 Ill. 2d 463, 481-82(1984). The defendant has presented no reason to depart fromthose decisions, and therefore we must reject the defendant'sargument here.

The defendant next challenges the State's exercise ofperemptory challenges against four black members of the venire,arguing that the prosecutor's actions violated the rule announcedin Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.1712 (1986). Although this court addressed the identical issue ondirect appeal, finding no violation of Batson, the defendantcontends that the question must now be reconsidered in light of theSupreme Court's decision in Powers v. Ohio, 499 U.S. 400, 113L. Ed. 2d 411, 111 S. Ct. 1364 (1991), which held that defendantsof any race have standing to challenge the race-based exclusion ofjurors. Contrary to the defendant's contention, however, this courtdid discuss Powers in the course of resolving the Batson questionon direct appeal. Edwards, 144 Ill. 2d at 150-54. We see no reasonto revisit this issue, and we adhere to our earlier decision.

VII

The defendant, in his final post-conviction argument,contends that his death sentence is the product of an impermissibledouble enhancement of his conviction for aggravated kidnapping.The State contends that the defendant has waived consideration ofthis issue because he failed to include the point in his post-conviction petitions. We agree. See People v. Johnson, 154 Ill. 2d227, 233 (1993); 725 ILCS 5/122-3 (West 1994). In any event, theargument is without merit. First, it is not clear that doubleenhancement occurred in this case. The defendant was chargedwith first degree murder and aggravated kidnapping under multipletheories, and the jury returned general verdicts of guilty for eachoffense. Multiple theories of aggravated kidnapping would havesupported both conviction on that offense and the establishment ofa statutory aggravating circumstance for the death penalty. SeePeople v. Terrell, 132 Ill. 2d 178, 221 (1989).

Second, this court has held that double enhancement ispermitted under the statutory aggravating circumstance used toestablish the defendant's eligibility for the death penalty in thiscase. This court has explained that section 9-1(b)(6) of theCriminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par.9-1(b)(6)), murder in the course of another felony, contemplatesthat the enhancement of certain felonies may also result in adefendant's eligibility for the death penalty. People v. Rissley, 165Ill. 2d 364, 392 (1995). In this case, then, the defendant'seligibility for the death penalty may stand, even if one assumesthat it was the product of a double enhancement.

* * *

For the reasons stated, the judgment of the circuit court ofKankakee County is affirmed. The clerk of this court is directed toenter an order setting Wednesday, May 16, 2001, as the date onwhich the sentence of death, entered in the circuit court ofKankakee County, is to be carried out. The defendant shall beexecuted in the manner provided by law. 725 ILCS 5/119-5 (West1998). The clerk of this court shall send a certified copy of themandate in this case to the Director of Corrections, to the wardenof Tamms Correctional Center, and to the warden of the institutionwhere the defendant is now confined.

Judgment affirmed.

CHIEF JUSTICE HARRISON, concurring in part anddissenting in part:

I agree that Edwards' convictions should not be disturbed. Inmy view, however, his sentence of death cannot be allowed tostand. For the reasons set forth in my partial concurrence andpartial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinoisdeath penalty law violates the eighth and fourteenth amendmentsto the United States Constitution (U.S. Const., amends. VIII, XIV)and article I, section 2, of the Illinois Constitution (Ill. Const.1970, art. I,