                           No. 2--03--0446                 filed: 8/1/06
_________________________________________________________________________
_____

                                          IN THE

                             APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____

THE PEOPLE OF THE STATE                    )      Appeal from the Circuit Court
OF ILLINOIS,                               )      of Boone County.
                                           )
       Plaintiff-Appellee,                 )
                                           )
v.                                         )      No. 98--CF--110
                                           )
BERNINA MATA,                              )
                                      Honorable
                                           )
                                      Gerald F. Grubb,
      Defendant-Appellant.            )     Judge, Presiding.
_________________________________________________________________________
_____

       JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

       Following a jury trial, the defendant, Bernina Mata, was convicted of first degree

murder (720 ILCS 5/9--1(a)(2) (West 1998)). The same jury found the defendant eligible

for the death penalty pursuant to section 9--1(b)(11) of the Criminal Code of 1961 (the

Criminal Code) (720 ILCS 5/9--1(b)(11) (West 1998)) and determined that there were no

mitigating factors sufficient to preclude the imposition of that sentence. Subsequently, the

trial court sentenced the defendant to death. The defendant directly appealed to the Illinois

Supreme Court, raising nine contentions. On January 11, 2003, former Governor George

Ryan commuted the defendant's death sentence to a term of natural life imprisonment

without the possibility of parole.

       Upon her appeal being transferred to this court, the defendant filed a motion

requesting to withdraw eight of her contentions. We granted this motion. The defendant's
No. 2--03--0446


sole remaining contention was that she was entitled to a new sentencing hearing because

the State failed to prove beyond a reasonable doubt that she was eligible for the death

penalty in that she committed murder in a cold, calculated, and premeditated manner. In

light of the fact that the defendant's death sentence had been commuted, we dismissed the

defendant's appeal as moot. See People v. Mata, 353 Ill. App. 3d 784 (2004).

       On December 15, 2005, the Illinois Supreme Court reversed the judgment of this

court, reasoning that the defendant's contention did not concern her sentence. See People

v. Mata, 217 Ill. 2d 535 (2005). Rather, pursuant to Apprendi v. New Jersey, 530 U.S. 466,

147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the defendant's contention concerned the

sufficiency of proof on a "functional equivalent" of an element of the offense of which she

was convicted. The supreme court remanded the cause with the direction that we consider

the merits of the defendant's contention. See Mata, 217 Ill. 2d at 551-52.

       Upon remand to this court, the defendant requested leave to file a supplemental

brief raising the additional argument that due to several errors of constitutional magnitude,

she was denied a fair sentencing hearing. We granted the defendant's motion. We now

address the merits of the defendant's two contentions on appeal: (1) whether the defendant

was proved eligible for the death penalty beyond a reasonable doubt and (2) whether the

defendant was denied a fair sentencing hearing due to inadequate jury instructions and

misleading arguments by the State.

                                     BACKGROUND

       The facts relevant to this appeal are as follows. Following a jury trial in October

1999, the defendant was convicted of first degree murder (720 ILCS 9--1(a)(2) (West

1998)), in connection with the stabbing death of John Draheim. At the trial, Russell


                                            -2-
No. 2--03--0446


Grundmeier testified that in June 1998, the defendant was his roommate. At that time,

Russell was in love with the defendant and believed that the defendant was in love with

him. Russell and the defendant had a sexual relationship. However, the defendant had

informed Russell that she was a lesbian, and the two of them had an understanding that

the defendant could have sex with women.

       On the evening of June 27, 1998, Russell and the defendant went to Sporty's bar in

Belvidere to celebrate Russell's birthday. Around 7 p.m., Russell dropped off the defendant

at the bar and then left to pick up some Listerine for the defendant's newly-pierced tongue,

which needed to be rinsed every hour. Russell returned to the bar around 7:15 p.m. and

found the defendant sitting with a man she introduced as John.

       Russell remained at the bar until 10 p.m. While he was there, the defendant was

drinking heavily, flirting, and walking around. Before he left the bar, the defendant walked

over to Russell and whispered to him that she was going to kill John and that he was going

to help. The defendant's tone of voice was angry. Russell responded that he was not

going to help. The defendant sat down next to John, and Russell left the bar soon after.

       Russell arrived home around 10:15 p.m. The defendant arrived home 15 to 20

minutes later, with James Clark, a neighbor of theirs, and John. The four of them talked

and, with the exception of James, drank alcohol. James left after about 20 minutes. The

defendant and John sat on the couch and flirted with each other. Russell got mad and

went outside because he thought that he was supposed to be the only guy the defendant

was with. When Russell eventually went back inside, he heard moaning coming from the

defendant's bedroom.




                                            -3-
No. 2--03--0446

      Russell went into the defendant's room. The defendant and John were having what

appeared to be consensual sex. Russell grabbed John by the arm and pulled him off of the

defendant. The two men struggled and the defendant slipped off the bed and out of sight.

Russell, who weighed around 300 pounds, was able to get control of John, who weighed

only about 180 pounds. As Russell was holding John, the defendant appeared with a knife

and stabbed John in the chest several times. Russell was shocked and sickened.

However, he eventually helped the defendant dispose of John's body and clean up her

bloodstained bedroom.

      Detective Kurt Ditzler of the Winnebago County sheriff's police 1 testified that he

interviewed the defendant regarding John's disappearance. During the first interview, the

defendant stated that on June 27, 1998, she was at Sporty's bar for her roommate

Russell's birthday. She struck up a conversation at the bar with a man named John, whom

she had seen in the bar on prior occasions. The defendant stated that John had given her

a ride home and ended up coming inside. John left at approximately 11:30 p.m. During the

second interview, the defendant admitted that she had stabbed John in her apartment on

June 27. The defendant claimed that she did so because John was trying to rape her.

During a third interview, the defendant admitted that John had not tried to rape her. The

defendant maintained that she and John never had sex.

      Deputy Daniel Liston of the Winnebago County sheriff's police testified that he

searched the defendant's room, pursuant to her consent. Deputy Liston found stains that


      1
          The Winnebago County sheriff's police joined the investigation because the victim's

body was found in Winnebago County.



                                             -4-
No. 2--03--0446

appeared to be blood on the bedroom closet doors, two pillow cases, and two towels. The

stains tested positive for blood. Deputy Liston also testified that a decomposed body, later

determined through dental records to be John, was found on July 13, 1998, in a secluded

wooded area in Winnebago County.

       Inspector Dexter Bartlett, a crime scene investigator with the Illinois State Police,

was qualified as an expert in bloodstain analysis. Inspector Bartlett testified that he

assisted in the investigation of the scene of the stabbing. Inspector Bartlett testified that

there were six bloodstains on the closet doors he examined. Inspector Bartlett opined that

based on the cast-off patterns of the blood spatters, the victim had been stabbed a

minimum of six times. According to Inspector Bartlett, Russell's version of the events was

consistent with the blood spatters found.

       Dr. Larry Blum, a forensic pathologist engaged in private practice, testified that he

performed an autopsy on John. Dr. Blum testified that a stab wound to the chest caused

John's death. John suffered a minimum of three stab wounds, all of which penetrated the

heart. Because the body was badly deteriorated, Dr. Blum could not determine the

maximum number of stab wounds John could have suffered.

       Henrietta Glover testified that on July 14, 1998, she was in the Boone County jail,

having been arrested for forgery. Glover asked the defendant if she was really in for

murder. The defendant pulled out her papers and stated, "Yeah, I killed that motherfucker."

The defendant appeared happy. The defendant stated that she killed the victim because

he had made her angry. The victim had touched the defendant on her shoulder and she

told him to get his hands off of her or she would "snap his neck." The victim then touched

her on the thigh. The defendant stated that she invited the victim to her house so she could


                                            -5-
No. 2--03--0446

kill him. The defendant led the victim to believe that they would have sex. The defendant

stated that she stabbed the victim seven or eight times. The defendant became excited

and exclaimed, "You should have saw the blood, it was cool. It shot out thick as your

thumb." The defendant also stated that she would be on her way to Florida if Russell had

not "ratted" her out. The defendant was angry at Russell for "ratting" on her, and more than

10 times she threatened to kill him.         Olicia Taylor testified that on July 14, 1998, she

was in the Boone County jail on charges of forgery. Taylor asked the defendant what she

was in for and the defendant replied that she was in for murder. The defendant told Taylor

she had killed a man in a bar who had asked her out on a date. The defendant explained

that she became angry when the man touched her, because she is a lesbian. The

defendant stated that she asked the man home, intending to kill him.

       Angela Wright testified that on July 15, 1998, she was detained in the Boone County

jail. The defendant confessed to Wright that she had stabbed a man. The defendant told

Wright that after the man had touched her for a second time she decided to "teach him a

lesson." The defendant denied ever having sex with the victim and claimed never to have

had sex with a man. The defendant told Wright that she hated men.

       Detective Daniel Smaha of the Belvidere police department testified that he obtained

an order permitting him to use an eavesdropping device on Glover for the purpose of

obtaining further information from the defendant. Several statements were elicited from the

defendant, including (1) "the rush from killing somebody is a much more better rush than a

fucking fantastic orgasm"; (2) "if they do some more checking, if they really want to check it

out, they will find out it is premeditated, and that's worse"; and (3) "I had an alibi that was so

fucking airtight that I had them believing it."      Dr. David Levine, a licensed psychiatrist,


                                               -6-
No. 2--03--0446

testified on behalf of the defendant. Dr. Levine first had contact with the defendant on

December 5, 1997, at the Janet Wattles Community Mental Health Center. The defendant

reported having been sexually abused as a child by her stepfather and having a history of

alcohol, marijuana, and cocaine use.        The defendant also talked about having

hallucinations. The defendant told Levine that sometimes when she hallucinated she would

hear the voice of her grandfather, who was important in her life. Dr. Levine diagnosed the

defendant with chronic depression and substance abuse by history. Dr. Levine prescribed

Wellbutrin for the defendant.

      Dr. Levine saw the defendant again on December 19, 1997. He believed that the

defendant was not responding to her medication, although she was not suffering from

hallucinations at that time. Dr. Levine next saw the defendant on January 30, 1998, and

he believed that the defendant was improving.       The defendant reported having no

hallucinations. Dr. Levine saw the defendant on April 22, 1998, and the defendant was

guarded and less open. The defendant reported that she had gotten angry at someone

while at work at Sam's Club in the auto department and had thrown a tire in that person's

direction. On May 22, 1998, Dr. Levine saw the defendant, and she appeared well.

However, the defendant's roommate had called the defendant's case manager and

reported that the defendant had not been taking her medicine and was becoming difficult to

live with. Dr. Levine explained to the defendant why taking her medicine was important.

May 22 was the last time Dr. Levine saw the defendant before the June 27 incident.

      Dr. Levine testified that he never knew the defendant to be violent or aggressive,

although when she was not feeling well she was guarded and mistrustful. Alcohol could




                                           -7-
No. 2--03--0446

have an adverse effect on someone with the defendant's mental state. Dr. Levine did not

have an opinion as to whether the defendant was sane at the time of her offense.

       Cynthia Lloyd testified that she met the defendant in May 1998. They became

intimately involved in June 1998. Cynthia and the defendant would occasionally kiss or

hold hands in front of Russell. Russell was never very friendly to Cynthia.

       The morning of June 27, 1998, the defendant was at Cynthia's house in Ingleside,

Illinois. As far as Cynthia was aware, the defendant was not taking her medication and had

not drunk any alcohol. The defendant left Cynthia's house and went home sometime

during the day. Cynthia talked to the defendant briefly around 7:30 p.m. that evening, after

the defendant had her tongue pierced. Cynthia talked to the defendant again at 11 p.m.

that evening.

       During the 11 p.m. call, the defendant was screaming and crying. The defendant

told Cynthia that a man had tried to rape her and that there was a dead man in her

bedroom. The defendant told Cynthia that she could not talk and to call back at 1:30 a.m.

Cynthia called the defendant back around 11:30 p.m. and Russell answered the phone.

Cynthia spoke briefly with Russell, during which time she could hear the defendant crying in

the background. On June 28, 1998, the defendant went to stay with Cynthia and remained

there until she was arrested.

       Dr. Frank Cushing, a licensed psychologist, testified that he evaluated the defendant

as to her mental state at the time of the crime and her competency to stand trial. Dr.

Cushing met with the defendant in the Boone County jail five times between November 6,

1998, and March 19, 1999. According to Dr. Cushing, the defendant suffered from severe

chronic post-traumatic stress disorder, stemming from being sexually abused as a child by


                                            -8-
No. 2--03--0446

her stepfather. Dr. Cushing testified that besides the sexual abuse of the defendant by her

stepfather, the defendant's mother indicated to him that the defendant's father may have

also sexually abused her and the defendant's father may have allowed his friends to abuse

her. The defendant was in remission from alcohol and substance abuse and was being

treated with psychotropic medicine.

        During the evaluations, the defendant related to Dr. Cushing that on the night of the

stabbing, she saw her stepfather's face on John's body. Dr. Cushing explained that

flashbacks such as those the defendant reported experiencing are usually caused by

stimuli that recall the original trauma. The defendant reportedly never received any care for

her rape trauma. Dr. Cushing and seven other mental health professionals have diagnosed

the defendant with borderline personality disorder.         Dr.   Cushing opined that the

defendant's significant mental illness interfered with her ability to think through all of the

ramifications and consequences of her actions. Dr. Cushing did not believe that the

defendant would have been able to premeditate this crime. Dr. Cushing believed, however,

that the defendant was sane on June 27, 1998, and that she was able to appreciate the

criminality of her actions.

       David Wheeler, a case manager with the Illinois Department of Children and Family

Services (DCFS), testified that a case was opened for the defendant in 1974 when she was

sexually abused by her mother's boyfriend. The defendant was placed in foster care but

then sent home after four or five months when it was determined that the abuser was no

longer in the mother's home. Wheeler had contact with the defendant again in 1983 after

the defendant had developed a poor relationship with her mother, who felt she had no




                                             -9-
No. 2--03--0446

control over the defendant. DCFS took custody of the defendant, and she remained in

foster care and other residential placement for the next five years.

       Dr. Edward Mahoney, a psychologist retained by the State, testified in rebuttal that

he interviewed the defendant four times between March 30, 1999, and May 28, 1999. Dr.

Mahoney believed that the defendant was sane on June 27, 1998. Dr. Mahoney explained

that at the time of the offense, the defendant knew the wrongfulness of her acts and was

able to conform her behavior to the requirements of the law. In Dr. Mahoney's opinion, the

defendant was able to premeditate the crime. Dr. Mahoney opined that the defendant

suffered from depression, borderline personality disorder, and antisocial personality

disorder. Dr. Mahoney did not believe that the defendant suffered from post-traumatic

stress disorder, although he acknowledged that many of the symptoms were present. Dr.

Mahoney opined that the defendant's IQ is in the low average range.

       Following the above testimony, the jury found the defendant guilty of first degree

murder. Subsequently, the case proceeded to a two-part death penalty hearing. During

the eligibility phase of the death penalty hearing, neither party offered any additional

evidence. The State argued that the defendant committed the murder in a cold, calculated,

and premeditated manner pursuant to a preconceived plan. The State argued that the

testimony of Russell, Glover, Taylor, and Wright established that the defendant planned

the murder two to three hours in advance. The defense argued that the stabbing was the

result of a passionate, angry fight and that the murder was not cold, calculated, or

premeditated. The defense further argued that all three individuals were drunk and out of

control on the night of the incident. In rebuttal, the State argued that there was no "magical

meaning" to the terms "premeditated" and "preconceived plan." The State further argued,


                                            -10-
No. 2--03--0446

"A preconceived plan can occur ten seconds before the act actually occurs. Preconceived

actually means that you came up with that plan before you committed the act. ***

Premeditation is simply making up your mind what you will do ahead of time."

       The jury was instructed pursuant to Illinois Pattern Jury Instructions, Criminal, No.

7B.07 (4th ed. 2000) as follows:

              "Before the defendant may be found eligible for a death sentence under the

       law the State must prove the following propositions:

              First proposition: That the defendant was 18 years old or older at the time of

       the commission of the murder of which she was found guilty at the trial of this case;

       and

              Second proposition: That the following statutory aggravating factor exists;

              The murder was committed in a cold, calculated, and premeditated manner

       pursuant to a preconceived plan, scheme, or design to take a human life by unlawful

       means, and the conduct of the defendant created a reasonable expectation that the

       death of a human being would result therefrom.

              If you find from your consideration of all of the evidence that the first and

       second propositions have been proved beyond a reasonable doubt, then the

       defendant is eligible for a death sentence.

              If you cannot unanimously find that both the first and second propositions

       have been proved beyond a reasonable doubt, then the defendant is not eligible for

       a death sentence."

After deliberating for an hour, the jury found the defendant eligible for the death penalty

pursuant to section 9--1(b)(11) of the Criminal Code.




                                           -11-
No. 2--03--0446

         At the sentencing phase of the death penalty hearing, the State offered aggravating

evidence as to the defendant's lack of remorse, a threatening letter the defendant had sent

to Russell, and the victim impact testimony of John's sister. The defendant offered

mitigating evidence as to the defendant's mental illness, her history of sexual abuse, her

lack of significant criminal history, and her feelings of remorse. After deliberating for five

hours, the jury informed the trial court that it was deadlocked as to whether to impose the

death penalty. Over the objection of the defense, the trial court informed the jury that it

needed to reach a unanimous verdict in that "in order to return a verdict, all jurors must

agree to it." After eight more hours of deliberation, the jury determined that there were no

mitigating factors sufficient to preclude the death penalty and that the trial court should

impose a sentence of death.

         The defendant's first contention on appeal is that the State failed to prove beyond a

reasonable doubt that she was eligible for the death penalty in that she committed the

murder in a cold, calculated, and premeditated manner.

         In reviewing the sufficiency of the evidence to support a finding of death eligibility, we determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the elements necessary to establish the defendant's death eligibility beyond a reasonable doubt. People v.

Emerson, 189 Ill. 2d 436, 474-75 (2000). Determinations of the credibility of witnesses, the

weight to be given their testimony, and the reasonable inferences to be drawn from the

evidence are the trier of fact's responsibility. People v. Ramsey, 205 Ill. 2d 287, 292

(2002).

         In this case, the defendant was found eligible for the death penalty solely under the

aggravating factor in section 9--1(b)(11) of the Criminal Code. Section 9--1(b)(11) of the

Criminal Code provides for death penalty eligibility where (1) the defendant was 18 years or older at the time of


                                                        -12-
No. 2--03--0446

the offense and where (2) Athe murder was committed in a cold, calculated and premeditated manner pursuant to

a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant

created a reasonable expectation that the death of a human being would result therefrom." 720 ILCS

5/9--1(b)(11) (West 1998). The defendant does not dispute that she was over the age of 18 when she

committed the offense. Rather, the defendant challenges that the murder was committed in a cold, calculated,

and premeditated manner.

        The terms "cold" and "calculated and premeditated" as used in section 9--1(b)(11) of the Criminal

Code provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the

many cases in which it is not. People v. Williams, 193 Ill. 2d 1, 36 (2000). For a murder to be

cold, it must be "not motivated by mercy or the emotion of the moment." The defendant must " 'kill without

feeling or sympathy.' " People v. Brown, 169 Ill. 2d 132, 166 (1996). For a murder to be

calculated and premeditated pursuant to a preconceived plan, scheme, or design, it must have been "deliberated or

reflected upon for an extended period of time." Williams, 193 Ill. 2d at 37. Words such as

"premeditated" and "design" import forethought, careful reflection, or a deliberately arranged purpose, ideas all

involving in their structures the essential element of time. Williams, 193 Ill. 2d at 31. A preconceived

plan, scheme, or design is one that is "thought out well in advance of the crime." Williams, 193 Ill. 2d at

31. As artfully explained by Representative Ed Petka during the legislative debates concerning section 9--

1(b)(11), "This provision is intended to apply to those situations in which a defendant basically takes the life of

another person after deliberating upon it for extended periods of time." 85 Ill. Gen. Assem., House

Proceedings, June 29, 1987, at 55 (statements of Representative Petka).

        In People v. Macri, 185 Ill. 2d 1 (1998), the supreme court upheld a finding of death penalty

eligibility under section 9--1(b)(11) where the defendant murdered a roommate with a crowbar. Ten months

prior, the defendant had told a friend of his that he intended to hit the victim over the head with a crowbar, rape




                                                      -13-
No. 2--03--0446

her, steal her car, and flee to New York City, all of which eventually transpired. Macri, 185 Ill. 2d at

54.

        In People v. Haynes, 174 Ill. 2d 204 (1996), the supreme court upheld a finding of death

penalty eligibility under section 9--1(b)(11) where the defendant, over a period of days, contemplated the murder

of a cosmetic surgeon. The defendant had decided to act out against perpetrators of ' "fake Aryan cosmetics.' "

Haynes, 174 Ill. 2d at 255. He selected a cosmetic surgeon out of the phone book and a few days prior

to the crime made an appointment with the doctor under a false name. Haynes, 174 Ill. 2d at 255. The

defendant shot the doctor during his appointment. Haynes, 174 Ill. 2d at 255.

        In People v. Williams, 173 Ill. 2d 48 (1996), the supreme court upheld a death penalty

eligibility finding under section 9--1(b)(11) where the defendant contemplated the murder of his ex-fiancée a day

prior to shooting her. The day before the murder, the defendant had attacked his ex-fiancée and her new

boyfriend with a butcher knife and threatened to kill them if he saw them together again. The next day, the

defendant shot his ex-fiancée after seeing her with her new boyfriend at the mall.

        In People v. Brown, 169 Ill. 2d 132 (1996), the supreme court upheld a finding of death

penalty eligibility under section 9--1(b)(11) where the defendant devised a plan to murder a rival gang member

several hours in advance. Three hours prior to the killing, the defendant had obtained a rental car and his

accomplice had obtained a gun. Brown, 169 Ill. 2d at 166.

        Whereas, in People v. Williams, 193 Ill. 2d 1 (2000), the supreme court overturned a

finding of death penalty eligibility under section 9--1(b)(11) where the defendant and an

accomplice entered a convenience store, robbed it, and shot the clerk. A video camera

recording showed that the defendant took the store clerk behind the counter and shot her

as she was opening the cash register drawer for him. Williams, 193 Ill. 2d at 38. However,

there was no evidence that the defendant considered killing the store clerk " 'well in

advance' [citation] of the crime." Williams, 193 Ill. 2d at 38.


                                                     -14-
No. 2--03--0446

        In the present case, the jury could have found beyond a reasonable doubt that the

defendant committed the murder in a cold, calculated, and premeditated manner pursuant

to a preconceived plan, scheme, or design to take a human life by unlawful means. The

murder was certainly cold or without feeling or sympathy. Furthermore, ample evidence supports that the

murder was deliberated or reflected upon for an extended period of time and had been planned out well in

advance. Russell testified that when he returned to the bar around 7:15 p.m., the

defendant was sitting with John. Shortly before Russell left the bar around 10 p.m., the

defendant told him that she was going to kill John and that he was going to help. The

defendant arrived home with John around 10:30 p.m. About one-half hour later, Russell

observed the defendant and John in what appeared to be consensual sex. Russell pulled

John off of the defendant and the two men struggled. As Russell was holding John, the

defendant appeared with a knife and stabbed John in the chest numerous times. The

defendant admitted to several of her cell mates that she decided to kill John because he

had made her angry in the bar. John had touched her and she did not like that, because

she is a lesbian. The defendant admitted to her cell mates that she invited John to her

house so she could kill him and that she had led John to believe that they would have sex.

In sum, the evidence was sufficient to prove the defendant eligible for the death penalty

under section 9--(b)(11) of the Criminal Code.

        The defendant's next contention on appeal is that the eligibility stage of her

sentencing hearing was marred by constitutional error. More specifically, the defendant

contends that due to inadequate jury instructions and misleading arguments by the State,

the defendant was denied a fair sentencing hearing.                   The defendant argues that

premeditation, pursuant to a preconceived plan, requires "both a substantial period of time

and proof of reflection or deliberation" and that the jury instructions did not explain the


                                                 -15-
No. 2--03--0446

requirement of planning over time. Furthermore, the defendant argues that the State

misinformed the jury when it stated that "a preconceived plan can occur ten seconds before

the act actually occurs" and that "premeditation is simply making up your mind what you will

do ahead of time."

          The defendant has forfeited review of this claim. See People v. Enoch, 122 Ill. 2d

176, 185-87 (1988). During the instruction conference of the eligibility phase, the defense

made no objection to the proposed jury instructions. Nor did the defense object when the

State gave its supposed faulty argument. Furthermore, the defendant did not include these

claims in any of her posttrial motions. The doctrine of waiver has been applied to errors

made at the sentencing phase of a death penalty case. See Macri, 185 Ill. 2d at 72.

Nevertheless, the defendant contends that the doctrine of plain error applies. We disagree.

       The plain error doctrine applies when the evidence is closely balanced or when the

error is of such magnitude that it deprives the defendant of a fair hearing. Macri, 185 Ill. 2d

at 72. The evidence in this case was not closely balanced. The defendant contemplated

the murder of her victim for several hours. She admitted to becoming upset sometime

between 7:30 p.m. and 10 p.m. in the bar when John touched her. She then invited John

home with her and made him believe that they would have sex, all the while intending to kill

him. The defendant eventually carried out her plan sometime around 11 p.m., when she

stabbed John after having sex with him. Furthermore, the alleged errors were not of such

magnitude that the defendant was deprived of a fair hearing. First, the record reveals that

the jury was given all of the appropriate instructions in the Illinois Pattern Jury Instructions

manual.     Second, the State's two isolated comments concerning the meanings of

premeditation and a preconceived plan, even if arguendo they were inaccurate, could not

have influenced the jury's decision. A review of the State's argument as a whole shows


                                             -16-
No. 2--03--0446

that the State consistently argued that the defendant devised her plan to murder John

several hours in advance. Accordingly, we do not believe that the defendant was deprived

of a fair death penalty eligibility hearing.

       For the foregoing reasons, the judgement of the circuit court of Boone County is

affirmed.

       Affirmed.

       McLAREN and BYRNE, JJ., concur.




                                               -17-
