Mannion told Mulero that by law she can be sentenced to natural life or death for the May 12, 1992, murders of Hector Reyes, 21, and Jimmy Cruz, 22, who both lived on the West Side. He set her sentencing hearing for Nov. 3.

Last month, Jacqueline Montanez, 17, formerly of 1847 N. Mozart St., was sentenced to life in prison after a jury trial. Montanez, convicted of shooting Reyes, was 15 when the murders occurred and by law was too young to be eligible for a death sentence.

Last week, Madeline Mendoza, 17, of 2618 W. Cortez St., pleaded guilty to one count of murder and one count of conspiracy to commit murder. Mannion sentenced her to 35 years in prison.

Supreme Court of Illinois

Docket No. 78932--Agenda 1--January 1997.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
MARILYN MULERO, Appellant.

Opinion filed May 22, 1997.

JUSTICE BILANDIC delivered the opinion of the court:

Defendant, Marilyn Mulero, was charged by indictment in Cook County with four counts of murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1992)), two counts of conspiracy to commit murder (720 ILCS 5/8--2, 9--1 (West 1992)) and one count of unlawful use of a firearm by a felon (720 ILCS 5/24--1.1(a) (West 1992)), arising out of the May 12, 1992, shooting deaths of Jimmy Cruz and Hector Reyes. Defendant subsequently pled guilty to the four counts of murder. The trial court accepted defendant's guilty pleas and entered findings of guilt on all four counts of murder. Finding that certain counts merged with others, the trial court entered judgment on two counts of intentional murder.

Defendant requested a jury for her capital sentencing hearing. The jury found defendant eligible for the death penalty based upon two statutory aggravating factors (720 ILCS 5/9--1(b)(3), (b)(11) (West 1992)). After considering the evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, 4(b); 134 Ill. 2d Rs. 603, 609(a).

For the reasons that follow, we affirm defendant's convictions for murder but vacate defendant's sentence of death and remand for a new sentencing hearing.

FACTS

On May 12, 1992, Jimmy Cruz and Hector Reyes were murdered in Humboldt Park, in Chicago, Illinois, at approximately 12:15 a.m. Defendant, who was 21 years of age, was arrested on May 13, 1992. On May 14, 1992, defendant gave a court-reported statement to the police and an assistant State's Attorney. After waiving her Miranda rights, defendant was asked about the events that occurred on May 12, 1992. In her statement, defendant indicated that she belonged to the Maniac Latin Disciples gang. Defendant stated that on May 11, 1992, she, Jacqueline Montanez and Madeline Mendoza, who were 15 and 16 years of age respectively, decided to shoot some members of the Latin Kings, a rival gang. The shootings were to avenge the death of a friend named Mudo, who was killed by some Latin Kings a couple of days earlier. Defendant stated that she obtained a small silver automatic gun to carry out the shootings. Defendant borrowed her brother's car and drove Montanez and Mendoza to look for some Latin Kings. They encountered Cruz and Reyes, who were Latin Kings, in another car. The three women and the victims all agreed to go to Humboldt Park. Defendant stated that she intended to kill Cruz and Reyes in the park. At the park, the group walked to the area of a public bathroom. According to defendant, Montanez went into the bathroom and shot Reyes, with the gun defendant had provided, while defendant remained outside. Montanez left the bathroom and gave defendant the gun. Defendant then shot Cruz in the back of the head. Defendant, Montanez and Mendoza then drove away. Both victims died of the gunshot wounds.

On June 19, 1992, defendant was charged with the murders and conspiracy to commit the murders. Montanez and Mendoza were also charged with multiple counts of murder and conspiracy to commit the murders.

On February 26, 1993, defendant filed a motion to suppress her May 14, 1992, statement to the police. In her motion to suppress, defendant alleged the following: (1) she was not properly informed of her rights pursuant to Miranda; (2) she did not understand those rights; (3) she was not provided with an attorney after requesting to speak with one; and (4) the police psychologically coerced her into making a statement. At the suppression hearing, defendant testified that, after she was arrested and asked what happened in Humboldt Park, she told the police she did not know anything about the murders. Defendant further testified that she confessed to the crimes only after the police "coerced" her to do so. After considering all the evidence presented at the suppression hearing, the trial court denied the motion.

On September 27, 1993, defendant entered a plea of guilty for the murders of Jimmy Cruz and Hector Reyes. After the trial court admonished defendant, it accepted the plea as voluntary, knowing and intelligent. The trial court entered a judgment of guilty of two counts of intentional murder. The case then proceeded to a capital sentencing hearing before a jury.

The State presented the following testimony at the eligibility phase. John Dolan, a Chicago police detective, testified that he was dispatched to Humboldt Park on May 12, 1992, to respond to a report of a shooting. Once in Humboldt Park, he found Cruz and Reyes shot to death. Detective Dolan observed Cruz lying on the sidewalk with a .25-caliber cartridge casing lying within two feet of his body. Reyes was lying on the floor of a restroom and a bullet was located three feet from his head.

Dr. Nancy Jones, a forensic pathologist and assistant medical examiner for Cook County, testified that Jimmy Cruz, a 22-year-old male, and Hector Reyes, a 21-year-old male, both died as a result of gunshot wounds to the back of the head. Dr. Jones determined that Reyes was killed by a bullet that entered the center part of the back of his head and exited through his left eye lid. Given the shape of the entrance wound, she opined that the muzzle of the gun was held directly in contact with Reyes' head at the time the bullet was fired. With respect to Cruz, Dr. Jones found that he was killed by a bullet that entered the lower part of the back of his head. According to Dr. Jones, the gun was probably held within one or two inches of Cruz's head at the time it was fired.

Ivette Rodriguez testified about events occurring before and after the murders of Cruz and Reyes. On May 11, 1992, at about 11 or 11:30 p.m., Rodriguez saw defendant driving a white car with Montanez and Mendoza inside the car. According to Rodriguez, they invited her to go "make a hit with them and roll on some flakes," which meant to kill or fight a rival gang, namely, the Latin Kings. She refused. Approximately 90 minutes later, Rodriguez again saw defendant, Montanez and Mendoza in the neighborhood. Rodriguez testified that defendant told her "we got 'em, we got 'em ... we got the Kings." When Rodriguez called defendant a liar, Montanez pointed to the back of her head and said "yeah we did ... I shot him in the back of the head." Late in the evening on May 12, 1992, Rodriguez informed the police about the murders following her arrest for possession of a controlled substance. On May 13, 1992, Rodriguez accompanied the police in an undercover surveillance of a funeral home, where defendant, Montanez and Mendoza were attending a wake for Mudo. Rodriguez identified defendant and Montanez. The police then arrested defendant and Montanez.

Detective Ernest Halvorsen testified about the events after defendant's arrest. Detective Halvorsen stated that he took part in the arrest of defendant and Montanez after Rodriguez identified them. Mendoza was arrested two days later. After arriving at the police station, Detective Halvorsen placed Montanez and defendant in separate interview rooms. Following his interview with Montanez, he gave defendant Miranda warnings. Defendant indicated that she understood her rights and agreed to speak with him. During their conversation, Detective Halvorsen told defendant that she was under arrest for the murders of Cruz and Reyes, who were killed in Humboldt Park. Initially, defendant denied knowing anything about the murders. The detective then informed defendant that Montanez gave a complete statement of what occurred in Humboldt Park, including defendant's involvement. Defendant then agreed to give a statement.

According to Detective Halvorsen, defendant told him that she was a member of the Maniac Latin Disciples street gang. Defendant, Montanez and Mendoza had talked about obtaining revenge against the Latin Kings for murdering their friend Mudo. They decided to "go on a mission ... and shoot some Kings." Defendant obtained a small silver automatic pistol and borrowed a white car from her brother. Defendant, along with Montanez and Mendoza, then drove over to the Latin Kings neighborhood for the purpose of shooting any Latin King they saw on the street. As they were driving, a car pulled alongside of them that contained two men, Cruz and Reyes. Defendant informed Detective Halvorsen that Montanez told her the two men were "flakes," that is, Latin Kings. Defendant, Montanez and Mendoza invited Cruz and Reyes to "party" in Humboldt Park. Defendant told Detective Halvorsen that they knew they were going to kill Cruz and Reyes when they arrived at the park. Once in the park, Montanez walked into a bathroom with Reyes and shot him in the back of the head. Montanez then handed the gun to defendant. Defendant walked up behind Cruz and shot him in the back of the head. The three girls then went back to their neighborhood. Detective Halvorsen described defendant's demeanor at the time of her statement as arrogant and cocky. According to Detective Halvorsen, defendant was proud of herself because she had performed a mission for her "nation." In Detective Halvorsen's opinion, defendant did not appear remorseful during her conversations with him.

John Dillon, an assistant State's Attorney for Cook County, testified that when he arrived at the police station on May 14, 1992, he first spoke with Montanez, who gave a court-reported statement. Next, Assistant State's Attorney Dillon spoke with defendant after advising her of Miranda warnings, which she claimed to understand and waived. Defendant agreed to give a court-reported statement. During defendant's oral statement, she indicated that there was a celebration after the murders. Assistant State's Attorney Dillon stated that defendant's demeanor during their conversation was very calm. Defendant was in control of herself and did not indicate any remorse for her actions. It appeared to Assistant State's Attorney Dillon that defendant was very proud of what she had done.

The State concluded its case at the eligibility phase by presenting evidence by stipulation. It was stipulated that James Tracy, a firearms examiner with the Chicago police department crime laboratory, would testify that the bullet taken from Cruz's body and the bullet found next to Reyes' body were .25-caliber bullets, and that the cartridge casing found near Cruz's body was a .25-caliber cartridge. Also admitted into evidence was a certified copy of defendant's indictment and conviction following her guilty plea. The State then rested. The defense presented no evidence at the eligibility phase.

After considering the evidence, the jury found beyond a reasonable doubt that defendant was eligible for the death penalty under the following aggravating factors: (1) the murder was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)) and (2) defendant had been convicted of murdering two or more persons (720 ILCS 5/9--1(b)(3) (West 1992)).

In the second phase of the sentencing hearing, the State presented the following evidence in aggravation. David Lavin and Sandra Stavropoulos, Cook County assistant State's Attorneys, testified regarding their previous prosecutions of defendant. Lavin stated that defendant pled guilty on March 28, 1990, to two charges of delivery of a controlled substance. Defendant received two years' probation and served 30 days in the county jail. On March 2, 1991, while on probation, defendant was arrested for selling cocaine to an undercover officer. Stavropoulos stated that on July 1, 1991, defendant pled guilty to delivery of a controlled substance and received a three-year prison term. Defendant was paroled on February 28, 1992.

Joanne Roberts testified for the State about her encounters with defendant in jail. On March 27, 1993, Roberts had been arrested for armed robbery. While Roberts was in Cook County jail, she met defendant, whom she knew was a Maniac Latin Disciple. Roberts stated that in June of 1993, while in jail together, defendant asked her to kill Jackie Montanez because she was going to testify against her. When Roberts refused, defendant informed her that "she would take care of it herself." After relaying this information to the prosecutors, Roberts was released from jail and placed on an electronic home monitoring system for her own safety. According to Roberts, no promises were made to her regarding her pending charges in exchange for her testimony. Roberts then testified about threatening phone calls she received from defendant and an unknown male member of the Maniac Latin Disciples prior to her testimony at this sentencing hearing.

Finally, Anthony Riccio, a detective for the Chicago police department, who at the time of the murder was assigned to the gang crimes unit and was familiar with the street gangs in the Humboldt Park area, testified for the State. Detective Riccio explained a news videotape taken of defendant after she confessed to the murders. Detective Riccio testified that as he escorted defendant through the police station after her confession, television news cameras captured her shouting gang slogans and flashing gang signals with her hands. As the videotape was played to the jury, Detective Riccio explained that defendant took her hand and placed it over her heart, which meant that what she was about to say and do was "from her heart." Next, defendant's hand was shown pointing five fingers downward, which represented a disrespectful gesture to the Latin Kings. Defendant then flipped her hand in an upright position, like a pitchfork, to show her allegiance to the Maniac Latin Disciples. Defendant also stated "KK," which Detective Riccio stated meant "king killers" and was a form of disrespect to the Latin Kings.

Following Detective Riccio's testimony, the State concluded the aggravation portion of the sentencing hearing. Defendant presented the following evidence in mitigation. Four individuals
who testified on behalf of defendant were persons she had encountered while in Cook County jail. Joseph Widdington, a teacher in the PACE program (Program Active for Correctional Education), testified that defendant was a tutor in this program. Widdington described defendant as a quiet person who wrote poetry. In Widdington's opinion, defendant was the type of person who had talent but never used it. Gloria Brookins, a social worker and counselor for the PACE program, testified that defendant helped her with other women with respect to peer tutoring, organizing socials and monthly activities. Brookins stated that she never saw defendant threaten anyone in the program. Rather, defendant was friendly and well-liked. Sergeant Sharon Smith, a correctional officer in Cook County jail, stated that defendant was a quiet, nice, respectful, and affable person. She never witnessed defendant engage in gang-related behavior. According to Sergeant Smith, defendant had an easygoing disposition and a positive attitude. Martin Lowery, another correctional officer, testified that there were no threats or disturbances between defendant and Montanez.

Defendant's mother, Angelina Gonzalez, also testified on behalf of defendant. Mrs. Gonzalez stated that she brought defendant's two children to visit her in jail every week. According to Mrs. Gonzalez, defendant behaved well with her children and frequently called to ask about them.

Defendant herself testified in the mitigation stage of the sentencing hearing. Defendant stated that she was a former member of the Maniac Latin Disciples. Defendant recounted that in 1992 she did not hate the Latin Kings because she never had any problems with them. Defendant testified, however, that she became angry about the murder of Mudo, a deaf mute from her neighborhood. Defendant stated that because of Mudo's death she agreed to join Jackie Montanez and Madeline Mendoza to kill some Latin Kings. According to defendant, Montanez obtained a .25-caliber automatic gun, while defendant borrowed her brother's car and drove Montanez and Mendoza to look for some Latin Kings. They eventually encountered Jimmy Cruz and Hector Reyes, who asked the girls to meet them in Humboldt Park. Montanez informed defendant that Cruz and Reyes were Latin Kings. Defendant stated that, although she knew Montanez had a loaded gun, she did not know that Montanez would shoot Reyes. After Reyes' shooting, Montanez handed defendant the gun and she placed the gun approximately five inches away from Cruz's head and shot him. According to defendant, she began to cry after she shot Cruz. Defendant then admitted going back to the neighborhood along with Montanez and Mendoza and bragging to Ivette Rodriguez about what they had just done.

During defendant's testimony, she also admitted knowing Joanne Roberts in Cook County jail. According to defendant, however, she had little conversation with Roberts. Defendant denied asking Roberts to have Montanez killed. Defendant refuted Roberts' allegation that she was mad at Montanez. Defendant also acknowledged that she obtained Roberts' telephone number from Roberts, who gave it to her so they could keep in touch. Defendant stated that she called Roberts once and asked her how she was doing and how she was able to go on an electric home monitoring system. Roberts informed defendant that the State made a deal with her in exchange for her turning State's evidence against Mendoza.

Additional facts are discussed where relevant in the analysis portion of the opinion.

After considering the evidence in aggravation and mitigation, the jury unanimously found that there were no mitigating factors sufficient to preclude a sentence of death. The trial court accordingly sentenced defendant to death.

Defendant subsequently filed post-sentencing motions. After a hearing, defendant's motion for a new sentencing hearing was denied. Defendant then filed a pro se petition to withdraw her guilty plea and vacate her sentence, and a pro se motion for modification of sentence. Defense counsel later filed a supplemental motion for a new sentencing hearing, and a supplemental petition to withdraw defendant's guilty plea and vacate her sentence. The court refused to accept the filing of the new sentencing hearing motion. With respect to the supplemental petition to withdraw defendant's guilty plea and vacate her sentence, the court confined the evidence to whether defendant's guilty plea had been knowing, intelligent and voluntary. After a hearing, the court denied the motion to withdraw defendant's guilty plea. This appeal followed.

ANALYSIS

Defendant raises the following issues on appeal: (1) whether the prosecutor's questions during cross-examination and remarks during closing arguments at the sentencing hearing concerning
defendant's filing of a pretrial motion to suppress her confession deprived defendant of her right against self-incrimination and to due process of law; (2) whether the trial court erred in admitting as evidence in aggravation the testimony of Joanne Roberts regarding death threats made to her by an unknown man; (3) whether the trial court erred in refusing to allow the defense to bring defendant's two young children before the jury for them to view during the presentation of mitigating evidence; (4) whether defendant's death sentence must be vacated because of theprosecutor's remarks during closing arguments at the sentencing hearing; (5) whether the trial court erred in ruling that the testimony of the defense's clinical psychologist at the post-sentencing hearing was not credible; (6) whether the trial court erred in allowing defendant only 10 peremptory challenges inselecting the sentencing jury; (7) whether section 9--1(b)(11) of the Criminal Code of 1961 is an unconstitutional eligibility factor; and (8) whether the Illinois death penalty statute is unconstitutional. For the reasons stated below, we vacate defendant's death sentence and remand for a new sentencing hearing.

I. SENTENCING ISSUES

A. Reference to Defendant's Motion to Suppress

Defendant argues that she was deprived of due process of law and her fifth amendment right against self-incrimination at the aggravation/mitigation stage of her capital sentencing hearing. Defendant claims that the prosecutor improperly cross-examined defendant by questioning her about her pretrial motion to suppress her confession and its subsequent denial. Defendant also contends that the prosecutor made improper comments during closing arguments about the motion to suppress. We agree that the prosecutor's use of defendant's motion to suppress at the sentencing hearing was improper and prejudicial and entitles defendant to a new sentencing hearing.

As noted, defendant filed a pretrial motion to suppress her confession on the bases that she was not timely given Miranda warnings and was coerced by the police into making a statement. The trial court denied the motion to suppress, after which defendant entered a plea of guilty. At the second phase of the sentencing hearing, defendant's theory of mitigation was that she entered her plea of guilty because of remorse. Defendant testified in mitigation that she pled guilty because she knew her actions were wrong and she wanted to ease her conscience. On cross-examination, the prosecutor asked defendant if she knew the meaning of the word remorse and if she had ever felt remorse about this case. Defendant responded that feeling remorse meant "feeling sorry," and that she had felt remorse ever since the murders happened. Defendant also stated that she had cooperated with the police and told the truth since the murders happened. The prosecutor then confronted defendant with her testimony from the pretrial suppression hearing, at which defendant admitted initially telling the police that she did not know what happened in Humboldt Park. The prosecutor continued his cross-examination of defendant as follows:

"Q. [Assistant State's Attorney:] When did you first decide that you were going to plead guilty on this case?
A. Months ago, before Jackie came to trial.
Q. Pardon me?
A. Months ago before Jackie started her trial.
Q. Well, about what month in particular did you first start thinking you were going to plead guilty here?
A. Around June or July.
Q. June or July. Well, was it before--do we have-- was it before you had the pretrial hearing with Judge Mannion?
A. After the pretrial hearing.
Q. After. That's because in that hearing before Judge Mannion, you know, when you had all this remorse in your heart and everything else, you tried to get the Judge to throw out your confession, isn't that correct?
A. No.
MR. LYNCH [defense attorney:] Objection. Judge, may I have a sidebar?
THE COURT: Overruled.

* * *

Q. [Assistant State's Attorney:] Miss Mulero, you testified that you decided or you were starting to think about pleading guilty sometime in June of 1993, isn't that correct?
A. Yes.
Q. And also coincidentally right around that time, there was a hearing on a motion that you and your attorney filed to have your confession thrown out of court, isn't that correct?
A. Yes.
Q. And in fact showing you what is People's Exhibit Number 51, here's a copy of a motion that was filed on your behalf, isn't that correct?
A. Yes.
Q. And in facts [sic] in June of 1993, you stood and took an oath before the clerk saying that all the allegations in that motion were correct, isn't that right?
A. Yes.
Q. And in this motion, you said basically that you didn't get your rights read to you, is that correct?
A. Yes.
Q. And you also said basically that the police tricked you into confessing, isn't that correct?
A. In some way, yes.
Q. And there was a hearing on that matter, and your motion was thrown out of court, isn't that correct?
A. I don't know.
Q. Well, you know then that your confession would be admissible in your case if you went to trial, isn't that correct?
A. What [do] you mean by admissible?
Q. Well, you knew that the People of the State of Illinois could use that confession that you have in front of you if you went to trial, isn't that correct?
A. Yes.
Q. And you found that out in June of 1993, isn't that correct?
A. Yes.
Q. Right around the time you start[ed] thinking about pleading guilty, isn't that correct?
A. Yes."

The prosecutor also referred to defendant's failed suppression motion during closing and rebuttal arguments at the aggravation/mitigation phase. The prosecutor characterized the motion to suppress as a "legal maneuver" and argued that it demonstrated defendant's lack of remorse. More specifically, the prosecutor made the following remarks to the jury at the sentencing hearing:

"If she wanted to plead guilty, she could have come in court. And you saw the indictment when she was indicted back in the spring of 1992. She could have come to court and pled guilty. But no, she tried some legal maneuver to try to get her confession thrown out of court. That didn't work, she saw what happened to her co-defendants, that didn't work. You figure out why she pled guilty. She is cutting her losses. What else is she going to do. Is that mitigation.

* * *

And what are the facts of the guilty plea. The guilty plea is an out and out sham and we know it. She is trying to maneuver her way through the legal system to tell you she is remorseful. You saw her up on the stand when she took the stand. Was she remorseful or was she trying to figure out a way how to get out of this mess she's got herself into. She is trying to beat this case absolutely one hundred percent. She is like a trapped rat in a corner that has no way out.

And how do we know that. We know that because at the time she decides to become remorseful two months ago, she is trying to get the statement thrown out saying the police tricked her, they tricked her. I didn't confess, but yet she tells you I was remorseful. I'm sorry you can't have it both ways, folks.

Mr. Gamboney [Assistant State's Attorney] specifically asked her, you supported the contents of this motion and she swore that the police tried to trick her, and that's why she confessed, not because she was remorseful."

It is well settled that a defendant's remorse or lack thereof is a proper subject for consideration at sentencing. See People v. Barrow, 133 Ill. 2d 226, 281 (1989); People v. Neal, 111 Ill. 2d 180, 196 (1985). When inquiring into a defendant's remorse, however, the State may not violate a defendant's constitutional rights. See People v. Szabo, 94 Ill. 2d 327, 360 (1983). Defendant contends that the State's questions and comments here improperly used defendant's exercise of her constitutional rights against her. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); Szabo, 94 Ill. 2d 327. Both the United States Supreme Court and this court have held that comments about a defendant's exercise of a constitutional right are improper because they penalize a defendant for exercising his or her right. See Griffin, 380 U.S. at 614, 14 L. Ed. 2d at 109-10, 85 S. Ct. at 1232-33; Szabo, 94 Ill. 2d at 360. Such comments have a chilling effect on a defendant's exercise of his or her constitutional right by making assertion of a particular right costly. See Griffin, 380 U.S. at 614, 14 L. Ed. 2d at 110, 85 S. Ct. at 1233.

These principles were clearly violated by the prosecutor's questions and comments in this case. During both the cross-examination of defendant and the closing arguments, the prosecutor used defendant's mere filing of the motion to suppress against her in an effort to demonstrate defendant's lack of remorse. The State's use of defendant's motion to suppress in this manner was wholly improper and unquestionably prejudicial.

Undeniably, defendant had a constitutional right to remain silent. U.S. Const., amend. V. In filing the motion to suppress, defendant argued that her fifth amendment right to remain silent had been violated and the motion attempted to vindicate that right. Regardless of whether the motion was successful, defendant nevertheless had the right to challenge her confession on this basis. In using defendant's motion to suppress against her, the prosecutor essentially used defendant's exercise of a constitutional right against her. The sentencing jury was in effect told that it could consider defendant's exercise of her constitutional right to remain silent as an aggravating factor against her. The exercise of a constitutional right may not be turned into a sword to be used against a defendant in this manner. The "chilling effect" on a defendant's decision to exercise a constitutional right in circumstances such as those in this case is obvious. This court has condemned a similar practice by the State in People v. Szabo, 94 Ill. 2d 327 (1983).

In Szabo, the defendant chose to remain silent following his arrest. The defendant testified in mitigation at the aggravation/mitigation phase of his capital sentencing hearing that he felt badly about the murders. In response to his mitigation testimony, the prosecutor cross-examined the defendant about his failure to make a statement showing remorse to the police at the time of his arrest. During closing arguments at sentencing, the prosecutor argued that the defendant was not truly remorseful because he had not offered an explanation or statement of contrition following his arrest but chose to remain silent. This court found the prosecutor's questioning and argument constituted plain error. The prosecutor's comments used the defendant's silence to impeach his testimony at sentencing and thereby penalized the defendant for exercising his constitutional right to remain silent. Szabo, 94 Ill. 2d at 359-61. Such actions by the prosecutor were held to be fundamentally unfair and to require a new sentencing hearing. Szabo, 94 Ill. 2d at 362, 367-68.

The State's comments in this case are equally as egregious as those found to require reversal in Szabo. In both cases, the defendant was penalized for exercising a constitutional right. While the defendant in Szabo directly exercised the right to remain silent, defendant here indirectly exercised her fifth amendment right to remain silent by attempting to enforce that right in her motion to suppress. As in Szabo, we find the prosecutor's questions and remarks regarding defendant's exercise of a constitutional right in this case to be fundamentally unfair and to require that defendant's death sentence be vacated.

The State responds that its questions on cross-examination were proper because it was simply attempting to impeach defendant's credibility regarding her guilty plea with her prior inconsistent testimony at the suppression hearing. See People v. Hudson, 157 Ill. 2d 401, 435 (1993) (any permissible kind of impeaching matter may be developed on cross-examination to test the credibility of a witness). According to the State, it was attempting to impeach defendant's mitigation testimony, that remorse was the motive for her guilty plea, with her prior inconsistent statements from the suppression hearing. We agree with the State's argument only to the extent that it was proper to impeach defendant with her prior inconsistent testimony from the suppression hearing.

A defendant's constitutional rights are not violated when a defendant is cross-examined as to a prior inconsistent statement. See Anderson v. Charles, 447 U.S. 404, 408-09, 65 L. Ed. 2d 222, 226-27, 100 S. Ct. 2180, 2182 (1980); People v. Adams, 109 Ill. 2d 102, 119-20 (1985). It is also well established that a defendant's testimony in conjunction with his or her motion to suppress evidence can be used to impeach a defendant's testimony at trial. See People v. Sturgis, 58 Ill. 2d 211, 216 (1974). We adhere to these principles. Here, however, the State exceeded the bounds of simply impeaching defendant with prior inconsistent testimony. Rather, the State used defendant's actual motion to suppress against her by suggesting that its mere filing was itself evidence of a lack of remorse on the part of defendant. A defendant's exercise of a constitutional right is not permissible impeachment evidence. See Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245 (1976) (violation of due process when defendant's silence following Miranda warnings is used to impeach an explanation subsequently offered at trial).

Moreover, the mere filing of the motion to suppress her confession did not contradict defendant's claim that remorse was the motive behind her guilty plea. The motion to suppress had no correlation to defendant's remorse. Defense counsel employed the motion to suppress to address an issue of law, namely, the admissibility of defendant's confession as evidence. Consequently, the prosecutor, in arguing the motion to suppress, introduced evidence that neither involved an inconsistent statement nor was relevant for impeachment purposes. See Hudson, 157 Ill. 2d at 449. As such, the prosecutor here did not merely "utilize the traditional truth-testing devices of the adversary process." Harris v. New York, 401 U.S. 222, 225, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645-46 (1971). We therefore reject the State's claim that the filing of the motion to suppress was properly used to impeach defendant's testimony. Under these circumstances, we find that the trial court abused its discretion in allowing cross-examination as to defendant's filing of a motion to suppress. See Hudson, 157 Ill. 2d at 435; People v. Peeples, 155 Ill. 2d 422, 492 (1993).

With regard to the prosecutor's comments during closing argument, the State first contends that any challenge to those comments has been waived because defendant neither objected to them at trial nor included them in her post-sentencing motion. See People v. Enoch, 122 Ill. 2d 176 (1988). As in Szabo, however, we find that fundamental fairness requires that the strict waiver rule be relaxed in this case and that the prosecutor's closing arguments be recognized as plain error affecting defendant's substantial rights. See Szabo, 94 Ill. 2d at 362; People v. Green, 74 Ill. 2d 444, 450 (1979).

Aside from its waiver argument, the State claims that these comments were proper because the prosecutor merely challenged defendant's proclaimed motives for pleading guilty and highlighted evidence showing defendant was not remorseful. In support of its position, the State refers to the general rule that challenging the credibility of a defendant and his or her theory of defense is proper in closing argument when there is evidence justifying the challenge. See Hudson, 157 Ill. 2d at 444. Here, according to the State, its challenge to defendant's claim of remorse was justified given defendant's testimony during the suppression hearing. We do not dispute that the prosecutor was permitted to challenge defendant's credibility regarding her motive for pleading guilty by commenting on defendant's apparent lack of remorse as evidenced by her testimony at the suppression hearing. The prosecutor, however, went far beyond that permissible commentary to suggest that defendant's exercise of a constitutional right be used as aggravation evidence against her. The prosecutor's comments were clearly intended to direct the jury's attention to defendant's attempt to enforce her right to silence. See People v. Franklin, 135 Ill. 2d 78, 101 (1990); People v. Burton, 44 Ill. 2d 53, 55-57 (1969). This improper commentary on defendant's exercise of a constitutional right resulted in substantial prejudice to defendant at the sentencing hearing by casting defendant's assertion of her right in an unfavorable light to the jury.

Based on the foregoing analysis, we hold that defendant's filing of a motion to suppress was irrelevant both substantively and for impeachment purposes at the sentencing hearing. The prosecutor improperly used defendant's constitutional right to silence against her by introducing into evidence her motion to suppress, which was intended to enforce that right. Defendant was prejudiced by the prosecutor's actions and deprived of a fair capital sentencing hearing because the sentencing jury was permitted to rely on improper evidence and comments. Accordingly, we vacate defendant's death sentence and remand for a new sentencing hearing.

Defendant also raises other challenges to her capital sentencing hearing and to the constitutionality of the Illinois death penalty statute. Because we have concluded that defendant is entitled to a new sentencing hearing, we address only those alleged errors which are likely to arise again on remand. See People v. Simms, 143 Ill. 2d 154, 173 (1991).

B. Jury Selection

Defendant contends that she was denied a fair capital sentencing hearing because the trial court allowed each side only 10 peremptory challenges.

The record reveals that, after defendant requested a jury forthe sentencing hearing, the prosecutor informed the trial judgethat he thought each side should receive 10 peremptory challenges. The trial judge accepted this representation by the prosecutor andallowed each side 10 peremptory challenges. Defense counsel did notobject to the number of peremptory challenges allotted. During thejury selection, defendant used nine peremptory challenges before agreeing on a 12-member jury. Defendant subsequently utilized her last peremptory challenge to exclude one of the two alternate jurors. Defendant now claims that she was entitled to 14 peremptory challenges pursuant to Supreme Court Rule 434(d) (134 Ill. 2d R. 434(d)). Defendant further claims that the trial court committed reversible error in allowing her only 10 peremptory challenges. As a result, defendant asserts that her sentence of death should be vacated and the cause remanded for the proper selection of a sentencing jury.

The State concedes that the trial court erred in allottingdefendant only 10 peremptory challenges. We agree. Supreme CourtRule 434(d) provides, in pertinent part, that "[a] defendant triedalone shall be allowed 14 peremptory challenges in a capital case."134 Ill. 2d R. 434(d). It is thus clear that the trial court erredin this case by allowing defendant only 10 peremptory challenges. See People v. Daniels, 172 Ill. 2d 154 (1996). On remand, defendant should be allowed the proper number of peremptory challenges. Because we have already determined that defendant is entitled to a new sentencing hearing on another ground, we need not address whether the trial court's actions as to the number of peremptory challenges amounted to reversible error.

C. Eligibility

Defendant claims that her death sentence must be vacated because the jury found her eligible on the basis of an unconstitutionally vague eligibility factor. As set forth in the facts, the sentencing jury found defendant eligible for death on the basis of two eligibility factors: (1) murder of two or more persons (720 ILCS 9--1(b)(3) (West 1992)), and (2) murder committed in a cold, calculated and premeditated manner pursuant to a preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)). Defendant now challenges the constitutionality of section 9--1(b)(11), arguing that its terms are vague such that a limiting construction should be applied to this factor. Defendant also alleges that section 9--1(b)(11) is unconstitutional because its terms do not narrow the class of individuals eligible for the death penalty.

This court has previously rejected identical challenges to the constitutionality of section 9--1(b)(11). We have held that section 9--1(b)(11)'s terms are not unconstitutionally vague because they provide sufficient guidelines for the sentencer in determining death eligibility. See People v. Williams, 173 Ill. 2d 48, 89-90 (1996); People v. Johnson, 154 Ill. 2d 356, 372-73 (1993). Consequently, the need for a limiting instruction has been rejected. In addition, we have held that the terms of section 9-- 1(b)(11) sufficiently narrow the class of eligible defendants by placing the necessary restraint on the sentencer's discretion to impose death. See People v. Munson, 171 Ill. 2d 158, 191 (1996). We are not persuaded that we should reconsider these holdings. Therefore, we adhere to our prior decisions that section 9--1(b)(11) is constitutionally valid.

D. Aggravation

Defendant contends that the trial court erred in allowing the State's witness Joanne Roberts to testify during the aggravation/mitigation phase of the sentencing hearing that she received death threats over the telephone from an unknown male, who warned her not to testify against defendant.

Joanne Roberts testified that she had met defendant while both were incarcerated in Cook County jail. Roberts knew that defendant was a member of the Maniac Latin Disciples street gang. Roberts testified that in June of 1993 she and defendant had a conversation in which defendant stated that her codefendant, Jackie Montanez, was going to "turn states on her." Roberts claimed that defendant then asked her to kill Montanez. Roberts refused and defendant replied that "she would take care of it herself." Roberts subsequently reported her conversation with defendant to prosecutors. On July 29, 1993, Roberts was released from jail and placed on an electronic home monitoring system for her own safety. Roberts testified that in August of 1993, shortly after her release and while at home, she received a phone call from defendant in which defendant asked her why she had turned against her, and told Roberts that she "would be dealt with later on for that." Roberts further testified that she received another phone call about a week prior to her testimony at defendant's death penalty hearing in November of 1993, which she described in the following manner:

"Q. [Assistant State's Attorney:] Directing your attention to approximately last week, did you have occasion again to be contacted by someone from the Disciples?
A. Yes, I did.
Q. And did that person identify himself?
A. He called me from the penitentiary and he said he was--he was one of the--one of the, what do you call them, was one of the ones that call shots over there. And he said that he was going to have me killed for turning states on them for telling them--for telling on them. And he just went on and on and on. MR. LYNCH [defense attorney]: Judge, may I have a sidebar?"

Defense counsel objected that evidence of this threat was inadmissible because there was no connection established between it and defendant. The trial court overruled the objection because defendant's connection to this threat was "a reasonable inference to be drawn from the previous conversations." Roberts then resumed her testimony regarding the phone call:

"Q. Can you tell the ladies and gentlemen of the  jury at that time what he said to you?
A. He said that he was--he was one of the chiefs from the Disciples and that if I testified against Muneca [defendant], that he was going to have me killed. And he knew that [sic] where I lived and everything. And he was just going on and on with the same thing. And I just hung up on him.
Q. Now, during your time in Cook County Jail, did you have occasion to learn whether or not Marilyn Mulero had any rank with her gang inside the jail?
A. Yes, she did.
Q. And what was her rank?
A. She was calling it for the second floor. She had the second floor."

Defendant argues that Roberts' testimony regarding a threat by an unknown male was inadmissible. According to defendant, the evidence was neither relevant nor reliable because the State failed to establish a connection between defendant and the third party's threat. In support of her argument, defendant points out that the evidence failed to show that she had ordered this phone call, or that she even knew of it, or that she had any familiarity with the unidentified male who made the call. Instead, the only connection between defendant and this threat was that the unknown male caller identified himself as a member of the Maniac Latin Disciples, the gang to which defendant belonged. Defendant contends that this connection is insufficient to meet the reliability standard for the admission of evidence at a death sentencing hearing. Moreover, defendant contends that it is not reliable to infer that, because defendant had previously spoken with Roberts, she was responsible for a phone call months later from an unknown man who made the claim that he would kill her. Because Roberts' testimony as to the third party threat lacked relevance and reliability, defendant concludes that it was improperly admitted. Furthermore, because that testimony concerned the threat to kill a prosecution witness, it was prejudicial to defendant.

It is well established that the evidentiary rules which apply at trial do not apply during the aggravation/mitigation phase of the death penalty hearing. These rules are inapplicable because it is important that the sentencing authority possess the fullest information possible with respect to the defendant's life, character, criminal record and the circumstances of the particular offense. See People v. Fair, 159 Ill. 2d 51, 90 (1994); People v. Brisbon, 129 Ill. 2d 200, 218-19 (1989). The only requirement regarding admissibility of evidence at this stage is that it be relevant and reliable, the determination of which lies within the sound discretion of the trial judge. See People v. Williams, 164 Ill. 2d 1, 27 (1994); see also Fair, 159 Ill. 2d at 89; Brisbon, 129 Ill. 2d at 218; People v. Salazar, 126 Ill. 2d 424, 468 (1988); People v. Free, 94 Ill. 2d 378, 422-23 (1983).

After considering Roberts' testimony in light of these principles, we find her testimony to be both relevant and reliable. We first note that any evidence regarding a defendant's character, including proof of prior misconduct that has not resulted in prosecution or conviction, is relevant. See People v. Patterson, 154 Ill. 2d 414, 476 (1992); Salazar, 126 Ill. 2d at 468. Roberts' testimony was relevant to defendant's character because it showed that defendant was responsible for threatening a prosecution witness. As such, it reflected on defendant's violent character. In addition to being relevant, Roberts' testimony regarding the phone threat was also reliable because a combination of factors establish a sufficient connection between defendant and the third party's threat. First, defendant and the third party were both high-ranking members of the Maniac Latin Disciples street gang. Second, the threat specifically named defendant as the one whom Roberts should not testify against. The fact that defendant did not directly make the threat does not make this evidence less reliable given defendant's prior conversations with Roberts. When defendant believed that Montanez was going to turn State's evidence on her, she solicited Roberts to murder Montanez. Following Roberts' refusal, defendant said she would take care of it herself. When defendant learned that Roberts herself turned State's evidence, defendant called Roberts and threatened that she would be "dealt with later." Then, a week before Roberts was to testify at defendant's death penalty hearing, she received a threatening phone call from a Maniac Latin Disciples gang member, who told her that if she testified against defendant he would have her killed. The totality of these circumstances demonstrates a sufficient link between defendant and the last threatening phone call made to Roberts. Roberts' testimony was therefore properly admissible as both relevant and reliable evidence.

Defendant's reliance on our decision in People v. Lucas, 151 Ill. 2d 461 (1992), is misplaced. In Lucas, the defendant was convicted of the murder of a prison superintendent, a gang-related crime which occurred in retaliation for the death of another member of the defendant's gang. This court found that a correctional officer's testimony regarding gang members' threats of retaliation was improperly admitted. Lucas, 151 Ill. 2d at 478. This court relied on the fact that the correctional officer, who testified as to the threats, stated that defendant did not make the threats. Lucas, 151 Ill. 2d at 478. Moreover, the court pointed out that the victim's murder was not close in time to the gang member's death, which occurred over two months prior to the murder. Lucas, 151 Ill. 2d at 478. This court also determined that evidence of a gang member's attack upon another correctional officer one day before the murder and a gang member's threat to poison an inmate who was cooperating with the prosecution were inadmissible. Lucas, 151 Ill. 2d at 486. We rejected this evidence because there was neither evidence connecting defendant to the attack on the correctional officer nor evidence connecting defendant to the plan to poison the cooperating inmate. Lucas, 151 Ill. 2d at 486. While this court found error in the admission of this evidence, this court ultimately determined the error to be harmless. Defendant now contends that our decision in Lucas demonstrates that mutual gang membership and mutual gang motivation against a person are insufficient to establish a connection between a defendant and a third party's threats.

This case is distinguishable from Lucas. Initially, we note that the evidence in Lucas was presented at trial, where strict rules of evidence apply, whereas Roberts' testimony occurred at the capital sentencing hearing, where the rules of evidence are relaxed. More importantly, here there was a prior connection between defendant and the person receiving the threats, namely, Roberts. Although defendant did not make the last threatening phone call, she did have a history of threatening those who crossed her, including Roberts. Consequently, the connection between defendant and the threatening phone call in this case involved more than mutual gang membership and mutual gang motivation. Under the circumstances of this case, we determine that it is reasonable to infer that defendant was the source of the threats against Roberts.

Thus, we hold that the trial court did not abuse its discretion in allowing Roberts to testify about threatening phone calls she received prior to her testimony at defendant's death penalty hearing.

E. Mitigation

Defendant asserts that the trial court erred in refusing to allow the defense to display defendant's two young children before the jury during its presentation of mitigating evidence.

The record reveals that defendant's mother and defendant testified during the mitigation phase of the sentencing hearing about defendant's relationship with her children. Defendant's mother, Angelina Gonzalez, testified that defendant had two children, Juan Carlos Mulero, age seven, and Mario Canales, age five, who lived with defendant prior to her incarceration. Mrs. Gonzalez stated that she brought the children to visit defendant in jail every week and that defendant exchanged letters with her children. Mrs. Gonzalez also stated that defendant called her children frequently and behaved well with them.

Defendant also testified about her children, who were present in the courtroom and seated with her mother. Defendant stated that she was 15 years of age when she had Juan Carlos and 17 years of age when she had Mario. According to defendant, she raised her children on her own by working at two jobs. Defendant told the jury that if she did not get the death penalty she would have a better relationship with her kids and would be a better mother. She explained that, even if she should be incarcerated forever, she could still be a mother to her children by having them visit her in prison. Defendant further explained that she did not want her children to testify because she did not want them "to ever grow up noticing that they went through this trauma." However, defendant stated that she would not mind if her children were brought before the jury.

The trial court refused defense counsel's request to have the children displayed to the jurors. The court found such evidence to be improper because it was "an obvious attempt to evoke sympathy" on behalf of defendant to the jury. Moreover, the court noted that such a display of the children was unnecessary because there had already been testimony about defendant's children, and the jury was aware they were in court.

Defendant now challenges the court's ruling on the basis that it was an improper infringement upon her right to present mitigating evidence. Defendant claims that the physical display of her children to the jury was proper mitigating evidence because it would demonstrate the most positive aspect of defendant's character, namely, her two children. According to defendant, it was necessary for the jury to view any positive visible aspects of the children's development, which could then be attributable to defendant, who alone raised them. In essence, defendant contends that her children represented physical evidence, which was necessary to explain testimonial evidence.

As previously stated, during the aggravation/mitigation phase of a capital sentencing hearing, the rules of evidence are relaxed and evidence need only be relevant and reliable to be admissible. See People v. Brown, 172 Ill. 2d 1, 49 (1996); Patterson, 154 Ill. 2d at 475. The determination of evidence's admissibility at the second phase of the sentencing hearing lies within the sound discretion of the trial judge. See Brown, 172 Ill. 2d at 49; Patterson, 154 Ill. 2d at 475.

With these principles in mind, we find that the trial court in the instant case did not abuse its discretion in denying defendant's request to have her children brought before the jury. We acknowledge that defendant is entitled to present evidence in mitigation that is relevant to her character and reliable. See People v. Edwards, 144 Ill. 2d 108, 174-75 (1991). Here, however, the physical display of defendant's children to the jury was not relevant to defendant's character. We agree with the State that the jury could not have assessed defendant's character as a mother simply by looking at the children. As such, displaying defendant's children before the jury was not relevant mitigating evidence. Accordingly, we conclude that the trial court properly denied defendant's request.

F. Post-Sentencing Hearing

Defendant asserts that the trial court erred in ruling that the testimony of the defense's clinical psychologist at the post-sentencing hearing was not credible where that ruling was based solely on the fact that the clinical psychologist was not a medical doctor.

The record shows that defendant filed a motion to withdraw her guilty plea after she had been sentenced to death. The trial court conducted a hearing to determine whether defendant's guilty plea was intelligent, knowing, and voluntary. At the hearing, defendant's trial counsel testified that he talked to defendant three or four times about the plea and explained the advantages and disadvantages of pleading guilty. Trial counsel stated that he did not coerce defendant into pleading guilty. Rather, it was defendant's decision to plead guilty. In fact, according to trial counsel, defendant directed him to enter her plea of guilty. Defendant also testified at the post-sentencing hearing and contradicted trial counsel's testimony. Defendant insisted that it was trial counsel's idea for her to plead guilty. According to defendant, she pled guilty because trial counsel did not give her "much of a choice."

In addition to defendant, the defense called Dr. Michael Kovar, a clinical psychologist, to testify at the post-sentencing hearing. Dr. Kovar testified that he conducted several psychological tests on defendant. In his opinion, these tests showed that defendant was highly suggestible and easily misled. Dr. Kovar believed that defendant was confused about her guilty plea and did not know the basic facts. Dr. Kovar opined that defendant was not competent to understand the language used by the judge regarding the relinquishment of her rights. For example, Dr. Kovar stated that defendant did not "have a clue" what reasonable doubt meant, did not understand the burden of proof, and was unsure exactly what the jury would be selected to hear. Dr. Kovar attributed defendant's lack of understanding to defendant's deficiencies in the "fund" of information, vocabulary, and commonsense reasoning. Based on his test findings, her mental status, her history and her overall presentation, Dr. Kovar concluded that defendant's plea of guilty was not knowingly and intelligently made, given defendant's lack of competence at the time she pled guilty. Dr. Kovar diagnosed defendant as having a depressive disorder, a general anxiety disorder, and presently manifesting borderline intellectual functioning.

After considering all of the evidence, the trial judge found Dr. Kovar's testimony to be incredible. The trial judge commented, "He's not a psychiatrist. He's not a medical doctor." The trial judge then proceeded to explain that Dr. Kovar's testimony was not credible based on the fact that he witnessed defendant when she pled guilty, and he believed trial counsel's testimony that it was defendant's idea to plead guilty. More specifically, the trial judge made the following findings:

"That [the plea] was her choice. She entered that plea in front of me. She was admonished as to what the penalties were, what her rights were. She indicated to me that she understood and I believed her, and I've been talking to defendants for a long time, that she did it knowingly, voluntarily and intelligently."

The trial judge ultimately denied the motion to withdraw the guilty plea.

Defendant contends that the trial court was improper in its ruling regarding Dr. Kovar's credibility as an expert witness. It is defendant's position that the trial court rejected Dr. Kovar's testimony for the sole reason that Dr. Kovar was only a clinical psychologist as opposed to being a psychiatrist and a medical doctor. Defendant argues that it was irrelevant that Dr. Kovar was neither a psychiatrist nor a medical doctor. Because Dr. Kovar was a registered clinical psychologist, defendant insists that he was qualified by law to testify as to defendant's state of mind and mental impairments at the time of her guilty plea. In view of the trial court's improper basis for finding Dr. Kovar to be incredible, defendant contends that she is entitled to a new hearing on her motion to withdraw her guilty plea.

Initially, we note that a clinical psychologist is qualified to render an expert opinion as to a defendant's fitness to plead guilty, stand trial, be sentenced or be executed. 730 ILCS 5/5--2-- 5 (West 1992). In fact, the testimony of a clinical psychologist should not be disregarded merely because that witness is not a psychiatrist or a medical doctor. See People v. Noble, 42 Ill. 2d 425 (1969). Although a clinical psychologist's testimony should not be disregarded on this basis, the trial court is not required to accept the psychologist's opinion that the defendant was not competent. See People v. Coleman, 168 Ill. 2d 509, 525 (1995); People v. Pugh, 157 Ill. 2d 1, 24 (1993). It is the trial court's function to assess the credibility and weight to be given to psychiatric expert testimony. See Coleman, 168 Ill. 2d at 525.

After considering the trial judge's ruling, we find that the trial judge's determination that Dr. Kovar's testimony was incredible was not improper. We acknowledge that the trial judge improperly commented about the witness not being a medical doctor or a psychiatrist. The record, however, demonstrates that the trial judge did not reject Dr. Kovar's credibility because he was not a medical doctor or a psychiatrist. Rather, the trial judge did not agree with Dr. Kovar's conclusions because of his own observations of defendant while presiding over the proceedings in this case, and because he found trial counsel to be credible. As stated, the trial court is not required to accept the expert's finding. Instead, it is the function of the trial court to assess the credibility of the expert's testimony. See Coleman, 168 Ill. 2d at 525. Consequently, the trial judge properly rejected Dr. Kovar's credibility in light of other evidence. We therefore conclude that the trial judge's comment regarding Dr. Kovar does not warrant the granting of a new hearing on the motion to withdraw defendant's guilty plea.

G. Sufficiency of the Evidence

In view of our decision to remand this cause for a new sentencing hearing, double jeopardy requires that we determine whether the evidence was sufficient to support defendant's eligibility for the death penalty. See People v. Brown, 169 Ill. 2d 132, 164 (1996). After considering the evidence in the record, we find that it supports defendant's eligibility for death based on the statutory aggravating factors of murder of two or more individuals (720 ILCS 5/9--1(b)(3) (West 1992)) and murder committed in a cold, calculated and premeditated manner pursuant to a preconceived plan (720 ILCS 5/9--1(b)(11) (West 1992)). Consequently, there is no double jeopardy impediment to defendant's receiving a new capital sentencing hearing. See Brown, 169 Ill. 2d at 169. Nevertheless, we do not in any way imply that we have made a finding as to defendant's eligibility that would be binding on remand. See Brown, 169 Ill. 2d at 169.

II. CONSTITUTIONALITY OF DEATH PENALTY STATUTE

As a final matter, defendant challenges the constitutionality of the Illinois death penalty statute. 720 ILCS 5/9--1 (West 1992). First, defendant claims that the statute is unconstitutional because it places a burden of proof on the defendant which precludes meaningful consideration of mitigation evidence. Defendant also claims that the statute is unconstitutional because it allows the sentencer to weigh a vague aggravating factor, namely, "any other reason" a defendant should be sentenced to death. This court has already considered and rejected both arguments. See Munson, 171 Ill. 2d at 203-05; People v. Simpson, 172 Ill. 2d 117, 152 (1996); see also Williams, 173 Ill. 2d at 93-94; People v. Gilliam, 172 Ill. 2d 484, 522 (1996); People v. Oaks, 169 Ill. 2d 409, 470 (1996); People v. Mitchell, 152 Ill. 2d 274, 345-46 (1992). We decline to reconsider these issues given that defendant offers no persuasive reasons to depart from our prior decisions. In a separate argument, defendant contends that the death penalty statute is unconstitutional because it does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences. This argument has also been rejected by this court (see Munson, 171 Ill. 2d at 205-06; Williams, 173 Ill. 2d at 94; see also People v. Tenner, 157 Ill. 2d 341, 390 (1993); People v. Edgeston, 157 Ill. 2d 201, 247 (1993); People v. Page, 155 Ill. 2d 232, 283-85 (1993); Mitchell, 152 Ill. 2d at 346-47), and we likewise decline to reconsider our prior decisions because defendant presents no reasons that warrant a different result in this case. We therefore adhere to our prior decisions upholding the constitutionality of the Illinois death penalty statute.

CONCLUSION

For the reasons set forth above, defendant's convictions are affirmed. Defendant's death sentence is vacated and this cause is remanded to the circuit court of Cook County for a new sentencing hearing consistent with the views expressed in this opinion.

Convictions affirmed; death sentence vacated; cause remanded.

MULERO v. THOMPSON

668 F.3d 529 (2012)

Marilyn MULERO, Petitioner-Appellant,
v.
Sheryl THOMPSON, Warden of the Dwight Correctional Center, Respondent-Appellee.

No. 10-3875.

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2011.
Decided February 7, 2012.

Justin Brooks (argued), Alexander Simpson, Attorneys, California Innocence Project, San Diego, CA, for Petitioner-Appellant.

Gopi Kashyap (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Marilyn Mulero was charged in Illinois with four counts of murder, two counts of conspiracy to commit murder, and one count of unlawful use of a firearm by a felon. She entered a blind plea of guilty and the counts were then merged, resulting in a state trial court entering judgment against Mulero on two counts of intentional murder. Mulero was eventually sentenced to life imprisonment—the mandatory minimum sentence for a double homicide. After exhausting her state court remedies, Mulero filed a petition for habeas relief in the district court, alleging her trial attorney provided ineffective assistance of counsel. The district court concluded that many of Mulero's ineffective assistance claims were defaulted and held that the non-defaulted claims failed on the merits. The district court then granted a certificate of appealability limited to two issues—whether Mulero's attorney was ineffective for, prior to advising Mulero concerning her desire to enter a blind plea of guilty, 1) failing to investigate witnesses, and 2) failing to obtain supporting services. Mulero presents those issues on appeal, arguing ten specific alleged failings by her attorney. We conclude that Mulero has preserved only three of these ten arguments—those she presented through one complete round of state court review. Specifically, Mulero has preserved only the questions of whether her attorney was ineffective for 1) failing to investigate witness Jackie Serrano; 2) failing to obtain psychological evidence to support an argument that Mulero's confession was involuntary; and 3) failing to recognize that witness Yvette Rodriguez had made inconsistent statements and had a motive to lie. While Mulero preserved these arguments, they all fail on the merits. Accordingly, we affirm.

I.

Nearly twenty years ago, on May 11, 1992, then-21-year-old petitioner Marilyn Mulero, 15-year-old Jacqueline Montanez and 16-year-old Madeline Mendoza, all members of the Maniac Latin Disciples gang, decided to seek revenge for the Latin Kings' murder of their friend, "Mudo." Mulero borrowed her brother's car and

[ 668 F.3d 531 ]

one of the trio obtained a small silver automatic gun to carry out what they would later describe as a "mission" for their "nation." As they were leaving for their mission, the threesome saw Yvette Rodriguez. Rodriguez would later testify that they invited her to go "make a hit with them and roll on some flakes," which meant to kill or fight the Latin Kings. Rodriguez declined.
Mulero then drove Montanez and Mendoza into Latin Kings territory, where they saw two men in another car, Jimmy Cruz and Hector Reyes, whom Montanez recognized as Latin Kings. The young women invited Cruz and Reyes to "party" with them in nearby Humboldt Park. After they all arrived, Montanez went into the bathroom with Reyes and shot him in the back of the head, killing him. Montanez left the bathroom and, according to Mulero's original confession, then handed Mulero the gun and Mulero shot Cruz in the back of the head, killing him. The three then drove off.

At the time of the shooting, about 12:15 a.m. on May 12, 1992, Jackie Serrano was looking out of the window of her nearby apartment. She would later testify that she looked into the park after hearing some voices and giggling and that she saw three women, one of whom was taller than the others, and two men. She saw the taller female enter the restroom with a male, and after hearing a firecracker sound, Serrano saw her emerge from the restroom alone. Serrano then saw a shorter female go behind the second male, observed a flash behind that man, and saw him fall to the ground. This evidence was consistent with Montanez shooting Reyes and Mulero shooting Cruz, as Montanez is 5′7″ and Mulero is 5′1″.

After the shooting, Rodriguez saw Mulero, Montanez, and Mendoza back in their neighborhood, and Mulero and Montanez were bragging about having murdered Cruz and Reyes. Later that evening, police arrested Rodriguez on a drug offense and Rodriguez identified Mulero, Montanez, and Mendoza as the perpetrators of Cruz's and Reyes's murders. The next day, officers arrested Mulero and Montanez, and a few days later they arrested Mendoza.

Following her arrest and substantial questioning, Mulero gave a court-reported statement to a Chicago detective and an assistant state's attorney. In her statement, she acknowledged her involvement as detailed above. Additionally, after she confessed to the murders, while being escorted through the police station, a television news camera captured Mulero shouting gang slogans, "KK," which means "king killers," and flashing gang signals with her hands.

The state charged Mulero with four counts of murder, two counts of conspiracy to commit murder, and one count of unlawful use of a firearm by a felon. On June 5, 1992, a Cook County Public Defender appeared on behalf of Mulero. The Public Defender represented Mulero until around early 1993, and during that time, among other things, the Public Defender had an investigator speak with Serrano and filed a motion to suppress Mulero's confession. Then sometime in early to mid-1993, a couple for whom Mulero used to babysit hired a private attorney, Jeremiah Lynch, to represent Mulero. Lynch apparently filed an amended motion to suppress and then argued that motion. In June 1993, the state court denied the motion to suppress Mulero's confession, finding that Mulero's statement to the police was voluntary and that there were no promises, misrepresentations, or fabrications by the police.

Two months later, in August 1993, Montanez was convicted of the murders of

[ 668 F.3d 532 ]

Cruz and Reyes and sentenced to life imprisonment. (Because Montanez was a minor, she did not qualify for the death penalty.) At Montanez's trial, the prosecution presented Montanez's court-reported statement, which was consistent with Mulero's confession, and testimony from, among others, Rodriguez and Serrano. Following Montanez's conviction, Mendoza pleaded guilty on September 22, 1993, to one count of murder of Cruz and one count of conspiracy to murder Reyes. At her change of plea hearing, Mendoza swore under oath that Montanez had shot Reyes and that Mulero had shot Cruz. Less than a week later, on September 27, 1993, Mulero pleaded guilty to all counts without the benefit of a plea agreement—this is referred to as a blind plea.

At her change of plea hearing, Mulero testified that she was pleading guilty because she knew she was guilty and that it was her idea to plead guilty. Following Mulero's guilty plea, the counts were merged, resulting in a state trial court entering judgment against Mulero on two counts of intentional murder. After pleading guilty, Mulero proceeded to the sentencing phase of the proceedings. In Illinois, the only possible sentences for two counts of intentional murder were life imprisonment without possibility of parole, or death. On November 12, 1993, a jury sentenced Mulero to death. On December 17, 1993, Lynch filed a motion for a new sentencing hearing, arguing that the trial court had erred in allowing the prosecution to argue at the sentencing hearing that Mulero was not truly remorseful for the crimes because she had filed a motion to suppress her confession. The trial court denied that motion and entered the sentence of death against Mulero.

Mulero appealed her death sentence directly to the Illinois Supreme Court. She also, on January 6, 1994, filed a pro se motion to withdraw her guilty plea. In her motion to withdraw her guilty plea Mulero argued, among other things, that Lynch had coerced her into pleading guilty. Counsel was later appointed to represent Mulero and to argue this motion. At the trial court's hearing on Mulero's motion to withdraw her guilty plea, Lynch testified at length. Lynch stated that he was hired by a family for whom Mulero used to babysit and that he took over the case from the Public Defender's office. Lynch noted that he visited the crime scene twice, reviewed discovery, and reviewed the Public Defender's file, including a statement from one of the Public Defender's investigators who had interviewed Serrano. Lynch also indicated that Serrano's statement might have implicated the taller woman (and thus not Mulero) as the shooter of the second victim outside the rest-room, but that Serrano's statement was not definitive on whether Mulero or the taller woman had done the second shooting. Lynch also testified that he had reviewed the various police reports, including reports by two different officers which contained conflicting stories from Rodriguez—one which stated that Mulero had shot one of the victims and the other which indicated that Montanez had shot both victims. Lynch further stated that the State had made no plea offer and refused to participate in a pre-trial plea conference.

Additionally, Lynch testified that when he met with Mulero in August 1993, Mulero directed him to enter a guilty plea on her behalf. Lynch stated that he was surprised by Mulero's request and told her to think about it. He also explained that he did not want to discuss a plea at that time because Mulero's request at this meeting came directly on the heels of Montanez's recent conviction and following the court's previous denial of Mulero's motion to suppress. Lynch added that he

[ 668 F.3d 533 ]

also wanted to think more about such a strategy.

When they next met, Lynch and Mulero discussed for about an hour the pros and cons of entering a blind plea of guilty. Lynch noted the risk in entering such a plea was that Mulero could be sentenced to death. But he also noted that there might be an advantage in pleading guilty because it might convince the jury to spare Mulero's life because it could show that, after having had time to think about her actions, Mulero was truly remorseful. And thus her plea would offset the negative impression naturally flowing from the news videotape which showed Mulero as proud of her actions. Lynch testified that in addition to discussing the pros and cons in general, he also discussed the strength of the case against Mulero and the weight of the evidence. Lynch explained that the discovery and other evidence included: Mulero's court-reported confession and her claims of coercion, Montanez's confession, the videotape evidence, Rodriquez's statements—including the conflicting aspects of those statements concerning whether there was one shooter or two—Serrano's eyewitness account, and the Public Defender's investigator's statement that Serrano may have implicated the taller woman as the shooter of the second victim. Lynch stressed that he did not tell Mulero one way or the other what to do—as he said, he made no recommendation "whatsoever" about whether Mulero should plead guilty. Rather, as Lynch explained, after discussing the evidence with her, Mulero decided on her own that she wanted to plead guilty.

Mulero also testified at the hearing on her motion to withdraw her guilty plea. People v. Mulero, 176 Ill.2d 444, 223 Ill.Dec. 893, 680 N.E.2d 1329, 1345 (1997). She testified that it was Lynch's idea for her to plead guilty and that she pleaded guilty because trial counsel did not give her "much of a choice." Id. In addition, in support of her motion to withdraw her guilty plea, Mulero presented the testimony of a psychologist, Michael Kovar. Id. Dr. Kovar testified that he conducted several psychological tests on Mulero, which showed that she was highly suggestible and easily misled. Id. He further concluded that Mulero had deficiencies in "the `fund' of information, vocabulary, and commonsense reasoning." Id. And "[b]ased on his test findings, her mental status, her history and her overall presentation, Dr. Kovar concluded that [Mulero's] plea of guilty was not knowingly and intelligently made, given defendant's lack of competence at the time she pled guilty." Id. Dr. Kovar further diagnosed Mulero as "having a depressive disorder, a general anxiety disorder, and presently manifesting borderline intellectual functioning." Id.

The state trial court denied Mulero's motion to withdraw her guilty plea on December 7, 1994. The state court found Dr. Kovar's testimony not credible, noting he was "not a psychiatrist" and "not a medical doctor." The judge then elaborated on his reasons for rejecting Dr. Kovar's testimony and Mulero's motion to withdraw her guilty plea, stating:

[Dr. Kovar] suggests to this Court that he knew what her mental state was and her suggestability when she had conversations with her lawyer and when she pled guilty in front of me, and I recall it very, very well and I have an advantage on some of the parties. I was here for these proceedings. And I was also here when Mr. Jeremiah Lynch tried the case. I found him to be a very professional, credible, excellent lawyer, probing cross-examination, conducted himself in an extremely credible manner. He hasn't been here in the last few days to see his reputation and his ability besmirched,

[ 668 F.3d 534 ]

but I believe him and I heard him testify relative to this motion and he was an extremely credible, straightforward, truthful witness. And he said one key thing. That Marilyn Mulero it was her idea to plead guilty, not his, and her idea to plead guilty came after she lost a motion to suppress the court reporter [sic] confession in which she admitted the offense and after her co-defendant Jacqueline Montanez, also known as Loco, was found guilty in about half an hour on the same evidence. She suggested to Jeremiah Lynch that if she were to plead guilty what would that mean, and she had numerous discussions on the pros and cons of pleading guilty.... [S]he knew that there was testimony from a newsreel in a videotape taken by one of the media in which after the statement she and Montanez come [sic] out of a room and cockily wearing gang clothes, giving gang signals so to show no remorse whatsoever, and they discussed and Mr. Lynch testified to this, what the advantage would be to plead guilty, and that would be that she would show the jury that she had remorse for what she did because it was almost a foregone conclusion that she did it and perhaps that would be in her benefit to plead guilty.... That was her choice. She entered that plea in front of me. She was admonished as to what the penalties were, what her rights were. She indicated to me that she understood and I believed her, and I've been talking to defendants for a long time, that she did it knowingly, voluntarily and intelligently. And she also did it after numerous, numerous conversations with her attorney. And it was a remarkable decision at the time. There were advantages to it. Her perceived advantages. They didn't work out that way but at the time she did it she did it from an intelligent, informed viewpoint that perhaps this was the best way to go. And there's no question that Mr. Lynch in my view, and this is the only case he tried in front of me, but the way he conducts himself as a competent attorney. That's what lawyers are for. He told her the pros and the cons. He didn't tell her you got to go this way. She's the one that made that decision. And I'll tell you why I know that. Because Lynch said it and I believe him, but more importantly, she said it. In front of the jury after taking the same oath that she took here today and proceeded to lie. Her motion to withdraw the guilty plea is denied.

After Mulero lost her motion to withdraw her guilty plea, she appealed the denial to the Illinois Supreme Court, arguing that the trial court erred in ruling that Dr. Kovar's testimony was not credible based solely on the fact that he was a clinical psychologist and not a medical doctor. Mulero, 223 Ill.Dec. 893, 680 N.E.2d at 1344. The Supreme Court rejected Mulero's challenge to the state court's ruling on her motion to withdraw her guilty plea in Mulero, holding that although the court had "improperly commented about [Dr. Kovar] not being a medical doctor or a psychiatrist, [t]he record, however, demonstrates that the trial judge did not reject Dr. Kovar's credibility because he was not a medical doctor or a psychiatrist. Rather, the trial judge did not agree with Dr. Kovar's conclusions because of his own observations of defendant while presiding over the proceedings in this case, and because he found [Lynch] to be credible." Id., 223 Ill.Dec. 893, 680 N.E.2d at 1345. The Supreme Court then concluded that "the trial judge properly rejected Dr. Kovar's credibility in light of other evidence" and found there was no basis for granting a new hearing on the motion to withdraw Mulero's guilty plea. Id., 223 Ill.Dec. 893,

[ 668 F.3d 535 ]

680 N.E.2d at 1341. While Mulero lost her challenge to the denial of her motion to withdraw her guilty plea, she prevailed on her challenge to her death sentence. The Illinois Supreme Court overturned her death sentence, holding that the trial court had erred in allowing the prosecution to introduce into evidence Mulero's motion to suppress—either for substantive or impeachment purposes at sentencing. Id., 223 Ill.Dec. 893, 680 N.E.2d at 1340. The Supreme Court then remanded the case for a new sentencing hearing. Id.

At the second sentencing hearing, Mulero's new attorney, in arguing in favor of life imprisonment, suggested that Mulero did not really shoot Cruz, although he acknowledged that she was nonetheless legally accountable for the murders under Illinois law. The second jury sentenced Mulero to life imprisonment without possibility of parole. Mulero's Public Defender filed an Anders brief, and the state appellate court affirmed Mulero's life sentence, holding there were no arguable issues for appeal. See People v. Mulero, No. 1-99-0825, 308 Ill.App.3d 1091, 261 Ill.Dec. 898, 764 N.E.2d 189 (Ill.App.Ct.1999). Mulero did not file a Petition for Leave to Appeal to the Illinois Supreme Court.

Mulero then filed four separate versions of a state postconviction petition between 1996 and 2006. In these petitions, she alleged that her trial attorney, Lynch, was ineffective in numerous ways. Each petition included some overlap, but also made slightly different claims. The state trial court denied her petitions for post-conviction relief and Mulero appealed to the Illinois appellate court, which affirmed. The Illinois Supreme Court then denied Mulero leave to appeal.

After the state courts denied Mulero's claims of ineffective assistance of counsel, she filed a petition for habeas corpus in federal district court, again alleging ineffective assistance of trial counsel from Lynch. She alleged numerous supposed deficiencies, but the district court found many of the claims procedurally defaulted and rejected the remaining claims. The district court then issued a certificate of appealability limited to two issues: 1) whether Lynch's limited investigation into the facts of the murders, particularly his admitted failure to interview any witnesses, constitutes ineffective assistance of counsel; and 2) whether Lynch's failure to procure any supporting services, including experts or investigators, in violation of ABA death penalty case Guidelines, constitutes ineffective assistance of counsel. Mulero appeals.

II.

As noted, the district court certified two issues for appeal, the first concerning Lynch's failure to investigate and the second concerning his failure to obtain supporting services. In her brief on appeal, Mulero presents ten different alleged deficiencies by Lynch related to his claimed unconstitutional failure to investigate and failure to obtain supporting services.1 The government responds that Mulero has procedurally defaulted on all but three issues. We agree.

To preserve a federal claim for habeas review:

[ 668 F.3d 536 ]

[i]f the claim comes from the Illinois state courts, the petitioner must have presented each claim in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme Court in a petition for discretionary review. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). As part of this requirement, a petitioner must have fairly presented both the operative facts and legal principles that control each claim to the state judiciary. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.2001). A petitioner's failure to fairly present each habeas claim to the state's appellate and supreme court in a timely manner leads to a default of the claim, thus barring the federal court from reviewing the claim's merits. O'Sullivan, 526 U.S. at 848, 119 S.Ct. 1728.

Smith v. McKee, 598 F.3d 374, 382 (7th Cir.2010).

In this case, as the government correctly points out, Mulero only presented three of the claimed deficiencies through one complete round of state court review. Mulero does not really argue otherwise; instead she merely counters that the district court concluded that she had preserved all issues related to Lynch's failure to investigate witnesses and failure to obtain supporting services. See Petitioner's Reply Brief at 5-7. But "we review a district court's procedural default ruling de novo." Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir.2010). Thus, we owe no deference to the district court's view of default, but rather review the state court record with fresh eyes. We have done so and, in fact, Mulero only presented three claimed deficiencies through one round of Illinois review. Specifically, Mulero argued to the Illinois appellate court that Lynch was ineffective because he did not: 1) discover that Serrano claimed to have seen the taller woman shoot Cruz; 2) obtain psychological evidence to support an argument that Mulero's confession was involuntary; and 3) recognize that he could call into question the only real remaining evidence against Mulero—Rodriguez's statements—based on inconsistencies in her statements and bias. Brief and Argument of Petitioner-Appellant to Illinois appellate court at 10-17. While Mulero did present numerous other claims of ineffective assistance of counsel to the Illinois state trial court and in her petition for review to the Illinois Supreme Court, those other claims were not developed in her briefs to the Illinois appellate court challenging the denial of her petition for post-conviction review. Accordingly, only the three issues noted above are preserved for our habeas review.2

For the three preserved issues, our habeas review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). "Under the AEDPA, a petitioner for habeas relief must establish that the state court proceedings resulted in a decision that (1) was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court'; or (2) was `based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" 28 U.S.C. § 2254(d)(1)-(2).

In her habeas petition, Mulero challenged her state court conviction based solely on § 2254(d)(1) and then based only on the "unreasonable application" prong of (d)(1). Under the "unreasonable application"

[ 668 F.3d 537 ]

clause, habeas relief is appropriate "if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir.2011) (internal quotation omitted). Importantly, "[t]he focus of the reasonableness inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, not whether it applied clearly established federal law correctly." Id.

The federal law at issue here is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which governs ineffective assistance of counsel claims. Under Strickland's familiar two-part test, an attorney renders ineffective assistance of counsel if 1) the attorney's performance fell below "an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and 2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "To satisfy Strickland in the context of a guilty plea, a petitioner must show that counsel's advice regarding the plea was objectively unreasonable and that there is a reasonable probability that but for counsel's error, [petitioner] would not have pled guilty, but would have insisted upon a trial." Ward, 613 F.3d at 698.

The Supreme Court in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), explained that "the `prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial." Id. at 59, 106 S.Ct. 366. The Court gave the following example:

[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.

Id.

With these principles in mind, we turn to Mulero's three ineffective assistance of counsel arguments. Initially, we note that the Illinois state trial court did not address the first prong of Strickland. In other words, the state court never determined whether Lynch's guidance in advising Mulero concerning her desire to enter a blind plea fell below "an objective standard of reasonableness." Because the state court did not address this question, our review would be de novo. Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir.2011). But we need not reach that question because, as discussed below, Mulero cannot establish that the state court's conclusion that she did not suffer prejudice was unreasonable.

First, Mulero argued that Lynch was ineffective for failing to investigate Serrano and to obtain from Serrano a statement that she had seen the taller woman (i.e., Montanez) shoot Cruz. In support of this argument, Mulero pointed to affidavits sworn by an investigator and an intern, in which they stated that on July 17, 1997, Serrano informed them that she saw the taller of the three women walk behind Cruz and shoot him. While it is true that Lynch did not speak with Serrano or hire an investigator to do so, the Public Defender from whom Lynch took over the case had hired an investigator. Lynch knew that the investigator had concluded that Serrano's statement indicated

[ 668 F.3d 538 ]

that she might have seen the taller woman shoot the man outside the restroom. But Lynch also determined that Serrano's statement was not definitive. Lynch testified that he spoke with Mulero about the inconsistencies in Serrano's statements and that she nonetheless wanted to plead guilty. And the state court found Lynch's testimony credible. Given that Lynch and Mulero already knew of the inconsistencies in Serrano's eyewitness reports based on a report by an investigator hired by Mulero's original attorney, there are no reasonable grounds to believe that further investigation would have changed Lynch's advice about entering a blind plea or Mulero's decision to enter such a plea. Nor is there any reason to believe that obtaining another out-of-court statement from Serrano would have altered the strength of the case against Mulero: Notwithstanding Serrano's supposed statements in 1997 to an investigator and intern hired by Mulero's latest attorney that the taller woman shot Cruz, Serrano testified at Montanez's re-trial in November 19993 that one of the shorter women was the second shooter.4

Mulero's second claimed deficiency— that Lynch failed to obtain psychological evidence to support an argument that Mulero's confession was involuntary— fares no better. In his motion to suppress, Lynch argued that Mulero's confession was psychologically coerced, but the state court rejected this argument. Lynch also testified that he discussed making a coerced-confession argument with Mulero, but he doubted it would succeed given her boastful display to the television cameras following her confession. Moreover, the psychological evidence later obtained from Dr. Kovar was rejected as not credible by the state trial court and the Illinois Supreme Court found that in light of the other evidence, the trial court had properly rejected Dr. Kovar's credibility. Additionally, the assistant state's attorney for Cook County to whom Mulero confessed testified at her sentencing hearing that during her confession Mulero was very calm and in control of herself and did not indicate any remorse for her actions. He added that it appeared that Mulero was very proud of what she had done. This testimony also would negate a coerced-confession argument. Under these circumstances, the state court did not act unreasonably in concluding that had Lynch obtained additional psychological evidence, it would not have changed his advice or convinced Mulero to change her mind about entering a blind plea of guilty.

Finally, Mulero argued to the state court that Lynch should have recognized that he could call into question the only real remaining evidence against Mulero— inconsistencies in Rodriguez's statements and bias. Specifically, Mulero pointed to contradictory statements by Rodriguez— statements indicating that Mulero shot one victim and Montanez the other, and another

[ 668 F.3d 539 ]

statement indicating that Montanez shot both victims. Mulero also stressed that Rodriguez gave her statements to officers only after having been arrested for drug offenses. Lynch, though, testified that he had reviewed the Public Defender's file and discovery and knew of the inconsistencies in Rodriguez's police statements, and that he also knew that she was in custody on drug charges at the time she implicated Mulero. Lynch further stated that in discussing a potential guilty plea with Mulero, he discussed the case she was facing and the discovery evidence. Thus, there is no reason to believe that Lynch did not recognize that he could challenge Rodriguez's testimony if Mulero pleaded not guilty and proceeded to trial. There is also no reason to believe that had Lynch independently confirmed the inconsistencies, Mulero's decision to enter a blind plea would have changed. Nor is there any reason to think that additional investigation of Rodriguez would result in Mulero's acquittal if she had decided to plead not guilty.

In the end, what we have is an overwhelming prosecutorial case against Mulero, which included: Mulero's own confession to police and an assistant state's attorney; her post-confession behavior captured on camera; Montanez's confession implicating Mulero; Serrano's statements implicating Mulero; and Rodriguez's statements of the trio's statements before and after the shooting. Lynch could have attempted to call into question this evidence at trial, but he advised Mulero of the evidence and the pros and cons of pleading guilty and she nonetheless decided to plead guilty. Further investigation would not have added anything to this assessment. Moreover, the inconsistencies in Serrano's and Rodriguez's prior statements, which Mulero points to as evidence that she did not shoot Cruz, do not help Mulero because under Illinois law, Mulero was accountable whether or not she pulled the trigger—the only difference being whether she qualified for the death penalty. Under these circumstances, even if Lynch's performance was objectively unreasonable because he did not recommend against a blind guilty plea in light of the inconsistencies in Serrano's and Rodriguez's testimony, it is not reasonable to believe that Mulero suffered any prejudice. Rather, the best that Mulero could hope for is what she got—life in prison and not the death penalty.5

III.

Nearly twenty years ago, Mulero pleaded guilty in Illinois state court to two counts of murder and received a sentence of life imprisonment. Even assuming her attorney was deficient in failing to further investigate inconsistencies or a motive to lie in statements by two witnesses, or was deficient in failing to obtain psychological or IQ evidence to challenge Mulero's confession, the state court did not err in concluding that Mulero suffered no prejudice. The evidence against Mulero was overwhelming and there is no reasonable likelihood that, in light of this overwhelming evidence, any further investigation would have convinced Mulero to instead plead not guilty and then alter the outcome of the proceedings, i.e., her conviction on two counts of murder and life sentence. Accordingly,

[ 668 F.3d 540 ]

Mulero is not entitled to habeas relief. We AFFIRM.

Footnotes

1. Specifically, Mulero argues that Lynch was ineffective because he did not 1) interview witnesses; 2) discover key impeachable evidence; 3) use a key witness's contradictory statement; 4) investigate the crime scene; 5) investigate bullet angulation evidence; 6) reasonably consult with Mulero; 7) meaningfully consult with the prior lawyer who worked on Mulero's case; 8) consult with co-counsel; 9) attend conferences or seminars to educate himself on how to effectively represent Mulero; and 10) consult with a mitigation expert to prepare himself for the sentencing phase of Mulero's trial.

2. While on appeal Mulero makes passing reference to her innocence, she does not argue that her default should be excused because of cause and prejudice or a fundamental miscarriage of justice, and accordingly there is no basis to excuse her default. See Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir.2010).

3. Montanez's 1993 conviction was overturned in People v. Montanez, 273 Ill.App.3d 844, 210 Ill.Dec. 295, 652 N.E.2d 1271, 1274 (1995). Following a second jury trial in November 1999, Montanez was again convicted of the murders and sentenced to life imprisonment.

4. As we explained in Mendiola v. Schomig, 224 F.3d 589, 592 (7th Cir.2000), there may be many reasons why a witness would tell a defendant's friends or attorney what they want to hear: "the formality of a court, the presence of the litigants, and the gaze of a judge induce witnesses to hew more closely to the truth than they do when speaking in private and attempting to appease the losing side's advocate"; "[s]ome witnesses fall prey to influences—perhaps the persuasive influence of a skilled advocate asking leading questions, perhaps the less wholesome influence of the defendant's friends.... People fear the Latin Kings for a reason." Or, as in this case, the Maniac Latin Disciples.

5. Finally, we note that Mulero, in passing, requests that this court remand her case for a hearing, should this court not find habeas relief appropriate. Mulero did not develop this argument, however, so it is waived. In any event, Mulero is not entitled to a hearing. AEDPA governs the availability of evidentiary hearings on federal habeas review, and generally bars them except in narrow exceptions inapplicable to Mulero. See 28 U.S.C. § 2254(e)(2)(A), (B).

Marilyn Mulero
(Illinois Department of Corrections)