text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY EICHELBERGER, Defendant-Appellant.
    Fourth District
    No. 4—88—0769
    Opinion filed October 12, 1989.

      Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On September 9, 1988, the circuit court of Ford County entered judgment on jury verdicts returned finding defendant Gary Eichelberger guilty of three counts of possession of 15 or more grams of cocaine. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(a)(2).) The court subsequently sentenced him to a period of four years’ probation and ordered him to pay a fine of $8,000.

Defendant now appeals, contending: (1) the State failed to prosecute him within the applicable statute of limitations; (2) the State failed to prove him guilty of the above offenses beyond a reasonable doubt; (3) the court erred in allowing a witness to testify concerning statements allegedly made by the defendant when such statements were not disclosed to defendant pursuant to Supreme Court Rule 412 (107 Ill. 2d R. 412); (4) the court erred in allowing a prosecution witness to testify concerning a prior consistent statement made by him; and (5) the court erred in failing to grant a mistrial due to improper arguments made by the State during closing and rebuttal arguments. We affirm.

Defendant was charged by information on January 29, 1988, in case No. 88 — CF—2 with committing the following offenses: (1) three counts of unlawful possession of a controlled substance with intent to deliver; (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(2)); (2) three counts of unlawful possession of a controlled substance; and (3) one count of unlawful calculated criminal drug conspiracy (Ill. Rev. Stat. 1987, ch. 56V2, par. 1405(a)). All crimes allegedly took place sometime “between February and the Spring of 1985.” The State amended its information on May 20, 1988. The amended information was substantially similar to the original information except the State added additional defendants and a second count of unlawful calculated criminal drug conspiracy.

The evidence further revealed the State had also filed informations against defendant on December 9, 1986, and August 3, 1987, in case No. 86 — CF—61. In each information, the State charged defendant with committing the offense of calculated criminal drug conspiracy. Finally, a grand jury returned an indictment on March 16, 1988, and an amended indictment on April 27, 1988, in case No. 88 — CF— 12, which charged defendant with committing the eight counts of drug-related offenses listed in the May 20, 1988, information.

Defendant initially contends the State failed in the instant case to commence its prosecution of the charges against him within the applicable three-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 5.) He notes the charges by the State stem from activity which allegedly occurred from February 1985 through spring of 1985, and the information upon which he was tried and ultimately convicted was not filed until May 20, 1988.

However, the period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the defendant for the same conduct. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 7.) A comparison of the January 29, 1988, information with the amended information filed May 20, 1988, clearly reveals an identity of offenses for all charges except a second count of calculated criminal drug conspiracy, an offense for which defendant was not convicted. Furthermore, the second-amended information contains allegations that the period within which prosecution had to be commenced against defendant did not include those periods in which the above indictments and informations were in full force and effect because all charges stemmed from the same conduct. Testimony by the former State’s Attorney at the trial in this cause substantially corroborated those allegations. The State properly commenced its prosecution of the defendant within the applicable three-year statute of limitations period.

In order to determine whether the evidence was strong enough to support the convictions, we must examine the evidence in some detail. Defendant was tried jointly with his two other codefendants, Ronald L. Norman and Maurice Eichelberger. The main witness for the prosecution at that trial was William Cofel, who testified that, in February 1985, he and defendant “had some discussions” with regard to cocaine. He said defendant initially asked him if he wanted to go in with him in purchasing an ounce or two of cocaine. Cofel said they discussed the price, amount, and source of the cocaine. They decided Cofel would put up $3,000 for the drugs. They met again a few days later, and Cofel said defendant informed him he had “made the deal” and would be “getting the cocaine.” Cofel then gave him the $3,000. Cofel said their goal was to purchase more cocaine after they sold the first quantity they received.

Cofel stated that, shortly thereafter, defendant came over to Cofel’s home and brought the two ounces of cocaine with him. Cofel said he knew from past experience what cocaine looked like and the effects of that drug. However, they decided to “test out the drug” since they did not know what quality they had received. A friend came over, tried the drug with them and told them “it was pretty good stuff.” Cofel explained they later took each ounce of cocaine, or approximately 28 grams, and added seven or eight “cuts” to it to make it go farther. They then packaged it up a gram at a time and placed it in brown, one-gram bottles. Cofel said they ended up with about 60 or 70 grams of cocaine. They left the majority of the drug in the basement, and Cofel, defendant and Ronald Norman took out a few bottles at a time to sell it. Cofel said each made approximately a $1,000 profit from the sale of the first supply of cocaine.

Cofel further testified that, in March 1985, he withdrew $6,000 from the bank and gave it to defendant to purchase more cocaine. He, defendant, and Ronald Norman then met, “cut” the cocaine, weighed it and bottled it up for sale. He estimated that, with this second “batch,” they had a total of between seven and nine ounces to divide among them and sell.

Finally, Cofel testified that, during the latter part of March until the middle of June 1985, he and defendant worked together to make the third purchase of cocaine. He said all three contributed toward the purchase, and Cofel himself gave defendant between $2,500 and $3,500. Cofel said defendant purchased six ounces of cocaine, and he, defendant, defendant’s brother Maurice Eichelberger, and Ronald Norman all met to prepare the cocaine for distribution. He said they sold this third batch of cocaine, which exceeded 30 grams, and delivered all of the money to Maurice Eichelberger.

Cofel said he used quite a bit of his share of the second and third batches of cocaine for his own personal use. He explained its usage made him “feel good” and caused his face, nose, and gums to become numb. He said he had experienced similar sensations when he had used cocaine in the past.

Judy Cofel, William Cofel’s wife during the dates in question, also testified on behalf of the State. She said she remembered defendant came over to their home during February and March 1985, and he and her husband went down in their basement on those occasions. She said she saw the two men with a baggie of white powder and watched them snort the substance. She also discovered in her basement some small brown bottles in a paper bag, containers she had never seen before. She also became aware her husband was using cocaine between February and June 1985 because she learned he had been making large withdrawals from their bank account. She also said her husband discussed with her some disagreements he had been having with Maurice Eichelberger because he claimed Maurice was retaining too much of his money from the cocaine deals.

Maurice Eichelberger testified that, late in May or early in June 1985, his brother, the defendant, was quite depressed. He said his brother told him he had been “doing a lot of drugs over at Cofel’s house,” that he owed William Cofel a lot of money, and that Cofel had sold drugs. He recalled that both his brother and Ron Norman had spent a number of weekends over at Cofel’s house.

Several witnesses then testified concerning their own experiences with either William Cofel or the defendant. For example, both Tom Brown and Jerry Hempel testified they were familiar with Cofel as well as the three codefendants. They indicated that, in approximately April 1985, they separately went to Cofel’s residence. Each snorted cocaine with Cofel, which cocaine had been supplied by him. They described the substance given to them by Cofel as a white powder which was contained in a brown vial. Both indicated they had used cocaine in the past. Brown stated the substance he ingested that April “just made him feel better,” while Hempel said it gave him a light-headed, dizzy feeling. Hempel said he had experienced that same feeling in the past when he had used cocaine. Brown further said he had taken it for granted the substance Cofel gave him that April was cocaine, and he had no reason to change his mind afterward because “he knew what cocaine [was].” Brown said he had never seen defendant with any cocaine nor had he ever purchased any from him.

James Parcell testified he was familiar with the physical characteristics, methods of ingestation, and effects of cocaine because he had snorted it in the past. He specifically noted that, in the spring of 1985, defendant produced for him a small vial containing a white powdery substance which defendant referred to as cocaine. He stated he and defendant “did” the cocaine, which cocaine made his heart beat faster and made him “high.” He said the substance he ingested that night with the defendant was similar to cocaine he had used in the past.

Several witnesses from various State-related agencies also testified concerning the drug, cocaine, and its side effects. For instance, Illinois State Police Lieutenant William Willis testified he had been involved in narcotics investigations in Ford County in the spring of 1985. He said the cocaine seized during those investigations was usually packaged in weights of grams up to a quarter ounce and were contained in plastic baggies and/or paper packets. He described the cocaine as a white crystal powder which sometimes also contained a chunk of white crystal powder. He stated a gram of cocaine at that time averaged from $85 to $120, while an ounce cost from $1,800 to $2,200. He admitted a “turkey sale,” or a sale of a substance purporting to be something which it was not, could involve any amount. He said he had been told that cocaine usage could affect the nose of the user and cause a numbness.

Kenneth E. Wurl, a narcotics investigator for the Illinois State Police, stated he had in the past been involved in the purchase of anywhere from a gram to five ounces of cocaine at a given time. He said an ounce of cocaine contained 28.3 grams. He described cocaine as a white powdery substance. Gram packages of the substance usually were delivered in small, folded paper packages. Other measures of cocaine came packaged in small, clear plastic baggies or foil packets. He stated that, in May 1986, when he first began working in narcotics investigation, cocaine cost approximately $2,000 an ounce.

Daniel Brown, the chief toxicologist for the Illinois State Police, testified he was familiar with the drug cocaine. He indicated that cocaine, when snorted through the nostrils of the nose, initially caused a numbness in the nose and then acted to increase the user’s heart and respiration rates. He stated the drug also caused a state of excitement or euphoria. He, too, described cocaine as a white powdery substance. However, he indicated on cross-examination that other drugs also came in a white powdery form and caused a numbness of the tongue, lips, or nose when ingested.

Brown said the laboratory normally did a minimum of two tests on a substance sent to it before deciding what type of drug it was. However, he stated he would be able to form an opinion as to the nature of a particular substance and would be able to exclude other drugs with a reasonable degree of medical certainty if he knew the substance (1) was inhaled nasally, (2) had a local anesthetic effect on the nose, (3) increased the heart rate, and (4) caused a euphoric effect.

To support a conviction for the offense of unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt the defendant had knowledge of possession of the controlled substance, and the controlled substance was in the immediate and exclusive control of the defendant. People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.

The State must also prove beyond a reasonable doubt that the substance possessed by the defendant was the controlled substance charged. Defendant strongly asserts that proof was not made here. The State concedes none of the alleged substance was produced at trial, nor were any tests performed on samples of it. However, it argues it presented sufficient facts regarding the substance from which the jury could infer the powder was, in fact, cocaine.

It is undisputed a substance alleged to be a narcotic drug can be so proved by circumstantial evidence, and the State is not required to prove it through evidence of a chemical test. In People v. Robinson (1958), 14 Ill. 2d 325, 153 N.E.2d 65, testimony of three longtime heroin users that a substance they had sampled was heroin was deemed to be sufficient to prove the nature of that substance. Similarly, in People v. Binkley (1975), 25 Ill. App. 3d 27, 322 N.E.2d 514, the testimony of a person familiar with cannabis that a substance she had smoked was cannabis was held to be sufficient to prove that was so. Defendant maintains the persons identifying the substance here as cocaine lacked the experience of those in Robinson, and cannabis is easier to recognize than cocaine. While those contentions may be true, the differences between the circumstances here and in those cases merely go to the weight to be given to the testimony of the witnesses.

Moreover, various factors can be examined in order to establish a powder was actually a controlled substance, including the following:

“The exorbitant price paid for the small amount of substance; the fact it was a powder; that [the witness] had been a user and had had previous transactions in narcotics with the [defendant]; *** that [the witness] sold the substance to his customers as [a controlled substance] and that none of . them ‘kicked’ or complained ***.” Toliver v. United States (9th Cir. 1955), 224 F.2d 742, 745.

Here, the testimony of William Cofel established defendant was involved on three separate occasions in the purchase, preparation, and sale of more than 30 grams of cocaine. His testimony showed in particular that defendant made numerous visits to Cofel’s home to discuss their purchase arrangement, to cut and bottle their purchase, and to pick up smaller quantities for subsequent sale. These extensive visits and defendant’s use of drugs at Cofel’s home were corroborated by the testimonies of codefendant Maurice Eichelberger and Judy Cofel.

Cofel's testimony further revealed he, either alone or in conjunction with defendant and Norman, contributed substantial amounts of money toward each of the purchases of the substance in question. The amounts paid were consistent with the then “going price” of cocaine as established by witnesses Willis and Wurl. Several witnesses identified the substance in question as a white powder found either in little brown bottles or in clear plastic baggies. While William Cofel was the only witness who actually testified he had used the substance in question, his testimony established he had seen and used cocaine in the past. He said his experiences with the substance obtained on each of the three occasions here resulted in sensations similar to those he had experienced in the past. He said its usage made him “feel good” and caused his face, nose, and gums to become numb. The testimony of Brown, Hempel, and Parcell revealed they had snorted a white powder with either Cofel or the defendant during the time period in question and sustained effects similar to those they had experienced in the past when they had ingested cocaine. Two witnesses from different State agencies also testified regarding the effects of cocaine on the user, many of which were similar to those personally experienced by the above witnesses.

Citing People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375, and People v. Gnat (1988), 166 Ill. App. 3d 107, 519 N.E.2d 497, defendant asserts this is a case where the proof of the guilt of the accused is dependent entirely upon the testimony of an accomplice, here Cofel. Under those circumstances, the testimony of the accomplice must be viewed with caution on review and will not be sufficient to support a conviction unless the testimony is clear and convincing. Such circumstances did not exist here. Cofel’s testimony tying defendant to possession of cocaine with intent to deliver was corroborated by the testimony of (1) Cofel’s wife, who may or may not have been estranged from him; and (2) the testimony of Maurice Eichelberger that defendant admitted to him he had been “doing a lot of drugs” with Cofel at the time in question.

It is the jury’s function to determine the credibility of the witnesses, the weight to be given their testimony, and inferences to be drawn therefrom. The jury’s determination of guilt should not be disturbed on review where, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) A consideration of all of the foregoing evidence leads us to conclude the State produced sufficient evidence to support a verdict finding defendant guilty of three counts of unlawful possession of cocaine beyond a reasonable doubt.

Defendant next contends the court erred in allowing William Cofel to testify concerning statements allegedly made by the defendant when such statements were not disclosed to him pursuant to Supreme Court Rule 412. That rule states in pertinent part as follows:

“(a) *** [T]he State shall *** disclose to defense counsel the following material and information within its possession or control:
* * *
(ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” 107 Ill. 2d R. 412.

The issue was first raised in regard to the State’s opening statement. There, the State indicated the evidence would show the defendant and William Cofel had discussions concerning the purchase and sale of cocaine, whereby defendant was to obtain the cocaine and Cofel was to supply the “seed money” involved. Defense counsel objected on the ground that no statements by any defendant had been delivered to him pursuant to Rule 412. The State told the court prior discovery had informed defendant that Cofel, defendant, and Ronald Norman had had discussions concerning cocaine and what role each particular person would play. Furthermore, it stated the substance of the oral statements made by the defendants was set out in the police reports. The court then overruled defendant’s objection.

The function of an opening statement is to apprise the jury of the evidence each party expects to prove at trial. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104.) Error can occur in a criminal prosecution when the State asserts facts or propositions in its opening statement which are not later presented at trial. (People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949, cert, denied (1986), 479 U.S. 872, 93 L. Ed. 2d 173, 107 S. Ct. 249.) Evidence was presented in the instant case which did reveal the substance of the conversations between Cofel and defendant. As we subsequently explain, no reversible error resulted from the admission of that evidence. Accordingly, no reversible error resulted from the State’s opening statement.

Defense counsel’s next objection based upon Rule 412 occurred when the State asked witness William Cofel to describe a conversation he said he had with codefendant Maurice Eichelberger. The evidence was being introduced in the case against the defendant. When the State informed the court the witness was recalling information not previously disclosed by him to the State, the court overruled the objection.

Supreme Court Rule 412(f) places responsibility on the State to “ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.” (107 Ill. 2d R. 412(f).) However, the State cannot be accused of withholding evidence which is not in its possession and cannot supply that which it does not have. (People v. Hamm (1985), 136 Ill. App. 3d 11, 482 N.E.2d 1103, cert, denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1475.) The defense made no showing contrary to the State’s explanation that the information concerning defendant was newly obtained. The court correctly overruled the above-mentioned objection.

Finally, defense counsel objected on Rule 412 grounds when the State asked witness William Cofel to recall what defendant told him in March 1985 when he delivered six ounces of cocaine to him. After the court overruled the objection, the witness proceeded to implicate codefendant Maurice Eichelberger as a participant in the last cocaine transaction. The record fails to indicate whether the State disclosed evidence of this statement to defendant. However, because this evidence centered mainly on the State’s case against Maurice Eichelberger and prejudiced defendant only in relation to the conspiracy charge, a charge for which he was not convicted, any error in the admission of such statement was harmless.

Next, defendant contends the court erred in allowing a witness to testify in rebuttal concerning a prior consistent statement made by him. During cross-examination by defendant’s counsel, William Cofel testified concerning his prior dealings during 1986 with numerous persons other than the defendant involving cocaine transactions. He further testified regarding his earlier plea arrangement with the State whereby he pleaded guilty to a prior unrelated offense in exchange for his agreement to testify on behalf of the State.

His testimony further revealed the following chain of events: (1) around the end of August or first of September, 1986, he first “realized he was in trouble” and went to talk to his attorney; (2) during October 1986, Cofel learned of a grand jury indictment pending against him and further learned the police wanted to talk to him regarding cocaine sales; (3) during October 1986, Cofel turned himself in; (4) on November 24, 1986, Cofel pleaded guilty to a prior, unrelated charge, was granted probation, and agreed to testify on behalf of the State in those cases in which he was involved; and (5) on December 3, 1986, Cofel informed law enforcement authorities about his prior dealings with the defendant.

During cross-examination, defendant’s counsel clearly attempted to establish Cofel possessed a motive to testify falsely concerning the defendant. Over defense objection, the State later elicited testimony from Cofel on rebuttal that, toward the end of October or first of November 1986, he told his lawyer he had been involved with the defendant in buying and selling cocaine.

Prior consistent out-of-court statements are admissible in evidence when, as here, the State seeks to introduce it to refute a charge of recent fabrication or when it is suggested the witness had a motive to testify falsely. (People v. Burns (1986), 144 Ill. App. 3d 345, 494 N.E.2d 872.) However, such statements are admissible only if they were made at a time when the motive did not exist or the effect of the story could not have been foreseen. People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.

In People v. Green (1984), 125 Ill. App. 3d 734, 466 N.E.2d 630, this court held the trial court committed error in admitting prior consistent statements made against the defendant by his two accomplices at a time when the investigation had centered upon those individuals. This court determined the motive to testify falsely had already arisen at that point because “it must have been apparent to them that they were prime suspects and faced with criminal liability for [the offenses in question]. The motive to place the onus on defendant must have been present.” Green, 125 Ill. App. 3d at 745, 466 N.E.2d at 637.

More recent decisions of the supreme court in People v. Ashford (1988), 121 Ill. 2d 55, 520 N.E.2d 332, cert, denied (1988), 488 U.S. 900, 102 L. Ed. 2d 234, 109 S. Ct. 246, and People v. Titone (1986), 115 Ill. 2d 413, 505 N.E.2d 300, cert, denied (1987), 484 U.S. 873, 98 L. Ed. 2d 162, 108 S. Ct. 210, are of particular significance to the problem of the prior consistent statement admitted into evidence here. In Ashford, a prosecution witness in a similar case who had testified at trial concerning admissions made by that defendant to him was impeached by prior inconsistent statements. The supreme court held that the circuit court properly permitted the prosecution to rehabilitate the witness by a prior consistent statement given to police while he was in jail on a minor unrelated charge and unable to post bond. No evidence indicated that any promise had been made to that witness at the time of his prior consistent statement. Similarly, in Titone a State witness in a murder case testified to driving a vehicle, into which the defendant and the others had forced two bound men, to a place where they were taken from the vehicle and left after shots had been fired. That witness was impeached by a prior inconsistent statement and evidence of her drug abuse. The supreme court held the trial court then properly admitted rehabilitative testimony of a prior consistent statement she had given to police at a police station when she was taken by police on the day of the murder. The supreme court stated that the trial court could properly have determined that the witness had no motive to fabricate at the time of the statement. The evidence did not indicate she had been offered any leniency for the statement at the time it was made.

At the time Cofel made his prior consistent statement in the instant case, he knew the police were investigating him and wanted to question him regarding his prior cocaine dealings. He further knew a grand jury indictment was pending against him. However, the record fully shows Cofel had been involved in buying and/or selling cocaine with many persons other than defendant, and pending investigations had not necessarily centered on his specific dealings with defendant. Thus, the focus of law enforcement upon him in regard to the case where his testimony was used was no greater than that upon the accomplice witness in Titone. Unlike in that case, Cofel did not make the consistent statement after being taken there by police. In fact, the statement was not made to police but to the lawyer of the witness, who could not make any concession to the witness for the statement. We have some concern with regard to the ramifications of the use of a statement by a witness to a lawyer for the purpose here because of the complications which might arise.

On the basis of the precedent of Ashford and Titone and for the other reasons stated, we hold the court properly permitted the introduction of the prior consistent statement by Cofel here.

Finally, defendant contends the court erred in failing to grant a mistrial due to allegedly improper comments made by the State during closing and rebuttal arguments. We note initially that many of the objections were sustained by the court, and the court either directed the State to correct its error or instructed the jury to disregard it. Generally, when the court sustains an objection or admonishes the jury, any error resulting from the comment is cured. People v. Campbell (1984), 126 Ill. App. 3d 1028, 467 N.E.2d 1112.

The most , notable claims of error by defendant involve comments concerning the main witness for the prosecution, William Cofel. Throughout closing and rebuttal arguments, the State continuously referred to his testimony as “uncontradicted” or “unrebutted” or “consistent.” The State further remarked Cofel “had no reason to lie” and “didn’t have to talk.”

However, the State may discuss the credibility of witnesses during closing and rebuttal arguments when such discussion is based upon the evidence or reasonable inferences therefrom. The prosecutor is entitled to assume the truth of his evidence. It is also permissible for the State to describe its evidence as “uncontradicted.” People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301; People v. Redman (1986) 141 Ill. App. 3d 691, 490 N.E.2d 958.

The State also commented that, if Cofel were “going to make up a lie and *** try to convict somebody, he could have told [the State] a better story ***. And, of course, if [the State] knew [he was going to lie, it] wouldn’t even put him on.” An objection by counsel for a codefendant was overruled by the court. While we note this comment was erroneous, we cannot conclude it, standing alone, resulted in reversible error.

Finally, the State made the following comment to the jury during its rebuttal: “Your decision has to be beyond a reasonable doubt, but I didn’t hear anything from any defendant that seriously contests the fact that this is cocaine.” The court sustained an objection to that statement by counsel for a codefendant and instructed the jury to disregard it. The State also subsequently clarified its comment. While these admonitions and clarifications sufficed to cure any error which occurred by this remark, we further note it can be proper for the State to comment on the failure of a defendant to present evidence which could support his case. People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645; People v. Depner (1980), 89 Ill. App. 3d 689, 411 N.E.2d 1368.

The trial court did not err in denying defendant’s motion for a mistrial. However, we deem it appropriate to comment that the prosecutor here unnecessarily flirted with violating the right of the defendant and committing reversible error. We believe that more careful preparation of closing argument can prevent that from happening in the future.

For the reasons stated, the judgment of the circuit court of Ford County is affirmed.

Affirmed.

McCULLOUGH, PM., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN D. STROUD, Defendant-Appellant.
    Fourth District
    No. 4—89—0029
    Opinion filed October 19, 1989.

      Fint, Wright & Smith, Ltd., of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of unlawful possession of cannabis with intent to deliver in violation of section 5(d) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1987, ch. 56 V2, par. 705(d)). The circuit court of McLean County sentenced defendant to 30 months’ probation, 90 days’ incarceration with credit for time served, and fined defendant $3,000 plus costs. Defendant appeals, contending that the circuit court erred in denying his motion to suppress evidence.

Defendant was charged with possession of cannabis with intent to deliver in violation of the Act. (Ill. Rev. Stat. 1987, ch. 56V2, par. 705(d).) The charge stemmed from an incident involving a routine traffic stop which led to the seizure of the cannabis.

Defendant filed a motion to suppress physical evidence. At the suppression hearing, deputy sheriff Scott Shumaker testified that on April 23, 1988, at approximately 9:30 p.m. he was on DUI patrol driving east on Six Points Road in McLean County. While on patrol, Shumaker noticed a vehicle driving westbound without a rear license-plate light. Deputy Shumaker made a U-turn and stopped the vehicle. While stopping the vehicle, Shumaker illuminated the back of the car with his spotlight and noticed the passenger appearing to place something under the seat, as the passenger’s shoulders were dropped. Deputy Shumaker got out of his car, approached the driver’s side of the vehicle and asked defendant Stroud for his driver’s license. After defendant produced his license, Deputy Shumaker detected the smell of alcohol coming from the car. Shumaker then asked defendant to step from the vehicle to show him the broken rear license light. Deputy Shumaker did not smell alcohol on defendant’s breath. Shumaker then asked defendant to step to the front of the car and approached the passenger side of the car to ask passenger Randy Tromp for his identification. After Tromp produced his identification, Shumaker asked him to exit the vehicle so Shumaker could look for alcohol. Tromp got out of the car and left the door open.

Deputy Shumaker then looked inside the car and saw a green leafy substance inside a plastic bag protruding from underneath the passenger seat which, due to his past experience, he believed to be cannabis. Shumaker was standing at the open door and did not have to physically enter the car to see the bag.

After noticing the bag, Shumaker pulled it out to make further observation and found another bag with similar contents. Shumaker then called for an additional squad car to watch the two passengers while he searched the interior of the car. Deputy Shumaker then found one more bag believed to be cannabis under the passenger’s seat, one under the driver’s seat and some in the glove box. Also found were two “one-hitter” boxes, with traces of cannabis, and a large O’Haus scale. Defendant was then taken into custody.

The State contends that under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14), Deputy Shumaker had the right to detain and question defendant and his passenger because it was reasonable for Shumaker to infer that a crime had been committed or was taking place. And once Shumaker had the right to stop and question the passenger, anything he saw in plain view could be confiscated and considered not part of any illegal search. We agree.

The fourth amendment to the United States Constitution and the safeguards in section 6 of article I of the Illinois Constitution (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6) do not prohibit all searches made without a warrant. Instead, these safeguards only prohibit warrantless searches which are unreasonable. (United States v. Rabinowitz (1950), 339 U.S. 56, 94 L. Ed. 653, 70 S. Ct. 430; People v. Watkins (1960), 19 Ill. 2d 11, 166 N.E.2d 433.) The United States Supreme Court has held that an officer may make an investigative stop if he reasonably suspects criminal activity has taken place, is taking place, or will take place. (Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Illinois has codified this decision in section 107 — 14 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14), which states: “A peace officer * * * may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense.” This rule has been extended to detentions of automobiles and their occupants. People v. Martin (1984), 121 Ill. App. 3d 196, 459 N.E.2d 279.

To be reasonable, Shumaker’s inference must have been based on “more substantial facts and circumstances than would support a mere hunch, yet less substantial than those necessary to support a finding of probable cause to arrest or search the defendant.” (People v. McGowan (1977), 69 Ill. 2d 73, 77-78, 370 N.E.2d 537, 539.) Deputy Shumaker noted that defendant’s passenger appeared to be putting something under the seat, as the passenger’s shoulders were dropped. Later, as Shumaker stood by the car, he detected the smell of alcohol coming from the car. Thus it was reasonable for the deputy to infer that a crime such as having open alcohol in the vehicle may have been in progress.

Once Deputy Shumaker had a right to stop and question the passenger, anything he saw in plain view could be confiscated and considered not part of an unreasonable search. The United States Supreme Court has held that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States (1968), 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 1069, 88 S. Ct. 992, 993.

Deputy Shumaker testified that once passenger Tromp stepped out of the car, the bag of cannabis was in plain view. He did not have to enter the car to see it. Thus, the seizure of the first bag of cannabis was not unreasonable. The sight of the cannabis in plain view also gave Deputy Shumaker probable cause to arrest defendant and passenger Tromp and to conduct a lawful, warrantless search of the car. In Martin, the court held that evidence discovered in plain view was sufficient to escalate an officer’s suspicions to the level of probable cause to arrest. The court in Martin also held that in such a situation, a search could be justified under either the search incident to arrest doctrine or the warrantless automobile search doctrine.

The search incident to arrest doctrine was discussed by the United States Supreme Court in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860. In this case, a police officer stopped a motor vehicle after a traffic violation. While questioning the driver, the officer smelled burning cannabis and saw an envelope which he associated with cannabis. The officer searched the car and confiscated illicit drugs. The supreme court stated that an officer who makes a lawful arrest of an occupant of an automobile may contemporaneously search the passenger compartments of the auto, including any containers.

The warrantless automobile search doctrine was discussed in United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157. The Supreme Court stated in Ross that when a police officer legitimately stops a vehicle and has probable cause to believe contraband is concealed somewhere within the car, the officer may conduct a warrantless search of the vehicle.

Either of these two warrantless search theories would apply here. Thus, Deputy Shumaker had probable cause once he saw the cannabis in plain view and conducted a lawful, warrantless search of defendant’s car.

Defendant contends that although the initial stopping of his car was legal, any further search was not. Defendant maintains that passenger Tromp’s actions indicating the placement of something under the seat, along with Deputy Shumaker’s detection of alcohol coming from the car, were not sufficient to constitute probable cause to allow a legal, warrantless search of the vehicle. This, however, is not quite the issue here. The trial court ruled that the plain view doctrine gave Deputy Shumaker probable cause to search the vehicle. Thus, at issue is whether these circumstances gave Deputy Shumaker a reasonable belief that a crime was being committed to enable him to conduct a Terry stop. If so, the plain view rule would then establish the probable cause required to search the car without a warrant.

Defendant offers several cases to support his view. In People v. Collins (1977), 53 Ill. App. 3d 253, 368 N.E.2d 1007, an officer pulled defendant over for a traffic violation, and noticed defendant lean forward and to the right, reaching over to the passenger’s seat. After ordering defendant from the car, the officer saw an ordinary brown paper bag inside the car. The officer took the bag, opened it and found three plastic bags of cannabis. The court suppressed the evidence because the State conceded that the contents of the brown paper bag were not in plain view and that the search of defendant’s automobile was not incident to a custodial arrest. In the present case, the first bag of cannabis seized was in plain view. The rest of the evidence was seized under either a search incident to custodial arrest theory or a warrantless search of an automobile theory.

In People v. Clark (1981), 98 Ill. App. 3d 405, 424 N.E.2d 879, an officer noticed a car on the road with only one taillight and activated his lights in an attempt to stop the car. The car swerved from one lane to the other, and the officer noticed the driver bend over to the passenger side of the car. When the car pulled over, the officer approached the driver’s side and asked the driver for his license. Defendant opened the door, stepped out of the car, and stood next to the door. The officer looked into the car and saw plant material consisting of broken crushed leaves and seeds on the floor of the car. The officer believed the substance to be cannabis and searched the car, finding a cigarette box filled with cannabis he had not seen before. Thereafter, the officer opened the trunk and found three more bags of cannabis. The evidence seized was supressed because the court found that “an officer has no justification to believe there is marijuana somewhere else in the car merely because the officer observed a few seeds on the floor of a car in a rural area.” (Clark, 98 Ill. App. 3d at 407, 424 N.E.2d at 881.) The court also noted that an officer who observes a defendant driver bend over as if to place something under the seat does not have a reasonable basis on this fact alone to believe that a car contains an illegal substance. Thus, in Clark, an officer’s observation of the defendant bending over to the passenger’s side coupled with the observation of a few seeds and leaves in a rural area did not give the officer probable cause to search the vehicle. In the present case, Deputy Shumaker’s observation of the passenger Tromp bending over, along with the smell of alcohol, did give Shumaker the right to have the passenger exit and to conduct a limited search once defendant had been lawfully pulled over. Once Shumaker had the passenger exit and saw the bag of cannabis in plain view, he then had probable cause to arrest the two men and search the vehicle.

Finally, defendant relies on the case of People v. Gulley (1982), 111 Ill. App. 3d 1091, 445 N.E.2d 26. In Gulley, after two officers arrested defendant for driving under the influence, defendant allowed one of the officers to drive his car to the station. Upon arriving at the station, the officer found an opaque plastic container in the car and opened it, alleging to have received tips that defendant had been selling drugs. The officer found pills which were later identified as a controlled substance. The trial court held, and the appellate court affirmed, that the officer had no probable cause to examine the container. The fact that Gulley was intoxicated, along with the alleged tips, did not constitute probable cause. In addition to this, the plain view doctrine did not apply because the container was opaque. In the present case, Officer Shumaker did not need to open a container to see the cannabis, for it was in a clear plastic bag, in plain view.

On a motion to suppress evidence the defendant has the burden of proof to make a prima facie showing that the evidence was obtained by an illegal search and seizure. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A reviewing court will not overturn a trial court’s decision on a motion to suppress evidence unless it is determined to be manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Defendant has not met his burden to overturn the trial court’s decision on the motion to suppress evidence. Defendant has argued that Deputy Shumaker had no probable cause to conduct the search of the vehicle. However, defendant does not even mention the plain view doctrine, the rationale the trial court gave for denying the motion to suppress the evidence. Therefore, the decision of the trial court is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE LUND JUSTICE KNECHT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER JASON WAGNER, Defendant-Appellant.
    Fourth District
    No. 4—88—0574
    Opinion filed October 19, 1989.

      KNECHT, J., dissenting.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a bench trial, defendant was convicted of attempt (murder) and armed robbery, in violation of sections 8 — 4, 9 — 1, and 18 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1, 18 — 2). Defendant was 16 years old at the time of trial, but he was tried as an adult, pursuant to section 5 — 4(6)(a) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805— 4(6)(a)). Shortly after the trial, defendant pleaded guilty to three counts of burglary. (See Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1.) The circuit court of Adams County sentenced defendant to a term of 22 years’ imprisonment for attempt (murder), 15 years’ imprisonment for armed robbery, and four years’ imprisonment on each of the three burglary convictions. The sentences were to be served concurrently. In addition, defendant was “ordered to pay restitution as set forth in the Presentence Investigation Report as to each victim.” In particular, the court ordered defendant to pay $44,568 to the victim of the attempt (murder) and armed robbery. Defendant appeals his convictions and sentences for attempt (murder) and armed robbery.

On appeal, defendant raises the following issues: (1) the trial court erred in finding defendant guilty of attempt (murder) because the court concluded defendant did not necessarily have an intent to kill, but that he did have an intent to commit great bodily harm; (2) the court erroneously denied defendant’s motion to suppress because his confessions were induced with the promise that he would be prosecuted under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 1 et seq.)] and (3) the order of restitution in the amount of $44,568 should be vacated because defendant will not be able to pay the sum within five years. Defendant has not challenged his convictions and sentences for burglary, and we will not address them. The pertinent facts follow.

Shortly before closing time on November 16, 1987, a man with a shotgun robbed a Clark oil station at 30th and Main Streets in Quincy, Illinois. The lone attendant, Mark Smith, testified he did not see the man’s face, as the man was wearing a black ski mask. He was also wearing a green Army jacket and carrying a shotgun. The man kicked open the door to the back room and shot Smith immediately after entering the room. Smith was able to reach a telephone and call police after the man moved to the front of the station. Another witness, the station manager, testified that a small amount of cash was taken from the register. The man escaped before police arrived.

Defendant was arrested in West Quincy, Missouri, on March 2, 1988. Defendant was wanted for questioning in Illinois on unrelated burglary matters, and he was transferred to the Adams County Youth Home in Quincy, Illinois. On March 3, 1988, defendant was questioned on three different occasions between 1 and 7 p.m. During the final interview, he confessed that he was the one who robbed the Clark oil station and shot Mark Smith. Based on the information obtained from defendant on March 3, the police recovered the shotgun, ski mask, and green Army jacket.

An amended information was filed on March 31, 1988, charging defendant with attempt (murder) and armed robbery, stemming from the incident at the Clark oil station. In addition, defendant was charged with six essentially unrelated counts of burglary and theft. Although he was only a 16-year-old juvenile, defendant was charged as an adult because of the presence of the armed robbery offense. Section 5 — 4(6)(a) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(6)(a)) requires a juvenile, who is at least 15 years of age, to be charged as an adult if he is charged with the commission of certain offenses. Armed robbery committed with a firearm is one of the offenses specifically mentioned. The court did grant defendant’s motion to sever the more serious counts of attempt (murder) and armed robbery.

Defendant filed a motion to suppress, alleging that his confession on March 3 had been induced with the promise that he would be tried as a juvenile, and not as an adult. The court heard testimony over two days and concluded that defendant’s confession was voluntary. The court made the statement that defendant could have entertained a reasonable belief that he would be tried as a juvenile based on some of the comments made by the interrogating officers. However, the officers made no promises to defendant in return for his confession, and there was nothing said by the officers that was intended to induce or coerce a confession. The officers gave all the proper warnings prior to obtaining defendant’s confession. Defendant was simply not told he would be tried as an adult for armed robbery because of statutory requirements.

Defendant subsequently waived his right to a jury trial, and a bench trial was held on June 7, 1988. He was found guilty of armed robbery and attempt (murder). On the attempt charge, the court concluded it could not clearly find defendant intended to kill when he fired the shotgun. However, the court found defendant clearly intended to commit great bodily harm.

Following defendant’s bench trial, defendant negotiated a guilty plea on the remaining charges against him. He was sentenced as above stated and ordered to pay restitution in the sum of $44,568 to Mark Smith, the attendant at the Clark station.

Defendant first argues his conviction for attempt (murder) must be vacated because the court based the conviction on erroneous grounds. The State concedes the court committed error and requests that we reduce the conviction to aggravated battery.

The trial court found defendant guilty on both charges for which defendant was tried at the bench trial. In making its findings, the court explained its rationale for finding defendant guilty. As to the attempt (murder) charge, the court stated:

“You went in there with the gun ready. You had a shell in the chamber and you shot that gun just like that for really no apparent reason. And you shot the individual at close range.
So whether or not you really intended to kill him, I really don’t know that. I can’t find that that is what your true intent was, but there certainly can be no question but what you intended to do great bodily harm. ***
A person who didn’t want to ever use that weapon wouldn’t bother to even load it. They would just take the gun in and hope to be able to commit the crime without doing anything more than scaring the individual into believing that it may be loaded. You went fully prepared to do whatever you had to do. You have admitted to the police that if you had to shoot someone you didn’t want to kill them. You just wanted to hurt them bad enough to complete the crime. So, perhaps in your youth you thought you could intentionally shoot somebody with the safety of knowing that you weren’t really going to kill them. You were just going to seriously hurt them.
That is why the law makes it against the law to shoot someone under those circumstances. It makes it attempt murder. The law doesn’t have to prove absolutely that your mind set was to kill somebody. The law has to prove that you committed the acts under circumstances where you knew that it would cause great bodily harm.
Anyone had to know that what you were doing and what you did would cause great bodily harm to someone when you shot them from perhaps three or four feet with a sawed off shotgun regardless of the type of shell you had in it.
I can’t really consider your statement to the police as to a confession as to Count II. It’s only an admission that you fired the weapon. You have made exculpatory statements about your intent and about your intention to even fire the gun. But it seems to me clearly that the evidence supports the conclusion beyond a reasonable doubt that you intended to use the weapon and that you intended to do great bodily harm to Mark Smith.”

From these statements, it becomes clear the trial court based defendant’s conviction for attempt (murder) on the ground that defendant intended great bodily harm to the victim.

Illinois law is clear that an intention to commit great bodily harm will not be sufficient to convict on a charge of attempt (murder). An element of attempt (murder) is a specific intent to kill. (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28, 33; People v. Trinkle (1977), 68 Ill. 2d 198, 201-04, 369 N.E.2d 888, 890-92.) The trial judge expressly stated he could not find that intent. Accordingly, we must vacate the conviction and sentence for attempt (murder).

The trial court’s finding that defendant intended to commit great bodily harm does support the offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a).) Under the authority of Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)), a reviewing court may reduce the conviction to one of a lesser degree where an included offense is involved. (People v. Trinkle (1976), 40 Ill. App. 3d 730, 734, 353 N.E.2d 18, 22, aff’d (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) In this case, aggravated battery is an included offense of attempt (murder). A review of the evidence indicates defendant intended beyond a reasonable doubt to commit great bodily harm. Further, defendant’s act of firing the shotgun caused harm to the victim. Pursuant to the powers granted to us by Supreme Court Rule 615(b)(3), we reduce the degree of the offense from attempt (murder) to aggravated battery. Further, we reduce defendant’s sentence to five years, pursuant to the authority given us by Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)).

Defendant’s second argument concerns his motion to suppress. In his motion, defendant alleged that interrogating officers had promised him he would be tried as a juvenile if he confessed to all his misdeeds before he turned 17 years of age. Defendant argues he relied on this promise in giving statements which indicated his participation in the armed robbery of the Clark station and the shooting of the attendant. However, instead of charging defendant as a juvenile, defendant was charged and tried as an adult.

The trial court heard testimony on the motion to suppress over two days and, eventually, denied the motion. Following defendant’s arrest in Missouri on March 2, 1988, he was transferred to the Adams County Youth Home in Quincy, Illinois. On March 3, 1988, defendant was interviewed three times by law enforcement officers from Missouri and Illinois. Officer Kelvin Roberts was present at all three interviews and was called first to testify. He stated he is an investigator in the juvenile division of the Quincy police department.

Roberts first interviewed defendant at about 1:30 p.m. at the Adams County Youth Home, along with two Missouri law officers. Prior to interviewing defendant, Roberts spoke with defendant’s father at the youth home. Roberts told defendant’s father the purpose for the questioning. Defendant’s father stated his preference for not becoming involved and left. Defendant was given his Miranda rights by-Roberts and the Missouri officers. Roberts stated the rights were individually explained to defendant. In addition, the Missouri officers gave a warning that is part of their standard procedure in dealing with juveniles. The warning reads:

“ ‘You must further understand that if a juvenile is fourteen years of age or older, and petition alleges an offense that would be a felony, if the juvenile were an adult, the juvenile could be certified to stand trial as an adult in a court of general jurisdiction. Further, you must understand that any statement you make to a police officer could be used against you in either the juvenile court or the adult court, if such certification were ordered by the court.’ ”

Roberts testified defendant understood his rights as they were explained to him. Defendant waived his rights and agreed to speak with the officers. The conversation centered on the theft of a vehicle and other burglaries. Defendant confessed to these crimes. Roberts stated defendant was not promised he would be prosecuted only as an adult. No promises were made to defendant. Roberts did testify that he encouraged defendant to admit to all of the crimes in which defendant participated:

“The only thing I said to him was that — he initially confessed to the first Modern Dairy burglary. I advised him that we had a series of burglaries to the Modern Dairy and that they were all done in a similar way with similar items taken and it would be better for him to confess to all of them at one time rather than for us to have cases surface sometime in the future and, you know, as each separate case — I informed him it would all be handled as one deal, sent to the State’s Attorney that way.”

Shortly thereafter, defendant was transported from the youth home to the Quincy police department in order to be photographed and fingerprinted. While at the police department, Roberts and Officer Brenda Williams, another juvenile investigator, interviewed defendant. The second interview took place at approximately 3 p.m. Because it occurred so near in time to the first interview, defendant was not asked to sign more waiver forms. He was simply told his same rights were in effect. Defendant again voluntarily agreed to speak with the officers. Defendant was questioned about various matters, including the Clark station robbery. However, defendant denied his participation in the robbery. He did confess to other burglaries and thefts. Roberts stated no promises were made in this interview.

According to Roberts, defendant stated several times during the interview that he had one more thing he wanted to talk about. When asked about the matter, he claimed to have a hard time remembering. The questioning ceased, and defendant was taken back to the youth home. The officers felt defendant had not confessed to everything because of his hesitation. Based on other answers, the officers suspected defendant was actually involved in the Clark station robbery. Roberts and Detective Robert Mehl returned to the youth home for a third interview. Mehl had come because he had done the investigation of the robbery at the Clark station. As they arrived at the youth home, they were told by staff members that defendant had just asked to speak with police. They met with defendant at about 7 p.m. Roberts stated he went through the Miranda process prior to this interview, and defendant waived his rights in order to speak with the officers. Roberts testified that prior to commencing with questions, defendant asked if “this was going to work the same way?” Roberts responded by asking whether defendant meant “this [would] all be included in one package to go to the State’s Attorney’s Office at one time?” Defendant responded in the affirmative. Officer Roberts agreed. Defendant then confessed to three more crimes, including the Clark oil station robbery.

Officer Brenda Williams also testified at the hearing. She corroborated Roberts’ testimony concerning the second interview conducted at the police station. In brief, she stated that defendant was given a reminder that his rights, as explained to him in the previous interview, were still in effect. Defendant denied committing the armed robbery, but confessed to several vehicle thefts and other burglaries. Williams noted that defendant appeared to want to say more but was hesitant to do so for some reason. She also stated no promises were made to defendant concerning the upcoming prosecution. Williams stated defendant was encouraged to confess to everything all at once:

“We advised him that we would prefer to send it all in one package. That way there would not be additional — one day you would have one thing come in, the next day you would have something else come in. We requested he make a clean slate of it. At that time I felt that he had.”

Williams was asked on cross-examination whether defendant had expressed any concern about becoming an adult at age 17. The following colloquy occurred concerning that topic:

“Q. Was age ever discussed — the fact that at this point he was still a minor, but when he became 17 he wouldn’t be a minor? Do you ever recall any conversation about that?
A. The conversation that I recall was in reference to Chris was worried about it being held against him later in life and whether or not this would all affect him. The — Investigator Roberts discussed with him how to go about having his records expunged.
Q. And could you further tell us what Officer Roberts told him?
A. He mentioned about the expungement, you know, when he reached a certain age. I personally was under the impression that that would require at least ten years since I wasn’t sure about the amount of time that it does take to have that done. I don’t recall making a comment.
Q. Do you recall what Officer Roberts told him about ex-pungement of his records?
A. They just discussed whether or not it would be held against him later in life. That is the common occurrence with kids.”

Defendant testified that he was 16 years old. June 10 was his birthday. He stated that Officer Williams told him he should confess to all his illegal activities before he turned 17 in order to be prosecuted as a juvenile. Defendant stated he contacted the youth home staff following the second interview at the police station because he wanted to let the authorities know of the armed robbery while he was still a juvenile.

On cross-examination, defendant stated he did not remember the exact words used by the officers, but it was his impression that he would be tried as a juvenile if he confessed to all his crimes. He stated that, in asking whether everything would be together, he was hoping he would go to trial at the same time for everything he discussed.

Later, upon further questioning by the court, defendant admitted no one specifically said anything about whether defendant would be prosecuted as a juvenile or as an adult. Defendant stated that the officers encouraged him to confess to all of his crimes before he turned 17. He stated the officers told him he would not have to worry about things coming up later in life if he cleared up everything now. He restated his testimony that Officer Roberts told him it was best if he confessed to his crimes while he was still a juvenile.

Officers Williams and Roberts were recalled to testify by the court following defendant’s testimony. Williams denied making any statement concerning the importance of turning 17, or that defendant would be better off to confess to his crimes while he was still a juvenile. Roberts stated he told defendant that defendant’s juvenile record could be expunged after he became an adult. Roberts also stated that he may have told defendant:

“[I]n general terms that as a sixteen year old or when he turned seventeen he could request that his record be expunged when he turned adult and that as a seventeen year old if he committed a similar crime, talking about the stolen vehicle, that he would go to the Adams County Jail rather than the Adams County Youth Home. That was the total part of that conversation as far as I can remember.”

The court did not render a decision but took the matter under advisement.

Four days later, on May 17, 1988, the court reopened the hearing on its own motion. The court heard testimony from Detective Mehl and Officer Roberts. In particular, Officer Roberts was questioned concerning his statements to defendant regarding expunging defendant’s juvenile record. The following colloquy occurred:

“Q. At some point in time did you advise Mr. Wagner about the possibility of his record being expunged if he were charged as a minor?
A. I advised him about, that he could request that his record be expunged. I didn’t say anything about the minor part of it.
Q. All right. Back up. Let’s back up before that discussion. Just before that discussion occurred, what was the setting?
A. The setting was that I had just went [sic] and got Mr. Wagner something to eat because I was aware that he had only had part of a sandwich for breakfast. I had brought that back to him. He was in the process of fixing his food, putting ketchup on his cheese burger and stuff like that.
* * *
Q. Go ahead, Officer, and tell us what transpired at the point that you had brought the food in and given it to Chris Wagner.
A. Okay. What I believe was misunderstood the first time was he was eating his food in sort of a short break. And I, at that time, assumed the role of a typical role of a juvenile officer.
And I was more or less chewing Wagner out for what he had done. And that’s where I stated that if he had done something like that after he turned 17, he would go to the Adams County Jail rather than the youth home.
That’s the only thing. I said that, something to the effect that the only thing good that would come out of it is that he could request that his juvenile record be expunged and I specifically remember using the word ‘request.’
Q. This wasn’t an answer to any question that Chris Wagner asked?
A. No. He was routinely confessing to anything that he had allegedly done up to that point. There was no need for me to in any way try and coerce him into confessing further.
Q. Did he give you some kind of an audible response or a nod of his head at that particular point when you had mentioned the possible expungement of a record?
A. Yes. He was just nodding his head.
Q. Okay. What happened immediately after that?
A. Well, after he was finished eating and — We continued on.
Q. Well, what happened immediately after you told him about the possibility of requesting your record to be expunged?
A. Nothing.
Q. Okay.
A. He continued to eat.
Q. You said you were taking the role as a juvenile officer in chewing out this minor?
A. That’s correct.
Q. How did you go into transition from that point to the further interrogation?
A. It was just a time lapse where he ate. I may have even left the room again. I don’t recall, but there was just a little bit of time while he ate, and we couldn’t really talk to him while he was eating.”

Both Roberts and Mehl repeated the testimony previously given concerning the start of the third interview. Defendant asked if “this [would] work the same way?” Roberts asked if defendant meant the crimes would be turned over to the State’s Attorney as one package. Defendant replied “yes.”

The court denied defendant’s motion to suppress. The court stated it was troubled by the fact defendant was not told about the statutory requirement that he must be tried as an adult for committing armed robbery. However, the court found no wrongdoing on the part of the authorities. The court stated, in pertinent part:

“I find this to be one of the more interesting and probably challenging questions with regard to suppression of the confession that I have seen in my experience. I am very troubled by the fact that the Defendant was not advised that he necessarily would have to be prosecuted as an adult for an armed robbery when the officers were going there to interview him about that armed robbery. At the same time, there is absolutely nothing that I have seen in the evidence to suggest or indicate that the police officers for the Quincy Police Department in any way tried to trick the Defendant, tried to withhold information from him, tried to use any other tactic that might be considered as questionable to obtain a confession from the Defendant.
It seems that the officers, each and every one, have acted in good faith. ***
* * *
I think you always have to look at the totality of the circumstances. And in a situation such as this, you have to look at the good faith efforts of the officers involved, the knowledge of the Defendant involved, and all the other factors surrounding him. And it’s my conclusion that the only flaw, if it is one, is that the Defendant wasn’t admonished that he necessarily would be charged as an adult, in light of the fact that there was some question and discussion about his record being expunged from which he could have deduced that he necessarily would be charged as a juvenile. And I will make the record clear that from the evidence I would find that it was reasonable for the Defendant to think perhaps he had every expectation to be charged as a juvenile.
I don’t think that was an unreasonable conclusion for him to have. And I make that finding knowing full well that an Appellate or Supreme Court may take that and suggest that my ruling today is in error. If so, then so be it.
On the other hand, I don’t believe the confessions were in any way involuntary. I have observed the Defendant in the court. While he is quiet and somewhat withdrawn, he is very articulate for a 16-year-old facing charges such as this. He has at all times responded to questioning. He appears to this Court to be above average intelligence for persons in his situation. He was given every admonishment that is required under Illinois law that I’m aware of. And I say that because there is nothing in this statute that I make reference to which goes ahead and then says that a juvenile defendant must be advised that he will necessarily be charged as an adult. It just says you have to charge him as an adult.”

The court also noted, as a factor in its consideration, the fact that defendant had received the supplemental Missouri warning, which indicated a juvenile may be prosecuted as an adult under certain circumstances.

Defendant argues the trial court’s determination was in error. Defendant contends the evidence shows defendant was induced to confess by the promise, ever so subtle, of being tried as a juvenile rather than as an adult. Defendant concludes the officers’ discussion of expunging defendant’s records supports defendant’s more explicit testimony that the officers promised he would be prosecuted only as a juvenile. Even if defendant’s testimony is not accepted, defendant argues the statements made by the officers can only be interpreted to mean defendant would be prosecuted under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 1 et seq.). Further, defendant argues the confessions were made in an atmosphere of coercion. Defendant was merely a 16-year-old juvenile. Yet, he was interrogated three times on March 3. For the second interrogation, defend-ant was transported to the police station and away from the relative security of the youth home. Defendant contends the evidence indicates he was misled by the officers’ statements, and coerced by the environment into making confessions he would not otherwise have made.

A summary of the law regarding admissibility of confessions is found in People v. Stachelek (1986), 145 Ill. App. 3d 391, 401, 495 N.E.2d 984, 990:

“The test of whether a confession was admissible at trial is whether the statement met its burden of showing that the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether defendant’s will was overcome when he made the statement. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) In making this determination, the court must look at the totality of the relevant circumstances surrounding the making of the statement, including the existence of any threats, promises, or physical coercions; the length and intensity of the interrogation; and the age, intelligence, experience and physical condition of the defendant. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228, cert, denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270-71, 105 S. Ct. 334.) The finding by the trial court on the voluntariness of a confession will not be disturbed on review unless it is contrary to the manifest weight of the evidence. People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.”

When dealing with juveniles, it has been stated that “the utmost care must be taken to insure that the confession was voluntary and not coerced, suggested or the end result of the juvenile’s ignorance of his rights or of his adolescent fantasy, fright or despair.” (In re Shutters (1977), 56 Ill. App. 3d 184, 187, 370 N.E.2d 1225, 1227.) We find from an examination of the circumstances surrounding defendant’s confession that the circuit court’s decision was not against the manifest weight of the evidence. Defendant’s rights were accorded the utmost respect and protection, and defendant’s confession was made voluntarily.

We reject the notion that defendant’s environment suggests a serious element of coercion was present. For defendant’s second interrogation, he was transported to the police station in order to be photographed and fingerprinted. Defendant’s admissions in the first interview apparently caused the officers to want further discussion with him. This is not unusual. It seems reasonable for police to want to obtain as much information as they can from a talkative and cooperative suspect. At no point was there any indication that defendant resisted the officers’ attempts to speak with him. In fact, defendant requested a third meeting with police in order to provide the officers with information concerning his most serious crimes.

If there is any problem with defendant’s confession, it must come from the disputed statements of the officers concerning a package deal for the State’s Attorney and expunging defendant’s record. From a review of the circumstances in which they were made, we cannot conclude defendant was coerced or improperly induced into making a confession for armed robbery. If we accept the officers’ testimony that defendant was encouraged to confess all of his crimes at once and have everything sent to the State’s Attorney in one package, we need find no problem. There is no inherent promise of being tried as a juvenile in this statement. The testimony concerning the topic of expunging defendant’s record is a closer question. Yet, Officer Roberts testified that this statement occurred during a break in the questioning. The break was taken in order to allow defendant to eat. There is no indication the officer used this as a tool to obtain a confession for the armed robbery, or any other particular crime. There is no indication of bad faith by the officers involved. The statement was made in general conversation with the defendant. Defendant may have formed the impression that all of his crimes would result in juvenile prosecution. However, there is no indication this broad based belief came from misleading or improper statements made by the officers. Where the officers have endeavored to protect defendant’s rights during discussions concerning criminal activities, as these officers did, we cannot conclude that a general statement concerning the expungement of records served to destroy the voluntariness of defendant’s confession. Examining the totality of the circumstances, the confession concerning the armed robbery was made knowingly and voluntarily.

Finally, defendant argues the order of restitution should be vacated as defendant has no hope of completing payments within five years. In this case, the presentence report showed the hospital charges and lost wages of Mark Smith to be $44,568. The court ordered defendant to pay restitution in this amount. However, the court noted such restitution “is a meaningless act for the most part because you have absolutely no ability to pay those sums of money, but certainly while in the Department of Corrections you could not do so.” Defendant’s term of imprisonment for armed robbery is 15 years and, even with good time credit, he will not realistically be able to complete payment within five years.

The statutory provision for restitution requires the court to determine whether “restitution is an appropriate sentence to be imposed.” (Ill. Rev. Stat. 1987, ch. 38, par, 1005 — 5—6.) Subsection (f) of section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6(f)) further provides:

“Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.”

Restitution is intended to provide the victim of a crime compensation while a defendant is on probation and is able to work or seek work. (People v. Rupert (1986), 148 Ill. App. 3d 27, 29, 499 N.E.2d 93, 95.) The fact that a defendant has been ordered to serve a term of imprisonment does not, of itself, render an order of restitution improper. Rather, it is a factor to be considered in assessing a defendant’s ability to pay, and in determining the manner and time of payment when fashioning the restitution order. (People v. White (1985), 135 Ill. App. 3d 563, 567, 482 N.E.2d 134, 136.) In light of the term of imprisonment imposed upon defendant and the court’s comments about defendant’s ability to pay, we conclude restitution is not an appropriate sentence for defendant. We, therefore, vacate that portion of the order requiring defendant to pay $44,568 in restitution.

For the reasons stated above, the order of the circuit court of Adams County is modified in that the attempt (murder) conviction is reduced to aggravated battery. Defendant’s sentence for that conviction is also reduced. The order is vacated in that defendant need not pay restitution. The remainder of the order is affirmed.

Affirmed in part; modified in part; vacated in part.

SPITZ, J., concurs.

JUSTICE KNECHT,

dissenting:

I respectfully dissent. Supreme Court Rule 615(b)(3) permits a reviewing court to reduce the degree of the offense of which the defendant was convicted. This broad power should only be exercised, as recognized by the majority, when included offenses are involved. What does “involved” mean? The majority notes in this case aggravated battery is an included offense of attempt (murder). The facts do suggest defendant intended great bodily harm to the victim.

However, the offense of aggravated battery was not charged. The offense of aggravated battery was not argued to the court in this bench trial. This was not a jury case where the jury was instructed on but rejected an included offense. Should a court of review search the record and our statutes on each reversal for failure of proof to see if the conviction could possibly be reduced to an offense of lesser degree? It is the role of the prosecutor to charge offenses and to argue for a remedy. When no instruction is offered, and no argument is made about an included offense, then 615(b)(3) is inapplicable.