source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS L. WASSON, Defendant-Appellant.
    Fourth District
    No. 4—90—0304
    Opinion filed April 4, 1991.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman and Amy K. Schmidt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On July 10, 1989, defendant Curtis Wasson was charged by amended information with two counts of aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, pars. 11—4.1(b)(1)(A), (b)(1)(C)) and one count of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12—14(b)(1)). The first count of aggravated indecent liberties with a child alleged defendant, between January 1, 1983, and June 30, 1984, performed an act of sexual intercourse with M.F., who was under nine years of age when the act was committed. The second count alleged between January 1, 1983, and June 30, 1984, defendant performed an act of penetration by placing his penis into the genital opening of M.F., who was under the age of nine when the act was committed. The charge of aggravated criminal sexual assault alleged defendant, between July 1, 1984, and April 25, 1985, committed an act of sexual penetration with M.F. in placing his penis into her vagina. At a bench trial held on July 13, 1989, defendant was found guilty of both counts of aggravated indecent liberties with a child and not guilty of aggravated criminal sexual assault. Defendant was sentenced to eight years’ imprisonment.

Defendant was previously tried for these offenses on May 7, 1987, and convicted of aggravated criminal sexual assault. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12—14(b)(1).) The information had alleged between January 1, 1983, and April 24, 1985, defendant had committed an act of sexual penetration with M.F., who was under 13 years of age when the act was committed. On appeal, we reversed defendant’s conviction for aggravated criminal sexual assault and remanded it for a new trial, where the information alleged the offense had been committed during a time period which commenced before the effective date of the statute, July 1, 1984. People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527.

Defendant now appeals from his current conviction, alleging (1) he was denied a fair trial when an alleged expert was permitted to give psychological testimony that M.F. suffered from post-traumatic stress syndrome as a result of sexual child abuse; (2) his conviction for aggravated indecent liberties with a child should be reversed because he had previously been tried for aggravated criminal sexual assault based upon the same facts and, accordingly, the State was barred from pursuing multiple prosecutions under sections 3—3 and 3—4 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1983, ch. 38, pars. 3—3, 3—4); and (3) his conviction for aggravated indecent liberties with a child should be reversed or, alternatively, reversed and remanded for a new trial because the amended information was filed after the expiration of the three-year statute of limitations and failed to aver facts which would invoke an exception. We affirm.

At the bench trial held on July 13, 1989, Dr. W.R. Elghammer, a pediatrician, testified his studies and the studies of others indicated the size of the hymenal opening in girls from birth to age 13 ranges from a pinpoint to four millimeters. Among girls who have been sexually abused, the opening is larger than four millimeters. Dr. Elghammer cited studies which indicated the size of the hymenal opening is an accurate predictor as to whether child sexual abuse has occurred. Dr. Elghammer stated after sexual abuse has ended, the hymenal opening reverts to the normal size of four millimeters or less.

On April 23, 1985, Dr. Elghammer conducted a physical examination of M.E and took an oral history from her. She informed the doctor that her uncle “took off his clothes and my clothes and laid on top of me and put his thing in my thing.” M.F. told the doctor that it had happened once three years ago and twice V-k years ago. Dr. Elghammer measured the hymenal opening of M.F. and it measured eight millimeters. He testified this finding was consistent with sexual abuse.

M.F. testified she was 12 years old and lived with her mother, father, and two brothers. Defendant is her father’s brother. Defendant never lived with her family but occasionally stayed at their home. He would sleep upstairs in the same room with M.F. and her two brothers. Her brothers had bunk beds and she had her own bed. When defendant stayed, he would baby-sit the children. Occasionally, defendant stayed as long as two or three weeks.

M.F. testified that when she was in Ms. Davis’ kindergarten class, defendant baby-sat her and her two brothers while her parents went to the license bureau. Defendant gave her brothers money and sent them to the store. While they were gone, defendant came into her bedroom while she was changing clothes. Defendant threw her down on the bed and began playing with her like they were on a trampoline. When they stopped, defendant asked her to take off her underwear and M.F. refused. Defendant then took off her underwear and all of his clothing. Defendant got on top of M.F. and began going up and down, putting his penis in her vagina. M.F. testified it hurt and she told him to stop. Defendant did not stop until M.F.’s brothers returned. M.F. testified this recurred once every night while defendant was staying with them.

M.F., who repeated the first grade, did not tell anyone about what had occurred until she was in the second grade. She told a friend of hers, who went home and told her mother. The mother called the school nurse, Ms. Tedrick, who questioned M.F. about it. M.F. testified she told Tedrick about the first time it had happened. M.F. did not remember the last time it had happened.

When asked at what age this activity first occurred, M.F. testified, “last time I said five or six but I meant to say four.” M.F. testified she did not remember it happening sometime after Easter. She testified it occurred the most when she was in Ms. Trask’s first-grade class for the second year. M.F. did not remember testifying at the first trial that she had talked to a policeman and told him that it had happened about three times. Judicial notice was taken of inconsistencies in M.F.’s testimony between the first and second trial.

Claire Kirts, M.F.’s mother, testified defendant is her husband’s brother and had been M.F.’s favorite uncle. Defendant was also a frequent overnight visitor in their home. They lived in a two-bedroom home and, until M.F. was in first grade, she shared an upstairs bedroom with her two brothers. The boys slept in bunkbeds, while M.F. had her owm bed. Even after having been given her ovm room, M.F. would often prefer sleeping in her brothers’ room. M.F. would sometimes sleep with defendant in the boys’ room when he spent the night.

Kirts testified M.F. was in Ms. Trask’s first grade for both the 1982-83 and the 1983-84 school years. M.F.’s school work was very poor. She preferred socializing with younger children and would mother them. Kirts testified after defendant no longer came to their home, M.F.’s grades improved and she started acting more her own age. She also socialized with children more her own age.

A stipulation was entered admitting the testimony of police officer Robert Cannon from the first trial. According to this testimony, Officer Cannon called defendant in for questioning concerning this charge and defendant denied the allegations.

A stipulation was also made to admit the testimony of Nancy Tedrick from the previous trial. Tedrick, the school nurse at Catlin Grade School, called eight-year-old M.F. into her office as a result of a telephone call from a parent on April 22, 1985. Tedrick asked M.F. whether or not she had told something to her friends about her uncle. M.F. told Tedrick that while they were alone in her home, defendant had come into her bedroom while she was changing clothes, took her pants off, and put his “humper” between her legs. M.F. indicated this act had occurred near Easter. At first, Tedrick thought M.F. was referring to the most recent Easter, but when Tedrick asked M.F. about this, M.F. responded “No, it happened when I was in Ms. Trask’s room.” Tedrick testified M.F. had spent both the 1982-83 and the 1983-84 school years in Ms. Trask’s room. M.F. indicated to Tedrick that the incident she was referring to was the most recent incident, but that other incidents had occurred. Tedrick testified M.F. was very matter of fact and unemotional in describing these events to her.

Mary Lou Cooly testified she is a therapist in the sexual abuse and neglect program at the Center for Children’s Services in Danville. She has been employed with the center for four years and works with children who have been abused or neglected and their families. Cooly first began working with M.F. in November 1985. M.F. was brought to the center because she was displaying self-destructive behaviors, such as pulling her hair, biting her nails, and failing in school. When Cooly first met M.F., M.F. was withdrawn and lacked self-esteem. M.F. was having problems communicating with people, did not appear to trust anyone, and was doing poorly in school. Cooly stated these behaviors are often indicative of a child having been sexually abused. Cooly also attributed M.F.’s tendency to associate with younger children as being consistent with the behavioral indicators of a victim of sexual abuse, but stated such behavior could also be a result of academic failure.

Cooly testified if abuse continues for a period of time it would not be inconsistent for the child not to report the abuse until she has some outside support, such as a girlfriend she can trust. Cooly testified it might be consistent for M.F. to have spoken in a rather flat way and not to have been particularly emotional when she told the school nurse about what had happened. An abused child may also gradually tell more and more of the story and some of the story may not be consistent.

The defense presented no evidence.

Defendant contends he was denied a fair trial when Cooly was permitted to give psychological testimony M.F. suffered from post-traumatic stress syndrome as a result of sexual child abuse. Specifically, defendant contends (1) testimony concerning post-traumatic stress syndrome should not be admitted in child sexual abuse cases; (2) Cooly was not qualified to testify and the State failed to make an adequate foundation concerning the basis of her expert testimony; and (3) even if the evidence was admissible, its prejudicial effect outweighed its probative value. We disagree with these contentions.

Section 115—7.2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115—7.2), effective January 1, 1989, provides:

“In a prosecution for an illegal sexual act perpetrated upon a victim, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, testimony by an expert, qualified by the court relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.”

We previously applied this statute in People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208, in permitting the admission of evidence of post-traumatic stress syndrome in a child sexual abuse case in spite of the defendant’s argument that this theory lacked scientific acceptability. In Roy, the expert testified the child victim was suffering from post-traumatic stress syndrome and explained this may occur when a child has suffered a traumatic experience. The expert went on to explain the various ways the syndrome may manifest itself and how the child victim had exhibited these symptoms. This court found the evidence was recognized and accepted on the basis of the expert’s testimony alone. Beyond generally objecting, the defendant did not submit any contrary evidence. Roy, 201 Ill. App. 3d at 180, 558 N.E.2d at 1218.

Similarly, here, Cooly identified known model indicators of the syndrome and testified to M.F.’s manifestation of these symptoms. Defendant did not submit any contrary evidence to dispute the reliability of the syndrome in children.

We note defendant’s citations on appeal to the decisions of other jurisdictions which preclude admission of such testimony and the fact the syndrome labeled "Child Sexual Abuse Accommodations Syndrome” is not specifically listed in the Diagnostic and Statistical Manual of Mental Health III (1987) (DSM III). However, very few concepts are generally accepted by all behavioral scientists. (People v. Nelson (1990), 203 Ill. App. 3d 1038, 561 N.E.2d 439.) Moreover, the American Psychiatric Association in its discussion of post-traumatic stress disorder recognizes the disorder may be experienced due to rape or assault and the disorder can occur at any age, including childhood. The symptoms described for post-traumatic stress disorder in children are the same as those frequently described as symptoms for child sexual abuse accommodations syndrome. In our view, child sexual abuse accommodations syndrome is a recognized and accepted form of post-traumatic stress disorder. DSM III, at 248-49.

Cooly’s testimony also included the possibility some of M.F.’s symptoms may be attributable to other factors such as her academic failure. Here, the reality that many of the symptoms may be caused by factors other than sexual abuse goes to the weight to be accorded such testimony and not its admissibility.

Regarding Cooly’s testimony, defendant further contends the State failed to demonstrate she was qualified as an expert and Cooly did not demonstrate her testimony regarding post-traumatic stress syndrome was reliable.

Defendant cites the decisions of People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, and People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335, in support of his argument Cooly was not a qualified expert. However, the amendment of section 115—7.2 rendered Server and Douglas inapplicable to this issue. (People v. Harp (1990), 193 Ill. App. 3d 838, 550 N.E.2d 1163.) Prior to January 1, 1989, section 115—7.2 allowed expert testimony “by a behavioral psychologist, psychiatrist or physician.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—7.2.) The amendments of Public Act 85—1279 deleted the list of professionals and replaced it with “an expert qualified by the court.” (Pub. Act 85-1279, eff. Jan. 1, 1989 (1988 Ill. Laws 2649).) In doing so, the legislature recognized persons other than those in the medical field may be able to provide relevant, reliable insight into post-traumatic stress syndrome. The qualification of experts is within the broad discretion of the trial court and will not be disturbed absent an abuse of discretion. People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916.

In the present case, the trial court clearly acted within its discretion in allowing Cooly’s testimony. Although the record does not indicate Cooly possessed advanced academic degrees, her background and training were sufficient to qualify her to testify. She had worked as a therapist in the sexual abuse and neglect program at the Center for Children’s Services for the past four years. Her duties required her to work with children who have been abused and neglected and show behavioral and emotional problems. She testified a good portion of these children have been sexually abused. For the last two years, she had run a therapy group for adolescent sexual perpetrators, most of whom had themselves been sexually abused. She had attended a number of workshops regarding child sexual abuse victims in addition to participating in practical training and schooling. Previously, Cooly was employed for five years at Indiana State University in the department of counseling.

Defendant further argues Cooly never testified post-traumatic stress syndrome is recognized and accepted in child sexual abuse cases, and the State thus failed to establish it as being admissible under section 115—7.2. However, Cooly responded affirmatively when asked if certain model behavioral characteristics in child sexual abuse victims were known and recognized. Although Cooly did not label the theory specifically as being post-traumatic stress syndrome or child sexual abuse accommodations syndrome, section 115—7.2 has not been interpreted to require such a recitation. In People v. Ridgeway (1990), 194 Ill. App. 3d 881, 551 N.E.2d 790, this court upheld the admission of evidence concerning behavioral indicators of sexually abused children without requiring labeling under any particular syndrome.

Last, defendant contends even if Cooly’s testimony was admissible pursuant to section 115—7.2, it should have been excluded because its prejudicial effect outweighed its probative value. Defendant argues Cooly’s testimony impermissibly allowed her to vouch for M.F.’s credibility, and proposes nonexperts be utilized to provide evidence concerning the child victim’s post-traumatic behavior with a nontreating expert witness only testifying concerning the syndrome itself.

We do not agree with defendant’s contentions, nor do we find the prejudicial effect of this evidence outweighed its probative value. Defendant’s arguments ignore the purpose of section 115—7.2, which deems as probative treating experts’ testimony concerning the victim’s behavior as being consistent with known syndromes. An expert witness may testify to an opinion on an ultimate issue in a case. (People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241.) Section 115-7.2 merely provides for the admission of such testimony. It does not preclude the trier of fact from weighing the witness’ testimony and credibility, nor does it obligate the trier of fact to openly accept the witness’ opinion. Roy, 201 Ill. App. 3d at 180, 558 N.E.2d at 1218.

The case at bar was a bench trial in which defendant was found guilty only of the offenses committed between January 1, 1983, and June 30, 1984. M.F. clearly testified to these occurrences and had earlier reported them to Ms. Tedrick. We do not find Cooly’s testimony to have unduly prejudiced the defendant and find the evidence to have been properly admitted.

Next, defendant contends his conviction for aggravated indecent liberties with a child should be reversed because he had previously been tried for aggravated criminal sexual assault based upon the same facts and, accordingly, the State was barred from pursuing multiple prosecutions under sections 3—3 and 3—4 of the Code. (Ill. Rev. Stat. 1989, ch. 38, pars. 3—3, 3—4.) Though defendant is asserting his statutory rights have been violated, he concedes no violation of the double jeopardy clause has occurred. We agree with defendant that his subsequent conviction for aggravated indecent liberties with a child was based upon the same facts as the previous charge for aggravated criminal sexual assault. However, we disagree with defendant’s contention that this requires a reversal of defendant’s current conviction.

In People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527, we reversed defendant’s conviction for aggravated criminal sexual assault and remanded for a new trial. In doing so, we found the charging instrument to be deficient as the dates alleged for the commission of aggravated criminal sexual assault encompassed a time period before the effective date of the statute creating the crime. We stated:

“Thus, it would have been better practice for the State to charge defendant under the old statute with one or more counts alleging the offense of aggravated indecent liberties with a child was committed between January 1, 1983, and June 30, 1984 (Ill. Rev. Stat. 1983, ch. 38, par. 11—4.1(a)(1)(A)), and, under the current statute, to enter additional counts for the act or acts committed between July 1, 1984, and April 24, 1985 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12—14(b)(1)).” Wasson, 175 Ill. App. 3d at 854-55, 530 N.E.2d at 529.

Sections 3—3 and 3—4 provide the statutory guidelines prohibiting multiple prosecutions for the same act. (Ill. Rev. Stat. 1989, ch. 38, pars. 3—3, 3—4.) Under section 3—3(b), if several offenses are known to the State at the time of commencing prosecution and the offenses are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. (Ill. Rev. Stat. 1989, ch. 38, par. 3—3(b).) However, exceptions to this rule also exist. Section 3—4(d)(2) allows reprosecution “if subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction.” Ill. Rev. Stat. 1989, ch. 38, par. 3—4(d)(2).

Accordingly, reprosecution of defendant for both aggravated criminal sexual assault and aggravated indecent liberties with a child was not barred. (See People v. Trolia (1982), 107 Ill. App. 3d 487, 494, 437 N.E.2d 804, 810.) Defendant’s former prosecution in this case ended in reversal and remand and not in final conviction. The case of People v. Mullenhoff (1965), 33 Ill. 2d 445, 211 N.E.2d 744, which defendant relies upon, is readily distinguishable from the case at bar because the earlier prosecution in Mullenhoff ended in an acquittal. The State in this case correctly joined the offenses of aggravated indecent liberties with a child and aggravated criminal sexual assault and no violation of sections 3—3 and 3—4 occurred.

Defendant’s final argument is his conviction for aggravated indecent liberties with a child should be reversed because the amended information was filed after the expiration of the statute of limitations and failed to allege facts which would have invoked an exception.

Section 3 — 5 of the Code provides:

“General Limitations, (a) A prosecution for first degree murder, second degree murder, involuntary manslaughter, reckless homicide, treason, arson, or forgery may be commenced at any time.
(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3—6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.” (Ill. Rev. Stat. 1989, ch. 38, par. 3—5.)

Section 3 — 6 provides for extensions to the statute of limitations. Included among these extensions is:

“When the victim is under 18 years of age, a prosecution for criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse may be commenced within one year of the victim attaining the age of 18 years.” Ill. Rev. Stat. 1989, ch. 38, par. 3—6(d).

The amended information, filed on July 10, 1989, charged defendant with two counts of aggravated indecent liberties with a child for conduct which occurred between January 1, 1983, and June 30, 1984, and one count of aggravated criminal sexual assault for conduct which allegedly occurred between July 1, 1984, and April 25, 1985. Defendant was convicted of activities which occurred between January 1, 1983, and January 30, 1984. Defendant contends this criminal activity occurred more than three years prior to the filing of the charges on July 10, 1989, and the charging instrument failed to allege any of the exceptions provided in section 3—6 of the Code. Ill. Rev. Stat. 1989, ch. 38, par. 3—6.

Defendant cites People v. Morris (1990), 135 Ill. 2d 540, 554 N.E.2d 150, and People v. Strait (1978), 72 Ill. 2d 503, 381 N.E.2d 692, in asserting this alleged defect automatically entitles him to a new trial. Both of these cases recite the general rule that if an indictment or information shows on its face the offense was not committed within the period of limitations, facts must be averred which invoke one of the exceptions contained in section 3—6. Morris, 135 Ill. 2d at 543, 554 N.E.2d at 151; Strait, 72 Ill. 2d at 504-05, 381 N.E.2d at 693.

However, both Morris and Strait are distinguishable from the case at bar. There, the defendants filed timely motions to dismiss the charging instruments alleging the statute of limitations had been violated. The trial courts denied the motions. In both cases, the State was placed on notice of the problem and afforded the opportunity to amend the charge to correct the defect. In this case, defendant failed to file a pretrial motion to dismiss. This failure came despite the fact that during a motion for continuance the trial court expressly directed motions to be filed on the issue. No motions to dismiss were subsequently presented and the trial went forward on the amended information. Had defendant filed a motion to dismiss the information due to the alleged defect, the State could have simply reamended the information to comply with one of the exceptions of section 3—6. See People v. Thompson (1978), 66 Ill. App. 3d 141, 383 N.E.2d 690.

Moreover, we note this was an amended information. Defendant was not surprised nor was his defense in any way prejudiced by its filing. The conduct alleged in the amended information filed July 10, 1989, was the same as alleged in the original information filed April 24, 1985. Defendant certainly should have been apprised of the possibility of the amended information in October 1988, upon the filing of this court’s opinion in Wasson.

Section 3—7 of the Code states 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, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal.” (Ill. Rev. Stat. 1989, ch. 38, par. 3—7(c).) Conduct is defined as “an act or a series of acts, and the accompanying mental state.” (Ill. Rev. Stat. 1989, ch. 38, par. 2—4.) Prosecution is defined as “all legal proceedings by which a person’s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.” (Ill. Rev. Stat. 1989, ch. 38, par. 2—16; People v. Covelli (1989), 184 Ill. App. 3d 114, 540 N.E.2d 569.) Defendant’s conviction should not be reversed due to the State’s failure to comply with the statute of limitations.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. LEWIS, Defendant-Appellant.
    Fourth District
    No. 4—90—0672
    Opinion filed March 29, 1991.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Amy K. Schmidt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On July 20, 1990, defendant David Lewis was found guilty by a jury sitting in the McLean County circuit court of committing the offenses of unlawful possession of less than 15 grams of cocaine and unlawful possession of less than 15 grams of heroine. (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(a).) He was subsequently sentenced to concurrent extended-term six-year prison sentences and fined $1,380. Defendant now appeals, asserting the court erred (1) in denying his motion to suppress; and (2) in concluding defendant was eligible for an extended-term sentence. We disagree and affirm.

Prior to trial, defendant filed a motion seeking to suppress the evidence seized from a search of the trunk of his car, maintaining it was done without his consent and without a warrant. At the hearing, defendant testified that around 8 p.m. on February 8, 1990, he was driving on Interstate 55. At that time he was doing nothing wrong, and a State Police trooper pulled him over. The trooper had defendant walk back to the squad car, where the trooper told defendant he had stopped him for weaving, which defendant denied doing. The trooper then gave defendant a warning ticket. Defendant proceeded toward his car, but the trooper stopped him in between the cars and patted him down. The trooper then went to look in the car. When defendant objected, the trooper told him he could do anything he wanted to.

Defendant testified that another trooper arrived after a minute or two, and this trooper had his gun drawn. The trooper conducting the search exited the passenger’s compartment and, accusing defendant of lying, asked where the marijuana was. This trooper told defendant he found some rolling papers and some marijuana seeds. Defendant denied any knowledge of these, maintaining they were not there. Defendant observed the trooper had been in his glove compartment. The trooper then proceeded to the trunk of the car. The next thing defendant knew, he was under arrest. Defendant never gave them permission to search, nor did they present a search warrant.

Trooper Jeff Gaither testified that he stopped defendant’s vehicle because it was weaving. He called for another unit, because he believed he might have a driving-under-the-influence-of-alcohol arrest. He had defendant come back to the squad car. He noticed no alcohol on defendant’s breath, so he prepared a warning ticket for defendant and had him sign it. Defendant appeared nervous, so Gaither explained the drug interdiction program. He then asked if he could take a look in defendant’s car. Defendant was hesitant, but responded, “Yeah, go ahead.”

At this time, Trooper William Colbrook arrived to assist. Colbrook talked to defendant while Gaither looked into the car. Gaither first smelled the strong odor of burnt marijuana. He observed some loose, green, leafy material, which he believed to be marijuana, on the front seat. He saw more of this lying in the backseat and on the rear floorboard. He also observed rolling papers and a cigarette lighter on the backseat by the leafy material. Gaither did not gather this substance together, since it probably amounted to less than a gram and the laboratory will not test such a small amount. Gaither told defendant what he saw and proceeded to the trunk. Defendant did not want Gaither to search the trunk. However, Gaither explained that based on what he had already found, he was going to search. Found in the trunk were cocaine, heroine, some syringes, several pipes, and several hand-rolled cigarettes.

Trooper Colbrook testified that he responded to the scene. When he arrived, Gaither indicated defendant had given him consent to search his car. This conversation took place in defendant’s presence. Defendant was calm during the search until Gaither proceeded to the trunk. Defendant wanted to know what was going on, and Gaither explained that, due to what he had found, he was going to search the trunk. Later, after defendant was arrested, Colbrook searched the car further. He also observed the green, leafy substance, which he identified as marijuana, on the driver seat and on the backseat. He could smell the odor of marijuana.

The court found that Gaither had probable cause to stop the vehicle for the weaving, and that defendant initially gave Gaither consent to search the car. The court concluded that once the marijuana was found, there was probable cause for a search of the entire vehicle. Accordingly, the court denied the motion.

Defendant was subsequently found guilty on substantially the same evidence. At the sentencing hearing, it was established that defendant had a 1981 conviction for unlawful distribution of a controlled substance in the Federal courts in Illinois. The court concluded this qualified defendant for an extended-term sentence. Accordingly, the court imposed the six-year sentence. This appeal followed.

Defendant initially contends the court’s order denying his motion to suppress was erroneous. It is well settled that police troopers must obtain a search warrant prior to searching a motor vehicle unless the circumstances fall within an exception to the warrant requirement. (People v. Binder (1989), 180 Ill. App. 3d 624, 627, 536 N.E.2d 218, 220; People v. Lawrence (1988), 174 Ill. App. 3d 818, 821-22, 529 N.E.2d 63, 65.) One such exception is where the owner gives his consent to a search. (People v. Woolery (1990), 193 Ill. App. 3d 892, 895, 550 N.E.2d 616, 617.) Another is where the police have probable cause. (Binder, 180 Ill. App. 3d at 627, 536 N.E.2d at 220; Lawrence, 174 Ill. App. 3d at 822, 529 N.E.2d at 65.) Both exceptions are involved in this case.

The court found defendant was stopped for a valid traffic offense and that he initially gave Gaither a consent to search his vehicle. While defendant contested these assertions at trial, he does not do so now. It is just as well because the trial court’s determination on the question of the voluntariness of a consent to search is to be accepted unless it is clearly unreasonable. (Woolery, 193 Ill. App. 3d at 895, 550 N.E.2d at 618.) Here, the court heard and observed the witnesses, and it would be impossible to conclude that its findings are against the manifest weight of the evidence.

This consent allows Gaither to get into the car. Once there, the probable-cause analysis takes over. When police have probable cause to believe a motor vehicle contains contraband, they may, without a warrant, search any area of the vehicle or any container within it, if they reasonably believe the contraband might be found. (Lawrence, 174 Ill. App. 3d at 822, 529 N.E.2d at 65.) This includes the trunk of a vehicle. (Binder, 180 Ill. App. 3d at 627, 536 N.E.2d at 221.) Probable cause to search exists when, considering the totality of the facts and circumstances known to the trooper at the time of the search, a reasonable person would believe contraband was present in the automobile. People v. Clark (1982), 92 Ill. 2d 96, 100, 440 N.E.2d 869, 871; Lawrence, 174 Ill. App. 3d at 822, 529 N.E.2d at 65.

In the present case, Gaither testified that (1) he smelled a strong odor of burnt marijuana; (2) he found some loose marijuana on the front seat, backseat, and floorboard; and (3) he found rolling papers and a cigarette lighter near some of the marijuana. This testimony is corroborated by that of Colbrook, who saw the loose marijuana and smelled the odor later. This is sufficient to establish the presence of probable cause (see People v. Bowman (1988), 164 Ill. App. 3d 498, 501-02, 517 N.E.2d 771, 774), which justifies a search of the entire vehicle.

Defendant maintains to the contrary. He notes the troopers did not recover the plant material, and he contends their testimony is incredible. It is well settled the trial court’s determination in this regard should only be overturned where it is contrary to the manifest weight of the evidence. (Clark, 92 Ill. 2d at 99, 440 N.E.2d at 871.) The court heard the testimony, observed the witnesses, and determined the relevant credibilities. We find no error with its conclusion.

Defendant next contends the court incorrectly found he was eligible for an extended-term prison sentence. Both offenses are Class 4 felonies, which carry a maximum of three years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(7)), unless the extended-term provisions apply, in which case the maximum is six years (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(a)(6)). In the present case, the court determined defendant qualified for an extended-term sentence pursuant to section 5—5—3.2(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)).

This section provides that the court may impose an extended-term sentence “[wjhen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)(1).) A Federal conviction in Illinois also qualifies as a basis for extending a subsequent sentence. People v. Harden (1986), 113 Ill. 2d 14, 21-22, 495 N.E.2d 490, 494.

A review of defendant’s record establishes that in October 1979 he was found guilty, by a jury sitting in the Federal Central District Court of Illinois, of committing the offense of unlawful distribution of a controlled substance. He was subsequently sentenced to five years’ imprisonment. This case was reversed and remanded on appeal on June 16, 1980. Following a jury trial on March 2, 1981, he was again found guilty and, on April 13, 1981, he was placed on probation and received a suspended sentence.

It is clear from the language of section 5—5—3.2(b)(1) of the Code that the 10-year period runs from conviction to conviction. The date of conviction is the date of entry of the sentencing order. (People v. Robinson (1980), 91 Ill. App. 3d 1128, 1130, 414 N.E.2d 1335, 1336.) Thus, the period in question is from April 13, 1981, the sentencing on the Federal offense, to August 31, 1990, the date of sentencing on the present offense. This is clearly within the 10-year period, and the extended-term sentence is thus permissible.

Defendant argues that the fact his Federal conviction was originally overturned on appeal calls for a different result. He observes that his original conviction was in 1979, which is outside the 10-year period. The only reason he now falls within the 10-year period is because he won his original appeal. He cites to section 5—5—4 of the Code, which provides:

“Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-4.)

He maintains that using the 1981 conviction as a basis for an extended-term sentence runs afoul of the rationale of this provision and the Supreme Court authority upon which it is based (see North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072) because, since he could not have received an extended-term sentence for a 1979 conviction, he is being sentenced more severely due to his appellate success. Defendant is mistaken.

The purpose of Pearce and section 5—5—4 of the Code is to avoid vindictive resentencing by a trial court when a defendant successfully exercises his appellate rights. (See Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.) However, that is not the situation now facing us. Here, defendant is sentenced on a new offense. Admittedly, defendant’s success on appeal pushed his conviction back to 1981 and qualified him for a more severe penalty, but that is simply a collateral effect of his appeal. This is not the circumstance in which a defendant can be vindictively penalized by the sentencing court for successfully appealing. In fact, defendant, upon remand, received a less severe sentence in the Federal court, and it is only due to the new criminal conduct that this sentence has been imposed. Accordingly, we conclude that there is no impairment to the application of section 5—5—3.2 of the Code by the fact that a defendant at one time successfully prosecuted an appeal in the case involving the aggravating conviction, which resulted in that conviction occurring within 10 years of the present one.

Finally, defendant suggests his sentence, the maximum extended-term sentence, is excessive. Defendant’s record shows not only the Federal drug-distribution conviction, but also two 1975 convictions involving possession and distribution of a controlled substance. When a sentence falls within the statutory range and the court has not erred in the selection of information to consider, we can properly alter the severity of a sentence only when it constitutes an abuse of discretion. (People v. Crews (1989), 191 Ill. App. 3d 228, 237, 547 N.E.2d 580, 586.) Here, we find none.

Affirmed.

GREEN and KNECHT, JJ., concur.


text:
    KENNETH L. ABRAMS, Ex’r of the Estate of Hazel May Turner, Deceased, Plaintiff-Appellee, v. JOHN J. ROYSE et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0580
    Opinion filed April 4, 1991.

      Marc J. Ansel and Gregory D. Gozad, both of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellants.
    Robert 0. Keller and Stephen J. LeSueur, both of Keller & LeSueur, of Champaign, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On July 19, 1990, the circuit court of Champaign County entered an order, pursuant to the complaint to quiet title filed by plaintiff Kenneth Abrams, executor of the estate of Hazel May Turner, holding that title to the property in question is properly vested in devisee of plaintiff estate and that defendants, John Royse and Buddy Myers, were to execute a quitclaim deed for said property to said devisee. Defendants now appeal.

This dispute involves a strip of land acquired pursuant to court action in 1867 by the Monticello Railroad Company. Years later, the Monticello Railroad passed its interest to the Illinois Central Railroad. In 1988, this railroad line was abandoned, and on June 6, 1988, defendants acquired the railroad’s interest pursuant to a quitclaim deed.

On December 19, 1988, plaintiff filed the instant complaint to quiet title. The question to be litigated was whether the railroad had a fee simple absolute interest in the property which defendants acquired, or whether the railroad had a right-of-way with a reversionary interest in the proper landowner once the railroad no longer used the property. The complaint alleged, and it is uncontested, that decedent was the rightful owner if a reversionary interest existed.

The property in question was acquired by the railroad in a condemnation proceeding in 1867 in Monticello R.R. Co. v. Caldwell (Dec. 11, 1867, Cir. Ct. Champaign Co.), No. 4360 (Caldwell). At the time of the action, there were two statutes which are involved in our analysis. The first, effective November 5, 1849, is entitled “An Act to provide for a general system of railroad incorporations” (Laws of Illinois (1849), Incorporations, pars. 1 through 46, at 15-28 (passed by 16th Ill. Gen. Assem., 2d Sess.) (hereinafter 1849 Act)). The second, effective June 22, 1852, is entitled “An Act to amend the law condemning right of way for purposes of internal improvement” (Laws of Illinois (1852), pars. 1 through 21, at 146-52 (passed by 17th Ill. Gen. Assem., 2d Sess.) (hereinafter 1852 Act)).

In its memorandum of opinion, the court initially concluded the 1849 Act controlled the Caldwell decision. Neither party contests this conclusion. The court observed the question of what property interest a railroad acquired pursuant to the 1849 Act had never been decided. After an analysis of the 1849 Act, case law showing the 19th-century view toward railroad right-of-ways and the wording of the order in Caldwell, the court concluded that the railroad only acquired a right-of-way for as long as the land was used for railroad purposes, -with the land reverting to the original landowner when it ceased being so used. We concur in this conclusion and affirm.

The relevant provisions of the 1849 Act provide that upon entry of an order pursuant to a condemnation proceeding:

“[The railroad] shall become seized in fee of all the lands and real estate described in said [order], as required to be taken as aforesaid, during the continuance of the corporation, by this or any subsequent act, and may take possession of and hold and use the same for the purposes of said road.” (1849 Act, par. 22, at 23.)

The ambiguity of this provision is readily apparent. On one hand it states the railroad shall become “seized in fee” of the property which defendants maintain shows a legislative intent to ensure that a fee simple title passed to the railroad. On the other hand, the statute uses the phrases “during the continuance of the corporation” and “may take possession of and hold and use the same for the purposes of said road” (1849 Act, par. 22, at 23), which plaintiff argues should be viewed as limiting language indicating the legislature intended that something less than a fee simple was acquired.

This ambiguity is made clearer by reference to the court documents in Caldwell, which appear to be drafted to conform to the statute. The petition indicates the railroad is seeking a “right of way.” Commissioners were appointed to ascertain the compensation to be paid for the taking of the “right of way” across the lands, and the commissioners ultimately reported they had determined the proper compensation for the lands “taken for said right of way.” However, the decree provides:

“[S]aid Company shall have as and for a right of way and be seized in fee of [land description] ***. *** And it is further ordered and adjusted by the Court that said Company may take possession of and hold and use said right of way for the purposes of said road.” (Monticello R.R. Co. v. Caldwell (Sept. 3, 1873, Cir. Ct. Champaign Co.), No. 4360, slip op. at 6.)

Thus, most of the language speaks of right-of-ways and contains language which indicates the property is for railroad use, which indicates the railroad acquired an easement with a reverter once the land is no longer used. However, defendants observe that such a construction makes the “seized in fee” language meaningless. To give that phrase meaning, they suggest that something more than an easement is involved.

Initially, it should be noted that one case has commented on the 1849 Act. In Marathon Oil Co. v. Heath (7th Cir. 1966), 358 F.2d 34, 36, the court stated: “The [1849 Act] did, however, contemplate the taking of a fee by a railroad for use in the construction of its tracks ***.” However, that comment was made in passing and is dicta, since that case was controlled by the 1852 Act. Thus, it has little value and adds nothing to this analysis.

Defendants observe that under the 1852 Act when “property was taken and condemned for public use the condemnation was of the entire property, and the assessment of damages was held to be in satisfaction of all the title to the property, including the fee simple and all lesser estates.” (Bartlow v. Chicago, Burlington & Quincy R.R. Co. (1909), 243 Ill. 332, 336, 90 N.E. 721, 723; see also Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1945), 392 Ill. 362, 374, 64 N.E.2d 499, 505.) They believe that due to the close proximity in time between passage of the two Acts and similarity in the language, this construction should also control the 1849 Act.

However, we must disagree. We note there is a large difference in the scope of the two Acts. The 1849 Act was limited to railroads, while the 1852 Act was a general condemnation act. Further, the language contained in the acts is not so similar as to conclusively establish, given the differences in their scopes, that the acts are intended to be construed similarly.

The question now before us turns upon the interplay between the concepts that the railroad, became seized in fee of the property and that the railroad acquires only a right-of-way. In attempting to resolve this quandary, we are aware it has long been established in construction of a statute that it is not presumed the legislature intended any part of the statute to be without meaning and, therefore, every part of it must be viewed in connection with the whole, so as to make all the parts harmonize, if practicable. (Buchanan v. Bartow Iron Co. (1878), 3 Ill. App. 191, 196; see also People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200, 203; Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, 419, 444 N.E.2d 211, 215.) While at first blush it appears this will be impossible to do since the concepts appear irreconcilable, we conclude upon further review that this is not so.

In order to resolve this question, it is necessary to review cases in which courts determined what interests railroads acquired pursuant to various deeds. In Walker v. Illinois Central R.R. Co. (1905), 215 Ill. 610, 74 N.E. 812, the court was asked to determine what interest the railroad acquired when it purchased the right-of-way. The court explained the nature of railroad right-of-ways as follows:

“The land contained in the strip was not conveyed to the appellee, but its use. The interest, however, which the appellee acquired in said strip was absolute for the purposes for which it was acquired, so long as it was used for railroad right of way purposes. In Hazen v. Boston and Maine Railroad Co. 2 Gray, 574, it was said (p. 580): ‘The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive.’ And in Chicago and Mississippi Railroad Co. v. Patchin, 16 Ill. 198, this court, on page 202, speaking through Mr. Justice Scates, said: T presume the right to the land upon which railroads are built is not strictly analogous to the easement of the public in highways, leaving the fee in the owner of the soil, but is an absolute ownership in fee for railroad purposes.’ And in Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500, it was held that the right of way was the exclusive property of a railroad company, upon which no unauthorized person had the right to be for any purpose. And in Jackson v. R. & B. R.R. Co. 25 Vt. 150, Mr. Justice Redfield said: ‘The railway company must, from the very nature of their operations, in order to the security of their passengers, workmen and the enjoyment of the road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the former owners in any mode and for any purpose.’
In Illinois Central Railroad Co. v Houghton, 126 Ill. 233, on page 241, where the court was considering a deed very similar to the deed now under consideration, it was said: ‘While we are not disposed to hold that the deed from Walker to the plaintiff conveyed to the plaintiff an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee.’ ” Walker, 215 Ill. at 615-16, 74 N.E. at 813-14.

In Illinois Central R.R. Co. v. Houghton (1888), 126 Ill. 233, 18 N.E. 301, the deed provided that the railroad would acquire “ ‘the right of way over and through said tract,’ ” to have and to hold “ ‘for all lawful uses and purposes incident to a full and indefeasible title in fee simple ***.’” The court, in reaching its decision, explained how a railroad right-of-way gives a railroad more control over the property than a normal easement. (Houghton, 126 Ill. at 240-41, 18 N.E. at 303-04.) Ultimately it stated:

“While we are not disposed to hold that the deed *** to the [railroad] conveyed to the [railroad] an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee.” (Emphasis added.) Houghton, 126 Ill. at 241, 18 N.E. at 304.

Thus, it is evident that the right-of-ways railroads procured were more substantial than normal easements, but still less than the entire fee in the property. Of particular interest to our present inquiry is the emphasized language in Houghton. This language clearly suggests it is possible for a fee to be in a right-of-way. This point is made more clear in the relatively more recent case of Tallman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 41 N.E.2d 537.

In Tallman, the court was asked to address the impact of a deed which conveyed property to the railroad “ ‘as and for its right of way ***.’” The court initially observed that the words “right of way” denote a tenure by which land is held; they are descriptive of the easement right. (Tallman, 379 Ill. at 446-47, 41 N.E.2d at 540.) The court later noted that the law is well settled in Illinois that the granting of a right-of-way to a railroad company does not convey a fee in the land, but conveys only an easement. (Tallman, 379 Ill. at 451, 41 N.E.2d at 542.) In reaching its ultimate conclusion, the court stated:

“In the present case to hold a fee simple of all interest is granted would be to give no effect whatever to the words, ‘right of way,’ but to hold the conveyance is an easement is compatible with the language of the deed, since the fee simple would be in the easement and not in the land to which it is appurtenant.” Tollman, 379 Ill. at 452, 41 N.E.2d at 543.

We believe this is the construction to be placed on the 1849 Act. The 1849 Act provides the railroad is “seized in fee,” but it also contains language indicating the estate received by the railroad is of a limited nature. It is only this construction, that the railroad acquires a fee in the easement or right-of-way, which harmonizes all the provisions. This interpretation easily comports with the Caldwell order which consistently refers to right-of-ways and concludes:

“[The railroad] shall have as and for a right of way and be seized in fee of [land description] ***. *** And *** may take possession of and hold and use said right of way.” (Monticello R.R. Co. v. Caldwell (Sept. 3, 1873, Cir. Ct. Champaign Co.), No. 4360, slip op. at 7.)

It is particularly relevant that the “as and for a right of way” language in Caldwell is virtually identical with that language which the Tollman court found so important.

. This conclusion is further supported by the charter of the Monticello Railroad which initially acquired the property in question as plaintiff in Caldwell. “An Act to incorporate the Monticello Railroad Company” provides:

“The said corporation shall have a right of way upon and may appropriate to its sole use and control, for the purposes contemplated herein, land ***. All such lands *** may be taken and paid for, if any damages are awarded, in the manner provided in [the 1849 Act] *** and the final decision or award shall vest in the corporation hereby created all the rights, franchises and immunities in said act contemplated and provided.” (Private Law of Illinois (1861), Railroads, par. 3, at 503 (passed by 22d Ill. Gen. Assem.).)

Again, we find the references to the railroad acquiring a right-of-way, and the language indicating the property was acquired for the purpose contemplated — a railroad — which suggests the right of way is limited to that use.

Defendants focus much of their argument on the “seized in fee” language, maintaining that to hold that anything less than a fee simple absolute is conveyed distorts this language.

However, we respond to defendant’s argument and find further support for our conclusion by relying on our supreme court’s analysis in Texas Co. v. O’Meara (1941), 377 Ill. 144, 149, 36 N.E.2d 256, 258, where it explained:

“A greater portion of appellants’ brief is devoted to citations and argument intended to show that the conveyance in question was ‘in fee’ and the arguments pro and con as to this point are urged by them as determinative of the result. We do not believe this to be true. In Oswald v. Wolf, 126 Ill. 542, we were, as here, considering a title to a right-of-way. We there pointed out on authority of Blackstone that the word ‘fee,’ as meaning an estate of inheritance, is applicable to and may be had in any kind of hereditament, either corporeal or incorporeal. We held that an easement of way is an incorporeal hereditament, not subject to livery of seisin, but subject only to grant; that rights-of-way have attached to them the same idea of duration or quantity of estate as is applied to corporeal hereditaments; that the duration of the estate, or the time for which the enjoyment is to continue forms the quantity of the estate, and hence, if the grant be an estate of inheritance either in hereditaments corporeal or incorporeal, a fee is taken, while if for life only a life estate would be granted.”

Also, there is additional support from the definition contained in Black’s Law Dictionary 741 (4th ed. 1951), which provides:

“Ordinarily, word ‘fee’ or ‘fee simple’ is applied to an estate in land, but term is applicable to any kind of hereditament, corporeal or incorporeal, and is all the property in thing referred to or largest estate therein which person may have.”

Accordingly, we conclude as noted earlier that the phrase “seized in fee” is properly construed as applying to the largest estate the railroad may acquire. In the present case, a review of the Caldwell order, the charter of the Monticello Railroad, and the 1849 Act establishes that the estate acquired is a right-of-way for the purposes of the railroad and, when that purpose is no longer being met, the land reverts to the underlying landowner.

Accordingly, we conclude the 1849 Act only grants the railroad a right-of-way which ends upon the railroad abandoning use of the property. The order of the circuit court of Champaign County is affirmed.

The panel deciding this case specifically commends the trial judge for his thoroughness as illustrated in his written opinion. We emphasize to other trial judges that such is of untold value when we review the trial court’s judgment.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT CLAY, Plaintiff-Appellant.
    First District (6th Division)
    Nos. 1—88—2187, 1—89—3115 cons.
    Opinion filed December 28, 1990.
    Rehearing denied April 12, 1991.

      Xinos & Xinos, Ltd., of Chicago (Constantine R Xinos, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

In a consolidated action, defendant appeals his 1988 triple murder conviction and a 1989 ruling denying him a new trial on the murders based on newly discovered evidence. On the murder case itself, defendant contends that the trial court improperly denied his motion to suppress statements he made inculpating him in the murders. On the motion for a new trial, defendant contends the trial court erred in rejecting new evidence which defendant contends proved the defendant was telling the truth when he made the damaging statements uttered during plea negotiations. The State contends that the motion to suppress in the murder trial was properly denied and that the “new” evidence presented by defendant is merely cumulative and serves only to impeach a State witness, which is not enough to warrant a new trial.

In 1975, defendant Roosevelt Clay was subpoenaed to appear before a Cook County grand jury hearing evidence on the murder of three people in Chicago, Dr. Lawrence Gluckman, Tressie Harris and Minnie Harris. He exercised his right to remain silent initially but later testified that he had no knowledge of the deaths of the three individuals. He was never charged. Eight years later he was named defendant in two armed robbery cases pending in two different courts in Cook County.

Defendant testified at the hearing on the motion to suppress that he believed Chuck Renzeno and Willie Carter set him up for armed robbery because Carter mistakenly believed defendant had stolen Carter’s checkbook and cashed $22,000 worth of checks. In February 1983, in an effort to prove he was set up for the first armed robbery, defendant phoned the Federal Bureau of Investigations (FBI) in Chicago and agreed to provide them with information on various individuals whom he believed had set him up. The FBI and defendant agree that it was at this time that the defendant began cooperating and provided them with information on drug trafficking; however, no “plea negotiations” were underway.

On May 17, 1983, a jury found defendant guilty of the first of the two armed robbery charges. Within the next few weeks, defendant phoned the FBI again, asking if they would help him. Defendant maintains that he continued to cooperate with the FBI because agents told him they would aid in his effort to receive a concurrent minimum sentence of six years for both armed robbery charges when he pled guilty to the second armed robbery. Defendant contends he was told on June 3, 1983, that he had to provide information on something of interest to State authorities in order for the FBI to help him out on the second robbery case.

On June 6, while in custody, defendant phoned the FBI again, this time telling them he could provide information to them about a murder in Wisconsin in 1982. At this point, defendant contends he entered into plea negotiations, offering to plead guilty to the second State robbery charge and provide more information on other crimes if, in exchange, he would receive six-year concurrent sentences for the two armed robbery convictions. The State contends that defendant volunteered information about the murder and provided all subsequent information without inducement.

On June 13, 1983, two FBI agents, including Scott D. Jennings, went to the Cook County jail to interview the defendant. Consistent with bureau policy, they read defendant his Miranda rights and had him sign a waiver of rights form. Thereafter, he provided information on his involvement in a homicide in Wisconsin and a triple homicide in Chicago for which he was later indicted. This meeting marked the first time defendant told the FBI about the Chicago murders.

On August 29, 1983, defendant repeated the statements to two Chicago police officers who handled the initial investigation on the 1975 murders after Jennings had contacted them. Defendant concedes that no promises were made to him by the Chicago police. He later testified at a motion to suppress hearing that he made the statements to State authorities because FBI agent Jennings, with whom he had been working, told him not to worry but just to cooperate with the State police and answer their questions.

In December 1983, defendant was sentenced to nine years for the first armed robbery conviction. No FBI agent spoke on his behalf at the sentencing hearing. Defendant subsequently pled guilty on the second armed robbery charge and received a sentence of nine years to run concurrently with the first nine years.

In March 1984, angered because he did not receive a six-year sentence for the armed robberies, defendant ceased cooperating with the FBI.

Defendant was indicted September 10, 1984, for the 1975 murders of Dr. Lawrence Gluckman and two of his patients, Minnie and Tressie Harris. On July 14, 1986, after the State responded to discovery requests, the defendant moved to suppress statements made by him in 1983 to members of the Chicago police department and the FBI, which implicated him and others in the triple murder in Chicago.

Defendant argues that the statements were made during plea negotiations involving two unrelated armed robbery charges he faced and were therefore inadmissible under Supreme Court Rule 402(f) (134 Ill. 2d R. 402(f)). Rule 402(f) states: “If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 134 Ill. 2d R. 402(f).

On May 2, 1988, the court heard testimony and arguments on defendant’s motion to suppress his statements. The defendant testified on his own behalf, stating that he first phoned the FBI in February 1983 after he was released on bond on pending State armed robbery charges.

The defendant testified that he wanted to prove he had nothing to do with the robbery. When asked why he helped the FBI out, defendant said: “[I]f he [sic] help me to prove that I didn’t do this here, I’ll hook Chuck Renzeno and Willie and [Mike] Switek up whatever their business dealings were.” Defendant testified that as part of his cooperation in the ensuing months, he wore a wire and was under surveillance when he met with Switek “just to get Willie and Chuck Renzeno for getting me at first. That’s what it was about.”

Defendant testified that he brought up his pending armed robbery cases around the third or fourth time he met with FBI agent Jennings. Defendant testified that: “They wanted to brief me all that I knew, and they told me that they will help. They give me continuances as long as it takes to do this and at the end they make it be known that cooperation and try to get me less time as possible.” Defendant testified that it was his understanding that he would continue to help the FBI out, providing them information on drug running and other criminal activity and that in return they would have his case delayed in court.

Defendant testified that he appeared in court on May 17, 1983, and learned that his case was set for trial despite FBI agents’ assurances that the case would be continued until they had time to gather more information from him. He phoned an FBI agent named Ross Rice, who spoke to the defendant’s lawyer. Defendant testified that he heard his lawyer say: “Whatever you guys are going to do, you better come on and do it because we are going to trial.”

Defendant was convicted of the first armed robbery charge on that day, May 17. In June, while in jail, defendant testified that he called the FBI because he wanted their help in obtaining concurrent sentences if he was convicted of the second armed robbery charge. He testified that: “They told me they are going to get me out and don’t worry about it. We need to give the State something. We have to give the State something.” Defendant testified that he was told this several times and told that if he could give the State something, “they would get me out.” On cross-examination, he testified that it was at this time that he cut a deal with the FBI to get concurrent time for the two armed robberies. He had no plea agreement before his first trial and conviction.

Defendant testified that on June 13, 1983, the FBI agents came to the jail and .he told the FBI about the Chicago and Wisconsin homicides in which he was involved. He denied being given his Miranda rights before he spoke but he admitted signing a written waiver of his rights. He denied that he read the waiver but acknowledged that he can read. He said that before he gave the FBI information on the murders, the FBI agent agreed to see to it that he received concurrent, minimum time on the State armed robberies at the time of the sentencing. Defendant testified that the only reason he spoke out about the murders after eight years “was to make a deal.” “The deal on concurrent time. I was facing consecutive time. I just got found guilty for one armed robbery.” But on cross-examination, defendant conceded that before he contacted the FBI in June 1983 he received word that Willie Carter had raped or had attempted to rape the mother of his two-year-old son. Defendant admitted that he was mad at Carter and wanted to get even. The State contends that this was defendant’s motivation and not an effort to get concurrent minimum time.

Defendant testified that a week or two after he spoke with Jennings about the murder he was transferred to a Federal prison and he was assured that the sentencing on his armed robbery conviction would be postponed until he had finished gathering information on Switek for the FBI. He testified that his understanding of the plan was for the sentencing to come later so that the FBI could arrange that he would get concurrent six-year prison sentences after he pled guilty to the second armed robbery conviction.

Defendant testified that after he spoke to FBI agent Jennings about die homicides, he was told by Jennings that they had located the Chicago police officers involved in the triple-homicide investigation so he could talk to them. Defendant testified that: “He told me they will be coming over to talk to you. ‘Don’t worry about it. This is to help me. We have to go through this to get where we are going. So they are coming over. Don’t worry about. Just answer all the questions to the best of your knowledge and cooperate with them.’ ” Jennings denied telling defendant these things.

Defendant spoke with the Chicago police officers on August 29, 1983. Defendant testified that he was given his rights and the Chicago police officers, while an FBI agent was present, told him they could promise him no deals, but that “[a]ll we want is Willie, the shooter.” Defendant related information about the Wisconsin murder and about the triple murders in Chicago.

Defendant testified that on December 19, 1983, he was taken to the State’s Attorney’s office, where he spoke to the police officers again and one of the officers told him at the time: “Look, this is what is happening. You are going to plead guilty to 14 years. You are going to testify against anybody truthfully to the best of your ability or else we are going to start proceedings and indict you Friday.”

Defendant challenged the officers, questioning if they had cleared that with the FBI agent with whom he had been working. Defendant testified that the officer swore at him and told him the FBI agent had nothing to do with the deal being cut. Defendant related that he later spoke to his own attorney, who told him that the officers and FBI were tricking him into confessing. The attorney told him to quit talking.

In December 1983, defendant was sentenced on the first armed robbery conviction to nine years in prison. Before sentence was imposed, defendant spoke with the judge in chambers so it would not be made public that he had been cooperating with the FBI. On January 4, 1984, he pled guilty to the second armed robbery charge and was sentenced to a second nine-year term to run concurrently. He testified that no FBI agent spoke on his behalf at either of the sentencing hearings.

Defendant testified that after he was transferred to Stateville prison in Joliet, an FBI agent went there to speak with him about the 1982 Wisconsin murder defendant had alluded to earlier, but defendant testified that he refused to speak to the FBI.

Jennings, the FBI agent, testified at the hearing on the motion to suppress. He testified that he told defendant the first day they met that he couldn’t make any promises regarding sentencing or penalties but he could let State officials know that he was cooperating.

Jennings contradicted the defendant’s testimony, stating that defendant volunteered testimony about the triple murders in Chicago. He denied ever telling defendant he would attempt to get the defendant minimum time if convicted of the armed robberies. He admitted defendant started to give information to the FBI after he was told the FBI would tell the State he was helping.

He denied that any plea bargaining was going on or promises were given. He testified that he advised the defendant of his constitutional rights June 13, 1983, before speaking with the defendant about any murders. On cross-examination, he conceded that it is standard bureau procedure to give Miranda rights to anyone in custody. He also testified he considered defendant’s help to be “cooperation.” He testified that defendant was told he could be prosecuted for the murders of which he spoke but was never told he could be prosecuted for the drug trafficking activities on which he was giving information.

Defendant’s attorney, Michael Goggins, testified that Jennings had indeed promised defendant, as well as Goggins, that he would inform prosecutors that the defendant was cooperating, but then failed to do so. Goggins testified that the defendant told him he had been assured he would not be charged with any crime about which he was telling the FBI. “He was assured that Jennings was going to go to bat for him in front of Judge Gillis and the prosecutors there and he did not anticipate at any time being charged with any other criminal activity.”

Goggins said the trial judge knew of defendant’s cooperation with the FBI at the time he sentenced the defendant after his first armed robbery conviction. Goggins testified that he spoke to the defendant after the defendant received the nine-year sentence on the first armed robbery conviction. Goggins said the defendant was upset and wanted to know why he had not received a six-year sentence.

After hearing testimony, the trial court denied the motion to suppress. The trial court stated in its findings that the defendant was told on several occasions that the FBI could make no promises or deals but did say they would advise the prosecutor of his cooperation if he did choose to cooperate. The judge stated that: “There is no question in the court’s mind that the prosecutors in Judge Gillis’ courtroom were fully aware of the fact Mr. Clay was cooperating with the federal authorities. He had been transferred to the MCC, his case was continued from, I want to say six or seven months between the %e-the disposition of the case, the finding in the case and the sentencing.”

The trial court found defendant’s statements voluntary, relying on the two-part test enunciated by the supreme court in People v. Friedman: (1) whether in making the statement the accused exhibited a subjective expectation to negotiate a plea and (2) whether his expectation was reasonable. People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229, 235.

Here the court found that “while there might be an argument made that these statements were made by Mr. Clay to get a lesser sentence. There might also be an argument made that those statements were made by the defendant to get Mr. Switek and Mr. Carter, and I believe those, in effect, were — was his tendency from the witness stand.” As to the second prong, the court said “there is no objective way that we can categorize what transpired here as plea negotiations or plea agreements or plea discussions. He was told time and time again that there were no deals, that the FBI could make no deals. The Chicago Police Department advised him at least one time *** they could make no deals. He was admonished. He signed a waiver indicating that there were no deals. These discussions, in the court’s mind cannot under any reading of the facts in this case be called plea negotiations. There was no coercion. There was no promise. The statements were voluntary. Respectfully, the motion to suppress the statement will be denied.”

A jury was chosen and the defendant’s case went to trial May 3, 1988. On May 10, 1988, the jury returned a verdict finding defendant guilty of the murders of Gluckman and his two patients. Defendant filed this appeal.

In 1989, while his appeal was pending, defendant was indicted for the 1982 murder in Wisconsin about which he had told FBI officials. While the charge was pending, defendant learned that a Wisconsin police chief, now retired, had spoken with Jennings about the Wisconsin murder on the same day that defendant first admitted to Jennings that he was involved in the crime. A police report was prepared in Wisconsin that detailed the conversation.

Defendant filed a motion seeking a new trial on grounds that new evidence had been discovered. He argued that the new evidence proved plea negotiations were in fact underway when defendant confessed to the Wisconsin and Chicago murders. The State moved to have the defendant’s motion dismissed, contending that the evidence was merely cumulative.

Before the trial court ruled on the motion for a new trial, it viewed the police report which was attached as an exhibit to the motion. The report states that Jennings had called the chief June 7, 1983, because “they had a black male in custody who they believed might be responsible for the murder of Ernest Kamrath.” The report went on to state that “this black male was in the process of attempting to arrange a deal to lessen charges against him and in turn was to supply information as to the party or parties responsible for the Ernest Kamrath shooting.”

Defendant also presented, as part of the exhibits to his motion, a transcript of Jennings’ testimony at the Wisconsin trial. Jennings was then asked, “And did Roosevelt Clay indicate to you that he was trying to work out a deal to lessen charges and wanted your help?” Jennings responded, “Yes, sir.”

Defendant argued that this was more than impeachment and was not merely cumulative but that it went to the crux of whether the motion to suppress should have been granted. The trial court, again following Friedman, found that the new evidence would not have prompted the court to rule differently on the motion to suppress and therefore denied defendant’s motion for a new trial. Defendant appeals the denial of the motion for a new trial. The two appeals are consolidated before this court.

First we consider whether the trial court properly denied defendant’s motion to suppress on a finding that the statements implicating him in murder were voluntary. A trial court’s finding that a defendant’s statement was voluntary will not be disturbed on appeal absent a showing that it is against the manifest weight of the evidence. (People v. Haymer (1987), 154 Ill. App. 3d 760, 506 N.E.2d 1378.) The same standard applies to uphold a trial judge’s determination of each witness’ credibility. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

Defendant argues that the FBI agent set the ground rules from the start, telling defendant he must disclose “everything” in exchange for help so he would be given the minimum time and concurrent sentences on two State armed robbery charges. Defendant argues that the fact that ongoing plea negotiations were taking place is evident not only in defendant’s testimony but also in the testimony given by the FBI agent. The agent testified during the motion to suppress defendant’s statements that: “When we explained to him his cooperation, what I usually tell people, and we want you to be fully cooperative as I did in this case. We want to know what you’re doing. If you don’t tell us everything and you are in fact running cocaine or selling bombs or doing whatever on the side and we find out about it we will fully prosecute you.” When asked if that meant that defendant would not be prosecuted as long as he told the truth and wasn’t caught doing anything wrong, Jennings answered, “That’s correct and I said fully cooperate and tell us fully what you are involved in in the past and not have anything jump up that you didn’t tell us about, you can be prosecuted. This gets to the trial stage, we have you as a witness and you didn’t tell us about some crime you committed years ago you are going to be fully prosecuted for this.”

The test for voluntariness is whether the statement was made freely and without compulsion or inducement of any sort at the time he confessed. (Haymer, 154 Ill. App. 3d 760.) Both the language used and the surrounding circumstances are pertinent to a determination of whether a promise was given in exchange for a confession. (People v. Buxton (1975), 28 Ill. App. 3d 429, 328 N.E.2d 703.) A prosecutor’s promise or agreement to a defendant must be fulfilled. Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350.

Defendant admits he signed a Miranda waiver, but cites People v. Shaw (1989), 180 Ill. App. 3d 1091, 536 N.E.2d 849, for the proposition that the court should look to what prompted defendant to confess and not whether he signed a Miranda waiver, to determine whether the confession is admissible. Defendant argues further that it was reasonable for him to believe that talking to the Chicago police about the murders was simply part of his obligation to cooperate with the FBI and in fact that he was told by them that he had to “give the State something” in order for the FBI to help him with the armed robbery sentences. He contends there is no other reason he would risk a murder conviction when he was facing only two armed robbery charges at the time.

The State, however, contends that defendant was not motivated by a potential plea agreement but by a desire to get even with Willie Carter after he was told Carter had tried to sexually assault his girlfriend. Defendant did admit he was mad at Carter and wanted to get even by getting Carter off the streets. In addition, the State argues that before the statements were made, defendant was advised of his Miranda rights, signed a waiver form and agreed to make a statement, evidencing voluntariness on his part and the defendant was told that statements he made could be used against him. The State denies that defendant was told he had to provide “something” for the State in order to get help on a plea.

The court may consider several factors to determine whether a statement was voluntary. These include the defendant’s age, intelligence, education, background and mental capacity. (Haymer, 154 Ill. App. 3d at 770.) In addition, the court can consider the conditions surrounding the confession such as the duration of defendant’s detention, mental and physical abuse by police officers and the existence of threats. Haymer, 154 Ill. App. 3d at 770.

The State argues that even if an agreement existed initially, it was an agreement that the FBI would help defendant clear his name and not to prevent State prosecution. The State argues that when defendant phoned the FBI and indicated a willingness to provide information on a murder, defendant was “reinitiating contact with the FBI” and defendant’s motivation had changed. He no longer wanted help on his armed robbery cases, he just wanted to “get” Willie Carter.

Defendant has offered only his word and some supporting circumstances to prove his position. We note that defendant had not yet been sentenced for either armed robbery conviction at the time he provided information on the murders. We note too that defendant continued to cooperate with the FBI after he was convicted on the first armed robbery charge and that Federal officials had him transferred out of Cook County jail to a Federal prison, the Metropolitan Correctional Center, between his conviction and sentencing. We note too that defendant appeared before a Federal grand jury during that time period and, when asked, told jurors that he was cooperating in order to get a lighter sentence.

But the trial judge also heard FBI agent Jennings’ testimony that no deal existed and that Jennings had warned defendant his statements could be used against him when he gave them. State evidence showed defendant had been warned of his Miranda rights and had signed a waiver.

The trial court is in the best position to weigh the credibility of the witnesses. We cannot say that the trial court’s decision, based on the information before it at the time, was against the manifest weight of the evidence. We affirm the trial court’s decision to deny defendant’s motion to suppress.

Defendant next contends the trial court erred when it permitted State witnesses to testify as to what defendant allegedly told them about his involvement with the murders. Any statement by an accused person, unless excluded by the privilege against self-incrimination or other exclusionary rules, may be used against him as an admission. (People v. Howell (1977), 53 Ill. App. 3d 465, 368 N.E.2d 689.) The court properly determined that no plea negotiations were underway when the defendant made these statements and that therefore they were voluntary and admissible.

On July 18, 1989, the defendant filed a motion for a new trial based on newly discovered evidence. The evidence was provided in a 1983 police report from Waukesha, Wisconsin, a report which defendant argues is proof that he was in the process of plea negotiations when he made the statements used against him at his murder trial in Illinois.

The report, prepared by a Waukesha detective at the direction of his former police chief Richard Sader, stated that Agent Jennings phoned Sader on June 7, 1983, the same day defendant first told Jennings he had information about the 1982 Wisconsin murder and before defendant had disclosed information about the triple murder in Chicago. The report states that Jennings told Sader “they had a black male in custody who they believed might be responsible for the murder of Ernest Kamrath *** this black male was in the process of attempting to arrange a deal to lessen charges against him and in turn was to supply information as to the party or parties responsible for the Ernest Kamrath shooting.”

On September 8, 1989, the State moved to dismiss the defendant’s motion for a new trial. The State contended the newly discovered evidence merely impeached Jennings’ testimony and that Jennings’ testimony alone was not the basis for the trial court’s denial of defendant’s motion to suppress.

On October 13, 1989, the trial court heard evidence on defendant’s motion and then recessed to permit defendant to obtain transcripts which would provide further new evidence. Before the next hearing date, defendant provided the court with exhibits to his motion that included transcripts of testimony given by Wisconsin Police Chief Sader and Jennings in September 1989 during defendant’s trial for the Wisconsin murder. Sader’s testimony confirmed the telephone conversation with FBI agent Jennings and the accuracy of the report. Jennings had testified at the Wisconsin trial on September 23 and 26, 1989. He was asked, “You knew prior to June 13th that Roosevelt Clay was charged with armed robbery, two armed robberies in Chicago?” Jennings answered: “I believe it was two, possibly three.” Then he was asked: “And did Roosevelt Clay indicate to you that he was trying to work out a deal to lessen charges and wanted your help?” Jennings answered: “Yes, sir.”

On November 3, 1989, the trial court heard the remainder of the arguments on defendant’s motion for a new trial and then denied defendant’s motion. The court relied on People v. Chew (1987), 160 Ill. App. 3d 1082, 1085-86 513 N.E.2d 1099, which stated that: “To warrant a new trial, newly discovered evidence must be material, so conclusive it will probably change the result, discovered after the trial, and incapable of being discovered prior to trial by the exercise of due diligence.” The State does not challenge defendant’s diligence or his allegation that the evidence was discovered after the trial. The State contends, however, that the evidence is not so material that it could be considered conclusive in that it would change the results of the murder conviction. The State argues that the material from Wisconsin is merely impeachment of the FBI agent. Newly discovered evidence, the effect of which is to discredit, contradict and impeach a witness does not afford a basis for the granting of a new trial. (Peo ple v. Wicks (1973), 15 Ill. App. 3d 318, 304 N.E.2d 134.) Newly discovered evidence can justify the grant of a new trial only when that evidence directly concerns the crime for which defendant was convicted. People v. Gray (1988), 166 Ill. App. 3d 586, 520 N.E.2d 93.

Applications for a new trial based on newly discovered evidence are not looked on favorably by the courts. (People v. Holtzman (1953), 1 Ill. 2d 562, 116 N.E.2d 338.) Such a motion is left to the discretion of the trial judge and will not be disturbed on review absent abuse. People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.

In People v. Cotell (1921), 298 Ill. 207, 131 N.E. 659, a new trial was ordered where newly discovered evidence showed a key witness lied and that witness’ testimony was the very foundation of the State’s case. There the court said that newly discovered evidence showing the State’s principal witness lied concerning material matters is not necessarily cumulative evidence, even though she may have been impeached by the new evidence.

The trial judge denied defendant’s motion for a new trial, applying the two-pronged test from Friedman. The court found that though defendant may have had a subjective expectation to negotiate a plea, that expectation was not reasonable. He granted the State’s motion to dismiss the motion for a new trial, stating that the new evidence presented would not have altered his decision on whether to suppress defendant’s statements.

For all the foregoing reasons, the judgment of the trial court as to defendant’s conviction for murder and the court’s denial of the pretrial motion to suppress and the denial of the post-trial motion for new trial based on newly discovered evidence is affirmed.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.