author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELSIE WICKS, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0504
    Opinion filed September 21, 1992.
    Rehearing denied October 30, 1992.

      Michael J. Pelletier and Pamela A. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Kelsie Wicks was found guilty of murder. The trial judge sentenced defendant to 26 years in the Illinois State penitentiary. The issues defendant raises on appeal are: (1) that he was arrested without probable cause in violation of his fourth amendment right to be free from unreasonable searches and seizures; therefore, his inculpatory statement should have been suppressed as the fruit of an illegal arrest; (2) that his statement to police and his waiver of his Miranda rights were involuntary and, therefore, his statement should have been suppressed; (3) that he was deprived of his right to a fair trial where the prosecutor, during rebuttal closing argument, extensively argued facts about the principles of physics to the jury which were not admitted into evidence and which significantly bolstered the State’s theory as to a crucial issue at trial; and (4) that he was not proven guilty beyond a reasonable doubt.

On May 4, 1987, at approximately 6 a.m., a security guard at South Shore Hospital discovered an unconscious woman, later to be identified as Treigi Harrison (the victim), in the bushes by the hospital entrance. She had a hole in the right side of her forehead and was wrapped in a green blanket. The victim died two days later. According to Dr. Edmund Donoghue, deputy chief medical examiner of Cook County, the victim died of injuries to her brain and skull due to blunt force. There were two major injuries to her brain. The first injury on the front of her head was caused by a severe blow. A second injury on the back of her head was caused by her falling backwards.

Shortly after the victim was found, Detectives Phelan and Higgins were assigned to investigate. They found a label on the green blanket with Kelsie Wicks’ (defendant’s) name and address on it. The detectives went to the address, were informed that defendant had moved and were given his new address. They then proceeded to defendant’s new address and encountered defendant as he was entering the building.

Defendant testified in court that he first came in contact with the detectives in the vestibule of his apartment building at approximately 8:45 a.m. He stated that the detectives told him he would have to go down to the station with them. He asked why, and the detectives replied that he would be told the reason at the station. He testified that he was read his Miranda rights and then driven to the station and placed in an interrogation room. He was told about a woman who had been beaten and, at approximately 30-minute intervals, questioned about his “whereabouts” the previous day. According to defendant, at approximately 11 a.m., the detectives requested permission to search his apartment and he told them it would be “perfectly fine.” He stated that the detectives left him in the interrogation room while they went to execute the search and that after the search, they questioned him further about what he did the previous day. He was shown a picture of the victim and, at that time, was unable to identify her.

Defendant further testified that in the afternoon a second set of detectives came on duty and asked him to take a polygraph test to which he assented. According to defendant, on the way to the test, they engaged in a “general conversation” about matters unrelated to the case. They also stopped to investigate his alibi for the day before, but apparently the woman he stated he was with was not home. After the polygraph examination, they stopped to pick up food from McDonald’s on the way back to the station. According to defendant, the detectives told him he had “flunked the box” and that they knew he was lying. Defendant testified that they told him that they were there to help him, but he would have to help himself and if the blanket were connected to him at all he could be convicted of a crime. He testified they informed him that the victim was doing well and that if he “admitted to some kind of incident with her” he could “bond out” that night. He stated that the detectives convinced him that if he admitted to something he would only get a light charge of battery compared to what he would be facing otherwise. According to defendant’s testimony, he then looked at the picture of the victim again and this time told the detectives that the picture resembled someone he knew. He testified that, tired and afraid, and with the help of the detectives, he concocted the story which, at approximately 1 a.m. the following morning, he repeated to Assistant State’s Attorney Mary Lou Norwell.

According to defendant’s statement, at approximately 5:30 a.m. on May 4, 1987, he picked up the victim at the comer of 79th and Jeffrey Streets. He had had sex with the victim before, and on this date she agreed to have sex with him for $15. Defendant drove with the victim to 83rd and Yates, where the victim performed an act of oral copulation on the defendant. They then drove to 80th and Yates, where defendant told her he did not have any money. The victim jumped out of the car yelling, took defendant’s jump rope with her and made a motion as if to hit the car with it. Defendant followed her out of the car and struggled with her to retrieve his jump rope. He struck her twice, once on the face and once on the top of her head with the wooden jump rope handles, and she fell to the ground. Defendant picked her up, wrapped her in a blanket he had in his car, and drove her to South Shore Hospital.

On cross-examination, defendant testified that the detectives who met him in the vestibule of his apartment were in plain clothes and drove him to the station in an unmarked squad car. He stated he was not physically assaulted or handcuffed or ever told he was under arrest. At the station, he was not fingerprinted or handcuffed until he had made his incriminating statement. He stated he understood his rights as they were read to him, but he did not request an attorney. At the time of the incident, defendant was 35 years old, had attended four years of college and sold real estate.

Detective Phelan testified that they met defendant in the vestibule at approximately 10:30 a.m. He stated he informed defendant that a badly beaten black female was discovered wrapped in a blanket which had defendant’s name and address affixed to it. Defendant responded by saying he had not seen the blanket in a while. According to Detective Phelan’s testimony, the detectives asked defendant to accompany them to Area 2 to assist in the investigation and he agreed. Defendant was transported to the police station in an unmarked squad car, but was not handcuffed. They arrived at the station at approximately 11 a.m. and defendant was placed in an interrogation room where he was read his Miranda rights and questioned about the blanket and his whereabouts the previous day. He signed a consent to search form and waited at the station while the detectives went to search his apartment. Phelan testified that when they returned they asked him if he would take a polygraph test. He agreed and an appointment was set up for later that evening. Phelan also stated he did not have any other conversations with the defendant, did not promise him leniency for his statement, and did not psychologically coerce defendant into making a statement. Additionally, the defendant was not fingerprinted, handcuffed, or told he was under arrest until after his incriminating statement.

Detective Butler testified that after he came on duty and met defendant in the interrogation room, he read defendant his Miranda warnings and informed him that he and his partner would be taking him for the polygraph test. After the polygraph examination, he told defendant that he had flunked and that they knew he was lying. Defendant then told them his alibi for the night before and they went to check it out on the way back to the station. According to Butler, defendant also asked them what he would be charged with if, in fact, he had anything to do with the incident. On the way back to the station they picked up some food and defendant was left alone in the interrogation room to eat it. Butler testified that after he ate, they read him his Miranda rights again and at approximately 10:30 p.m. he made an admission. After defendant made this admission, the detectives retrieved a leather jump rope with hollow wooden handles from defendant’s van. Butler testified that he did not mentally coerce defendant or misrepresent facts or promise defendant leniency for a statement. In addition, he stated that defendant never indicated he wanted to speak to an attorney.

Defendant filed a motion to suppress his incriminating statement on numerous grounds which was denied. After being found guilty of murder, defendant moved for a new trial which was also denied.

I

Defendant contends on appeal that he was illegally arrested without probable cause when he was first met by the police in the vestibule of his apartment building and taken to the police station at a time when the only evidence against him was that the victim was discovered wrapped in a blanket with his name and address on it. Defendant contends that this blanket did not establish probable cause and, since his inculpatory statement was a direct result of this illegal seizure, it should have been suppressed as the fruit of an illegal arrest. If he was not arrested at that point, defendant asserts that the subsequent conduct of the police “created a coercive environment in which a reasonable innocent person would not have felt free to leave.” The State maintains that defendant was not arrested until after he admitted to beating the victim. Assuming he was detained prior to making his confession, the State argues that the blanket established the probable cause required to arrest defendant. Alternatively, if the arrest was improper, the State asserts that defendant’s confession was sufficiently purged of the primary taint to be admissible.

We conclude after reviewing the evidence that defendant voluntarily accompanied the detectives to the station and was not arrested until after his inculpatory statement. Therefore, it is unnecessary for us to determine whether the blanket with defendant’s name on it was sufficient to establish probable cause to arrest. Obviously, as a consequence of this holding, questions of attenuation are rendered irrelevant.

A trial court’s finding at a suppression hearing will only be disturbed on appeal if it is manifestly erroneous. (People v. Long (1983), 99 Ill. 2d 219, 231, 457 N.E.2d 1252, 1257.) Custodial interrogations are seizures and require probable cause even though the “ ‘trappings of a technical formal arrest’ ” may not be present. (People v. Avery (1989), 180 Ill. App. 3d 146, 153, 534 N.E.2d 1296, 1300, quoting Dunaway v. New York (1979), 442 U.S. 200, 215-16, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258.) A person has been seized when, by means of physical force or show of authority, his freedom of movement is restrained such that a reasonable person, innocent of any crime, would believe he is not free to leave. (United States v. Mendenhall (1980), 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Wipfler (1977), 68 Ill. 2d 158, 166, 368 N.E.2d 870, 873; People v. Hicks (1989), 183 Ill. App. 3d 636, 643, 539 N.E.2d 756, 760.) Therefore, a particular suspect’s subjective belief that he is not free to go is irrelevant. (People v. Holveck (1988), 171 Ill. App. 3d 38, 47, 524 N.E.2d 1073, 1080.) Additionally, an officer’s subjective view that a suspect is under arrest also is not relevant unless that view is conveyed to the suspect. Holveck, 171 Ill. App. 3d at 47, 524 N.E.2d at 1080.

In determining what a reasonable person would believe in the situation, a court should view all the circumstances surrounding the incident which may indicate a seizure has occurred. (People v. Adams (1988), 169 Ill. App. 3d 284, 287, 523 N.E.2d 1103, 1105, citing R. Ruebner, Illinois Criminal Procedure 5 — 6 (1987).) The United States Supreme Court has stated that a seizure may be indicated by “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; Hicks, 183 Ill. App. 3d at 643, 539 N.E.2d at 760.) Additional factors Hlinois courts will consider include “whether there was any formal declaration of arrest and whether other routine procedures associated with arrest were present, such as searching, booking, handcuffing, fingerprinting, and photographing.” (People v. Johnson (1989), 187 Ill. App. 3d 756, 769, 544 N.E.2d 392, 400.) “The test is intentionally imprecise because it focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of the police conduct in isolation.” People v. Avery (1989), 180 Ill. App. 3d 146, 153, 534 N.E.2d 1296, 1300, citing Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.

We do recognize that the situation in this case does have the “look” of an arrest in several respects. Defendant was driven to the station by the detectives, read his Miranda warnings, and questioned in a police interrogation room. However, driving a person to the station to be interviewed and being extra cautious by informing the person of his rights under Miranda does not automatically convert a consensual conversation into a custodial situation. (Wipfler, 68 Ill. 2d at 171, 368 N.E.2d at 875.) These facts are immaterial if, under the circumstances, a reasonable innocent person would still have believed he was free to go at any time. Otherwise, an officer could never drive a person to the station for a consensual interview and inform that person of his constitutional rights before they begin speaking unless the police had probable cause to arrest the person. See Wipfler, 68 Ill. 2d at 169, 368 N.E.2d at 873.

In view of the police conduct as a whole, the record in this case supports the trial court’s denial of defendant’s motion to suppress his statements because they were the result of an illegal arrest. Defendant was met in the vestibule of his apartment by two plainclothes detectives and not overwhelmed by a number of armed uniformed police officers. According to defendant’s testimony, the detectives did not “grab” or physically touch or accost him. Apparently, the detectives did not draw their weapons, and there is no testimony to indicate that the officers’ language or tone of voice was threatening. In addition, defendant testified he was not handcuffed at any time before he gave his incriminating statement. He was never told he was under arrest, nor was he photographed, fingerprinted or booked. The only real conflict in the testimony concerns what was said when defendant and the detectives first encountered each other. Defendant stated that the detectives told him they were taking him to the station and they would tell him why at the station. Detective Phelan, on the other hand, testified that when they first encountered defendant in the vestibule, he told defendant that a badly beaten black female was discovered wrapped in a blanket with defendant’s name affixed to it. He asked defendant if he would accompany them to the station and defendant said he would. The trial court has the duty of resolving conflicts in the evidence and judging the credibility of witnesses (People v. Fauntleroy (1991), 224 Ill. App. 3d 140, 163, 586 N.E.2d 292, 307) and, apparently, the trial court found Detective Phelan’s testimony more credible than defendant’s. Based on the uncontested facts above and the testimony of Detective Phelan, the court could determine that defendant was not illegally arrested in the vestibule of his apartment, but accompanied the detectives to the station voluntarily.

Additionally, we reject defendant’s assertion that the subsequent conduct of the police “created a coercive environment in which a reasonable innocent person would not have felt free to leave.” In each case, the court must examine all the circumstances surrounding the police questioning of a suspect when determining whether the interrogation was custodial. (People v. Brown (1990), 136 Ill. 2d 116, 124, 554 N.E.2d 216, 220.) As the Hlinois Supreme Court recognized in Brown, due to the numerous factors to be considered, different courts have given different weight to similar factors. (Brown, 136 Ill. 2d at 125, 554 N.E.2d at 220.) However, a reviewing court must always keep in mind that it must give deference to the findings of the trial judge who heard the witnesses and weighed the often conflicting evidence and only reverse a trial court’s conclusion if it is manifestly erroneous. Brown, 136 Ill. 2d at 125, 554 N.E.2d at 220.

In the instant case, defendant testified he was not physically mistreated. He also stated that he was not handcuffed at any time prior to his admission. He was fed, offered the use of the bathroom facilities and a cigarette. Defendant testified he was not handcuffed or questioned on the way to the polygraph examination, but engaged in “general conversation” unrelated to the investigation. As stated above, the police did not subject him to the routine police procedures normally associated with an arrest such as fingerprinting, photographing, or booking. There is also evidence that defendant was often left alone in the interrogation room, only questioned specifically about the case when he first arrived at the station, and testimony from Detective Butler that the door was unlocked. Therefore, in view of our limited role of review and the trial court’s function of assessing the credibility of witnesses and resolving conflicts in the evidence, we conclude that the trial court’s denial of defendant’s motion to suppress his statement as the fruit of an illegal arrest was not manifestly erroneous.

II

Defendant also asserts that his inculpatory statement was not the result of a “free and rational choice,” but a product of the coercive atmosphere created by the police. He contends his approximately 14-hour detention coupled with the fact that he was held incommunicado the whole time and fed only once during that period created a subtly coercive environment in which his will was overcome. Therefore, his statement and his waiver of Miranda rights were involuntary.

The State must show by a preponderance of the evidence that a defendant’s confession was voluntary in order to survive a defense motion to suppress. (Fauntleroy, 224 Ill. App. 3d at 163, 586 N.E.2d at 307.) A trial court’s determination that such a statement was voluntary will not be reversed unless it is against the manifest weight of the evidence. (People v. Young (1990), 206 Ill. App. 3d 789, 806, 564 N.E.2d 1254, 1266.) A voluntary statement is one that can be said to have been made freely and without compulsion in view of the totality of the circumstances (Young, 206 Ill. App. 3d at 805-06, 564 N.E.2d at 1266); no single factor is determinative. (People v. Jones (1990), 196 Ill. App. 3d 937, 957, 554 N.E.2d 516, 528.) Factors to be considered in determining the voluntariness of a defendant’s incriminating statement include “the defendant’s age, intelligence, background, experience, mental capacity and education, physical condition at the time of questioning, duration and legality of detention, and any physical or mental abuse by police, including the existence of threats or promises.” (Jones, 196 Ill. App. 3d at 957, 554 N.E.2d at 528.) In addition, it is the trial court’s job to assess the credibility of the witnesses and resolve conflicts in the evidence. Fauntleroy, 224 Ill. App. 3d at 163, 586 N.E.2d at 307.

In this case, after review of the record, we cannot say that the trial court’s determination was against the manifest weight of the evidence and that defendant’s statement was not made “freely and without compulsion.” We already concluded that defendant was not in police custody during the 14-hour period between his initial contact with the police and his incriminating statement. Even assuming arguendo that defendant was in custody, such a prolonged detention does not conclusively establish that his statement and his waiver of his Miranda rights were involuntary. (See Young, 206 Ill. App. 3d at 806, 564 N.E.2d at 1266.) Here, defendant was 35 years old at the time of the incident and had four years of college education. The record reflects he was in good physical condition and exercised regularly. Defendant testified that he was not “grabbed” and brought to the station. He also testified that his statement was not physically coerced and that he was not handcuffed at any time prior to making his incriminating statement. He stated he was read his Miranda warnings at least twice and that he understood them. Additionally, he admitted he never invoked those rights and never told the officers he wanted an attorney. Defendant’s assertion that his statement was elicited from him through promises of leniency was denied by both Detective Phelan and Detective Butler. The evidence in the record clearly supports the trial court’s denial of defendant’s motion to suppress on the grounds that his statement was involuntary. The little conflicting testimony there was in the record was for the trial court to resolve and, as such, we will not reverse the trial court’s conclusion that defendant’s statement was given voluntarily.

III

Defendant’s third contention on appeal is that the prosecutor improperly argued facts during closing argument about the principles of physics which were not admitted into evidence. Defendant asserts that this argument went to a crucial issue and, therefore, denied him his right to a fair and impartial trial. The State maintains that defendant waived this argument by failing to specifically raise the error in his post-trial motion. As a general rule in Illinois, a defendant must object to perceived trial errors both in court and in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1130-31.) In this case, defendant objected promptly at trial to the prosecutor’s argument and made a general objection to the State’s “prejudicial and improper comments and argument in the presence of the jury.” Defendant’s objections were specific enough to satisfy Enoch and preserve the issue for review. Alternatively, the State maintains that the prosecutor’s comments were based on the evidence and common sense and invited by defense counsel’s argument.

A prosecutor’s comments during closing argument can be based upon facts in evidence or reasonable inferences from those facts. (People v. Nightengale (1988), 168 Ill. App. 3d 968, 974, 523 N.E.2d 136, 141, citing People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) As such, courts give prosecutors “wide latitude” to comment on the evidence. (Nightengale, 168 Ill. App. 3d at 975, 523 N.E.2d at 141.) The State cannot argue facts to the jury during closing argument, however, that are not based upon the evidence presented in the case. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629, 637-38, citing People v. Beier (1963), 29 Ill. 2d 511, 517, 194 N.E.2d 280, 283.) Such comments though are reversible error only if “there are reasonable grounds for believing the jury was prejudiced by the improper remarks.” (Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638.) A prosecutor is not permitted to, in effect, testify to the jury during argument. People v. Jones (1988), 173 Ill. App. 3d 147, 151, 527 N.E.2d 441, 444, citing People v. Rothe (1934), 358 Ill. 52, 56, 192 N.E. 777, 779.

At trial, the State’s theory of the case was that defendant bludgeoned the victim with the wooden handles of his jump rope. Dr. Donoghue, the medical examiner, testified that he did not know what was used to inflict the deadly blow to the victim’s head. In response to defense questioning Donoghue stated that the jump rope handles were “not it.” Later he stated “[i]t is-hard to be 100% certain, but it [the jump rope handle] doesn’t seem likely.”

In closing argument, defense counsel argued that the State had not proved its case because it had not shown that the jump rope handles were the murder weapon. In commenting on Dr. Donoghue’s testimony, defense counsel stated that “[Donoghue] was asked the question three different times and three different times he said no, under no circumstances could these or could this have caused the death and the injuries.” The prosecutor objected to this as not accurately reflecting what Dr. Donoghue stated. The court overruled the objection, stating that “the attorneys can make what they feel are reasonable or logical extensions of the evidence. If their' arguments are not reasonable, they can be rejected by the jury.”

In the State’s rebuttal closing argument, the prosecutor argued to the jury that what Dr. Donoghue had testified to was that it was “not likely” that the jump rope handle caused the injury, not that it absolutely was not the cause. In attempting to show that the jump rope handles could conceivably have been the murder weapon, the prosecutor applied the laws of physics. The relevant portion of the trial transcript reads:

“MR. SMITH [Assistant State’s Attorney]: Ladies and gentlemen, you heard Dr. Donohue [sic] testify yesterday from the stand. His exact quote was, could these have caused the injury to the front of the head. We are talking about a hit, which is a blow, and a fall to the back of the head. Could these have caused it. He said, not likely.
MR. MCNEAL [Defense attorney]: Objection. I object to counsel misstating the evidence.
MR. SMITH: He said-
THE COURT: The objection will have to be noted. And ladies and gentlemen of the jury will have to rely upon your collective memories as to the testimony that was given yesterday.
Objection noted.
MR. SMITH: He said, not likely. They are not a likely instrument of hitting someone over the head, they are not a likely instrument to use to beat on someone. Maybe a baseball bat, a black jack, something like that. You don’t see any warnings; do not hit anyone over the head at a high volocity [sic]. You are not talking about the weight of something. Here’s an ordinary penny. Now, that’s not likely to inflict great harm. You drop that from great height [sic] off a building and hit someone on the head, it causes a head injury. That’s not likely to hurt someone. What does it? Volocity [sic] of it does it [sic]. When there’s a tornado, and they’ll have some photograph of a piece of straw stuck into a solid tree, or a grain of rice into it, by itself, does that look harmful?
MR. MCNEAL: I’m going to object to this. If counsel wanted to put this in his case, these are facts not in evidence.
THE COURT: The objection is overruled. These are fundamental laws of physics that either side can comment on.
MR. SMITH: The law of physics is force equals mass times volocity [sic] squared. What does that tell you? Is say this goes 25 miles an hour when it whipped 625 miles per hour, says [sic] this is a pound. That’s how much force that’s hitting a skull of someone. Volocity [sic] that’s what makes it. When you consider that being wielded by a guy who works out all the time, as he told you, a person who’s half a foot shorter than he is, who’s 75 to 80 pounds less than he is, it’s conceivable that that blow was delivered by him.”

The court allowed the comments in over defense objection, stating that either side can comment on the “fundamental laws of physics.” The prosecutor also argued that the jury did not have to believe that the jump rope handles were the murder weapon in order to find defendant guilty beyond a reasonable doubt. He asserted that defendant “told you the truth in the statement, and he also lied.”

A prosecutor’s comments during closing argument that are based on facts in evidence or reasonable inferences therefrom are proper. (People v. Franklin (1990), 135 Ill. 2d 78, 100, 552 N.E.2d 743, 753.) In addition, if these comments were invited and not prejudicial, they do not constitute error. (Franklin, 135 Ill. 2d at 100, 552 N.E.2d at 753.) First, both the defense view of Dr. Donoghue’s statements and the State’s view are supported by his testimony. In addition, the prosecutor’s comments were in reply to and invited by defense counsel’s characterization of Dr. Donoghue’s testimony. There was nothing improper about the State’s comment that the blows conceivably could have been inflicted by defendant with the jump rope handles. Moreover, the prosecutor’s general remarks about the laws of physics were not equivalent to testimony of facts not in issue. Any attorney can discuss subjects of general knowledge or common sense. Finally, assuming the comments on physics were improper, defendant has failed to show “reasonable grounds for believing the jury was prejudiced by the improper remarks.” Based on the evidence the jury could have reasonably found defendant guilty beyond a reasonable doubt even if it did not believe that the jump rope handles were the murder weapon.

IV

Defendant’s final argument on appeal is that he was not proven guilty beyond a reasonable doubt because crucial parts of his incriminating statement were severely contradicted by the physical evidence presented by the State at trial and the only other evidence against defendant merely established that he had known or been with the victim sometime in the past. First, defendant asserts that the evidence showed that the victim was hit only once on the head by a hard object and that her other head injury resulted from her fall. This defendant says contradicts his statement which states that he hit her twice. Second, defendant argues that Dr. Donoghue’s testimony was that the blow to the victim’s forehead could not have been caused by a jump rope handle. As such, it contradicts defendant’s statement in which he states he hit the victim with the jump rope handle. Third, defendant contends that the evidence showed that the victim’s body was found about 6 a.m. However, according to defendant’s statement, he left his apartment at 5:30 a.m. Based on the different locations mentioned in defendant’s statement, it would have been impossible for him to have travelled the 32 blocks in that half hour.

After a judgment of conviction, a reviewing court must look at the evidence in the light most favorable to the prosecution, and determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73, citing Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) This standard is used because it is not for the reviewing court to substitute its judgment for the judgment of the jury, who heard the evidence and observed the witnesses. Young, 128 Ill. 2d at 49, 538 N.E.2d at 473.

Based on the evidence in the light most favorable to the prosecution, a rational finder of fact could have concluded defendant was guilty of murder beyond a reasonable doubt. The jury was entitled to believe parts of defendant’s statement and not all of it. Based on the evidence, a rational jury could have concluded that defendant saw the victim the morning of her death, struck the victim, either with the jump rope handles or with another object, wrapped her in one of his blankets and dropped her off in front of the South Shore Hospital.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE MARTIN, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0699
    Opinion filed September 21, 1992.
    Rehearing denied November 4, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Murray M. Coffey and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Dale Martin was found guilty of first-degree murder. The trial judge sentenced defendant to 30 years in the Illinois Department of Corrections. Defendant raises three issues on appeal.

First, defendant asserts that the trial court erred in denying the defense’s request that the jury be instructed as to lesser-included offenses simply because such instructions were seemingly contradictory with his alibi defense.

Second, defendant contends that he was denied his constitutional right to the effective assistance of counsel when his attorney failed to present a pretrial motion to quash his arrest for lack of probable cause. Defendant argues that such a motion would have been granted and would have resulted in the suppression of his incriminating statements as the fruit of an illegal arrest.

Third, defendant argues that he was denied his right to the effective assistance of counsel because his attorney failed to tender a jury instruction regarding the lesser-included offense of second-degree murder.

On December 23, 1988, at approximately 9:30 a.m. the body of Mike Bond (the victim) was discovered in the rear stairwell of a building at 1226 West 69th Street in Chicago. The victim’s body was covered with debris and only partially clothed with his shirt and sweater pulled up over his head. There were numerous bruises and lacerations on the body, including over the right eye, on the neck, in the chest and over the groin. Both of the victim’s knees were severely scraped and a broken bottle was sticking out of his left calf. The officers discovered the remainder of the victim’s clothes in the stairwell with the body except for one missing shoe. The officers also discovered the handle of a broken cane, later to be identified as belonging to the victim. One shoe, however, was missing from the scene.

The officers followed a trail of smeared blood which led out of the stairwell down the block to the hallway of a building at 1220 West 69th Street. In the hallway, the officers found blood smears, the other half of the victim’s cane and the victim’s other shoe.

Detective Robert Kocan testified in court that, during their investigation, he and his partner, Detective Stanley Kroll, were given the names of the defendant and Robert House as being two of the last people to have been seen with the victim. According to the detective, defendant was located on December 27, 1988, at approximately 1 p.m. at the pool hall at 1208 West 69th Street. The detectives requested that defendant accompany them to the station to talk about the victim’s murder and defendant consented. At the station, defendant was placed in an interview room and asked where he was on the day of the victim’s murder. The detectives then asked defendant to stay in the interview room while they went to check out his story. They returned several hours later at approximately 4 p.m. and told defendant that his story did not check out. According to the detectives, defendant then gave another story and insisted that he be given a lie detector test to prove his innocence. They transported defendant to central police headquarters at 11th and State for a polygraph examination. After the examination he was returned to the interview room at 3900 South California. Defendant was informed by the detectives that he had failed the polygraph test and that he was not telling them everything. Subsequently, they left defendant in the interview room and questioned House in another interview room. At approximately 8 p.m., after taking House to take a lie detector test and returning him to the station, Detectives Kocan and Kroll left the station for the evening.

The following day, December 28, 1988, at approximately 10 a.m., Detective Kocan returned to the station. Defendant was still in the interview room. Detective Kocan arranged a lineup for 1 p.m. that afternoon. At the lineup, a witness, Jeffrey Nichols, identified both defendant and Mr. House as the two men he saw dragging and carrying the victim from the hallway at 1220 West 69th Street. Defendant was placed under arrest and read his Miranda rights after the witness positively identified him in the lineup.

After the lineup, defendant was placed back in the interview room. At approximately 7:30 p.m., Detectives John Paladino and Frank Connelly spoke to defendant. According to Detective Paladino’s testimony, after reading defendant his Miranda rights, defendant indicated he would answer questions. He then prepared a sketch of the path taken in disposing of the victim’s body and he signed it. Detective Paladino then contacted the felony review unit, and Assistant State’s Attorney Teresa Gray arrived at approximately 1 a.m. on December 29. At approximately 3 a.m., Assistant State’s Attorney Gray and Detective Paladino took a statement from defendant after again reading him his rights.

According to defendant’s statement, on the night of the murder he was drinking with some friends at the Chicken Shack. This group included House and the victim. After leaving the Chicken Shack, the group went to the pool hall. The victim was not in this group. Everyone left the pool hall at about 4:20 a.m. on December 23, 1988.

As he was walking down the street, defendant noticed the victim in the hallway at 1220 West 69th Street drinking some wine. Defendant entered the hallway and asked the victim to share the wine with him. The victim refused, the two men argued and the victim pushed defendant. Defendant then banged the victim’s head against the wall, and the victim fell down the stairs. According to defendant’s statement, House then came in the hallway, picked up the victim’s cane and broke it over his body. House and defendant looked outside to see if anyone was around, picked up the victim and carried him outside. He was too heavy for them and kept falling, so they began to drag the victim. They dragged him first by his arms and then by his feet causing his pants and shirt to be pulled off his body. According to the statement, the victim “began to come to” and House broke a bottle and apparently stabbed the victim in the chest. The two left the body in the stairwell behind the building at 1226 West 69th Street and covered it with debris and garbage in order to hide it. According to defendant, the victim was still moaning when they left him.

A pretrial motion to suppress the oral and written statements of defendant was filed on the grounds that he was physically coerced into making the statements. Detective Kocan testified that at no time was defendant beat about the head, kicked in the body, or subjected to any method of physical or psychological coercion. Kocan asserted that defendant was not taken before a judge on December 27 because he was not under arrest. Detective Kocan testified that defendant was not arrested and placed in handcuffs until approximately 1 p.m. on December 28, 1988, after he was positively identified in a lineup. According to Kocan, prior to defendant’s arrest on December 28, he was not handcuffed or restrained in any way and was free to go at any time. He was advised of his Miranda rights and was not prevented from communicating with an attorney. In addition, before taking the polygraph test, defendant was advised of his rights concerning that test and that he did not have to take it. Detective Kroll’s testimony supported Detective Kocan’s testimony in every respect. Detective Kroll, however, testified that he was not present at any time on December 28.

The defense did not present any evidence and did not put defendant on the stand at the suppression hearing. The defense relied upon the length of defendant’s stay at the police station to support the allegations of coercion. The trial judge denied the motion to suppress. Based solely on the evidence presented by the State, he ruled that the State had met its prima facie burden to show the voluntariness of defendant’s statement. The judge determined the testimony of the State’s witnesses to be credible and held that defendant was not arrested until December 28 and that at no time was he confined against his will or physically or psychologically abused.

Charles Reed testified that he and Nichols got off work at Skipper Liquor and Grocery, which is across the street and east of 1220 West 69th Street, between 4:30 and 4:40 a.m., on December 23. They were seated in Nichols’ car about 80 to 100 feet away from the 1220 building when two men came out of the building carrying a third person. They kept dropping him and picking him up and ultimately dragging him. Reed testified he recognized House and defendant from the neighborhood. On cross-examination, Reed acknowledged that he did not see the faces of the people but recognized them from their demeanor and actions.

Nichols also testified that he saw House and defendant dragging a body the morning of December 23. He testified that prior to driving off he noticed what looked like bloodstains on defendant’s shirt. After dropping off Reed, Nichols came back east down 69th Street and saw House and defendant again. On December 28, Nichols identified House and defendant in a lineup.

Dr. Eupil Choi, the assistant medical examiner, testified that there were “many stab wounds” in the victim’s neck, back and chest. There were also lacerations and scratches on the victim’s forehead, cheek, chest, groin, face and knees. Based on his experience, training, expertise and examination of the body, Dr. Choi gave his opinion based on a reasonable degree of medical certainty that the cause of death was multiple stab wounds and “blunt trauma” to the head. He stated that these injuries were consistent with the victim being dragged and dropped on the sidewalk and being beaten and stabbed by the broken cane.

Defendant testified that he was taken from his girl friend’s apartment to the station at approximately 8:30 p.m. on December 27. He testified that he was not arrested nor was he handcuffed to a steel bar in the wall of the interview room until about an hour after he got to the station and had denied that he saw the victim after they left the Chicken Shack. He stated that after he was handcuffed, the officers beat him “upside the head,” kicked him in the chest and choked him until he passed out three or four times. He asserts that he did not make his statement on the morning of December 29 voluntarily, but only to stop the beating.

At the jury instruction conference, the defense requested that the jury be instructed as to a “lesser included crime.” The defense did not tender any specific instruction and merely requested that the jury be allowed to find “whatever it could find.” When pushed by the trial judge, the defense suggested “battery, involuntary.” The trial judge denied any instruction as to any lesser-included offense. The defense did not object, but acquiesced in the court’s decision. The jury was instructed on first-degree murder and accountability.

Following the bench trial, the trial judge found House not guilty. The jury found defendant guilty of first-degree murder. Defendant filed a motion for a new trial. The defense based its motion for a new trial upon the pretrial motion to suppress and the testimony given in support thereof. The motion was denied, and defendant was sentenced to 30 years in the penitentiary.

Defendant’s first contention on appeal is that the trial court erred in denying his request for jury instructions on lesser-included offenses to first-degree murder simply because such instructions would be inconsistent with his alibi defense. Specifically, defendant asserts that he was entitled to the benefit of any defenses supported by the evidence and that there was sufficient evidence to support an instruction on a lesser-included offense. The State asserts that defendant has waived this question on review by failing to preserve the issue at trial and by not raising the issue in his motion for a new trial. Alternatively, the State asserts that a lesser-included offense instruction was not supported by the evidence. The relevant passage from the transcript reads:

“MR. VICTOR [Defense attorney]: I would like to have lesser included crime [sic],
THE COURT: You the instruction of the lesser included crime [sic]?
MR. VICTOR: If they won’t — giving them the option of finding him guilty of the crime that he is charged with or some lesser included.
THE COURT: What lesser included?
MR. VICTOR: Whatever they can find.
THE COURT: Well, what do you want? Don’t tell me whatever they can find, they can charge him for battery I guess.
MR. VICTOR: Battery, involuntary.
THE COURT: Where is there evidence of that in there? There isn’t any evidence. He says he wasn’t there, he didn’t do it. How could the jury possibly find a lesser included verdict under those circumstances? If he said he was there and had a fight with him, that is one thing but he says he is not there. Why do you instruct them on a lesser included theory?
MR. VICTOR: Okay, okay, I will buy that, I will withdraw it.”

The general rule is that the court has no duty to give instructions such as on a lesser-included offense unless properly tendered by trial counsel. (People v. Enoch (1988), 122 Ill. 2d 176, 199, 522 N.E.2d 1124, 1136.) Additionally, the Illinois Supreme Court has stated that “an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense.” (People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250, 255, citing Hopper v. Evans (1982), 456 U.S. 605, 612-13, 72 L. Ed. 2d 367, 373-74, 102 S. Ct. 2049, 2053-54.) In other words, if the evidence supports either a conviction on the crime charged or a verdict of not guilty, but does not support a conviction on the lesser offense, the trial court would commit error in giving a lesser-offense instruction. (Enoch, 122 Ill. 2d at 200, 522 N.E.2d at 1136-37, citing Hopper, 456 U.S. at 611, 72 L. Ed. 2d at 373, 102 S. Ct. at 2052; People v. Ivory (1991), 217 Ill. App. 3d 619, 623, 578 N.E.2d 278, 281; People v. Moore (1990), 206 Ill. App. 3d 769, 774, 565 N.E.2d 154, 157.) In light of the above colloquy between the court and defense counsel, there is a question as to whether the request for a lesser-included offense instruction was properly tendered to the court and, if so, whether such an instruction was even supported by the evidence adduced at trial. However, we choose to decide this case under the doctrine of waiver, and hold that defendant has waived this question on review.

In Illinois an alleged trial error is properly preserved for review only if there is a contemporaneous trial objection and a subsequent written post-trial motion for a new trial addressing the issue. (Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130.) Pursuant to People v. Cadwallader (1989), 181 Ill. App. 3d 488, 501, 536 N.E.2d 1319, 1327, in order to preserve an instructional error for review, a defendant must object at the instruction conference and renew that objection in a written post-trial motion. In this case, defendant failed to make any such objections.

However, under the “plain error” doctrine, a reviewing court will address alleged errors which were not properly preserved if either (1) the evidence is “closely balanced” and there is a possibility that an innocent person may have been convicted, or (2) the asserted error is of such magnitude that, if true, would have denied the accused a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 561 N.E.2d 1, 7-8, citing People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233, 238.) The “plain error” doctrine does not save defendant in this case. First, the evidence was not “closely balanced.” As stated above, two eyewitnesses testified they saw defendant and another man alternatively carrying and dragging the victim along the sidewalk. Additionally, defendant was positively identified in a lineup and, subsequently, made a confession. This evidence more than supported the jury’s verdict.

Second, the alleged error in failing to give a lesser-included offense instruction was not of such magnitude as to have denied the defendant a fair trial. In very few situations does a failure to give an instruction rise to the level of plain error. The Illinois Supreme Court has held that, in criminal cases, the failure to give instructions as to the burden of proof, the presumption of innocence (People v. Layhew (1990), 139 Ill. 2d 476, 486, 564 N.E.2d 1232, 1236-37), or the essential elements of the crime charged may constitute “plain error.” (People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864.) The reason these errors can be of such magnitude as to constitute “plain error” is because they are fundamental concepts in our American system of justice and often necessary to give a defendant a fair trial and to allow the jury to properly weigh the evidence. (See Ogunsola, 87 Ill. 2d at 222-23, 429 N.E.2d at 864-65.) However, the failure to give a lesser-offense instruction, in this case at least, does not rise to this magnitude and did not deny defendant a fair trial. As illustrated above, the evidence was more than sufficient to support defendant’s conviction for first-degree murder. Additionally, even assuming such an instruction was properly tendered by defense counsel and could have been given, failure to allow the jury to convict defendant of a lesser crime did not deny him a fair trial where the evidence supported his first-degree murder conviction. Therefore, under the rule of waiver and in light of the plain error doctrine’s inapplicability, the question of whether it was error to fail to instruct the jury on lesser-included offenses was not preserved for review.

Defendant’s second argument on appeal is that he was denied his right to the effective assistance of counsel because defense counsel failed to file a pretrial motion to quash his arrest for lack of probable cause. Specifically, he maintains that counsel should have argued that he was unconstitutionally seized when he first accompanied the detectives to the police station. Defendant asserts that such a motion would have been granted due to the length of time he spent at the police station prior to his “official” arrest and, therefore, his subsequent confession would have been suppressed as a product of the illegal arrest.

In order for a defendant to prevail when challenging the effectiveness of his trial counsel, the defendant must establish (1) that counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) that but for defense counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255; People v. Fauntleroy (1992), 224 Ill. App. 3d 140, 164, 586 N.E.2d 292, 307.) A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The Strickland court stated, however, that there is a “strong presumption” that any challenged act was part of a “sound trial strategy.” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 695, 104 S. Ct. at 2065-66.) The Strickland court instructed that in order to avoid the “distorting effects of hindsight,” courts must indulge in a strong presumption that counsel rendered adequate assistance and made all decisions in the exercise of “reasonable professional judgment.” Strickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065-66.

Illinois courts have held that whether defense counsel’s failure to make a motion to suppress is per se incompetence depends upon the circumstances of each case. (People v. Fernandez (1987), 162 Ill. App. 3d 981, 987, 516 N.E.2d 366, 370.) As a general rule, the filing of pretrial motions is considered a matter of professional judgment and, as such, trial tactics which are beyond the scope of an appellate review of defense counsel’s competence. (People v. Mendez (1991), 221 Ill. App. 3d 868, 873, 582 N.E.2d 1265, 1269; People v. Purnell (1984), 126 Ill. App. 3d 608, 624, 467 N.E.2d 1160, 1171; People v. Brittain (1976), 35 Ill. App. 3d 1047, 1054, 342 N.E.2d 814, 819.) Therefore, a possible error in that judgment does not rise to the level of ineffective assistance. (Brittain, 35 Ill. App. 3d at 1054, 342 N.E.2d at 819.) A defendant has a fundamental constitutional right under the due process clause, however, to have the trial judge determine outside the jury’s presence, as a preliminary matter, any questions as to the voluntariness of a confession. (People v. Neeley (1980), 90 Ill. App. 3d 76, 80, 412 N.E.2d 1010, 1013, citing Jackson v. Denno (1964), 378 U.S. 368, 390, 12 L. Ed. 2d 908, 923, 84 S. Ct. 1774, 1788.) Therefore, when Illinois courts have found an attorney’s failure to file a pretrial motion to be ineffective assistance of counsel, the question has invariably involved the voluntariness of a confession. (See People v. Fernandez (1987), 162 Ill. App. 3d 981, 988-89, 516 N.E.2d 366, 371; People v. Neeley (1980), 90 Ill. App. 3d 76, 79-81, 412 N.E.2d 1010, 1013-14; People v. Brinson (1980), 80 Ill. App. 3d 388, 393-94, 399 N.E.2d 1010, 1014; People v. Odom (1966), 71 Ill. App. 2d 480, 482-85, 218 N.E.2d 116, 118.) Thus, the general rule in Illinois is that a trial counsel’s decision to file or not to file a pretrial motion is a matter of professional judgment beyond the scope of appellate review. However, if defense counsel fails to move to suppress statements which defendant claims were physically coerced or for which there is independent evidence supporting the assertion that the statements were not voluntary, counsel’s conduct is subject to appellate scrutiny and will be deemed ineffective if the two-pronged Strickland test is satisfied; the reason being that failure to file such a motion gives the defendant “no protection whatsoever against being convicted on the basis of a coerced confession.” Odom, 71 Ill. App. 2d at 484, 218 N.E.2d at 118.

In Fernandez, although there was no evidence of coercion, counsel was found to have rendered ineffective assistance for failing to file a motion to suppress because the defendants’ mental retardation should have alerted counsel to the possibility that the statements were involuntary. Additionally, counsel admitted that her failure to make a timely challenge to the voluntariness of the confessions was due to her misunderstanding of the law and not to tactical considerations. (Fernandez, 162 Ill. App. 3d at 988-89, 516 N.E.2d at 371.) In Neeley, Brinson, and Odom, failure to file a motion in the face of the defendant’s contentions that he was physically coerced into confessing also was found to be ineffective assistance of counsel.

In the instant case, defendant received a pretrial hearing outside the presence of the jury in which he challenged the voluntariness of his incriminating statement. Defendant asserted he was physically coerced into making a confession and counsel filed a motion to quash on this ground. The trial judge ultimately determined that the State made a prima facie showing of the voluntariness of defendant’s confession, that defendant was not abused, and that defendant was not arrested or confined against his will until after he was identified in a lineup on December 28. Therefore, defendant received the effective assistance of counsel required by Illinois law when his attorney challenged the voluntariness of his confession in response to his claims of physical coercion. Consequently, we conclude that counsel’s decision not to make a pretrial motion challenging the propriety of defendant’s arrest was a matter of attorney judgment and beyond appellate review.

Defendant’s last argument on appeal, as raised in his supplemental brief, is that he was denied his right to the effective assistance of counsel because his attorney failed to tender a jury instruction regarding the lesser-included offense of second-degree murder. Defendant argues that his statement to the police that he and the victim were involved in a dispute over a bottle of wine supports a second-degree murder instruction based on an unreasonable belief of self-defense. Therefore, he asserts, failure to tender such an instruction was objectively unreasonable because it left the jury with only two choices: either convict defendant or acquit him. As a result, he maintains that if such an instruction had been given to the jury, the outcome of the trial would have been different. The State responds to this argument by asserting that the decision not to tender such an instruction for second-degree murder was “sound trial strategy” and, in any event, not supported by the evidence.

Generally, counsel’s decision to argue one theory of defense to the exclusion of another is considered trial strategy (People v. Mikell (1991), 217 Ill. App. 3d 814, 821, 577 N.E.2d 1300, 1306) and defense trial strategy will not support an ineffectiveness claim unless that strategy is unsound. (People v. Barrow (1989), 133 Ill. 2d 226, 248, 549 N.E.2d 240, 249.) Therefore, an unsuccessful defense will not support an ineffective assistance claim unless that defense was unsound. Moreover, where counsel reasonably believes that a defense is meritless, “he may strategically refrain from seeking an instruction.” (People v. King (1991), 218 Ill. App. 3d 248, 253, 578 N.E.2d 217, 221.) In Illinois, one way in which a person can be convicted of second-degree murder is when the State shows beyond a reasonable doubt that he has committed first-degree murder and the defendant proves by a preponderance of the evidence that he had an unreasonable belief that deadly force was justified. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(2); see People v. Newbern (1991), 219 Ill. App. 3d 333, 358-59, 579 N.E.2d 583, 599-600.) In light of the defendant’s burden of proof and the evidence adduced at trial, defense counsel could have reasonably determined that tendering a second-degree murder instruction was without merit.

According to defendant’s statement to the police (which at trial he claimed was physically coerced and untrue), he encountered the victim in the hallway at 1220 West 69th Street and asked him to share his bottle of wine. When the victim refused and pushed defendant, defendant responded by banging the victim’s head against the wall, releasing him, and allowing him to fall down the stairs. As the victim lay at the bottom of the stairs bleeding and apparently unconscious, Robert House came in and broke the victim’s cane over his body. Defendant and House then carried the victim, who could not walk, outside. He was too heavy, so they dragged him by his arms and then his legs. According to defendant’s statement, the victim “began to come to” at which time House stabbed him with a broken bottle. When they got him to the rear stairwell of the building at 1226 West 69th Street, they covered him with trash and debris so no one could find him. According to defendant’s statement, he was still moaning. At trial, two witnesses testified that they saw defendant and House alternately carrying and dragging the victim’s limp body. The medical examiner testified that the cause of death was blunt trauma and multiple stab wounds. Along with first-degree murder, the jury was given an accountability instruction. Based on defendant’s statement to the police and the witness testimony in conjunction with defendant’s defense of mistaken identity, defense counsel could have reasonably believed either that the instruction was not supported by the evidence or that a jury would not believe that defendant had the unreasonable belief he was acting in self-defense.

Additionally, it was not objectively unreasonable, as the defense asserts, to only give the jury the choice of convicting defendant of first-degree murder or acquitting him of any crime. A defendant is not entitled to a lesser-offense instruction “simply in the hope that the jury will exercise compassion and convict on the lesser offense.” (People v. Tiller (1978), 61 Ill. App. 3d 785, 791, 378 N.E.2d 282, 288.) In People v. Barnard (1984), 104 Ill. 2d 218, 231-32, 470 N.E.2d 1005, 1009-10, the Illinois Supreme Court recognized that it is often a valid trial strategy to not give a lesser-offense instruction in order to prevent a compromise verdict and to force the jury to debate the defendant’s guilt or innocence. (See People v. Canet (1991), 218 Ill. App. 3d 855, 863, 578 N.E.2d 1146, 1151.) According to defendant’s argument, however, failure to tender a lesser-offense instruction where there is even the slightest evidence in the record to support such an instruction would be per se ineffective assistance. The Illinois Supreme Court has never enunciated such a rule and, in light of the Barnard decision, we believe it unwise to do so.

Defendant contends, however, that this case is analogous to the Illinois Supreme Court’s decision in People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506. Defendant’s analogy, however, is strained and unpersuasive. In Pegram, defendant’s testimony was that two men forced him at gunpoint to assist them in a robbery. The principal contested issue at trial was whether defendant was compelled to participate in the crime. No instruction on the defense of compulsion, however, was tendered or given to the jury. In addition, the jury was not instructed that the State had the burden of proof to show beyond a reasonable doubt that defendant was not compelled. As a result, the court held that counsel had given ineffective assistance because the jury was not instructed as to the defense asserted throughout trial.

In the instant case, defendant’s testimony was that he did not commit the crime. The principal contested issue at trial was his guilt or innocence, not whether he reasonably or unreasonably acted in self-defense. At no time during trial did defendant pursue the defense of second-degree murder or present any evidence to support self-defense. In fact, the evidence that defendant argues supports a second-degree murder instruction was his own statement to the police which at trial he denied was true. Therefore, we cannot say that the possible tactical decision not to give a lesser-offense instruction on second-degree murder was ineffective assistance.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY JOHNSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3194
    Opinion filed September 28, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honehell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Roseanne McDonnell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, Tony Johnson, was convicted in a jury trial of the murder of Walter Brefford and of residential burglary of Mr. Brefford’s home. The trial court sentenced defendant to concurrent terms of 35 years’ imprisonment for the murder and 10 years’ imprisonment for residential burglary.

On review, defendant raises six issues. First, he contends that the State failed to sustain its burden of proving defendant’s statements were voluntary and admissible in light of (1) the arresting officer’s failure to attempt to notify defendant’s parents or to take defendant to a juvenile officer before his first interrogation and (2) his failure to take defendant to the available youth officer before the second interrogation. He next maintains that the court erred in rejecting his claim that his written confession was involuntary due to the taint of his prior oral statements. Defendant also asserts that the court erred in giving State-proffered instructions to the jury which related to a defense which he had not raised, and the court also erred when it refused defense instructions to the jury on voluntary manslaughter.

Defendant claims that he was deprived of a fair trial due to the prosecutor’s improper erroneous and highly prejudicial rebuttal argument. Finally, defendant contends that the court improperly instructed the jury on the law that it could convict defendant of felony murder since the homicide occurred during the commission of residential burglary.

HEARING ON THE MOTION TO SUPPRESS

Prior to trial, defendant moved to suppress his oral and written statements to the authorities on the basis that he was a juvenile and the arresting officers violated the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 703 — 2.) He contends that the arresting officers failed to notify his mother about the arrest and failed to provide him with a youth officer prior to questioning him at the courthouse immediately following his arrest. Additionally, there was no youth officer present during police questioning of defendant at the police department.

The State presented the testimony of three witnesses: one of the arresting officers, Detective Michael Kill; Assistant State’s Attorney William Lacy; and youth officer Patrick Danaher. Detective Kill testified that on September 26, 1986, at approximately 11 a.m., he arrested defendant on a warrant in a hallway outside a juvenile courtroom and took defendant to a small room away from the corridor. At that time he read defendant Miranda warnings and inquired if defendant understood them. The defendant responded “yes” to each of his rights individually. He also informed defendant that any statements made by him could be used to charge and prosecute him as an adult. While Detective Kill and his partner, Detective Thomas Byron, escorted defendant to a police vehicle parked outside the building, defendant made no denial of involvement, but explained what had happened.

They arrived at the third district station at approximately 11:40 a.m. and defendant was placed in an interview room. Detective Kill had spoken to defendant’s mother on several occasions in the past month and attempted on the day of the arrest to reach her by telephone but was unsuccessful. He then informed youth officer Danaher of the situation and, about five minutes later, received a call from defendant’s mother, Mrs. Johnson. In that conversation Detective Kill told Mrs. Johnson that the defendant was in custody at the station and she could come into the station. Mrs. Johnson allegedly responded that she would come when she was ready.

Detective Kill then returned to the interview room and again informed defendant of his rights. Only the defendant and Detective Kill were in the room when defendant repeated information which he had earlier related to the police. During this discussion, which continued until 12:15, defendant gave more details. Detective Kill also asked Detective Byron to contact the State’s Attorney’s office, and the police then obtained lunch for defendant.

Assistant State’s Attorney William Lacy arrived at the station at 12:30, spoke with the officers and reviewed the police reports. At about 1 p.m. Lacy interviewed defendant in the presence of Detective Kill and youth officer Danaher. An hour later, defendant provided another statement that was recorded by a stenographer, and the written statement was then approved and corrected by defendant and witnessed by Detective Kill, Lacy and Danaher. Detective Kill also stated that defendant never made any requests to call his mother and denied that he or Detective Byron promised defendant leniency or release from custody in exchange for his statements.

Lacy’s testimony was substantially similar to that of Detective Kill. He stated that when he first entered the room around 1 p.m. the defendant, youth officer Danaher and Detective Kill were present. He advised defendant that he was an assistant State’s Attorney and a lawyer who worked with the police, but he was not defendant’s lawyer. He informed defendant of his rights and inquired if he understood those rights prior to any conversations. Defendant acknowledged that he understood his rights. Lacy then took the statement, read it out loud to defendant- after it was transcribed, and at the end of each page asked if he wanted to make any changes or corrections. Defendant made some corrections, initialling each one and each page and signed the last page. Lacy also asked whether anyone threatened or promised to give defendant anything “in order to give this statement” and defendant responded “No.” Defendant never requested to call his mother.

Youth officer Danaher’s testimony also corroborated the testimony of Detective Kill. He testified that he was the youth officer in the area and that Detective Kill told him defendant was in custody and that they might need a youth officer to sit with the assistant State’s Attorney. He was present in the interview room with defendant, Lacy and Detective Kill and heard Lacy advise defendant of his rights. Danaher was also present when defendant made another statement in the presence of a court reporter. Danaher acknowledged that he never asked defendant any questions.

Following the court’s denial of defendant’s motion for a directed finding, the defense called Mrs. Johnson as a witness. Mrs. Johnson testified that the police first contacted her about her son on August 29, 1986, and thereafter contacted her or someone in her home on several occasions; however, no one contacted her on the 26th, 27th, or 28th of September. Instead, she learned of defendant’s arrest from “people in the neighborhood.” On cross-examination, Mrs. Johnson admitted lying to the police about defendant’s whereabouts and prior knowledge of defendant’s detainment at the Audy Home on September 11, 1986.

Defendant testified that he was 16 years old on September 26, 1986, at the time of his arrest at the juvenile court. At the police station, defendant was shown some pictures which he recognized. He also was asked if he committed murder to which the defendant did not respond, but asked to “call his mama.” One of the officers, not Detective Kill, told defendant he would not be locked up if he told them what happened. Defendant stated that he then changed his statement and the officers again left the room, but he was never advised of his rights until the State’s Attorney arrived. On cross-examination, defendant admitted that he never told youth officer Danaher or Lacy that the police had made promises to him. He also admitted acknowledging during the interrogation that he had been treated well by the police and given food and drink. Although defendant was taken into custody at the Audy Home on the day of his arrest, he did not call his mother until 2 a.m. on September 27, 1986, at which time no one answered.

Detective Byron was called as a rebuttal witness. He testified that he was with Detective Kill when defendant’s mother telephoned the station. He also called the State’s Attorney’s office and got a sausage sandwich and milk for defendant. No promises or threats were ever made to defendant and defendant did not make any requests to call his mother.

The court found that the police attempted to locate the parents of defendant and that the police were not under an obligation to wait until they were found to continue with their investigation. The court determined that “the police attempted to conform to the requirements of the statute by contacting the parent of the defendant which is all that is required in the statute.” The court also found that defendant’s statements were made voluntarily without coercion and the motion to suppress was denied.

Defendant first contends because the State failed to show proper concern for his rights and needs as a juvenile pursuant to the Juvenile Court Act, his statements to arresting officer Kill should have been suppressed. Defendant urges that the State did not sustain its burden of proof based upon the totality of the circumstances that his will to resist confessing was not overborne by factors of fright, overreaching or ignorance. (People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044.) Defendant argues that the trial court’s finding of voluntariness is against the manifest weight of the evidence and he asks this court to reverse on appeal.

Defendant also asserts since the oral statements were illegally obtained, the effect carried over to influence him at the time of his written confession and that the State failed to sustain its burden of disputing the taint. (See People v. Taylor, 33 Ill. 2d 417, 211 N.E.2d 673.) He further asserts that neither did the State overcome a presumption that the written statement was the product of the same improper conduct surrounding the prior multiple confessions. People v. Reed (1984), 123 Ill. App. 3d 52, 59, 462 N.E.2d 512.

The State first contends that the requirements of section 3 — 2 of the Juvenile Court Act do not apply, since defendant here was arrested for murder and is subject to the authority of the Criminal Code of 1961 rather than the Juvenile Court Act. (People v. Green (1988), 179 Ill. App. 3d 1, 535 N.E.2d 413.) Even if defendant was entitled to the protections of the Juvenile Court Act, the State maintains that the actions of the arresting officers were sufficient to meet the requirements therein. People v. Baxtrom (1980), 81 Ill. App. 3d 653, 402 N.E.2d 327; People v. Holcomb (1989), 192 Ill. App. 3d 158, 548 N.E.2d 613.

Section 3 — 2 of the Juvenile Court Act provides in part:

“A law enforcement officer who takes a minor into custody with a warrant shall immediately make a reasonable attempt to notify the parent *** that the minor has been taken into custody and where he or she is being held; and the officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes.” (Ill. Rev. Stat. 1985, ch. 37, par. 703-2(1).)

If counsel is not present when an admission or confession of a juvenile is obtained, the utmost care must be taken to insure that the confession is voluntary and not coerced, suggested or the result of the juvenile’s ignorance of his rights, adolescent fantasy, fright or despair, because of the unequal footing of a juvenile and an adult. See In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383; People v. Holcomb (1989), 192 Ill. App. 3d 158, 548 N.E.2d 613.

The record here is clear that the arresting officer attempted to contact defendant’s mother once he was brought into the station and spoke to Mrs. Johnson by telephone only minutes later when she returned his call. The youth officer who was present at the station when defendant arrived was also informed of defendant’s arrest. The record is unclear, however, as to whether the arresting officers attempted to take defendant to the youth officer without unnecessary delay prior to questioning him pursuant to section 3 — 2(1). However, where a juvenile has been admonished with respect to his right to remain silent and to have assistance of counsel and he has understood such a warning, a police officer’s failure to comply with section 3 — 2 does not preclude admission of defendant’s statement. People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642.

We have reviewed the evidence in this case and conclude that the failure to immediately take defendant to youth officer Danaher or wait until his mother came to the station did not preclude admission of his statements. He was repeatedly given his Miranda warnings, and he repeatedly acknowledged he understood them and indicated he would give a statement. Additionally there was evidence that youth officer Danaher was contacted, was present during the final interrogation, and that defendant’s mother had been called. Mrs. Johnson gave no indication when she would come to the station. There was no evidence that defendant requested an attorney and was denied counsel.

Illinois courts have recognized that it is preferable that the parents of a juvenile be present when a juvenile waives his rights (In re Bertrand (1978), 65 Ill. App. 3d 703, 382 N.E.2d 660) but have held that the absence of the accused juvenile’s parents or guardian does not render ineffective an otherwise valid waiver of constitutional rights. (In re Stiff (1975), 32 Ill. App. 3d 971, 336 N.E.2d 619.) Rather, the fact that there has been a violation of section 3 — 2 of the Juvenile Court Act is at most a factor in determining whether subsequent statements were voluntarily made. People v. Creach (1979), 69 Ill. App. 3d 874, 890, 387 N.E.2d 762, aff’d in part & rev’d in part on other grounds (1980), 79 Ill. 2d 96, 402 N.E.2d 228.

Whether a statement was given voluntarily should be considered in light of the totality of the circumstances. (People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.) Although there is a need for careful scrutiny of statements made by minors, the factors to be considered in determining voluntariness are the same for both minors and adults. People v. Prude (1971), 66 Ill. 2d 470, 363 N.E.2d 371.

Consideration must be given to: (1) the characteristics of the accused; (2) the details of the interrogation; and (3) whether the statements were induced or compelled by threats or promises from law enforcement officials. (People v. Simmons, 60 Ill. 2d at 179; People v. Hattery (1989), 183 Ill. App. 3d 785, 539 N.E.2d 368.) In the present case, the totality of the circumstances surrounding defendant’s oral statements here establishes that the statements were made voluntarily. There is no evidence of incapacity or handicaps on the part of defendant. There is testimony that defendant was repeatedly given his rights, and even looking at defendant’s testimony, he acknowledged being advised of those rights by the State’s Attorney during the final interrogation. There was no evidence of physical or mental abuse; defendant was held at the station for only a few hours. Unlike the cases relied upon by defendant, he was given his Miranda warnings prior to the statement, there was no evidence of subnormal intelligence, and there was no evidence that he was interrogated after repeated requests to see his mother were refused and while his mother was present in the building. With respect to the voluntariness of the written statement, there was a break in the stream of events between the taking of the oral statements and those leading up to the written statement.

In sum, an examination of the totality of the circumstances in this case convinces us that defendant’s confession was voluntary. Any delay which occurred in the youth officer’s presence in the interview room was mitigated by the fact that defendant signed the written statement, put into evidence at trial, only after youth officer Danaher remained in the room at the station, and defendant was again informed of his rights by Assistant State’s Attorney Lacy.

Accordingly, we conclude that the trial court’s denial of defendant’s motion to suppress was not contrary to the manifest weight of the evidence.

TRIAL PROCEEDINGS

The State called Joseph Crossley as a witness. He testified that he was the nephew of the victim, Mr. Brefford, and that on August 27, 1986, he arrived at his uncle’s house shortly after 4 p.m. He saw a milk crate on the side of the house under a broken window. When he entered the front door using keys obtained from his mother, he saw the body of his uncle lying on the floor between the living room and dining room. He went back outside and instructed his sister to go to the home next door and call the police.

Julius McGee testified about a traffic incident which occurred on August 17, 1986. Mr. McGee had just parked his car and gone up the stairs into his home when he heard a noise and someone said “McGee your car’s been hit.” He ran down the stairs and saw a big, dark-colored car driven by a young, black teenager. The driver attempted to flee, but McGee held him until the police arrived.

Officer Brannon testified that at about 9:30 p.m. on August 17, 1986, he investigated a traffic incident and placed the person who was found inside an old model Lincoln under arrest. He identified that person in court as the defendant. When Officer Brannon searched the car, he found a wallet containing identification and charge cards. He collected some items from the car and had it towed to the fourth district station. When Brannon called in the license plate number of the car to a zone officer, he learned that the car belonged to Walter Brefford. At the station, Brannon inventoried the items and sent a copy of the inventory sheet to Mr. Brefford’s address. Defendant told Officer Brannon that he resided at 124 West 72nd Street. Brannon then issued two traffic citations and turned defendant over to the desk sergeant. Defendant was released after his mother was called.

Dr. Choi, a pathologist at the medical examiner’s office, also testified. He conducted the autopsy on the victim. He stated that the body appeared to be that of a male 76 years old and that it was decomposed and infested. Dr. Choi also conducted an internal examination and discovered six fracture scars concentrated in the forehead area. He could not determine what had caused the markings but concluded that “mechanical instruments” rather than a fall or bump into a door caused the fractures. He determined that the damage seen was consistent with the victim being struck with an object or tool such as a screwdriver. The doctor concluded that the cause of death was blunt trauma to the head as indicated by the fractures.

Detective Kill testified that he was in charge of the investigation of Mr. Brefford’s murder. He searched the scene on August 27, 1986, and observed two letters from the Chicago police department that were addressed to the victim. One was an inventory slip and the other was a letter notifying the victim that his car had been impounded. Detective Kill then went to the third district station and spoke to Officer Brannon. After speaking to Brannon, he began to look for the defendant.

Between August 27 and September 22, Detective Kill made several visits to defendant’s home and spoke to defendant’s mother, Mrs. Johnson, at least a half dozen times by telephone. On September 22, 1986, he spoke to Roderick Beard and Anthony Ratcliff and thereafter obtained an arrest warrant for defendant. Detective Kill also testified to the events surrounding the arrest of defendant and the taking of defendant’s statements and such testimony was consistent with his testimony at the suppression hearing.

Detective Kill also testified about the statements defendant made to him as follows. Defendant told Detective Kill that he saw Mr. Brefford leave his home and thereafter entered the house with the intention of taking video equipment. While defendant was inside the house Mr. Brefford returned. Defendant attempted to escape but Mr. Brefford tried to stop him. As defendant punched Mr. Brefford two or three times, Brefford staggered backward and picked up a holster with a revolver in it. As the men struggled, the holster opened and the bullets fell out. Defendant took the gun. However, because Mr. Brefford continued to pursue him, the defendant stabbed Brefford in the head and chest with a screwdriver until the man fell to the floor and twitched. Defendant then covered the body with a curtain, took a gun, some bullets and car keys. He left through a window and went home to change his bloody clothes before driving away in Mr. Brefford’s car. Defendant also mentioned hitting the old man over the head with a wooden cane that the man had with him and that the cane broke. Detective Kill stated on cross-examination that defendant’s statements given at the time of his arrest and at the police station were different. At the station defendant added that during a struggle for the gun, the gun discharged.

Both Ratcliffe and Beard testified to conversations each of them had on separate occasions with the defendant about his involvement in a home burglary and how the old man had returned while defendant was still in the house. Defendant related to them his attempt to flee and how the old man had grabbed him, causing the defendant to stab him. Defendant also told Ratcliffe and Beard about taking the car keys and gun from the house before leaving.

Following an instruction conference, the State then called Assistant State’s Attorney Lacy to the stand. Like Detective Kill, Lacy testified to the events surrounding the taking of defendant’s statements on the day of his arrest. Lacy also published defendant’s written statement to the jury. On cross-examination, the defense questioned Lacy extensively about portions of the statement in which defendant described a struggle that occurred between the defendant and Mr. Brefford.

Defense then offered as evidence a stipulation of Detective Foley. It was stipulated that if called to testify Detective Foley would state he conversed with Dr. Choi by telephone on August 30, 1986, and the doctor told him the injuries sustained by the decedent could have occurred as the result of a fall.

Following a second instruction hearing, the trial court denied defendant’s motion for mistrial. After the court resolved a question raised by the jury, the jurors returned with a verdict of guilty on both charges. A sentencing hearing was held where evidence was presented in mitigation and aggravation and defendant was sentenced to concurrent terms sentences.

Two jury instruction conferences were held in this case. During the first conference, the State proposed instructions concerning the absence of any justified use of force by defendant. Defense counsel objected, claiming no self-defense theory had been offered since defendant merely asserted his lack of intent to kill Mr. Brefford. The judge refused the instruction.

After the first conference, the State called Lacy as a witness and as previously mentioned cross-examined him about defendant’s statements concerning a struggle with Mr. Brefford. The State again sought instructions that: (1) a person is not justified in the use of force if he is committing or escaping after the commission of a forcible felony and (2) the term “forcible felony” means residential burglary. The court agreed to allow the instruction this time, based upon its acceptance of the State’s argument that defense counsel’s cross-examination of Mr. Lacy necessitated the instruction.

On appeal, defendant contends that the trial court erred in giving the aforementioned jury instruction because it was misleading (People v. Jones (1986), 145 Ill. App. 3d 835, 495 N.E.2d 1371) and there was no evidence advanced in support of the instruction (People v. Fleming (1987), 155 Ill. App. 3d 29, 507 N.E. 2d 954), since he did not raise a claim of self-defense. People v. Christensen (1978), 61 Ill. App. 3d 856, 378 N.E.2d 612.

The determination of which instructions will be submitted to the jury is within the discretion of the trial judge. (People v. Pietrzyk (1987), 153 Ill. App. 3d 428, 435 N.E.2d 1228.) Based on the evidence presented during the trial, we find no abuse of discretion here involving the jury instructions. Defendant’s statement about a purported struggle between him and Mr. Brefford during the burglary could reasonably have raised a question before the jury whether defendant was justified in his use of force which resulted in Mr. Brefford’s death. However, because the law precludes a finding of justification for the use of force during the commission of a forcible felony, it was proper for the trial judge to instruct the jury on that law.

Defendant next claims that the trial court erred by denying his jury instruction on voluntary manslaughter based on the serious provocation of mutual quarrel or combat. (See People v. Pietryzk, 153 Ill. App. 3d at 435.) He urges where there is some evidence in the record, such as mutual combat, which if believed by the jury would lessen the homicide from murder to voluntary manslaughter, the jury should be presented with the instructions on voluntary manslaughter. People v. Leonard (1980), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358.

Under Illinois law, “serious provocation” may arise from mutual combat; “mutual combat” is combat into which two persons enter willingly, or in which two persons mutually fight upon equal terms, but the defendant cannot have instigated the fight, and retaliation by the defendant must not have been disproportionate to the provocation. (United States ex rel. Bacon v. DeRobertis (D.C. 1982), 551 F. Supp. 269, aff’d (7th Cir. 1984), 728 F.2d 874.) In the present case, defendant did not meet his burden of showing some evidence of serious provocation and sudden and intense passion (People v. Austin (1989), 133 Ill. 2d 118, 549 N.E.2d 331; People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270), because any struggle that ensued between him and Mr. Brefford did not amount to mutual combat. Further, there is no evidence that defendant was provoked into a sudden intense passion.

This court also has held that where there was evidence that a defendant participated in a robbery which led to the victim’s death, the jury could not find manslaughter or reckless conduct. The court there concluded that defendant, who was charged with first-degree murder under the felony-murder rule, was not entitled to instructions on the lesser offense of involuntary manslaughter. See People v. Ellis (1981), 93 Ill. App. 3d 981, 418 N.E.2d 88.

Accordingly, based on the evidence in this case, we find no error in the trial court’s refusal to give to the jury defendant’s proffered instruction on voluntary manslaughter. Even so, any error in the denial of the voluntary manslaughter instruction is considered harmless error where there is overwhelming evidence of defendant’s guilt. (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) Here, the evidence of defendant’s guilt was overwhelming. See People v. Pecina (1985), 132 Ill. App. 3d 948, 477 N.E.2d 811; People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327.

Defendant next asserts that comments made by the State during closing argument deprived him of a fair trial. Specifically, he contends that the prosecution repeatedly denigrated the defense as a “cop-out” and that a prosecutor’s arguments which involve characterizations that impermissibly diminish the strength of a trial defense are improper. Also, he urges it was error for the prosecutor to misstate and erroneously apply the felony-murder rule. Defendant contends that the definition of felony murder in effect at the time of this matter (Ill. Rev. Stat. 1983, ch. 38. par. 2 — 8) did not specifically include the crime of residential burglary. Even assuming residential burglary is available for use in a felony-murder prosecution, he asserts that the State misapplied the law to these facts by insisting a conviction was mandated. People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827.

A prosecutor is allowed a great deal of latitude in making the closing argument. (People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19.) The trial court’s determination of the propriety of the argument will generally be followed absent a clear abuse of discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.) In the present case, the comments of the prosecutor made during rebuttal argument were based on the evidence presented at trial; specifically, defendant’s written statement and the testimony of Assistant State’s Attorney Lacy given on cross-examination. The record reflects that defense counsel argued “Johnson’s intent is not to do any harm to Mr. Brefford, it is to get out of the house if he can, and he is trying to do that. He committed a burglary, fine but he is not a murderer, he did not commit murder.” We believe the State’s comments, that defendant “didn’t want to accept all of the responsibility” and “the defendant wants to cop-out,” are rebuttal that refer to the legitimate inference raised by defendant that he was not guilty of murder because Mr. Brefford attempted to stop him.

Moreover, the remarks made by the defense during closing argument invited the remarks of the prosecutor now complained of, and even if the remarks were improper, defendant cannot now complain he was prejudiced by the reply. See People v. Lewis, 25 Ill. 2d at 446.

With regard to the prosecutor’s comment about the law of felony murder, we find that the comments were a proper application of the law to the evidence and facts in the case (see People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606), rather than a misapplication or misstatement of the law. Further, the comments of the prosecutor were invited by the argument of counsel and therefore are not grounds for reversal. Assuming any error, such comments should not be considered as a basis for reversal because they were not so prejudicial as to result in an unfair trial or to be considered as a material factor in the defendant’s conviction, without which the jury might have reached a different result. See People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38; People v. Baptiste (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Defendant finally asserts that the trial court further erred in reciting instructions which: (1) allowed the jury to convict him of felony murder based on the commission of the offense of residential burglary; and (2) precluded a finding that he was acting in self-defense due to the commission of residential burglary. As stated earlier, defendant urges because residential burglary is not specified as one of the forcible felonies (Ill. Rev. Stat. 1983, ch. 38, par. 2 — 8), it could not be used to convict him under the felony-murder rule. See People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290.

We believe Chandler is distinguishable on its facts. Chandler involved the scope of included felonies for purposes of the death penalty sentencing, rather than an inquiry of whether “residential burglary” could be included in the general term “burglary” for purposes of convictions pursuant to the felony-murder rule. After considering the statutory language in effect at the time of this case, we conclude that residential burglary was considered a forcible felony even though it was not specifically enumerated in the statute. (See People v. Parker (1988), 123 Ill. 2d 204, 211, 526 N.E.2d 135.) Having reviewed the Criminal Code in whole and in part, we believe it was the intent of the legislature to include residential burglary among the forcible felonies in section 2 — 8. Further, at that time, burglary was enumerated as one of the forcible felonies and “burglary” is a general term which is intended to include residential burglary.

Moreover, we find that even if it can be said the legislature did not specifically intend residential burglary to be included in the term “burglary” for purposes of section 2 — 8, it intended the crime to be included in the more general heading of “any other felony which involves the use or threat of physical force or violence.” (Ill. Rev. Stat. 1983, ch. 38, par. 2 — 8.) Finally, the intent of the legislature is clear today. Under the present law, “residential burglary” is enumerated in section 2 — 8 as a forcible felony.

For the foregoing reason, we affirm the convictions and sentences of defendant.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.