author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WILLIAMS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—3112
    Opinion filed September 15, 1992.

      Michael J. Pelletier, Leslie Wallin, and Kenneth Jones, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, David Williams, appeals his jury convictions for murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2). The victim, Gail Marshall, was shot and killed after the automobile she was driving collided with an automobile apparently driven by defendant. On appeal, he questions whether (1) he was denied his constitutional right to be present for jury selection; (2) the circuit court erred by refusing to give his tendered insanity instruction; (3) the court erred by admitting evidence of two unrelated crimes; (4) his inculpatory statements should have been suppressed; and (5) he was denied effective assistance of counsel.

A pretrial hearing was held on defendant’s motion to suppress statements he made to police and assistant State’s Attorneys, because of his alleged heroin and cocaine use prior to making the statements, his disturbed mental condition, and physical coercion by police. He also moved to suppress identification testimony.

Chicago police detective Ralph Vucko testified at the suppression hearing that while investigating Marshall’s homicide on July 10, 1986, he met with defendant in an Area Four Violent Crimes interview room at approximately 4:45 p.m. Prior to preparing for lineups, defendant was fed and used the toilet. After the lineups, at 10 p.m., Yucko conversed with defendant for about one-half hour after defendant was given and understood his Miranda warnings and agreed to speak. At 1 a.m., Vucko and Assistant State’s Attorney (ASA) Kip Owen, who also informed defendant of his Miranda rights, spoke with defendant for approximately one-half hour.

Chicago police detective James Mercurio testified that on July 11, 1986, at 9 a.m., he and his partner, Detective Thomas Lahm, saw defendant sleeping in the Area Four interview room. At 10 a.m., they gave defendant coffee, let him use the toilet and questioned him. Defendant understood his again-given Miranda rights and agreed to talk. After one-half hour, the officers contacted two more detectives and transported defendant to Jackson Boulevard and Pulaski Road, where defendant later admitted he had disposed of a gun. After buying defendant food and returning him to the interview room, Detectives Mercurio, Lahm and one of the other detectives searched defendant’s apartment pursuant to a consent-to-search form executed by defendant. At 2 p.m., Mercurio returned to the station, again read defendant his Miranda rights and spoke with him for one hour, after which the detective telephoned an assistant State’s Attorney from the felony review division. She arrived at about 4:15 p.m. and spoke with defendant at 6 p.m. for 30 to 40 minutes, after again giving him his Miranda warnings.

On cross-examination, Detective Mercurio asserted that during the 2 p.m. interview defendant claimed frequent heroin and cocaine use. He informed the detective of a person named “Harry” who was supposedly standing in the interview room behind defendant. No such person was present. Defendant asserted Harry looked like him with the same clothing, had a stronger and deeper voice, is a part of defendant’s personality, and they use the same body. Defendant met Harry six months ago and since January 1, 1986, Harry had murdered seven people. Mercurio informed the assistant State’s Attorney of these statements and of defendant’s asserted drug use.

On redirect examination, Detective Mercurio testified that defendant told him he was driving with Harry, who saw a girl driving an automobile. He followed her on the expressway. Harry stated he was “going to take care of business” and got out of the car. Defendant heard two shots, went over to the car, put a gun in a bag and ran. When informed that witnesses saw defendant exit the vehicle alone, defendant sat still and described Harry as previously mentioned.

ASA Jane Loeb testified that on July 11, 1986, at 6 p.m., she spoke with defendant. She identified him in court. After receiving his Miranda warnings, defendant answered questions cooperatively, alertly and appropriately. ASA Loeb did not recall being told of defendant’s drug use, but was informed about Harry, described by defendant.

The two police officers, another detective, three police sergeants and the assistant State’s Attorney, who saw defendant on July 10 and 11, testified that they did not personally physically abuse defendant nor to their knowledge did anyone else. Further, defendant did not appear to be under the influence of drugs and never requested an attorney. The parties stipulated that there were no allegations of physical coercion by the two arresting officers; therefore, they did not testify.

Defendant’s motion for a finding as a matter of law at the close of the State’s evidence in the suppression hearing was denied. He testified on his own behalf.

Defendant claimed that he used heroin and cocaine. He used one-half gram of heroin three times a day, which he took along with beer just prior to being arrested. After his arrest, defendant was removed to a police station where he was handcuffed to the wall and told that if he did not sign a consent-to-search form the police would break into his “crib” regardless. He complied. Next, he was brought to a second police station where he was handcuffed to the wall in an interview room.

Defendant asserted that the first two white detectives to testify questioned him individually. Defendant did not understand the questions because he was drugged. The detectives then interrogated defendant simultaneously, cursing him, hitting him and calling him “nigger” and “lying mother fucker.” He was struck with a black mallet numerous times. Later, a black officer hit him with a fist. He did not understand further questioning because he was “high.” He concealed 40 bags of heroin, worth $25 each, between his legs wrapped in plastic and foil, which he snorted when left alone on six or seven different occasions. He informed the first two detectives and the assistant State’s Attorney that he had taken drugs.

Defendant told the officers that he did not commit the offenses charged. He made the statement concerning Harry because he was beaten and was mainly repeating what he was told to say. He did not remember being instructed to assert that Harry was standing behind him, wore the same clothing or looked like defendant, however, although he remembered uttering those words. He added that he had an unremoved bullet in his chest and underwent prior treatment for mental problems.

On July 17, 1986, defendant was removed by police from county jail without notice to defense counsel, placed in a lineup and interviewed by an assistant State’s Attorney to whom he gave a statement.

The parties stipulated that an intake examiner would testify that on July 12, 1986, during an examination, defendant did not mention police officers hit him with a mallet or that a black officer hit him by hand. There were further stipulations as to photograph and lineup identifications of defendant.

The court denied defendant’s motion to suppress his statement of July 11, 1986, but granted his motion to suppress his July 17, 1986, statement. His motion to suppress identification evidence was denied.

At trial, Chicago police officer Martin Summerville testified that at 4:30 a.m. on June 30, 1986, in response to a report of shots fired, he and his partner investigated and found a two-car accident at Karlov Avenue and Congress Parkway, involving a 1975 Chevrolet and a 1986 Oldsmobile. The Chevrolet was on fire with Marshall lying unconscious between the front seat and the dashboard. She had sustained several cuts and bruises, as well as a gunshot wound to her left breast. She was taken to the hospital. There appeared to be a bullet hole in the Chevrolet’s windshield.

Annie Walker, the victim’s mother, testified that on June 29, 1986, between 7 p.m. and 10 p.m., she saw the victim working at a restaurant, but next saw her dead at Cook County Hospital on June 30, 1986. Walker identified the victim’s shoe bag, purse and apron. It was stipulated she would identify the victim in court, dead and alive, through photographs.

McCarthy Barry, one of Marshall’s co-workers, testified that she drove him home after work at about 4 a.m. on June 30,1986.

Odie Bowers testified that on June 28, 1986, at about 4:45 p.m., as he left a food store, defendant was standing next to Bowers’ 1986 Oldsmobile and began asking him questions. As Bowers unlocked his car door, he felt defendant’s gun in the back of his head. He threatened that if Bowers made a sound, defendant would blow his head off. Bowers was forced into the vehicle’s passenger seat. Defendant drove. Upon demand, Bowers gave defendant his money, $15, which defendant ripped and threw, declaring he wanted “big money” to buy drugs. Defendant told him that he took the car to make money and that his gun was a nine millimeter. Bowers was let out and instructed not to go anywhere for one or two hours. Bowers identified defendant in a lineup and in court. He also identified a picture of his own automobile.

Henry King, Sr., testified that on June 30, 1986, at about 4:30 a.m., asleep in his apartment near the accident scene, he was awakened by a crash and gunshots. From his window, he observed two automobiles, an Oldsmobile and a Chevrolet. A heavyset man was pulling his head and arms out of the Chevrolet passenger window. The man walked away. Melony King, Henry’s sister, at the same time awoke hearing the crash and gunshots. In addition to tracking Joe Jones’ and Henry’s testimony, she related that she identified Bowers’ car, through a picture, as having been involved in the accident.

Joe Jones testified that, from his apartment window at about 4:30 a.m. on June 30, 1986, he observed a car “sitting” at Karlov and Congress when another vehicle, at a high rate of speed, made a right turn cutting it off. He heard a crash. After calling the police, three or four gunshots rang out. Jones returned to a window and observed a man walking across a vacant lot with a shoe bag, removing its contents, putting something in his pocket and dropping something else.

Chicago police detective Dennis Keane testified that he was assigned to the scene of the accident. The Chevrolet was damaged from the crash and fire. The front passenger-door window was broken out and a bullet hole was in the windshield. Two nine-millimeter shell cases were found in the automobile. Near a vacant lot, the detective found a shoe bag, a purse and a cosmetic bag. Marshall’s identification, which included a bank card, was found in the purse. Keane identified Bowers’ car as having been involved in the accident. Nine-millimeter live rounds were recovered from the automobile.

Chicago police crime laboratory technician John Stella testified that he inventoried the nine-millimeter cartridge cases and removed fingerprints from the inside surface of a window of the Oldsmobile. Walter H. Collins, a Chicago police crime laboratory technician, testified that fingerprints were recovered from the inside right rear opera window of the Oldsmobile.

Chicago police detective Anthony Mannina searched the Oldsmobile trunk and found clothing and other materials in two duffel bags containing items with defendant’s name or nickname, including an inpatient appointment slip, a circuit court check, a medical eligibility card, voter and social security cards and a birth certificate. The addresses obtained from the materials were consistent with defendant’s addresses.

Chicago police sergeant Michael Garner with his partner, Officer Kevin Russell, after having seen a police stop order and photograph, encountered defendant and brought him to the station at 3:30 p.m. on July 10, 1986.

The parties stipulated that the victim was dead from gunshot wounds in her back upon arrival at the hospital on June 30, 1986, at 5:31 a.m. Dr. Uepil Choi, an expert forensic pathologist, after a postmortem examination found gunshot-related wounds on the back and front of Marshall’s left chest; small abrasions and lacerations on her forehead and chin; two lacerations on her left forearm; a small piece of glass embedded under her skin at a laceration; and a “V” shaped cut on her left wrist. A bullet jacket was recovered from her right upper back area, as well as a lead bullet core. In his opinion, she died of multiple gunshot wounds.

Chicago police officer Theatrice Patterson testified as an expert in the science of fingerprints that defendant’s fingerprints matched that taken from the Oldsmobile window.

Chicago police officer Richard W. Chenow, testifying as an expert in the field of firearm identification, asserted that the cartridge cases found at the scene were ejected from the same firearm. The bullet jacket recovered from the right upper back of the victim is of the type loaded into the nine-millimeter cartridge cases found in the victim’s car. The fired jacket had riflings consistent with being fired from a semiautomatic pistol.

Detective Vucko, in addition to relating substantially the same facts as testified to at the suppression hearing, asserted that he searched defendant’s clothing and had him drop his pants and searched for contraband “there.” Also, defendant denied committing the shooting.

Detective Mercurio added to his suppression hearing testimony that defendant admitted being at an attempted armed robbery eight minutes after the homicide. He was “by the restaurant” with a nine-millimeter semiautomatic handgun, ran across the street into an alley and threw the gun over a fence into a yard at Pulaski and Jackson. When the detective went with defendant to retrieve the gun, it was not there.

Betty Robinson testified that on June 30, 1986, at 4:45 a.m., she was working at a restaurant. She observed defendant as he stood on a street corner, crossed the street, walked by the door of the restaurant, came back to the door and then entered. He demanded her car. After she denied owning an automobile, defendant pulled out a gun and proceeded to the back of the restaurant where he told another worker to give him money, whereupon Betty ran. Defendant followed with a gun, stating that now he had to kill her. As she found the police, defendant entered an alley. Robinson identified defendant from a photograph array and a lineup, as well as in court.

Dr. Gerson Kaplan, a board-certified psychiatrist, testified that based upon three examinations, he believed defendant was malingering, had a substance abuse problem, an antisocial personality disorder, but was legally sane on June 30,1986.

At the close of the State’s case, the court denied defendant’s motion for a directed verdict. The defense then proceeded by way of stipulation that Chicago police detective Raymond Leuser would testify to Melony King’s report to him that the man she saw walking from the Chevrolet on June 30, 1986, appeared to be confused.

After having been found guilty, and following extensive testimony at his sentencing hearing, defendant received a sentence of natural life without parole in custody of the Department of Corrections for murder and 30 years for armed robbery, to be served consecutively.

I

■ Defendant maintains he was denied his constitutional right to be present at every critical stage of the trial, where court and counsel considered juror challenges and interviewed two challenged jurors outside of his presence.

Voir dire of 38 prospective jurors was conducted in the courtroom; however, the court questioned two prospective jurors in chambers in the presence of counsel for the State and the defense. There is no indication in the record that defendant was present for the questioning of these two jurors. One failed to note on his summons card that he had been arrested, charged and placed on supervision for “tampering with stolen goods” five years previously. He was excused by the State. The second juror allegedly was verbally addressed by defendant during a court recess. He was excused by the defense. The two prospective jurors subjected to in camera voir dire, having been excused, removed any potential adverse effect on jury impartiality.

Defendant was present as the court questioned each of the other prospective jurors in the courtroom. Any thoughts defendant may have had after the court questioned the jurors, which was done in his presence, easily could have been voiced to his counsel. The court announced, after nine prospective jurors were seated in the jury box, that “we are going to *** take a short recess for the lawyers to pass upon” those persons in the process of trying to “select twelve jurors.” The actual challenges to prospective jurors were made by counsel for both sides and ruled upon by the court in chambers. No objection to this procedure was advanced by defendant or his counsel then or at a later recess called for similar purposes. A timely objection could have been considered by the court and ameliorative steps, if any were required, could have been taken. Failure to raise any objection is sufficient to waive the point. Defendant cites People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, as authority for claiming waiver by the State for failure to raise this point in defendant’s post-trial motion by addressing the merits of the motion. The State did not refer to the presence issue during post-trial argument and there was no State waiver.

Even when viewed from the standpoint of plain error (134 Ill. 2d R. 615(a)), the result is the same. Defendant maintains that he was prejudiced because he did not have meaningful and reasonable input into deciding who would sit on the jury; he does not claim, however, that his jury was not impartial. His argument is based upon his right to be present at the time actual challenges to prospective jurors were announced by counsel and ruled upon by the court. Defendant has a general right to attend every stage of his trial, including jury selection. (People v. Bean (1990), 137 Ill. 2d 65, 560 N.E.2d 258.) The situations are limited, however, in which denial of this broad right of presence constitutes a violation of the Illinois and United States Constitutions. The United States and Illinois Constitutions guarantee defendant an impartial jury, not a jury of his choice. (Bean, 137 Ill. 2d at 85.) The issue raised by defendant’s claim, whether the exclusion denied defendant trial by an impartial jury (Bean, 137 Ill. 2d at 81, 85), must be answered here in the negative. Defendant’s absence at that stage of the proceedings could not have adversely affected the impartiality of the jury.

Defendant’s absence from chambers was undesirable, and in some cases such absence may constitute the denial of a defendant’s constitutional rights. Under the circumstances here, however, no sufficient basis to question the jury’s impartiality has been presented requiring his conviction to be overturned.

II

Defendant contends that the circuit court erred in refusing to give his proposed insanity instructions because the affirmative defense of his insanity was before the jury.

At trial, Detective Mercurio asserted that defendant told the police someone named Harry shared defendant’s body and personality and that Harry was standing behind defendant in the interrogation room. After this testimony, over defendant’s objection, the court allowed Dr. Kaplan to testify. The court ruled the jury had a right to know that the doctor examined defendant because his mental “wherewithal” was already before the jury. Dr. Kaplan testified that defendant was antisocial, pretending to be mentally ill and abusing street drugs. He added that defendant was legally sane at the time of the homicide and mentally fit when examined.

The court subsequently refused to give the jury instructions as to defendant’s insanity. Based upon Dr. Kaplan’s testimony, the court found that there was absolutely no evidence before the jury implying defendant was anything but sane at all times during the incident, thereby barring insanity instructions from being given.

As postulated in People v. Moore (1986), 147 Ill. App. 3d 881, 498 N.E.2d 701, appeal denied (1987), 113 Ill. 2d 581, defendant must prove, more likely than not, that he was insane when he committed the offenses charged. Defendant is entitled to instructions on insanity only where a jury’s finding of insanity would be supported by a preponderance of the evidence. Jury consideration of such an affirmative defense, then, is precluded where, as here, the court finds there was insufficient evidence presented to warrant a reasonable person’s belief that defendant had proved the affirmative defense by a preponderance of the evidence. (Moore, 147 Ill. App. 3d at 886.) Defendant failed to present any evidence at trial probative of his insanity and Dr. Kaplan’s testimony clearly supports the court’s refusal to tender insanity instructions.

Defendant insists that in light of section 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115— 4) (section 115 — 4(j)), Moore could not be construed to have precluded defendant’s tendered jury instructions. Section 115 — 4(j) provides that when the affirmative defense of insanity has been presented during trial the court shall provide the jury with a verdict form for not guilty by reason of insanity. The operative word in section 115 — 4(j) is “presented.” Insanity instructions should be given when the affirmative defense has been presented. There was insufficient evidence to support a jury’s finding of insanity by a preponderance of the evidence here; therefore, the affirmative defense was not presented so as to require the court to give insanity instructions to the jury. (See Moore, 147 Ill. App. 3d 881, 498 N.E.2d 701.) Such a result is not inconsistent with the requirements of section 115 — 4(j).

Ill

Defendant contends that the circuit court erroneously permitted the State to introduce at trial evidence of two allegedly separate, unrelated offenses, the armed robbery of Odie Bowers and the attempted armed robbery of Betty Robinson. Both Bowers and Robinson identified defendant as the offender in each instance.

The court admitted evidence of the offense against Bowers, stating Bowers’ identification of defendant as the person who took his automobile would be relevant to circumstantially establish that defendant was in possession of Bowers’ vehicle at the scene of the homicide two days later, finding that the probative value of Bowers’ testimony would outweigh its prejudicial effect. The crime against Robinson took place shortly after and in close proximity to the homicide, making Robinson’s testimony probative of identity by placing defendant in the vicinity of the offenses at issue, the court finding that its probative value outweighed its prejudicial effect. The court denied defendant’s motion in limine and instructed the jury to consider evidence of the other crimes only for purposes of identification, motive and design.

Evidence of other crimes or wrongful conduct is not admissible to show defendant’s character or propensity to commit crime or wrong acts. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) It may be used to prove presence of criminal intent, placement of defendant in proximity to the time and place of a crime, common design, identity and motive. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840; Kimbrough, 138 Ill. App. 3d 481, 485 N.E.2d 1292.) As the circuit court here reasoned, evidence regarding the taking of Bowers’ automobile as well as defendant’s statements to Bowers were clearly relevant to the identification of defendant as the murderer. Furthermore, Robinson’s testimony identified defendant as present, near the scene, in flight and with a gun. Although proximity alone is not sufficient to admit evidence of other crimes, such evidence may be admitted when the other crime is relevant for additional reasons, as here, to demonstrate identity. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. (Kimbrough, 138 Ill. App. 3d at 489.) The circuit court here properly weighed these two factors and did not abuse its discretion in denying defendant’s motion in limine. People v. McCoy (1987), 156 Ill. App. 3d 194, 199, 509 N.E.2d 567.

IV

Defendant asserts that inculpatory statements he made while in custody should have been suppressed because they were not voluntarily given.

On July 11, 1986, at 2 p.m., defendant gave to Detective Mercurio a statement regarding Harry and the shooting. This statement was alleged to have been involuntarily given because of the conditions of his detainment and because his will was overcome. Immediately prior to the nearly 24 hours that police interrogated him, beginning at 3:45 p.m. on July 10, 1986, defendant claims he took heroin and drank beer. His drug use allegedly continued while alone in custody as he snorted heroin, which he hid between his legs. Defendant maintains he ate only twice, slept in a chair and was questioned numerous times, adding that he did not understand the questions asked of him because he was “high.” Defendant urges that Detective Yucko’s claim that he searched defendant for contraband, instructing him to drop his pants, was evidence of an intrusive coercive element of defendant’s detention which was unnecessary because defendant was not arrested for possession of contraband. In the alternative, defendant asserts the search was fabricated to negate his testimony regarding the use of drugs in the police station.

The State has the burden of establishing by a preponderance of the evidence that confessions are voluntary. (People v. Caballero (1984), 102 Ill. 2d 23, 33, 464 N.E.2d 223; People v. Mackey (1990), 207 Ill. App. 3d 839, 859-60, 566 N.E.2d 449.) The circuit court found that no physical violence was inflicted upon defendant while he was in custody and that there was no credible evidence to suggest that defendant was unable to understand his rights, voluntarily relinquish them and give a statement. This determination was not against the manifest weight of the evidence and will not be overturned. Caballero, 102 Ill. 2d at 33.

Defendant was fed shortly after his arrest, given the opportunity to use the toilet, and was read and understood his Miranda warnings numerous times. Neither the police officers nor the assistant State’s Attorney knew of defendant being physically abused or observed him while under the influence of drugs during their investigations. The totality of the evidence supports the court’s finding that defendant’s statements were made freely, voluntarily and without compulsion, and that defendant’s will was not overborne.

V

Defendant asserts that he was denied effective assistance of counsel, in violation of the sixth amendment to the United States Constitution.

As grounds for the foregoing allegation, defendant points to defense counsel’s alleged failure to communicate with him; counsel’s strong suggestions that he avoid trial by pleading guilty because he otherwise would receive the death penalty; counsel’s alleged failure to ask witnesses questions posed by him; and counsel’s failure to inform him of the jury questioning which took place out of his presence. Defendant stresses that his lawyer chose not to respond to the above allegations when made, in part, before the court and that the court was forced to explain jury waiver to defendant because his counsel failed to do so. These allegations were first made on the day the case was set to go to trial.

To sustain a claim of ineffective assistance of counsel, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive him of a fair trial. Defendant must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.) The inquiry generally will not extend to exercise of judgment, discretion, trial tactics or strategy, however. (People v. Schmidt (1988), 168 Ill. App. 3d 873, 882, 522 N.E.2d 1317.) The accused is entitled to competent, not perfect, representation, and the fact that a defense tactic was unsuccessful does not retrospectively demonstrate incompetence. Schmidt, 168 Ill. App. 3d at 882.

Despite defendant’s allegations, the record reveals his counsel represented him for three years and he never before complained. A second defense lawyer also saw him five times in the months previous to trial. Being warned by counsel of the potential result of trial is not incompetence any more than suggesting alternatives to trial. Defendant did not reveal to the court what questions he wanted asked but stated, “[tjhey are not important, things I had asked you [the court], papers and stuff I asked for *** so I can read over it and stuff.” The court, after considering defendant’s complaint, found that defense counsel provided more than adequate competent representation. The trial record reveals that counsel presented numerous motions on defendant’s behalf, challenged prospective jurors during voir dire, vigorously cross-examined witnesses, argued a logical theory of defendant’s case and zealously represented defendant at the sentencing hearing.

The preceding considerations demonstrate that defendant was not denied a fair trial and there is no reasonable probability that the result would have been different with other legal representation.

No bases have been identified which would justify reversal of the judgment. Accordingly, the convictions and sentences must be affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    ISRAEL S., a Minor, by His Aunt, Deborah W. Owens, Plaintiff-Appellant, v. BOARD OF EDUCATION OF OAK PARK AND RIVER FOREST HIGH SCHOOL DISTRICT 200, COOK COUNTY, Defendant-Appellee.
    First District (6th Division)
    No. 1—91—1134
    Opinion filed September 25, 1992.

      Deborah W. Owens, pro se, and Susan Einspar-Wayne, both of Oak Park, for appellant.
    John A. Relias and James J. Zuehl, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This appeal involves the power of a school district to reject applications for tuition-free enrollment by children who are not residing with their natural parents. The trial judge upheld the “policy” (or rules) promulgated by the defendant, Board of Education of Oak Park and River Forest High School District 200, which was the basis of the defendant’s rejection of the application of the plaintiff, Israel S., to enroll in one of the defendant’s high schools. The plaintiff maintains that the defendant’s policy is contrary to State law; that he was denied due process and equal protection of the law; and that the defendant violated the Federal Civil Rights Act. 42 U.S.C. §1983 (1988).

On August 28, 1990, Deborah Owens, the plaintiff’s maternal aunt and a lawyer, filed a suit on the plaintiff’s behalf against the defendant in which she alleged the following. On August 20, 1990, the parents of Israel S. contacted Owens to tell her that Israel would be coming to reside with her permanently. Israel did come to reside with Owens shortly thereafter. Owens went to the defendant’s offices seeking to enroll Israel. She took a copy of her contract for a purchase of a home in Oak Park which was set for closing and transfer of possession on September 24, 1990; a copy of the plaintiff’s high school transcript; an immunization and health record; an “affidavit of residence” signed by the plaintiff’s father; an affidavit of residence signed by Owens stating that the transfer was not for school purposes; and a power of attorney signed by the plaintiff’s father, giving Owens complete educational and medical control over the plaintiff and appointing Owens his guardian “in the event one is needed.” Classes were due to start on August 27, 1990, and the plaintiff, who was a senior with plans to attend college, was unable to enroll in any public school. The defendant refused to allow the plaintiff to enroll on either a tuition or tuition-free basis.

The complaint asked that the defendant be enjoined from barring the plaintiff’s enrollment in the school on a tuition-free basis or on a tuition basis and for a determination that the plaintiff was a bona fide resident of Oak Park.

Concurrently with the complaint for injunction, Owens filed a motion for a temporary restraining order in which Owens swore to the following. She was told by the defendant’s residency director that the defendant’s rules required her to have legal guardianship of the plaintiff and to have a third-party professional or other governmental agency certify that Israel could not reside with his parents due to impossibility or extreme hardship and that, even if she did provide the defendant with a certification by someone else, the district “could determine that this third-party certification was insufficient.” When Owens informed the defendant’s director that she did not have legal custody or a third-party certification, she was told that she could not enroll Israel in the school.

Owens reminded the residency director that such restrictive policies had been ruled improper by Illinois courts and by the Illinois State' Board of Education. The director told her there was nothing he could do about it. She spoke to a member of the defendant’s law firm, who later informed her that the defendant continued to refuse the plaintiff’s enrollment.

Owens contacted the legal department of the Illinois State Board of Education (ISBE), which sent her various legal opinions and the ISBE’s recommended affidavit for establishing residency. An ISBE attorney also told her that the defendant could not exclude the plaintiff for the reasons ascribed and that he would tell that to the defendant’s attorney. On August 27, 1990, the ISBE lawyer told her that he did express the ISBE’s opinion to one of the defendant’s attorneys.

On August 27, Owens went to the defendant with various proofs of residency. After finally conferring with the residency director, she was told that he could not change the policy and allow her to enroll the plaintiff. He gave her more affidavits of residency on the defendant’s forms and told her that when the forms were returned, the defendant’s assistant superintendent would take the matter up with the defendant’s attorneys.

She returned with the notarized affidavits on the defendant’s forms and tendered them to the assistant superintendent’s secretary. Later that afternoon Owens spoke to the defendant’s attorney. He told Owens that he would ask the defendant to “consider allowing [the plaintiff] to attend school if she first tendered a filed petition for guardianship of a minor, and that this was all he was prepared to do.” (Emphasis in original.) Owens told the attorney that because school started the next day she had no choice but to file for temporary in-junctive relief. (As noted, she filed her complaint on August 28.)

On or about September 2, by agreement of the parties, the plaintiff was permitted to enroll on a tuition basis pending the outcome of the injunction complaint. Later, Owens tendered to the defendant an additional power of attorney, signed by both parents, giving Owens full “care, custody and control” of the plaintiff; a copy of the deed to Owens’ home; and an electric bill of Owens at the address in Oak Park. A representative of the defendant visited Owens at her home in Oak Park. Owens paid the defendant $1,050, which the defendant claimed was the amount of tuition due through September 30. Owens, however, was unable to make any additional payment. On October 12, the defendant informed Owens that unless she tendered by October 17 another payment of $1,050 plus $556 as an additional charge for the 31 days the plaintiff had already attended school, the defendant would order the plaintiff to be withdrawn from school. By letter, Owens requested a waiver of the payment until the injunction suit had been heard. The defendant did not respond to the letter but told the plaintiff on October 17 that he could not return the following day.

On October 22, Owens filed an amended motion for a temporary restraining order setting out what had transpired between September 2 and October 17. Judge Richard Curry entered a temporary restraining order permitting the plaintiff to attend on a tuition-free basis. Thus, according to the plaintiff, “he missed four school days, missed assignments and tests which could not be made up and suffered a loss in his grades, as a result.”

On November 14, Owens filed an amended complaint which claimed the defendant’s policy violated State law; the plaintiff was denied due process and equal protection of the law; and the defendant violated the Federal Civil Rights Act. Both sides filed motions for summary judgment. On March 18, 1991, the judge granted the defendant’s motion for summary judgment.

We have been informed that the plaintiff subsequently tendered a “third-party certification” which was accepted by the defendant, and that the plaintiff completed his last year of high school. We have also been informed that the district seeks tuition from October 1 through March 1, 1991, of over $7,000 and refuses to refund the tuition previously paid, that is, the sum of $1,050.

The policy which the trial judge upheld and upon which the defendant relies provides, in part, as follows:

“As used in this policy, the term ‘parent’ includes a natural or adopted parent -with legal custody of the student and also a legal guardian of the student with legal custody, provided that the legal guardianship has not been established solely for the purpose of the student’s attending school in the district.
* * *
If a student under 18 years of age resides in this district with a person other than a parent, and parental incapacity or other circumstances render it impossible or an extreme hardship for the student to reside with a parent, the student may attend the school without payment of tuition. A written statement from a third-party professional who is qualified to provide information regarding parental incapacity or extreme hardship is a prerequisite for that consideration. The Superintendent/ Principal will determine whether such a statement is sufficient.”

Reduced to its essentials the policy provision in issue spells out, first, what applicants for school enrollment must show and, second, how they must show it.

A legal guardian is a parent within the meaning of that section of the policy in issue before us. We make this observation because there is uncertainty about the grounds for the refusal of the the defendant which were expressed to Owens. In the amended complaint, the plaintiff alleged that the defendant’s representatives told Owens that the plaintiff could be enrolled only if she established that she was the legal guardian and provided the defendant with a certification by a “third-party professional” of the plaintiff’s need to live with his aunt. The defendant’s answer is equivocal. The plaintiff later made the same allegation in his motion for summary judgment. The defendant did not take issue with the plaintiff’s allegation. In one answer to an interrogatory the defendant said that legal guardianship is not a prerequisite for enrollment. In any event, it is now the position of the defendant that its refusal was based on the inability of the plaintiff to establish parental hardship or to prove that the plaintiff was residing with a legal guardian.

The applicable law, recognized by both parties, has been set forth in simple terms: A child’s residence in a school district other than that in which his parents reside is sufficient to entitle the child to attend school tuition free in the district in which he resides so long as residence is not established solely to enjoy the benefits of free schools. Turner v. Board of Education, North Chicago Community High School District 123 (1973), 54 Ill. 2d 68, 294 N.E.2d 264, citing Ashley v. Board of Education (1916), 275 Ill. 274, 114 N.E. 20.

In order for the defendant’s policy to be construed as consistent with the pronouncement of our supreme court, we must say that children can never establish residency for any purpose other than to attend school in a particular district unless they show (1) they are residing with a legal guardian or (2) they are residing apart from their parents only because of parental incapacity or hardship. We decline to so say.

In Kraut v. Rachford (1977), 51 Ill. App. 3d 206, 366 N.E.2d 497, the appellate court noted that Illinois case law “illustrates a panoply” of instances when children have been found to have a residence different from their parents for educational purposes. They include (1) where the child is adopted; (2) where the child is placed with a family with no intention of withdrawal; (3) where the child’s parents have given up all control; (4) where the child’s parents live in another State and exercise no control over the child; and (5) where the child’s parents are migratory workers. Kraut, 51 Ill. App. 3d at 212-13.

The defendant has cited no case which would support its right to impose a hard-fast rule such as is contained in its policy. In our judgment, the defendant’s policy is an unauthorized abridgment of the general principle enunciated in Turner and Ashley. In short, in promulgating its policy, the defendant acted beyond the power given it under Turner and Ashley.

Although not necessary to our decision, we also find that the defendant acted beyond its power when it provided that proof of parental hardship or incapacity may be established only by a statement from a “third-party professional who is qualified to provide information regarding parental incapacity or extreme hardship.” The term is so ambiguous that reasonable persons would have difficulty in determining who would be considered a “third-party professional” to the satisfaction of the defendant. In answer to our questions at oral argument, the defendant’s attorney suggested a clergyman or a social worker as examples of the “professional” to which the policy refers. He was unable to define the term any further for us.

The policy also sets no standards to govern the exercise of the defendant administrator’s discretion in evaluating the type of statement. The defendant’s answers to interrogatories illustrate the difficulty faced by applicants. Five persons submitted written statements that were determined to be unacceptable by the defendant’s superintendent. One letter was written by the parents’ attorney “who simply restated in the letter what the mother had told him.” The defendant said that this “was rejected because it failed to provide the objective unbiased, opinion of a third party who was qualified to provide that information.” (Emphasis added.) Another letter was written by a counselor of a church; and another was written by a physician in the division of child psychiatry of Cook County Hospital. The letter from the doctor was rejected because it “failed to specify that it would be impossible or an extreme hardship for the student to reside with his parent.” We infer that the administrator would not accept any “statement” from a “third-party professional” unless the administrator was satisfied that the third-party was a “professional,” that he was unbiased, and that he expressed an objective opinion that it would be impossible or an extreme hardship for the student to reside with his parent. Of course, the policy does not spell out those requirements. By these observations, we do not mean to express any opinion as to what steps a school administrator may take in investigating an application for tuition-free enrollment.

We are not unsympathetic to the problems facing administrators of school districts in determining the eligibility of children to a free education in their districts. But “[i]n most cases the question of residency is not complicated.” (Bowman v. Board of Education (N.D. Ill. Oct. 15, 1985), No. 84 — C—3911.) Indeed, a representative of the defendant visited Owens’ home for the purpose of investigating the claim that the plaintiff actually resided with Owens. Owens provided affidavits on forms that were given to her by the ISBE and later on forms given to her by the defendant. She established her blood relationship with the plaintiff. She provided affidavits from the plaintiff’s parents showing their financial difficulties; power of attorney from the plaintiff’s father giving Owens complete educational and medical control over the plaintiff; a copy of the plaintiff’s high school transcripts; an immunization and health record; and her own affidavit stating that the transfer was not for school purposes. Under all these circumstances, it was unreasonable to further demand of her a “certification” from some unspecified “professional.”

For these reasons, we conclude that the defendant’s policy was contrary to Illinois law and that summary judgment was improperly granted to the defendant.

The defendant maintains that the plaintiff’s complaint was properly dismissed because of failure to exhaust administrative remedies. The defendant’s policy provides that an adverse decision may be appealed by submitting a written request within 10 days of notification of the superintendent’s decision. A hearing on any appeal shall be conducted by a hearing officer or a committee appointed by the defendant which shall make a report of the hearing to the defendant. “The [defendant] shall attempt to schedule the hearing and render a decision within 30 days of receipt of the request for a hearing.” (Emphasis added.)

It is the general rule that a party aggrieved by an administrative decision ordinarily cannot seek judicial review without pursuing all available administrative remedies. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437.) The general rule, however, does not apply where a statute or administrative rule is attacked on its face (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223); or when it would be patently useless to seek relief before the local body (Northwestern University v. Evanston (1978), 74 Ill. 2d 80, 383 N.E.2d 964); or when pursuit of the administrative remedy would result in onerous delay. (Castaneda, 132 Ill. 2d at 309.) We believe those exceptions apply to this case and that the plaintiff was not required to exhaust the administrative remedy, such as it was, before filing his complaint.

In view of our holding that the policy violated State law, we need not discuss at length the plaintiff’s claim that his constitutional rights to due process and equal protection of the law were violated. With respect to the due process claim, the plaintiff relies on Kraut v. Rachford (1977), 51 Ill. App. 3d 206, 366 N.E.2d 497. That case is not factually apposite. In Kraut, a child had been permitted to attend a school on a tuition-free basis for one year despite evidence that he might not have been a resident in the school district. The court relied on Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2964, overruled in part on other grounds by Rust v. Sullivan (1991), 500 U.S. 173, 114 L. Ed. 2d 233, 111 S Ct. 1759. The Kraut court held that the actions of the school district in allowing the plaintiff to attend on a tuition-free basis during his freshman year and further allowing him to proceed to final registration for his sophomore year fostered an objective expectancy in his continuation of an interest which had been initially conferred by the school district. (Kraut, 51 Ill. App. 3d at 214.) The facts of the case before us vary markedly from Kraut. The defendant notified the plaintiff from the beginning that he would not be permitted to attend tuition-free unless he complied with the policy. Therefore, he could not have had an objective expectancy that he could remain in the school on a tuition-free basis. With respect to the equal protection claim, the case of Martinez v. Bynum (1983), 461 U.S. 321, 75 L. Ed. 2d 879, 103 S. Ct. 1838, refutes the plaintiff’s position.

The plaintiff’s last claim is that the defendant violated the Federal Civil Rights Act (42 U.S.C. §1983 (1988)) and seeks damages and attorney fees. The basis of the section 1983 claim is the plaintiff’s contention that he was denied equal protection and procedural due process of law. Because we hold that the plaintiff’s claims of a violation of the equal protection and the due process clauses are unfounded, we hold that the plaintiff’s section 1983 claim must also fail.

For these reasons, that part of the summary judgment upholding the district’s residency policy is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion. Those parts of the judgment denying the plaintiff’s claim that his constitutional rights of due process and equal protection of the law were violated and his claim that section 1983 of the Federal Civil Rights Act was violated are affirmed.

Judgment affirmed in part and reversed in part and remanded.

McNAMARA and RAKOWSKI, JJ., concur.

      We infer that March 1, 1991, represents the date that the defendant accepted the “third-party certification” from the plaintiff.

      We note that in Turner v. Board of Education, proof of legal guardianship alone was not sufficient to establish residence for school purposes. The defendant’s policy also recites that legal guardianship is not sufficient if it was “established solely for the purpose of the student’s attending school in the district.”

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Daniel McNamara was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER SAUNDERS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3410
    Opinion filed September 14, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Lester Finkle, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(a)(1)), armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)), and attempted rape (Ill. Rev Stat. 1983, ch. 38, par. 11 — 1(a)). He was sentenced to natural life on the murder conviction and an aggregate consecutive term sentence of 75 years’ imprisonment on the remaining convictions.

On appeal, defendant contends that the trial court erred when it denied his motion to suppress statements made to the police in violation of his fifth and sixth amendment constitutional rights. He also raises an issue regarding the sufficiency of the pleadings claiming the trial court erred when it allowed the new indictment (89 — CR-23714) to supersede the original indictment (87 — CR-8167), because prosecution of all the offenses except murder was barred by the period of limitations.

In addition, defendant maintains that the evidence was not sufficient to prove him guilty beyond a reasonable doubt on the offenses of armed robbery and attempted rape. Defendant also assigns as error the trial court’s imposition of a sentence of natural life without parole plus a consecutive term of 75 years’ imprisonment. We affirm defendant’s convictions and sentences.

Background

During the bench trial the victim’s daughter, Joanne, testified that on June 22, 1983, after she could not reach her mother on the telephone, she and her daughter came to the apartment and when no one answered, let herself in with an extra key. Joanne noticed the apartment was in a mess and also saw her mother covered with blood lying on the floor of the bedroom. A neighbor, Robert, hearing Joanne’s screams, came out into the hallway and summoned Joanne to find the janitor and call the police. Robert then entered the apartment and called the police himself. From the foyer of the apartment, he saw the victim lying on the floor of the bedroom.

The investigating police officers searched the apartment, photographed each room, lifted fingerprints, and inventoried several items, including articles of clothing, a bloodstained towel, iron, bent frying pan, and kitchen knife. The officers canvassed the apartment building and discovered that a young black male who called himself “Andy” was seen on June 21 and June 22, knocking on the doors of several apartments where he sought sponsors for a walk-a-thon. The State also presented the testimony of several residents who described the same teenager as the person who solicited money from them for a walk-a-thon.

The State also presented the testimony of Officer O’Neill, a latent fingerprint examiner who, after submitting an enhanced pencil drawing of the fingerprints found in the victim’s apartment, obtained a list of likely candidates whose prints were similar to those obtained from the Automated Fingerprint Identification System (AFIS). O’Neill stated that after receiving the AFIS list, he then pulled the fingerprint card of defendant and determined that those recovered from the victim’s apartment were also those of the defendant. O’Neill informed Detective Markham of the results of the examination on or about November 20, 1986. Markham then located defendant’s mother and discovered that defendant was living in California.

It was determined that defendant had been arrested in California on May 28, 1985, and was in custody and represented by appointed counsel. On December 3, 1986, Markham along with Detective Hood of the Chicago police department travelled to California and, along with police officer Gibson of Los Angeles, conducted an interview of the defendant about the murder in Chicago. At that time, defendant gave a full statement implicating himself. On December 5, 1986, defendant pleaded guilty to the charges in California and was sentenced to eight years’ imprisonment. On December 9, 1986, defendant allegedly called the Chicago police and questioned them about when he would be extradited to Chicago.

On June 9, 1987, the Chicago police took custody of defendant in California and brought him to Chicago, where he made an inculpatory statement before them that evening and again before Assistant State’s Attorney Norwell and a court reporter the following day. At trial, defendant’s statement was published into the record by Ms. Norwell.

According to the statement, at approximately 8 a.m. while on his way to school, defendant detoured to an apartment building at Dear-born Park. He knocked on several doors in the building; however, no one answered. He then knocked on the victim’s apartment door and asked her to sponsor him in a walk-a-thon. After she invited him into the apartment and questioned him about the program, defendant responded that she could “donate a few dollars, five dollars or so.” At that time, Ms. Totoni became upset and told the defendant he did not have to tell her the amount to give. She asked the defendant to leave and come back later.

Defendant became upset and after insisting upon the money, he refused to leave the apartment and pushed Ms. Totoni. Ms. Totoni then swung at the defendant and he responded by hitting her with his fists which caused her to fall into the foot ottoman in the living room. Ms. Totoni then, fighting and swinging, picked up a ceramic cup and hit the defendant on the shoulder, at which time the defendant took the cup from Ms. Totoni and began to hit her across the head. When Ms. Totoni scratched defendant, he bit her. She then ran and defendant followed. She ran to the bathroom and attempted to close the door. However, when defendant pushed open the door, Ms. Totoni picked up an iron and swung it at the defendant, at which time he grabbed the iron from her and repeatedly hit her with it about the head and face until she fell on the floor, “layed [sic] out but she wasn’t totally unconscious.” Although there was blood all over, defendant stated he then stabbed the victim in the neck with a knife.

Next, defendant searched the apartment for money, and after finding $700, he left the apartment, also taking a bottle of Jack Daniels alcohol. He placed his bloodstained shirt in the incinerator and put on a sweatshirt which he was carrying in a bag. Defendant then went home, took a bath, burned his pants in the incinerator and took the alcohol to the beach where he drank it with a group of friends. The next day, he purchased a car with the money.

It was agreed that defendant was born on January 17, 1967. It was also stipulated that defendant told a California employee that he arrived in California in October 1985, lived there until he was arrested on May 28, 1986, whereupon he remained in custody until June 9,1987.

The medical examination and findings were stipulated. The examination was performed on June 23, 1983, and the victim’s date of death was established as June 22, 1983. The cause of death was stab wounds to the neck, and cutting wounds and blunt trauma to the head and face, causing a skull fracture and hemorrhaging.

The trial court found defendant guilty of murder, home invasion, and armed robbery and although he was charged with rape, the trial court found him guilty of attempted rape. During the hearing in aggravation, several witnesses testified about defendant’s juvenile record, his criminal history and convictions in California. In mitigation, witnesses testified about defendant’s good behavior in the jail facility and about his family problems, which stemmed from a feeling of rejection by his father, the fact that he had been adopted, and his parents’ divorce.

The trial court ruled that defendant’s conduct was brutal, heinous and indicative of wanton cruelty making him eligible for a sentence of natural life without parole, as well as a consecutive term sentence.

Opinion

I

Defendant filed a pretrial motion to suppress the statements made to the Chicago police. As stated, the first statement was made on December 3, 1986, while defendant was in custody in Los Angeles for the charges of vehicular manslaughter, burglary, and grand theft auto, and the second and third statements were given to the police on June 9 and June 10, 1987, while he was in custody in Chicago, after being extradited from California to Illinois. The trial court stated that the first statement given in California was made in violation of defendant’s right to counsel; however, it found there was sufficient attenuation so that defendant’s later statements were not made in violation of his constitutional rights.

Because he was represented by appointed counsel in the California proceedings, defendant maintains that once he invoked his right to counsel to represent him in those proceedings, such invocation continued to apply to the later interrogation about the crimes in Chicago. Defendant argues that he invoked both his fifth amendment right to counsel, which applies to custodial interrogations, and his sixth amendment right to counsel, which attaches once formal criminal proceedings are initiated. See People v. Bryant (1990), 202 Ill. App. 3d 290, 297-98, 559 N.E.2d 930.

In People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334, the defendant was arrested and taken into custody on a rape charge. A public defender was appointed to represent the defendant on the rape charge. However, while he was in custody, defendant was removed to another area in the jail and questioned about an unrelated murder charge. First, defendant stated he did not know anything about the murder; however, he later admitted that he had participated in the murder. Following this oral statement, the assistant State’s Attorney read defendant his Miranda rights, questioned him further and obtained a written statement from him.

In addressing the defendant’s fifth amendment claim, the Martin court reviewed whether defendant was properly advised of his fifth amendment right to counsel, and, if so, whether he knowingly and voluntarily waived this right. Declining to apply Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, to the facts therein, the Martin court held that since defendant did not invoke his right to counsel either in response to the Miranda warnings or at any time during the questioning on the murder charge, the Edwards rule did not apply. Accord Butler v. McKellar (1990), 494 U.S. 407, 108 L. Ed. 2d 347, 110 S. Ct. 1212; People v. Hicks (1989), 132 Ill. 2d 488, 548 N.E.2d 1042; Bryant, 202 Ill. App. 3d 290.

Like the defendants in the foregoing cases, defendant here, while still in custody on the charges in California, was given his Miranda rights when the Chicago police questioned him about Ms. Totoni’s murder. Defendant not only waived his rights and thereafter implicated himself, he also called the Chicago police to inquire about the time of the extradition proceedings. After being brought back to Chicago, defendant again waived his Miranda rights on two additional occasions and gave a complete inculpatory statement to the police and the assistant State’s Attorney. The record reflects defendant understood the meaning of the Miranda rights and that he was aware of the nature of the interrogation. Based upon the totality of the circumstances, we conclude defendant knowingly, voluntarily, and intelligently waived his fifth amendment right to counsel when he was questioned about the Totoni murder in Chicago.

Even if we were to agree with the trial court’s finding here, in which the court suppressed the December statement given while defendant was in custody in California, which we find unnecessary to do, we would, however, agree that the June 9 and June 10 statements made by the defendant while he was in Chicago were sufficiently attenuated from the earlier statement to purge any taint. See Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

However, unlike the fifth amendment right to counsel, our courts have found that the sixth amendment right is limited to charges on which judicial proceedings have been initiated. Thus, as in the Bryant case, defendant’s argument here, that his previously invoked right to counsel extended to the interrogation about the Chicago murder, has little merit. The sixth amendment right to counsel has not been extended to provide counsel for a defendant during questioning on unrelated charges. Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.

Moreover, the specific question as to whether an accused’s request for counsel at an initial appearance on a charged offense constitutes an invocation of his fifth amendment right to counsel which precludes police interrogation on unrelated, uncharged offenses, and thus potentially taints the statements obtained as a result thereof, has been answered in the negative by a recent decision rendered by the United States Supreme Court. (See McNeil v. Wisconsin (1991), 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) In McNeil, the Court reiterated that once the accused’s sixth amendment right to have the presence of counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interrogation is ineffective. (McNeil, 501 U.S. at 175, 115 L. Ed. 2d at 166, 111 S. Ct. at 2207.) However, the court held the sixth amendment right to be offense-specific and stated that “[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, ‘ “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” ’ ” McNeil, 501 U.S. at 175, 115 L. Ed. 2d at 166-67, 111 S. Ct. at 2207, quoting United States v. Gouveia (1984), 467 U.S. 180, 188, 81 L. Ed. 2d 146, 154, 104 S. Ct. 2292, 2297, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.

Accordingly, based upon the foregoing analysis and authority, we conclude that defendant’s invocation of his right to counsel with respect to the charges pending in California did not bar admission of his statements regarding crimes committed in Chicago with which he had not been charged at the time he made the statements. Defendant gave the statements about the Totoni murder before his sixth amendment right to counsel had attached to the unrelated, uncharged offenses.

II

Defendant also filed a motion to dismiss all counts in the indictment except the murder count. In June 1987, defendant was indicted by a grand jury for armed violence, home invasion, armed robbery and the rape and murder of Elisa Totoni, all of which occurred on or about June 22, 1983. Defendant filed a motion to dismiss all counts of the indictment, except the murder count, for failure to comply with the period of limitation.

The trial court quashed all of the counts, except murder, under the 1987 indictment. However, it allowed the State to proceed on the second indictment that was returned by the grand jury on October 20, 1989, which realleged all prior counts except armed violence, and which stated the reasons why the State believed the period of limitation was tolled pursuant to the exceptions found in section 3 — 7 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 3— 7).

Defendant contends that except for specified offenses, i.e., murder, reckless homicide, treason, arson, or forgery, the law provides that prosecution for any offense, if it is a felony, must be commenced within three years after the commission of the crime. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 5(b).) Here, the incident occurred on June 22, 1983, and the original indictment was filed on June 16, 1987, more than three years after the incident. Thus, defendant asserts because the original indictment did not on its face list any exception to the period of limitation so as to toll the statute, the indictment was improper.

Section 3 — 5 governs the general time limitation on certain prosecutions. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 5.) Section 3 — 7 contains three exclusions from the period of the time limitation and allows for tolling of the limitation where: (1) a defendant has concealed himself within the State or has been absent from the State for the period during which the limitation is tolled; (2) a public officer has committed larceny of public funds while in office; and (3) proceedings are pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside. Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7.

Although the original indictment here was defective on its face because it alleged a date beyond the applicable three-year period of limitation and because it failed to allege facts which would toll the running of the period of limitation under an exception to the statute (People v. Strait (1978), 72 Ill. 2d 503, 381 N.E.2d 692), the trial court allowed the State to proceed on the subsequent indictment which alleged sufficient facts of information which would extend the period of limitation beyond three years.

It is well established that the period within which prosecution must be commenced does not include any period in which the defendant is not usually or publicly resident within the State. (Strait, 72 Ill. 2d 503, 381 N.E.2d 692.) Similarly, it is well settled that even where a conviction is reversed because of the insufficiency of the allegations in the indictment, the second indictment will not be barred by the period of limitation if it properly contains sufficient information therein. The rationale for this rule is based upon the statutory exclusion which mandates that the reversal of the proceedings (People v. Hobbs (1935), 361 Ill. 469, 198 N.E. 224) or the pendency of the prior proceedings (People v. Isaacs (1967), 37 Ill. 2d 205, 226 N.E.2d 38) tolls the running of the statute. In other words, in a prosecution under a second indictment, it is not necessary that the prior indictment charging the same offense, which may have been quashed or set aside, be valid to toll the running of the period of limitation. However, it is necessary that facts “ ‘be averred which invoke one of the exceptions contained in the statute.’ ” (Emphasis omitted.) See People v. Thingvold (1991), 145 Ill. 2d 441, 449, 584 N.E.2d 89, quoting Strait, 72 Ill. 2d at 504-05.

Here, the record indicates that the crimes occurred on or about June 22, 1983. Thus, the period of limitation in which to prosecute all of the offenses except the murder charge expired on or about June 21, 1986, unless one of the exceptions was applicable to toll the limitation period. The evidence demonstrates the period of limitation was tolled for one year and nine months while defendant was knowingly absent from the State (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(a)) and began to run again when he reentered Illinois on June 9, 1987. When the grand jury returned an indictment, albeit defective, on June 16, 1987, such filing again commenced to toll the period of limitation pursuant to section 3 — 7(b). (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(b).) In determining whether the initial indictment tolls the period of limitation with respect to the later indictment, courts are required to look at the purpose of the limitations statute, which is to provide notice to the defendant of the charges against him. (See United States v. Lytle (N.D. Ill. 1988), 677 F. Supp. 1370; People v. Yarbrough (1989), 179 Ill. App. 3d 198, 534 N.E.2d 695.) The record also reflects that the second indictment cited the tolling provisions of the Code.

Accordingly, since section 3 — 7 of the Code states, “The period within which a prosecution must be commenced does not include any period in which: *** (c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information *** is quashed or the proceedings thereon are set aside, or are reversed on appeal” (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(b)(3)), we conclude the trial court’s denial of defendant’s motion to quash the second indictment was proper.

Ill

Next, defendant challenges the sufficiency of the evidence to support his convictions for armed robbery and attempted rape. First, defendant argues that he was not proven guilty of armed robbery beyond a reasonable doubt because the evidence shows that he did not use any force or threat of force to effect armed robbery. Instead, he urges that the violence he asserted upon Ms. Totoni was in response to his anger against her for ordering him out of the apartment and that the taking of the property was after the fact and incidental to the use of force.

We believe defendant was properly found guilty beyond a reasonable doubt of armed robbery. The standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (See People v. Holmes (1990), 141 Ill. 2d 204, 565 N.E.2d 950.) A careful review of the record below in the light most favorable to the prosecution convinces us that a rational trier of fact could have found defendant guilty of armed robbery beyond a reasonable doubt. (See People v. Herrett (1990), 137 Ill. 2d 195, 206-07, 561 N.E.2d 1.) Here, the defendant approached Ms. Totoni and sought money for a walk-a-thon in which he was not a participant. Several witnesses testified that he also came to their apartments on different occasions to solicit funds for an alleged walk-athon. Defendant’s own statement revealed that Ms. Totoni was hesitant to give him any money, not even the suggested $5 or so. Yet, it was only after she refused to give the defendant money that he became angry, refused to leave the apartment and pushed the victim.

Although the statement established that defendant took the money from a place hidden in the apartment after he repeatedly hit and stabbed Ms. Totoni, and possibly after she already may have been dead, the statement also indicates that the victim did not intend or want to part with her money. We find that the necessary concurrence between the defendant’s use or threat of force and his taking of the money and alcohol gives rise to the offense of armed robbery under the statute. See People v. Williams (1987), 118 Ill. 2d 407, 415-16, 515 N.E.2d 1230; 2 W. LaFave, Substantive Criminal Law §8.11(e), at 452-54 (1986).

Our supreme court recently held that, in order to constitute an armed robbery, the property need not be taken directly from the person or within her presence. (People v. Blake (1991), 144 Ill. 2d 314, 319, 579 N.E.2d 861.) The record here supports the conclusion that even if the defendant took the money after the victim was dead or became angry and only decided to attack her after she asked him to leave, it makes no difference whether the purpose of using force against Ms. Totoni was as a means to kill, since such force recognizably was used as a means to take property. People v. Clemons (1989), 179 Ill. App. 3d 667, 672-73, 534 N.E.2d 676.

The evidence establishes that defendant had possession of the proceeds of a robbery, he fatally stabbed the victim before leaving her apartment with her money, the initial attack was provoked because of money, and force and violence were used against the victim. Accordingly, we conclude because the evidence is not so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt, his conviction on the armed robbery charge is sustained.

Similarly, we believe the record establishes that there was sufficient evidence for the trier of fact to find defendant guilty of attempted rape. It is for the trier of fact to determine the weight and sufficiency of the evidence, and the reviewing court should not substitute its judgment for the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398.

Defendant here was charged with rape but convicted of attempted rape. Based upon his inculpatory statement, “I went at her to have sex with her,” coupled with the physical evidence of injury to the victim’s vaginal area which was obtained from the autopsy, we believe the evidence sufficiently establishes defendant had the intent to commit rape and that he did an act which constitutes a substantial step toward the commission of a rape. See People v. Costello (1992), 224 Ill. App. 3d 500, 586 N.E.2d 742.

Accordingly, we conclude that after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt as to the charge of attempted rape.

IV

Last, defendant asks this court to vacate his sentences because they are excessive and because the trial court improperly determined that the murder constituted exceptionally brutal and heinous behavior indicative of wanton cruelty. The standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether that discretion was abused. (People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831.) We find no abuse of discretion by the trial court in sentencing defendant to natural life imprisonment without parole on the murder conviction.

In pertinent part, section 5 — 8—1(a)(1) of the Unified Code of Corrections (the Code) provides that “for first degree murder, *** if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty *** the court may sentence the defendant to a term of natural life imprisonment.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1).) In the present case, we believe the evidence was sufficient to establish that defendant’s killing of an elderly woman was exceptionally brutal or heinous, so as to permit sentencing him to a term of natural life imprisonment following his murder conviction (see People v. Nelson (1990), 206 Ill. App. 3d 956, 565 N.E.2d 123), despite defendant’s youth or his past history of drug use. The trial court also took into consideration the circumstances of the offense and defendant’s history of prior criminal violations and convictions. See People v. Adams (1990), 195 Ill. App. 3d 870, 553 N.E.2d 3.

The evidence indicated that Ms. Totoni was unarmed and defenseless and did not provoke defendant’s behavior. The record reflects that Ms. Totoni was an elderly woman who was unable to ward off the advances and attacks upon her person by a 16-year-old healthy male. After defendant hit and repeatedly beat the victim about her head and face with his fists and other household items, including a frying pan and an iron, he attempted to rape her. Further, while Ms. Totoni lay unconscious and covered with blood, defendant took a kitchen knife and stabbed her in the neck.

Accordingly, we find the defendant’s sentence to natural life was not excessive since the murder by beating and stabbing of an elderly woman after an attempted rape was heinous behavior indicative of wanton cruelty.

Section 5 — 8—4 of the Code, governing the imposition of consecutive sentences, requires, on review of the record, a determination as to whether the sentencing judge was convinced in light of all the facts and circumstances before him that the consecutive term was necessary for the protection of the public. (People v. Peebles (1984), 125 Ill. App. 3d 213, 465 N.E.2d 539.) The court may impose a consecutive term sentence if it is of the opinion that such a term is required to protect the public from offenses which were committed as part of a single course of conduct only where “one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).

However, section 5 — 8—4(b) states “[t]he court shall not impose a consecutive sentence except as provided for in subsection (a) unless” it takes into consideration “the nature and circumstances of the offense and the history and character of the defendant.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).) As stated, we have reviewed the record below. We find that the consecutive term sentences imposed on ■defendant for armed robbery, home invasion, and attempted rape were not an abuse of the trial court’s discretion in light of defendant’s prior history, the calculated and premeditated manner in which he sought out the victim and the manner in which he attacked her. Even were we to agree with defendant’s contention that his criminal objective remained unchanged throughout the home invasion, by taking her property, by repeatedly beating and stabbing the victim, and by attempting to rape Ms. Totoni, the defendant also inflicted severe bodily harm upon her. Thus, the consecutive sentences were properly imposed here. See People v. Knight (1985), 139 Ill. App. 3d 188, 486 N.E.2d 1356.

In addition, the record adequately indicates the need to protect the public from further criminal conduct by the defendant. Based upon his background, his propensity for violent behavior, and the circumstances under which defendant attacked his victim, the trial court could have rationally concluded the circumstances were likely to recur. (See People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001.) As stated previously, the evidence indicated defendant without provocation attacked an elderly victim in her home.

Accordingly, because the incident here involved repeated beatings and injuries to the victim and a subsequent stabbing even after it appeared to the defendant she was already unconscious, we conclude the trial court was well within its discretion to impose the consecutive term sentences upon the defendant to protect the public from further criminal conduct by him.

Moreover, the aggregate of the consecutive sentences imposed, which was 75 years, did not exceed the sum of the maximum terms authorized under the statute (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 2), which provides that the aggregate of consecutive sentences shall not exceed the sum of the maximum terms for two most serious felonies involved. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(c); see also People v. Woods (1985), 131 Ill. App. 3d 51, 475 N.E.2d 589; People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.) The sentences are affirmed.

Affirmed.

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