author: JUSTICE MAAG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD SHANKLIN, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0085
    Opinion filed September 16, 1993.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE MAAG

delivered the opinion of the court:

After a jury trial, the defendant, Reginald Shanklin, was convicted in the circuit court of St. Clair County of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)) and was sentenced to 20 years’ imprisonment.

The issues raised on appeal are whether:

(1) the trial court erred in refusing to suppress the in-court identification of defendant by the 12-year-old victim where the in-court identification was based upon a suggestive lineup;
(2) the trial court erred in denying defendant’s motion to suppress evidence seized during an illegal search of defendant’s home; and
(3) the trial court erred in allowing the jury to hear inadmissible hearsay, thus denying defendant a fair trial.

The 12-year-old victim, E.W., testified that on the evening of April 11, 1991, she followed her 15-year-old sister, R.W., and R.W.’s friend, Tomika. The older girls were walking to Tomika’s home. The defendant was standing in front of Daisy’s Flower Shop and engaged E.W. in conversation. Defendant asked E.W. if R.W. was her sister and whether E.W. would give R.W. his telephone number. When E.W. answered in the affirmative to both questions, the defendant went into a neighboring gray and white house with a blue roof and returned with a piece of paper.

The defendant, at E.W.’s request, placed the paper on the ground and walked away. E.W. picked up the paper, and as the defendant rushed toward her, she attempted to flee by running into the street. E.W. testified that the defendant grabbed her by the back of the neck, slapped her because she struggled, and forced her into the gray and white house near Daisy’s Flower Shop.

E.W. noticed that the house lacked a screen or storm door over the brown front door. The first room she entered contained a couch, and the second room had no furnishings except two large red pillows, carpeting, and a sheet over the window. The third room contained some blankets and miscellaneous items but no furniture.

E.W. testified that the defendant obtained a blanket, rope, and a roll of gray tape from the contents of the third room. He spread the blanket on the floor in the room with the red pillows and instructed E.W. to be seated on it. He placed the gray tape over her mouth. He ordered E.W. to remove her clothing, and he removed his own. The defendant then penetrated her vagina with his penis.

During the assault someone knocked on the front door. The defendant stopped, got up, and got dressed. He told E.W. to dress, and after looking out the front door, he pushed E.W. out of the house. E.W. ran all the way home and reported the assault to her mother. The mother immediately contacted the East St. Louis police and took the child to the hospital. Before E.W. was taken to the hospital, R.W. questioned her sister regarding the identity of her attacker and the location of the assault.

R.W. testified that she had not known that E.W. was following her. R.W. related that on the day before the assault she had talked to a boy at Daisy’s Flower Shop and that boy had asked her her name and where she lived. She had told the boy her name but refused to tell him where she lived. She observed the boy enter a gray and white house with a brown door two doors from Daisy’s on the same side of the street.

R.W. testified that E.W., before being transported to the hospital, described her assailant as being dark and tall and sporting a high-low haircut. E.W. also told R.W. that the assault had occurred near Daisy’s Flower Shop. R.W. immediately thought of the boy who had approached her the day before. She directed the police to a gray and white house at 1336 Market where she had observed the boy she spoke with the day before the assault. The police officers knocked on the door at 1336 Market and asked the defendant to walk out onto the porch. R.W. identified the defendant as the same person that had approached her the day before.

Detective James Mister testified that on April 11 he and Inspector Lester Anderson were directed by R.W. to 1336 Market. Detective Mister testified that after R.W. identified the defendant as being the boy she spoke with the day before, and observing that the defendant matched the description E.W. had given of her assailant, the detective radioed the police station and asked E.W. to describe the house where she was assaulted. Detective Mister testified that the detectives could see from the porch that the furnishings of the gray and white house located at 1336 Market matched E.W.’s description of the location of the assault. Detective Mister testified that from the porch he could see red pillows against a back wall of the bedroom. E.W. described her assailant as having a “high-low haircut” and having been dressed in a hooded sweatshirt and sweatpants which, according to Detective Mister’s testimony, was the style of defendant’s hair and the type of clothes the defendant was wearing.

The defendant was placed under arrest and handcuffed. The police officers entered the house, and once inside, they saw a yellow blanket in another room. They searched the house, but could not find any additional items. A crime scene technician arrived and checked the pillows and blanket into evidence. No one else was present in the house. The defendant did not give the detectives permission to look around, but neither did he object. He did not sign a consent to search his home. At trial the crime scene technician identified the red pillows and yellow blanket as the items he took from defendant’s home. They had not been examined by a forensic scientist. He also stated that he did not think that the pillows could be seen from the front porch of the home, although he was uncertain.

At the time of defendant’s arrest, Detective Sandy Muckenstrum was interviewing E.W. Detective Muckenstrum testified that subsequent to the interview, she placed E.W. in her automobile and asked the child to direct her to the place where she was assaulted. E.W. directed Detective Muckenstrum to 1336 Market. Detective Muckenstrum located defendant’s wife, and with her permission together they entered and searched 1336 Market on April 13. Detective Muckenstrum recovered a ball of rope or twine from the residence. Mrs. Shanklin testified at defendant’s trial that the red pillows could not be seen from the front porch.

After defendant’s arrest, he was transported to the East St. Louis jail. The following day, defendant was placed in a lineup with five other guests of the jail. E.W. viewed the lineup and identified defendant as her assailant.

On August 5, 1991, defendant filed motions to suppress the physical evidence seized from his home and the lineup identification. At the suppression hearing held on September 6, 1991, Detective Muckenstrum testified that the defendant was the only lineup participant with a high-low haircut, wearing a hooded sweatshirt and sweatpants. The motion to suppress the lineup identification of defendant was granted, but defendant’s motion to suppress the physical evidence seized from defendant’s home was denied.

On September 4, 1991, the State filed a motion for admission of hearsay evidence of the commission of a sexual act on a child under the age of 13, pursuant to statute (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10). The trial court ordered a hearing to determine the circumstances under which E.W.’s statements were made. The hearing was held on September 9, and the trial court limited E.W.’s mother’s testimony.

The defendant did not take the stand. The jury heard medical and forensic evidence that semen was found in E.W.’s vagina and that defendant by virtue of his blood type could have contributed the seminal material.

The defendant argues that he was denied a fair trial because the trial court erred in allowing the victim to identify the defendant at trial subsequent to a suggestive lineup at which the victim identified the defendant as her assailant. The State responds that the defendant failed to raise this issue in his post-trial motion and, therefore, the issue is waived. The State relies upon our supreme court’s decision of People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131, which holds that to preserve alleged errors, the errors must be both objected to at trial and raised in a post-trial motion.

In his reply brief, defendant raises for the first time the issue of the plain error rule’s application (134 Ill. 2d R. 615(a)). In People v. Szabo (1986), 113 Ill. 2d 83, 94, 497 N.E.2d 995, 999, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330, the supreme court described the plain error rule as a narrow and limited exception to the general waiver rule. The purpose of the plain error rule is to correct serious errors of such magnitude that the accused was denied a fair trial. (People v. Sommerville (1990), 193 Ill. App. 3d 161, 171, 549 N.E.2d 1315, 1323.) The doctrine is applied in criminal cases only if the evidence is closely balanced or the alleged error is so serious that it deprives a defendant of a fair trial. (Sommerville, 193 Ill. App. 3d at 171, 549 N.E.2d at 1323.) Unfortunately, defendant failed to raise the argument of the plain error rule’s application until his reply brief, in violation of Supreme Court Rule 341(e)(7), which provides that “[pjoints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (134 Ill. 2d R. 341(e)(7).) Supreme Court Rule 341 is made applicable to criminal appeals by Supreme Court Rule 612.134 Ill. 2d R. 612.

Even if we were to reach the merits, we note that defendant’s position is groundless. Our independent examination of the record reveals neither a close balance of the evidence nor any obvious prejudice that would merit departure from the general waiver rule (134 Ill. 2d R. 341(e)(7)). See People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

In People v. McTush (1980), 81 Ill. 2d 513, 518, 410 N.E.2d 861, 865, the supreme court held that where a lineup has been found to be impermissibly suggestive, a witness may still be permitted to make an in-court identification where it is established clearly and convincingly from the totality of the circumstances that the witness is making the identification based upon memory of the crime. The court enumerated factors to be considered which include: the witness’ opportunity to view the perpetrator at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the perpetrator; the level of certainty demonstrated by the witness at the confrontation; the length of the time between the crime and the confrontation; and any acquaintance with the suspect prior to the crime. McTush, 81 Ill. 2d at 521, 410 N.E.2d at 865.

The record reveals that the State established clearly and convincingly an independent origin for E.W.’s in-court identification of defendant as her assailant. At trial, E.W. testified as to her recollection of the events before, during, and after the sexual assault. E.W. extensively testified as to her opportunity to view and observe the assailant while they spoke on the sidewalk, after he forced her into the house, and during the sexual assault. With respect to the witness’ degree of attention, the record reflects that E.W. gave extensive descriptions of the house and the furnishings of the house where the sexual assault took place. E.W. further gave a consistent description of the assailant to her mother, sister, and police and at trial. From the record it does not appear that E.W. was uncertain of her in-court identification of the defendant as her assailant. Lastly, the trial took place five months after the sexual assault. Accordingly, we believe that the trial court did not err in denying defendant’s motion to suppress E.W.’s in-court identification of the defendant.

Defendant also alleges that the trial court erred in denying his motion to suppress the physical evidence, consisting of a yellow blanket and two red pillows, which were seized from his home without a warrant. The State admits in its brief that the record does not reveal any exigent circumstances requiring the police officers to enter defendant’s home without a warrant. The State argues that the “inevitable discovery exception” to the exclusionary rule as recognized in Nix v. Williams (1984), 467 U.S. 431, 444, 81 L. Ed. 2d 377, 387, 104 S. Ct. 2501, 2509, is controlling.

The inevitable discovery exception to the exclusionary rule provides that where the record shows by a preponderance of the evidence that the challenged information or evidence would have been ultimately or inevitably discovered by lawful means, the evidence is admissible. (Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.) For the inevitable discovery doctrine to apply, three criteria must be met: (1) the condition of the evidence must be the same when found illegally as it would have been when found legally; (2) the evidence would have been found by an independent line of investigation untainted by the illegal conduct; and (3) the independent line of investigation must have already begun when the evidence was discovered illegally. People v. Winsett (1991), 222 Ill. App. 3d 58, 69, 583 N.E.2d 589, 596, rev’d on other grounds (1992), 153 Ill. 2d 335, 606 N.E.2d 1186.

The defendant contends that the inevitable discovery exception is inapplicable because the third factor as outlined above is absent. Defendant argues that no independent “legitimate search” had begun at the time the red pillows and yellow blanket were seized by the police, and therefore, the physical evidence should have been suppressed. We note that an independent “legitimate search” is not required, and it is apparent from the record that an independent line of investigation, as required, had begun at the time the police officers seized the red pillows and yellow blanket.

E.W. was being interviewed by Detective Muckenstrum at the time the other officers arrested defendant and seized the physical evidence from defendant’s home. Subsequent to the interview, Detective Muckenstrum placed the child in her automobile and asked the child to direct her to the house where she was assaulted. Detective Muckenstrum testified that E.W. directed her to 1336 Market. Detective Muckenstrum located defendant’s wife, and on April 13, 1991, with defendant’s wife’s permission, together they searched the residence at 1336 Market. Neither the defendant’s wife nor the defendant, who was in custody, was living at the residence during the intervening time. If the officers had not seized the yellow blanket and red pillows at the time of defendant’s arrest, they would have been discovered at the time of Detective Muckenstrum’s subsequent legal search. The trial court did not err in refusing to suppress the red pillows and yellow blanket.

Ignoring for a moment the inevitable discovery doctrine, we believe that even if it was error not to suppress the physical evidence seized, that error was harmless. No forensic testing was performed upon the items, and thus only the pillows and blanket themselves were introduced into evidence. Detective Mister testified that he observed the red pillows from the front porch. From that lawful vantage point, Detective Mister could and did testify that red pillows were observed in defendant’s home. The pillows’ actual introduction into evidence could not in our belief have significantly contributed to defendant’s conviction.

The yellow blanket is more troublesome as it was not observed by the police from a vantage point outside the home. Given E.W.’s inability to relate the color of the blanket on which the assault took place, as well as the fact no forensic tests took place on the yellow blanket introduced, and further, that E.W. was not asked to identify the yellow blanket, we believe that the introduction of the yellow blanket was also, at worst, harmless error. As defense counsel brought out during the trial, the yellow blanket was admittedly taken from defendant’s home. Yet that was the only fact established regarding the yellow blanket.

Lastly, defendant contends that he was denied a fair trial because R.W. was allowed to testify as to the description E.W. gave of her attacker and further was allowed to testify to the alleged conclusion that defendant was the assailant. Defendant argues first that the statements were inadmissible as hearsay and prior consistent statements and, second, that R.W.’s conclusion that defendant was the assailant intruded upon the ultimate issue of fact presented to the jury, namely, whether defendant was the assailant.

While it is true that “[hjearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted[ ] and is generally inadmissible unless it falls within an exception” (People v. Lawler (1991), 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899), such an exception is present in the case before us. In his brief, the defendant fails to recognize or address the statutory exception allowing the admission of hearsay evidence of the commission of sexual acts on children under 13 years of age. (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10.) The statute provides:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:
***
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10.)

Prior to trial, the State made a motion for admission of hearsay evidence pursuant to this statutory exception. After the required hearing, the trial court granted the motion; the court only limited the content of E.W.’s mother’s testimony.

Defendant argues that R.W.’s testimony regarding the description E.W. gave of her assailant does not fall within the statutory exception because it was not an identification, but rather a mere description, and the description was general in nature. “ ‘Clearly, an identification of the perpetrator of an “act” is a “detail pertaining” to that act.’ ” (People v. Priola (1990), 203 Ill. App. 3d 401, 418, 561 N.E.2d 82, 95, quoting People v. Morton (1989), 188 Ill. App. 3d 95, 103, 543 N.E.2d 1366, 1371.) We see little distinction between an “identification” by a child victim and a “description” by a child victim. A description, like an identification of the perpetrator of an act, is a detail pertaining to that act. To hold otherwise would defeat the purpose of the statute and allow testimony in only those cases where the children are familiar with their assailant and able to identify the assailant.

Finally, the defendant contends that admitting R.W.’s conclusion that the defendant was the assailant intruded upon the jury’s role as fact finder. We disagree. Contrary to defendant’s assertions, the record does not reflect that R.W. decided, based upon E.W.’s description of the assailant and the location of the attack, that she knew E.W.’s assailant. Rather, the record reflects that R.W. led the police to the boy she had observed the day before who matched E.W.’s description and was observed in the vicinity of the location of the attack. We believe that R.W.’s testimony did not intrude upon the jury’s duty to determine if defendant was the assailant.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRI L. WILLOUGHBY, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0888
    Opinion filed September 17, 1993.
    Rehearing denied October 14, 1993.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Douglas E. Dusek, Special Prosecutor, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Terri Willoughby, was convicted by a jury of the offense of first-degree murder. The circuit court entered judgment on the jury’s verdict, and following a hearing on defendant’s post-trial motion and sentencing, the court sentenced defendant to 30 years’ incarceration. Defendant appeals. We affirm.

On appeal, defendant raises three main issues: (1) that the court erred in denying her motion to suppress statements, (2) that the State unconstitutionally exercised its peremptory challenges to exclude blacks from the jury, and (3) that she was denied a fair trial when the court admitted evidence of another crime, as it had no probative value and was highly prejudicial. In the defendant’s first issue regarding her motion to suppress statements, she presents the following three subissues: (a) that her statements were made pursuant to an illegal arrest, thereby tainting her statements to the police, (b) that her statements were elicited by police interrogation after she had exercised her right to have counsel present, and (c) that without her confession the evidence was insufficient to prove her guilty beyond a reasonable doubt. In order to consider defendant’s contentions regarding her confessions, we must consider the evidence presented at her suppression hearing and at trial, for in reviewing the propriety of the court’s rulings on the admissibility of defendant’s confessions, a reviewing court may also consider the evidence adduced at trial. People v. Case (1991), 218 Ill. App. 3d 146, 577 N.E.2d 1291.

With the exception of Special Agent Clarence Banks, all of the witnesses who testified at the hearing on the defendant’s motion to suppress also testified at trial. Senior Agent Craig Koehler from the Illinois State Police, Division of Criminal Investigation (DCI), testified that on September 7, 1990, around 9 or 9:30 a.m., he and Special Agent Brueggemann went to the residence of Hattie Haney (Hattie) to investigate her murder. Koehler observed that only one room in the house had been ransacked, the southwest bedroom. This evidence led Koehler to believe that the murder was committed by someone who had knowledge of where Hattie kept her money.

Koehler left Hattie’s residence shortly before noon and went to defendant’s residence, whose backyard was adjacent to Hattie’s backyard, separated only by an alley. Defendant was not at her home, but her “mother-in-law,” Louise Keith, was at defendant’s residence. Louise told Koehler that she had seen defendant at the house of defendant’s sister, Teresa, that morning. Louise and defendant had fought over possession of the car of Louise’s son (defendant’s common-law husband) and over money owed to Louise by her son, which defendant had taken from Louise’s son. Louise told Koehler that, after the argument, defendant took a gun out of the car and some boxes out of the trunk, ran behind her sister’s house, and threw these items into the weeds.

While at defendant’s home, another of defendant’s sisters, Valerie Hych, defendant’s aunt, and a cousin also arrived. Agents Kuba and Snoke also came to defendant’s home while Koehler was still there. These agents told Koehler about their interview .with defendant’s “husband” and that the information obtained from defendant’s “husband” verified what Koehler had learned from Louise. Koehler testified that the reason the police wanted to interview defendant was because defendant was a neighbor and friend of Hattie; because of a home invasion which had occurred at Hattie’s home on June 28, 1990, in which defendant was also involved; and because of the information Koehler had obtained from Louise regarding her fight with the defendant and the removal of items from defendant’s car which were thrown behind defendant’s sister’s house.

Koehler explained the significance of the prior home invasion of Hattie’s residence. Koehler had interviewed Hattie at the time of the home invasion, and he stated he suspected defendant of being involved in that crime even though she claimed to be a victim. Koehler stated that his investigation of the home invasion revealed that defendant had come to Hattie’s home at about 5:30 a.m. to use the telephone to make a doctor’s appointment. Defendant was about six months pregnant and was not feeling well. After making the phone call, defendant left the house through the back door to get some medication she needed from her car. Defendant then returned to Hattie’s home to take the medication instead of going to her own home, even though defendant lived behind the victim. Defendant and Hattie talked a few minutes, and as defendant went out the back door, a black man pushed defendant back inside the house. The man took defendant’s billfold and asked Hattie if she had any money. When Hattie said she did not, the black man threatened to harm Hattie and defendant, so Hattie said she would give him her money. Hattie went to the southwest bedroom and took $150 from a wallet on her dresser. After the man left the house, defendant tried to call the police from a neighbor’s house as Hattie’s phone had been ripped out of the wall at the time of the robbery. The neighbor did not respond to defendant’s knock so defendant returned to Hattie’s house. Hattie gave defendant a quarter to go to a pay phone to call the police. Defendant told the police that when she got into her car to go to a pay phone, she saw the man who robbed them get into a car. Defendant followed the car for a short distance and attempted to memorize the license plates. Defendant gave the police the license plate number, and when the license plate number was checked, it was found that there was no such license plate number registered. Defendant told the police that she had $320 stolen in the robbery, but Hattie told Koehler that defendant had told her that she had $50 stolen. Because of the discrepancy of the amount of money defendant allegedly had stolen during the robbery, because the license plate number given by defendant was not on file, because of the 5:30 a.m. call allegedly made by defendant to make a doctor’s appointment, and because of defendant’s return to Hattie’s to take medication when it was just as convenient for her to return to her home to take the medicine, Koehler suspected defendant’s involvement in the home invasion. However, defendant was not charged with this crime.

After leaving defendant’s home on the morning of September 7, 1990, Koehler and Brueggemann went to the apartment building of defendant’s sister, Valerie, in search of defendant. Koehler saw that defendant’s car was parked in the parking lot, and Valerie came out of the building and told Koehler that defendant was in Diane Howard’s apartment and that she would be down in a minute.

When defendant emerged from the apartment building, Koehler told defendant about Hattie’s death. He asked defendant if she would be willing to come to the police headquarters in Collinsville, Illinois, as they needed to find out what she knew about this crime. Defendant agreed to go with them. Valerie told the officers that she would drive defendant’s car to the police headquarters, and defendant agreed to this. En route to police headquarters, Koehler advised defendant of her Miranda rights. Koehler then asked defendant what clothes she had been wearing earlier that day, and defendant told him. Koehler asked defendant if she would give him the clothes that she had worn earlier, and defendant agreed to do so. Koehler asked defendant no other questions. Upon arriving at police headquarters, defendant’s car was secured inside the sally port.

Koehler and Brueggemann next accompanied defendant to her home to obtain the clothes she had been wearing. According to Koehler, he had returned defendant’s keys to her, and she opened the door of her home. Koehler and Brueggemann went inside the house with her and walked from the living room into the kitchen, where they waited for her to return with her clothes. No search was made of defendant's home, and upon retrieving her clothes, defendant again agreed to return to police headquarters to be interviewed. Koehler testified that defendant asked him what information she might have, and Koehler told her that because of her involvement in the previous home invasion and because she was a neighbor and friend of Hattie’s, they wanted to know if defendant had any ideas or information about her death.

Koehler, Brueggemann, and defendant arrived back at police headquarters at about 2:30 p.m. Upon arriving, defendant asked to talk to her attorney, Kevin Hoerner. Defendant gave Koehler Hoerner’s telephone number, and Koehler dialed the number and gave the phone to defendant. Koehler heard defendant tell Hoerner that the police wanted to talk to her about Hattie’s death since she was a neighbor of Hattie’s and that she was not involved in the crime. Defendant then handed the phone to Koehler and said Hoerner wanted to talk to him. Hoerner asked Koehler if defendant was going to be held overnight, and Koehler told Hoerner he did not know, as he had not talked to defendant yet and did not know what she may say. Koehler stated he asked Hoerner if it was okay to give defendant her Miranda warnings and, if defendant agreed, if it was okay for defendant to talk to them. Hoerner told Koehler that was fine and asked to talk to defendant again. Koehler then gave the phone back to defendant. Koehler denied that Hoerner advised him that his firm represented St. Clair County and that it would be a conflict of interest for Hoemer to represent defendant. After talking with Hoemer, defendant never asked if she could leave.

Koehler gave defendant her Miranda warnings a second time at about 2:50 p.m., after she got off the telephone. Either after defendant was read all of her rights or after she had been advised that she had the right to remain silent, defendant asked Koehler if she had to answer a question if she did not want to answer. Koehler explained to her that her rights remained throughout the interview, that she did not have to answer any questions, and that she could stop the interview at any time. Defendant then signed a rights-waiver form. Koehler took a written statement from defendant, which Koehler read back to her and which she signed at about 4:19 that afternoon.

In defendant’s written statement, which was read to the jury, she told Koehler and Brueggemann that she last saw Hattie about 1:15 p.m. on September 6, 1990. At that time, Hattie gave defendant some newspapers which Hattie saved for her, and Hattie also loaned defendant some money. Defendant’s common-law husband, Stanley Shannon (Stanley), got off work at about 3:30 p.m. that day, and because he had been paid, they went shopping with their two children. Eventually, defendant and Stanley and the children arrived at the housing projects in Centreville, Illinois, where they spent the evening. They returned home at about 10 or 10:30 that night. Stanley fell asleep, and defendant took her daughter to get a geography book from a friend’s house, stopped by her sister Teresa’s home, and returned home and finished cooking dinner. They ate dinner and then everyone went to bed at about 11:30 p.m. Defendant further stated in her written statement that she did not get up until about 6 a.m. the morning of September 7, 1990, when Stanley rose to go to work. Defendant drove Stanley to work but stopped by Teresa’s house on the way back and woke Teresa up.

While defendant was at Teresa’s house, Louise arrived there with defendant’s two children. Louise wanted to take Stanley’s car to him, and defendant got into an argument with her over this. Defendant told Koehler that following her fight with Louise, she reached under the driver’s seat, removed a black revolver she had borrowed from a friend, and stuck the revolver in the front of her pants since she did not have any pockets. Defendant left Teresa’s house and walked to the friend’s house to give the gun back to her. When defendant returned to Teresa’s house, her nephew, Juan, reconnected Stanley’s car as Louise had had someone “unhook” it so that defendant could not drive away. Defendant then drove her son and her two nephews to school. She returned home, changed her clothes, and went to Centreville to “Niecey’s” home since her sister Valerie, who also lived in the same apartment building in Centreville, was not at home.

Shortly after noon, Valerie came by Niecey’s apartment and gave defendant -Koehler’s card. Valerie told defendant Koehler wanted to talk to her and that defendant should call him. However, a few minutes later, Koehler and Brueggemann arrived, and defendant went outside to talk to them, whereupon she agreed to accompany the officers to Collinsville to talk to them about Hattie’s death.

Also in defendant’s written statement, defendant said she agreed to give Koehler and Brueggemann the clothes she had worn earlier and took them to her home to get the clothes. She further stated that she had never taken anything from Hattie’s home and that Hattie had never given her anything other than newspapers and money.

At the conclusion of defendant’s written statement, Koehler advised defendant that there were discrepancies between her written statement and what they knew had happened. Koehler testified that, at the time of defendant’s written statement, they had already learned from Louise that defendant had removed items from the trunk of Stanley’s car and thrown the items behind Teresa’s house, and they also knew from Stanley that defendant was not home and that Stanley’s car was gone when he got up to go to work that morning. Koehler told defendant that Brueggemann would tell her about the discrepancies, and then Koehler left the interview room for approximately 10 minutes. During that time, Koehler made a couple of phone calls and asked Agent Banks if he would sit in on the interview with defendant, which Banks agreed to do.

When Koehler returned to the interview room, he asked defendant if there was another story and she admitted there was. Defendant then made an oral statement, in which she stated that she had left her home at about 1 a.m. on September 7, 1990, after Stanley had fallen asleep. She ran into a man she knew as “Lowdown” (later determined to be Larry Sanders). Defendant told Koehler that she had discussed robbing Hattie’s house with Lowdown about a week before and that they again discussed robbing Hattie on September 7, 1990, in order to obtain money to purchase drugs. Defendant agreed to drop Lowdown off about a block from Hattie’s home and gave Lowdown a gun for the robbery. Defendant told Lowdown that Hattie kept her windows open in summer and that access into the house would be easy, that Hattie would be at home, as Hattie only left her house on Wednesdays and Sundays, and that Hattie kept her money in the back bedroom. When defendant dropped Lowdown off at about 4:15 a.m., she told him she would drive over to the apartments on 41st Street and park, which she did. A few minutes later, Lowdown came running up to the car with a “fist full” of $20 bills and a bag. Lowdown asked defendant to keep the bag of “stuff” he had removed from Hattie’s home for him. Defendant and Lowdown then took $200 of the money taken from Hattie’s home and purchased cocaine.

Defendant went to Teresa’s home at about 6:30 a.m., and at 8 a.m., Louise showed up at Teresa’s house. Defendant again reiterated that she and Louise fought over Stanley’s car, during which time someone called the police. Defendant told Koehler that she panicked, got the bag of items Lowdown had given her from the trunk of Stanley’s car, and ran behind Teresa’s house and threw the items in the weeds. Defendant told the officers that two of the items she retrieved from the trunk were a grey metal box with some papers inside and a wooden jewelry box. Defendant also threw a knife into the weeds as she saw that the knife had blood on it, and when she saw that, she knew that Hattie had been stabbed or was dead.

Defendant also told the police in her oral statement that Lowdown was the man who had committed the home invasion in June 1990. She admitted that she was involved in planning and committing the robbery. Defendant then agreed to take Koehler and Brueggemann to where she had thrown the knife, which was behind Teresa’s house. Defendant’s oral statement followed her written statement within 10 to 15 minutes. Koehler did not reduce defendant’s oral statement to writing at this time as it was beginning to get dark and they wanted to retrieve the knife from where defendant had thrown it.

On the way to Teresa’s house to find the knife, defendant told the officers she had lied about where the knife was and that the knife was actually in a trash can behind Niecey’s apartment in Centreville. Defendant directed Koehler and Brueggemann to the trash can behind the apartments. Because it was dark and the neighborhood was not a good one, Koehler did not want to endanger defendant’s or their safety by stopping with only two officers. Koehler radioed for assistance, and they proceeded to the Centreville police department. On the way to the Centreville police department, defendant again requested to talk to her attorney, Kevin Hoerner. The officers’ attempt to reach Hoerner by their car phone was unsuccessful. At the police station, defendant again tried two or three times to contact Hoerner, both at his office and at home, but she was unable to reach him. At the police station, defendant asked to use the bathroom, and she was granted her request. Following discussion at the police station, Koehler decided that they could not ask defendant any further questions, as she had asked to talk to her attorney and was unable to do so, and that to proceed with an interview would violate her rights. Koehler then placed defendant under arrest for Hattie’s murder at about 7:30 that evening, and no further questions were asked of defendant.

Koehler also testified that neither defendant nor Hoemer was ever told that she was a suspect in Hattie’s murder. Additionally, defendant was never placed in handcuffs or left alone after being picked up at 1:30 that afternoon. Further, at no time during her written statement did defendant ask to have an attorney present or to consult with an attorney, and she did not invoke her right to remain silent. Koehler testified that defendant was not coerced and that no promises were made to induce her statements. Koehler did not believe defendant to be under the influence of any drugs at the time of her statement. Even though defendant was eight months pregnant, she did not indicate that she was suffering any discomfort, and she did not ask for food.

After defendant was arrested and had left with Agent Brueggemann to go to St. Clair County jail, Koehler and Agents Banks and Morgan went to the trash can in Centreville to search for the knife. Their search revealed that the trash can was completely empty. Koehler notified another agent, Dennis Kuba, that the knife used in the murder of Hattie may be in the weeds behind Teresa’s house.

Charles Brueggemann, a senior agent with the Illinois State Police, DCI, also testified at both the hearing on defendant’s motion to suppress and at trial. He testified that he and Agent Koehler investigated the murder of Hattie Haney on September 7, 1990, and that he and Koehler had also investigated the home invasion at Hattie’s residence on June 28, 1990. Brueggemann’s testimony was essentially the same as Koehler’s as to the prior home invasion and as to his and Koehler’s investigation of Hattie’s murder and defendant’s questioning and subsequent arrest. In addition to Koehler’s testimony, Brueggemann testified that defendant’s demeanor in the car en route to the police headquarters in Collinsville was calm but concerned. Brueggemann did not believe defendant to be under the influence of any drugs when they picked her up, as her speech was coherent and she appeared to understand her rights. Brueggmann stated that during the taking of defendant’s written statement by Koehler, he left the interview room for a phone call.

Brueggemann further testified that when Koehler left the interview room at the conclusion of defendant’s written statement, he advised defendant of the discrepancies between her statement and other information they had received in the course of their investigation. Brueggemann told defendant that Louise had told the police that defendant had Stanley’s car at Teresa’s house, that Louise saw defendant with a weapon that morning, that Louise saw defendant remove items from the trunk of Stanley’s car and throw the items behind Teresa’s house, and that defendant had not been at her home that morning when Stanley awoke for work. Brueggemann also told defendant that he had learned, through the phone call received during her written statement, that among the items found behind Teresa’s house were documents with Hattie Haney’s name on them. Defendant then admitted that some of the information in her written statement was incorrect.

Brueggemann also testified that defendant did not ask to leave at any time during their questioning and that she did not tell them her attorney had said she was free to leave. Similarly, defendant was never told she could not leave. Brueggemann denied that Koehler told defendant that she would be arrested if she left. Defendant never told Brueggemann or Koehler that Hoemer could not represent her as he worked for the State and it would be a conflict of interest for him to handle her case. According to Brueggemann, defendant was never left alone.

The only other evidence presented by the State at the hearing on the motion to suppress was the testimony of Clarence Banks, another special agent for the Illinois State Police. He testified that he sat in on defendant’s interview at the police headquarters for about 10 or 15 minutes while Brueggemann questioned defendant about some of the details of the murder. While Banks was present, defendant did not ask for an attorney or invoke her right to remain silent.

Defendant presented the testimony of Valerie Hych and Anthony Hych both at the hearing on the motion to suppress and at trial. Valerie’s testimony at the two proceedings was that on September 7, 1990, she received a call from her aunt, who had received a call from her sister Teresa. Teresa asked her aunt to come to her house as defendant and Louise were involved in a fight. Valerie’s aunt picked her up and they went to Teresa’s house; however, defendant was not there when they arrived, but she returned to Teresa’s before Valerie left. Valerie next saw defendant at about 12:45 p.m., at Diane Howard’s apartment. Valerie’s apartment was in the same building as Howard’s apartment. Valerie was first told that defendant was not in Howard’s apartment when Valerie knocked on the door, but when defendant realized Valerie knew she was there, she talked to Valerie. Valerie gave defendant Koehler’s card, which she had gotten from him at defendant’s house earlier that morning, and told defendant that DCI wanted to talk to her.

Valerie was present when Koehler and Brueggemann picked defendant up in front of her apartment building. She drove defendant’s car to police headquarters and pulled it into the garage there. Valerie stated that when she did this, defendant walked over to her and asked her what the police wanted with her, whereupon Koehler told defendant she could not talk to Valerie.

Valerie testified that when she saw defendant that morning at Teresa’s between 8:30 and 9 a.m., defendant was “high.” She stated that defendant’s eyes were red and blurry and that her speech was slurred when she talked. Valerie did not know whether defendant had had any sleep the night before. Valerie further stated that defendant’s demeanor when she was high was the same as when she was not high, i.e., she was a fun, loving person. Valerie was aware that defendant sometimes stayed out all night when she got high.

Anthony Hych testified that he is defendant’s brother. He, too, saw defendant between 9 and 9:30 a.m. on September 7, 1990. That morning, defendant came to the house of Anthony’s girlfriend to obtain a key to his apartment, which he shared with his sister Valerie. According to Anthony, defendant was high, as her eyes were blurry and “bugged.” Anthony also stated that defendant acted normal when she was high.

Tony DuBerry, defendant’s cousin, testified at the motion to suppress that he had seen defendant about 8:30 to 9 a.m. on September 7, 1990. It was his opinion that defendant was high as her eyes were red and her speech was “dragging.”

The only other witness to testify at the motion to suppress was defendant. She also testified at trial. Defendant stated that on September 7, 1990, she lived behind Hattie Haney, and that their backyards were separated by an alley. Defendant had lived in this house for 13 years, and Hattie had been there the entire time. Defendant and Hattie began talking to each other over the fence when Hattie was outside working in her yard, which she did every day. The first time defendant was on Hattie’s property was when defendant wanted to buy a car belonging to Hattie’s grandson. After that, defendant went over to Hattie’s and talked with her about once a week. Defendant and Hattie liked each other, and Hattie told defendant quite a bit of history about the neighborhood. Defendant’s “husband,” Stanley, would talk to Hattie over the fence, and sometimes he gave Hattie vegetables out of his garden; however, neither Stanley nor defendant’s two children had ever been inside Hattie’s house.

Defendant explained that in February 1988, she began to borrow money from Hattie. At the time of Hattie’s death, defendant owed Hattie approximately $2,500. Defendant stated that she and Hattie had an arrangement regarding Hattie’s loans to her, as Hattie knew defendant and her children had been in a car accident and that defendant would be receiving a settlement for this accident. It was understood that when defendant received this money, she would repay Hattie.

Defendant testified at trial about the home invasion incident at Hattie’s on June 28, 1990. Her testimony about this was essentially the same as Agent Koehler’s. Defendant stated that on that date, she did not have a telephone. Defendant denied that she knew the man who committed the robbery. She also denied that she told Hattie how much money the intruder had taken from her. Defendant saw Hattie about 12 or 12:30 p.m. that same day and Hattie told her that the police wanted Hattie to press charges against defendant for the home invasion, but Hattie refused. Hattie also loaned her $42 at that time.

Defendant stated that she began using cocaine at the end of 1988 or early 1989, but that she did not use it every day. Defendant did not believe she was addicted to cocaine.

Defendant’s testimony about the events of September 6, 1990, corroborated Agent Koehler’s testimony. Defendant further testified that after her family went to sleep that night, she got up at about 11:45 p.m. and left the house. When she left, she went to 35th Street near B & B Liquors, where she ran into a girl named “Poochie.” She and Poochie smoked a “rock” they had bought. After dropping Poochie off by B & B’s, defendant then went to Tina’s house. Kensie and Tina’s brother were also there in addition to Tina. Defendant drank beer, smoked “dope,” and played cards with these people for the rest of the night. Defendant admitted that she and Tina left Tina’s house on two occasions during the night, once at about 12:45 a.m. and the second time at about 2 a.m., to go to the area by B & B Liquors to purchase some cocaine. On both occasions, they were gone for about 15 minutes only. After the second trip to B & B’s, a man by the name of Jeffrey, who lived across the street from Tina, came up to them. Defendant knew Jeff as she had been to Jeff’s house to buy cocaine on other occasions and she had “smoked” there. She knew that Jeff’s house was also a “crack house.” This night, Jeff was talking “crazy” and used “cuss words” and was “talking all silly and stupid and stuff.” Eventually, Kensie came out of Tina’s house and told Jeff to get off of Tina’s property.

Defendant left Tina’s house at about 6 or 6:30 a.m. on September 7, 1990. Tina told her it was about time for Stanley to leave for work and for defendant to get her children ready for school. When defendant left Tina’s house, Jeff again approached her and asked her to hold a package for him, a brown paper bag. Jeff put the bag in the trunk of Stanley’s car. Defendant did not look inside the bag, and Jeff did not tell her what was in there. Defendant said she had no idea that the bag came from Hattie’s house. Defendant attempted to find Jeff to give him the bag, but Jeff never returned, and defendant drove away.

Defendant testified that she next went to her sister Teresa’s house. There, she went into the bathroom and smoked a “joint” she had. Within 10 or 15 minutes, Louise arrived at Teresa’s with defendant’s children. Teresa told Louise that defendant was in the bathroom, and Louise came to the bathroom door and asked defendant to come out. Louise accused defendant of taking money that Stanley owed Louise, and defendant said she had and paid Louise the $80 owed.

Louise had Stanley’s keys to the car, and Louise went outside and started up the car. Defendant followed and stood behind the car so that Louise could not leave. Louise and defendant argued about the car, and defendant got the car keys away from Louise. Louise told someone to call the police. Defendant denied that she pulled a gun or a knife from the car but stated she did reach down to the floor of the car to get her set of keys which she had dropped. Defendant stuck the keys in the front of her pants as she had no pockets. Defendant admitted she opened up the trunk, took out the bag Jeff had given her, and went to the area behind Teresa’s house. She stated she dropped the bag and, when she did, papers fell out, so she picked the papers up and put them back in the bag. Defendant left the bag and walked back to Teresa’s.

Defendant also testified that her sister Valerie, her aunt, and her cousin came by Teresa’s house, as Teresa had called and told them that defendant and Louise were fighting. Defendant left Teresa’s after they arrived to take the kids to school. She then went home and changed her shirt, but she left again as she was afraid Louise might have called the Department of Children and Family Services (DCFS) as she had threatened to do, and defendant did not want to be at home if DCFS came by. Defendant went to Centreville to Niecey’s apartment. She got the key to her brother’s apartment from him and then went to his apartment and took a bath and changed clothes. After that she went to another apartment in the same building where Diane Howard lived, and she stayed there and smoked dope. While at Diane’s, Valerie came by. Defendant initially did not want to see Valerie, but she talked to her, and Valerie gave her Koehler’s card and said DCI wanted to talk to her about an “old white lady” who lived behind defendant and who had been stabbed. Shortly thereafter, Koehler and Brueggemann showed up at Diane’s apartment.

Koehler and Brueggemann asked her if she would be willing to come and talk to them about Hattie’s death, and she agreed. Koehler and Brueggemann did not tell her she was a suspect in the crime, and they did not tell her she was under arrest. Defendant said the police wanted her to come with them, “being a concerned citizen of Hattie Haney.” Defendant gave her car keys to Valerie and asked her to take the car to Stanley, but the police asked her to bring the car to police headquarters.

According to defendant, Koehler did not advise her of her rights while in the car. At the police station, defendant stated she got out of the police car and walked over to the car her sister was in and asked her sister what the police wanted. Defendant admitted, that she agreed to retrieve the clothes she had worn the night before, but, in her testimony, when they arrived at her home, Koehler had her keys and opened the door.

Defendant corroborated that when they arrived back at police headquarters, she asked to speak to her attorney, Kevin Hoerner, and that the police allowed her to do so. At the hearing on her motion to suppress, defendant stated that Hoerner first talked to Koehler before she talked to him; however, she did not so testify at trial. Defendant testified that Hoerner told her, at that time, that he could not represent her as he worked for the State’s Attorney’s office. Defendant admitted that Hoerner told her she was free to get up and walk out of the interview and that she did not have to say anything. Koehler also talked to Hoerner, and defendant heard Koehler say that they wanted to ask her some questions. Defendant did not hear Koehler ask Hoerner if it was all right for him to read her her rights. Defendant talked to Hoerner again after he had spoken to Koehler. Defendant stated that Hoerner said the police were not holding her against her will and that she could leave. When defendant got off the phone, she told Koehler that Hoerner said she could leave; however, Koehler said if she tried to leave she would be placed under arrest.

Defendant admitted that she signed the rights-waiver form and that she signed her written statement. She also admitted that she made a statement to Koehler, and that he read the statement to her, but that she did not look at the statement. Defendant stated that her written statement was initially written by Koehler on “plain paper,” but then he and Brueggemann left her alone for 20 or 25 minutes, and when they returned, her statement had been rewritten onto lined paper with her rights on it.

Defendant explained that she did not tell the police initially that she was out all night on the night of the murder as she felt she did not have to tell them, especially since her activities were illegal. She also did not tell the police about removing the bag from the trunk of her car that morning as, again, this would lead back to her illegal activities during the night. Defendant admitted that the police told her there were discrepancies between her statement and the statements of others.

Defendant denied that she made an oral statement to Koehler and Brueggemann. She testified that she did make a statement that she had gone over to a friend’s house on 44th Street and waited for the friend to come home, but the friend never showed up, and therefore, she went to another friend’s house on 40th Street. Defendant denied she told the police that she saw Lowdown on September 6 and 7, but said she saw Lowdown on September 5. According to defendant, Koehler and Brueggemann talked between themselves and concluded that since they had picked her up in Centreville, the knife had to be there. She denied she told the police she put the knife in the trash container, that she had a knife, or that she threw the knife in the weeds behind Teresa’s house.

When questioned about the knife introduced into evidence by the State as the possible murder weapon, defendant denied that she had ever seen the knife. She stated that Stanley’s fishing knife is only two to three inches long with a brown handle and that he usually kept it in a case in the trunk of his car.

Defendant admitted that she knew Marsha Gipson, a State witness, who was in jail with her in October 1990. Defendant stated that she kept her legal papers in a box under her bed while she was in jail and that she had police reports among them. According to defendant, Gipson was alone some of the time and had access to her papers. She denied she ever discussed her case with Gipson, as her attorneys had told her not to discuss her case while in jail.

On cross-examination, defendant admitted she gave the police a statement on July 3, 1990, regarding the first home invasion of Hattie’s residence. At trial, defendant testified that she was out all night on June 27 and 28, 1990, and that she stopped at Hattie’s to call her sister Valerie to see if she would watch her children after Stanley went to work. However, in her statement of July 3, defendant did not admit to being out all night, but she told the police she had driven Stanley to work and then drove to Hattie’s house before going home.

At trial, the following testimony pertinent to defendant’s confession, in addition to Koehler’s and Brueggemann’s testimony, was presented: Kevin Hoemer testified that he is a lawyer, but that he handles very little criminal work. Hoemer knew defendant as she is a personal injury client of his, and he is handling a car accident case for her. On September 7, 1990, at about 2 or 2:30 p.m., he received a call from defendant. Defendant told him she was at DCI Headquarters and that the police wanted to question her regarding a murder that had occurred the night before in her neighborhood. Hoerner stated that he told defendant he wished he could help her but that he had a conflict. Hoemer asked defendant if she was being held against her will or if she was there voluntarily. Defendant did not know, so Hoerner asked to speak to one of the officers.

When one of the detectives got on the phone, Hoemer asked him what defendant was there for, and the detective told him basically the same thing; “she had been brought in for questioning.” Hoerner stated that he told the officer that he did not represent defendant and that he could not do so since his firm sometimes represented the county. Hoerner could not remember if the officer asked him if it was okay to read defendant her rights. Hoemer then talked to defendant again. He told defendant she was free to leave, and he admitted he may have told defendant she did not have to say anything.

The remaining evidence presented at trial can be summarized as follows: Hattie Haney was found stabbed to death in her home at about 8:30 a.m. the morning of September 7, 1990. Her body was discovered by a Washington Park police officer, who went to Hattie’s home pursuant to a call from a neighbor of Hattie’s. The neighbor had noticed that Hattie’s front gate was unlocked and that her front door was open, an unusual occurrence. The neighbor also called Hattie’s home and received no answer. The neighbor knew that defendant was one of the few persons in the neighborhood whom Hattie allowed in her home.

The investigation of Hattie’s murder revealed that jewelry belonging to Hattie and documents with Hattie’s name on them were found behind Teresa Willoughby’s home that same day. A knife, identified as belonging to defendant’s common-law husband, Stanley, and with human blood on it, was found behind Teresa’s home the following day. Defendant’s fingerprints were on two of the documents recovered in the investigation.

The pathologist who performed the autopsy on Hattie testified that Hattie bled to death as a result of stab wounds to the chest, back, and neck. He also stated that the knife produced at trial could produce wounds consistent with the wounds inflicted on Hattie, i.e., a sharp edge on one side and a squared-off edge on the other side.

A cellmate of defendant’s at St. Clair County jail, Marsha Gipson, testified that defendant had told her “they” had murdered Hattie, since Hattie would recognize defendant. The reason Hattie was murdered was because defendant needed money to buy more cocaine. Gipson denied she was receiving anything in exchange for her testimony.

Defendant presented the testimony of numerous witnesses at trial, much of which was insignificant. However, Kensie Allen, Tina Munoz Allen, and Jonathan Pickett provided alibi testimony for defendant for the night of the murder. All three witnesses testified that defendant came by Tina’s home about 12:30 or 1 a.m. on September 7, 1990. When she first arrived, defendant and Tina left the house for about 15 minutes to go buy some cocaine. Defendant and Tina left the house for a second time around 2 a.m., to again buy more cocaine. The rest of the time, the four of them played cards, and Kensie, Jonathan, and defendant drank beer and smoked crack cocaine and marijuana.

All three testified that when Tina and defendant returned after their second trip to buy drugs, they were approached by Jeffrey Williams, who lived across the street. Kensie came out of the house at that time and told Williams to leave. Defendant left Tina’s house at about 6:15 or 6:30 a.m., and when she did, Williams again approached her. Kensie and Tina testified that Williams had a brown paper bag in his hand and that Williams gave the bag to defendant.

None of the three alibi witnesses ever told the police about defendant being with them the night of the murder, although Tina testified she went to the police station to do so and was told that she should go talk to defendant’s attorney. It was also brought out by the State that all three witnesses had a previous criminal conviction.

Defendant also called two forensic scientists to testify. Cheryl Cherry, a trace chemist for the Illinois State Police, testified that she examined the knife found behind Teresa’s house for paint. She compared the paint found on the knife to the paint on the metal box also found behind Teresa’s. She found that the paint on these two items was similar in color, but that there were dissimilarities in their chemical reaction. She stated in her report: “[D]ue to previous analysis by other laboratory employees, I could not come to a definite conclusion as to the similarity or dissimilarity of the paint.” She explained that prior testing had possibly contaminated the knife and the box.

Gerald Warner, a fingerprint specialist, testified that he had been provided the fingerprint standard of Larry Sanders (Lowdown), but that these prints did not match any latent prints at Hattie’s home.

After considering the foregoing evidence, the jury found defendant guilty of first-degree murder. Having set forth this extensive statement of facts, we now address defendant’s contentions on appeal.

Her first argument is that the court erred in denying her motion to suppress her statements as her confession was obtained following an illegal arrest or illegal detention and, therefore, her confession was tainted. She argues that while she initially went with the officers voluntarily, her detention soon became illegal as she was not free to leave after the officers picked her up and they had no probable cause to arrest her at that time. She contends that her position is supported by the following finding in the circuit court’s order denying her motion to suppress:

“The questioning resulting in the statement made by defendant was in a custodial setting requiring the police to give defendant proper warning of her constitutional rights.under Miranda. The police did in fact comply with the requirements of Miranda before questioning defendant.”

Defendant argues that the court’s statement that she was in a “custodial setting” reveals that the court found her to be under arrest at the time of her interrogation. Thus, she contends that her confessions should be suppressed as her statements were tainted by the illegal arrest. We disagree.

As the supreme court held in People v. Lucas, “In determining whether statements were made in a custodial setting, a court must consider all of the circumstances surrounding the questioning including the location, time, length, mood and mode of the interrogation, the number of police officers present, the presence or absence of family and friends of the accused, any indicia of formal arrest, any evidence of restraint, and the age, intelligence and mental makeup of the accused.” (People v. Lucas (1989), 132 Ill. 2d 399, 417, 548 N.E.2d 1003, 1009.) After considering these factors, a court must look at the totality of the circumstances and make a determination as to what a reasonable man, innocent of any wrongdoing, would have thought if he were in the defendant’s shoes. (People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003; People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112.) The simple giving of a defendant’s Miranda warnings as a precautionary measure does not transform an investigative interrogation into a custodial interrogation. (People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112.) Additionally, the questioning of a defendant at a police station does not transform an investigative interrogation into a custodial interrogation, as to so hold would bar the police from ever requesting the presence of anyone for noncustodial questioning unless they had probable cause to arrest that person. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) A court’s determination that the defendant was interrogated in a custodial setting will not be disturbed on review unless this finding is against the manifest weight of the evidence. (People v. Lucy (1990), 204 Ill. App. 3d 1019, 562 N.E.2d 1158.) Where a court’s judgment may be sustained on any ground warranted in the record, a reviewing court will do so irrespective of whether the reasons given or the specific findings of a court are correct. People v. Hamilton (1978), 56 Ill. App. 3d 196, 371 N.E.2d 1234, aff’d (1979), 74 Ill. 2d 457, 386 N.E.2d 53.

Here, although defendant argues that the officers had no probable cause to arrest her before her interrogation, we find that the trial court did not address this specific allegation. The lone statement by the court that defendant was interrogated in a “custodial setting” does not resolve whether the officers had probable cause to arrest. If, in fact, the phrase “custodial setting” is comparable to stating that the officers had probable cause at the time of defendant’s interrogation, then this court must disagree with the trial court on this finding. Although the trial court denied defendant’s motion to suppress statements, a correct judgment in this case as will be discussed infra, the court’s specific finding of “custodial setting” was erroneous.

An analysis of the facts of this case as to the factors to be considered in determining whether defendant’s statements were made in a custodial setting reveals that defendant was not illegally detained. The evidence was clear that she went with the officers voluntarily to answer questions about her knowledge of Hattie’s death. Defendant also agreed, again voluntarily, to surrender the possession of the clothing she had worn earlier. Defendant was not interrogated about her activities until 2:50 p.m., almost an hour and a half after she was picked up for questioning, and her questioning only proceeded for about another hour and a half before defendant made her inculpatory oral statement. This is not an extraordinarily long time, especially since most of the time before questioning was spent in travel from the police headquarters to defendant’s home and back again. Further, at defendant’s home, Koehler testified he again asked defendant if she would go to police headquarters for questioning, and defendant again agreed. These actions on the part of defendant, as well as Koehler’s question about returning to the police station, indicate that defendant was not being detained.

Similarly, defendant’s testimony about her conversation at the police headquarters with attorney Hoerner revealed that defendant was told by the attorney that she was free to leave and that she need not say anything. In addition, defendant did not ask to leave or refuse to answer questions. She was never told by the police that she could not leave, although, in fairness, the police never told- her that she could leave. Further, defendant was not left alone at any time, unlike two of the cases cited by defendant in support of her position. (People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103; People v. Young (1990), 206 Ill. App. 3d 789, 564 N.E.2d 1254.) Defendant was never handcuffed, fingerprinted, or subjected to any of the other indicia of an arrest. Agent Koehler also testified that he believed defendant was not free to leave after she made her inculpatory admission, but that she was free to leave before that time. Thus, we find that probable cause to arrest defendant did not arise until after her inculpatory statement, but until that time she was not illegally detained, as a reasonable, innocent person would have believed she was free to leave. Therefore, her statements were admissible, as she was not under arrest at the time of her statements and her statements were not tainted by an illegal arrest. In fact, the officers were not required to give her the Miranda warnings before she made her written statement, as she was not subject to custodial interrogation.

The defendant contends in her second subissue that her confession was inadmissible as the officers failed to discontinue their questioning after defendant invoked her right to have counsel present at her interrogation. We again disagree.

It is well established that a defendant’s fifth amendment (U.S. Const., amend. V) right to counsel does not accrue until a defendant is subject to custodial interrogation. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) An interrogation is custodial if a person has been taken into custody or her freedom is restricted in any significant way. (People v. Brown (1990), 136 Ill. 2d 116, 554 N.E.2d 216.) If a defendant is not in custody or subject to custodial interrogation, Miranda is inapplicable. People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003.

In our previous discussion of whether defendant’s statements were obtained pursuant to an illegal arrest, we held that defendant was not subject to custodial interrogation until after she made her inculpatory oral confession. Thus, defendant’s Miranda rights, including her right to counsel, did not arise until this point in time. Therefore, we find that defendant’s fifth amendment right to counsel was not violated, and her confession was admissible, as her right to counsel had not arisen until after her inculpatory oral admission.

Further, it is significant that after defendant was subject to custodial interrogation, the police did not question her after she again asked to speak with her attorney, even though she was unable to reach him. The police recognized that, once she was subject to arrest, her request to talk to her attorney triggered her right to counsel and for them to interrogate her at that time would violate her rights.

The defendant’s last subissue is that the admission of her confession was not harmless error and that without her confession the evidence was insufficient to prove her guilty of first-degree murder beyond a reasonable doubt. Again, defendant’s contention rests upon the admissibility of her confession; therefore, we need not give undue attention to this subissue as we have held that her confession was admissible. Suffice it to say, without going through the litany of evidence produced at trial, which we have already set out at great length, defendant was proven guilty beyond a reasonable doubt. The record revealed that defendant was not at home on the night of the murder, that she threw items belonging to Hattie behind Teresa’s house the morning of the murder, and that defendant’s fingerprints were found on items taken from Hattie’s home. In addition, although defendant had three witnesses who provided her with an alibi for the night of the murder, the jury could have found the alibi witnesses’ testimony inherently incredible. All three witnesses failed to come to the police with their information, and they were each shown to have criminal backgrounds, which undermined their credibility. This evidence, combined with defendant’s confession, was more than sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant’s next issue is that her constitutional right to equal protection of the law was violated when the State used two of four peremptory challenges to exclude the only two black persons voirdired from the jury. Defendant moved to have the jury struck pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and the court held a hearing on defendant’s motion before proceeding with the trial. At that hearing, the court determined that defendant had established a prima facie case of discrimination, but that the State’s reasons for excluding the two black persons were sufficiently race-neutral and were supported by the evidence in the record. Defendant contends that the State’s reasons were pretextual and that the court’s determination that the reasons were race-neutral was against the manifest weight of the evidence.

In Batson v. Kentucky, the Supreme Court held that the intentional exercise of peremptory challenges to discriminate against jurors based upon their race violated the equal protection clause of the fourteenth amendment. (People v. Thomas (1990), 201 Ill. App. 3d 255, 559 N.E.2d 262.) It is the defendant’s burden to establish a prima facie case of discrimination, and once a prima facie case has been made, the burden shifts to the State to show that its reasons for exclusion were race-neutral. (People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242.) The burden on the State is not a heavy one, and the State’s explanations need not rise to the level of justifying a challenge for cause. (People v. Thomas (1990), 201 Ill. App. 3d 255, 559 N.E.2d 262.) After the State has proffered its explanations, the court must determine whether the reasons are sufficient to rebut defendant’s prima facie case. (People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242.) In making its determination, a court must make a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case. (People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242.) Because the court’s determination is a matter of fact and involves questions of credibility, a trial court’s findings will not be overturned on review unless its determination is against the manifest weight of the evidence. People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242.

In this case, defendant does not raise an issue regarding the court’s finding that she established a prima facie case of discrimination, and the State likewise does not challenge this finding. The only issue to be considered on review, therefore, is whether the State’s explanations for the exercise of its peremptory challenges were sufficiently race-neutral and not violative of defendant’s right to equal protection under the law.

Only two black persons out of the 28-person venire were voirdired for selection on the jury. Both of these black persons were excused by the State through the exercise of its peremptory challenges. At the hearing held pursuant to Batson, the State gave as its reasons for excluding these two jurors as follows: David Lay was excused by the State because his 23-year-old younger brother had been murdered in Atlanta, Georgia. From the questioning of Lay during voir dire, it was determined that no person was ever charged with this crime, and Lay stated that he was “just a little peeved that there was no investigation and nobody was brought to trial.” The State explained that it was uncomfortable with this juror since the evidence in this case was circumstantial and since it is implied from the evidence in this case that someone else may have been involved with defendant but was not charged. When questioned by the court as to why the State excluded Lay but did not exclude Keith Woods, a white juror who had been the victim of an armed robbery for which no one was ever charged, the State indicated that Woods did not indicate dissatisfaction with the police investigation or have an “attitude,” as Lay did.

Beverly Lyke, the other black person questioned during jury selection, was excused by the State because she had relatives that had been charged with crimes and because some of those relatives had been sent to the penitentiary. The court pointed out to the prosecutor that Lyke had said she was not close to these relatives and was hardly acquainted with them. The court also asked the prosecutor why he excluded Lyke but not Timothy Bandy, a white juror who had pleaded guilty to a misdemeanor battery charge. The prosecutor explained that if Bandy had spent time in the county jail, this was not equivalent to time in the penitentiary. The prosecutor further explained: “Mr. Bandy was very attentive in regard to the jury selection. He seemed to be very responsive to the questions as they were asked by particularly [sic] counsel and by the Court as well as defense counsel. I thought that Mr. Bandy would be a good attentive juror as far as listening closely to the volume of evidence that we have in this particular case.” The prosecutor also thought that the fact Bandy had pleaded guilty indicated that Bandy had an appreciation of the law and had taken responsibility for his wrongdoing.

Following the State’s explanations, the court stated as follows:

“As to the Batson challenge, I recognize the problem that we have here and to say I was or to deny that I was troubled by the fact that the only two black jurors were stricken would be not proper [sic] because it did concern me yesterday, and it also concerned me that the fact that the only other black jurors were at the bottom of the list. However, I don’t see as far as placing them on the bottom of the list, that that is anything other than the result of luck of the draw. Based upon the testimony of the prosecutor and his explanations, further based upon the fact that I don’t find any lack of good faith in his explanation and I find that there is sufficient evidence to support the reasonableness of his race neutral explanation, I am going to deny the Batson motion ***.”

Thus, the court conscientiously questioned the prosecutor and considered his explanations in conjunction with the conduct of the voir dire. A review of the voir dire of Lay and Lyke revealed that Lay had formerly worked for the Federal marshall transporting convicted criminals. Some of the persons he transported had been accused of possessing and distributing drugs. Also during voir dire, Beverly Lyke revealed that a cousin of hers was murdered in East St. Louis and that drugs were involved in the crime. This evidence provides additional support to the court’s finding that the prosecutor’s explanations were race-neutral and not pretextual. Additionally, the prosecutor’s explanation for keeping Bandy and not Lyke indicated the prosecutor found something in Bandy that he did not find present in Lyke, an attentive juror, which was a race-neutral reason for keeping Bandy and striking Lyke. We note that defendant discusses two other white jurors with comparable backgrounds to the black jurors struck by the State, Delbert Lurtz and Janet Huelsman. We need not consider these jurors as they were both excused by defendant, one for cause and the other through the exercise of a peremptory challenge, and were not selected for the jury. We find that the court’s determination that defendant’s constitutional right to equal protection was not violated by the State’s exercise of its peremptory challenges was not against the manifest weight of the evidence.

The last issue raised by defendant is that she was denied a fair trial when the court admitted evidence of another crime, as this evidence had no probative value and was highly prejudicial. Defendant argues that the prior home invasion of Hattie’s residence, involving both Hattie and defendant, should not have been admitted as it was not established that defendant committed this crime and this evidence was extremely prejudicial.

Evidence of other crimes is admissible if the evidence is presented for any other purpose than to show a defendant’s propensity to commit a crime, such as modus operandi, intent, identity, motive, or absence of mistake. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360.) In addition, the evidence of the other crimes need not be identical to the crime charged to be admissible. People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.

In our previous statement of facts, the evidence of the home invasion at Hattie’s residence on June 28, 1990, was adequately set out and the facts of that crime need not be reiterated here. Suffice it to say, the evidence of the prior home invasion was admissible to show defendant’s motive and knowledge. The evidence of the prior home invasion, which defendant admitted participating in, revealed that defendant had knowledge of where Hattie kept her valuables. Given the fact that the only room ransacked at the time of the murder was the room to which Hattie had gone at the time of the home invasion to obtain money to give the intruder, this evidence was probative of defendant’s knowledge. Both home invasions involved a similar modus operandi in that defendant and an armed black male selected an old defenseless woman with cash in her house. Further, the motive for the home invasion and for the murder was the same, to enable defendant to obtain money to purchase drugs. Therefore, the evidence of the prior home invasion was admissible.

We also note that the prejudicial effect of this evidence was limited when the jury was instructed that the evidence of other crimes was admitted solely for the limited purpose of showing “defendant’s identification or intent or a motive or a design in regards to this particular offense.” The court instructed the jury that the evidence was to be considered only for this limited purpose. People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN, P.J., and MAAG, J., concur.


author: JUSTICE GOLDENHERSH

text:
      In re HAROLD WATTS, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Harold Watts, Respondent-Appellant).
    Fifth District
    No. 5 — 92—0067
    Opinion filed September 17, 1993.

      John B. Lower, Jeff M. Plesko, and Penelope S. Karnes, all of Guardianship & Advocacy Commission, of Anna, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a hearing in the circuit court of Randolph County, the trial court ordered respondent, Harold Watts, involuntarily admitted to a mental health facility. Respondent appeals, arguing that his admission must be reversed because (1) the hearing was neither set nor held within five days after receipt of the second certificate in violation of section 3 — 706 of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706), (2) no dis-positional report was prepared or considered in violation of section 3 — 810 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 810), (3) the least restrictive appropriate treatment was not ordered in violation of section 3 — 811 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 811), and (4) the trial court’s findings were not supported by clear and convincing evidence. We reverse and remand.

On December 26, 1991, a petition for involuntary admission was filed against respondent, an inmate in the Department of Corrections who was scheduled for mandatory supervised release from that Department on January 30, 1992. The petition alleged that respondent was mentally ill and was reasonably expected to inflict harm upon himself or another in the near future and was unable to provide for his own physical needs. Two certificates, authored by appropriate medical personnel, were attached to the petition. The petition and the attached certificates revealed that respondent is in poor health, suffering from chronic obstructive pulmonary disease. It further revealed that respondent has a history of alcoholism which has resulted in an organic mental disorder, and he has been diagnosed as borderline personality. The petition asserted that respondent has “no insight into his mental state and refuses medications when not under close observation.”

On January 9, 1992, a hearing was scheduled for January 17, 1992, and counsel was appointed for respondent. Respondent was served notice of the hearing on January 10, 1992. Dr. Sam Parwatikar, a psychiatrist at Menard Psychiatric Center, was the State’s only witness. Dr. Parwatikar testified that respondent has brain damage due to chronic alcohol abuse and suffers from chronic emphysema. According to Dr. Parwatikar, respondent was on “enforced medications,” which respondent denied during his testimony. Dr. Parwatikar opined that respondent would discontinue taking his medications if released, but respondent testified he would take medication.

Respondent testified on his own behalf that he planned to serve his parole in Indiana. If this plan was rejected, his second plan was to live at a Salvation Army center in Centralia or a Catholic Charities in Joliet until he received his first supplemental security income check from the Social Security Administration. Respondent had already contacted the Social Security Administration about resumption of such benefits and planned to see if he could resume his former job in Centralia.

After hearing the evidence, the trial court found that respondent was a person subject to involuntary admission and ordered that he be transferred to the Department of Mental Health upon his release from the Department of Corrections. An order hospitalizing respondent in the Department of Mental Health was entered on January 17, 1992. Respondent appeals from that order.

The first argument raised by respondent is that the trial court’s order for involuntary admission must be reversed because a hearing was neither set nor held within five days after receipt of the second certificate as required by section 3 — 706 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706). The State responds that even though section 3 — 706 of the Code was violated, such violation does not require reversal because respondent suffered no prejudice or loss of liberty since he was an inmate in the Department of Corrections. We agree.

The statute involved herein states, in pertinent part:

“§3 — 706. The court shall set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, after its receipt of the second certifícate or after the respondent is admitted to a mental health facility, whichever is earlier.” (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706.)

Because involuntary commitment proceedings affect important liberty interests, strict compliance with statutory procedures is required. (People v. R.C. (1988), 175 Ill. App. 3d 163, 167, 529 N.E.2d 756, 759; In re Lamb (1990), 202 Ill. App. 3d 725, 560 N.E.2d 422.) However, reversal is not required unless respondent is in some way prejudiced by the failure to comply with statutory requirements. See In re Splett (1991), 143 Ill. 2d 225, 572 N.E.2d 883; In re Clark (1991), 220 Ill. App. 3d 1024, 581 N.E.2d 408.

Here, respondent’s liberty interests were already limited due to his incarceration in the Department of Corrections. Respondent was not scheduled for release until January 30, 1992. The hearing took place on January 17, 1992, and the order was entered on the same day. The purpose of section 3 — 706 of the Code, to provide adequate notice and safeguard against unreasonable commitment, was not violated. Respondent suffered no prejudice because of the trial court’s failure to strictly comply with the five-day notice requirement. Therefore, this error does not require reversal.

The next argument raised by respondent is that reversal is required because no dispositional report was prepared or considered as required by section 3 — 810 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 810). The State responds that the second certificate attached to the petition meets the requirements of a dispositional report as set out in section 3 — 810 of the Code, and to the extent that it may be inadequate, respondent has waived such error by failing to raise the issue in the trial court. We agree with respondent.

Section 3 — 810 of the Code states:

“§3 — 810. Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” (Ill. Rev. Stat. 1991, ch. 91½, par. 3-810.)

Total failure to comply with section 3 — 810 of the Code constitutes reversible error. (In re Venegas (1991), 218 Ill. App. 3d 423, 578 N.E.2d 43; In re James (1989), 191 Ill. App. 3d 352, 547 N.E.2d 759; In re Collins (1981), 102 Ill. App. 3d 138, 429 N.E.2d 531.) The James court explained the rationale for such a holding as follows:

“Involuntary commitment procedures represent the balance between an individual’s liberty interests and society’s dual interests in protecting itself from potentially dangerous individuals while protecting and caring for those who are unable to care for themselves. ([In re] Stephenson [(1977)], 67 Ill. 2d 544, 367 N.E.2d 1273.) Thus, the procedures set forth in the Code are a legislative recognition that civil commitment is a deprivation of personal liberty. The purpose of the procedures is to provide adequate safeguards against unreasonable commitment. ([People v.] Sansone [(1974)], 18 Ill. App. 3d [315,] 322, 309 N.E.2d [733,] 738.) Inherent in the civil commitment process is the State’s promise that the individual subject to admission will receive treatment. (See generally [In re] Collins [(1981)], 102 Ill. App. 3d 138, 429 N.E.2d 531; Sansone, 18 Ill. App. 3d 315, 309 N.E.2d 733.) We agree with the Collins court’s conclusion that a total failure to comply with the section evidences a disregard for the legislatively established procedures. It is contrary to the balancing of interests established by the Code and should not be condoned.” James, 191 Ill. App. 3d at 356, 547 N.E.2d at 761-62.

In the instant case, no . report prior to disposition was prepared. We have reviewed the second certificate attached to the petition which the State argues conforms to the requirements of section 3— 810 of the Code and find it to be lacking. The certificate does not contain the necessary information concerning the appropriateness and availability of alternative treatment facilities, nor does it set forth any goals. With regard to a treatment plan, the certificate discusses keeping respondent medicated and checking him at 30-day intervals. It is clear that no dispositional report was made and that the certificate does not conform to the requirements of section 3 — 810 of the Code. Moreover, even though this argument was not raised in the trial court, such argument is not waived. We are allowed to consider it under a doctrine analogous to plain error. James, 191 Ill. App. 3d at 357, 547 N.E.2d at 762.

For the foregoing reasons, the order of the circuit court of Randolph County is reversed and, relying on In re James (1989), 191 Ill. App. 3d 352, 547 N.E.2d 759, the cause is remanded for a new hearing wherein the trial court will consider a report as required by section 3 — 810 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 810). Because of our decision to reverse and remand for a new hearing, we need not address the additional arguments raised by respondent.

Reversed and remanded.

CHAPMAN, P.J., and WELCH, J., concur.