text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERRY LOCKETT, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2407
    Opinion filed April 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Gerry Lockett was charged with residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3), convicted after a jury trial, and sentenced to eight years’ imprisonment. Lockett appeals, arguing that improper voir dire produced a biased jury and that he was improperly sentenced as a repeat offender. For the reasons below, we affirm.

At about 3 a.m. on November 27, 1987, Allan Cannon entered his apartment, which he shared with his sister, at 1057 West Berwyn in Chicago. Cannon noticed a broken window in his sister’s bedroom. He then saw a man, whom he did not know, standing about six feet away from him in the apartment hallway. The only light came from the bathroom off the hallway. The man said to Cannon, “I know your sister.” Cannon fled the apartment to call the police from the nearby El station. Outside his apartment, Cannon saw the man running down an alley. Cannon described the man to police as a dark black man with curly hair, about 5 feet 5 inches, weighing about 200 pounds.

Cannon returned to his apartment and noticed that his bicycle had been placed on his bed, and that his sister’s baby clothes, which had been packed in bags, had been thrown all over. Although the apartment was in a general state of disarray, which Cannon admitted was not uncommon, nothing had been taken.

A short time later, the police caught a man matching the description about three blocks from the apartment. The police returned to the apartment with the suspect, whom Cannon identified as the intruder. The suspect was the defendant, Gerry Lockett. Lockett was charged with residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3), and criminal trespass to residence (Ill. Rev. Stat. 1985, ch. 38, par. 19—4), and granted a jury trial.

During voir dire, the trial court instructed the prospective jurors of the defendant’s right not to testify, stating:

“Under the law, under our constitution, anyone accused of a crime has — as a matter of fact, you don’t have to be accused of a crime to know what’s the privilege against self-incrimination.
When a person is accused of a crime, the State, as I told you, has the only burden of proof, and the accused person doesn’t have to prove anything at all.
Now, should a person on trial before you not take the witness stand, his decision not to take the witness stand should not, in any way, be the basis of inference regarding the question of guilt or innocence.
Now, do any of you have any problem in abiding with that principle of law? If you think you might have a problem, accepting that, abiding by it, during your service as jurors, please raise your hand. [No response indicated.]”

Defense counsel made no objection to the trial court’s statement until after the jury had been selected and sworn, when he asked the court to clarify its statement. The trial court read the jury the substance of Illinois Pattern Jury Instructions, Criminal, No. 2.04, (2d ed. 1981) (IPI Criminal 2d), which defense counsel said would be acceptable. The jury subsequently received IPI Criminal 2d No. 2.04 again as part of the jury instructions.

Four of the jurors had been victims of crime, three of whom had been victims of burglaries. The trial court questioned the four individually about their experiences, and asked whether their experiences “would affect [their] ability to be fair and impartial as a juror.” Each answered that he could be fair and impartial. Defense counsel objected to the extent of the questioning, requesting that the court ask them whether they were confident that they could be impartial. The trial court denied the request, stating that the issue of their impartiality had been sufficiently covered.

Nevertheless, the trial court later asked each of the four, “Are you confident you could decide a case on trial before you solely on the basis of the evidence that you hear and my instructions to you regarding law?” The trial court subsequently denied defense counsel’s motion to dismiss the burglary victims for cause. Counsel exercised no peremptory challenges to excuse the burglary victims, although the peremptory challenges had not been exhausted.

The jury found Lockett guilty of residential burglary, a Class 1 felony. Lockett was sentenced to eight years’ imprisonment as a repeat offender (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8)), due to prior convictions for burglary, which were presented at the sentencing hearing. Lockett appeals both conviction and sentence.

Lockett argues that the trial court failed to assure that the jury would be fair and impartial, the evidence was insufficient to support the verdict, and he was improperly sentenced because the prior convictions were not alleged in the indictment or proved at trial. Lockett’s arguments are without merit.

Lockett first contends that the jurors were improperly instructed on the defendant’s right not to testify, but this contention was waived. Counsel failed to object when the allegedly improper instruction was given, and later, when the objection was made, counsel accepted the trial court’s suggestion for curing any error. Even had the argument not been waived, there was no indication of error. The trial court clearly, if not eloquently, communicated to the prospective jurors that the defendant had a right not to testify, and that the exercise of that right should not be inferred as an indication of guilt or innocence. Finally, the jurors received IPI Criminal 2d No. 2.04, which addresses the defendant’s right not to testify. The jury was properly and adequately instructed.

Lockett also contends that the voir dire of the burglary victims was improperly restrictive and the trial court abused its discretion in denying the motion to dismiss for cause. The State argues that Lockett’s objection to the jurors was waived for failure to exercise an available peremptory challenge. We disagree. The objection was preserved by counsel’s motion to dismiss for cause. (E.g., People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, cert. denied (1988), 488 U.S. 895, 102 L. Ed. 2d 226, 109 S. Ct. 236.) Nevertheless, the trial court properly exercised its discretion to deny Lockett’s request.

The questions and procedures of voir dire should reasonably assure that any prejudice or bias would be discovered. (People v. Morgan (1987), 152 Ill. App. 3d 97, 504 N.E.2d 172, cert. denied (1987), 484 U.S. 866, 98 L. Ed. 2d 141, 108 S. Ct. 189.) Here, the record shows that the trial court asked each of the four crime victims detailed questions about the crimes each had suffered, and specifically asked each whether he could remain impartial. The trial court denied counsel’s request to further explore the issue of impartiality, but when the jurors were impanelled, the trial court did, in fact, use the language requested by defense counsel, asking each juror, including the burglary victims, whether he was confident that he could remain impartial. The record supports the conclusion that the trial court sufficiently explored the issue of the jurors' impartiality to have revealed any prejudice or bias and, therefore, properly denied counsel’s motion to dismiss the burglary victims.

Lockett next challenges the sufficiency of the evidence, arguing that Allan Cannon’s identification was not reliable, given the low light in the apartment and the short time that he had to look at the intruder. The record indicates, however, that Allan Cannon was a credible witness who encountered an intruder at close range for a sufficient length of time, with enough light, to identify him clearly. The circumstances of the arrest corroborated Cannon’s identification: Lockett matched Cannon’s description and was arrested within three blocks of Cannon’s apartment shortly after the encounter in the apartment. The undisputed facts support the identification of Lockett as the intruder.

Lockett also argues, without merit, that the evidence could not support an inference of his intent to commit a theft. But when Cannon entered his apartment, he found a broken window and later noticed a rock and broken glass on the floor, indicating that the window had been broken from the outside. Cannon also discovered contents of the apartment had been rearranged and thrown about. Even assuming that Lockett was, as he said, an acquaintance of Cannon’s sister, and that the Cannons, as defense counsel implied, were less than diligent housekeepers, Lockett’s presence, without permission, in the dark, empty apartment, at 3 a.m., supported the jury’s inference of intent to commit a theft.

Finally, Lockett challenges his sentence as a repeat offender. The Unified Code of Corrections provides that, within specified criteria which Lockett met, a defendant convicted of a Class 1 or Class 2 felony, after two previous convictions for Class 2 or greater felonies, shall be sentenced as a Class X offender. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8).) But Lockett argues, without merit, that he was improperly sentenced because the State failed to allege his prior convictions in the indictment and prove them at trial.

Lockett incorrectly contends that the repeat offender statute elevated the crime of residential burglary from a Class 1 felony to a Class X felony and, therefore, the prior convictions should have been alleged in the indictment and proven at trial, instead of at the sentencing hearing. Section 5—5—3(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8)) does not elevate the class of a crime; the statute merely sets forth criteria under which a defendant convicted of a Class 1 or Class 2 felony shall be sentenced according to guidelines of a Class X felony. Even had the State failed to prove all the elements of a hypothetical “enhanced” residential burglary, the error would have been harmless because Lockett’s sentence of eight years fell within the statutory range for both Class 1 and Class X felonies. Lockett was properly sentenced.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY HAMMOND, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2741
    Opinion filed April 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Nancy Nolan Colletti, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

This case centers upon a search warrant calling for the seizure of a backhoe and some snowmobiles. Approximately 11 officers participated in the search of the premises alleged to be the residence of the defendant, Danny Hammond. They searched for about five hours and seized a backhoe, eight snowmobiles and several hundred other items; one officer guessed that 1,000 items were seized. The backhoe, some of the snowmobiles and several of the other items seized were later identified as having been stolen.

The defendant was indicted on 10 counts of grand theft. Each count alleged theft of a specific item of property; one count involved a backhoe; two counts involved snowmobiles; and seven other counts involved other items seized.

The defendant filed a motion to suppress all items which were the subject of the separate counts of the indictment. The judge suppressed one of the items; he denied the motion as to the other items; and the State dismissed the count which alleged the theft of the suppressed item. A jury found the defendant guilty on the remaining nine counts of the indictment; he was sentenced to probation for 30 months.

The defendant first contends that the judge erred in denying the motion to suppress. He argues that the search warrant lacked the required specificity; that it did not allege facts which would support a finding of probable cause; and that the officers exceeded the authority of the warrant.

The complaint for the search warrant was dated November 19, 1985, and was based on the affidavit of Sergeant Anthony Murray of the Chicago Heights police department in which he recited in substance the following:

On November 12, 1985, he had a conversation with a reliable informant who told Murray he had purchased stolen merchandise from Danny Hammond, whom the informant described. Hammond had been buying stolen merchandise and storing it on his property located at the “northeast corner of State and Sauk Trail, Cook County, Illinois.” On November 11, 1985, the informant sold miscellaneous power tools to Hammond that hád been stolen in a burglary. While the informant was at Hammond’s residence he saw a yellow John Deere backhoe and four to six snowmobiles which were stolen in two separate incidents. The snowmobiles were stolen from Peotone, Illinois, and were sold to Hammond in the middle of October. The backhoe was stolen from Prairie State College at the end of October, driven to Hammond’s residence and sold to him. The snowmobiles and backhoe were stored on Hammond’s property.

Murray’s affidavit also alleged that he had “confirmed [the] informant’s information” by telephoning the chief of the Peotone policy. Murray “confirmed the theft of the John Deere backhoe with the Chicago Heights police report number 85 — 4436.” The complaint asked for issuance of a warrant to seize “a Model JD 500 — C John Deere wheel loader backhoe with Diesel Engine No. 297383 and any stolen snowmobiles taken in a theft from Peotone, Illinois on 15 October 1985 from Union 76 in Peotone, Illinois.”

At the outset, it is appropriate to note that the defendant’s argument that the warrant lacked specificity is restricted only to the description of “any stolen snowmobiles taken in a theft from Peotone, Illinois on 15 October 1985 from Union 76 in Peotone.” The defendant concedes that the description of the backhoe was sufficient.

We need not decide whether the warrant was sufficiently specific with respect to the snowmobiles since we have determined they were properly seized because the officers were properly on the premises, the snowmobiles were in “plain view” and the officers had sufficient information that would justify their seizure. As a general rule officers executing a search warrant are restricted to seizing only those items which are identified with sufficient specificity in the warrant; an exception to the general rule exists when items not mentioned in the warrant are in plain view and when the officers reasonably believe those items constitute evidence of criminal activity. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.

Sergeant Murray testified that he had a telephone conversation with Chief Bogart of the Peotone police on November 19, 1985. They discussed the theft of snowmobiles. He did not recall whether Bogart described the snowmobiles which had been stolen. Bogart told Murray that the snowmobiles were stolen from a Union 76 gas station in Peotone.

Detective Faioni testified that he spoke to Murray about the conversation Murray had with Bogart. Murray reported that Bogart said that two red Scorpion snowmobiles had been stolen in the burglary.

When Murray executed the warrant on the defendant, Murray went to the rear yard in the area where the informant had told him that the backhoe was located. The warrant itself commanded that the officers were to search “a white frame house and gray storage barns on said property.” There were several structures on the property, and Murray located the snowmobiles in a shed. The vehicle identification numbers of the snowmobiles had been scraped off or peeled off. They were Scorpion snowmobiles. It is our judgment that the police possessed sufficient information to justify a seizure of the snowmobiles.

The trial judge, in explaining the reasons for his findings, expressed the view that the items, which were the subject of the other counts of the indictment, were also properly seized under the “Plain View” exception other than a snowmobile trailer which he suppressed. The defendant does not maintain that the trial judge’s reliance on the “Plain View” exception was wrong, and he does not answer the State’s reliance on the exception in this court. It would unduly lengthen this opinion to discuss each of the other six items which were seized and were introduced to support the findings on those six counts. Suffice it to say that the record supports the judge’s finding that those items were properly seized under the “Plain View” exception. For example, Officer Faioni saw a yellow scuba tank. He knew that a yellow scuba tank had been taken in a garage burglary one week before. Murray saw a four-wheel Suzuki all-terrain vehicle which matched the description of a vehicle which had been taken in a burglary in Chicago Heights. The vehicle identification number had been defaced.

The defendant also argues that the “facts” recited in the search warrant did not support a finding of probable cause by the judge who issued the warrant. The defendant maintains that the warrant could have been more specific; for example, he says, the affidavit could have alleged that the informant had been inside the single-family dwelling and that he had seen the backhoe and snowmobiles on the premises. Our first answer is that the test is not whether the affidavit could have been stronger; the test is whether it was sufficient. We hold that it was.

Our second answer is that the affidavit does allege that the informant observed the backhoe and snowmobile on the premises. Murray’s affidavit alleged that he had known the informant for two years; that the informant had provided him with information on two separate occasions and in both instances stolen property had been recovered resulting in at least one arrest; the informant had previously sold stolen merchandise to the defendant; the defendant had been buying stolen merchandise and storing the merchandise on his property; the informant sold miscellaneous power tools to the defendant which were stolen in a burglary; while at Hammond’s residence the informant observed a yellow John Deere backhoe along with four to six snowmobiles which the informant advised were stolen in two separate incidents. Murray received independent corroboration of the informant’s information by checking the records of his own police department and through his conversation with the chief of the Peotone police department. We judge that the affidavit, considered as a whole, more than adequately establishes a fair probability that evidence of a crime would be found on the described premises. See People v. Jones (1985), 105 Ill. 2d 342, 475 N.E.2d 832.

The defendant’s last attack on the search warrant is based on his claim that the police engaged in a general search and that the trial judge found that the police had gone “too far.” The trial judge did, in fact, make that observation. He suppressed one of the items seized which the police could not justify under the “Plain View” exception. Once again, we agree with the trial judge’s analysis of the evidence and his findings. None of the other items seized after the police went “too far” was the subject of any of the counts for which the defendant was charged other than the item which was suppressed. Lawfully seized evidence will not be excluded because of a subsequent unlawful search for other property. People v. Crowder (1981), 99 Ill. App. 3d 500, 425 N.E.2d 994.

For these reasons, we judge that the order denying the defendant’s motion to suppress was proper.

The defendant next contends that error occurred when the judge struck the testimony of a defense witness. Edward Benson testified on behalf of the defendant that he had resided at a State Street address in South Chicago Heights for two years. He identified a State exhibit, a diagram of the property where the defendant was arrested. Benson said that he and eight other people lived on the property and that a number of other people used the other buildings on the property. He identified photographs of a backhoe which he had previously seen parked behind the shed next to the building in which he lived. He had seen a person known as Randy Bach operating the backhoe on the property. He never saw the defendant operate the backhoe.

On cross-examination Benson testified that Bach did not live on the property on November 19, 1985, the day the defendant was arrested and the property searched. Benson lived above the area marked “garage” on the diagram, and he had access to the garage and sheds on the property. He denied that he stored any items in the attic of the house but said that he stored some items on the porch and that the cost of storing those items was included in his rent. The cross-examination was then terminated at the request of the assistant State’s Attorney in order that the witness might be advised of his fifth amendment right against self-incrimination.

The trial judge appointed an assistant public defender to inform the witness of his constitutional rights concerning “what items, if any, he stores in certain area of the premises.” Following a recess, the assistant public defender told the judge that he had spoken to Benson and that it was the assistant public defender’s belief that, if questioning were to resume “relative to a building and access to and control of it,” Benson would assert his privilege against self-incrimination. In response to the judge’s question, Benson said that he would “take the fifth amendment” if he was asked any more questions.

The defendant’s attorney told the judge that the witness should assert his privilege in the presence of the jury. During subsequent colloquy between the court and counsel, the defendant’s attorney, for the first time, expressed the view that the questions asked by the State were “beyond the scope” of the direct examination. The judge said that “that objection is not before the court.” The jury was recalled, and the witness said that he would invoke his fifth amendment privilege and refuse to answer any questions. The judge then instructed the jury to disregard any testimony given by the witness.

The defendant first asserts that the error occurred when the State’s Attorney’s cross-examination allegedly exceeded the scope of direct examination. That argument must be rejected; first, because no timely objection was made to the State’s questions at the time they were asked (People v. Nearn (1988), 178 Ill. App. 3d 480, 533 N.E.2d 509) and second, because the State’s questions were within the bounds of the direct examination.

The defendant also contends that the judge erred when he appointed the public defender to advise Benson of his constitutional rights. However, the defendant’s attorney made no objection when the assistant State’s Attorney asked the judge to advise the witness of his “fifth amendment rights.” In fact, when the judge said that he would appoint the public defender, the defendant’s attorney said, “Fine.” Therefore, the argument that the appointment of the public defender was improper is waived. Moreover, it is not improper for a State’s Attorney to suggest appointment of counsel for a witness nor for a judge to appoint counsel to advise a witness of his privilege against self-incrimination. People v. Pantoja (1976), 35 Ill. App. 3d 375, 342 N.E.2d 110.

The defendant’s last contention with respect to Benson’s testimony is his assertion that the court erred in striking the testimony. He does not cite any case nor does he answer the State’s argument which includes citation to People v. Cedillo (1986), 142 Ill. App. 3d 849, 492 N.E.2d 227.

In Cedillo, a prosecutor interviewed a codefendant who had pleaded guilty and who was listed as a prospective defense witness. After the interview the prosecutor informed the court that the witness’ version of the offense appeared to be contrary to his stipulation at the plea proceedings. The prosecutor said that if the codefendant testified as he had indicated, he would be charged with penury. The court appointed the public defender to advise the witness, and the witness indicated that, if called to testify, he would invoke his right against self-incrimination. Over the defendant’s objection, the court barred the witness from testifying. The appellate court held that the trial court did not err in barring the witness from testifying once he indicated that he intended to invoke his privilege against self-incrimination.

In our judgment, Cedillo is analogous authority for the procedure followed in this case. We see no material difference insofar as the defendant is concerned between striking testimony and barring testimony beforehand. Indeed, in this instance, the witness’ invocation of his constitutional privilege inured to the benefit of the defendant. The jury could have concluded that Benson, rather than the defendant, was guilty of theft. (See People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) We find no reversible error either in the procedure followed or in the order striking Benson’s testimony.

The defendant next contends that the judge erred in granting the State’s motion in limine, preventing the defendant from introducing three cancelled checks. The named payee on each check was Richard Bach; the drawer was purportedly the defendant. The checks were drawn on an account at the Chicago Heights National Bank in the name of “Hammond Enterprises, 201 East Sauk Trail, South Chicago Heights, IL.” Two of the checks contained a notation indicating that the amount paid was for “backhoe work” and contained the address “3125 State.” Two checks were dated October 22, 1985, and the other check was dated October 23, 1985. Each check was endorsed by a “Richard Bach. ’ ’

At the hearing on the motion in limine, the defendant’s attorney argued that the checks were being offered to show that a defense "witness would testify that she recognized the signatures, received the checks from the defendant and gave them to Bach. The State said that it would not object to the witness testifying that she received the checks from the defendant and delivered them to Bach, but the State would object to the defendant putting the checks themselves before the jury.

The defendant argued that the checks were being offered to show that the defendant was not in possession of the stolen backhoe which had been recovered on the property. From the defendant’s offer of proof it is clear that the checks were offered to show that Richard Bach had used the backhoe while working at 3125 South State Street, which a witness would later identify as the address of a building on the property other than the one in which the defendant was arrested. This evidence was offered for the purpose of establishing a fact — that Bach exercised dominion and control over the backhoe on the premises where it was recovered. The evidence, therefore, was hearsay, as the State maintained, and was properly excluded.

The judge denied admission of the checks on the additional ground that the proof that the backhoe was used by Bach, who did not live on the property, was irrelevant. The judge did not understand why the defendant was seeking .to introduce the checks. Neither do we. As we will show later, the defendant was trying to convince the jury that he did not live at 201 East Sauk Trail. Checks he signed on an account of “Hammond Enterprises, 201 East Sauk Trail” would be strong corroboration of the other evidence the State introduced to establish that the defendant did live at 201 East Sauk Trail.

The defendant’s last contention is that the State failed to prove his guilt beyond a reasonable doubt. The defendant’s argument on this point is confusing. He argues that the evidence was insufficient because the court allegedly admitted improper evidence under the search warrant and because the court excluded the testimony of Benson and the checks which were purportedly given to Bach. For reasons we have already explained, there is no merit to this argument.

The defendant does not argue the sufficiency of the evidence to establish recent, exclusive possession of stolen property; rather, he makes only a passing reference to the fact that at the time of the offense other people allegedly lived on the premises. Although the argument could be deemed waived, we believe we should address the sufficiency of the evidence to establish that the defendant had recent, exclusive possession of the stolen property.

In order to support a finding of theft based on recent, exclusive possession of stolen property, it is sufficient to show that the defendant possessed the property jointly with others. (People v. Harris (1972), 53 Ill. 2d 83, 288 N.E.2d 873.) The required possession may be constructive and may be proved by circumstantial evidence. People v. Songer (1977), 48 Ill. App. 3d 743, 362 N.E.2d 1127.

After he was arrested while wearing pajamas, the defendant told the police he wanted to “go to his bedroom to put on some clothes.” (Emphasis added.) The police recovered three letters addressed to the defendant from a dresser in the bedroom. One was addressed to 201 East Sauk Trail, and two were addressed to 901 East Sauk Trail. The police also recovered a stolen automatic pistol on the floor near the foot of the bed. All of the stolen property, with the exception of the all-terrain vehicle, the snowmobiles and the backhoe, was recovered from the building in which the defendant was arrested. Murray identified the defendant’s sister and his invalid 93-year-old father as the only other persons in the house from which the stolen property was recovered.

Betty Hammond, the defendant’s sister, testified that only she and her father lived in the house where the defendant was arrested and that three or four other families lived in another house. Benson lived over the garage. Other people boarded horses in the sheds. She said that the defendant was visiting their sick father the day the police arrived. She also testified that the proper address for the house was 3137 State Street. On cross-examination she admitted that 201 East Sauk Trail was the “old address.”

Barbara Gray testified that she lived with the defendant at another address and that the defendant left that day to visit his sick father.

Larry Barker, a mailman, testified in rebuttal that he delivered mail to a mailbox on the southwest corner of the intersection of Sauk Trail and State Street. The house was on the northwest corner. In that mailbox, Barker delivered mail addressed to 201 East Sauk Trail, 901 East Sauk Trail, 3125 State Street and 3137 State Street. Some of the mail was addressed to the defendant. The 900 block of East Sauk Trail is a farmer’s field on the northeast corner of Sauk Trail and Cottage Grove. Although the record is confusing, the reasonable inference is that 901 East Sauk Trail was a mistaken address and that 201 East Sauk Trail was at least one of the correct addresses for the house in which the defendant was arrested.

The credibility of Betty Hammond and Barbara Gray was for the jury to determine. The jury obviously rejected their testimony and it is not our right to substitute our judgment for that of the jury. Betty Hammond’s testimony that others lived on other parts of the property does not explain the presence of six separate items of stolen property recovered from the house to which the other persons did not have access. From all the circumstances, the jury could conclude beyond a reasonable doubt that the defendant lived in the house where he was arrested, that he had at least constructive possession of the stolen property and that he had at least joint possession of the stolen property. We judge that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

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

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL WILSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0105
    Opinion filed April 16, 1990.

      Sam Adam and Marc W. Martin, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Bonnie Meyer Sloan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant, Earl Wilson, guilty of two murders, and the trial court sentenced him to a term of natural life imprisonment without parole. Defendant appeals, contending that certain evidence should have been suppressed as the fruit of illegal eavesdropping and the fruit of evidence seized without a warrant or probable cause; that defendant’s confession was not voluntary and was obtained in violation of his right to counsel; that no probable cause existed to arrest defendant for murder; that the trial court unduly belittled defense counsel in front of the jury; that the admission of photographs of the crime scene and of the victims prejudiced defendant; that hearsay testimony concerning a mobile telephone conversation between defendant and another man setting up the murders, which was overheard by an anonymous informant, was improperly permitted; that the mug shot of defendant’s accomplice was improperly used; that defendant and his ex-wife were improperly impeached with prior convictions; and that the cumulative effect of any errors requires reversal.

On November 18, 1986, just after midnight, Willie “Flukey” Stokes, a major Chicago drug dealer, and Ronald Johnson, his chauffeur, were shot and killed while sitting in Stokes’ car with Diane Miller. Defendant claimed he witnessed the shooting. When the police arrived, defendant’s car was stopped behind Stokes’ car, and defendant was standing by the bodies, waving a gun, shouting that he was the bodyguard and the assailants had escaped.

Defendant was arrested at the scene for unlawful use of a weapon and firing a weapon within the city limits. He was subsequently released on bond. His mobile telephone was seized from his car by the police.

On November 18 and 19, 1986, an anonymous informant telephoned the police and reported that on November 18 shortly after midnight, he overheard two mobile telephone conversations describing the route two cars were taking on the south side of Chicago, and the exact arrival time and location of their destination, so that a crime could take place upon their arrival.

On November 21, 1986, the police obtained the telephone records for the mobile telephone in defendant’s car. The records indicated he made two telephone calls just after midnight on the night of the murders, to a telephone registered to Elliot Taylor, another major drug dealer on the south side.

On November 24, 1986, the police arrested defendant for the murders.

Defendant moved to suppress evidence resulting from the seizure of his car telephone, to quash his arrest and suppress his confessions, and to suppress evidence regarding an anonymous informant’s report that he heard telephone calls.

At the hearing, defendant testified regarding what occurred when the police arrived at the scene of the shooting, near 79th and Ellis. He pulled up behind the victims’ black Cadillac when several men came up to the black car and began shooting. Defendant fired about five shots at the assailants. None of the assailants shot back at defendant. They were not paying any attention to him. He stood about two car lengths away from the assailants. He believed that he hit one person because he saw the man spin and heard him say that he was hit. When the men ran away, defendant went over to Stokes’ car. He left his own car double parked behind Stokes’ car, with the engine running. He saw that Stokes and Johnson had been shot and were in the front seat of Stokes’ car. Miller was lying unharmed in the back seat of the car.

Defendant testified that when the police arrived, he was standing next to Stokes’ car, holding a gun in his hand. Defendant was trying to keep passersby away from the car. The police told defendant to drop his weapon. Defendant explained that he was Stokes’ bodyguard and that the offenders had run south on Ellis. The police handcuffed defendant and put him in the squad car. Prior to the shootings, the only telephone calls he made that night on his mobile telephone were to his ex-wife and to his girl friend.

At the same hearing, Officer Elmer Atkinson testified that he and another officer were the first to arrive at the scene of the shooting. He saw the two Cadillacs facing southbound on Ellis. Defendant was standing near the black Cadillac, waving a gun in his hand. Atkinson drew his weapon, exited the car, and ordered defendant to drop the gun. Defendant said he was the bodyguard and that the assailants had run south on Ellis. Atkinson again shouted his order, and defendant finally threw down the gun. Defendant described the occurrence. Upon emptying defendant’s gun, Atkinson found four expended shells.

Atkinson then accompanied the watch commander, walking southbound on Ellis, and examined all of the parked cars for any indication of gunfire. They also looked for blood trails, since defendant stated he thought he shot someone. They found nothing.

Lieutenant Phillip Cline testified at the hearing that he arrived at the scene within an hour after the shooting occurred. He was told what defendant had reported to the police and later received the same report from defendant. Cline had two officers check all the buildings and cars on the block. They could find no bullet holes. There were no blood trails, and no injury to defendant or his car.

Cline spoke with Diane Miller. She reported that Stokes was cautious and purposely kept an irregular schedule. Cline then went to defendant’s car and saw a portable telephone and some handwritten notes, which he took. Cline concluded from the information he had that Stokes “had been set up.”

Cline subsequently subpoenaed the telephone records after he learned the number of defendant’s mobile telephone. Cline discovered from the records that a call was made from defendant’s mobile telephone shortly after midnight and lasted six minutes; a second call lasted 15 minutes and ended at 12:29 a.m. The calls were made to a mobile telephone registered to Elliot Taylor. Cline knew Taylor was involved in drug trafficking, and that defendant and Taylor grew up together. Defendant and Taylor had also been involved in several criminal activities together.

With regard to his motion to suppress evidence regarding an anonymous informant’s report that he overheard a mobile telephone conversation on the night of the shooting, defendant testified at the hearing that on the night in question he telephoned his ex-wife several times. These calls were made from his mobile phone to her brother-in-law’s mobile phone, which was registered to Elliot Taylor. Defendant expected that the conversations were private.

Cline testified that on November 18, Officer McWeeny talked to an anonymous caller about the overheard telephone calls. On November 19, Cline spoke with the same caller. Cline testified the caller said he had a scanner and that he overheard some mobile telephone conversations. Cline described it as a “running surveillance.” The informant said “that one person was telling the other person where their position was at different parts of the city as they were driving.” They stopped at a grocery store, then headed to the 7900 block of Ellis. The man on the phone said, “You better tell the boys not to run and you’re going to need a bodyguard after this thing is over.”

Larry Harris, director of operations and engineering of Cellular One, testified for the State at the hearing regarding the operation of defendant’s mobile telephone. Harris explained that when a mobile telephone caller dials a number, it is converted to a radio signal and transmitted to cell sites and broadcasted as a radio wave to the person receiving the call. A cell site consists of radio towers and bay stations which use radio wave transfer equipment. The radio signal used by the mobile telephones is an FM radio signal. Radio scanners, which are available to the general public, are capable of picking up the FM radio band. Any persons using the scanner on that frequency would hear the audio telephone conversation the same as if they were listening to a broadcast radio station. While some of this was explained in the company’s user’s manual, it did not explicitly say the conversations were not private because it was too negative and thus an unwise business practice.

The parties stipulated that Harris would also testify that on November 18, 1986, at midnight, defendant’s mobile telephone was used to call another mobile telephone and the call lasted six minutes and nine seconds. The calling car was located northeast of 58th Street and Halsted. The receiving car was located southeast of 58th and Halsted. A second call was made on defendant’s mobile telephone to the same mobile telephone eight minutes later. The cars were still within their original location areas.

As to defendant’s motion to quash his arrest and suppress his subsequent confessions for involuntariness and violation of his right to counsel, defendant testified that on November 24, 1986, he was asked to meet Officer O’Neill. Defendant was an informant for O’Neill and was running an undercover operation on Stokes’ drug empire activities. They met at 2 p.m. and drove in the squad car to Area 3 headquarters to view a composite drawing of the offenders. At the station, they met Cline, and defendant was told to wait. After a short time, O’Neill and Cline drove defendant to Area 2 headquarters. Defendant complied with their order to strip, to see if he was wearing a “wire.” He was put in an interview room, where he remained until late the next day.

The police told him they had records of mobile telephone conversations between defendant and Taylor on the night of the murders. “They said they had somebody that can say I was setting up the hit, you know, with Elliot Taylor.” He was shown telephone records, but no transcript of the conversation.

The police also showed defendant seven photographs of suspects in the shooting, but defendant could identify no one. They showed him a couple of photographs of dead children who were unrelated to the Stokes murder, and a photograph of a friend of defendant’s who had been shot in an unrelated incident. The police said defendant and his family could get protection in exchange for defendant’s giving the police the identities of the shooters. The police threatened to leak information that defendant was an informant and had set up the hit, and warned defendant that Stokes’ associates might hurt defendant or his family. They never indicated the police would hurt him.

The police also told defendant they realized he just thought it was supposed to be an armed robbery, not a murder. As a result, defendant gave the court-reported confession, because he thought the police would then let him go.

On the evening of November 24, defendant gave an oral statement to the police. He was given dinner that night. He gave a court-reported statement about 24 hours later. The interrogation continued throughout November 24 and 25. He was not allowed to sleep, and he had no bed. However, from 1 a.m. until 8 a.m. on November 25, he was left alone. He declined breakfast on November 25. Throughout the time at the station, he was allowed to use the bathroom frequently and was never struck or threatened by an officer.

Defendant testified further that during the two-day interrogation he frequently asked to telephone an attorney. When he gave the court-reported statement, he asked to see a lawyer both before and afterwards. They would not allow him to telephone anyone until he “cooperated” by making the court-reported statement. He was never read his Miranda rights.

Officers Michael Baker, Joseph M. Danzl, John Solecki, David J. Dioguardi, Thomas McKenna, Phillip Cline, Robert O’Neill, Robert Fitzgibbons, and Assistant State’s Attorney Michael O’Donnell testified for the State. They all testified to substantially the following facts in regard to the relevant time periods they were with defendant on November 24 and 25, 1986.

Defendant was a paid informant for the police in connection with his four-week job as bodyguard for Stokes. He had also worked on other cases with the police. After the shootings, on November 18 and 19, the police had defendant stay at a motel for a few days for safekeeping. They were concerned about his well-being because he had witnessed the murders and because he was a narcotics informant. O’Neill was shocked when Cline informed him about the telephone records and defendant’s involvement in the shootings. O’Neill arranged to meet defendant at a parking lot on November 24 at 2 p.m.

On November 24, at 2:30 p.m., defendant arrived at Area 3 headquarters with O’Neill. Defendant was there for one-half hour and was not questioned. At approximately 5 or 5:30 p.m., delayed because of heavy traffic, defendant arrived at Area 2, where he was arrested. Cline and O’Neill drove defendant to Area 2. Cline did not know if defendant was searched there, but assumed he was patted down.

At 6:15 p.m., McKenna, Baker and Danzl spoke with defendant for one-half hour. They read defendant his rights, which he stated he understood. They showed defendant Cellular One telephone records and told him they had evidence of telephone conversations that he was setting up a robbery and/or homicide of Stokes.

At 8 p.m., Cline, Fitzgibbons and O’Neill spoke with defendant for 30 or 40 minutes. They first read defendant his rights, which he stated he understood.

At 11:45 p.m., Solecki and Dioguardi spoke with defendant for about an hour. They again read defendant his rights, which he stated he understood.

On November 25, at 8 a.m., Cline saw defendant, who had just wakened. Defendant refused food. At 1:30 p.m., Cline and O’Donnell spoke with defendant for about 30 or 40 minutes. Defendant was first read his Miranda rights, which he stated he understood. Defendant agreed to give a court-reported statement.

At 2:55 p.m., defendant gave a 13-page, court-reported statement. He stated that he had been read his rights and understood them. He had been treated well by the police and was making the statement voluntarily. He read the transcribed statement, made changes, initialled the changes, and signed the statement.

The officers and O’Donnell denied showing defendant any photographs; denied saying his family would be harmed by Stokes’ associates; denied offering defendant protection in exchange for identifying the shooters; and testified that defendant never asked to see an attorney. Fitzgibbons testified that late on November 24, defendant expressed some concern for his family. “At some point the offer was made that his family could be protected or might be — attempt to be made to protect the family.” The interview room defendant was kept in did not have a bed.

The trial court denied the motion to quash arrest and suppress evidence and confession, and the trial proceeded.

In view of the nature of defendant’s contentions on appeal, we will not recite the testimony adduced at trial, with the exception of defendant’s confession. If certain testimony is pertinent to our discussion of any of the issues, it will be set forth in our analysis.

Assistant State’s Attorney Michael O’Donnell testified regarding defendant’s confession. O’Donnell read the 13-page confession to the jury. The confession included the following facts relevant to the issues before this court.

Several weeks before the shooting, defendant met with Taylor. Taylor had agreed to give defendant a car telephone several weeks earlier. The Friday before the shooting, Taylor and defendant met. Defendant agreed to set Stokes up for an armed robbery in exchange for Taylor’s forgiving an $800 debt defendant owed him for cocaine. On the night of the shooting, defendant, as bodyguard, followed the victims from a movie theater to 47th Street, then took 53rd to Woodlawn, Woodlawn to 51st, 51st to King Drive, then to 48th and Indiana to 47th. They stopped at a restaurant. Defendant kept Taylor apprised of the route on the car telephone. They went down 47th Street to 51st Street to the expressway, to 79th and Calumet, where they stopped at a grocery store for 10 minutes. “I told him I’m going to leave the phone off the hook, you know, lay the phone down and I’ll get back in touch with him when I got back in the car.” They were IV2 miles from Miller’s home. Defendant told Taylor they were “going in. I said tell the boys not to run away. And I said you’re going to need two bodyguards when this is all over with.” They stopped at a liquor store at 79th and Cottage Grove.

When they arrived at 7941 South Ellis, two men came out and started shooting at Stokes’ car. Defendant got out and shot over their heads several times. He did not shoot at them because he knew Taylor had sent them to rob Stokes.

Defendant first contends that the warrantless search of his car telephone at the murder scene was illegal because there was no probable cause and the seizure was not effectuated as incident to arrest. Defendant maintains that the car telephone was crucial to the State’s case because it enabled the police to obtain the telephone records.

Determining whether the police have probable cause to conduct a search requires an examination of the officer’s factual knowledge based on his law enforcement experience. (People v. Stout (1985), 106 Ill. 2d 77, 477 N.E.2d 498.) Probable cause exists when the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) We will not disturb the trial court’s ruling on a motion to suppress unless it is clearly erroneous. People v. Clark, 92 Ill. 2d 96, 440 N.E.2d 869.

We cannot say that the trial court’s determination here was clearly erroneous. The police found defendant at the murder scene, standing next to the bodies, waving a gun, and initially refusing to put the gun down, forcing an officer who was pointing a gun at defendant to repeat the order. The most significant piece of information the police had concerned the physical evidence at the scene, because it contradicted defendant’s story.

Defendant repeatedly told the police at the scene, with precise details, about each shot he fired at the assailants, and about the man who was struck by one of those bullets. The police conducted several thorough searches of the grass, streets, curbs, vehicles and buildings in a two-block area. They found no blood, no bullet holes, no shattered glass, no scratched or dented cars, and no other damage to nearby buildings. Also peculiar was the fact that defendant shot at the assailants from a short distance of only two car lengths. Yet they never returned defendant’s gunfire, despite their more than adequate weaponry. Defendant testified, incredibly, that they simply were not paying any attention to him.

Added to all this information, Cline learned from Miller that Stokes carefully avoided regular habits and was cautious when he and Miller were out. Cline could reason, based on his experience as a police officer, that Stokes was in fact set up by someone familiar with the plan and able to discover and immediately report to accomplices the last-minute timing of the arrival at the house.

Having reasoned that defendant might be involved in the murders, it was reasonable to believe that the mobile telephone would be used in the necessarily last-minute decision to begin the shooting. By taking the telephone, the police could discover or verify its telephone number, the cellular telephone company servicing the telephone, and thus obtain the highly relevant telephone records.

Defendant’s argument that his car was “parked” and, therefore, the automobile search exception does not apply is without merit. Defendant’s car was double parked in a lane of traffic at a murder scene, with the keys in it and engine running. It was not unreasonable to seize the telephone, considering the totality of circumstances known to the police at the time the telephone was seized. We hold that the trial court could properly find that the police had reasonable grounds to believe that defendant’s car telephone could be evidence of criminality.

Defendant also contends that the trial court erred in denying his motion to suppress evidence regarding an anonymous informant’s report that he overheard a mobile telephone conversation on the night of the shooting. Defendant argues that an anonymous person acting without authority or consent and secretly listening to defendant’s alleged mobile telephone conversations constituted illegal eavesdropping under State and Federal law.

The Illinois legislature has declared that eavesdropping is a criminal offense. (Ill. Rev. Stat. 1985, ch. 38, par. 14—2.) Any evidence obtained in violation of section 14 — 2 is inadmissible in any civil or criminal trial. Ill. Rev. Stat. 1985, ch. 38, par. 14—5.

Eavesdropping is defined as hearing or recording a conversation without the consent of any or all parties to the conversations, through the use of an eavesdropping device. (Ill. Rev. Stat. 1985, ch. 38, par. 14—2.) An eavesdropping device is “any device capable of being used to hear or record oral conversations whether such conversation is conducted in person, by telephone, or by any other means.” (Ill. Rev. Stat. 1985, ch. 38, par. 14—1(a).) Defendant maintains that the standard radio scanner used by the informant was an eavesdropping device. We do not agree. The key fact is that radio scanners, which are readily available to the general public, are capable of picking up the FM radio signal which mobile telephones use to transmit their signals. Any scanner on that frequency would pick up the audio sound the same as if it were picking up a broadcast from a radio station.

In addition to the common knowledge that conversations transmitted by radio waves may be easily intercepted, the user’s guide accompanying the particular mobile telephone at issue here informed the user of this fact. The trial court properly relied on the fact that the guide makes it clear that the telephone used radio waves, including warnings about the danger of detonating explosives on the same frequency and warnings about using obscene language that may be picked up on the air. Similarly, in State v. Delaurier (R.I. 1985), 488 A.2d 688, the court held that a user’s manual for a cordless telephone which operated by transmitting signals over radio waves fully advised the user that, given the nature of the telephone, privacy was not ensured.

We have found no indication in the statute or the relevant case law that the penal eavesdropping statute was meant to embrace a standard radio scanner as an eavesdropping device. Criminal statutes are not to be read expansively to include more than what is plainly included within the statutory language, since that would defeat the statute’s purpose of fairly apprising persons of the boundaries of the prohibited action. See Kordel v. United States (1948), 335 U.S. 345, 93 L. Ed. 52, 69 S. Ct. 106; Acme Fireworks Corp. v. Bibb (1955), 6 Ill. 2d 112, 126 N.E.2d 688.

Under the Federal counterpart of our statute (18 U.S.C. §2510(4) (1988); see People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346 (court held that its interpretation of eavesdropping is consistent with Title III)), it has been held that an ordinary AM radio is not an eavesdropping device. (State v. Delaurier, 488 A.2d 688.) The court in Delaurier held that the term “device” did not include the AM radio over which an individual heard defendant’s conversation on a cordless telephone which operated by means of radio waves. We agree with the court’s reasoning and find it applicable here. The eavesdropping statute “simply was not intended to prevent anyone from listening to an AM broadcast, put on the air voluntarily, and accessible by anyone possessing an ordinary AM radio.” Delaurier, 488 A.2d at 694.

The purpose of the eavesdropping statute is to protect an individual’s rights to a legitimate expectation of privacy. It will not be used, however, to reach an absurd result. (People v. Clark (1984), 125 Ill. App. 3d 608, 466 N.E.2d 361.) The courts addressing the issue of expectation of privacy in a conversation on a telephone which transmits by radio waves have overwhelmingly held there is no such expectation of privacy. Tyler v. Berodt (8th Cir. 1989), 877 F.2d 705; United States v. Hall (9th Cir. 1973), 488 F.2d 193; United States v. Hoffa (7th Cir. 1970), 436 F.2d 1243; Edwards v. Bardwell (M.D. La. 1986), 632 F. Supp. 584, aff’d mem. (5th Cir. 1986), 808 F.2d 54; State v. Smith (1989), 149 Wis. 2d 89, 438 N.W.2d 571; State v. Howard (1984), 235 Kan. 236, 679 P.2d 197; People v. Fata (1988), 139 Misc. 2d 979, 529 N.Y.S.2d 683.

Defendant argues that denial of his motion to suppress was erroneous because the person listening on the scanner violated Federal law. Under the holdings listed above, it is clear that defendant had no justifiable expectation of privacy and no protection under those laws. (See 18 U.S.C. §§2510(2), 2511 (1988) (Wiretap Tap Act).) There is also no expectation of privacy under the Communications Act (47 U.S.C. §605 (1982)). Edwards v. State Farm Insurance Co. (5th Cir. 1987), 833 F.2d 535; United States v. Rose (1st Cir. 1982), 669 F.2d 23.

We hold that the type of scanner at issue here, which can pick up FM radio waves, including the radio waves which transmit signals from the type of mobile telephone used here, is not an eavesdropping device under the Illinois statute. Thus, the motion to suppress was properly denied on this basis.

Defendant also contends that the trial court erred in denying his motion to suppress the confessions. Defendant argues that the police obtained his confessions in violation of both his fifth and sixth amendment rights to counsel. Defendant maintains that his right to counsel attached when he was charged with unlawful use of weapons on November 18, 1986, and thus, he had a right to counsel at all subsequent State-initiated interrogation, including his questioning and arrest for the murders on November 24 and 25, 1986.

A person’s sixth and fourteenth amendment right to counsel attaches when adversarial judicial proceedings are initiated against him. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) Defendant has cited no authority, however, to indicate the relevancy of the arrest for unlawful use of weapons to the right to counsel for the murder arrest. The attachment of the sixth amendment right to counsel for one charge clearly does not trigger the right to counsel with respect to other crimes for which defendant had not yet been charged. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612; People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) Where the State has initiated a prosecution on one charge, later incriminating statements relating to other crimes as to which the sixth amendment right has not yet attached are admissible at the trial of those offenses. (Maine v. Moulton (1985), 474 U.S. 159, 182 n.16, 88 L. Ed. 2d 481, 499 n.16, 106 S. Ct. 477, 490 n.16.) The weapons offense and the murder charges were “in every constitutionally significant aspect, separate crimes.” (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 121 n.1; United States v. Chu (7th Cir. 1985), 779 F.2d 356.) The confessions here were used in the murder trial, not in a trial for the weapons offense.

In regard to defendant’s fifth amendment right, the right against self-incrimination requires that an individual have an attorney present to counteract the inherent pressures of custodial interrogation, regardless of the number of crimes under investigation or whether they result in formal charges. Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.

There is nothing in the record to indicate defendant requested counsel when he was arrested for unlawful use of weapons. He was released on bond the same morning without appearing in court. He testified that the State’s Attorney’s office put up his bond. We fail to see how a person’s right to counsel under the fifth amendment can be invoked by that arrest.

Defendant also contends that he invoked his fifth amendment right to counsel during the November 24 and 25 interrogation. Whether there has been an intelligent waiver of such right depends upon the surrounding circumstances, including the accused’s background, experience and conduct. (People v. Martin, 102 Ill. 2d 412, 466 N.E.2d 228.) When an individual has been admonished of these rights, indicates he understands them, and gives a statement without asking for a lawyer, a court can find he waived a known right. People v. Martin, 102 Ill. 2d 412, 466 N.E.2d 228.

Eight officers and an assistant State’s Attorney testified that defendant was repeatedly advised of his Miranda rights, which he always indicated he understood. He never requested an attorney. Moreover, defendant had been arrested many times and was familiar with the legal system. In addition, defendant believed his ongoing relationship with the State’s Attorney’s office offered him some protection. We find no error in the trial court’s consideration of the witnesses’ credibility and finding that defendant never invoked a fifth amendment right to counsel.

Defendant maintains further that the motion to suppress the confessions should have been granted because his statements were involuntary. Whether a statement is voluntary depends upon the totality of the circumstances. The test is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether defendant’s will was overcome at the time he confessed. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) Voluntariness must be established by a preponderance of the evidence. (People v. Higgins (1972), 50 Ill. 2d 221, 278 N.E.2d 68.) The related questions of credibility of the witnesses are best resolved by the trial judge, whose determination will be upheld unless contrary to the manifest weight of the evidence. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Higgins, 50 Ill. 2d 221, 278 N.E.2d 68.

Defendant points to the facts that his statements were not made until he was interrogated for 24 hours and that he was deprived of sleep. The record indicates, however, that defendant was arrested late in the afternoon on November 24. At 6:15 p.m., he was interviewed for SO minutes. At 8 p.m., he was interviewed for 30 minutes, and he orally confessed to his participation in the crimes. At 11:45 p.m., he was interviewed for 75 minutes. Defendant was not interviewed from 1 a.m. until 8 a.m., when Cline saw him just as defendant was waking up. On November 25, at 1:30 p.m., defendant was interviewed for 30 or 40 minutes. At 2:55 p.m., defendant gave his court-reported statement.

Defendant points out that he made no telephone calls until after the court-reported statement, which he believes proves he was held incommunicado, which in turn indicates his statements were involuntary. The court could properly rely on the credibility of the witnesses who testified defendant never asked to make a telephone call.

Defendant notes that the police offered to protect his family if he confessed. Defendant said he was concerned about his family’s safety, and one officer testified that the police said they could offer some protection. If any offer of protection was made, it is only one factor to be considered in determining the question of voluntariness. People v. Kashney (1986), 111 Ill. 2d 454, 490 N.E.2d 688; People v. Makes (1981), 103 Ill. App. 3d 232, 431 N.E.2d 20.

Considering all the circumstances, we cannot agree with defendant that his will was overcome at the time he confessed. The evidence indicates there was no continuous interrogation; the questioning was brief; he slept, ate and drank; and he stated in his court-reported statement he was treated well. Defendant was experienced in the criminal justice system, and he was continuously advised of his rights.

Defendant also contends that the trial court erred in denying his motion to quash arrest because there was no probable cause for his arrest for murder on November 24. Probable cause for arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense was committed and the defendant committed the offense. (People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475.) The key considerations are factual and practical considerations of everyday life, and are not unduly technical. (People v. Lucas (1980), 88 Ill. App. 3d 942, 410 N.E.2d 1040.) This court will not disturb a ruling on probable cause for arrest unless it is manifestly erroneous. People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

The evidence presented at the hearing on the various pretrial motions (People v. Hall (1987), 164 Ill. App. 3d 770, 518 N.E.2d 275) established the information known by the police on November 24, when defendant was arrested for the murders.

Defendant was present at the murder scene. His car was parked directly behind Stokes’ car, but was untouched by the gunfire from an Uzi submachine gun, sawed-off shotgun and pistol. Defendant claimed he shot at the assailants, who stood two car lengths away, and perhaps hit one of the men, yet they did not return his fire. After several searches, the police could find no physical evidence to support defendant’s statement that he shot repeatedly at the offenders. Defendant saw the offenders run quickly from the scene, while other witnesses saw the men walk away.

In addition, information from Miller indicated the murder of Stokes was set up by someone familiar with his cautiously unpredictable schedule. Telephone records indicated that defendant placed one six-minute call to a mobile telephone registered to Elliot Taylor, with whom defendant shared a long history, just after midnight, and a second 14-minute call to the same number. The police were aware that both Stokes and Taylor were reputed drug dealers.

Finally, the police knew that an anonymous caller had overheard a mobile telephone conversation on a scanner that night. The conversations occurred just before the shooting. One person detailed the exact route being taken by several people. The route matched that which defendant told the police he and Stokes followed just prior to the murders.

While the anonymous caller did not identify defendant as one of the persons participating in the overheard conversation, defendant admits he was using the telephone during the half-hour in question and that he was the only person in the car. The telephone records indicate the area of the city in which defendant’s car, and the car telephone he was calling, were located when he placed the two telephone calls. The route defendant admitted using and that described in the overheard conversation were the same.

Defendant’s argument that the State failed to show the anonymous caller was reliable is without merit. No such showing need be made where, absent indications that he was being paid by the police, there is a presumption that he is an ordinary citizen whose information is inherently reliable. People v. Hall, 164 Ill. App. 3d 770, 518 N.E.2d 275.

We hold that the trial court’s finding of probable cause for defendant’s arrest is not manifestly erroneous.

Defendant next contends that he was denied a fair trial because the court belittled defense counsel in the presence of the jury.

In order for the comments by a judge to constitute reversible error, defendant must show that they constituted a material factor in the conviction or were of such a nature that the probable result was to affect the jury’s verdict. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) We have carefully reviewed the portions of the record cited by defendant. We find nothing to indicate that prejudicial error occurred. There is no error where the court merely rules unfavorably to a party or where it properly admonishes counsel. See People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568.

Defendant also contends that photographs of the crime scene and the victims’ bodies were prejudicial and inflammatory and should not have gone to the jury. Defendant maintains that the photographs had no probative value since the victims’ cause of death was not an issue.

The crime scene photographs accurately portrayed the scene to the jury. In regard to the morgue photographs, the court held back the most offensive pictures. Photographs of the crime scene would show, e.g., the wilfulness of the acts in question, the fact that the vietims’ car was covered with bullet holes, while defendant’s car was untouched by gunfire, and generally show the condition of the crime scene. The morgue photographs showed the force used against the victims, the deliberate manner of the killing, and number and location of wounds and cause of death, thus corroborating the pathologist’s testimony. See People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; see also People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247 (photographs of post-autopsy victim with brain fragments near hair may be admitted even where defendant offers to stipulate as to matters shown therein).

Defendant points to one comment by the trial court that the photographs were “pretty gross.” The grotesqueness of photographs does not prohibit their publication to the jury, where the photographs are probative of the relevant facts. (See People v. Lindgren, 79 Ill. 2d 129, 402 N.E.2d 238.) We find no abuse of discretion in admitting the photographs into evidence.

Defendant also contends that the trial court erred in permitting testimony regarding the mug shot of Elliot Taylor. Cline stated that defendant reported Taylor’s involvement in setting up Stokes’ murder. Cline showed defendant an “IR photo” of Elliot Taylor, which defendant identified as Taylor. Cline then directed other officers to try to locate Taylor and investigate further both Taylor and his car’s mobile telephone.

The court asked, “What is an IR photo?” Cline replied that it is a photograph taken of an arrestee at the police station. The State later offered a blown up picture of Taylor’s mug shot. The court denied defendant’s motion for a mistrial. The photo was not sent back to the jury.

Defendant argues that “[jjust as evidence suggesting that a defendant has a criminal background is inadmissible absent a specifically relevant purpose ***, evidence regarding the defendant’s alleged confederate’s prior criminal activity should be inadmissible.” He maintains that the prosecution’s “efforts to dirty Taylor resulted in [defendant] being prejudiced, albeit unfairly.”

Defendant cites no authority, and this court knows of no support, for the argument that evidence of prior arrests of someone other than defendant should be prohibited. No error occurred.

We next address defendant’s contention that the testimony of Cline on rebuttal was inadmissible hearsay and violated his right to a fair trial. Cline was called to rebut defendant’s testimony that he was told by Cline that there were tapes of defendant on his mobile telephone giving directions about Stokes’ whereabouts. Defendant testifled that these tapes were not shown to him, and that Cline never told him an anonymous citizen overheard his conversation on the telephone.

In rebuttal, Cline stated that he never told defendant there were tapes of him talking to Taylor. Cline then testified as to what he told defendant had been overheard. Defendant offered his first objection when Cline was asked where he received the information regarding the conversation.

The trial court, in a side bar, repeatedly stated that defendant failed to object to Cline’s testimony as to the substance of what defendant was told was overheard. We agree, and find the issue is waived. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Moreover, where defendant did not object to Cline’s testimony on direct examination, but questioned him extensively on cross-examination regarding the same testimony, any error is waived. People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091; People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.

In addition, where a defendant opens the door to an issue on direct examination, he interjects the issue into his case. He cannot then contend that bringing it to the attention of the jury is error. (People v. George (1971), 49 Ill. 2d 372, 274 N.E.2d 26.) He invited or acquiesced in the admission of the evidence, even if it was hearsay testimony. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) Cline’s rebuttal testimony, although hearsay, does not require reversal.

Defendant finally contends that he and his ex-wife were improperly impeached with prior convictions. Defendant failed to object at trial and thus has waived the issue on appeal. (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Moreover, it was defendant himself who introduced evidence of his and Peggy Wilson’s prior convictions.

In view of our holdings, we need not address defendant’s contention that the cumulative effect of the errors mandates reversal.

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.