text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL RODARTE, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—3167
    Opinion filed June 26, 1989.
    Modified on denial of rehearing December 4, 1989.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and James Sanford, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant stands convicted of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4). He appeals, claiming that: (1) he was denied a fair trial when the judge referred to the complaining witness as “dear” in the presence of the jury; (2) the State failed to prove the defendant’s guilt beyond a reasonable doubt; (3) the trial court should have instructed the jury on the lesser included offense of criminal sexual assault; (4) the Illinois criminal sexual assault statute is overbroad and void for vagueness; (5) the trial court erred by sentencing the defendant for four counts of aggravated criminal sexual assault and one count of aggravated battery where defendant committed only one offense; and (6) the trial judge abused his discretion by sentencing the defendant to concurrent 10-year sentences.

The defendant, Michael Rodarte, and the complaining witness were co-workers at a bar and restaurant known as Findley’s Pub. The defendant was a doorman and the complainant was a waitress. On October 16, 1985, both parties were scheduled to work; however, the defendant was given the night off due to slow business. He remained on the premises to celebrate another co-worker’s birthday.

The defendant drank heavily and became intoxicated at the celebration; the complainant had one drink. He offered the complainant a ride home, but she drove the defendant’s car because he was too drunk to drive. While driving to her apartment, the complainant was stopped by a Chicago police officer. The defendant then drove the remaining distance to the complainant’s apartment.

On the evening in question the defendant was wearing a pair of loosely fitting, blue khaki pants, a white Findley’s jacket, which had a small blue logo on the front and a large logo on the back, and the complainant was wearing jeans, a sweater, a sleeveless T-shirt and an oxford shirt.

The complainant testified that since the defendant felt too ill to drive she offered to let him sleep on the couch in the apartment she shared with three female roommates. There were no lights in the apartment when they entered, and her roommate Jamie was asleep on the floor. The complainant walked to the bedroom which she shared with Linda, said hello to Linda, who was asleep, and returned to the living room. She showed the defendant the bathroom and instructed him to rest on the couch.

As she walked back to her bedroom, the defendant followed her. He asked whether he could sleep in another room which was off the hallway. She told the defendant that that was her roommate Cathy’s room and that she did not know whether Cathy was at home. When she stepped into Cathy’s room and turned on the light, the defendant forced her inside and shut the door. He ripped her oxford and T-shirt open, removed her sweater and pushed her face down into the bed. She tried to make noise, but the defendant covered her mouth and hit her repeatedly in the face. During this beating, she lost consciousness for several seconds. The defendant then gagged her mouth and tied her hands behind her back and removed her shoes, pants and panties. He pulled his pants down to his knees, placed his mouth over her breasts and forced his fingers into her vagina and anus. The defendant inserted his tongue into her vagina and his penis touched her vagina and anus, but there was no penetration.

After performing these acts, the defendant put her pants back on and buttoned a sweater around her shoulders. He dressed and forced the complainant to leave the apartment barefoot while still bound and gagged. He walked her out of the apartment building and pushed her into a garbage dumpster.

The complainant was in the dumpster for approximately five minutes when Steven Avery, a neighbor, arrived and rescued her. He took the gag from her mouth and cut her hands loose. He then took her to his apartment, where they waited for the police to arrive. As a result of the beating, the victim had blurred vision in one eye for two months.

Steven Avery testified that he lived in the same apartment building as the complainant and that on October 17, 1985, he returned home from work at approximately 2:30 a.m. While unloading his car he saw a 5-foot 8-inch heavyset male wearing tight jeans, a T-shirt and a light-colored jacket which did not have any writing on it, standing in a hallway. He identified the defendant as that man. Mr. Avery walked to his apartment and then returned to his car. He saw the man a second time in the hallway about 10 feet from the rear door of the apartment building. He went back to his apartment and returned with a knife and his dog, but the man was gone. He walked to the rear doors, where he heard a woman’s muffled voice calling out what sounded like the name “Mike.” As he opened the rear door he saw two feet sticking out of a garbage dumpster. He opened the dumpster and found the complainant bound, gagged and beaten. He called the police and then rescued the complainant from the dumpster and cut her hands loose. They went to her apartment and waited for the police to arrive.

Chicago police officer Chris Sorozco testified that on the morning of October 17, 1985, he received radio information about a rape. He went to the given address where he was met by Steven Avery. Mr. Avery took Officer Sorozco to his apartment, where he talked with the victim. The complainant appeared to be in a state of shock and told him that she was raped by a co-worker named Mike. Officer Sorozco took her to the dumpster and then back to her apartment. The door was opened by her roommate Linda, and her other roommate was asleep on the living room floor. He gathered evidence and took the complainant to the hospital.

Daniel Steinhauer, general manager of Findley’s Pub, testified that he was at the pub on October 16, 1985. The uniform jacket that the defendant wore that evening was a white baseball-style jacket, with a six- to seven-inch blue “Findley’s” logo on the front and a 12-inch multicolored logo on the back. He testified that the defendant was scheduled to work Friday and Saturday following the incident but did not show up for work.

Lastly, the State offered the testimony of Chicago police detectives Carey Orr and John Cole. Detective Orr testified that on October 17, 1985, he called the owner of Findley’s Pub and obtained information on the defendant. He went to the defendant’s apartment, and not finding him at home, left a business card with the defendant’s mother and requested that the defendant contact him. Detective Cole testified that on October 23, 1985, the defendant appeared at the police station with his attorney and was arrested.

The defendant testified on his own behalf and stated that he was employed full time at Alamo Rent-a-Car and worked part time at Findley’s Pub. On the night in question he was wearing loosely fitting blue pants, a long-sleeved white shirt with a collar and his Findley’s jacket. His testimony was substantially the same as that of the victim up to the point when they reached her apartment. He stated that when he entered her apartment there were no lights on, and he almost tripped over a male figure sleeping on the living room floor whom the complainant identified as a friend of her roommate’s boyfriend. He followed the complainant down the hallway to the back bedroom, where the complainant said hello to her roommate, Linda. The defendant heard a male voice come from the bedroom.

He went back to the living room, where he fell asleep for a brief time. When he awoke, he left the apartment, went to a White Hen Pantry where he drank a cup of coffee and went to work at Alamo. He stated that he never sexually assaulted the complainant. It was established at trial that the defendant had resigned from his job at Alamo one month prior to the incident.

Defendant was indicted on multiple counts of aggravated battery, aggravated kidnapping, kidnapping, unlawful restraint, intimidation, aggravated criminal sexual assault, criminal sexual assault and attempted criminal sexual assault. Following a jury trial, he was convicted of one count of aggravated battery and four counts of aggravated sexual assault and sentenced to five concurrent 10-year terms.

One of defendant’s contentions is that the statute under which he was convicted for aggravated criminal sexual assault is unconstitutionally broad and vague because it fails to meaningfully define the element of force. The same argument was presented to and rejected by our supreme court in People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45. Accordingly, we find no merit in the defendant’s argument.

Defendant’s next argument is that he was denied a fair trial when the court referred to the complaining witness as “dear,” thereby enhancing her credibility and prejudicing him before the jury.. It is generally accepted that the defendant’s failure to object to an issue during trial or to raise it in a written post-trial motion specifying the grounds supporting the motion constitutes waiver of that issue and the alleged error will not be considered as being properly before the reviewing court absent plain error. (People v. Shum (1987), 117 Ill. 2d 317, 340, 512 N.E.2d 1183; People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330; People v. Johnston (1987), 160 Ill. App. 3d 536, 542, 513 N.E.2d 528.) Moreover, our supreme court in People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 112, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274, invoked a more narrow construction of the general rule by holding that to preserve an issue for review, “both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during the trial.” (Emphasis in original.) As this issue was neither objected to at trial nor raised in the post-trial motion, and we do not recognize it as plain error, it has been waived on appeal.

Defendant also claims that he was not proven guilty of aggravated battery and aggravated criminal sexual assault beyond a reasonable doubt because the victim’s testimony was unreliable and the witness’ description of the clothing worn by the assailant did not match what the defendant was wearing that night. He contends that some unknown male who had been sleeping on the living room floor may have committed the offense.

The identification testimony of a single witness, if positive and credible, is sufficient for a conviction. (People v. Thomas (1986), 145 Ill. App. 3d 1, 7-8, 495 N.E.2d 639.) A conviction for aggravated criminal sexual assault, where the defendant denies the charge, will be upheld where there is either some corroboration of the testimony of the complaining witness, or that testimony is otherwise clear and convincing. (People v. Sexton (1987), 162 Ill. App. 3d 607, 612, 515 N.E.2d 1359.) The credibility of the complaining witness is a question for the trier of fact, and a reviewing court will not reverse the conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt exists. People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019.

In the present case, the victim consistently identified the defendant as her assailant. It was the jury’s function to determine the weight to afford her testimony, and we are not inclined to reverse that finding on appeal. The evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt.

Defendant also maintains that the trial court should have instructed the jury on the elements of the lesser included offense of criminal sexual assault. He contends that because the victim did not suffer any broken or fractured bones, was not permanently disfigured or hospitalized overnight for her injuries, the jury could have found that she did not suffer bodily harm.

Section 12 — 14 of the Criminal Code of 1961 provides, in part, that an accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and causes bodily harm to the victim. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14.) “Bodily harm” is defined in the Code as “physical harm, and includes, but is not limited to, sexually transmitted disease, pregnancy and impotence” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(b)), and is given the same meaning as bodily harm under the battery statute. (Haywood, 118 Ill. 2d at 277.) For purposes of the battery statute, bodily harm consists of some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent. People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633; People v. Boyer (1985), 138 Ill. App. 3d 16, 18, 485 N.E.2d 460.

In the present case there is no evidence which would allow a jury to find the defendant guilty of the offense of criminal sexual assault. The record indicates that the victim was hit in the face between 5 and 10 times during the attack. Her face was bruised and swollen, and she had blurred vision for about two months after the incident. An included-offense instruction is only required in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense. (People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250.) Where the evidence shows that the defendant is guilty of the higher offense or not guilty of any offense, an instruction on the lower offense is unnecessary and is properly refused. People v. Reynolds (1987), 152 Ill. App. 3d 216, 219, 504 N.E.2d 163.

The defendant next argues that his conviction for aggravated battery and his multiple convictions for aggravated criminal sexual assault should be vacated. The most difficult issue presented on appeal is the defendant’s contention that his multiple convictions for aggravated criminal sexual assault should be vacated because they stem from the same physical act and constitute only one offense. Defendant relies on the case of People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, for this position. In Cox, the defendant was convicted of two counts of indecent liberties with a child for committing almost simultaneous acts of sexual intercourse and oral genital contact with the same child. The supreme court vacated one of the convictions, stating that, in the absence of a statutory provision to the contrary, the conduct constituted a single offense and that only one sentence should be imposed. 53 Ill. 2d at 106.

Defendant argues that his actions in the present case similarly constitute one act because they were committed within minutes of each other and involved one victim. The State maintains that the defendant committed four separate “acts” of penetration, and consequently, can be convicted and sentenced for four separate counts of aggravated criminal sexual assault.

The seminal case involving this issue is People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. In King, the court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” 66 Ill. 2d at 566.

The determination of this issue involves two inquiries: (1) whether the defendant’s conduct constitutes parts of one “act” or distinct and separate “acts” in and of themselves; and (2) if they are distinct and separate acts, whether the defendant’s convictions are for different offenses. Factors to be considered in determining whether a defendant’s conduct constitutes separate acts or merely distinct parts of a single act are: (1) the time interval occurring between successive parts of the defendant’s conduct; (2) the existence of an intervening event; (3) the identity of the victim; (4) the similarity of the acts performed; (5) whether the conduct occurred at the same location; and (6) prosecutorial intent. People v. Williams (1987), 161 Ill. App. 3d 613, 622, 515 N.E.2d 266; People v. Baity (1984), 125 Ill. App. 3d 50, 52, 465 N.E.2d 622.

An examination of the relevant cases evidences a significant difference of opinion on this issue among the districts of the Illinois Appellate Court. Some cases, relying on People v. King, have held that People v. Cox is no longer controlling. (See People v. Leiker (1983), 115 Ill. App. 3d 752, 450 N.E.2d 37; People v. Zeiger (1981), 100 Ill. App. 3d 515, 426 N.E.2d 1229.) Other cases, however, have held that Cox and King can coexist because they apply to different sets of facts. See People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333.

In People v. King, the defendant had been convicted of rape and burglary with intent to commit rape. The court held that since the offenses of rape and burglary are based on separate acts, each requiring proof of a different element, the convictions of both were proper. (King, 66 Ill. 2d at 566.) Meanwhile, in People v. Cox, the defendant was convicted of two counts of indecent liberties with a child, pursuant to different subsections of the same statute. The court stated that where the defendant’s convictions were based on a single transaction involving two acts, each of which was an act proscribed by the same statute, and there was no indication in the statute whether multiple violations would constitute á single or multiple offenses, any ambiguity should be resolved in favor of leniency. (Cox, 53 Ill. 2d 101.) Thus, the distinction turns on whether the situation is one which involves multiple convictions for different offenses based on a series of closely related acts, or multiple convictions for the same offense based on those acts.

Subsequent supreme court cases have maintained this distinction. For example, in People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180, the defendant appealed his convictions for aggravated battery and mob action based on a repeated beating administered by the defendant, arguing that the beating constituted a single “act” and could support only one conviction. Relying on People v. King, the court held that the interrelationship of multiple acts did not preclude multiple convictions and that the separate blows, although closely related, were separate acts which could properly support multiple convictions for different offenses. Dixon, 91 Ill. 2d at 356.

In the present case, the statute upon which the petitioner’s aggravated criminal sexual assault convictions are based provides:

“§12 — 14. Aggravated criminal sexual assault, (a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
* * *
(2) the accused caused bodily harm to the victim; or
(3) the accused acted in such a manner as to threaten or endanger the life of the victim or any other person; or
(4) the criminal sexual assault was perpetrated during the course of the commission or attempted commission of any other felony by the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14.)

Pursuant to this section, the offense of aggravated criminal sexual assault may be committed in any of the enumerated ways. As in People v. Cox, the statute contains no indication of whether violations of multiple subsections constitute a single or multiple offenses.

We acknowledge the cases which hold that the defendant’s conduct may constitute a single offense and that only one sentence should be imposed. (See People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; Cox, 53 Ill. 2d 101, 291 N.E.2d 1; People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212; People v. Rassmussen (1986), 143 Ill. App. 3d 11, 492 N.E.2d 12; Sanford, 119 Ill. App. 3d 160, 456 N.E.2d 333.) However, recent cases have also held that there can be as many separate convictions with concurrent sentences as there are acts, even though they constitute violations of subsections of the same statute, so long as they are not lesser included offenses. See People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165; People v. Mueller (1985), 130 Ill. App. 3d 385, 474 N.E.2d 434; Leiker, 115 Ill. App. 3d at 752, 450 N.E.2d 37; People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631; Zeiger, 100 Ill. App. 3d 515, 426 N.E.2d 1229; Mays, 81 Ill. App. 3d 1090, 401 N.E.2d 1159.

Our supreme court has recently resolved the ambiguities and conflicting results represented by the various decisions by con-eluding that a defendant who commits multiple acts of equal value, i.e., Class X felonies may be prosecuted and convicted for each act. (People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802.) In reaching its conclusion, the People v. Segara court noted that although it was not the legislature’s intent for a defendant to receive convictions for each act, the General Assembly ensured that each act of rape regardless of how it was committed is punishable, since rape is unlike other offenses in that with each act the victim’s psychological constitution and most intimate part of her being have been violently invaded. (126 Ill. 2d at 77-78.) Accordingly, we affirm the trial court’s four separate convictions, rather than a single term for all convictions. King, 66 Ill. 2d at 556, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; Segara, 126 Ill. 2d at 78.

As to the defendant’s conviction for aggravated battery, the record indicates that the defendant was charged with aggravated battery for striking the victim in the eye at the time of the sexual assault and for later throwing her in a dumpster. Either of these actions would support a conviction for aggravated battery, and since the jury returned a general verdict, there is no way of knowing which theory the verdict is based upon. Where the jury renders a general verdict, it is presumed to be based on any good charge to which the proof is applicable (People v. Tanner (1986), 142 Ill. App. 3d 165, 170, 491 N.E.2d 776), and consequently, the verdict is valid.

Finally, defendant claims that he should be resentenced because: (1) he was found guilty of four counts of aggravated criminal sexual assault when he committed only one offense; (2) the court abused its discretion in sentencing him to five concurrent 10-year sentences; and (3) the sentence of 10 years’ imprisonment imposed for aggravated battery exceeds the statutory maximum.

Defendant was convicted of four counts of a Class X felony (aggravated criminal sexual assault) and one Class 3 felony (aggravated battery). A Class X felony is punishable by not less than 6 years’ and not more than 30 years’ imprisonment. A Class 3 felony is punishable by not less than two years’ and not more than five years’ imprisonment. The State concedes that the court imposed an excessive 10-year conviction for the aggravated battery conviction and that the matter should be remanded for resentencing on that count. However, defendant’s sentence for each of the Class X felonies is within the range provided by the statute.

While the determination and imposition of a sentence involves considerable judicial discretion (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344; People v. Barfield (1989), 187 Ill. App. 3d 190, 201-02), where the sentence that is imposed is within the statutory limits, a reviewing court will not reduce the sentence unless the trial court has abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882; People v. Hattery (1989), 183 Ill. App. 3d 785, 828, 539 N.E.2d 368.) We find no abuse of discretion in the sentencing on the four counts of aggravated criminal sexual assault. However, the State concedes that the sentence imposed for the defendant’s aggravated battery conviction exceeds the statutory limits. In defendant’s petition for rehearing, raising only objections to remandment for resentencing and the people’s response thereto, the parties are in agreement that a sentence of five years be imposed on that charge.

Accordingly, we affirm the defendant’s convictions and sentences on the four counts of aggravated criminal sexual assault. However, pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), and in light of the parties’ stipulation, the sentence imposed on the defendant for the offense of aggravated battery is reduced to a term of five years’ imprisonment.

Judgment affirmed as modified.

CAMPBELL and QUINLAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE ex rel. JESSE HATCH, Petitioner-Appellant, v. RICHARD J. ELROD, Sheriff of Cook County, Respondent-Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE HATCH, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—83—0370, 1—83—1738 cons.
    Opinion filed June 30, 1989.
    Modified on denial of rehearing December 4, 1989.

      Dennis M. Doherty, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Jerome F. Marconi, Jr., Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This case involves two consolidated appeals. In the first appeal, the defendant, Jesse Hatch, challenges the trial court’s dismissal of his petition for habeas corpus. In the second one, he appeals from a conviction for murder and armed robbery and a sentence of natural life imprisonment, alleging that: (1) he was not found guilty of armed robbery beyond a reasonable doubt; (2) he was not found guilty of murder beyond a reasonable doubt; (3) the trial court erroneously allowed statements made by the decedent into evidence as dying declarations and spontaneous utterances; (4) the statements were erroneously admitted against the defendant as evidence of both murder and armed robbery; (5) the trial court forced the defendant to waive a jury by requiring him to proceed with a tainted venire; and (6) the trial court abused its discretion by imposing a sentence of life imprisonment. We affirm defendant’s convictions.

At the time of the incident the defendant was living with his wife, Marilyn Green, their two children and his father-in-law, Louis Westry, at 9600 Avalon in Chicago. In June 1980, the decedent, Robert Magoon, approached Westry and solicited him to obtain a stolen auto for him. Westry told Magoon that he was on probation and could not obtain a car for him but that the defendant could. On August 4, 1980, Westry told Magoon that the defendant had a car for him, and Magoon said that he would be right over. While Westry was in the bath he heard the sound of a car horn. When he came out he found that the defendant and the defendant’s car were gone.

At 10:45 p.m. on August 4, 1980, Officer Morrison received a call that shots had been fired at 121 West 112th Place. He went to the garage and found Magoon locked in the trunk of a car, calling for help. He had been shot in the face, chest, back and neck. The officer found four empty .45 caliber casings and a bullet on the floor. Ma-goon was incoherent and was taken to the hospital by ambulance.

At the hospital, the victim, who later died, told the police that he knew that he was in serious condition and that he could feel the bullets passing through him. He said that he had gone to Mr. Westry’s house to meet with a person named “Jeff” who would take him to see a stolen 1979 Thunderbird. When they arrived at 121 West 112th Place, the defendant went to the garage and asked Magoon to help him open the garage door. When Magoon went to assist him, the defendant pulled out a .45 caliber semiautomatic pistol, announced that it was a robbery and shot him repeatedly. While Magoon was lying on the floor, the defendant went through his pockets and took $300 cash. He forced the victim to get into the trunk of the car, placed the gun against his head and pulled the trigger. When the gun failed to discharge, he closed the trunk of the car and left.

On August 5, 1980, the defendant went to a currency exchange and attempted to cash a check drawn on National Acoustics. The victim owned National Acoustics and was in possession of the company checkbook on the night he was killed. The owner of the currency exchange was not familiar with the maker of the check so she called the drawer, National Acoustics, and was told that the check had been taken in a holdup. She tried to detain the defendant until the police arrived, but he left the currency exchange without the check.

About a minute after the defendant left, the police arrived and obtained a description of the defendant. They found him at 7530 South Cornell with Marilyn Green, stopped him, advised him of his rights and placed him in the squad car. They drove him to the currency exchange, where he was identified by the owner as the person who had tried to cash the stolen check. The officer searched the defendant and found a set of keys which had belonged to the victim.

After arriving at the police station, the police searched the backseat of the police car because they had noticed the defendant moving suspiciously in the backseat of the squad car. They found under the seat cushion a white General Motors key, a notice to appear complaint form with the defendant’s name on it, and a live .45 caliber cartridge which was later found to have been chambered in and extracted from the same gun as the four casings recovered at the scene of the murder. The defendant was transported to Area 2 headquarters, where he was brought into an interview room and searched. The police found two blood-soaked $50 bills in the defendant’s sock. A lab test revealed that the blood on the bills was the same type as that of the victim.

On August 6, 1980, Robert Magoon died of multiple gunshot wounds to the kidney, small and large intestines and mouth which had been fired at close range. Defendant was subsequently indicted on three counts of murder, one count of armed robbery and one count of armed violence. After a bench trial, he was found guilty of murder and armed robbery and was sentenced to natural life imprisonment.

While awaiting trial on the murder and armed robbery charges, defendant filed a habeas corpus petition, alleging that his right to due process had been violated because he had been denied a preliminary hearing and a speedy trial. The petition was dismissed and defendant appeals from that dismissal. “Every person imprisoned or otherwise restrained of his or her liberty *** may apply for habeas corpus.” (Ill. Rev. Stat. 1987, ch. 110, par. 10 — 102.) The defendant in the instant case was seeking to secure his liberty by filing a writ of habeas corpus. Upon sentencing, the defendant had a legal right to appeal the judgment of the trial court. However, an habeas corpus proceeding is not a substitute for a direct appeal. Baker v. Department of Corrections (1985), 106 Ill. 2d 100, 106, 477 N.E.2d 686; People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 418, 272 N.E.2d 225.

As to defendant’s assertion that his due process right had been violated by the denial of a preliminary hearing, section 7, article 1, of the Illinois Constitution provides that no person shall be held to answer for a crime punishable by death or by imprisonment unless the initial charge has been brought by grand jury indictment or pursuant to a preliminary hearing to establish probable cause. (Ill. Const. 1970, art. I, §7.) All that is required by this section is that an accused be afforded a prompt probable cause determination of the validity of the charge either at a preliminary hearing or by grand jury indictment. People v. Kline (1982), 92 Ill. 2d 490, 501, 442 N.E.2d 154.

The record shows that the defendant was arrested on August 5, 1980, given a bond hearing on August 6, 1980, and indicted by a grand jury on August 7, 1980, the day after the victim’s death. The defendant has not established how he was prejudiced by this delay or that he suffered actual and substantial prejudice as a result of his having failed to receive a preliminary hearing. (See People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204.) Under these facts, we find that the defendant received a prompt determination of probable cause and was not denied due process.

As to his argument that he was denied a speedy trial, the record indicates that the continuances of defendant’s trial were either on the defendant’s motion, by agreement of the parties or by order of the court. When a defendant requests a continuance, agrees to a continuance or through his actions otherwise contributes to the delay, a defendant is considered to have occasioned a delay. (People v. Underwood (1982), 108 Ill. App. 3d 846, 855, 439 N.E.2d 1080.) Because the continuances were either requested by the defendant or agreed to by the defendant, we conclude that he was not denied a speedy trial.

The primary question to be resolved in an habeas corpus proceeding is the existence of jurisdiction, i.e., whether a particular order, judgment or the validity of the process being attacked is within the authority of the court issuing it. (People ex rel. Burbank v. Irving (1982), 108 Ill. App. 3d 697, 700, 439 N.E.2d 554.) In the instant case, the basis of the defendant’s petition for habeas corpus relief was his alleged denial of a preliminary hearing and that he was denied his constitutional right to a speedy trial. We have determined that defendant’s claim is without merit. The trial court did not err in dismissing the defendant’s writ of habeas corpus petition since jurisdiction was proper in the case at bar and the issues raised in the defendant’s habeas corpus petition are not the type of claims upon which habeas corpus relief is granted. The defendant had a constitutionally protected right to raise these issues on direct appeal. He subsequently exercised his right and raised these issues on direct appeal, which is the proper vehicle to address these issues.

Also, defendant tangentially contends that he was denied his constitutional right to the effective assistance of counsel when his court-appointed attorney failed to appear at his hearing seeking habeas corpus relief. It should be noted that when the trial judge called the defendant’s case, the assistant public defender to whom the defendant refers notified the court that he had no knowledge of representing the defendant in this proceeding. Subsequently, the trial court called upon another assistant public defender to represent the defendant.

In order for the defendant to establish his ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness and but for counsel’s errors, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) In the present case, the defendant has failed to make a showing that the results of the proceeding would have been different had the trial court not substituted counsel. Thus, we have determined that the defendant did not suffer any prejudice, as required by Strickland v. Washington, by the substitution of counsel in light of the fact that the issues raised as a basis for his habeas corpus petition were: (1) raised prematurely and (2) subsequently raised and addressed on direct appeal. Therefore, his claim that he was denied the effective assistance of counsel must fail.

Defendant’s second appeal concerns his convictions for murder and armed robbery. He contends, essentially, that he was convicted upon hearsay statements which were improperly admitted into evidence.

Prior to trial, the defendant made a motion in limine to suppress certain statements the decedent made to Officer Morrison as he was being wheeled into the emergency room and to the homicide detectives while in the emergency room. He contends that these statements did not fall into any of the hearsay exceptions and were erroneously admitted into evidence.

In order for a hearsay statement to be admissible under the excited utterance or spontaneous declaration exception to the hearsay rule three factors must be present: (1) an occurrence or event sufficiently startling to cause a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) a relationship between the statement and the occurrence or event. (People v. Staten (1986), 143 Ill. App. 3d 1039, 1053, 493 N.E.2d 1157.) In determining whether a statement qualifies as an excited utterance, all the circumstances surrounding the making of the statement must be examined to determine if there was an opportunity for reflection and invention. (People v. Smith (1984), 127 Ill. App. 3d 622, 628, 469 N.E.2d 634.) Both the time which has elapsed and the distance which the decedent has travelled from the scene of the crime must be considered in determining whether a declaration has the necessary spontaneity. (People v. Robertson (1976), 43 Ill. App. 3d 143, 147, 356 N.E.2d 1180.) A gunshot wound is considered sufficiently startling to produce an unreflective response (People v. Webb (1984), 125 Ill. App. 3d 924, 933, 466 N.E.2d 936), and the fact that the statement was made in response to queries does not automatically negate its spontaneity but is a factor to be considered. Smith, 127 Ill. App. 3d at 628.

The decedent’s statement to Officer Morrison as he was being wheeled into the emergency room of the hospital clearly met two of the three aforementioned criteria. The evidence indicates that at approximately 10:45 p.m., shortly after receiving a call of shots fired, Officer Morrison found the victim in the trunk of a car, injured and incoherent. Within 10 minutes the victim was being wheeled into the emergency room, at which time he told Officer Morrison who had shot him and where that person lived. The multiple gunshot wounds suffered by decedent constituted a sufficiently startling event to produce a spontaneous statement, and the statement was related to the occurrence. The pertinent question, however, is whether the victim had time or opportunity to fabricate. Time alone is not determinative of the admissibility of the utterance; rather, the critical factor is the opportunity to fabricate. (See People v. Pariste (1972), 5 Ill. App. 3d 1009, 287 N.E. 2d 310.) There is evidence in the record that Officer Morrison arrived on the scene within minutes of receiving the call and found the victim lying in the trunk of the car badly wounded. The factual matrix in the instant case closely parallels the factual situation found in People v. Parisie. In both cases the victims were discovered suffering multiple gunshot wounds which ultimately caused their deaths. Both victims related what had occurred. In Parisie more than an hour elapsed between the shooting and the conversation. In the case at bar, the conversation with Officer Morrison took place within 10 minutes of the shooting.

In People v. Robertson, the victim befriended a hitchhiker who subsequently attacked her. Later, she was discovered lying in the roadway suffering from six stab wounds, one of which punctured her heart. Within less than one hour she had related to four different people what transpired. We held there that all of the statements were admissible as an exception to the hearsay rule. We noted that it was clear from the evidence that the victim was not in a condition to manufacture and narrate an untrue version of the attack and determined that the statements “obviously sprang from the shock of the event and not from conscious deliberation or calculation.” Robertson, 43 Ill. App. 3d at 148.

So, too, we hold in the instant case that the decedent’s statement to Officer Morrison was not the product of a deliberate attempt to fabricate an occurrence, but rather, in light of the totality of the circumstances, should be considered inherently reliable and admissible as a spontaneous utterance. See People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395; People v. Van Scyoc (1982), 108 Ill. App. 3d 339, 439 N.E.2d 95; People v. Watson (1982), 107 Ill. App. 3d 691, 438 N.E.2d 453; People v. Fenderson (1987), 157 Ill. App. 3d 537, 510 N.E.2d 479; E. Cleary & M. Graham, Handbook of Illinois Evidence §803.3, at 552 (4th ed. 1984).

A dying declaration is a statement of fact by a victim concerning the cause and circumstances of his death and may be admissible into evidence as an exception to the hearsay rule when it appears to have been made by the victim under the belief that death is impending and immediate. (People v. Staten (1986), 143 Ill. App. 3d 1039, 1053, 493 N.E.2d 1157.) This does not require that the declarant give up all hope of recovery, however, and a statement should not be rejected as a dying declaration when only nebulous rays of hope exist. (People v. Davis (1981), 93 Ill. App. 3d 217, 231, 416 N.E.2d 1197.) A court will look to all the facts and circumstances surrounding the supposed dying declaration to determine the decedent’s state of mind and in doing so, it is proper to consider the grievous nature of the decedent’s wounds as justifying the conclusion that he must have known of the seriousness of his condition. (People v. Webb (1984), 125 Ill. App. 3d 924, 934-35, 466 N.E.2d 936.) A trial court’s determination of whether a statement constitutes a dying declaration will not be reversed on appeal unless its findings are palpably contrary to the manifest weight of the evidence. People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1120, 443 N.E.2d 673.

We find that the decedent’s statements to Detectives Cor-less and Dignan were properly admitted into evidence as dying declarations. At approximately 11:10 p.m., the detectives were in the emergency room and heard the doctor tell the victim that he was in very serious condition and needed an operation immediately and heard the victim respond that he knew. They asked the victim if he knew that he was in bad shape, to which he replied, “Yes, I could feel the bullets passing through me. I know I’m in bad shape.” The detectives spoke to the victim intermittently for approximately 20 minutes during which time he told them the circumstances of the shooting and that the defendant had been the assailant.

Although the victim had not explicitly been informed that he was going to die, there is no question that he was in extremis. He had been shot five times; one bullet pierced the left cheek, went through the mouth, penetrated the jaw and exited through the right side of the face; a second bullet entered into the left shoulder, passed through the body and caused a fracture of the right arm before exiting from the anterior of the chest wall; one bullet pierced the back, and two bullets were lodged in his back. The bullets had torn through the victim’s right kidney, small intestine, abdomen and colon. Considering the seriousness of these injuries, along with the victim’s statement that he knew that he was in bad shape, we believe that the trial court could have properly found that the deceased truly believed that he was dying and that his death was imminent.

Defendant maintains that this evidence is insufficient to convict him for murder. We disagree. The victim’s declarations, coupled with the facts that the defendant had attempted to hide a .45 caliber bullet which was found to have been chambered in and extracted from the same gun as the casings found at the scene of the crime, and the defendant’s possession of two $50 bills covered with the same blood type as that of the victim, are sufficient to establish his guilt beyond a reasonable doubt.

Defendant’s next argument is that the State failed to establish that he committed the offense of armed robbery. He had been charged with forcibly taking a briefcase, checks and miscellaneous papers from Robert Magoon, but he claims that the State never introduced any evidence that he had taken any of these items.

The testimony at trial established that the victim had taken the National Acoustics checkbook with him when he went to purchase the car and that the defendant was in possession of a check drawn on National Acoustics the day after the shooting. The victim’s wife testified that the signature on the check was not that of her husband. The State maintains that it is logical to infer from this evidence that the defendant took the check from the victim at the scene of the shooting.

The defendant contends that his statement that the check was given to him by the victim as payment for the automobile cannot be discounted. In a bench trial, it is the court’s duty to determine the witnesses’ credibility, and the weight to be given the evidence, and the court’s findings will not be disturbed on review unless they are palpably erroneous. (People v. Rassmussen (1986), 143 Ill. App. 3d 11, 26, 492 N.E.2d 612.) In the present case, we cannot say that it was palpably erroneous for the trial court to doubt the defendant’s statement that the victim had paid for the stolen car with a check containing a forged signature. Accordingly, this argument must fail.

Defendant also contends that he was denied a fair hearing on his motion to suppress statements because the State did not produce all material witnesses at the hearing. The “material witness” rule requires that when the voluntary nature of a statement is brought into question by a motion to suppress, the State has the burden of proving that it is voluntary by producing all material witnesses connected with the taking of the defendant’s statement or by explaining their absence. (People v. Lumpp (1983), 113 Ill. App. 3d 694, 696, 447 N.E.2d 963.) If the State fails to call a material witness, the defendant must object in the trial court or the matter is waived for purposes of appeal. (People v. Weathersby (1985), 138 Ill. App. 3d 310, 317, 485 N.E.2d 1337.) In the present case, the defendant did not object to the alleged failure of the prosecution to call all of the witnesses at the hearing on his motion. Consequently, he has waived this point on appeal.

Next, the defendant claims the trial court forced him to waive his right to a jury trial. During jury selection, a potential juror suggested that the taking of a life requires the “surrender” of a life. The potential juror was discharged and the defendant made a motion to discharge the venire. The court inquired of the venire whether the statement affected anyone’s ability to remain fair and impartial and, receiving no response, determined that the venire was not tainted and denied the defendant’s motion. The defendant stated that he felt that the venire was tainted, and thereby felt compelled to waive his right to trial by jury and proceed with a bench trial. He now argues that he was compelled to waive his right to trial by jury because the judge would not discharge the entire venire.

The determination of whether a juror would be able to give the accused a fair and impartial trial rests within the sound discretion of the trial court and should not be reversed unless it is against the manifest weight of the evidence. The burden is on the party objecting to the juror to show any prejudice on the part of the juror or any prejudice resulting from the judge’s handling of the matter. (People v. Underwood (1982), 108 Ill. App. 3d 846, 854, 439 N.E.2d 1080.) In the present case, the juror who made the statement was excused for cause immediately after he made the statement. The judge questioned the jurors who had already been sworn to determine if they had been influenced by the statement, and they replied that they were not. The venire, when questioned, displayed no reaction. The defendant had the opportunity to proceed with voir dire at this point to determine whether the venire had in fact been tainted; however, he chose not to do so. In light of the fact that the defendant did not even attempt to determine whether the venire had been tainted, we regard his contention that the venire had been tainted as speculative and hold that the trial judge did not abuse his discretion by refusing to excuse the entire venire. See People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592.

Finally, the defendant claims that the court abused its discretion by sentencing him to natural life imprisonment for the murder of Robert Magoon, contending that the sentence cannot be justified given the fact that he is only 28 years of age, his relatively minor criminal history and his prospects for rehabilitation.

Section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b)) authorizes the trial court to impose a sentence of natural life imprisonment upon a finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The manner in which this crime was committed is shocking and repulsive to members of an ordered and moral society. The fact that the defendant required the victim to crawl into the trunk of a car after shooting him repeatedly in the face and neck at close range, placed a gun against his head and locked him in the trunk when the gun failed to discharge is indicative of nothing less than wanton cruelty. In imposing sentence, the court here specifically emphasized the brutality of the crime. We find that the trial court was well within its discretion in sentencing the defendant to natural life imprisonment.

The judgment of the trial court is affirmed.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NAPOLEON FOSTER, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1972
    Opinion filed November 2, 1989.
    Rehearing denied December 13, 1989.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, Mark A. Shlifka, and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Napoleon Foster, was convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) following a jury trial in the circuit court of Cook County. The trial court, sentenced defendant to the penitentiary for a term of 27 years.

Defendant appeals, contending: (1) the State failed to prove beyond a reasonable doubt an element of the offense. Defendant also contends he was denied a fair trial due to: (2) the trial court’s failure to instruct the jury on the offense of attempted armed robbery; (3) the admission of (a) an accomplice’s hearsay identification, (b) defendant’s arrest warrant, (c) evidence of other crimes and bad conduct; (4) the prosecutor’s unfair cross-examination of him; and (5) the cumulative effect of the above-assigned errors. Defendant also contends: (6) the sentencing hearing was fundamentally unfair.

We affirm.

Background

Defendant was indicted on one count of armed robbery. The State’s case included defendant’s oral confession and corroborating evidence from other witnesses. The evidence produced by the State relevant to the issues raised on appeal is summarized as follows.

Felix Martin is the manager of a McDonald’s restaurant located at 4830 West Dempster Street, in Skokie, Illinois. On the night of March 4, 1986, Martin was on duty with other employees, including Michelle Nelson, a manager-trainee; Idalene Morton and Paul Edwards.

Defendant was the last customer that evening; Nelson took his order and served him. At approximately 11 p.m., Martin was closing the restaurant; only one door remained unlocked. As defendant began to leave, Martin opened the door for defendant. Defendant turned and put a pistol to Martin’s stomach. He ordered Martin, and another employee who was near the door, to walk behind the front counter. Defendant then ordered all of the restaurant employees to move to the rear of the restaurant and enter the walk-in freezer. They obeyed defendant, who then closed the freezer door.

After a few minutes, defendant opened the door and ordered Martin to leave the freezer and open the store safe. Martin complied, and defendant escorted him back to the freezer. A few minutes later, defendant returned and ordered Paul Edwards to leave the freezer and open the cash registers. The employee did not know how to open them and was returned to the freezer. Defendant then ordered Michelle Nelson to open the cash registers. Martin told defendant that he had the keys to the registers and offered to go in Nelson’s place.

Martin and defendant entered the drive-through booth on the west side of the building. Prior to the opening of the cash register in the booth, they saw an Illinois State Police car at the drive-through menu board, approximately 30 feet away from the booth. Defendant shouted “It’s the cops,” ran to the other side of the store, jumped over the front counter, and fled via the east side door.

There were two police cars at the drive-through menu board. The State trooper in the first automobile saw Martin leaning out of the booth window, waving frantically, and pointing to the other side of the building. The State troopers drove to the other side of the building, saw an automobile starting to back out of a parking space, and blocked it with one of their cars. One of the troopers exited his car and stood at the parked car’s right rear bumper.

Corey Fisher was the driver of the car, and defendant sat in the front passenger seat. Defendant opened his door, turned so that his head and legs protruded from the car, and looked back at the troopers. He then darted from the car, ran to the edge of the parking lot, and jumped over a fence. One trooper unsuccessfully chased defendant while the other arrested Fisher.

After more troopers arrived, they, with Martin, searched the restaurant. Eventually, they found and arrested Verdalle (also known as Gaston) Fortner, a former employee wearing a McDonald’s uniform. The troopers then opened the freezer door and searched all of the employees before releasing them. Martin testified that, after checking the cash registers, the safe, and his records, approximately $1,200 was missing from the safe.

The Skokie police department assumed the investigation. Detective Robert Jones was assigned to the case that night and spoke with Fortner shortly after midnight on March 5, 1986. Fortner told Detective Jones that the man who fled was named “Dean” or “Deanie.” Fortner told Jones initially that “Deanie” was named Michael Campbell. Later that day, after an unsuccessful investigation based on this information, the police learned that “Deanie” was defendant.

Upon learning defendant’s identity, Detective Jones obtained a photograph of defendant from a prior arrest. The photograph was included in an array, which was shown to a restaurant employee, who identified defendant.

Detective Jones then prepared an arrest warrant for defendant, listing defendant’s alias as “Deanie,” and unsuccessfully tried to locate him. Jones left a business card with defendant’s mother. A few days later, defendant called Jones and indicated that he might surrender, but finally decided not to do so.

On the afternoon of April 26, 1986, Jones learned that defendant was in the Skokie jail. Jones and Detective Silverberg, also assigned to the case, arranged for Martin, Nelson, and Edwards to view a lineup that included defendant. Each witness identified defendant. After the lineup, Silverberg took defendant to an interrogation room while Jones telephoned the State’s Attorney’s office. Assistant State’s Attorney Christopher Pfannkuche soon thereafter telephoned Jones and came to the police station.

Silverberg and Pfannkuche testified that defendant gave each of them an oral confession, after waiving his Miranda rights prior to each confession. Defendant’s confession, as retold by Silverberg and Pfannkuche, was essentially as follows. On March 4, 1986, defendant, Fortner, and a person named George were at Fortner’s home drinking and smoking narcotics. They planned to rob a McDonald’s restaurant on Dempster Street in Evanston. They telephoned Corey Fisher and asked him to drive to Fortner’s home. On Fisher’s arrival, Fortner supplied himself with a sawed-off shotgun and supplied defendant with a BB gun.

The four then drove in Fisher’s automobile to the Evanston McDonald’s, where restaurant employees recognized Fortner. They decided to abort that robbery and, instead, rob the McDonald’s in Skokie. In his statement, defendant asserted that he was a friend of Martin’s daughter and that Martin knew in advance about the Skokie robbery and was to receive a portion of the proceeds.

The portion of defendant’s confession recounting the crime itself followed the testimony of the State’s other witnesses. Defendant stated that while he and Martin were in the drive-through booth, he saw the State troopers, shouted “It’s the cops,” and fled — before Martin opened the cash register. Defendant also mentioned that his nickname was “Deanie,” he was in the penitentiary twice before, and that he was a member of a street gang.

In May 1986, Detectives Jones and Silverberg attempted to interview defendant at the county jail, but defendant did not wish to speak to them. In his testimony, Jones added that the visit was not related to the instant case, but rather was for “a new case [he] was working on.”

Defendant’s case consisted of the testimony of a friend and that of himself. Defendant’s friend testified that on the night of March 4, 1986, defendant and he were at a party near Lake Street and Damen Avenue. He was at the party until approximately 1 a.m., and defendant never left the party during that time.

Defendant testified that he was at the party of which his friend testified until approximately 7:30 a.m. on March 5. He telephoned and met with his parole officer, and went home. Defendant did telephone Detective Jones, but hung up when Jones became hostile and used profanity.

Defendant testified that, although he knew Fortner, “Deanie” was not nor ever had been his nickname. He admitted being convicted of robbery in 1980 and burglary in 1983. Defendant further testified that he was physically coerced into participating in the lineup, that the police denied his repeated requests to use the telephone and for an attorney. Defendant denied making any confession. He was told that he could not use the telephone until he signed the waiver form. He did and then telephoned his mother and his attorney.

On March 27, 1987, the jury convicted defendant of armed robbery, and the trial judge entered judgment on the verdict. On May 12,

1987, the trial judge denied defendant’s post-trial motion and, at the close of a sentencing hearing, sentenced defendant to the penitentiary for a term of 27 years. Defendant appeals.

Opinion

I

Defendant first claims that the State failed to prove beyond a reasonable doubt an element of the offense of armed robbery. The State carries the burden of proving beyond a reasonable doubt each element of the offense and the defendant’s guilt. (People v. Ware (1961), 23 Ill. 2d 59, 62, 177 N.E.2d 362, 364.) On appeal, however, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

A person commits armed robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force, while armed with a dangerous weapon. (See Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a).) “It is thus obvious that a critical element of the offense of robbery is that the victim be deprived of some property through the actions of the perpetrator.” (People v. Robinson (1981), 92 Ill. App. 3d 397, 398, 416 N.E.2d 65, 66.) Defendant contends that the State failed to present any admissible evidence of a taking. Defendant argues that the only evidence of a taking in the record is Martin’s testimony, which was hearsay.

A

The State initially responds that defendant waived this issue for review by failing to object at trial to Martin’s testimony. This assertion is erroneous. Defendant’s contention challenges the sufficiency of the evidence. “Only the admissibility and not the inherent weakness of hearsay evidence is waived by the failure to object to its admission.” (Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 29, 418 N.E.2d 421, 428.) It is now clear that a challenge to the sufficiency of the evidence is an exception to the waiver rule and may be raised for the first time on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1131-32, cited in People v. Lighthall (1988), 175 Ill. App. 3d 700, 705, 530 N.E.2d 81, 84; People v. Walker (1955), 7 Ill. 2d 158, 160, 130 N.E.2d 182, 183.

B

We now reach the merits of defendant’s claim. The only evidence of a taking in the record is Martin’s testimony. Martin testified that approximately $1,200 was missing from the restaurant safe. Martin based his determination on three sources: (1) his examination of the cash registers, (2) his examination of the safe, and (3) the restaurant’s business records.

Defendant asserts that Martin’s reference to the restaurant’s business records was hearsay. According to defendant, a reasonable juror would have deduced that the business record was the ultimate basis of Martin’s determination. Thus, Martin’s hearsay reference to the business record made his determination inadmissible and rendered the element of taking unproven.

We cannot accept this argument. Defendant is correct that Martin’s reference to the business record was hearsay; it was the business record itself which was admissible, and not Martin’s testimony referring to the record. (See Smith v. Williams (1975), 34 Ill. App. 3d 677, 680, 339 N.E.2d 10, 13.) However, defendant failed to object at trial to Martin’s hearsay reference. It is quite settled that hearsay evidence, if admitted without objection, is to be considered and given its natural probative effect. (Collins, 106 Ill. 2d at 263, 478 N.E.2d at 278; People v. Akis (1976), 63 Ill. 2d 296, 299, 347 N.E.2d 733, 735.) After reviewing the evidence in the light most favorable to the prosecution, we conclude that Martin’s testimony established beyond a reasonable doubt the element of a taking. Further, we cannot say that the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

II

Defendant next claims that he was denied a fair trial due to the trial judge’s failure to instruct the jury on the offense of attempted armed robbery. This claim is a continuation of his previous argument. Defendant argues that since there was no admissible evidence that any property was taken, the jury should have been instructed on the offense of attempted armed robbery. Defendant concedes that he did not request the instruction. Thus, the issue is waived. See People v. Nutall (1980), 91 Ill. App. 3d 758, 765-66, 415 N.E.2d 628, 634.

Defendant goes further and invokes the plain error rule. (See 107 Ill. 2d R. 615(a).) However, before a reviewing court can consider plain error as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743.

We conclude that no error was committed here; the evidence adduced at trial would not have supported an attempted armed robbery instruction. Martin’s testimony regarding the taking was uncontradicted. We earlier concluded that his testimony established beyond a reasonable doubt the element of taking. In his confession, defendant never affirmatively stated that he did not take any money from the safe; rather, he stated only that he fled when he saw the State troopers. At trial, he denied any participation in the crime. Thus, the evidence supported only a conviction or an acquittal of armed robbery, “and there is no evidence in this record upon which the jury would have been justified in concluding that the defendant had only attempted to commit armed robbery.” (People v. Davis (1972), 6 Ill. App. 3d 622, 625, 286 N.E.2d 8, 10.) Since the plain error doctrine is inapplicable, this issue remains waived.

Ill

Defendant next claims that he was denied a fair trial due to the admission of (A) an accomplice’s hearsay identification, (B) defendant’s arrest warrant, and (C) evidence of other crimes and bad conduct.

A

According to Detective Jones, Fortner identified the man who fled from the scene of the crime as “Dean” or “Deanie.” Jones then testified that through further investigation, he learned that that man was defendant. Jones referred to this out-of-court identification twice. Defendant is correct that these references were hearsay. See People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223, 227.

However, the record also shows that the trial judge sustained defense counsel’s timely objection to each reference and instructed the jury to disregard the identification. Thus, the error was rendered harmless. People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 238; People v. Negron (1979), 77 Ill. App. 3d 198, 203, 395 N.E.2d 1055, 1059.

B

Defendant assigns error to references to his arrest warrant made by Detective Jones and Assistant State’s Attorney Pfannkuche, and the admission of the warrant itself. Defendant argues that the warrant represents multiple-level, prejudicial hearsay. The warrant listed defendant’s alias as “Deanie,” and also listed file numbers from the Federal Bureau of Investigation and the Illinois Bureau of Investigation. Additionally, the warrant contained the signature of a judge.

The record shows that defendant did not object at trial to Jones’ reference to the arrest warrant; thus, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) The record also shows that Pfannkuche’s reference to the warrant was elicited by defense counsel’s cross-examination. Where defense counsel elicits particular testimony on cross-examination, and makes no motion that the testimony be stricken and the jury instructed to disregard it, defendant cannot later complain about that which is elicited. People v. Randall (1980), 84 Ill. App. 3d 888, 891, 405 N.E.2d 1269, 1272; People v. Hambrick (1979), 68 Ill. App. 3d 447, 451, 386 N.E.2d 455, 458.

We additionally conclude that the admission of the arrest warrant itself was harmless error. The record contains overwhelming evidence of defendant’s identification and guilt. Defendant confessed to all of the elements of armed robbery, corroborated by substantial evidence, except the element of taking. We earlier determined that Martin’s testimony established beyond a reasonable doubt that element. “Considering the evidence in its entirety, there is no reasonable possibility that the jury would have acquitted the defendant had the evidence complained of been excluded.” People v. Ward (1978), 63 Ill. App. 3d 864, 872, 380 N.E.2d 883, 889; see also People v. White (1985), 134 Ill. App. 3d 262, 283, 479 N.E.2d 1121, 1134-35.

C

Defendant assigns error to the admission of evidence of other crimes, wrongs, and acts. This evidence consisted of admissions in his confession that he had been in the penitentiary previously, he used narcotics on the night of the crime, and that he was a member of a street gang. Additional other-crimes evidence consisted of: references in Jones’ testimony to a prior arrest photograph of defendant, and an interview with defendant regarding “a new case”; references in defendant’s testimony that he was on parole at the time of the armed robbery, and had prior convictions of theft, robbery, and burglary; and the arrest warrant listing a file number from the Federal Bureau of Investigation.

Evidence of the other crimes, wrongs, or acts by a defendant is generally inadmissible into evidence if they have no relevance to the question of the defendant’s guilt — other than the inference that he has a propensity to commit crimes. (E. Cleary & M. Graham, Handbook of Illinois Evidence §404.5 (4th ed. 1984).) However, the erroneous admission of evidence of other crimes, wrongs, or acts does not constitute a per se ground for reversal. Such an error may be considered harmless where the evidence as a whole shows that the accused is guilty beyond a reasonable doubt. People v. Pittman (1984), 126 Ill. App. 3d 586, 590, 467 N.E.2d 918, 922, citing People v. Nicholson (1978), 61 Ill. App. 3d 621, 629, 377 N.E.2d 1063, 1070; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 716, 377 N.E.2d 1077, 1086.

In the case at bar, the admission of most, if not all, of these items constituted error. However, we have already concluded that the record contains overwhelming evidence of defendant’s guilt. We therefore hold that the erroneous admission of these items was harmless.

IV

Defendant next claims that he was denied a fair trial due to the prosecutor’s unfair cross-examination of him. He contends that the prosecutor, over objection, repeatedly asked him if several of the State’s witnesses were lying when they testified against him. The record contains several episodes of this inappropriate conduct.

The State concedes error. It is quite settled that this type of cross-examination is improper; a trial judge should not permit it. However, it is equally settled that this error is not sufficiently grave to merit a new trial where there is overwhelming evidence of the defendant’s guilt. People v. Cohen (1980), 83 Ill. App. 3d 706, 708, 404 N.E.2d 976, 977 (and cases cited therein).

We expressly condemn this trial tactic. However, the evidence of defendant’s guilt is overwhelming. Thus, defendant is not entitled to a new trial on this ground.

V

Defendant next contends that the cumulative effect of the aforementioned errors deprived him of a fair trial. Defendant is correct that while individual trial errors may not require a reversal, those same errors considered together may have the cumulative effect of denying a defendant a fair trial. People v. Albanese (1984), 102 Ill. 2d 54, 83, 464 N.E.2d 206, 220.

We must reject defendant’s contention. It is not the duty of a reviewing court to determine whether the record in a criminal case is free from error. A court of review will not reverse a conviction merely because error has been committed, unless it appears that real justice has been denied or that the jury’s verdict may have resulted from the error. Where the competent evidence shows beyond all reasonable doubt that the defendant is guilty — in other words, where the record clearly shows that the jury could not have reasonably found the defendant not guilty — the error will not ordinarily require reversal of the conviction. (People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350.) In the case at bar, the evidence of defendant’s guilt is overwhelming. Thus, the aforementioned errors, considered individually or cumulatively, do not require a new trial.

VI

Defendant lastly claims that his sentencing hearing was fundamentally unfair. He contends that the prosecutor based his argument in aggravation on evidence which he knew to be false. It is true that the knowing use of perjured testimony by a prosecutor denies a defendant due process of law and requires that the defendant be granted a new trial. The burden of proving that the State knowingly used perjured testimony lies with the defendant. People v. Smith (1985), 139 Ill. App. 3d 21, 30, 486 N.E.2d 1347, 1352-53.

The State’s case included evidence that the restaurant employees remained locked in the walk-in freezer until State troopers released them. During his argument in aggravation, the prosecutor asserted that defendant’s actions would have caused the employees’ deaths, but for the intervention of the State police.

However, approximately seven months prior to defendant’s sentencing hearing, Fortner pled guilty to a charge of attempted robbery and received a 21/2-year prison sentence. At Fortner’s hearing, the same prosecutor asserted that Fortner released the employees from the freezer prior to the arrival of the police. Defendant thus reasons that the State troopers’ testimony at his trial was false, the prosecutor knew the testimony to be false, but he used it anyway to obtain a more severe sentence. Defendant therefore concludes that his sentencing hearing was fundamentally unfair and asks this court to vacate his sentence and remand for a new sentencing hearing.

We must reject defendant’s reasoning and conclusion. “Inconsistencies between the testimony of witnesses and an alleged improbability of testimony go only to the weight and credibility of the evidence and fall short of establishing a knowing use of perjury.” (People v. Tyner (1968), 40 Ill. 2d 1, 3, 238 N.E.2d 377, 378.) In the case at bar, defendant has demonstrated inconsistencies in evidence adduced at two separate proceedings, and nothing more. The prosecutor’s argument in aggravation was based squarely on the evidence adduced at trial. We hold that defendant’s sentencing hearing was fundamentally fair.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE PINCHAM

text:
      In re L.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.S., a Minor, Respondent-Appellant).
    First District (5th Division)
    No. 1—86—3434
    Opinion filed November 3, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Kent D. Sinson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PINCHAM

delivered the opinion of the court:

The minor respondent was found to be delinquent based on criminal sexual abuse of a five-year-old girl and her three-year-old brother. After a dispositional hearing, respondent was committed to the Illinois Department of Corrections. Respondent appeals, challenging the judgments on the grounds that the trial court improperly relied on inadmissible hearsay, denied her constitutional right to confront her accusers and permitted the State to belatedly tender discovery material favorable to her defense. She also asserts that the evidence was insufficient to prove her guilty beyond a reasonable doubt and that because she was never personally served with summons, the trial court lacked jurisdiction over her and its judgments are void.

Yvette Scott testified that on June 9, 1986, she and her four-year-old daughter, Gianna, were visited at their home by Victoria W. and her children, who are the complainants herein, Carolyn W. and Jonathan W., and the minor respondent. When Yvette went upstairs and Victoria went to the store, respondent remained in the living room with the younger children. Yvette then overheard respondent tell Carolyn to “sit down and be quiet.” Carolyn replied that she would tell her mother that respondent was “freaking on John-John.” Carolyn came upstairs and told Yvette that respondent “kept messing with her” and that she would tell her mother what respondent had done to “John-John.” When Victoria returned from the store, Yvette met her outside the residence and told her what had happened. The two women reentered the house to confront respondent, but she had fled. Yvette added that “freaking” meant having sexual contact.

Victoria W. testified that respondent lived with her from March through June 9, 1986. Beginning in June, respondent worked as a babysitter for Victoria. At 10 a.m. on June 9, 1986, Victoria, her children and respondent visited Yvette Scott at her home. Victoria went to the store but left her children at the Scotts’ home. When she returned, Yvette met her at her car and they conversed. They then reentered the house to speak with respondent, who had gone. Victoria then attempted to question her children, but Carolyn became “nervous” and refused to respond.

Later that evening, when Carolyn complained that “something was wrong,” with her vagina, Victoria examined it and discovered that it was inflamed and infected with pus. She also examined Jonathan’s penis and observed that it was inflammed and swollen. The following day, Victoria took the children to their physician. After he examined them and talked with Victoria, he called the police. Victoria gave the officers information regarding respondent. When the doctor’s test results were completed, the children were treated with penicillin.

Victoria also testified that when they left the doctor’s office, Jonathan stated that respondent “be feeling on me and made me put my mouth on her titty.” Victoria stated that the term “freaking” meant to fondle.

Dr. Suckoo Kim testified that, when he examined Carolyn, he observed “redness and discharge” in her genital area, which was an abnormal condition for a five-year-old. He then asked Victoria if any one had touched Carolyn. The child then replied to her mother that respondent had licked her vagina.

The doctor also testified that, when he examined Jonathan, he noted that the boy’s penis was swollen and infected. Laboratory tests disclosed that both youngsters had gonorrhea. The doctor added that both children could have contracted the disease from respondent if she had been infected and had physical contact with them as described by the children. He reported the incident to the police.

Dr. Sripathy Rao testified that he was the medical officer for the Juvenile Detention Center and that he had reviewed test results for gonorrhea from a smear and culture taken from the respondent’s vagina. According to his review of the medical records, the results of the smear from her vagina were “doubtful” for gonorrhea, but the culture taken on June 13, 1986, was positive. After respondent completed medical treatment, another culture test from her vagina was taken, and the result was negative for the disease. The doctor added that if respondent had gonorrhea in her saliva, she could have communicated it through the saliva on her tongue.

We first observe that although respondent has raised several issues for review, we need not address each of them because we conclude that we must reverse the judgments and remand the cause for a new trial based on the erroneous admission into evidence of inadmissible hearsay. The record discloses that when neither of the complainants testified herein, the trial court admitted testimony of Victoria W., Yvette Scott and Dr. Kim under the spontaneous declaration exception to the hearsay rule. The prerequisites for bringing an utterance within this exception to the hearsay rule are: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) that the statement relate to the circumstances of the occurrence. People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 864.

Although the trial court admitted testimony of Yvette Scott regarding two statements Carolyn made on June 9, 1986, as spontaneous declarations, there was no evidence of when the alleged criminal conduct occurred. Further, the record discloses that both statements were made immediately after respondent had reprimanded Carolyn. Thus, we are unable to make a fair assessment of the trustworthiness of the statements, which may have been made upon reflection and in response to the reprimand or the alleged criminal conduct. People v. Sephus (1986), 150 Ill. App. 3d 272, 274-75, 501 N.E.2d 175.

Testimony of Victoria W. as to statements made by Carolyn W. and Jonathan W. was also improperly admitted under the spontaneous declaration exception to the hearsay rule. Victoria testified that after Yvette Scott informed her of Carolyn’s statements, she attempted to question Carolyn, but that the child became “nervous” and refused to respond. Later that evening, Carolyn complained that “something was wrong” with her vagina. Upon her examination, Victoria observed that Carolyn’s vagina was inflammed and infected. Victoria further testified that when she and the complainants left the hospital the following day, Jonathan told her that respondent “be feeling on me and made me put my mouth on her titty.”

We believe that the statements purportedly made by the victims to their mother, Victoria W, occurred too long after the alleged criminal conduct to be considered spontaneous. During the interim period between the purported criminal conduct and statements, the complainants had been questioned by the mother, examined by the physician and respondent had fled. Because of the elapse of time and intervening questions and events, we are unable to ascertain what prompted the victims’ statements to Victoria, or to eliminate the probability of fabrication. People v. Sephus (1986), 150 Ill. App. 3d 272, 274-75, 501 N.E.2d 175; People v. Johnson (1986), 149 Ill. App. 3d 128, 131, 485 N.E.2d 596.

We apply the same reasoning to the testimony of Dr. Kim as to the statements Carolyn purportedly made to Victoria when the doctor questioned Carolyn at the time he examined her. The record does not lead us to conclude that the purported statements were prompted by an occurrence sufficiently startling to produce a spontaneous and unreflecting statement.

We also observe that the testimonies of Victoria W., Yvette Scott and Dr. Kim were not admissible under section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10). That provision requires that the complainant testify, that the testimony of the witness to whom the complaint was made be corroborative in nature, or that when the child does not testify, the court make a determination that the child is unavailable as a witness. Further, the testimony of the complainant must be clear and convincing. (People v. Server (1986), 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019.) As we have heretofore indicated, neither of the complainants testified in the case before us. However, the prosecutor, not the court, determined that the complainants were unavailable to testify. Additionally, the testimony of the witnesses to whom the complaint was made was not corroborative because the complainants never testified. People v. Merideth (1987), 152 Ill. App. 3d 304, 311, 503 N.E.2d 1102; People v. Johnson (1986), 149 Ill. App. 3d 128, 132, 500 N.E.2d 657.

In rendering our decision, we are not unmindful of People v. Hatfield (1987), 161 Ill. App. 3d 401, 514 N.E.2d 572, and People v. Bitler (1986), 146 Ill. App. 3d 477, 497 N.E.2d 477, upon which the State relies for a dissimilar application of the spontaneous declaration exception to the hearsay rule. However, we believe that the analyses found in People v. Sephus (1986), 150 Ill. App. 3d 272, 501 N.E.2d 175, and People v. Johnson (1986), 149 Ill. App. 3d 128, 500 N.E.2d 657, are the more well reasoned and assure the trustworthiness required by the spontaneous declaration exception to the hearsay rule.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

LORENZ and COCCIA, JJ., concur.