author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SPENCER THOMAS, Defendant-Appellant.
    First District (4th Division)
    No. 1—85—3753
    Opinion filed July 27, 1989.

      Steven Clark and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James Casey, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of two counts of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2)) and two counts of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18— 2(a)). On appeal, defendant argues:

(1) the State failed to prove him guilty beyond a reasonable doubt of the murder and armed robbery of one of the victims;
(2) his post-arrest statements should have been suppressed because they were obtained as the result of an illegal, warrant-less arrest;
(3) a conflict of interest arose where both defendant and his codefendant were represented by assistant Cook County public defenders;
(4) the trial court improperly questioned prospective jurors regarding their attitudes toward certain of defendant’s basic constitutional protections;
(5) according to defendant’s characterization of the record, the trial court improperly qualified its partial severance of defendant’s trial from that of his codefendant on the condition that, if defendant chose to testify at trial, defendant’s jury would also hear his codefendant’s testimony;
(6) prejudicial error resulted when a State’s witness testified regarding a post-arrest statement made by defendant’s codefendant, who did not testify at trial, to the effect that his codefendant’s statement accused defendant of committing the crimes;
(7) prejudicial error resulted from the admission of State evidence to the effect that defendant committed prior criminal acts, when these acts were irrelevant to a material fact at trial;
(8) prejudicial error resulted from trial testimony that defendant’s case was investigated by law enforcement officers of the gang crimes unit, since there was no evidence that defendant’s association with his codefendant or the victims was gang related and the critical issue in defendant’s trial was his accountability for the acts of his codefendant;
(9) improper prosecutorial comments during closing argument deprived defendant of a fair trial; and
(10) the cumulative impact of these trial errors deprived defendant of a fair trial.

Finding defendant’s arguments insufficient ground to disturb his convictions, we affirm.

Defendant and his codefendant, Edward Walker (hereafter Walker or codefendant), were tried in the same courtroom by separate juries, who heard only one defendant’s statements but were otherwise present for the presentation of the remainder of the State’s evidence. At defendant’s trial, an officer of the Chicago police department testified that on December 15, 1983, he was assigned to check the well-being of residents at a single-family home located at 7720 South Luella in Chicago, Illinois. When the officer arrived, he entered the home through an unlocked back door to the house. In the kitchen, the officer found Frank Johnson (Johnson), who lived in the home with his wife, Evelyn. Johnson was clothed in pajamas and was apparently dead from gunshot wounds to the head and neck. A subsequent autopsy confirmed that Johnson died, probably immediately, from those wounds. The officer also found Evelyn Johnson in the basement of the home. She had been gagged and bound to a chair, was also clothed in pajamas, and was also apparently dead from gunshot wounds to the head. An autopsy subsequently confirmed that she had died from those wounds.

The officer discovered that various rooms of the house were in disarray and that a safe was open and empty. The Johnsons’ automobile, a blue Lincoln, was not in the garage behind the home. A later search of the house by detectives of the Chicago police department revealed approximately six grams of cocaine in a cosmetic bag found in the dining room of the residence.

A few days thereafter detectives of the Chicago police department spoke to Charles Sajna (Sajna). At trial, Sajna stated that he had been friends with Johnson for approximately 10 years and that they “hustled” together, i.e., sold each other merchandise. Sajna stated that he also knew defendant’s codefendant. Sajna testified that in 1983, Walker came to Sajna with some liquor that Walker wanted to sell. Sajna took Walker and the liquor to Johnson at the latter’s warehouse at 79th and Essex. Johnson agreed to buy the liquor and drove with Sajna and Walker to Johnson’s home at 77th and Luella. Johnson paid Sajna and Walker for the liquor at that time. Sajna testified that sometime in early or mid-December 1983, Johnson called Sajna and told Sajna that Johnson had “turned a tool deal” with Walker. During a later search of Johnson’s warehouse, members of the Chicago police department discovered boxes of items that were determined to be the proceeds from robberies of a liquor truck and a Snap-On Tool truck.

Detectives of the Chicago police department also spoke to Billy Love (Love), who testified at trial that he knew Walker and had seen him a few weeks before Christmas in December 1983. Love stated that at that time, Walker was driving a blue Lincoln and wearing expensive jewelry, including a watch bearing the name “Frank Johnson.” Love stated that Walker told Love that Walker had gone into a couple’s home and taken the jewelry, “some powder and some money.” A week later, Love testified, Walker picked up Love in the blue Lincoln and drove to an apartment at 65th and Lowe. Walker and Love took some stereo equipment from the apartment and transported it in Walker’s car to the home of Walker’s girl friend in Chicago Heights. A subsequent search of the apartment at 65th and Lowe by members of the Chicago police department revealed, inter alia, credit cards bearing the names of Frank and Evelyn Johnson.

Investigation by the Chicago police department detectives revealed that a document transferring title on the Johnsons’ blue Lincoln from Johnson to Walker had been executed at a currency exchange in Chicago on December 14, 1983. An employee of the currency exchange testified at trial that Walker, whom she identified at trial, had executed the document in her presence at approximately 3 a.m. on December 14. The employee testified that she could not positively identify the person who had signed the name of Frank Johnson to the title transfer because this person was never clearly in her view during the transaction. A forensic document examiner of the Chicago police department testified at trial that, based on comparisons of handwriting samples of Frank Johnson and samples of handwriting given by defendant following his arrest, it was his opinion that defendant signed the name of Frank Johnson to the document executed at the currency exchange transferring title on the Lincoln from Frank Johnson to Walker.

Detectives of the Chicago police department obtained a warrant for Walker’s arrest on January 4, 1984. Walker was arrested by officers of the Memphis, Tennessee, police department a few months later. While in custody in Memphis, Walker gave a tape-recorded statement regarding the Chicago incident to detectives of the Chicago police department. In that statement, Walker referred to defendant by a nickname, could not provide defendant’s full name, and could give a description but no specific street address for defendant’s residence. Based on Walker’s statement, the detectives initiated further investigation which, on March 24, 1984, produced defendant’s full name and specific home address. They arrested defendant that same afternoon in the backyard of his residence without an arrest warrant.

During a post-arrest interview following waiver of his Miranda rights at approximately 3:30 p.m. on March 24, Chicago detectives indicated to defendant that the detectives had spoken to Walker regarding the homicides. Defendant told the detectives that he knew nothing about the incident, that he did not know Walker, that he did not know the Johnsons, and that he had not been near the scene on the day of the incident. The detectives transported defendant to another police station and subsequently interviewed defendant again, following waiver of his Miranda rights, at approximately 6 p.m. The detectives told defendant that Walker had “made certain statements against him” regarding the incident. Defendant responded that he knew Walker, but that he did not believe Walker would make statements against him implicating him in the homicides. The detectives told defendant that Walker had “already told the whole story and he is applying [sic] that you [defendant] are part of it.” Defendant repeated that he did not believe Walker would say anything against him. The detectives told defendant that Walker had made a tape-recorded statement, and defendant said he “would have to hear the tape before [he could] talk with [the detectives].”

The detectives then transported defendant to another police station to hear Walker’s tape-recorded statement. After listening to approximately 10 minutes of the tape, defendant told the detectives that he would tell them “the real truth.” After confirming his earlier waiver of his Miranda rights, defendant told the detectives that he had known Walker for a long time and that they had recently “re-struck the acquaintance together.” Defendant said that Walker was teaching him how to hijack trucks. Defendant specifically went into the details of the robbery of a Snap-On Tool truck that he and Walker had committed together. Defendant said that they had taken the proceeds of the robbery to a “fenceman,” whom Walker knew, by the name of Frank Johnson. Defendant related that Johnson had given them some money and promised them the remainder at a later date.

Defendant also told the detectives that approximately two weeks after the robbery, Walker came to the defendant and suggested they go to Johnson’s house “to get the rest of our money.” He and Walker took a taxicab to Johnson’s home on Luella Street. When they got out of the cab, Walker told defendant to wait outside while Walker went inside the home. Defendant waited outside. After a while, defendant became suspicious “because it was taking longer than he had figured.” Defendant told the detectives that he thought that Walker “was going to cheat him out of the money that was owed him.” Defendant went to the door and knocked, and Walker let him into the house. When defendant walked inside the house, he saw an elderly woman, and Walker ordered defendant to “keep an eye on the girl.” At this time, defendant also observed Johnson lying on the kitchen floor. Defendant told the detectives that he “assumed” that Johnson was knocked out, and also said that Walker had knocked him out.

Defendant, Walker, and the woman moved to the rear of the house to a study area, where Walker “demanded” the elderly woman find the title to the Johnsons’ blue Lincoln. There was a safe in the study, and they ordered the woman to open it. They removed the items from the safe and the woman produced the title to the car. Defendant told the detectives that he asked Walker if he had killed Johnson and that Walker indicated that he had “just knocked him out.” Defendant told the detectives that he knew that Johnson was dead.

Walker then told defendant to take the woman downstairs. Defendant did so and tied the woman up, also looking through the basement to steal “whatever he could find.” Defendant went upstairs and noticed a quantity of narcotics, jewelry, and approximately $4,000 in cash, on the dining room table. He and Walker split the money in half, defendant taking $2,000.

Walker then told defendant to “watch out for the cops, that we would not be long *** you act as a look out.” Walker then went downstairs. After a period of time, defendant heard two shots fired in the basement, and “knew that *** Walker was killing the woman.” Defendant told the detectives that at this point he became “fearful for himself” and that as Walker came up from the basement, defendant checked his gun to make sure it was loaded. He and Walker then took jewelry, some fur coats, stereo equipment, and a television set, and placed them in the Lincoln in the garage.

After they had driven away, Walker realized that he had forgotten title to the automobile. They returned to the Johnson home and Walker retrieved the document of title. He and Walker then went to an apartment at 65th and Lowe, where they unloaded “most” of the items that they had stolen. Thereafter they went to a currency exchange, where defendant signed Frank Johnson’s name to the back of the title. They told the woman at the currency exchange that they were buying and selling the car “right there on the spot.” They then drove to defendant’s home in a southern suburb. Defendant stated that the only property that he took from the incident was cash amounting to $2,000.

In a subsequent court-reported statement made by defendant at approximately 12:15 a.m. on March 25, 1984, to an assistant Cook County State’s Attorney following defendant’s waiver of his Miranda rights, defendant related the details of his “hijack” of a Snap-On Tool truck with Walker on December 2, 1983. Defendant stated that they brought the proceeds of the robbery to Johnson at his warehouse, where Johnson paid Walker and defendant for the items. Walker told defendant that Johnson would pay them more money for the proceeds at a later date.

According to defendant’s court-reported statement to the assistant State’s Attorney, Walker came over to the defendant’s house on December 13, 1983, and said that he wanted to go out to Johnson’s house to “see about getting the rest of our money.” Defendant agreed. Walker asked defendant if he had a gun, and defendant told him no. They then attempted to find a ride. Walker telephoned Johnson and told Johnson that “he wanted to come over and buy cocaine.” They called a cab and arrived at Johnson’s house at about 11:30 p.m. Walker had a gun with him at the time, but defendant did not.

When they arrived at Johnson’s house, Walker told defendant to “Walk down a block and a half” while Walker went into the house. Defendant did so, and Walker went inside the house. When defendant returned, he went to the door, rang the doorbell twice, and knocked once. Walker opened the door, and defendant walked into the living room area of the house. Defendant saw a white woman standing in the room. Walker gave defendant a .38 snubnose revolver with a brown handle and told defendant “to watch the lady.” Walker also had a .38 revolver in his hand at this time. Walker asked the woman where the title to the Lincoln was located. Defendant walked the woman, at gunpoint, into a bedroom so she could find the title. She was unable to find it in the bedroom, so they proceeded into a study room, where a safe was located.

Walker came into the room and told the woman to open the safe. She did so and removed from the safe the title to the car and some jewelry, handing the items to Walker. Defendant said that they then went into the kitchen “where we then took her downstairs in the basement.” While in the kitchen, defendant saw a body lying on the floor, which he assumed to be Johnson. When they got to the basement, defendant tied the woman to a chair and placed a gag in her mouth. As he was doing so, Walker went back upstairs. Defendant then looked around the basement for “[a]nything of value” but he could not find anything. He then went back upstairs.

When he had returned to the kitchen, defendant noticed on the kitchen counter a scale for weighing cocaine, a plastic bag of cocaine, and some cash. Defendant counted the money, amounting to approximately $4,000, and took half of that amount, explaining to Walker that this was all he was going to take because it was what he “was owed.” At this time, defendant noticed a “little blood” seeping from the back of Johnson’s head. He stopped Walker, who was “looking around for something,” and asked him if he had killed Johnson. Walker said that he had just knocked Johnson down, that Johnson had fallen and hit his head. Defendant told Walker that “this thing got too deep, I really like to leave now.” Walker “instructed” defendant that he wanted defendant to help take some things out of the house into the car. Walker then said that he had forgotten something downstairs and went to the basement. Defendant then heard two shots fired in the basement. When Walker returned from the basement, he had a gun in his hands, the same gun he had had when he came in. Defendant “decided Pie] wanted to leave,” but Walker told him not to. Walker took all the stereo equipment and some movie equipment and placed them in the car in the garage. Defendant took a television set to the car. Walker took a briefcase from the house and the cocaine from the kitchen counter, and told defendant “let’s go.” At some point, defendant said, Walker must have placed the fur coats in the car.

After they had left the Johnsons’ home, defendant and Walker realized they had forgotten to take the document of title for the Lincoln. They drove back to the house to retrieve it. Walker went back into the house to get the document while defendant watched outside “to make sure no one came up on” them. When Walker came back outside the house, they returned to the car and drove to Walker’s apartment at 65th and Lowe, where they took the items from the Johnson house and placed them in the apartment. Defendant still had the gun at this time. They then went to the currency exchange, where they transferred title and “proceeded to act out a scene as though [defendant] was the owner of the car and [had] come to sell it over to [Walker].” Defendant signed Frank Johnson’s name to the transfer title to Walker. He and Walker then got back in the car, and Walker drove defendant home. On the way, Walker told defendant “about how it was meant for [Walker] to be there and to do this and everything; that he didn’t want [defendant] to tell; if [defendant] did, [Walker] would find a way to get back to [defendant]; and that he wished [defendant] well.” While in the car, defendant took the weapon that Walker had given him out of his belt and put it under the seat because he didn’t want to take it with him. He “didn’t want to have nothing to do with it.”

In an earlier oral statement to the assistant Cook County State’s Attorney, defendant said that both he and Walker were wearing gloves on the night of the incident. He also said that when he was in the bedroom while the woman was looking for the title, he checked his gun to make sure it was loaded.

Bullets recovered from the scene and the victims’ bodies could not be identified as having been fired from the same weapon. Some of the fingerprints taken from the Johnson home matched those of Frank Johnson, but the remainder could not be used for comparison.

Based upon the evidence stated above, the jury found defendant guilty of the murders and armed robberies of Frank and Evelyn Johnson. The trial court entered judgment upon these verdicts and sentenced defendant to natural life imprisonment. Defendant appeals.

I

Defendant argues that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt of the murder and armed robbery of Frank Johnson based on a theory of accountability for the actions of his codefendant.

Accountability is shown where the evidence permits the jury to reasonably infer that the defendant solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of an offense, and that the defendant participated before or during the commission of the offense with the specific intent to commit the crime. (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c); see, e.g., People v. Soteras (1987), 153 Ill. App. 3d 449, 505 N.E.2d 1134.) Based upon our review of the record, we find sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt of the murder and armed robbery of Frank Johnson based upon defendant’s accountability for the actions of his codefendant.

Defendant argues that his inculpatory statements clearly established that he did not aid or abet his codefendant’s murder and armed robbery of Frank Johnson. Defendant emphasizes that his statements show that he entered the Johnson home only after his co-defendant had murdered and robbed Frank Johnson, without any prior knowledge of or participation by defendant in those crimes. Given the inconsistencies in defendant’s various statements, the jury was not obligated to give credence to all of the circumstances and events recited by defendant therein. (See, e.g., People v. DiGerlando (1964), 30 Ill. 2d 544, 551, 198 N.E.2d 503.) Defendant admitted that he aided Walker upon his entry into the home and that defendant acted as a look-out while Walker shot Evelyn Johnson and later reentered the home to retrieve title to the Johnsons’ blue Lincoln. Defendant also admitted that his codefendant asked him twice before their arrival whether defendant had a gun, and that he and his codefendant went to the Johnson home in a cab after having given Johnson a pretense for their coming to the house at a late hour. Defendant further admitted to aiding his codefendant upon defendant’s entry into the Johnson home, by holding Evelyn Johnson at gunpoint and directing her to search for title to the car, also at gunpoint, by taking her downstairs and tying her to a chair in the basement, by acting as a look-out while his codefendant shot her, by gathering and removing various items from the Johnson home, and by participating in the transfer of title to the blue Lincoln at a currency exchange.

In view of these admissions, and considering the evidence in the light most favorable to the State, the jury could reasonably have determined that defendant knew his purpose in waiting outside the Johnson home upon their initial arrival was to act as a look-out while his codefendant entered the home to commit the murder and armed robbery of Frank Johnson, and that defendant thereby aided and abetted his codefendant in the commission of these crimes. The jury also could have reasonably inferred that defendant and his codefendant had a common plan to commit the armed robberies of the John-sons, and thus determined that defendant was guilty of Frank Johnson’s murder under the principles of accountability and felony murder. (See, e.g., People v. Chandler (1989), 129 Ill. 2d 233, 247.) Because the record contains evidence to sustain the jury’s verdict, we cannot say that the State’s evidence here was insufficient to prove defendant guilty beyond a reasonable doubt of the murder and armed robbery of Frank Johnson. See, e.g., People v. Williams (1987), 118 Ill. 2d 407, 515 N.E.2d 1230.

The cases cited by defendant in this regard are distinguishable from the base at bar. In People v. Owens (1975), 32 Ill. App. 3d 893, 337 N.E.2d 60, and People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026, the defendant’s armed robbery conviction was reversed because there was no evidence from which a jury could have reasonably inferred that the defendant was part of a common plan to commit the robbery. In People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, and People v. Pecina (1985), 132 Ill. App. 3d 948, 477 N.E.2d 811, the defendant’s armed robbery conviction was reversed because the evidence showed that the defendant had not killed the victim during the commission of a robbery. In the instant cause, the jury was presented with adequate evidence to find defendant accountable for the murder and armed robbery of Frank Johnson.

II

Defendant argues that the trial court erred in denying his motion to quash the statements he made to authorities following his arrest. Defendant asserts that his warrantless arrest in the fenced portion of his backyard violated his fourth and fourteenth amendment rights to be free from unreasonable searches and seizures. (U.S. Const., amends. IV, XIV; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (warrant needed to effectuate in-home arrest); United States v. Dunn (1986), 480 U.S. 294, 94 L. Ed. 2d 326; 107 S. Ct. 1134 (warrant required to search “curtilage” of home).) Defendant further argues that there were no exigent circumstances that justified the officers’ decision to arrest him without first obtaining a warrant. See Welsh v. Wisconsin (1984), 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091; People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 766; People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369; People v. Foskey (1988), 175 Ill. App. 3d 638, 529 N.E.2d 1158, appeal allowed (1989), 124 Ill. 2d 558.

We need not and do not address these arguments. Assuming arguendo that defendant’s arrest should have been preceded by a warrant, the defendant’s subsequent confession was nevertheless admissible. The record shows that intervening circumstances between the time of defendant’s arrest and his subsequent confession purged the taint of the defendant’s allegedly improper arrest.

In People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 766, the Illinois Supreme Court stated, “[A] defendant’s confrontation with untainted evidence, which induces in the defendant a voluntary desire to confess, may be a legitimate intervening circumstance” to dissipate the taint of the defendant’s earlier illegal arrest. (117 Ill. 2d at 224.) To support this statement, the Illinois Supreme Court referred to People v. Gabbard (1979), 78 Ill. 2d 88, 389 N.E.2d 574, in which the court held that defendant’s confrontation with a sketch prepared prior to his arrest, which defendant acknowledged resembled him, purged the taint of his illegal arrest and rendered his subsequent confession voluntary. In so ruling, the court in Gabbard noted with approval the decision of Commonwealth v. Wright (1975), 460 Pa. 247, 332 A.2d 809, in which a defendant’s confession was held to be admissible, in spite of an illegal arrest, on the ground that the confession had been prompted by intervening circumstances when defendant was confronted with his codefendant’s untainted confession. Illinois Appellate Court decisions have also held that a defendant’s confrontation with untainted evidence is an intervening circumstance sufficient to purge the taint of an illegal arrest. See, e.g., People v. Lekas (1987), 155 Ill. App. 3d 391, 508 N.E.2d 221; People v. Faulisi (1977), 51 Ill. App. 3d 529, 366 N.E.2d 1072; see also People v. Avery (1989), 180 Ill. App. 3d 146, 534 N.E.2d 1296; People v. Stofer (1989), 180 Ill. App. 3d 158, 534 N.E.2d 1287.

Based upon this precedent, we conclude that defendant’s confrontation with the tape-recorded statement made by his codefendant was an intervening circumstance which, when viewed in conjunction with other circumstances surrounding defendant’s inculpatory statement, purged the taint of his allegedly illegal arrest. The record here shows that defendant admitted his involvement approximately four hours after he was arrested. On each occasion that he was interrogated by authorities, defendant was given and knowingly and voluntarily waived his Miranda rights. Contrary to defendant’s argument, we find nothing in the record to indicate flagrant police misconduct such as an arrest without probable cause designed to conduct a “fishing expedition,” and we note that his codefendant’s statement was legally obtained prior to defendant’s arrest. On this record, we cannot say that the trial court’s determination that defendant’s inculpatory statements were the product of his free will, because of the intervening circumstance of defendant’s confrontation with his codefendant’s accusations, was against the manifest weight of the evidence. See, e.g., Lekas, 155 Ill. App. 3d at 415.

Defendant argues that confronting him with the tape-recorded statement should not be considered as intervening circumstance. Defendant notes that courts have held that confronting an illegally detained suspect with the results of a polygraph test is insufficient to purge the taint of an illegal arrest (citing People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80; People v. Haymer (1987), 154 Ill. App. 3d 760, 506 N.E.2d 1378; People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832; People v. Fox (1982), 111 Ill. App. 3d 243, 443 N.E.2d 1179), and points out that the polygraph has been judicially held to be a test of dubious scientific validity and therefore cannot prompt a careful exercise of free will by an accused in order to dissipate the taint of the illegal arrest. Defendant also observes that the statement of a codefendant implicating an accused has been held to be presumptively unreliable. (Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; People v. Rogers (1988), 123 Ill. 2d 487, 528 N.E.2d 667.) Drawing an analogy between polygraph results and a codefendant’s inculpatory statement based upon this judicial determination of the questionable reliability of both a polygraph and a codefendant’s inculpatory statement, defendant asserts that confronting a defendant with his codefendant’s statement, similar to confronting a defendant with the results of a polygraph test, should not be held an intervening circumstance that dissipates the taint of an illegal arrest.

A codefendant’s untainted confession is distinguishable from polygraph results, however. A codefendant’s confession will be admitted into evidence if it is found to be reliable because supported by independent indicia of reliability. (See, e.g., People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423.) The results of a polygraph test, in contrast, have been determined to be inherently unreliable and therefore per se inadmissible at trial. (See, e.g., People v. Taylor (1984), 101 Ill. 2d 344, 462 N.E.2d 478.) As a result, we do not find defendant’s analogy persuasive and decline to adopt defendant’s reasoning as ground to reach a conclusión contrary to the precedent stated above.

Defendant also claims that because his confrontation with the tape was itself a product of the illegal arrest, his listening to the tape cannot be considered an intervening circumstance. We disagree. The logical consequence of defendant’s reasoning would preclude all confrontations of a defendant with any untainted evidence from ever being considered sufficient to purge the taint of an illegal arrest. We decline to adopt such a position in the case at bar. People v. Sanders (1977), 55 Ill. App. 3d 178, 370 N.E.2d 1213, is inapposite to the instant cause with respect to this issue, since the question presented in Sanders was whether police officers had continued interrogating defendant following his invocation of his right to an attorney.

Defendant also contends that confrontation with evidence can purge the taint only if the evidence is both new and untainted, citing People v. Lekas (1987), 155 Ill. App. 3d 391, 508 N.E.2d 221. Defendant does not argue that his codefendant’s taped statement was untainted. (See Avery, 180 Ill. App. 3d 146, 534 N.E.2d 1296; Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287.) Defendant does argue, however, that the tape was not “new” because the officers “informed [defendant] repeatedly that his [codefendant] had implicated him in the crime.” Contrary to defendant’s assertion, the authorities did not repeatedly confront defendant with the tape recording of his codefendant’s accusations. Under the facts of this case, we can find no reversible error in the trial court’s ruling.

Ill

Defendant maintains that he was denied effective assistance of counsel where both he and his codefendant were separately represented by assistant Cook County public defenders. It has been held that such representation by the Cook County public defender’s office does not amount to per se conflict of interest, and defendant makes no showing here that the circumstances presented an actual conflict of interest. (See People v. Banks (1988), 121 Ill. 2d 36, 526 N.E.2d 617.) Accordingly, we determine that defendant’s contention does not entitle him to a new trial.

IV

Defendant argues that the trial court improperly questioned prospective jurors regarding their attitudes toward certain of defendant’s basic constitutional protections, in violation of People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. The record shows that at the outset of voir dire, the trial court denied defendant’s motion for attorney participation in questioning of prospective jurors. The trial court also apparently declined to ask specific questions posed by defendant in a written list tendered to the court; this 10-page document included at least 10 questions regarding the presumption of innocence, 17 questions regarding the State’s burden of proof beyond a reasonable doubt, and five questions regarding defendant’s right to remain silent and present no evidence on his own behalf. In denying defendant’s motion for attorney participation and for the specific questions listed in his written document, the trial court commented that the topics raised in defendant’s list would be covered in the court’s opening comments to the prospective jurors as a group, and added that “if you have any questions after I get done voir direing the jury, I will be happy to ask the questions.” Defendant expressed no objection to this ruling. The trial court then addressed the prospective jurors as a group with the following relevant remarks:

“I will tell you certain things about the law at this time and at the conclusion of the trial again give you certain written instructions which are the law which is applicable as far as the laws in this case is [sic] concerned. *** You must follow the instructions as I give it [sic] to you. In other words, if I tell you the law is a particular way, that is the way it is. You may not go back there and say I have a friend of mine who looks a lot smarter than this judge or I read a book or the newspaper last week, the law should be this way. You may not do that, [you] must accept the law as I give it to you. That is the only way our system of justice has continued to flourish over all these many, many years.
Considering that, is there anybody out there, that will not follow the law as I give it to them, anybody? Are you sure? Are you sure there is no juror? This is going to be a trick question, I will tell you why a little later on.
Is there any juror that will not follow the law as I give it to theip, anybody? Nobody is raising their hand, remember that.
As I tell all jurors, the Court is the boss of the law. Then what is your function? Your function, put in the simplest terms, is to be the boss of the facts. In other words, you will hear the facts from the witness stand. Based upon those facts as well as the law which I give to you as well as all the exhibits that have been offered and received you will decide whether the defendant is guilty or not guilty of the charge against him. So, you have your function to perform, that is to be the boss of the facts, I have my function to be the boss of the law. ***
The defendant has entered a plea of not guilty. And as the defendant sits in the court at the present time he is presumed to be innocent and that innocence remains with him throughout the case and until the State proves him guilty beyond a reasonable doubt. The defendant need not prove anything. The burden is always upon the State to proof [sic] him guilty beyond a reasonable doubt and this burden never shifts.
So, if I were to take the first twelve jurors whose names were called, tell you to go back at this time and give me a verdict I am sure you’d look at me and say what is that man talking about, how can we possibly give a verdict at this time since we have not heard anything? You’d be absolutely wrong because at this time your verdict would have to be not guilty since you didn’t hear anything and it is up to the State to prove him guilty beyond a reasonable doubt. Do you all understand that?”

At the court’s close of these comments, defendant did not inform the trial court that he found the trial court’s remarks incomplete with respect to his right to remain silent, nor did defendant request that the prospective jurors be more specifically informed of the defendant’s right not to testify on his own behalf. After each panel of jurors had been individually questioned, the court asked the group whether there was anything he had not brought out that might affect the jurors’ ability to give both sides a fair trial.

During the course of voir dire, after the first panel had been questioned, defendant requested a sidebar and, outside the presence of the prospective jurors, asked the court to excuse certain jurors for cause. The trial court denied this request. Defense counsel then stated, “I would like to put on the record the fact that we asked that you ask each individual juror if they understood the burden of proof that the State has the burden of proof at all times and if they understood that burden of proof. You did not ask specifically each juror.” The trial court responded, “So what?” Defense counsel then continued, “Secondly, we wanted them to be asked individually if they would not hold anything against the defendant if he failed to testify.” The trial court replied, “I told you before, that I have given the instructions, I tell them to follow the law. I don’t know how I can make it clearer — .” Thereafter the trial court resumed its voir dire.

Upon completion of jury selection, defendant said nothing about the trial court’s allegedly inadequate questioning of the prospective jurors. At the close of all the evidence, the jury was instructed, inter alia, that the defendant had the right not to testify at trial and that the jurors could draw no negative inference against the defendant because of his failure to testify. In his motion for a new trial, defendant argued that the trial court “violated People v. Zehr (1984), 103 Ill. 2d 472 when it refused to ask jurors individually: first, that if at the end of evidence, each juror felt that the State had failed to sustain its burden of proof, would they hesitate to return a ‘Not Guilty’ verdict? Second, that if Mr. Thomas did not testify, would they hold it against Mr. Thomas?” Defendant’s new trial motion also contended that the trial court denied him a fair trial when it “[d]enied defendant’s proposed voir dire questions[;] [r]efused individual voir dire questions!;] [and] [r]efused to allow defense counsel to participate in voir dire questioning.”

Based upon this record, we conclude that the trial court’s comments to the prospective jurors sufficiently complied with the requirements of Zehr that a judge probe jurors’ potential bias with respect to a defendant’s constitutional rights (1) to be presumed innocent and (2) to be proved guilty by the State beyond a reasonable doubt. The trial court’s remarks to prospective jurors in the case at bar regarding the presumption of innocence and the State’s burden of proof were substantially similar to those found acceptable by the Illinois Supreme Court in People v. Emerson (1987), 122 Ill. 2d 411, 425-27, 522 N.E.2d 1109. Based upon Emerson, we find no reversible error in the manner in which the trial court conducted voir dire in the instant case regarding jurors’ attitudes toward the presumption of innocence and the State’s burden of proof. See also People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.

Furthermore, defendant has waived any claim that the trial court’s comments were inadequate regarding his right not to testify on his own behalf at trial. The record demonstrates that, following the trial court’s comments to prospective jurors as a group, defendant did not indicate to the court that defendant found the court’s comments inadequate, nor did defendant request that the court inform the jurors more specifically regarding the defendant’s right not to testify on his own behalf. During the course of the trial court’s individual questioning of jurors, defendant only once asked that the court question prospective jurors regarding their possible bias with respect to defendant’s right not to testify at trial; this objection, however, requested that the court ask all of defendant’s written questions regarding his right to remain silent, and that the court do so with respect to each prospective juror individually. The trial court was not obligated to ask each juror individually regarding that juror’s attitude toward defendant’s constitutional right to remain silent, nor was the court obligated to ask the precise questions formulated by the defense. (See, e.g., People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017; People v. Hopkins (1987), 160 Ill. App. 3d 967, 513 N.E.2d 1011; see also People v. Hughes (1988), 168 Ill. App. 3d 758, 522 N.E.2d 1275.) Defendant did not thereafter request that the panels of jurors be questioned as a group regarding the defendant’s right to remain silent, nor did defendant inform the court that defendant found inadequate the court’s question to panels of jurors regarding whether there was anything additional which would prevent the jurors from being fair to both the State and the defendant. Because defendant did not timely inform the court of his belief that the court’s comments to prospective jurors as a group were inadequate regarding his right to remain silent, defendant cannot argue such grounds for the first time on appeal. See People v. Coleman (1989), 129 Ill. 2d 321, 340, citing People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, and People v. Holman (1984), 103 Ill. 2d 133, 181-82, 469 N.E.2d 119 (Ryan, C.J., concurring in part and dissenting in part); see also People v. Barnett (1988), 173 Ill. App. 3d 477, 527 N.E.2d 1071; People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744.

Defendant asserts that our disposition of this issue is controlled by People v. Starks (1988), 169 Ill. App. 3d 588, 523 N.E.2d 983. In that case, the trial court neglected to inform prospective jurors of the defendant’s right not to testify on his own behalf at trial. Starks is inapposite to the case at bar, however, since the question had been properly preserved for review. See also People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.

V

Defendant asserts that the trial court improperly qualified its partial severance of defendant’s trial from that of his codefendant on the condition that, if defendant chose to testify at trial, defendant’s jury would also hear his codefendant’s testimony. We have reviewed the transcript of the trial court’s oral pronouncements, and discover that the trial court did not issue the condition defendant advances upon review. The record shows that the trial court, in ruling upon a renewed, mid-trial defense motion for full severance because of the defendants’ mutually inculpatory statements, simply informed the defendant that, if his codefendant chose to testify, defendant’s jury would be permitted to hear that testimony. We find no error in this ruling based on the legal principles regarding severance to protect defendants who have made mutually inculpatory statements. (See, e.g., Duncan, 124 Ill. 2d 400, 530 N.E.2d 423.) Because defendant’s contention depends upon an inaccurate characterization of the record, we find his argument insufficient ground to reverse his convictions.

VI

Defendant contends that prejudicial error resulted when a State’s witness testified regarding a post-arrest statement made by defendant’s codefendant, who did not testify at trial, to the effect that defendant had committed the crimes. Defendant claims that the trial court should have instructed the jury that the witness’ testimony was to be considered only for the limited purpose of showing the circumstances surrounding the defendant’s making of his inculpatory statements. Defendant asserts that such a limiting instruction would have been proper, citing Tennessee v. Street (1985), 471 U.S. 409, 85 L. Ed. 2d 425, 105 S. Ct. 2078.

However, defendant never objected to the "witness’ testimony at trial and never requested that such a limiting instruction be given to the jury. Consequently, defendant’s argument is waived on appeal. (See People v. Coleman, 129 Ill. 2d at 340, citing People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, and People v. Holman (1984), 103 Ill. 2d 133, 181-82, 469 N.E.2d 119 (Ryan, C.J., concurring in part and dissenting in part).) In addition, because the defendant did not repudiate his own inculpatory statements at trial, and because the witness’ testimony consisted of a cursory reference to the codefendant’s statement which did not recount the details of the codefendant’s statement and provided only the general information that the codefendant had implicated the defendant, we find no plain error in the witness’ testimony at trial. Cf. People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563; People v. Burns (1988), 171 Ill. App. 3d 178, 524 N.E.2d 1164.

VII

Defendant asserts that prejudicial error resulted from the admission of those portions of his inculpatory statements to the effect that defendant committed an armed robbery of a Snap-On Tool truck with his codefendant, because this conduct was irrelevant to a material fact at trial. Defendant argues that past “bad acts” of a defendant are generally inadmissible at trial, because the prejudicial effect of such evidence outweighs its probative value. However, the evidence in the instant cause was relevant and admissible to prove defendant’s motive in committing the crimes for which he was convicted, and we find no error in its admission into evidence at trial for this purpose. See, e.g., People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339; People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840; People v. Escobedo (1986), 151 Ill. App. 3d 69, 502 N.E.2d 1263.

VIII

Defendant contends that prejudicial error resulted from trial testimony that defendant’s case was investigated by law enforcement officers of the gang crimes unit, since there was no evidence that defendant’s association with his codefendant or the victims was gang-related and the critical issue in defendant’s trial was his accountability for the acts of his codefendant. The record indicates that the trial court clearly admonished the jury that the witnesses’ association with the gang crimes unit had no bearing on the case, and that there was no gang-related incident involved in defendant’s trial. We conclude that the trial court properly exercised its sound discretion, to ensure that the defendant was not prejudiced by the few references to the gang crimes unit made at trial, by so admonishing the jury, and also that any error was harmless under the facts of this case. See, e.g., People v. Simpson (1984), 129 Ill. App. 3d 822, 473 N.E.2d 350.

IX

Defendant maintains that improper comments by the State during closing argument deprived him of a fair trial. We have reviewed the record and cannot say that the State’s comments during closing argument were so inflammatory as to deprive defendant of a fair trial. See, e.g., People v. Caballero (1988), 126 Ill. 2d 248, 271-73, 533 N.E.2d 1089.

X

Defendant argues that cumulative error deprived him of a fair trial. However, we determine, for the reasons set forth above, that the majority of defendant’s claims do not present erroneous rulings by the trial court judge. Nor are we able to say on this record that the few minor errors occurring in the defendant’s lengthy trial were sufficient to reverse his convictions and grant him a new trial.

For the reasons stated, the defendant’s convictions and sentence are affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    PAULA KAHN, Adm’r of the Estate of Donna Sclafani, Deceased, et al., Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    First District (4th Division)
    No.l—88—2230
    Opinion filed July 27, 1989.

      Reibman, Hoffman & Baum and Robert J. Cooney & Associates, both of Chicago (James E. Ocasek, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Dolores V. Horan, and Carol Proctor, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, the Aetna Casualty and Surety Company, issued an automobile insurance policy to plaintiff Hope Hughes. Hughes and a passenger were subsequently involved in an automobile accident. Hughes and the other plaintiff, Paula Kahn, administrator of the passenger’s estate, claimed benefits pursuant to the underinsured motorist provision of the policy.

Plaintiffs then brought this declaratory judgment action in the circuit court of Cook County against Aetna. Plaintiffs sought a declaration that the policy’s underinsured motorist coverage extended to the insured’s total damages, reduced by any payment by the tortfeasor. The trial court granted Aetna judgment on the pleadings, finding that the policy’s underinsured motorist coverage extended only to the policy’s limit of liability, reduced by any payment by the tortfeasor. Plaintiff appeals, assigning error to the trial court’s findings and judgment.

We affirm the judgment of the trial court.

Background

The pleadings allege that on March 17, 1986, Hughes and her passenger, Donna Sclafani, were involved in an automobile accident near 2700 North Lake Shore Drive in Chicago, Illinois. Another automobile struck Hughes’ vehicle, causing serious injuries to Hughes and Sclafani, which resulted in Sclafani’s death. The insurers of the tortfeasors paid each plaintiff $39,900, which was the total amount of coverage available to the tortfeasors.

Plaintiffs made a claim to Aetna for benefits pursuant to the policy’s underinsured motorist coverage. The policy states in pertinent part:

“UNDERINSURED MOTORISTS COVERAGE
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an underinsured motorist vehicle because of bodily injury sustained by a covered person and caused by an accident. *** * * *
LIMIT OF LIABILITY
The limit of liability shown in the Declarations under Uninsured Motorists ($50,000 per person/$100,000 per accident) is our maximum limit of liability under this coverage for all damages resulting from any one accident. This is the most we will pay regardless of the number of premiums shown in the declarations or vehicles involved in the accident.
* * *
Any amounts otherwise payable for damages under this coverage shall be reduced by:
1. all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under the Liability Coverage of this policy ***.” (Emphasis added.)

Aetna paid $10,100 to each plaintiff as the benefits due under the policy’s underinsured motorist coverage.

Plaintiffs brought this declaratory judgment action, seeking a declaration that the policy’s underinsured motorist coverage extended to the insured’s total damages, reduced by any payment by the tortfeasor. Aetna answered and subsequently moved for judgment on the pleadings; plaintiffs moved for summary judgment.

At the close of a hearing on these motions, the trial court granted Aetna judgment on the pleadings and denied plaintiffs’ motion for summary judgment. The trial court found that the policy’s underinsured motorist coverage extended only to the policy’s limit of liability, reduced by any payment by the tortfeasor. Since the policy’s limit of liability was $50,000 per person, and since each plaintiff received $39,900 from the tortfeasors, then Aetna’s payment of $10,100 was correct under the terms of the policy. Plaintiffs appeal.

Opinion

A motion for judgment on the pleadings (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(e)) requires a determination of whether the pleadings raise any genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. (City of Chicago v. Mendelson (1973), 14 Ill. App. 3d 950, 954-55, 304 N.E.2d 16, 19.) The motion admits all well-pled facts and all fair inferences to be drawn from the pleadings of the opposing party. Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 821, 420 N.E.2d 567, 569.

At oral argument in this court, plaintiffs correctly noted that the resolution of this controversy turns on the meaning of the insurance policy. Plaintiffs contend that Aetna and the trial court distort the plain language of the policy. Plaintiffs argue that Aetna erroneously established its coverage “by first considering the limitations of coverage rather than the grant of coverage.” (Emphasis in original.)

Rather, plaintiffs contend that the phrase “[a]ny amounts otherwise payable for damages under this coverage” refers to the grant of coverage found at the beginning of the policy. There, Aetna promises to “pay damages which a covered person is legally entitled to recover.” Plaintiffs argue that the phrase does not include the limit of liability provision ($50,000 per person/$100,000 per accident) because that provision is “used elsewhere in the policy for special purposes and with specific intent.” Since the limit of liability provision is not used in the disputed phrase, plaintiffs infer that Aetna did not intend to include the provision within the meaning of the phrase. Aetna, rather, intended something different than “limit of liability” with the language it did use.

A court will resolve any ambiguity or uncertainty in an insurance policy against the insurer; however, this does not alter the principle that insurance policies are contracts and the general rules of construction that apply to other contracts also apply to insurance policies. Whether an ambiguity exists is a question of law for the court to determine. Where the language of the policy is clear and unambiguous, the court must take it in its plain, ordinary, and popular sense, and the court must determine the intent of the parties solely from the language used. Accordingly, we must examine the entire policy in the present case and interpret its pertinent parts in light of the whole document to determine whether there exists any ambiguity or uncertainty in the language at issue. Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 412, 407 N.E.2d 77, 79.

After examining the entire policy, we find no ambiguity or uncertainty in its language. Further, we reject plaintiffs’ interpretation of the policy. The problem with plaintiffs’ argument is that it does not consider the entire policy as a whole. Indeed, plaintiffs attempt to locate, categorize, and isolate the limit of liability provision, so that they may argue that it is not included in the phrase “[a]ny amounts otherwise payable for damages under this coverage.”

The trial court was correct in rejecting plaintiffs’ argument. The court correctly found that the disputed phrase includes the limit of liability provision. This finding was based on an interpretation of the document’s pertinent provisions in light of the whole policy.

We additionally note that the trial court’s interpretation of the policy is consistent with the purpose of underinsured motorist coverage. A driver does not insure against the risk of uncompensated damages. Rather, underinsured motorist coverage protects the insured against the risk of a lesser recovery if injured by an insured driver rather than by an uninsured driver. (Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 468, 452 N.E.2d 49, 53.) This was the very result obtained in the case at bar. The tortfeasors’ insurers paid each plaintiff $39,900. Plaintiffs were each entitled to $50,000 under Aetna’s policy. Thus, Aetna paid each plaintiff $10,100. This put plaintiffs in the same position as if the tortfeasors were uninsured.

Plaintiffs alternatively contend that the language of the policy is at least ambiguous and that we should construe the ambiguity in their favor. This contention fails. The well-known rule that all ambiguities in an insurance policy will be construed most strongly against the insurer, as the party that drafted the policy, applies only where an ambiguity in fact exists; a court may not distort the contract to create the ambiguity itself. Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App. 2d 432, 435, 231 N.E.2d 112, 114, cited in Coronet Insurance Co. v. Ferrill (1985), 134 Ill. App. 3d 483, 485, 481 N.E.2d 43, 45.

In the case at bar, the parties agreed on the material facts before the trial court and continue to do so. The only issue before the court was whether the pleadings entitled Aetna to judgment as a matter of law. We agree with the trial court that Aetna is so entitled. Consequently, we uphold the trial court’s grant of judgment on the pleadings for Aetna.

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 LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL KNOX, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2543
    Opinion filed July 28, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

On the evening of October 31, 1985, Nathaniel Knox, then 15 years old, was arrested at his home for the sexual assault of his six-year-old female neighbor, T.B. He was taken to the Area 4 police station at Harrison Street and Kedzie Avenue, where he signed a written confession. Prior to his jury trial, defendant moved, unsuccessfully, to suppress that statement on the basis that the confession was not voluntarily given. The statement was admitted into evidence at trial and defendant was subsequently convicted of aggravated kidnapping and aggravated criminal sexual assault. Ill. Rev. Stat. 1985, ch. 38, pars. 10-1, 12-14.

We now reverse defendant’s convictions and remand the cause for retrial because we conclude defendant’s pretrial motion to suppress his confession was improperly denied, and summarize below relevant testimony adduced during the hearing on defendant’s motion to suppress.

Chicago police detective Thomas Skol testified that on October 31, 1985, he was assigned to defendant’s case and spoke to T.B. and her mother at Columbus Hospital. Based on that conversation, Skol went to 4341 West Kinzie Street, where defendant lived with his parents. It was approximately 9:15 p.m. when Skol arrived. Skol was with police sergeant John Schillen. Skol stated he was admitted into the residence and there arrested defendant.

Skol stated he spoke with defendant’s father and indicated to him that he could accompany defendant to the police station. However, defendant’s father “chose not to” go. Skol testified he either left a card with defendant’s father, presumably containing information where defendant was being taken, or wrote on a piece of paper his name and telephone number. Skol then took defendant to the Area 4 police station.

There, Skol stated, he advised defendant of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and defendant replied that he understood what those rights were. Skol then advised defendant of the allegations that had been made against him. Skol further testified that he asked defendant if he wanted to account for his actions, whereupon defendant admitted the sexual encounter with T.B.

Skol stated that he contacted Assistant State’s Attorney Gregory Giróte by telephone, Giróte arrived at the police station at approximately 12 p.m. and was advised of information developed in the case. They then proceeded to Columbus Hospital where they spoke with T. B. and her mother. They returned to the police station and Giróte again advised defendant of his rights pursuant to Miranda. Defendant recounted in the interview with Giróte a similar version of the sexual encounter that defendant had earlier related to Skol. Skol testified that defendant’s statement was reduced to writing, and that after defendant read the statement, he signed it.

On cross-examination, Skol testified that there were several other people in the house when defendant was arrested, but he did not recall whether there were any young children, nor could he recall defendant’s father’s reason for not accompanying defendant to the police station. He admitted the initial interview with defendant began at approximately 9:45 p.m. and lasted approximately 45 minutes, and that the second interview by Giróte began at approximately 1:45 a.m. and lasted for approximately 15 to 20 minutes. Skol acknowledged defendant was at the police station from 9:30 p.m. to 2 to 2:15 a.m.

Skol could not recall whether, during his initial interview of defendant, defendant had asked if his mother was coming to the police station, or if she was present in the station, or if defendant had said that he wanted to speak to his mother. When asked whether he was aware that defendant’s mother was in the police station, he admitted she may have been there, but stated he did not remember seeing her, and further stated that he was certain that he did not inquire at the front desk whether or not anybody came to see about defendant.

He admitted that he knew at the time of the arrest that defendant was 15 years old, and that, although he notified the “Youth Division” sometime between 9:45 and 10 p.m. after defendant’s arrest, no juvenile officer was present at any time during the interview.

On redirect examination, Skol stated that by 11:30 p.m. defendant had already recounted his sexual encounter with T.B. The written confession was signed at 2:21 a.m., after the second interview with Giróte.

Assistant State’s Attorney Gregory Giróte testified that after receiving Skol’s telephone call he arrived at the Area 4 police station at approximately 11:50 p.m. on November 1, 1985. After he and Skol had spoken with T.B. and her mother at Columbus Hospital, they returned to the police station where he, Giróte, proceeded to interview defendant.

He testified that he introduced himself and explained to defendant his rights pursuant to Miranda and defendant indicated he understood each of the rights read to him.

After questioning defendant, Giróte reduced the conversation to writing and went over it with defendant, who sat next to him. As Giróte read from the statement, Giróte ran his finger underneath the writing. Defendant made corrections in two places and initialed the corrections.

On cross-examination, Giróte explained that after he reduced defendant’s statement to writing, defendant read it twice: once to himself and again when Giróte read it out loud. Giróte further stated defendant never asked him if his mother was at the police station or requested to have her present.

Lula Key, defendant’s mother, also testified. She testified that defendant was her eldest son. She stated that she had five other children, the youngest of which was six years old, and that on the evening of October 31, 1985, she had been out at a restaurant with one of them. Her husband had the responsibility of watching the other children in her absence. When she arrived home at approximately 9:40 p.m., she learned of defendant’s arrest.

Key stated her husband took her to the Area 4 police station at about 10 p.m., “because it seemed like the news was on when [we] left.” The trip took approximately 5 to 10 minutes.

She identified herself at the police station and inquired about her son with a detective at the front desk. The detective told her defendant was in a room in the station and that she should wait. She waited for what seemed like “an hour or so” before another detective spoke with her. That detective told her there was nothing she could do and that she might as well go home because her son had made a confession and that the State’s Attorney would have to be called in. Although she could not identify the detective who told her to go home, she stated the detective had indicated to her that he had personally spoken with her son. The time was approximately 12 p.m.

On cross-examination, Key clarified that, when she inquired of her son at the front desk of the police station, she was directed to the detective division, where she spoke to the detective who had told her to wait. Key responded affirmatively to counsel’s question that it was Detective Skol, who had earlier testified in the hearing on the motion to suppress, who came to tell her that she should go home because defendant had made a confession.

Key stated that at the time of his arrest, defendant was 25 days short of his sixteenth birthday, was a sophomore at John Marshall High School, and knew how to read and write.

Defendant testified that, at the police station, he was taken to a small, windowless room having one door. Defendant stated that, there, Detective Skol questioned defendant and told him that “the [j]udge wasn’t going to believe [defendant’s] denying [his involvement]” and that defendant “might as well admit to it.” Defendant stated the first questioning by Skol lasted 10 to 15 minutes.

Defendant denied that Skol had read to him his Miranda rights and indicated he did not understand what those rights were.

Defendant testified that as Skol was leaving the interview room after he questioned defendant, he asked Skol whether his mother had as yet arrived in the police station. Skol said he would check, but he did not come back to tell defendant whether or not his mother was present.

Defendant stated he remained in the interview room sleeping during the time period between when Skol left after first questioning defendant. Skol returned with Giróte several hours later. He was awakened from sleep when they entered the interview room. Defendant stated Giróte handed him a prepared statement with the second page folded over the first page and was told to sign it. He signed the statement without reading it. Defendant recalled that Giróte had read the statement to him after defendant had signed it. Although he admitted initialing the statement, he stated that, rather than as a result of indicating corrections in the statement, he did so at Giróte’s direction.

On cross-examination, defendant acknowledged that, at the time of his arrest, the police officers told his father where defendant was being taken and had indicated defendant’s father could accompany him. Defendant also acknowledged his signature appeared on the statement underneath a recitation of his rights.

Opinion

With respect to voluntariness, confessions made by juveniles are generally subjected to the same scrutiny as confessions of adult defendants. (People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371.) The test is whether, under the totality of the circumstances, the statement was made freely, without compulsion or inducement of any sort, with consideration given to the characteristics of the accused as well as the details of the interrogation. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606.) Nevertheless, our supreme court has also recognized that the receiving of an incriminating statement by a juvenile is a sensitive concern requiring great care, in absence of counsel, to assure the juvenile’s confession was neither coerced or suggested, nor a product of fright or despair. Prude, 66 Ill. 2d at 476, 363 N.E.2d at 373, quoting from People v. Simmons (1975), 60 Ill. 2d 173, 179-80, 326 N.E.2d 383, 386, quoting from In re Gault (1967), 387 U.S. 1. 55. 18 L. Ed. 2d 527. 561, 87 S. Ct. 1428, 1458.

Based on aspects of police conduct surrounding defendant’s initial interview in the instant case, we are not satisfied that the requisite care was exercised to assure defendant’s statement was not free of compulsion. We are most concerned that defendant’s statement was made before defendant had an opportunity to confer, prior to questioning, with an adult interested in his welfare, either his parents or a juvenile officer.

The record establishes defendant was arrested at his home on the evening of October 31, 1985, and was immediately taken to the Area 4 police station for questioning. It is undisputed that defendant’s father, who was home at the time of defendant’s arrest, was apprised of the situation and was advised where defendant was being taken. It is also undisputed that, although invited, he did not accompany defendant to the Area 4 police station. However, it is sufficiently clear from Lula Key’s testimony that the opportunity to accompany defendant to the police station was an empty one. Key testified that she, accompanied by one of her children, was not at home when the police came and arrested defendant. Her other children, all younger than defendant, were home under the supervision of her husband. Obviously, defendant’s father was not free to accompany defendant and leave the other children alone.

More importantly, the record reveals the police contributed significantly to eliminating any opportunity defendant had from speaking to his mother at the police station. While the exact time of the sequence of events cannot be determined conclusively from the record, there is a strong indication that defendant’s mother was in the Area 4 police station when defendant was initially questioned by Skol, but was precluded from seeing him.

The record establishes Skol arrived at 4341 West Kedzie Street at approximately 9:15 p.m., arrested defendant shortly thereafter, and brought defendant to the police station. Defendant was in the station at approximately 9:30 p.m. Before being taken to the interview room, Skol recorded defendant’s biographical information. Defendant’s interview began at approximately 9:45 p.m. and lasted approximately 45 minutes.

By approximately 9:40 p.m., defendant’s mother had arrived home, had learned of the arrest, and had left for the police station. Key stated it was approximately 10 p.m. when she left. The trip lasted 5 to 10 minutes.

At the police station, Key identified herself, was directed to the detective division, and was there told to wait. She waited there for approximately an hour before a detective, which she acknowledged was Skol, told her her presence was inconsequential.

Defendant’s mother’s testimony was not contradicted. Skol could not recall whether or not defendant’s mother was in the police station when he initially interviewed defendant and conceded that she may have been there. In any case, Skol stated he made no effort to inquire whether or not anybody came to the station to see defendant.

We do not believe such conduct by police is consistent with the great care required where a juvenile’s incriminating statement is received. At worst, the police purposely precluded defendant’s mother from contact with defendant by neglecting to see if defendant’s mother had arrived until after such time as defendant had completed his confession. At best, the police simply subjected defendant to the same routine questioning of a criminal suspect without special regard for his youth. Either scenario is impermissible and casts some doubt over the voluntariness of defendant’s statement.

In its brief, the State points out that the relevant inquiry is whether the absence of an adult interested in defendant’s welfare contributed to the coercive circumstances surrounding the interview, not whether contact with a parent was denied, and cites People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984, in support thereof. We agree, in principle, with that statement of the law, but conclude circumstances here are distinguishable from those in Stachelek.

In Stachelek, defendant, a 15-year-old juvenile, was arrested and taken to a police station shortly before 7 a.m. in the investigation of a stabbing death. He waited in an interview room until approximately 8:30 a.m., when a youth officer arrived. He was advised of his Miranda rights and informed that he could be tried as an adult. Nevertheless, defendant stated that he wanted to, and did, make a statement. The youth officer spoke with the defendant again at 1 p.m. Another oral statement was taken from defendant at 3:30 p.m. and a written statement at 4:30 p.m. that afternoon. Defendant’s parents were not notified of his arrest.

At defendant’s pretrial motion to suppress, the trial court concluded all of the statements were voluntarily given. However, the trial court determined that only the statements given at 3:30 and 4:30 p.m. were proper because of deficiencies in the Miranda warnings administered prior to defendant’s initial statement. That ruling was affirmed on appeal.

In Stachelek, although defendant’s parents were not notified of his arrest, defendant was afforded the opportunity to confer with a youth officer, an adult interested in his welfare, prior to making any statement. As stated above, no such actual opportunity was afforded defendant in the instant case. That distinction from the instant case is crucial.

Parenthetically, we note that, although defendant argued on appeal, and the State addressed in response, the effect of the failure of the police to have a juvenile officer present during defendant’s questioning under section 3 — 2 of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 2 (current version at Ill. Rev. Stat. 1987, ch. 37, par. 802 — 6)), our decision to reverse defendant’s conviction should not be construed as founded on violation of that section. Indeed, the language of the Act does not require that a juvenile officer be present under the circumstances of an arrest as presented here.

Section 3 — 2 is labeled “Duty of officer — Admissions by minor.” (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 2.) Subsection (2) of section 3— 2 of the Act, outlining the duty of law enforcement officers when a minor has been taken into custody without a warrant, is apparently the subsection addressed by both defendant and the State. Like subsection (1) of section 3 — 2, where custody is pursuant to a warrant, that duty includes the duty to take the minor to a juvenile police officer. (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 2(2).) However, the language of section 3 — 2(2) refers only to situations where the minor is taken into custody without a warrant “under [sjection 3 — 1.” (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 2(2).) Section 3 — 1 permits only “temporary custody” and only in three situations: where the minor is a person described in section 2 — 1 of the Act; where the minor has been adjudged a ward of the court and has escaped from any commitment ordered by the court under the Act; or where the minor is found in the street or other public place and requires care, medical treatment, or hospitalization. (Ill. Rev. Stat. 1985, ch. 37, par. 703 — 1.) Further, subsection (3) of section 3 — 1 provides that “[t]he taking of a minor into temporary custody under [section 3 — 1] is not an arrest nor does it constitute a police record.” (Ill. Rev. Stat. 1985, ch. 37, par. 703— 1(3).) Thus, the failure to comply with section 3 — 2 is not fatal to the voluntariness of a minor’s statement where the minor has been arrested pursuant to a criminal charge. See also People v. Visnack (1985), 135 Ill. App. 3d 113, 126, 481 N.E.2d 744, 753.

Here, however, the failure to have a juvenile officer present is material to determining the voluntariness of defendant’s statement. That failure, in view of the failure to permit defendant’s mother an opportunity to see her son at the police station, deprived defendant of his only chance to consult with any adult interested in his welfare prior to making a statement. Such is not the type of sensitivity to be accorded to receipt of a minor’s statement.

We therefore reverse defendant’s convictions and remand the matter for a new trial. Because we conclude reversal is proper on the basis that defendant’s motion to suppress his confession was improperly denied, we need not address the other issues raised on appeal concerning the State’s closing remarks and/or the length of defendant’s sentence.

Reversed and remanded.

PINCHAM and COCCIA, JJ., concur.

       Section 2 — 1 enumerates five different categories: “delinquent,” “addicted,” “requiring authoritative intervention,” “neglected” or “dependent.” (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 1.) Each of those states is defined in the Act and none remotely includes a juvenile defendant who is arrested on a criminal charge.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. KRYZYSZTOF SAK, Petitioner-Appellee.
    First District (5th Division)
    No. 1—87—1300
    Opinion filed July 28, 1989.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Michael D. Jacobs, Assistant State’s Attorneys, of counsel), for the People.
    Donald L. Bertelle, of Collins & Bertelle, of Chicago (Janet L. Powers, Law Student), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

In this case we consider whether the language of the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1), permitting petitions thereunder by persons “imprisoned in the penitentiary,” precludes a remedy to an individual who has completed his sentence prior to seeking post-conviction relief.

We conclude it does not and affirm the judgment of the circuit court.

Defendant, Kryzysztof Sak, is a Polish national who, in 1980, along with his wife, entered the United States on a tourist visa, overstayed its expiration, and became an illegal alien.

In April of 1984, Sak was charged with the theft of plywood from a commercial establishment. On May 4, 1984, Sak, who was represented by private counsel, pled guilty to the theft, was fined $70, and was sentenced to 18 months of probation. Sak took no further action with respect to the judgment, paid the fine, and completed probation. An order terminating probation was entered in the circuit court of Cook County on November 4,1985.

Subsequently, based on the theft conviction, the Immigration and Naturalization Service instituted deportation proceedings against Sak.

In turn, Sak sought to vacate his guilty plea by petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1985, ch. 38, pars. 122 — 1 through 122 — 8). The petition alleged Sak’s guilty plea was neither knowing nor intelligent nor made with effective assistance of counsel in violation of the fifth, sixth, and fourteenth amendments to the Federal Constitution. More specifically, Sak alleged that although he had informed his counsel, prior to pleading guilty, that he was an illegal alien, he was never advised his plea could result in deportation.

On February 19, 1987, the State made an oral motion to dismiss Sak’s petition. Sak’s written response was filed the same day. The circuit court reached no ruling that day. The record indicates the matter was again before the court on March 12, 1987, and was continued by agreement to April 7, 1987. On April 7, 1987, the circuit court, without ever having ruled on the motion, conducted an evidentiary hearing on the petition. Sak was the sole witness. Following that hearing, the circuit court granted Sak’s petition and vacated his guilty plea. This appeal by the State followed.

Opinion

Section 122 — 1 of the Act provides, in pertinent part:

“Any person imprisoned, in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 122-1.

Our supreme court has indicated that the language “imprisoned in the penitentiary” of section 122 — 1 is not to be interpreted as a jurisdictional prerequisite to petitioning under the Act. (People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634.) For example, misdemeanants, who are never imprisoned in a penitentiary, have been afforded relief under the Act. (See People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164.) Similarly, felons, released from incarceration but still under sentence, may also properly petition for relief under the Act. See People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307.

The State points out, however, that in each instance where petitions have been entertained under section 122 — 1, the petitioners were under jurisdiction of the Department of Corrections in some manner, either imprisoned, or on parole, probation, appeal bond, or mandatory supervised release. For that reason, the State argues, relief under the Act should have been precluded to Sak because he had completed his probationary sentence prior to filing the petition under section 122 — 1. The State urges us to follow, in that respect, People v. Jack (1981), 97 Ill. App. 3d 1082, 424 N.E.2d 28.

In Jack, defendant was sentenced to two years of probation in connection with a conviction for theft. Defendant’s direct appeal was dismissed for want of prosecution. Four years after completing probation, defendant filed a petition for post-conviction relief under the Act, alleging he was denied effective assistance of appellate counsel. The trial court dismissed that petition. Defendant appealed. The appellate court declined to extend interpretation of the phrase “imprisoned in the penitentiary” to include a person who had completed a probationary sentence, noting its holding recognized “the necessity of the eventual end of litigation.” Jack, 97 Ill. App. 3d at 1083, 424 N.E.2d at 29.

The holding in Jack was noted by the supreme court in People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, a case involving facts similar to the case before us. In Correa, defendant, an illegal alien, pled guilty to three charges of delivery of a controlled substance and was sentenced to concurrent prison terms of three years. He took no appeal. Defendant was released early from incarceration and, while under mandatory supervised release, filed a petition under the Act to vacate his guilty pleas in order to avoid deportation premised on his convictions.

In determining defendant could properly seek relief under the Act, the supreme court observed that, as defendant had not yet completed his sentence, the rationale supporting the decision in Jack was inapplicable. The court observed its earlier pronouncement in People v. Dale (1950), 406 Ill. 238, 92 N.E.2d 761 (overruled in part by People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164), that the Act was not intended to provide a remedy for persons who had served their sentences or to those who wished to purge their records of past convictions. (Correa, 108 Ill. 2d at 546, 485 N.E.2d at 309.) The court, however, specifically declined to further address the holding in Jack, reasoning that its disposition did not depend on a determination of whether relief under the Act would have been available had defendant completed his sentence. Correa, 108 Ill. 2d at 547, 485 N.E.2d at 309.

We agree with the observation in Jack that courts must not prolong litigation and must recognize its defined termination. We are not, however, persuaded that that end should be elevated above avoiding injustice or worked to deprive an individual of constitutional rights.

As the State willingly concedes in its brief, Sak was not properly advised of the consequences of his guilty plea. As a direct result of that failure, he now faces deportation. The consequence of deportation, our supreme court has recognized, is a drastic one which is usually more severe than the penalty imposed by the court in response to the plea. (Correa, 108 Ill. 2d at 550-51, 485 N.E.2d at 311.) Such is certainly the case here.

That some clearly defined method must exist by which Sak could raise issue with the denial of his Federal constitutional rights is fundamental. That he could be deprived of that opportunity by completing his sentence and, thereby, unwittingly forfeit those rights is unreasonable. Moreover, that section 122 — 1 of the Act provides the appropriate method to assert those rights is suggested by the supreme court, which has declined to read “imprisoned in the penitentiary” as a jurisdictional limitation on circuit courts to entertain petitions thereunder. Indeed, as the court observed subsequent to its pronouncement in Dale respecting the Act’s function, “there are obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction” and that construing the Act to preclude relief “in every case in which the petition is not filed and the hearing completed before imprisonment ends” is not contemplated by its remedial nature. People v. Davis (1968), 39 Ill. 2d 325, 329, 235 N.E.2d 634, 636.

We therefore hold Sak was not precluded by the phrase “imprisoned in the penitentiary” from petitioning under section 122 — 1 of the Act for post-conviction relief even though he had completed probation prior to filing his petition.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.