author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EAMMY SMITH, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3113
    Opinion filed June 30, 1989.

      Randolph N. Stone, Public Defender, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago, for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant Eammy Smith, a minor, was found guilty of involuntary manslaughter and sentenced to probation until she reached the age of 21. Defendant appeals, contending that she was not proved guilty beyond a reasonable doubt; that improper comments were made during closing argument; and that the sentence imposed was improper.

On November 8, 1986, at 8:30 a.m., John Gaines was shot in the head by defendant in the apartment they shared along with their nine-month-old baby. After several days in a deep coma, decedent died. Mary Gaines, decedent’s mother, testified for the State that on November 8 at 8 a.m. she spoke to her son on the telephone and he agreed to bring her some bacon. Forty-five minutes later, defendant telephoned Gaines, screaming that “they” had shot decedent. Gaines went to the apartment and found defendant “wild and hysterical.”

Officer Linda Drozdek testified that when she arrived at the scene of the shooting, defendant was screaming, crying and hysterical. Defendant said she did not know the man who shot decedent and had never seen him before. Defendant gave a detailed description of the assailant. After shooting decedent, the assailant fled through the back door of the apartment. Drozdek sent the description over the police radio.

Drozdek observed decedent lying unconscious in a small foyer with a gunshot wound in the head. A bullet was lodged in the archway connecting the vestibule area with the living room. A gun was lying on the floor in front of the back door. The outer door and burglar gates were open.

Mitra Kalelkar, a forensic pathologist, testified that she performed an autopsy on decedent. The head showed a trajectory wound from front to back, with a slight angle upward.

Officer William O’Connor, an evidence technician, testified that he recovered a bullet from the wall in the apartment and the gun from the kitchen floor. The gun contained a discharged cartridge which was two cylinders down from the right of the hammer.

Officer Richard Fournier, a firearms examiner for the police department, testified that in order for a discharged cartridge casing to be in the second position to the right of the hammer, the trigger would have to be pulled twice. Such a cylinder could also be manually rotated. Fournier was unable to determine whether the recovered bullet came from the gun found in the kitchen.

Officer Krippel testified that at the scene he noticed a package of bacon on a table. He also saw the recovered gun, and in the second cylinder from the top, on the right-hand side of the gun looking down the sight, was an expended cartridge. On cross-examination Krippel testified that in his November 8 report, he said the expended cartridge was in the second chamber to the right. He testified that it was in the third chamber, but on redirect testified that looking down the sight of the gun, the expended cartridge was in the second chamber to the right of center.

At the hospital, Krippel attempted to interview defendant, but she was too emotional. She stated only that the offender was a male and that he fled after shooting decedent. Defendant agreed to accompany Krippel to the police station to attempt to identify the man. Defendant, accompanied by two of decedent’s cousins, looked through photograph books and after a few minutes defendant picked out photographs of three men who looked like the assailant. At about 12:45 p.m., Krippel and Officer Bosco interviewed defendant for 25 minutes. Defendant provided the same description of the offender which she had given at the scene of the shooting. Defendant stated that she was in bed when she heard arguing and one gunshot. She ran into the foyer and saw decedent on the floor and a man running out the back door. Defendant denied keeping any weapon in the apartment and denied that she and decedent had any problems in their relationship.

After speaking with Tommy Williams, who sold newspapers outside defendant’s apartment, the officers returned to interview defendant. They told defendant that her version of the events contradicted information they had from others. Defendant then stated that “she just wanted to get everything clear and that this whole matter was just something of self-defense.” After being read her Miranda rights and told she could be tried as an adult, defendant stated that she shot decedent because he had often beaten her. The night before the shooting decedent had accused her of being involved with another man and hit her. The next morning, defendant again yelled at her and struck her several times. Defendant was “fed up,” and she took out the gun. Defendant followed decedent into the vestibule area and cocked the gun. Decedent laughed and told defendant he would “kick her ass” for pulling a gun. She fired the gun once.

Defendant became scared, so she made up a story about an unknown assailant to avoid getting into trouble. She yelled for help out the window, ran to the security office, and opened the back door and burglar gates to support her story. She acted hysterical on the scene and at the hospital to further support her version of the events.

Officer Albert Wolf testified for defendant that he spoke with decedent’s mother at the hospital. Gaines told him she spoke with decedent on the telephone that morning and she thought decedent and defendant were arguing.

Tommy Williams testified for defendant that he had heard decedent and defendant arguing several times, and defendant would say things such as, “[W]hy would you hit on me and beat me?” On November 8, 1986, Williams heard decedent hitting defendant, heard the arguing, and heard defendant asking decedent to stop hitting and whipping her. After a minute of silence, Williams thought he heard two shots. After another minute or two, defendant yelled out the window for help.

Defendant testified that when she was 15 years old, 18 months before the shooting, she met decedent and became pregnant. They lived together after that. Decedent often beat her. On November 8, 1986, when she got the gun, she did not check to see if it was loaded. She “put the hammer down.” She stated, “I made a mistake to pull the hammer down.” She heard the gun click. She tried to let the hammer back up, and when she did so, the gun fired. Defendant denied pulling the trigger. She pointed the gun in decedent’s direction, but did not aim it at him. She pointed the cocked gun at the floor. She tried to uncock the gun, but it fired, striking decedent in the forehead. Decedent was about 10 inches taller than defendant. Defendant thought she told the police that she tried to cock the gun and it fired. Defendant had previously pulled the gun on decedent several times, attempting to stop him from hitting her.

Defendant admitted telling the police someone else had shot decedent and giving full descriptions of the offender. She denied being hysterical. She acknowledged identifying three men from photographs as possible assailants, although she had never before seen any of the men.

Catania Banks, Lauren Alexander and April Collie testified for defendant that decedent had beat defendant on previous occasions.

On September 18, 1987, the trial court sentenced defendant to probation until her 21st birthday, on December 27, 1990. At the time of sentencing, defendant was 17 years and 9 months old.

Defendant first contends that she was not proved guilty beyond a reasonable doubt of involuntary manslaughter. A conviction will not be reversed unless the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) It is within the province of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence. People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323.

In order to prove involuntary manslaughter, the State must establish that defendant committed a lawful or unlawful act which caused the death of another, that the act was likely to cause death or great bodily harm, and that the act was performed recklessly. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).) Recklessness includes acting with a conscious disregard for a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard is a gross deviation from the standard of care which a reasonable person would exercise in the situation. (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.) The only mental state required, therefore, is conscious disregard of a substantial and unjustifiable risk. (People v. Bauman (1975), 34 Ill. App. 3d 582, 340 N.E.2d 178.) It is for the trier of fact to determine whether the killing was the result of either an accident or reckless conduct. People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59.

Defendant pointed a loaded gun at decedent, which indicates recklessness. (People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59; People v. Moczarney (1978), 65 Ill. App. 3d 410, 382 N.E.2d 544.) Defendant confessed to quarreling with decedent, taking a gun from under the bed, following decedent into the vestibule, cocking the gun, and pointing it at him. Defendant admitted pushing the hammer down and hearing the gun click. She aimed the cocked gun at defendant and the gun fired. The bullet struck decedent, who was 10 inches taller than defendant, at an upward angle. This is sufficient to establish recklessness. See People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59; People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389.

Defendant maintains that the shooting was an accident, and not the result of a voluntary act. She contends that the gun only fired once, despite the testimony of O’Connor and Krippel that there was a discharged cartridge in the second chamber of the gun. Fournier testified that for a cartridge to be in this position it would be necessary to pull the trigger twice. Defendant relies on Fournier’s testimony on cross-examination that a bullet could also get in the chamber by manually rotating the cylinder on the gun. The jury could reasonably rely on Fournier’s testimony that cocking and releasing is usually the cause of a rotation and conclude' that the condition of the gun indicated the trigger was pulled twice, thus tending to show the shooting was not an accident.

Furthermore, the jury could give less weight to defendant’s claim that she fired once by accident, after considering the overall credibility of defendant’s testimony, including her admission that she rearranged physical things at the scene, such as the burglary gates and back door, to fit her first version of the event. The jury could also consider defendant’s admitted series of lies to the police and performances of hysteria.

The evidence here was not so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. The evidence strongly supports the jury’s finding that defendant was guilty of involuntary manslaughter.

Defendant next contends that she was denied a fair trial when the prosecutor made improper comments in closing arguments. In rebuttal closing argument, the prosecutor stated that defense counsel was asking the jury to “break the law” by attempting to engender sympathy for the 16-year-old girl and arguing that defendant “should not go to prison for stopping him from beating her,” instead of urging a conviction strictly on the facts; told each juror that he did not “have to be a nuclear physicist to figure out what [defense counsel’s] job is”; and told the jury that defendant was “evasive, not sure, coached” and “led through” by defense counsel. The prosecutor also stated that “if there is a witness out there, both parties have equal subpoena power. *** When they stand there and point the finger at us, anyone could walk up to the court’s clerk and get a subpoena for any witness.”

Defense counsel objected to each of these comments at trial, and each objection was sustained. The court also instructed the jury before, during and after the trial to disregard questions or answers which were struck or after which objections were sustained. In the context presented here, we find this was sufficient to cure any prejudice. (See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Sanchez (1987), 163 Ill. App. 3d 186, 516 N.E.2d 556.) Moreover, many of the comments were invited by improper comments made by defense counsel during closing arguments. See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

Defendant finally contends that the sentence was unlawful. The court placed her on probation until her 21st birthday on December 27, 1990, which was 39 months and 9 days after sentencing. Defendant points to sections 9 — 3(d) and 5 — 6—2(b)(2) of the Criminal Code of 1961 and the Unified Code of Corrections, respectively (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 3(d), 1005 — 6—2(b)(2)), under which the period of probation for the Class 3 felony of involuntary manslaughter cannot exceed 30 months. Defendant asks that the probation sentence be reduced to 30 months.

Defendant, a minor, was tried as an adult. After conducting a dispositional hearing under section 5 — 1 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 705 — 1, the court was permitted to impose a sentence “of probation *** not [to] exceed 5 years or until the minor has attained the age of 21 years, whichever is less.” (Ill. Rev. Stat. 1987, ch. 37, par. 705 — 3(1).) The court found defendant to be a delinquent minor, and found it was in defendant’s and the public’s best interests that defendant be made a ward of the court under the legal guardianship of her aunt. The court could properly sentence defendant to probation until the age of 21.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS KAPSALIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3500
    Opinion filed June 30, 1989.
    Rehearing denied August 3, 1989.

      Adam Bourgeios, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Beth Herndobler, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Thomas Kapsalis, was charged in a 26-count indictment with kidnapping, aggravated kidnapping, unlawful restraint, aggravated battery, armed violence, rape, criminal sexual assault, and aggravated criminal sexual assault. Prior to trial, defendant asserted the affirmative defense of insanity. (Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2.) Following a bench trial, defendant was convicted of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(1)), was acquitted of the remaining 25 counts, and was sentenced to a term of seven years’ imprisonment. On appeal, defendant contends that (1) the evidence was insufficient to prove that he was sane at the time of the offense, and (2) section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2), governing insanity and criminal responsibility, is unconstitutional.

The evidence adduced at trial established that about 4:15 a.m. on September 7, 1985, complainant, Susie Greenspan, was walking north on Lincoln Avenue toward her boyfriend’s house when she observed defendant leaning against the wall of a building adjacent to a vacant lot. Complainant was wearing a black sweatshirt and a black lace skirt. As complainant passed him, defendant grabbed her and dragged her 60 feet into the vacant lot, which was covered with weeds that were three-feet high. When complainant began to scream, defendant covered her mouth and threatened to kill her if she screamed.

Defendant threw complainant to the ground and pinned her down with his stomach. Complainant struggled with defendant, who squeezed her face and neck so hard that she was unable to speak. Defendant again threatened complainant and asked her whether she “wanted it easy or hard.” Defendant then pulled a knife from his utility belt and put it to complainant’s neck. He tore open her shirt, fondled her breasts, lifted her skirt, and said, “No panties. My kind of girl.” Thereafter, defendant inserted his finger into complainant’s vagina. When complainant renewed her struggle and began to rock from side to side, defendant removed his finger and attempted to regain control of her. Defendant then looked toward the street, immediately jumped up, and ran away.

Complainant began to scream and ran to the street, where she flagged down a police car driven by Officer Robert Hayes. Complainant told Officer Hayes and his partner about the attack, described defendant, and said that he had run toward the alley. She then got into the officers’ car and rode with them a short distance until she saw defendant. Complainant identified defendant as her attacker, and Officer Hayes placed him under arrest. When Hayes searched defendant, he recovered a knife. Upon being advised of his Miranda rights, defendant told Officer Hayes that he had been drinking prior to his arrest and was “high, but not drunk.” Defendant denied attacking complainant and said that he had never seen her before.

Testifying on his own behalf, defendant stated that on the night of the attack, he had consumed approximately a case of beer and one-half bottle of whiskey. He could not recall the events during the attack on complainant, but did remember having a flashback to his combat experiences during his two years in Vietnam. He recalled being in a high-grass area in a vacant lot where he saw “the enemy,” Vietnamese dressed all in black. Defendant stated that he believed that he was attacking “the enemy.” Defendant admitted having a knife that night and remembered threatening complainant, but did not recall putting his finger into her vagina. Defendant testified that he did not know what he was doing or that his acts were wrong and that this was not the first time he had suffered a flashback to his combat experiences in Vietnam. He admitted, however, that he did not tell anyone about the Vietnam flashback until approximately three weeks after his attack on complainant. Following this incident, defendant was confined to the psychiatric ward of a Veterans’ Association hospital for a month, and upon his release, defendant began receiving therapy twice weekly. Defendant also stopped drinking alcohol and began attending Alcoholics Anonymous meetings.

The parties stipulated that if called as witnesses, Henry Conroe, M.D., Lee Martin, Ph.D., and Gerson Kaplan, M.D., would testify in accordance with the facts and assertions included in the reports of their examinations of defendant.

Dr. Conroe’s report stated:

“[Defendant] had two psychiatric diagnoses on 9/7/85. The first was Chronic Post-traumatic Stress Disorder ***. The second diagnosis, was Alcohol Dependence ***. Both of these mental disorders were present on 9/7/85 and prevented [defendant] from appreciating the criminality of his actions and conforming his conduct to the requirements of the law. *** The alleged assault on 9/7/85 was due to an explosion of his suppressed rage at being in a vulnerable position in Vietnam. *** On 9/7/85 while under the influence of significant amounts of alcohol which impaired his judgment, he used the solution he learned in Vietnam to deal with a potential enemy, ‘search and destroy.’ His alleged actions were an attempt to destroy this woman whom he experienced as a Vietnamese enemy.”

Dr. Martin’s report stated:

“Although it is not possible to directly identify causes for [defendant’s] behaviors in the fall of 1985 when he assaulted a woman, we can speculate that the anxious feelings he has been experiencing for several years became very intense, he needed a way to release the pressure, and he unconsciously reacted, when the situation presented itself to him, in a way that he had always done in the past and particularly during Vietnam. *** The woman present on that particular night, in conjunction with the overwhelming internal strife he was experiencing and the flashback to combat may have all surfaced simultaneously and unconscious actions took place.”

Dr. Kaplan’s report stated:

“[I]t is my opinion that at the time of the alleged offense, this defendant was legally SANE. It is my opinion, he was able to appreciate the criminality of the alleged offense, and was able to conform his conduct to the requirements of the law.”

Following closing arguments, the trial judge stated his finding was “predicated upon the totality of all of the evidence. I very carefully examined the [26-count] indictment in question. I very carefully considered the testimony of all the witnesses who were called to testify. I very carefully have examined as they were tendered the exhibits offered and accepted into evidence without objection, and I most carefully considered the affirmative defense alleged by [defendant] as well as the stipulated evidence thereto already enunciated into the record by this [c]ourt. On the totality of all of those factors, this [c]ourt finds the defendant *** guilty of the offense of criminal sexual assault as set forth in [c]ount [nine] of the instant indictment.”

After a hearing in aggravation and mitigation, the trial court sentenced defendant to a term of seven years, indicating that “[t]here is no question that [defendant] had ingested a great deal of alcohol on this occasion. There is no question in my mind that he has some minor emotional problem, and I am thoroughly convinced it did not arise to a defense of insanity. There is no question that [defendant] is a— was a wounded Vietnam vet and he has no prior criminal activities. Predicated upon all those factors it would appear to this [c]ourt that this was an isolated incident induced by large quantities of alcohol.”

We initially consider defendant’s claim that the evidence was insufficient to prove that he was sane at the time of the offense. Defendant does not deny that he sexually assaulted the complainant. He asserts, however, that he was not criminally responsible for his conduct at the time of the offense. A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) Although the law presumes all persons to be sane (People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1089, 509 N.E.2d 1361; People v. Dunigan (1981), 96 Ill. App. 3d 799, 821, 421 N.E.2d 1319), a defendant may overcome this presumption with proof by a preponderance of the evidence that he was insane when he committed the offense with which he has been charged. Ill. Rev. Stat. 1985, ch. 38, pars. 3 — 2, 6— 2(e); People v. Moore (1986), 147 Ill. App. 3d 881, 886, 498 N.E.2d 701; People v. Hollins (1985), 136 Ill. App. 3d 1, 5, 482 N.E.2d 1053.

Whether or not a defendant was insane at the time of the offense is a question for the trier of fact, and that decision will not be reversed by a court of review unless it is so improbable or unsatisfactory as to raise a reasonable doubt as to the defendant’s sanity (People v. Carlson (1980), 79 Ill. 2d 564, 580, 404 N.E.2d 233; People v. Ward (1975), 61 Ill. 2d 559, 568, 338 N.E.2d 171) or is so manifestly contrary to the weight of the evidence as to indicate that the determination was based on passion or prejudice. People v. Silagy (1984), 101 Ill. 2d 147, 169, 461 N.E.2d 415; People v. Ford (1968), 39 Ill. 2d 318, 321, 235 N.E.2d 576; People v. Palmer (1985), 139 Ill. App. 3d 966, 972, 487 N.E.2d 1154.

In ascertaining whether a defendant was insane at the time of the commission of an offense, the trier of fact must weigh the totality of the evidence and determine the credibility of the witnesses. (People v. Wright (1987), 161 Ill. App. 3d 967, 979, 514 N.E.2d 817; People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 509 N.E.2d 1361.) The trier of fact must resolve conflicts in the testimony of expert witnesses and may disregard an expert’s conclusion as to defendant’s sanity at the time of the offense. (People v. Wright (1987), 161 Ill. App. 3d 967, 514 N.E.2d 817; People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154; People v. Schwartz (1985), 135 Ill. App. 3d 629, 642, 482 N.E.2d 104; People v. Meeker (1980), 86 Ill. App. 3d 162, 169, 407 N.E.2d 1058.) Thus, the trial court need not accept the opinions of psychiatrists proffered by the defendant, but is entitled to consider contrary opinions of the State’s expert witness. People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 509 N.E.2d 1361; People v. Hollins (1985), 136 Ill. App. 3d 1, 482 N.E.2d 1053.

In the instant case, the expert testimony was conflicting. Dr. Con-roe concluded that defendant suffered from post-traumatic stress disorder and from alcohol dependence and could not conform his conduct to the requirements of the law on the night he sexually assaulted the complainant. Dr. Conroe also indicated, however, that defendant was under the influence of significant amounts of alcohol which impaired his judgment and caused him to “search and destroy” the complainant whom he perceived as “the enemy.” Dr. Martin stated that it was not possible to directly identify the cause for defendant’s assault of complainant, but speculated that defendant needed to release pressure from anxious feelings. Dr. Martin surmised that the complainant’s presence along with defendant’s internal strife and the flashback to combat may have surfaced simultaneously and unconscious actions took place. Dr. Kaplan concluded that defendant was sane at the time of the offense and that defendant was able to appreciate the criminality of the alleged offense and was able to conform his conduct to the requirements of the law.

The trial court was obligated to resolve the conflicts in the testimony presented by the psychiatric experts. (People v. Wright (1987), 161 Ill. App. 3d 967, 514 N.E.2d 817; People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154.) Consequently, it was within the court’s discretion to accept the opinion of Dr. Kaplan over those of Dr. Conroe and Dr. Martin. People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 509 N.E.2d 1361; People v. Hollins (1985), 136 Ill. App. 3d 1, 482 N.E.2d 1053.

Moreover, the trial court’s determination that defendant was sane at the time of the offense was supported by other evidence in the record. (Cf. People v. Young (1978), 60 Ill. App. 3d 351, 376 N.E.2d 739.) During the attack, defendant asked complainant whether she “wanted it easy or hard.” After lifting complainant’s skirt up to her waist, he said, “No panties. My kind of girl.” Defendant tore complainant’s shirt, fondled her breasts, and inserted his finger into her vagina. After looking toward the street, defendant immediately jumped up and ran away.

When apprehended by the police minutes after the assault, defendant denied any involvement in the crime, but said nothing to the officers about having a flashback. Indeed, defendant never told anyone that he had experienced a flashback until approximately three weeks after the incident. Defendant asserted that he had previously suffered flashbacks to combat in Vietnam, but there was no evidence that defendant had been unable to control his conduct at any time prior to this offense. Although defendant claimed that he believed that he was “attacking the enemy,” there was no evidence that defendant attempted or intended to kill complainant. We find that the trial court could have properly inferred from these facts that defendant was able to control his conduct and could appreciate the criminality of his actions.

Although post-traumatic stress disorder has been recognized as a mental illness (Johnson v. Wainwright (11th Cir. 1985), 778 F.2d 623; Wilburn v. State (1986), 289 Ark. 224, 711 S.W.2d 760; State v. Place (1985), 126 N.H. 613, 495 A.2d 1253; State v. Watson (1984), 311 N.C. 252, 316 S.E.2d 293), the evidence in the case at bar does not support defendant’s assertion that he experienced a flashback to combat in Vietnam at the time of the offense. Rather, the record indicates that, after having consumed a large amount of alcohol, defendant intended to sexually assault the complainant under cover of high weeds. (Cf. People v. Dread (1975), 27 Ill. App. 3d 106, 327 N.E.2d 175.) In light of the evidence presented in this case, it cannot be said that the court’s determination was so improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s sanity. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Hollins (1985), 136 Ill. App. 3d 1, 482 N.E.2d 1053.

Defendant also asserts that section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2) is unconstitutional. Relying on People v. Gurga (1986), 150 Ill. App. 3d 158, 501 N.E.2d 767, defendant argues that this court must decide the constitutionality of this statute because the trial court did not expressly find that defendant was able to appreciate the criminality of his acts or that he was able to conform his conduct to the requirements of the law.

Contrary to defendant’s assertion, the record reveals that the trial judge did, in fact, make a specific finding as to defendant’s sanity. At sentencing, the trial judge stated, “There is no question that [defendant] had ingested a great deal of alcohol on this occasion. There is no question in my mind that he has some minor emotional problem, and I am thoroughly convinced it did not arise to a defense of insanity. There is no question that [defendant] is a — was a wounded Vietnam vet and he has no prior criminal activities. Predicated upon all those factors it would appear to this [c]ourt that this was an isolated incident induced by large quantities of alcohol.” These comments clearly indicate that the trial court found defendant sane at the time of the offense. Because review of the entire record reveals that the trial court did make a specific finding as to defendant’s sanity (see People v. Ellis (1974), 59 Ill. 2d 255, 320 N.E.2d 15; People v. Steinmetz (1982), 110 Ill. App. 3d 439, 442 N.E.2d 645), this court need not address the constitutional claims raised by defendant. People v. Gurga (1986), 150 Ill. App. 3d 158, 501 N.E.2d 767.

Although we need not reach this issue, careful consideration of defendant’s assertion reveals that it is without merit. Defendant initially contends that because the statute fails to define “mental disease or mental defect,” it violates the constitutional guarantee of due process of law. (U.S. Const., amend. V.) This argument is unpersuasive. Defendant has alleged that “while psychiatrists would agree that [e]hronic [p]ost-traumatic [s]tress [disorder] is a mental disease or mental defect, there is no general concurrence what other conditions of ill health of the mind fall into [this] category.” Because defendant asserted post-traumatic stress disorder as an affirmative defense to the crime charged here, he cannot claim to have been prejudiced because there may not be a consensus as to “what other conditions of ill health of the mind” would be included in that category. Additionally, if defendant is correct in alleging that “psychiatrists would agree that [c]hronic [p]ost-traumatic [s]tress [disorder] is a mental disease or defect,” then he cannot assert that section 6 — 2(a) is vague or uncertain. All that is required is to read “post-traumatic stress disorder” where the legislature has written “mental disease or mental defect.” That is, apparently, the approach taken by the trial court here, and it does not appear that defendant’s constitutional right to due process was violated or prejudiced in any way.

Section 6 — 2 of the Criminal Code of 1961 provides, in pertinent part, as follows:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1985, ch, 38, pars. 6 — 2(a), (d).

Contrary to defendant’s contention, “mental disease or mental defect” need not be precisely defined in order to comply with the constitutional requirement of due process. A statute will not be considered so vague as to constitute a denial of due process unless (1) people of common intelligence must necessarily guess at its meaning or application; (2) it fails to provide sufficiently definite standards for law-enforcement officers and triers of fact so that its application depends upon their private conceptions; or (3) it chills the free exercise of first amendment rights. (People v. Garrison (1980), 82 Ill. 2d 444, 453, 412 N.E.2d 483.) The determination of whether a statute is unconstitutionally vague is to be made in the factual context of each case. Garrison, 82 Ill. 2d at 454, 412 N.E.2d at 488.

The terms “mental disease or mental defect” cannot be considered unconstitutionally vague. Within the context of section 6 — 2(a), “mental disease or mental defect” clearly refers to a condition which prevents a person from appreciating the criminality of his conduct or from conforming his conduct to the requirements of the law. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) This provision should not be invalidated merely because it attempts to describe “mental disease or mental defect” rather than to list each and every condition which may fall into this category. Garrison, 82 Ill. 2d 444, 412 N.E.2d 483.

Indeed, it would be nearly impossible for the legislature to enact a provision that would create such a list. As noted by the Illinois Supreme Court in construing section 1 — 119 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1985, ch. 91½, par. 1-119):

“[T]oo much emphasis has been placed on the existence or nonexistence of a recognizable psychiatric disease in determining whether a person is ‘mentally ill’ for purposes of civil commitment. Diagnostic classifications in the mental-health field are constantly undergoing revision *** and thus it would be unwise to equate the legal term ‘mentally ill’ in section 1 — 119 with the laundry list of diagnoses or psychiatric classifications in vogue at a given moment. Otherwise, the definition of ‘mental illness’ could ebb and flow depending on the then-current consensus of mental-health professionals. While diagnostic categories are important to mental-health professionals as an aid in the discussion, treatment and study of mental illness, it cannot be expected that lay jurors or even an experienced trial judge will always understand the nuances and significance of a particular psychiatric diagnosis. *** For the foregoing reasons, we think that a finding of ‘mentally ill’ should not be dependent upon diagnostic categories or nomenclature, but on the-extent to which a person’s functioning is impaired by his mental illness. A ‘mentally ill’ person for purposes of section 1 — 119 is an individual with an organic, mental or emotional disorder which substantially impairs the person’s thought, perception of reality, emotional process, judgment, behavior, or ability to cope with the ordinary demands of life.” People v. Lang (1986), 113 Ill. 2d 407. 452-53. 498 N.E.2d 1105.

Although the Lang court addressed the validity of the definition of “mental illness” within the context of a civil statute (Ill. Rev. Stat. 1985, ch. 91½, par. 1 — 119), the logic and reasoning employed by that court are appropriate in the instant case. Under section 6 — 2(a), a determination of legal sanity or insanity should not be dependent upon diagnostic categories or nomenclature, but on the extent to which a person is able to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).

When considering whether a statute violates due process, the court must determine whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. The due process clause requires only that the statute be reasonably designed to accomplish its purposes, not that it be the best means of accomplishing them. (People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625.) In the instant case, the legislature intended to enact a statute that would provide triers of fact with a logical scheme by which to determine the criminal responsibility of a defendant who has presented evidence of insanity or mental illness as an affirmative defense to the crime charged. Section 6 — 2 is rationally designed to accomplish that goal.

In determining the constitutionality of this statute, it is instructive to examine decisions construing similar provisions. In People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742, the defendant challenged section 115 — 4(j) of the Code of Criminal Procedure of 1963, which governs jury trials. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 40.) There, the court held the definition of “mental illness” was sufficiently clear to provide meaningful standards, enabling the jury to make the required findings under the laws applicable to the case. (DeWit, 123 Ill. App. 3d at 737, 463 N.E.2d at 751.) Although the DeWit court considered a different provision than that at issue here, the jury instruction defining mental illness was identical to the language employed in section 6 — 2(d). Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(d).

Also instructive is the Illinois Supreme Court’s finding in People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415, cert. denied (1984), 469 U.S. 873, 83 L. Ed. 2d 156, 105 S. Ct. 227, that the phrase “extreme mental or emotional disturbance” is not unconstitutionally vague when considered as a mitigating factor in sentencing decisions. (Silagy, 101 Ill. 2d at 163, 461 N.E.2d at 423.) Similar challenges to guilty-but-mentally-ill provisions were advanced and rejected in People v. Boatright (1985), 137 Ill. App. 3d 888, 486 N.E.2d 926, People v. Carter (1985), 135 Ill. App. 3d 403, 481 N.E.2d 1012, and People v. Smith (1984), 124 Ill. App. 3d 805, 465 N.E.2d 101.

Finally, defendant contends that section 6 — 2 violates the constitutional guarantee of equal protection of the law (U.S. Const., amend. XIV) by excluding from the statutory scheme the class of defendants who suffer from a mental illness but are unable to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law. A similar argument was advanced in People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, where the defendant challenged the constitutionality of the guilty-but-mentally-ill statute. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6.) There, the Illinois Supreme Court held that the guilty-but-mentally-ill statute did not -violate the constitutional guarantee of equal protection of the law. Kaeding, 98 Ill. 2d at 246-48, 456 N.E.2d at 16-17.

A statute carries a presumption of rationality when undergoing the traditional equal protection examination, and it is the defendant’s burden to demonstrate the impermissible nature of the classification created. (People v. Mayberry (1976), 63 Ill. 2d 1, 345 N.E.2d 97, cert. denied (1976), 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87.) In the instant case, defendant has failed to meet this burden. As previously noted, the legislature intended to enact a statute that would provide triers of fact with a logical scheme by which to determine the criminal responsibility of a defendant who has presented evidence of insanity or mental illness as an affirmative defense to the crime charged. Contrary to defendant’s assertion, section 6 — 2 does not exclude those defendants with a mental illness and who cannot appreciate the criminality of their conduct or are unable to conform their conduct to the requirements of the law. Such defendants would clearly be included within the class of persons found to be legally insane, or not criminally responsible, under section 6 — 2(a). (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) Accordingly, section 6 — 2 is rationally based upon a legitimate legislative purpose and does not create an arbitrary classification. See People v. Carter (1985), 135 Ill. App. 3d 403, 481 N.E.2d 1012; People v. Smith (1984), 124 Ill. App. 3d 805, 465 N.E.2d 101; People v. Gamble (1983), 117 Ill. App. 3d 543, 453 N.E.2d 839.

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

Judgment affirmed.

EGAN, P.J., and QUINLAN, J., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUCIUS CLARK, Defendant-Appellant.
    First District (1st Division)
    1—86—2397
    Opinion filed July 10, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and David L. Studenroth, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, Lucius Clark, (defendant) was found guilty of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1) and sentenced to five years in the Illinois Department of Corrections. Defendant appeals his conviction, contending that the trial court committed reversible error in denying his motions to suppress his statement and to exclude commentary on the nature of a prior conviction and that he was denied a fair trial by improper prosecutorial comments during closing argument. For the following reasons, we reverse defendant’s conviction and remand for a new trial.

The State adduced the following evidence at trial. On December 7, 1985, Chicago police officers Robert Malinowski and Roy Whitmore, on patrol in a paddy wagon, noticed a commotion in the vicinity of Jackson and Halsted Streets in Chicago. The officers observed defendant walking in the middle of Halsted Street, and they drove up to him. After defendant responded with obscenities to the officers’ requests that he leave the street, the officers exited the paddy wagon and approached him. Defendant struggled with the officers. Subsequently, the officers handcuffed defendant and arrested him for disorderly conduct. At this time, the officers smelled an odor of alcohol on defendant’s breath.

Before escorting defendant into the paddy wagon, Malinowski conducted a protective search and found a loaded .32 caliber handgun in defendant’s front coat pocket. Malinowski showed the gun to Whit-more and stated, “Look at this.” Defendant then retorted, “I need that for the gangbangers.” Defendant was thereafter arrested for unlawful use of weapons and advised of his Miranda rights.

Chicago police officer James Vantilburg, supervisor of the latent print development unit of the crime lab, testified that no fingerprints were recovered from the gun found on defendant, but stated that the lack of prints was not unusual, as the recovery rate on all types of evidence is approximately 20%.

At the close of the State’s case in chief, a certified copy of defendant’s prior armed robbery conviction, stipulated to by counsel, was admitted into evidence. The State read the stipulation to the jury, which included that defendant had “entered a plea of guilty to armed robbery on April 24, 1978.”

Defendant did not testify at trial. Janet Horn, defendant’s live-in girl friend, testified on his behalf. Horn stated that she stored a handgun, which she had purchased on July 16, 1981, under her mattress in her home in Palatine, Illinois. A week before the day in question, she moved the gun from that location so that she could use the top mattress as a bed for her nieces and placed the gun into a pocket of a long, heavy wool overcoat. She never told defendant that she had placed the gun in the coat pocket.

In the early morning hours of December 7, 1985, defendant returned home drunk. After Horn later sent him to purchase cigarettes, defendant returned with cigarettes and a pint of either vodka or gin. Horn observed defendant drink some of the vodka or gin.

Defendant then informed Horn of his intent to go to Chicago. Horn called a cab for this purpose and informed the cab company of defendant’s intended destination. Horn did not observe defendant when he left because she was in her son’s bedroom at the time. Defendant left wearing the overcoat containing the gun.

On appeal, defendant first contends that the trial court erred in denying his motion to suppress his statement made after his arrest for disorderly conduct but before Miranda warnings were issued. He argues that his statement should have been suppressed because it was procured by police during a “custodial interrogation.” Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, requires the suppression of statements given in response to “custodial interrogation” prior to the issuance oí Miranda warnings, but this exclusionary rule does not apply to volunteered statements which are made in the absence of questioning initiated by law enforcement officials. Defendant’s statement here was clearly made while defendant was in custody; at issue is whether the statement was given in response to an “interrogation.”

The United States Supreme Court has found that “interrogation” is not limited to express questioning by law enforcement personnel, but includes its “functional equivalent,” words or actions that the police should know are reasonably likely to elicit an incriminating response. (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90; see also People v. Scott (1987), 159 Ill. App. 3d 459, 463, 512 N.E.2d 836, 838-39 (“[rjemarks by the police which are designed to gain a response or admission constitute ‘interrogation’ ”).) Defendant maintains that an “interrogation” exists here because the officer applied a psychological ploy, consisting of holding up the gun and directing an open-ended statement to his partner, to elicit an incriminating response from defendant.

The record does not support defendant’s interpretation of the evidence. The transcript indicates that the officer stated to his partner, “Look at this,” immediately after discovering a gun in an after-arrest, protective, pat-down search of defendant. The record does not show that the officer held up the gun for defendant’s view or otherwise made an effort to display the gun. Whitmore testified merely that Malinowski showed him the gun when making the statement. We do not believe the officer’s spontaneous response to the discovery of a weapon should be held to be reasonably likely to elicit an incriminating response or designed to gain such a response from defendant.

Defendant’s next contention concerns the trial court’s denial of his motion in limine to exclude any reference to the nature of the prior conviction underlying the felony-use-of-weapons charge. Section 24 — 1.1 of the Criminal Code of 1961 makes it unlawful for a person to knowingly possess a weapon where the person has previously been convicted of a felony. (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1.) Prior to trial, defendant requested that the court limit the State in introducing evidence of defendant’s prior conviction to the fact that defendant had a prior felony conviction. The court refused to exclude reference to that conviction as an “armed robbery” conviction.

Defendant does not dispute that the crime of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1) requires the State to plead and prove defendant’s prior felony conviction as an element of the offense (People v. Palmer (1984), 104 Ill. 2d 340, 472 N.E.2d 795; People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496), but argues that it was error to allow comment on the nature of the prior conviction, especially in light of his stipulation to the felony conviction. Essentially, defendant has two separate contentions in this regard: first, that he was denied a fair trial because any reference to the nature of the prior conviction where a defendant stipulates to the element to be proved is improper; and, second, that the prosecutor’s repeated emphasis on his previous armed robbery conviction rose to the level of prejudice requiring reversal because of the increased likelihood that the jury would base its verdict upon defendant’s propensity to commit the charged crime.

Before addressing these contentions, we note that the State objects to our review of these contentions because defendant failed to specifically allege the errors in his post-trial motion and did not object at trial when the State introduced the evidence of the nature of the conviction. Defendant adequately objected at trial by arguing for exclusion of the evidence in his motion in limine. (People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.) Even though defendant did not specifically allege the error in his post-trial motion, we will not find a waiver here because the claim affects defendant’s substantial rights. People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359,1365.

Defendant cites no Illinois case law holding that the nature of the prior felony conviction underlying the felony-use-of-weapons charge may not be introduced in proving the element of the prior conviction. Illinois appellate courts which have specifically addressed this issue have not adopted a blanket rule that introduction of the nature of the conviction would violate a defendant’s due process rights, even where a defendant has stipulated to an undesignated felony conviction. (See People v. Tilden (1979), 70 Ill. App. 3d 859, 388 N.E.2d 1046; People v. McGee (1987), 165 Ill. App. 3d 833, 520 N.E.2d 836.) The only case to suggest that reference to the nature of the conviction should not be admissible is People v. Tilden (1979), 70 Ill. App. 3d 859, 864, 388 N.E.2d 1046, 1050, where the court, in dictum, advocated a rule that where a defendant offers to stipulate in a comprehensive manner to the undesignated previous conviction, evidence of the nature of the conviction should be inadmissible because the State’s burden would be satisfied.

We will not hold that the trial court abused its discretion in allowing introduction of the nature of the prior conviction here. No Illinois case so holds, and the legislature has not precluded the State from presenting such evidence. Moreover, we do not believe that a defendant is denied due process by introduction of the nature of the conviction where the conviction is an element of the offense, even where there is a stipulation to the undesignated felony.

Turning to defendant’s second contention regarding his prior conviction, defendant directs our attention to seven separate instances during opening and closing argument where the prosecutor commented as to defendant’s conviction for a felony or for armed robbery. Defendant has not cited any Illinois cases which have found that a prosecutor’s emphasis on the prior crime underlying the felony-use-of-weapons charge, or the nature of that crime, denied a defendant due process. Defendant, however, analogizes the situation here with that in People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867, where the court found that the prosecutor’s admonishments in closing argument, that the defendant’s prior convictions were to be considered only for impeachment purposes, caused the jury to focus its attention on the similar prior crimes and the probability that he had once again committed the crimes with which he was charged. The court explained that admission of the prior crimes evidence “rose to the level of proof to show defendant’s propensity to commit a crime ***. The result was not only to conceivably inflame the jury’s passions, but also to cause a search for the truth based upon defendant’s prior convictions.” Pruitt, 165 Ill. App. 3d at 953, 520 N.E.2d at 871.

While we acknowledge the proposition that a prosecutor may comment on facts in evidence (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254), we believe that under the circumstances present here, the prosecutor went- beyond fair comment on the evidence. The jury’s verdict here, as evidenced by defendant’s defense, necessarily turned on how it resolved the dispute as to defendant’s knowledge in possessing the weapon on December 7, 1985. The prior conviction the prosecutor emphasized, that of armed robbery, is similar to the crime with which defendant was charged in that both involve the knowing possession of a weapon. Although we find that evidence of the nature of the conviction is admissible because the conviction is an element of the charge, the State’s repeated emphasis on defendant’s prior armed robbery conviction increased the likelihood that the jurors would find defendant knowingly carried a gun on December 7, 1985, because he previously carried a gun in the commission of a crime.

In addition to the prosecutor’s comments regarding defendant’s prior armed robbery conviction, defendant points to numerous other prosecutorial comments that we find to be improper. Commenting on defense witness Horn’s testimony that defendant took a taxicab to the Palatine train station, the prosecutor stated in closing argument: “I don’t know what Lucius Clark was doing that day. I haven’t seen any taxicab receipts. I haven’t seen any Northwestern receipts.” This comment improperly shifted the burden of proof to defendant by emphasizing defendant’s lack of evidence. Similarly, in People v. Lopez (1987), 152 Ill. App. 3d 667, 678, 504 N.E.2d 862, 870, this court found that the prosecutor improperly shifted the burden of proof by his statement, “Where are those people that can clear the defendant?” This court also found, in People v. Giangrande (1981), 101 Ill. App. 3d 397, 402, 428 N.E.2d 503, 507, that the prosecutor’s statement, “Now where’s the evidence that the defendant didn’t do it?” shifted the burden of proof to the defense. We reject the State’s assertion that the prosecutor was properly commenting on the evidence and defense witness Horn’s credibility. The prosecutor’s preliminary comment, “Let me say by my commenting on anything that Janet Horn has said or anything that the defense has suggested” (emphasis added), clearly emphasized the defense’s failure to produce certain evidence.

The next comments we find improper are the prosecutor’s statements, “It sounded like she was saying that [the officers] would be willing to give up their pensions *** put their family security in jeopardy, lose their jobs, possibly be indicted for perjury because they want to lie on Lucius Clark.” It is established that a prosecutor may not argue that a witness is more credible because of his status as a police officer. (People v. Richardson (1985), 139 Ill. App. 3d 598, 601-02, 487 N.E.2d 716, 718; People v. Parker (1979), 72 Ill. App. 3d 679, 681, 391 N.E.2d 89, 91.) The prosecutor’s comments here played upon the jury’s sympathies and improperly implied that the officers were more believable because of their positions as police officers.

Finally, the prosecutor stated that defendant’s defense was a smoke screen. This comment has repeatedly been held by courts to be improper. E.g., People v. Wilson (1983), 120 Ill. App. 3d 950, 961, 458 N.E.2d 1081, 1089; People v. Young (1981), 97 Ill. App. 3d 319, 325-26, 422 N.E.2d 1158,1163.

Accordingly, we find that the cumulative effect of the above comments denied defendant a fair trial. We, therefore, reverse defendant’s conviction and remand for a new trial.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. JOHNSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 88—0867
    Opinion filed July 11,1989.

      Constantine P. Xinos, of Xinos & Xinos, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

After a bench trial, defendant was convicted of the offense of child pornography (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 20.1(a)(2)) and sentenced to two years’ felony probation. He now appeals and presents the following issue for review: whether the trial court properly found him guilty of child pornography on the basis of his being in possession of books depicting nude photographs of girls under the age of 16.

During the course of investigating the distribution of child pornography, United States Postal Inspector John Ruberti received a letter from defendant in response to an ad Ruberti had placed, stating that defendant wanted to start a private collection of young girls “in action.” During the next few months, Ruberti used the pseudonym “Linda,” under which he exchanged several letters with defendant. Through these letters, defendant indicated the type of books he had in his possession and offered to meet and exchange books with his correspondent.

Defendant and “Linda” agreed to meet at an apartment at 515 West Melrose in Chicago. Watching the meeting by way of a hidden closed circuit camera, Ruberti saw defendant give three magazines (exhibits 14, 15, and 16) to a confidential informant and heard him agree to return at a later date with more material. Defendant was arrested at the second meeting, at which he was in possession of three additional magazines (exhibits 17, 18, and 19). After being advised of his Miranda rights, defendant told the arresting officers that he had a desire to have sex with girls between the ages of 13 and 16, and that he had ordered the magazines to satisfy his curiosity. Defendant was 31 years old at the time of trial.

After viewing the exhibits, the court stated that it did not consider the photos in exhibits 17, 18, and 19 to be child pornography because it could not determine that the girls pictured there were under 18 years old. However, the court found exhibits 14, 15, and 16, viewed in their entirety, to be a violation of the law, the judge stating:

“There are hundreds of pictures in this book. There is no way that I can say number one in the upper right-hand corner of the page that is not even marked, doesn’t have any number, is and the other one isn’t.
What I’m saying, these two books or three books — and more particularly exhibits 14 and 15 in their entirety, looked at in their entirety, are a violation of the law.
There are some books — some pictures in there that don’t portray the genital areas. They are not going to be a violation. I don’t think those who will be reviewing this case are going to have any problem. They are going to look at the books and they are going to make a decision based on the entirety of the evidence.”

Defendant was convicted under section 11 — 20.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1):

“11 — 20.1.(a) A person commits the offense of child pornography who:
(2) with the knowledge of the nature or content thereof, sells, offers for sale, possesses with intent to sell or otherwise disseminates, exhibits or makes available any film, videotape, photograph or other similar visual reproduction of any child under the age of 16 engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection.”

The relevant subparagraph of paragraph (1) is (vii):

“where such child is:
(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person.” (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 20.1(a).)

Defendant concedes, as he must, the constitutionality of the child pornography statute. (New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348; People v. Geever (1988), 122 Ill. 2d 313, 522 N.E.2d 1200.) Nor does defendant contest the trial court’s finding that the children in the photographs were under the statutory age. He claims, rather, that the trial court incorrectly found him guilty of child pornography, arguing that the pictures in question depict nudity or an “exhibition of the genitals” as opposed to a “lewd exhibition of the genitals.”

Defendant adds that to be “lewd” the photographs must be “obscene, lustful, indecent, lascivious, lecherous” (People v. Walcher (1987), 162 Ill. App. 3d 455, 515 N.E.2d 319), and that to constitute a “lewd exhibition of the genitals,” the conduct must be patently offensive to be considered obscene. (Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085.) Defendant farther claims that a photograph is “lewd” if there is a focus on the genitals or attention drawn to that area by either the photographer or the subject (People v. Gould (1975), 60 Ill. 2d 159, 324 N.E.2d 412), and that “a photograph is ‘lewd’ if there is touching of the genitals by the subject, adult contact with the child, adult sexuality or suggestiveness or convoluted poses to expose the genitals.” (People v. Lerch (1985), 134 Ill. App. 3d 643, 480 N.E.2d 1253.) Finally, defendant avers that a photograph is not “lewd” if there is no attempt by the subjects) to convey, or by the photographer to depict, any suggestive or seductive pose. People v. Biocic (1967), 80 Ill. App. 2d 65, 224 N.E.2d 572.

Citing Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, and City of Chicago v. Geraci (1970), 46 Ill. 2d 576, 578, 264 N.E.2d 153, defendant asserts that a reviewing court is obligated to make an independent judgment as to whether photographs on which a conviction is based are obscene or whether they are entitled to constitutional protection. In doing so, defendant urges this court to find that the photographs are not lewd under the standards enumerated supra, and to reverse his conviction.

Defendant overlooks that it is incumbent upon this court to construe “lewdness” consistent with the grave concerns expressed by the United States Supreme Court in Ferber and reiterated by the Illinois Supreme Court in Geever, in which both courts permitted the imposition of punishment for the depictions at issue there not because they were obscene but because they were obtained by sexually abusing and exploiting children. We are thus constrained to presume that because child models are incapable of refusing to participate in pornographic films or photographs, child pornography can be legally banned irrespective of a work’s social or artistic merit.

In Ferber, the United States Supreme Court cites various congressional committee hearings and reports which depict how “the ex-ploitive use of children in the production of pornography has become a serious national problem.” (Ferber, 458 U.S. at 749, 73 L. Ed. 2d at 1117, 102 S. Ct. at 3350.) Ferber goes on to relate that “ ‘child pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale.’ [Citation.] One researcher has documented the existence of over 260 different magazines which depict children engaging in sexually explicit conduct. [Citation.] ‘Such magazines depict children, some as young as three to five years of age ***. The activities featured range from lewd poses to intercourse, fellatio, cunnilingus, masturbation, rape, incest and sado-masochism.’ [Citation.] In Los Angeles alone, police reported that 30,000 children have been sexually exploited. *** The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography.” Ferber, 458 U.S. at 749 & n.1, 73 L. Ed. 2d at 1117 & n.1, 102 S. Ct. at 3350 & n.1.

Moreover, “pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.” Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981), as quoted in Ferber, 458 U.S. at 759 n.10, 73 L. Ed. 2d at 1124 n.10, 102 S. Ct. at 3355 n.10.

Accordingly, both courts have recognized that our legislative bodies are entitled to great leeway in the regulation of pornographic depictions of children. (New York v. Ferber, 458 U.S. at 749, 755-56, 73 L. Ed. 2d at 1117, 1121-22, 102 S. Ct. at 3350, 3353-54; People v. Geever, 122 Ill. 2d at 320-21.) The Ferber court went on to hold that the obscenity standard set forth in Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, would not be applied to cases of child pornography, stating that, “The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” (458 U.S. at 760-61, 73 L. Ed. 2d at 1125, 102 S. Ct. at 3357.) In Geever, the Illinois Supreme Court held, in a passage quoted from Ferber:

“A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that the sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.” People v. Geever, 122 Ill. 2d at 323.

Thus, the cases upon which defendant relies are not applicable to the case at bar. People v. Gould and People v. Lerch all deal with Miller’s obscenity standards. Gould involved a prosecution on an obscenity charge and not child pornography; Lereh was a child pornography case, but the statute applicable at the time incorporated the more demanding three-part obscenity standards formulated in Miller. (People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367, cert. denied (1989),_U.S___ 103 L. Ed. 2d 848, 109 S. Ct. 1544.) As in Gould, Ward v. Illinois applied Miller’s obscenity standards to a charge which did not involve child pornography. People v. Biocic is distinguishable in that the magazines in issue there were dedicated to expounding “the virtues of nudist living and to advancing nudism in our culture.” The photographs were of “nudes engaged in normal activity or posed as a fully clothed person would pose for a photograph. No attempt was made to be suggestive.” People v. Hebel, 174 Ill. App. 3d at 21-22.

In People v. Walcher (162 Ill. App. 3d 455), the court, in construing the child pornography statute, defined “lewd” as “obscene, lustful, indecent, lascivious, lecherous,” and found that the pictures involved poses which were intentionally seductive and designed to excite sexual desire. The court stated that they “are staged and are not simply incidental pictures of partial nudity,” and that they were lewd under the definition it had adopted. (Walcher, 162 Ill. App. 3d at 461.) The photographs were generally focused on young girls’ genitals, including poses in which the girls were showing their genitals through their underwear, or spreading their legs to allow a clear view of the genital area.

In the present case, we find the photographs in exhibits 14, 15 and 16 to be lewd and that they fall into the categories mentioned by the Walcher court. Exhibit 14 has a format which is similar to an erotic adult magazine, including some fold-out pages similar to a center fold. The first pictures of exhibit 14 are entitled “Francoise” and focus in varying degrees on the breasts and genitals of the girl depicted. Indeed, one of these photos crops Francoise’s head, back, and legs and focalizes on her partially draped but protuberant buttocks, while she assumes a reclining position. The next group of pictures is entitled “Natacha,” and the camera concentrates prominently on the genitals of the girl depicted, showing her in various contorted gymnastic positions, offering unobstructed views of her genital region. One in particular has her in a squatting position, featuring an obtrusive display of her vagina. Moreover, like a good many other of the depicted children, she is nowhere near pubescence. The following pictures of young girls entitled “Nadia,” “Virgine,” “Sarah,” “Chloe,” and “Nancy” all focus eminently either directly or through transparent underwear, on the genitals of these girls, all of them in unabashedly erotic poses. Sarah and Chloe are both far from reaching puberty, yet this acts as no deterrent to the photographer’s having Chloe pose in a state of dishabille in a clumsy imitation of the style of an adult erotic magazine.

Exhibit 15 is similar in format to exhibit 14 and includes photographs of a girl named “Vancienne,” who is shown partially wrapped only in a fur with her genitals and breasts exposed. The next series of photographs is comprised of about 20 pictures in which the genitals of both prepubescent boys and girls are exposed. In more than one photo, a number of these nude children, male and female, are standing on their heads with their genitals strikingly displayed, while two girls are bent over, faces hidden, but the focal area is their buttocks and genital regions. In another photo, four girls who have not reached puberty, pose in the nude, hugging and kissing each other while making sure that their genitals are fully exposed to the viewer. There are also in these exhibits a large number of unnamed girls in the prepuberty stage who are depicted in the nude in various poses, revealing their genitals, including one in various stages of taking a bath and showering, and a couple of these photos are cropped to feature only the genital area. Another girl is photographed in front of a full length mirror, thus exhibiting both a frontal and rear view of this completely nude child of tender age. One child has her face completely draped but her breasts and genital area are fully exposed. This exhibit also includes pictures of a girl named “Lawrence,” which do not include the girl’s face, but rather focus specifically on the girl’s vagina. Exhibit 16 is different in format, and also contains photographs of the genitals of very young children, although a rather lame attempt seems to have been made to give the book or magazines the aura of a nudist-centered publication.

Under the rationale of Walcher, it is clear beyond any doubt that the photographs in exhibits 14, 15 and 16 are lewd. Each exhibit contains photographs which focus on the genitals of young girls or boys, many of whom are mere tots. While the degree of focus may differ, there is no question but that the theme of these artfully crafted pictures is the same. These are not portraits which capture an uninhibited moment of adolescent spontaneity; the pictures are adroitly and dexterously posed, focusing on the breasts, vaginas, and buttocks of young girls. In fact, as already noted, some of these pictures show nothing more than the stomach, thighs and genitals of these children. Defendant’s contention that these photographs are not lewd is devoid of any merit; the only “injustice” the trial court has done defendant is to have described the photos for the record with remarkably unrestrained objectivity.

“While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.” (Ferber, 458 U.S. at 760, 73 L. Ed. 2d at 124, 102 S. Ct. at 3356.) Thus, because of the societal concerns expressed in Ferber and Geever, making the burden of finding “child pornography” less stringent than that of “obscenity,” we hold that the material in question is clearly “lewd,” and the defendant’s conviction is upheld.

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS HALL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—1637
    Opinion filed July 12, 1989.

      Michael J. Pelletier and Thomas Long, both of State Appellate Defender’s Office, of Chicago, for appellánt.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Inez Toledo-Bargioni, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Curtis Hall, was indicted for aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, kidnapping and unlawful restraint. After a jury trial in the circuit court of Cook County, defendant was convicted of aggravated criminal sexual assault, criminal sexual assault and kidnapping. Defendant was sentenced to 60 years’ imprisonment.

Prior to trial, the trial court conducted a fitness hearing. Dr. Albert Stipes, the State’s psychiatrist, testified that defendant would be fit to stand trial if he received anti-psychotic medication. He also stated that, without the medication, defendant could regress to his previous state, although not immediately but over several weeks. The trial court .found defendant fit to stand trial after the parties stipulated that Dr. Gilbert Bogan, the defense psychiatrist, agreed that defendant would be fit with medication.

At trial, complainant testified that she was walking south on Lafayette Street on her way home from stores at 87th and the Dan Ryan expressway at approximately 1:30 p.m. on August 22, 1984. As she approached a viaduct, a man came up to her from behind, put his hand over her mouth and told her to keep walking. When complainant said, “[N]o,” the assailant threatened to kill her if she resisted. He then twisted complainant’s arm behind her back and forced her up to the railroad tracks. At this time, the attacker placed an object which felt like a gun against complainant’s back. However, complainant never saw a gun.

Once they reached the railroad tracks, complainant was able to see her assailant. At this time, a train came along and the assailant put his arm around complainant’s neck and forced her to kiss him. The assailant forced complainant to walk along the tracks for approximately 45 minutes. Thereafter, the assailant forced complainant down a little hill onto a grassy area and told her to disrobe. When complainant refused, the assailant put his hand up to her face and forced her to do so. The assailant then forced complainant to have sexual intercourse with him. During the act, complainant was face to face with her assailant. Afterwards, the attacker told complainant that she looked like his wife, who had taken his children away from him, and that she was going to get what his wife deserved. The attacker also told complainant that the strange phone calls she had been receiving were from him. Over the next two to three hours, the attacker forced complainant to have sexual intercourse five more times.

When the assailant lay down a short distance from complainant after the last act of intercourse, she hit him with a stick, picked up her clothes and ran. The assailant chased complainant but she was able to elude him. Complainant eventually flagged down a Chicago police car. Complainant and the police then attempted to locate the scene of the assault. Thereafter, the police took complainant home and then to the hospital. Complainant identified defendant as her attacker in a police lineup on September 17,1984.

The State also introduced evidence of an earlier attack upon two young women allegedly committed by defendant in the vicinity of the attack upon complainant.

Alicia Allison testified that she and a friend, Karen Thomas, were walking west on 87th Street to a gas station after alighting from the CTA’s Dan Ryan line on the afternoon of August 19, 1984. As they approached a railroad viaduct, a man came up from behind them and placed a gun between their heads. The attacker grabbed Thomas by the neck, put the gun to her head and told the women to climb up to the railroad tracks. Once they reached the top of the embankment, the assailant forced the women to walk along the tracks. The assailant forced first one women and then the other to crawl along the tracks as he held the second by the neck. After about 90 minutes, Allison attempted to run away. However, the assailant put the gun up to Thomas’ face and threatened to shoot her if Allison did not return. Allison then returned and the assailant hit her across the face with the gun.

The assailant then forced Allison to crawl along the tracks for 35 minutes. Thereafter, he forced the women into a prairie area away from the tracks. As their attacker began touching the women’s breasts and loosening their belts, Allison hit him in the face with a tree branch and the women ran off in different directions. During the time the women had been with their assailant, he had talked about his mother, his wife and “her kids.” After she ran away, Allison came upon a group of people in the street, one of whom called the police. Allison gave the police a description of the attacker. Allision identified defendant as her attacker in the September 17,1984, lineup.

After the jury returned its verdict, defense counsel requested a fitness examination of defendant. The trial court, finding no bona fide doubt of defendant’s fitness, denied defense counsel’s request. Subsequently, the trial court denied defense counsel’s renewed motion for a fitness examination prior to defendant’s sentencing after finding no bona fide doubt of his fitness.

Opinion

Defendant first contends the State denied him a fair trial by introducing evidence of the Allison-Thomas attack. He asserts that the Allison-Thomas attack was insufficiently similar to the attack upon complainant to indicate that both offenses were committed by defendant, i.e., to prove modus operandi.

Other crimes evidence, although generally inadmissible, is admissible for certain purposes. One of those purposes is to prove modus operandi or “method of working.” (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292.) The term refers to a pattern of criminal behavior so distinct that separate offenses are recognized as the work of the same person. Between the offense offered to prove modus operandi and the offense charged there must be a clear connection which creates a logical inference that, if defendant committed the former offense, he also committed the latter offense. This inference arises when both crimes share peculiar and distinctive features not shared by most offenses of the same type and which, therefore, earmark the offenses as one person’s handiwork. However, it is unnecessary that the offenses be identical. Kimbrough, 138 Ill. App. 3d at 486-87.

Applying the foregoing principles here, we believe that the Allison-Thomas attack and the offense charged were sufficiently similar to allow use of the former to prove defendant’s commission of the latter.

The most distinctive feature which both offenses shared and which is not shared by most rape assaults is that the assailant in each attack marched his victims along railroad tracks for a considerable length of time in broad daylight after having accosted them. Given the great number of railroad viaducts and embankments in Chicago, we cannot say that we would necessarily find separate attacks upon women so similar as to have one author if the assailant in each merely accosted his victim or victims near a viaduct, forced them up a railroad embankment and, once there, sexually assaulted them or attempted to do so. However, where the assailant in each attack takes the added step and substantial risk of discovery of marching his victims a considerable distance from the site of their first contact in broad daylight, we find that fact alone sufficient to earmark the attacks as the handiwork of the same individual.

That fact, however, was not the only distinctive feature common to both offenses and not necessarily common to other offenses of the same type. Additionally, complainant and Allison testified that their assailant talked about his wife and his children, in the charged incident, or his wife’s children, in the Allison-Thomas attack.

Defendant takes issue with the facts relied upon by the trial court in admitting the Allison-Thomas attack into evidence. In addition to the fact that each attack occurred near a railroad viaduct, those facts included the spatial and temporal proximity of the attacks and the fact that the victims were choked and threatened with death. Contrary to defendant’s assertion, such facts are often taken into consideration in determining whether other crimes evidence is admissible to show modus operandi.

In People v. Cook (1977), 53 Ill. App. 3d 997, 369 N.E.2d 246, the court held that there were insufficient similarities between offenses to show modus operandi where, inter alia, one rape victim was threatened with death while a second was not. In People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999, and People v. Emmett (1975), 34 Ill. App. 3d 167, 340 N.E.2d 235, the courts considered the fact, inter alia, that rapes occurred within five blocks of one another in determining that they revealed a modus operandi and a common scheme or design, respectively. In People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074, overruled on other grounds in People v. Pettit (1984), 101 Ill. 2d 309, 461 N.E.2d 991, the court considered the fact, inter alia, that the assailant in each of three attacks choked his victims until their resistance was overcome to find sufficient similarities between them to show a modus operandi. Finally, although individual similarities may be common to rapes in general, the modus operandi exception is applicable where offenses share features which are distinctive in combination. (See Pavic, 104 Ill. App. 3d at 443.) We believe that to be the case here.

Defendant also asserts that the differences between the offenses far outweighed their similarities. Specifically, defendant notes the difference in the number of victims. He also notes that the assailant in the offense charged told complainant that he was the person making the strange calls to her house and made inexplicable references to former Chicago mayor Jane Byrne.

These differences do not outweigh the similarities between the offenses. In People v. Carter (1985), 132 Ill. App. 3d 523, 477 N.E.2d 1307, evidence of the rape of one victim in an elevator was held admissible to prove the defendant’s modus operandi in committing, at one time, the rape of a second victim and the robbery of the second and a third victim. That is, evidence of the former offense was admissible to prove the latter offenses notwithstanding that the number of victims differed in each attack. Lastly, the importance of the fact that the assailant in each attack may not have said exactly the same things to his victims is greatly diminished by the fact that he did mention his wife and his or her children in both attacks.

Defendant lastly asserts that the differences in complainant’s and Allison’s physical descriptions of their assailants, immediately after their attacks and at trial, also made Allison’s testimony incompetent to prove modus operandi.

Both complainant and Allison identified defendant as their assailant in a lineup one month after they were attacked and at trial. The fact that the women’s physical description of their assailant immediately after the attacks and at trial differed from one another’s and from defendant’s actual appearance do not compel the conclusion that their in-person identifications of defendant were mistaken. In this regard, we believe that a trier of fact may properly place greater weight upon evidence of identification after perceiving a defendant than on oral testimony of physical description. Lastly, the fact that complainant failed to mention that her assailant wore “bathtub chains,” which defendant cites as the most important aspect of Allison’s description of defendant, does not give us pause. “Bathtub chains,” like any physical accoutrement or piece of jewelry, may be easily removed from one day to the next.

In sum, the Aliison-Thomas attack was sufficiently similar to the attack upon complainant as to have been properly admitted to show modus operandi and, thereby, that defendant committed the offense charged.

Defendant next contends that the testimony of Calumet Park police officer James Emmett that he observed defendant standing near a railroad station on September 1, 1984, and that he photographed him on that day, denied him a fair trial. Defendant repeatedly asserts that Emmett’s testimony was improper because it created an inference that he had been involved in “prior” criminality or had “prior” contact with the police.

Preliminarily, we must note that, in view of the State’s argument that Emmett’s testimony, and by implication, the photograph he took of defendant, were relevant to the issue of identification, defendant’s failure to include the photograph in the record on appeal makes determination of this issue needlessly difficult. That difficulty notwithstanding, we disagree with defendant.

For purposes of determining whether evidence indicating criminal activity or acquaintance with the police is improper, whether it indicates such prior to, or at the time of, the offense charged, not after, is controlling. (See, e.g., People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413; People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262; People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837.) The fact that Emmett photographed defendant after both the Aliison-Thomas attack and the offense charged shows that the photographs could not implicate him in criminal conduct prior to, or at the time of, the attacks. As such, Emmett’s testimony did not deny defendant a fair trial. Rather, we believe that testimony was properly admissible to provide the foundation for introduction of the photograph he took. Moreover, we find that the State introduced the photograph for the proper purpose of corroborating complainant’s and Allison’s testimony as to defendant’s appearance on the dates of his alleged attacks upon them.

Defendant asserts that his appearance on September 1 was irrelevant to the issue of identification because neither the offense charged nor the Aliison-Thomas attack occurred on that date. In so arguing, defendant ignores Emmett’s testimony at the hearing on defendant’s motion to suppress the evidence of his identifications.

Emmett testified that, on September 1, defendant was wearing a waist-length or three-quarter-length leather jacket and a stocking cap and that this struck him as unusual because it was a very hot day, i.e., “in the 80’s.” While Emmett did not testify at trial as to how defendant was dressed in the photograph, we will assume that he was dressed as Emmett described him at the suppression hearing. When the record is incomplete, a reviewing court will indulge every presumption in favor of the judgment. (People v. Worsham (1979), 79 Ill. App. 3d 1061, 398 N.E.2d 1068.) Moreover, Emmett did testify at trial that September 1 was hot and humid. Thus, defendant is incorrect when he argues that Emmett’s testimony and, necessarily, the photograph were irrelevant to any issue in the case.

Emmett’s testimony and the September 1 photograph were corroborative of complainant’s and Allison’s testimony, not of defendant’s physical appearance, upon which defendant focuses, but of how defendant was dressed on the dates of his attacks against them. Complainant testified that it was very hot and 95 degrees on the day she was attacked. She further testified that her assailant wore a jacket and cap. Similarly, Allison testified that the weather on the day she and Thomas were attacked was “real nice” and that her assailant wore a hat and a hooded jacket, the zipper of which was fastened. To the extent that Emmett’s testimony and the photograph of defendant tended to corroborate complainant’s and Allison’s descriptions and, thus, their identifications of defendant, they were properly admitted.

Nor do we find that Emmett’s testimony that he observed defendant near a railroad station deprived defendant of a fair trial. A trial free of this testimony would not have resulted in a different verdict.

Defendant next contends that there was a bona fide doubt of his fitness to stand trial and to be sentenced and that the trial court thus denied him due process by denying his requests for a fitness examination and hearing before sentencing him. In view of the pretrial stipulation that he was fit to stand trial with medication, defendant asserts that defense counsel’s post-trial statements to the trial court raised a bona fide doubt of fitness. Defendant cites People v. Jackson (1978), 57 Ill. App. 3d 809, 373 N.E.2d 583, in support.

A defendant is unfit to stand trial or be sentenced if he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1985, ch. 38, par. 104—10.) If a bona fide doubt of fitness is raised, a trial court shall determine the issue before proceeding further. (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 11(a).) The decision to grant a fitness examination or, thereafter, a fitness hearing, is addressed to the sound discretion of the trial court (see People v. Jenkins (1978), 67 Ill. App. 3d 565, 568, 384 N.E.2d 1348) since it is in a superior position to observe and evaluate the defendant’s conduct (People v. Murphy (1978), 72 Ill. 2d 421, 431, 381 N.E.2d 677). Therefore, those determinations will not be disturbed absent an abuse of that discretion.

Immediately after the jury rendered its verdicts on April 7, 1986, defense counsel requested a presentencing fitness examination. When asked the basis of the request, defense counsel stated that defendant had not received his medication that day and felt no need to take it. Defense counsel immediately then stated that he nevertheless believed that defendant “could be fit for today’s proceedings as well as prior proceedings” but that he would like some assurances that defendant would take his medication up to the time of sentencing.

Prior to defendant’s sentencing on May 21, 1986, defense counsel informed the court that defendant had not received his medication since his transfer to Division VI of the Cook County jail, about one month before the trial began on April 4. Defense counsel also informed the court that it had been found in the past that defendant required medication to be fit for legal purposes. Finally, defense counsel noted the observation of the probation officer who conducted the presentence investigation that, when he interviewed defendant, he “was somewhat distant to reality.” On the basis of the foregoing, defense counsel requested a fitness examination, which the trial court denied.

. The record reveals that defense counsel’s request for a fitness examination on April 7 was based solely on his concern that defendant continue to take his medication up to the time of his sentencing. The record also reveals that his concern was predicated solely on the fact that defendant was housed in Division VI, where, defense counsel felt, the assurances that he would take his medication were not as good as in the hospital unit.

Thus, defense counsel’s request for a fitness examination was not based on any knowledge that defendant had not been taking his medication prior to that day or would not take it thereafter. Moreover, although defense counsel did inform the court that defendant had not taken his medication that day, he also stated his belief that defendant “could be fit” for that day’s and all prior proceedings. Defense counsel’s first post-trial statements to the court regarding defendant’s fitness provided little support, if any, for a finding of a bona fide doubt of fitness, either to stand trial or to be sentenced. The trial court did not abuse its discretion when it denied defense counsel’s request for a fitness examination on the ground that his concern was speculative and did not rise to a bona fide doubt of fitness.

In contrast to his prior post-trial statements to the court, defense counsel did state on May 21 that “it was [his] knowledge” that defendant had not received any medication in Division VI. However, defense counsel did not state the facts which formed the basis of that knowledge. While defense counsel, as an officer of the court, must be presumed to have spoken truthfully regarding his “knowledge” (see People v. Mack (1989), 128 Ill. 2d 231, 252), his failure to state any underlying fact's prevented the trial court from independently evaluating the reliability of that knowledge. Moreover, defense counsel merely repeated his belief that the assurances that defendant was receiving his medication in Division VI were not very good. Defense counsel’s statements to the trial court, prior to defendant’s sentencing, thus failed to raise a bona fide doubt of fitness.

Moreover, neither defendant’s prior psychiatric history nor the probation officer’s observation required the trial court to grant a fitness examination or hearing. In this regard, we do not believe the court abused its discretion in relying, instead, upon its own observations of defendant throughout the trial (see, e.g., People v. Bailey (1986), 141 Ill. App. 3d 1090, 1098, 490 N.E.2d 1334) and its observation and questioning of him prior to sentencing (see, e.g., People v. Freeman (1987), 162 Ill. App. 3d 1080, 1101-02, 516 N.E.2d 440) to deny the request for a fitness examination.

Defendant also asserts that the confusion he exhibited prior to being sentenced with regard to when he was transferred to Division VI revealed cognitive difficulties which also raised a bona fide doubt of fitness.

Prior to sentencing defendant on May 21, the trial court questioned him regarding whether he had been receiving his medication in Division VI. When asked when he was transferred there, defendant said “June or May.” According to defense counsel, defendant had been transferred to Division VI about one month before the start of trial in April. Therefore, he could not have been transferred in May. And he most certainly could not have been transferred in June. However, any cognitive difficulties revealed by defendant’s apparent confusion as to when he was transferred to Division VI did not necessarily reveal a bona fide doubt of fitness. Although a defendant’s mind may be otherwise unsound, he may nonetheless be fit to stand trial and be sentenced. (See People v. Murphy (1978), 72 Ill. 2d 421, 433, 381 N.E.2d 677.) Moreover, the trial court was in a superior position to gauge defendant’s cognitive abilities and we decline to substitute our judgment for that of the trial court solely on the cold record before us.

In sum, we do not believe the denial of defense counsel’s requests for a fitness examination and hearing prior to sentencing was an abuse of discretion.

People v. Jackson (1978), 57 Ill. App. 3d 809, 373 N.E.2d 583, does not compel a contrary conclusion. In Jackson, the trial court ordered that the defendant undergo a fitness examination prior to being sentenced. On the day of the sentencing hearing the court was informed that the defendant had not been examined as ordered and that he had not received, that day, the medication which had been found necessary to maintain his fitness to stand trial. The court nevertheless proceeded to sentence the defendant. The appellate court remanded the case for resentencing based on its conclusion that the defendant’s failure to receive the medication necessary to render him fit raised a bona fide doubt of his fitness. The fact that the trial court indicated its concern with the defendant’s fitness when it ordered the fitness examination buttressed the appellate court’s conclusion. Jackson, 57 Ill. App. 3d at 814.

The psychiatric testimony at the defendant’s pretrial fitness hearing in Jackson was apparently limited to the fact that he would be fit with medication. That is, there was apparently no testimony regarding the effect upon the defendant of a failure to take or receive the medication. The apparently unqualified psychiatric testimony in Jackson thus allowed the appellate court to conclude, from the record before it, that there was a bona fide doubt of the defendant’s fitness where he had not received, on one day, the medication necessary to maintain his fitness. In contrast to Jackson, the psychiatric testimony in this case was not unqualified. Dr. Stipes also testified that, if defendant did not receive the medication necessary to render him fit, he would “eventually” regress to his unfit state but it might take “several weeks” for that to occur. Thus, unlike the situation in Jackson, the psychiatric testimony in this case does not allow us, as a court of review, to determine, solely from the record and without benefit of observing defendant, that there was a bona fide doubt of his fitness at the time he was sentenced.

For all of the foregoing reasons, defendant’s convictions and sentence are affirmed in their entirety.

Affirmed.

WHITE and CERDA, JJ., concur.