author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES JONES et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1-85-2846, 1—85—2861, 1—86—0534 cons.
    Opinion filed May 19, 1989.
    Modified on denial of rehearing July 7, 1989.— Modified pursuant to supervisory order September 1, 1989.

      Randolph N. Stone, Public Defender, of Chicago, for appellants Charles Jones and Charles Martin.
    Michael J. Pelletier and Thomas Long, both of State Appellate Defender’s Office, of Chicago, for other appellant.
    Richard M. Daley, State’s Attorney, of Chicago, for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendants, Charles Jones, Kenneth Henson, and Charles Martin, were convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(1)), two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(1)), and three counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18— 2(a)), and were sentenced to 60 years’ imprisonment. Each defendant filed a timely notice of appeal and the cases were consolidated in this court. We will address the following four issues on appeal: (1) whether each defendant’s motion to quash arrest and suppress statements was denied in error; (2) whether the admission of bloodstain identification testimony based on the process of electrophoresis denied Henson a fair trial; (3) whether each defendant was proven guilty beyond a reasonable doubt of the attempted murder of Mr. L.; and (4) whether Martin was proven guilty beyond a reasonable doubt of aggravated criminal sexual assault. As to Henson and Martin, we affirm in part, reverse in part, and remand for resentencing. As to Jones, we reverse and remand for new trial.

Prior to the trial of this case, each defendant moved to quash his arrest and suppress statements, and each motion was denied by the trial court. Each defendant waived his right to a jury trial, and the evidence at trial established the following facts.

The State presented evidence that on December 17, 1984, at approximately 7:30 p.m., the three defendants, Jones, Henson, and Martin, forced their entry into an apartment while Mr. L., his wife Mrs. L., and his nine-year-old daughter R.L. were home. One defendant was carrying a gun and another was carrying a knife. When defendants kicked down the door, Mrs. L. was thrown on her back on the kitchen floor. She screamed and was told to “shut up” or she would be killed. While lying on the floor, she was stabbed in the back and was threatened, “Shut up bitch or I’ll kill you.”

Upon entering the apartment, Martin hit Mr. L. in the head with the gun and Mr. L.’s hands were tied behind his back while he was lying in the hallway. Martin asked Mr. L. for his money. He was told if he did not cooperate, he and his family would be killed.

Two of the defendants forced Mrs. L. into the bedroom, where she was raped by a person she could not identify. She was also forced to perform oral sex on Jones, during which time she scratched him in the groin area. Henson then raped her while Jones beat her in the head with a cribbage board and the gun. Jones also put the gun in her mouth and asked her how she would like to be “popped” that way. After Henson raped her, Jones put the gun in her vagina and asked how she would like to be killed that way. Jones raped her again. Mrs. L. testified she was not sure whether Martin was involved in the attack. She also testified that she heard the defendants refer to each other as BeeBee, Fork, and Chuck.

During the time Mrs. L. was being raped, Mr. L. was hit several times in the head with the gun and one of the men stomped on his head. He was repeatedly kicked and hit with the gun. Mr. L. testified that defendants repeatedly stated, “I don’t believe you only have this much money in the house. You have to have more.” He was dragged into the bathroom, where he could hear Mrs. L. crying in the bedroom, and defendants stated, “Shut up bitch. We are going to kill you.” Mr. L. testified that he heard Mrs. L. beg, “Don’t kill my family.”

During the time Mr. L. was being beaten, Jones was in the living room with R.L. He took R.L.’s pants off and sexually assaulted her with his finger. Afterward he threw her next to her father in the bathroom. While lying in the bathroom, R.L. told her father that the defendants told her if she moved, they would kill her. Mr. L. and R.L. were repeatedly kicked and beaten while in the bathroom. Mr. L. testified he heard two of the defendants arguing in the hallway. One stated they should kill the family and the other disagreed. One of the defendants came in the bathroom, held a gun to R.L.’s head, and told Mr. L. he would kill R.L. if he did not show him the key to their car. Mr. L. showed him the key and told him where the car was parked. Martin and Jones removed property from the apartment and loaded it into the car.

Mrs. L. testified that after she was attacked, she was left alone in the bedroom; Henson returned shortly thereafter and placed a gun “nonthreateningly” on her chest. He told her, “Don’t worry. We didn’t hurt your baby. I am sorry all this happened. I will make sure we get caught.” When she heard footsteps leaving the apartment, she wrapped her shirt around her stab wounds to stop the bleeding and telephoned the police. She passed out and was taken to the hospital by ambulance.

Mrs. L. was in critical condition when she arrived at the hospital and required immediate surgery. The stab wounds caused extensive internal bleeding. One stab wound cut off the blood supply to her spleen and it had to be removed. The other stab wound missed her abdominal aorta by three millimeters. She had been beaten in the face and head and had multiple bruises on the rest of her body. She was in the hospital recovering from her injuries and surgery for eight days. Mr. L. suffered several lacerations to the head and a broken nose, and his injuries required a total of 25 stitches, some to the head and some to the nose. R.L. had bleeding wounds on her head and bruises on her back and legs. She also had a bruise in the shape of a shoe on her stomach. An examination revealed a bruise, a laceration, and blood in her vagina.

After a police investigation, defendants were arrested and each gave statements to the police which were admitted into evidence at trial. The trial court admitted each statement only against the defendant who made it. The statements substantially corroborated the State’s evidence.

Martin gave an oral statement admitting that he broke into the apartment with Henson, whose nickname was BeeBee or BayBay, and Jones, whose nickname was Folks or Fork. Martin was carrying a gun and Jones was carrying a knife. Martin gave the gun to Henson, who was with Mrs. L. Shortly after entering the apartment, Martin went downstairs to watch for police. When he returned, he heard Henson say, “[Tjake off your clothes.” When he reentered the apartment he saw Henson raping Mrs. L. Jones told R.L. to take off her clothes and he put his finger in her vagina. Jones put R.L. in the bathroom, where Mr. L. was tied up lying on the floor. Mr. L. was bloody. Jones struck Mr. L. with the gun several times and also struck R.L. Martin said they needed a car to remove property from the apartment, and Jones struck Mr. L. several more times, demanding his car keys. Martin waited in the car while Jones brought the property down from the apartment. Martin asked where Henson was and Jones said, “He is still up messing with the woman.” They brought the property to the apartment of one of Jones’ friends.

Henson gave a written statement admitting he broke into the apartment with Martin and Jones, whom he knew as Jake or Pitchfork. Henson’s nickname was BeeBee. Martin hit Mr. L. in the head with the gun and Henson took his wallet. Jones, who had a knife, took Mrs. L. into the bedroom. Martin gave Jones the gun, and Jones hit Mrs. L. in the head with it. Jones raped her and forced her to perform oral sex. Henson then raped her. Jones brought R.L. in the bathroom and hit Mr. L. in the head with the gun several times. Martin and Jones took the property out of the apartment and to the car. Henson left the apartment shortly thereafter, and when he found Martin and Jones, they divided the $25 they took from Mr. L.’s wallet.

Jones also gave a written statement admitting he broke into the apartment with Martin and Henson, whose nickname was BeeBee. Jones’ nicknames were Pitchfork, Fork, and Chuck. Martin hit Mr. L. in the head with the gun. Henson took $25 from Mr. L.’s wallet and tied him up. Jones, who was carrying a knife, took Mrs. L. in the bedroom and raped her. He also forced her to perform oral sex. Jones hit her in the head with the gun. While Henson was holding Mrs. L., Jones stabbed her in the back. In the living room, Jones took R.L.’s pants off and Martin covered her head with a pillow. Jones put his finger in her vagina. Jones took her into the bathroom and put her on the floor next to Mr. L. Jones hit Mr. L. with the gun several times when he would not cooperate. Jones also hit R.L. with the gun. Martin and Jones took the property from the apartment and to the car. Henson was raping Mrs. L. at this time. Martin and Jones later met Henson and they divided the $25.

After the close of the State’s case, defendants moved for a directed finding which was denied. Each defendant rested without presenting evidence. Defendants were convicted of aggravated criminal sexual assault, attempted murder, home invasion, and armed robbery, and were sentenced to 60 years’ imprisonment. Defendants’ motions for new trial were denied and each filed a timely notice of appeal.

Opinion

I

The first issue presented is whether each defendant’s motion to quash arrest and suppress statements was denied in error. The facts of each defendant’s motion will be addressed separately.

HENSON’S MOTION TO QUASH ARREST AND SUPPRESS STATEMENTS

Prior to trial, Henson moved to quash his arrest and suppress statements based on his warrantless arrest. The trial court denied the motion finding that exigent circumstances justified his arrest without a warrant.

Henson was arrested at approximately midnight on December 18, 1984, the day after the crime occurred. Detectives investigating the crime learned that the gun found at the scene, a .41 caliber Magnum, was stolen in an unrelated burglary Martin may have committed. At approximately 7 or 8 p.m. on December 18, Martin’s mother told them that Martin was with his friend known to her as BeeBee the night of the crime. Martin and BeeBee left her apartment that night at approximately the time the crime occurred. Martin’s mother gave the police a physical description of BeeBee. BeeBee’s uncle, James Hardiman, also told them he saw Martin and BeeBee together at the apartment that evening. Hardiman told the detectives that Martin was known to carry a .41 caliber Magnum gun. When BeeBee returned later upset and looking for Martin, Hardiman noticed he appeared to have blood on his pants.

Later in the evening, at approximately 11 p.m., Hardiman gave the detectives the telephone number of a relative where BeeBee was staying, and the detectives traced the address through telephone records. Hardiman was taken to the police station and agreed to telephone BeeBee at the relative’s home in an attempt to persuade him to surrender to police. Five detectives went to the apartment building where BeeBee was staying, two secured the back exit, two secured the front exit, and one stayed at the police car maintaining radio contact with the police station. The detectives were notified shortly after Hardiman made the telephone call. At that time, the detectives were told that Hardiman spoke with BeeBee. A few minutes later, a man whom the detectives believed was BeeBee came out of the apartment building. The two detectives at the front exit had their guns drawn and announced their office. The man ran back into the building. The detectives forcibly opened the front door of the apartment building and followed the man to the second floor. There was only one apartment door on the second floor. They knocked and a woman answered through the closed door. They told her they were the police and they were looking for BeeBee. She opened the door and pointed to the back of the apartment. The detectives entered and confronted five or six men in one of the bedrooms. They conducted a pat down search of each man and asked their names. Eventually, Henson admitted he was BeeBee. He was handcuffed, arrested, and taken to the police station. The other men were also brought to the station.

Henson’s witnesses for the motion to quash hearing were those people who were in the apartment when the police arrived. Henson’s aunt and uncle, Eafter and Robert Wofford, lived in the apartment with four of their children. Eafter Wofford testified that her cousin, Fred Williams, left her apartment at approximately 11:55 p.m. to go to the grocery store and that after he left, her son, Larry, received the telephone call from Hardiman. Larry testified that Hardiman asked whether BeeBee was there. Larry asked him to hold on but Hardiman said, “Just tell him to give himself up. They are coming to get him,” and hung up the telephone.

Williams testified that when he went down to the front door of the apartment building and opened it, he saw a man with a gun who said, “Don’t move or I’ll blow your head off.” Williams closed the front door and ran back up the stairs and into the apartment.

Eafter Wofford testified that two to three minutes after Williams returned, there was a knock on the door. When she asked who was there, a man said, “Open the door.” This exchange occurred two or three more times until the man said, “Police. If you don’t open this door, I’m going to kick it down.” She opened the door and three plainclothes police officers entered the apartment with their guns drawn. They asked her the location of the man who ran up the stairs and into the apartment, and she called for Williams. The police handcuffed Williams and asked who BeeBee was. Henson testified he identified himself as BeeBee and an officer put a gun to his head, handcuffed him, and called him obscene names. Henson was taken to the police station.

The trial court found that based on the testimony presented at the motion to quash hearing, exigent circumstances allowed the police to arrest Henson without a warrant.

When exigent circumstances are present, the police can enter a private residence to arrest a suspect for a felony without a warrant. (See Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) As the Illinois Supreme Court has stated, “Payton and Steagald combined teach us that the police should, absent exigent circumstances, seek either an arrest warrant or a search warrant when they plan to arrest a suspect in any dwelling.” (Emphasis in original.) (People v. White (1987), 117 Ill. 2d 194, 210, 512 N.E.2d 677, 682.) In the present case, the trial court did not make a specific ruling as to whether Henson was arrested in his home. Both parties argue the point; however, it is irrelevant whether Henson was arrested in his home or that of a third party because the trial court found exigent circumstances were present. See People v. Hernandez (1982), 105 Ill. App. 3d 501, 434 N.E.2d 532.

The following factors are relevant in determining whether exigent circumstances existed: (1) whether the crime under investigation was recently committed; (2) whether there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) whether a serious offense was involved, particularly a crime of violence; (4) whether there was a reasonable belief that the suspect was armed; (5) whether the police officers were acting on a clear showing of probable cause; (6) whether there was a likelihood that the suspect would escape if he was not quickly apprehended; (7) whether there was strong reason to believe the suspect was in the premises; and (8) whether the police entry was made peaceably, although made without consent. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.) The guiding principle is whether the police officers acted reasonably based on the facts that were known to them at the time. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369.) The trial court’s finding with regard to a motion to quash arrest will not be disturbed on appeal absent manifest error. People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.

Defendant urges this court to find that the trial court erred in finding that exigent circumstances justified his warrantless arrest, relying on People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677. In White, two murders were committed on August 12, 1982. On August 19, two detectives were assigned to investigate the murders. Based on information contained in police reports, they attempted to locate defendant but were unsuccessful. On August 20, the detectives went off duty and did not resume their investigation until August 23. Apparently during the period the detectives were off duty, no other police officers were assigned to continue the investigation. On August 23, the detectives learned defendant was staying at his brother’s apartment. Without the brother’s consent, the detectives entered the apartment with their guns drawn. They spoke with defendant for several minutes and allowed him to speak with his mother, who urged him to go with the police and tell the truth. Defendant agreed to go with the officers and was not placed in handcuffs. Defendant was not formally placed under arrest until he was in custody for 45 hours.

The Illinois Supreme Court in White found that under those circumstances, exigent circumstances did not exist relying on the following facts. Although the police learned of defendant’s involvement immediately after the murders, he was not arrested until two weeks later. Also, the investigation was unnecessarily delayed three days because the officers were off duty. Additionally, the State’s claim that the police believed defendant was dangerous was contradicted by the fact that the police did not place defendant in handcuffs when they took him to the station.

The case at bar involves materially different facts than presented in White. Henson was arrested approximately 28 hours after the crime occurred, and the police learned of Henson’s involvement approximately four hours before he was arrested. The record establishes that detectives were continuously investigating the crime immediately after it was committed. The crucial distinction is that the detectives in the present case saw a person whom they believed was Henson attempt to flee from them and back into the apartment. Additionally, when the police found Henson, he was immediately arrested and placed in handcuffs.

Defendant focuses on four factors enumerated in White to support his argument that the trial court erred when it found exigent circumstances justified his arrest. First, he argues there was an unnecessary delay from the time police officers had probable cause to arrest Henson until the time the arrest took place. (See People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.) There was a span of approximately four hours from the time Henson was implicated in the crime until he was arrested at midnight. The police learned of his location at approximately 11 p.m. The exigent circumstances arose when the officers saw a man they believed was Henson run back into the apartment building. At that point, immediate action was justified and the police officers were not required to obtain a warrant before entering the premises.

Second, defendant claims there was no evidence that he was armed. However, both a knife and gun were used in the crime and only the gun was recovered by police prior to defendant’s arrest. The violent nature of the crime coupled with the fact that the knife was not yet recovered supports the likelihood that defendant was armed.

Third, defendant claims that there was no evidence he was likely to escape; however, after Hardiman telephoned the apartment, the police encountered a man whom they believed was Henson flee from them.

Fourth, defendant argues the police officers’ entry into the apartment was not peaceful. The police forced open the entry door on the street level to the apartment building only after they saw a man they thought was Henson flee. When they reached the apartment on the second floor, they knocked on the door and announced their office. The testimony was conflicting as to whether the police threatened to kick down the door. The police entered with their guns drawn. Henson relies on People v. Wormack (1980), 91 Ill. App. 3d 169, 414 N.E.2d 177, where the reviewing court disagreed with the State’s claim that exigent circumstances justified an entry into defendant’s home when the police were investigating an armed robbery. The court found in part that it was unreasonable for the police to forcibly open an outer door to an apartment building at 2 a.m. Wormack can be distinguished because here the crime under investigation was much more serious and involved violence. Additionally, in the present case the police officers saw the suspect flee from them into the apartment building. We believe the testimony established the police entered the apartment as peacefully as was reasonably possible under the circumstances.

Although Henson did not dispute these points, the consideration of the remaining factors enumerated in White also leads to the conclusion that exigent circumstances were present. First, the crime was committed only 28 hours prior to Henson’s arrest. Second, the crime was violent. Third, the police had probable cause to arrest Henson based on information that the gun found on the scene was connected to Martin and that Martin and Henson were together immediately prior to the incident. Henson returned to Hardiman’s apartment approximately one-half hour after the intruders left the crime scene. At that time, Henson was looking for Martin and appeared to have blood on his pants. The police knew there were three offenders involved. The physical descriptions of two offenders obtained from the victims matched the descriptions of Henson and Martin that Mrs. Martin and Hardiman gave the detectives. Fourth, based on information from Hardiman, the police had a strong reason to believe that Henson was on the premises.

Accordingly, we believe a review of the testimony establishes that the trial court’s finding that exigent circumstances existed was not manifest error.

MARTIN’S MOTION TO QUASH ARREST AND SUPPRESS STATEMENTS

On appeal, Martin argues the trial court wrongfully denied his motion to quash arrest and suppress statements; this issue was not raised by his public defender but rather by Martin in a pro se brief. The arguments raised in the brief, however, only relate to the motion to suppress statements and not to the motion to quash arrest. Martin argues his statement should be suppressed because he was beaten by police and denied the opportunity to speak with an attorney.

At the hearing on the motion, Martin testified he was arrested by at least 10 police officers in plain clothes who told him he was going to die. He was taken outside and beaten. He was beaten with a flashlight in the police car before being taken to the station. When he arrived at the station, he asked the police officers if he could make a telephone call but he was hit in the mouth. He was placed in a small room and handcuffed to the wall when several officers came in and beat him. Later, several officers returned, forced Martin to remove his clothes, and questioned him about “certain scratches” and “body marks.” He was again beaten until he gave an oral statement concerning the incident. The officers returned his clothes, and an assistant State’s Attorney interviewed him. He gave an oral statement but when he refused to sign a written statement, the police officers beat him again. Martin testified that during this time, he was not allowed to telephone an attorney.

On cross-examination, Martin testified he was beaten over a period of hours and was struck in the head and other parts of his body but never in the face. At some points in his testimony, Martin claimed there were marks on his body as a result of the beatings and at other points he stated the officers did not leave marks. The following morning after he was arrested, Martin requested medical attention. He told a paramedic that the police beat him and the paramedic gave him Tylenol. Martin claims the paramedic did not examine him prior to giving him medication. Martin also admitted that prior to being taken into police custody he gave substantially the same statement to his mother and to his friend Larry Larue.

The State presented witnesses who denied Martin’s allegations. Martin was arrested on December 19, 1984, at approximately 2:30 a.m. Detective Fred Stone, one of the arresting officers, testified Martin was read his Miranda rights at the scene and when he was interviewed at the station. Detectives Carl Schmitt and Dennis Gray drove Martin to the police station in an unmarked police car. At the police station, Detectives Schmitt and Stone informed Martin of his Miranda rights and Martin indicated he wanted to talk. He gave the detectives an oral statement concerning the incident.

Detectives Stone, Schmitt, and Gray testified that they did not beat Martin or coerce him with psychological pressure. None of the three detectives slapped defendant with their fists, beat him with a flashlight, or threatened him. Neither the detectives nor anyone in their presence forced Martin to strip naked or slapped his genitals. There was no written statement prepared and Martin was not beaten for refusing to sign one. Stone, Schmitt, and Gray testified Martin never asked to consult with an attorney. Schmitt testified that Martin’s shirt and blue jeans were removed for evidence, they were inventoried and then returned to him. Stone testified the police required Martin to open his pants because they had information that one of the men was scratched in the attack.

Richard Schwind, an assistant State’s Attorney, testified he interviewed Martin at approximately 4 a.m. with a detective present. He informed Martin of his Miranda rights, which Martin said he understood, and Martin gave him an oral statement. Martin, however, did not want to sign a written statement. Schwind asked Martin whether he was mistreated and he answered he was not. Schwind also testified that Martin stated he was “feeling fine.” Schwind denied that anyone beat Martin or used psychological pressure on him and denied that Martin requested an attorney.

The trial court, in denying the motion, focused on several factors: each police officer and the assistant State’s Attorney denied any coercion, there was no physical evidence to substantiate Martin’s claim he was beaten, and Martin previously, gave his mother and Larry Larue substantially the same statement he gave to police.

For a confession to be admissible as evidence, the trial court must determine that it was made voluntarily without compulsion or inducement. (People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.) The State must prove by a preponderance of the evidence that a defendant’s confession was voluntary. (People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123.) On a motion to suppress, it is the trial court’s duty to resolve conflicts in evidence and determine the credibility of the witnesses. (People v. Clements (1985), 135 Ill. App. 3d 1001, 482 N.E.2d 675.) The trial court’s finding that defendant’s confession was voluntary will not be disturbed on appeal unless contrary to the manifest weight of the evidence. People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949.

From our review of the testimony, the trial court was presented with conflicting evidence as to whether Martin’s statement was voluntary and whether Martin requested the opportunity to consult with an attorney. The only evidence of physical coercion was Martin’s testimony. There was no medical corroboration presented that Martin incurred any injury although he requested medical attention. Each of the State’s witnesses denied Martin’s claim of coercion. When defendant’s testimony is the only evidence of coercion and the State’s witnesses deny coercion, the trial court is in the best position to evaluate the credibility of the witnesses. (People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, quoting People v. La Frana (1954), 4 Ill. 2d 261, 122 N.E.2d 583.) Each of the State’s witnesses also denied that Martin requested an attorney. It was the trial court’s determination that the State’s witnesses were credible. We will not disturb that finding as it was not against the manifest weight of the evidence. Martin’s motion to suppress statements was properly denied.

JONES’ MOTION TO QUASH ARREST AND SUPPRESS STATEMENTS

Jones argues the trial court improperly denied his motion to quash arrest. The motion was based on Jones’ contention that the police deceived his mother into believing they had an arrest warrant for Jones, thereby gaining entry into their home to arrest Jones. Jones argues that based on the misrepresentation, the consent to enter was invalid.

Jones presented two witnesses at the hearing on the motion, himself and Detective Thomas Johnson. Jones testified that on December 19, 1984, he was at home, where he lived with his mother and two sisters. At approximately 5 a.m., Jones heard someone “beating” on the door to the apartment. He was sleeping on the couch, which was 25 feet from the door. Jones’ mother went to the door and asked who was there. Police officers identified themselves and she opened the door. Jones testified an officer told his mother they had a warrant for his arrest and he saw the officer reach in his coat, pull out some papers, and put them back in his coat. The officers then “rushed” to the couch where Jones was, put pistols to his head, and handcuffed him.

Detective Johnson testified that he was with an unspecified number of other detectives when Jones was arrested. They knocked on the door to Jones’ apartment and identified themselves as police officers. When Jones’ mother opened the door, they told her they were looking for Charles Jones. She told them to come in and motioned to the couch where Jones was sleeping. The officers placed Jones under arrest. Johnson admitted they did not have an arrest warrant; however, the State did not question Johnson as to whether he or any of the other officers told Jones’ mother they had an arrest warrant. After the arrest, Jones’ mother signed a consent-to-search form and certain evidence was recovered from the apartment.

After the defense presented its witnesses, the State moved for a directed finding, arguing that defendant did not meet his burden on the motion. The trial court granted a directed finding and therefore, it did not require the State to present evidence on the motion to quash.

On appeal, Jones argues that his unrebutted testimony established the police deceived his mother into believing they had an arrest warrant. He contends his testimony was unrebutted because Detective Johnson was never asked whether, the officers told Jones’ mother they had an arrest warrant. Jones argues that because the prosecution failed to rebut his testimony, the trial court should not have disregarded his testimony. As a result, Jones argues his arrest should be quashed and his statements and the property recovered from his apartment should be suppressed in a new trial. In response, the State argues that the evidence established Jones’ mother voluntarily consented to the entry and that the trial court could properly disregard defendant’s testimony because it was not credible.

A warrantless entry into a person’s home to effectuate an arrest is presumptively unreasonable (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371); however, it can be justified by voluntary consent to enter given by a person who has control over the premises (People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608). Whether consent is voluntary is determined by the totality of the circumstances. (People v. Turner (1986), 143 Ill. App. 3d 417, 493 N.E.2d 38.) The State has the burden of proof when it relies on voluntary consent to justify a warrantless entry and it must establish “more than acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968), 391 U.S. 543, 549, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792.) “[I]t is the trial court’s function to determine the credibility of the witnesses and to resolve conflicts in the evidence.” (People v. Turner (1986), 143 Ill. App. 3d 417, 424, 493 N.E.2d 38, 42.) The trial court’s finding with regard to a motion to quash arrest will not be disturbed on appeal absent manifest error. People v. Staehelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984.

In Bumper, which Jones relies on, the defendant was arrested in his home, where he lived with his grandmother. Defendant moved to suppress evidence, and at the hearing, defendant’s grandmother testified that four police officers came to their house and one of them said they had a search warrant. She told them, “Go ahead.” Defendant’s motion to suppress was denied. On appeal, the United States Supreme Court held that a search cannot be lawful on the basis of consent when the consent was obtained only after police officers asserted they had a search warrant.

In People v. Peck (1974), 18 Ill. App. 3d 112, 309 N.E.2d 346, which Jones also relies on, defendant was the only witness to testify at the hearing on his motion to suppress statements. He testified he gave his statement to police after they threatened him and promised him leniency. His testimony was unrebutted. Without presenting evidence, the State requested the trial court to deny the motion. The trial court found defendant’s testimony was not credible and denied his motion to suppress without requiring the State to present evidence. On review, the appellate court reversed, finding it was improper for the trial court to disregard defendant’s uncontroverted testimony.

In the present case, Jones testified he heard the police tell his mother they had a warrant for his arrest and he saw an officer pull out papers from his coat. Detective Johnson testified the police did not have an arrest warrant. The State, however, did not ask Johnson whether he or any other officer falsely represented to Jones’ mother that they had an arrest warrant. The State argues that Jones’ testimony was not credible, and therefore, it could properly be disregarded. However, Jones presented sufficient evidence to overcome a motion for a directed finding. His unrebutted testimony would justify quashing his arrest, and therefore, it was improper for the trial court to grant the State a directed finding on the motion. (See People v. Peck (1974), 18 Ill. App. 3d 112, 309 N.E.2d 346.) The State should have been required to present evidence in support of its claim that the consent to enter was given voluntarily. Accordingly, Jones’ convictions must be reversed and remanded for new trial, at which time defendant’s motion to quash his arrest may be renewed. Should defendant Jones’ motion to quash be denied on remand, new judgments of convictions are to be entered on all counts except for one count of attempted murder. Despite defendant’s argument that this court quash his arrest, the record before us presents insufficient evidence to support such a finding.

Except for one count of attempted murder discussed later in this opinion, we note that the evidence presented at trial was sufficient for the trier of fact to find Jones guilty beyond a reasonable doubt. Our determination that the evidence was sufficient removes the risk of subjecting Jones to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

II

Henson contends the admission of bloodstain identification testimony based on the process of electrophoresis denied him a fair trial. At trial, the State presented a microanalyst who testified as to tests she performed on the victims’ and defendants’ blood samples. On behalf of each defendant, Jones objected to the admission of electrophoresis test results arguing the process was unreliable. The court overruled the objection. The microanalyst then testified, in part, that based on electrophoretic tests, blood found on Henson’s shoes was consistent with Mrs. L.’s blood and that a vaginal swab taken from Mrs. L. was consistent with Henson’s blood.

Henson contends the electrophoresis test is unreliable and should not have been admitted at trial, relying on this court’s opinion in People v. Harbold (1984), 124 Ill. App. 3d 363, 381, 464 N.E.2d 734, 748, where this court stated:

“We cannot hold that electrophoretic detection of genetic markers in field conditions is unreliable as a matter of law, but we believe that some questions as to scientific acceptance of the technique remain unanswered in this record and in the case law.”

We do not believe our holding in Harbold supports Henson’s contention that the evidence of bloodstain analysis based on the process of electrophoresis was inadmissible. Harbold clearly states that this court was not prepared to find electrophoresis unreliable as a matter of law. We note that in People v. Partee (1987), 157 Ill. App. 3d 231, 261, 511 N.E.2d 1165, 1185, which was written three years after Harbold, the court analyzed the concerns announced in Harbold and held, “electrophoresis is generally accepted by forensic scientists as a reliable method of detecting genetic markers in blood and is therefore admissible in a court of law.” (See also People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) Accordingly, there is no support for finding that evidence of electrophoretic tests results is inadmissible as a matter of law and Henson’s argument is without merit.

Ill

Each defendant was convicted of the attempted murders of Mr. L. and Mrs. L. Each defendant argues he was not proven guilty beyond a reasonable doubt of the attempted murder of Mr. L. The State responds that the intent to kill was established verbally by defendants’ threats and by the brutal character of the assault on Mr. L. Neither Henson nor Jones raised this issue in his motions for new trial; however, the issue was raised in Martin’s motion for new trial, and therefore, the issue was considered by the trial court. We agree with defendants and reverse one count of attempted murder against each defendant.

To establish attempted murder, the evidence must prove that, beyond a reasonable doubt, defendants intended to kill Mr. L. (See People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) The specific intent to kill may be inferred from the circumstances, such as the character of the assault on the victim and the use of a deadly weapon. (People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929.) Intent to commit great bodily harm is insufficient to support a conviction for attempted murder (People v. Winters (1986), 151 Ill. App. 3d 402, 502 N.E.2d 841), and every assault involving serious bodily injury does not necessarily support a conviction for attempted murder (People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270). When a defendant claims he was convicted on insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1.) On review, a criminal conviction will not be reversed unless the evidence presented is so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Helton (1987), 153 Ill. App. 3d 726, 506 N.E.2d 307.

In People v. Thomas (1970), 127 Ill. App. 2d 444, 262 N.E.2d 495, on which defendants rely, a man holding a knife confronted a woman in her apartment. He banged her head against a chest of drawers, hit her in the head repeatedly, and picked at her face with a knife. He then forced her into the bedroom, stabbed her in the shoulder, and raped her. During the attack, the man threatened to kill the woman several times. The man was convicted of rape, attempted murder, robbery, and aggravated battery. On review of the conviction for attempted murder, the court found the evidence was insufficient to establish the mental state for attempted murder.

In the present case, the evidence viewed in a light most favorable to the prosecution established Mr. L. was hit several times in the head with a gun, kicked repeatedly, and one of the defendants stomped on the back of his head several times. Defendants threatened that he and his family would be killed. He also overheard two of the defendants arguing about whether they should kill the family. As a result of the attack, Mr. L. was treated as an outpatient at the hospital. He had several lacerations to the head and a broken nose and his injuries required 25 stitches.

Although Mr. L. suffered serious injuries and defendants threatened his life, we do not believe that any rational trier of fact could have found the evidence presented at trial established defendants intended to kill him. Defendants had a gun and knife in their possession but did not use the knife in their attack on Mr. L. Defendants did not fire the gun but used it to beat Mr. L. The character of the attack on Mr. L. was not of the type that justifies an inference of an intent to kill. Although his injuries were serious, there was no evidence presented that they were life-threatening.

We believe the evidence was insufficient to establish the intent to kill Mr. L. which was necessary to sustain an attempted murder conviction. We therefore reverse one count of the attempted murder convictions against each defendant. The trial court sentenced defendants to a single sentence for their multiple convictions. We cannot speculate as to what weight the trial court gave the attempted murder convictions when sentencing defendants, and, therefore, we remand for resentencing as to Henson and Martin. See People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261; People v. Alejos (1982), 104 Ill. App. 3d 414, 432 N.E.2d 1046, aff’d (1983), 97 Ill. 2d 502, 455 N.E.2d 48.

IV

Next, Martin argues he was not proven guilty beyond a reasonable doubt of aggravated criminal sexual assault of Mrs. L. because there was no evidence that Martin committed the acts, there was no evidence that the defendants planned to commit any crime other than robbery, and he did not learn of the sexual assaults until after they were legally completed. We find this argument is without support in the record.

A defendant may be held accountable for a crime when either before or during the commission of an offense, with the intent to promote or facilitate the commission, defendant solicits, aids, abets, agrees, or attempts to aid another person in planning or committing the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) A defendant can be held accountable for rape (now aggravated criminal sexual assault) when he was aware that the commission of the offense was taking place even though there is no evidence he actually participated in the act. (People v. Tyler (1979), 78 Ill. 2d 193, 399 N.E.2d 975.) In Tyler, defendant was held accountable for rape when he and two others forcibly entered a house and one of the men raped the victim in the bedroom. Defendant was in the living room at the time, and in his statement to police, he stated that he thought the man was raping the victim. Defendant warned the others when a car approached the house. The supreme court found defendant was properly convicted of the rape because he knew the offense was being committed, did not disassociate himself from the crime, and warned the others when a car was approaching the house.

In Martin’s statement, he admitted he left the apartment for a short time to watch out for police. When he reentered the apartment, he saw Henson in the act of raping Mrs. L. and he saw Jones sexually abuse R.L. Martin then proceeded to remove property from the apartment and into Mr. and Mrs. L.’s car. When Jones and Martin left the apartment, Jones told Martin that Henson was “still up messing with the woman.”

The evidence conclusively established that Martin saw the crime being committed, did nothing to disassociate himself, and continued to assist Henson and Jones. Martin’s argument that he could not be held accountable is without support in the record, and, accordingly, he was properly convicted of aggravated criminal sexual assault.

Affirmed in part; reversed in part and remanded for resentencing; and reversed in part and remanded for new trial.

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

      The nickname BeeBee is also transcribed at various points in the record as Bay-Bay and Bebe. There is no dispute that those names refer to Henson. For clarity, we will use the spelling BeeBee.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    ROSE SERIO, Guardian of the Estate of Cosimo Serio, Plaintiff-Appellee, v. EQUITABLE LIFE ASSURANCE et al., Defendants (La Salle National Bank, Intervening Petitioner-Appellant).
    First District (4th Division)
    No. 1—87—2879
    Opinion filed May 4, 1989.
    Rehearing denied June 28, 1989.

      Biggam, Cowan, Marquardt & Lunding, of Chicago (Charles M. Biggam, Jr., and Michele Kocian Parthum, of counsel), for appellant.
    Robert A. Rosin & Associates, of Chicago (Robert A. Rosin, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Intervening petitioner La Salle National Bank (hereinafter La Salle) appeals from an order of the circuit court of Cook County denying its petition to intervene. The sole issue for review is whether the trial court erred in denying La Salle’s petition to intervene.

We reverse and remand.

Irving Drobny was retained to represent Cosimo Serio for injuries he sustained on June 5, 1978. The action was filed on June 5, 1980, by the law firm of Spivack, Drobny & Norman. Drobny had a written retainer agreement with Serio to receive a fee equal to 40% of plaintiff’s total recovery.

In September 1982, Drobny referred the Serio case to the law firm of Joseph A. Rosin & Associates, Ltd. (now known as Robert A. Rosin & Associates, Ltd.) with the consent of plaintiff. Rosin filed an appearance in the case with the circuit court of Cook County on October 12, 1982.

Around 1982, Drobny was indicted by a Federal grand jury in Austin, Texas. He was tried and convicted sometime in July 1983. Thereafter his license to practice law in Illinois was revoked.

La Salle obtained judgments against Drobny on January 31, 1983, and May 10, 1984, in the amount of $116,726.98. After citation proceeding on July and August 16, 1984, La Salle, as judgment creditor of Drobny, obtained a restraining order issued by Judge Irwin Cohen. The order enjoined all parties to the Serio lawsuit and/or attorneys from disbursing any attorneys’ fees or costs that may be due to Drobny by reason of his representation in the Serio case. The orders also provided that the court would maintain jurisdiction over the matter until the Serio case was resolved by judgment or settlement.

Subsequently, the Serio case was tried before Judge Warren Wolf-son on February 22, 1985, and a judgment was rendered in favor of plaintiff in the sum of $601,150. Following a petition for leave to appeal, the matter was returned to trial before Judge Philip Fleischman. Prior to trial the case was settled in July 1987 for the sum of $465,000. Thereafter, plaintiff filed her “Petition For Order Approving Settlement and Distribution of Settlement Proceeds.”

Pursuant to the orders rendered by Judge Cohen, La Salle received notice of the petition. La Salle appeared before Judge Fleischman and filed its objections to plaintiff’s petition. Arguments were heard on July 22 and 31, 1987, concerning Drobny’s entitlement to fees and the jurisdiction of Judge Cohen; however, no order was entered.

On August 4, 1987, La Salle, upon notice to all parties, presented its petition to intervene. Plaintiff filed an affidavit by Drobny, executed in July 1987, that stated in pertinent part: “In October 1983, the undersigned for good and valuable consideration released and waived all interests of any kind, and nature, including any right to attorney’s fees or reimbursement of costs or expenses or any other outlays of money, to Joseph A. Rosin and his law Firm.”

On August 7, 1987, Judge Fleischman entered an order granting plaintiff’s request for approval and distribution of the settlement proceeds and denied La Salle’s petition to intervene. The trial court found that Drobny had executed a release of attorney’s lien or waiver and that there was no money due and owing to him.

Subsequently, on July 13, 1987, La Salle filed an amended petition to intervene and a motion to vacate the August 7 order approving the distribution of settlement proceeds. The petition and motion were stricken.

In accordance with Judge Fleischman’s order, plaintiff brought a petition before Judge Cohen for dissolution of the injunction he had previously entered in the citation proceedings. The dissolution was granted on August 28, 1987. This appeal followed.

La Salle’s sole contention is that the trial court erred in denying its petition to intervene as a matter of right. La Salle argues that it has an interest in the distribution of the settlement proceeds, that its interest is inadequately represented by the existing parties, and that it would be adversely affected by the court’s approval of the distribution.

Section 2 — 408(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(a)) (hereinafter the Code) sets forth three alternative situations whereby a person is allowed to intervene as a matter of right. They are as follows: “(1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.”

The purpose of intervention is to expedite litigation by disposing of a whole controversy among individuals and/or entities involved in the same cause of action and to avoid multiplicity of actions. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487.) Section 2 — 408 of the Code is designed to be liberally construed. (Mensik v. Smith (1960), 18 Ill. 2d 572, 590; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 877.) Accordingly, the intervener need not show a direct interest in the suit; however, he must establish an enforceable or recognizable right and more than a general interest in the subject matter of the suit. Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 382; Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487.

As stated in City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App. 3d 140,144:

“[Intervention as of right should be distinguished from permissive intervention insofar as the exercise of discretion is concerned. The statute establishes a minimal ‘commonality’ requirement for permissive intervention, and expressly commits the decision whether to allow intervention or not to ‘the discretion of the court.’ [Citation.] With respect to intervention as of right *** [w]e believe that the trial court’s discretion is limited to determining timeliness, inadequacy of representation and sufficiency of interest; once these threshold requirements have been met, the plain meaning of the statute directs that the petition be granted.”

There is no issue as to timeliness. The record reveals that after the citation proceedings, Judge Cohen stated in his order that La Salle had a judgment against Drobny in the amount of $88,561.61, plus costs. The judge further noted “that the Judgment Debtor, an attorney, is or may be entitled to receive fees and expenses by reason of his representation of Mr. Cosimo Serio in a lawsuit presently pending in the Circuit Court of Cook County.” Judge Cohen ordered respondents, agents and attorneys in the Serio case, restrained and enjoined from paying over to Drobny any sums of money.

As conceded by plaintiff, La Salle’s interest constituted a lien. Although Drobny was disbarred, he is entitled to the reasonable value of his legal services rendered until his disbarment. (Harris Trust & Savings Bank v. Chicago College of Osteopathic Medicine (1983), 116 Ill. App. 3d 906, 909-10.) Thus, we find that La Salle had an enforceable right that satisfies any concept of standing so as to be an appropriate party for intervention.

La Salle also maintains that it was entitled to intervene as a matter of right. La Salle argues that it qualified under subsections 2— 408(a)(2) and 2 — 408(aX3) of the Code (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 408(a)(1), (a)(3)). Subsection 2 — 408(aX2) allows a person to intervene when its interest is or may be inadequately represented by the existing parties and he will possibly be bound by a judgment in the case.

The record shows that during trial Rosin submitted to Judge Fleischman an alleged affidavit prepared by Drobny waiving any right to attorney fees and a purported release of attorney’s lien signed by Drobny. Furthermore, before making his ruling, Judge Fleischman heard the following comments from Mr. Rosin:

“So, against his [Drobny’s] settlement, my office has advanced him additional monies to live on.”
“I have given this court Irving Drobny’s own affidavit signed while he’s incarcerated in a penitentiary in Texas, witnessed by his parole officer, stating that Irving Drobny has no right or interest in the case.”
“If the court wants, I’ll show you checks, judge, that I gave to Irving Drobny.”
“Judge, I’ll show you checks that are voluminous checks. The last check that I gave this man was on October 19. Prior to that he had given me an assignment. He owed me $107,000. He was in trouble.
I’ll show you [a] check for $50,000 I paid his attorney down in Texas to defend him.”
“I’m not under oath, but I am an officer of this court [a]nd I am telling you, judge, that I gave him an additional $10,000 in October of [1983]. He signed the release of lien because we knew — he knew and I knew that if he was convicted that the monies that were paid to him would exceed any potential recovery in this case.”
“Here, Judge, here’s a copy of a check for $50,000.”
“By the way, judge, I am just going to hand this to the court for your perusal. This is the check for $10,000 that was paid to him in October of 1983.”
“So, I want a ruling from this court from the evidence that we have here [a]nd the only evidence that this court actually has for the record, is the releases, the affidavits, my statements that I gave to this court.”

The court allowed Mr. Rosin to make the above comments and submit documents on his behalf without affording La Salle the opportunity to test their veracity through cross-examination, other conflicting testimony or documents. It is clear to this court that La Salle’s interest was not adequately represented by the existing parties in the Serio case. Moreover, La Salle was bound by Judge Fleischman’s finding that Drobny was not entitled to attorney fees and his order approving distribution of the settlement proceeds. Once presented to Judge Cohen, he had to accept the finding and order as an adjudication on the issue of fees and lift the restraining order as requested by the parties. Thus, we find La Salle was entitled to intervene as a matter of right under subsection 2 — 408(a)(2) of the Code.

Subsection 2 — 408(a)(3) of the Code allows a person to intervene as a matter of right if he will be adversely affected by the disposition or distribution of the property subject to the court’s control. Clearly, La Salle falls within the parameters of this subsection. As mentioned above, Judge Fleischman found that Drobny was not entitled to attorney fees and approved the proposed settlement and distribution of the proceeds. Obviously, this decision adversely affected La Salle’s rights in enforcing its judgment against Drobny. Consequently, we find that La Salle has established that its interest is materially affected by a disposition in the Serio case.

Inasmuch as we find that the trial court erred in denying La Salle’s petition to intervene as a matter of right, it is not necessary to consider La Salle’s additional claim that the trial court abused its discretion in denying it permissive intervention.

For the foregoing reasons, the order of the circuit court of Cook County is reversed and remanded for a formal hearing on La Salle’s petition to intervene.

Reversed and remanded, with directions.

LINN and McMORROW, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALLEN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—85—2566
    Opinion filed May 23, 1989.

      Steven Clark and Sue Augustus, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Douglas Bank, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

After being indicted for conspiracy and solicitation to commit murder, and murder, defendant James Allen was convicted of the conspiracy and murder charges and was sentenced to natural life imprisonment.

Defendant raises the following issues on appeal: (1) whether the trial court committed reversible error in allowing him only seven peremptory challenges, instead of 14, after he had waived a jury for the death penalty sentencing phase of the trial; (2) whether the trial court erred in denying his motion for a Franks hearing after defendant had made a substantial preliminary showing that the affiant knowingly made a false statement in the affidavit for a warrant; (3) whether he was denied a fair trial because of the court’s improper admission of other crimes evidence; (4) whether it was improper to deny defense counsel’s motion to withdraw at sentencing and to refuse to appoint other counsel after defendant had filed, pro se, a motion for a new trial alleging ineffective assistance of counsel; and (5) whether defendant’s conviction and sentence for conspiracy must be vacated in view of his having been convicted of the principal offense.

Defendant was indicted together with Charles Ashley and Henry Griffin on the above-mentioned charges. Before trial, defendant made a motion to quash arrest and suppress certain statements, alleging the improper issuance of a search warrant, and requested a Franks hearing to determine the veracity of the affiant. The trial court denied defendant a hearing on the motion and ordered that the trials of the three defendants would proceed simultaneously, although separately: two juries were selected to try Griffin and the defendant herein, while Ashley elected to be tried by the judge. Prior to jury selection, defendant waived a jury for the death sentencing phase of the proceeding, in connection with which the court ruled that the defendant was entitled. to only seven peremptory challenges. The jury found him guilty of murder and conspiracy, and the judge sentenced him to natural life in prison. Defendant now appeals his conviction and sentence.

Three assistant State’s Attorneys and six defense counsel participated in the trial, which was conducted before a judge and two juries in the same courtroom. The testimony of the witnesses established the following.

Neil Cohen, an assistant State’s Attorney, took part in Operation Camelot, a coordinated effort to investigate the drug dealings of Charles Ashley, a major drug dealer on Chicago’s south side. In furtherance of this investigation, the State’s Attorney’s office had a number of grand jury subpoenas served on individuals who frequented the area where Ashley’s drug operation was extant. The Chicago police department also executed a number of search warrants and two arrest warrants — one for Ashley and one for Carl Gibson — on June 14, 1984. After Cohen learned on June 21, 1984, that Gibson had been slain, he met with Sherman Overstreet, who then agreed to testify against Ashley.

John Blackman, a Chicago police officer, discovered Gibson’s body on the 73rd Street exit ramp of the Chicago Skyway on June 21, 1984. It was stipulated that Gibson died of multiple gunshot wounds.

Overstreet admitted that he was convicted of murder and of retail theft, that he had multiple charges of delivery of heroin pending against him, and that in exchange for his testimony at trial and for pleading guilty to one of the pending charges, he was sentenced to time served and was relocated. On June 21, 1984, Overstreet was living in an apartment building owned by Ashley, for whom he had worked for the previous nine years as a drug runner, delivering heroin and cocaine. Overstreet knew defendant as being from the area of 65th and Ashland and had seen him with Ashley a few times. On June 10, 1985, Overstreet was living in witness quarters, where he had a conversation with defendant in which defendant told Overstreet that he was first offered a “contract” by Ashley, but when he refused it, Griffin accepted it. Defendant further told Overstreet that he drove the murder car and that he was supposed to have obtained the murder weapons. Defendant and Griffin picked Gibson up at 64th and Maryland, drove to 75th Street, and while defendant waited in the car, Griffin and Gibson went into an apartment. When they returned to the car, Griffin got in the back seat and Gibson got in the front passenger seat. Defendant then began driving southbound on the Skyway, but at the 98th Street toll plaza, he turned the car around and began heading north. At this point, Griffin shot Gibson four times. Defendant left the Skyway at the 73rd Street exit, stopped the car on the exit ramp, jumped out of the car and ran home. Defendant also told Overstreet that he wore tight driving gloves so as not to leave any fingerprints, that he was part of the contract, and that he was angry because he did not receive payment for his participation in the murder.

Darryl Moore worked as an “enforcer” for Ashley for a number of years and knew defendant and Griffin. Moore admitted that he sold drugs, killed people for money, that he had previously been convicted of rape and two robberies, and had an armed robbery charge and a drug case pending against him. In exchange for his testimony, the armed robbery charge was reduced to robbery, for which he received time served; his drug case was dismissed, he was given a grant of immunity on a murder charge, and he was also relocated.

Moore met with Ashley in the latter’s grocery store at 65th and Maryland, where Ashley asked him if he would kill Carl Gibson for $200 and three ounces of narcotics. Moore responded that he would do it for $10,000. When Ashley did not react, Moore lowered his price to $5,000, and after Ashley refused, Moore suggested that Griffin might be interested.

On June 20, 1984, Griffin came to Moore’s apartment and told Moore that he had a contract from Ashley on Gibson; he asked Moore if he would assist him and Moore refused. On June 21, 1984, Griffin and defendant came to Moore’s apartment and there Griffin informed Moore that the contract on Gibson had been easy, that defendant drove the car and that he (Griffin) shot Gibson on the Skyway.

On June 29, 1984, defendant came to Moore’s apartment, complaining that he had not been paid for the work he had done for Ashley. Defendant asked Moore if he would help kidnap Ashley and hold him for ransom. After Moore refused, defendant left with two other men who were at Moore’s apartment. Moore also admitted that he knew Arthur Stringer, but he denied ever walking down the street with Stringer, seeing the defendant, pointing a finger at defendant and saying, “I’m going to get that nigger if it’s the last thing I do.”

On August 9, 1984, Moore was taken to the State’s Attorney’s office, where he made a tape-recorded phone call to Griffin in which the two discussed the disposal of the gun and the car used in the victim’s murder. They also discussed how Griffin had been offered the contract and how he and the defendant carried it out. While they were talking, Assistant State’s Attorney Cohen was listening on another phone, and police officers from the narcotics division were traveling to Griffin’s apartment to arrest him. Griffin was found in the bathroom with the telephone in his hand; Cohen heard him being arrested over the phone.

Defendant and Griffin were both arrested on August 9, 1984, and placed in separate interview rooms. Cohen spoke first with defendant and later with Griffin. After defendant waived his Miranda rights, he informed Cohen that Griffin had approached him and had offered him money if he would help lure someone out of a building to be killed, but that he refused Griffin’s offer. Defendant admitted to Cohen that on June 20, he and Griffin drove to 93rd and Stony Island, where Griffin left the car to get the victim, Carl Gibson. When Griffin returned, defendant was in the driver’s seat; Gibson got in the front seat and Griffin sat in the back.

Defendant related to Cohen that he drove onto the Skyway southbound but turned around at the toll plaza and went north. Before he exited at 73rd Street, defendant heard three or four shots and saw Gibson slump forward. He drove halfway down the exit ramp, stopped the car, and when he jumped out, Griffin got out and pointed a gun at him. Defendant ran away and went home. Defendant told Cohen that fear prevented him from going to the police.

On cross-examination, Cohen testified that the defendant had stated that he did not know that Griffin was going to shoot Carl Gibson, that Ashley and Gibson forced him to put his fingerprints on a murder weapon later used to kill a man named “Doc” who ran a drug store in Ashley’s neighborhood, and that Ashley threatened defendant and defendant’s family, warning him not to incriminate Ashley in the Gibson murder.

For the defense, Arthur Stringer, after acknowledging that he had been convicted of armed robbery and murder and was currently imprisoned for a parole violation, testified that in mid-1983, he was with Moore when they saw defendant cross the street. Moore pointed at defendant and told Stringer that defendant had embarrassed him once and that he would get even with him if he had the chance. In August of 1984, Moore told Stringer that he had recently gotten out of jail and that defendant was supposed to get set up in the “Skyway murder” although defendant had no knowledge of it.

The jury returned guilty verdicts against the defendant on the conspiracy and murder charges. At the sentencing hearing, the court denied defendant’s pro se motion for a new trial as well as the post-trial motion presented by his counsel. The trial judge also denied the State’s request to sentence the defendant to death. Following arguments, the judge sentenced the defendant to natural life imprisonment on both the murder and conspiracy to commit murder convictions.

I

Supreme Court Rule 434(d) provides in pertinent part as follows:

“A defendant tried alone shall be allowed 14 peremptory challenges in a capital case, 7 in a case in which the punishment may be imprisonment in the penitentiary, and 5 in all other cases.” (107 Ill. 2d R. 434(d).)

Defendant first claims that because he was a defendant tried alone in a capital case after the effective date of Supreme Court Rule 434(d), the trial court committed reversible error in allowing him only seven peremptory challenges, instead of 14, even though he waived a jury for the death penalty sentencing phase. Defendant further analogizes his case to those in which it has been held to be reversible error to deprive a party of his right to exercise all of the peremptory challenges to which he is entitled in the impaneling of a jury. Gulf, Colorado & Santa Fe Ry. Co. v. Shane (1895), 157 U.S. 348, 39 L. Ed. 727, 15 S. Ct. 641; People v. Webster (1935), 362 Ill. 226,198 N.E. 322.

We encounter no difficulty in holding that People v. Wolfe (1986), 144 Ill. App. 3d 843, 494 N.E .2d 670, is controlling here. In Wolfe, two defendants were jointly tried in a capital case, and, as defendant did in the case at bar, prior to trial, they waived a jury for the death penalty hearing. The trial court accordingly allowed each of the defendants only six peremptory challenges, the statutory number allowed at the time in a single trial of two defendants “in a case in which the punishment may be imprisonment in the penitentiary.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4(e).) The statute also provided each defendant 12 peremptory challenges in a capital case. The court in Wolfe, relying on People v. Nathaniel (1981), 103 Ill. App. 3d 610, 431 N.E.2d 1080, reasoned that inasmuch as it was no longer within the province of the jury to sentence the defendant to capital punishment, “the rationale behind the statute granting a greater number of peremptory challenges in a capital case simply does not apply.” Wolfe, 144 Ill. App. 3d at 851.

Defendant insists, however, that Wolfe was incorrectly decided for the very reason that it based its support on People v. Nathaniel (103 Ill. App. 3d 610, 451 N.E.2d 1080). In Nathaniel, the State was uncertain whether the facts of the case qualified it for a sentence of death, and if it did, whether such a penalty would be sought. Consequently, the State requested that the voir dire be conducted under the guidelines of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, but when the trial judge refused to do so, the State did not pursue the issue any further. Although it did not “wholly approve of his procedure” (103 Ill. App. 3d at 615), the appellate court held that since the trial court’s decision not to “Witherspoon” the jury eliminated the possibility that the defendant could receive the death penalty, the matter was not a capital case within the meaning of the statute. Furthermore, the defendant argues, both in Wolfe and in the present case, the jury was being selected to determine the guilt or the innocence of an accused against whom the prosecution could and would seek the death penalty, and even though the jury would not decide whether to impose it, the jury did decide the equally important question of whether the defendant had been guilty of the crime which might warrant the imposition of such a penalty.

Defendant also makes the point that neither Supreme Court Rule 434(d), nor its predecessor statute conditions the defendant’s right to the specified number of peremptory challenges in a capital case on whether or not the defendant elects a jury for the death penalty hearing; rather, the defendant contends, the rule and the former statute make a distinction only between capital offenses and those punishable by imprisonment in the penitentiary. The defendant concludes with the argument that if capital punishment is threatened upon conviction, the case is a “capital” one under a sensible construction of the term as used in the former statute and the present rule. People v. Holmes (1974), 19 Ill. App. 3d 814, 313 N.E.2d 297.

We deem it to be the sheerest form of tautology, yet necessary, to point out that because defendant waived a jury for the death penalty hearing, this was no longer a capital case insofar as the jury was concerned. By any logical interpretation of the terms of Rule 434(d), the number of peremptory challenges allowed to a defendant is unmistakably related to the punishment the jury metes out to him. But here the jury was in no conceivable way involved in determining his punishment, which was by his own request left solely to the judge, and the jury was so informed from the very beginning of the trial. To suggest, as defendant does, that the punishment the trial judge imposes is in some impenetrably obscure way dependent upon the number of peremptory challenges a defendant is allotted under the rule is plainly an absurdity.

Defendant seems also to be propounding to us that a jury divorced from the duty of fixing a sentence is somehow foreclosed from, or at least less prone to, return a guilty verdict in a murder case if he is permitted 14 peremptory challenges as opposed to seven, although he neglects to inform us as to where he finds this gloss. The fact that Rule 434(d) does not contain specific language conditioning the defendant’s right to the specified number of peremptory challenges in a capital case on whether or not the defendant elects a jury for the death penalty hearing does not render Wolfe invalid, for the rationale of the case is implicit and inherent in the rule. Accordingly, we hold that the trial court committed no error in allowing defendant seven, instead of 14, peremptory challenges after he had waived a jury for the death penalty sentencing phase of defendant’s trial.

II

As to his second issue, defendant argues that the trial court erred in denying his motion for a Franks hearing, in support of which he claims to have made a substantial preliminary showing that Detective Pochardo knowingly made a false statement in his affidavit for both the search warrant and the arrest warrant, which were issued by separate judges.

Defendant asserts that pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d .269, cert. denied (1983), 460 U.S. 1040, 75 L. Ed. 2d 792, 103 S. Ct. 1433, the fourth amendment requires that a hearing be held at the defendant’s request if he makes a preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, is alleged to have been included by the affiant in an affidavit for a search warrant and if the alleged false statement was necessary to the finding of probable cause.

Defendant contends that the affiant, Detective Pochardo, swore falsely when he deposed that an informant, Darryl Moore, had previously given him reliable information on 10 separate cases. Defendant maintains that Pochardo lied about the number of occasions he talked to Moore and that he falsely represented the facts of the case that were known to the police at the time. Defendant avers that he thus made the necessary preliminary showing which requires a hearing under Franks and Garcia.

Defendant further asserts that the Franks principle is equally applicable to an arrest warrant. (People v. Hothersall (1981), 103 Ill. App. 3d 183, 430 N.E.2d 1142.) The fact that the search warrant and arrest warrant were signed by different judges, he argues, is meaningless, for in both instances there is a question as to whether there was probable cause for their issuance. It is reasonable to infer, he adds, that Detective Pochardo supplied the judge who signed the arrest warrant with some of the same information contained in his complaint for the search warrant. Accordingly, defendant concludes that he was improperly denied the opportunity to show that since Detective Pochardo had obtained both warrants by the use of false allegations, this case should be remanded for a Franks hearing.

The State responds that the only reason for challenging an affidavit via a Franks hearing is to suppress any evidence obtained under the search warrant and to exclude its use at a trial, and since in the present case there was no evidence obtained as a result of the execution of the search warrant, there was nothing to suppress; therefore, there was no need to hold a Franks hearing. Moreover, the State contends, assuming arguendo that the search warrant was invalid, its taint in no way affected the issuance of the arrest warrant. The search warrant turned up no evidence that was used in connection with the arrest warrant, and the defendant points to nothing that would indicate that the arrest warrant was premised or based upon the accompanying affidavit to the search warrant. Finally, the State argues that inasmuch as a Franks hearing applies only to determining the validity of a search warrant, a Franks hearing is of no relevance in an attack on an arrest warrant.

In light of the fact that the police did not recover any evidence from the search, we hold that it is irrelevant whether the search warrant was valid. Thus, the issue of the trial court’s failure to suppress evidence is moot, and although pursuant to Hothersall, the Franks principle is applicable in the case of a similar attack on an arrest warrant, in the case at bar, the defendant does not provide us with anything in the record to show that the judge who issued the warrant relied upon the questionable affidavit; he merely asks this court to infer that the detective told the judge who issued the arrest warrant at least some of the same things that he included in his affidavit for the search warrant. Since Franks is clear in its requirement that allegations of falsehood be accompanied by an offer of proof, it should go without saying that inferences are not acceptable substitutes. Consequently, the defendant was not entitled to a Franks hearing in regard to the arrest warrant.

Ill

As to his third issue, defendant contends that he was denied a fair trial by reason of the admission of irrelevant other crimes evidence, charging (A) that the State deliberately elicited testimony that he participated in an armed robbery and kidnapping and was a suspect in an unrelated murder — more specifically, that defendant intended to kidnap and rob Ashley; (B) that defendant committed kidnappings of drug dealers for ransom; and (C) that defendant was a suspect in a murder unrelated to the one forming the subject matter of this case. He claims that such testimony was irrelevant, highly prejudicial and denied him a fair trial. We shall discuss these issues seriatim.

A

Defendant complains that the testimony as to the plot to kidnap Ashley and hold him for ransom was not probative of the defendant’s intent or knowledge of the conspiracy to murder Gibson, and that the testimony that he and Moore kidnapped other drug dealers for ransom had on relevance to any of the issues for which he was tired.

Although it is generally true that evidence of other crimes is inadmissible to prove a defendant’s disposition to commit the crimes charged (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360; People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 84, 78 L. Ed. 2d 136, 104 S. Ct. 145, citing People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; see also People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666), evidence of past crimes may be admitted if it is relevant to prove any material fact in issue other than defendant’s propensity to commit a crime, as long as there is a similarity between the other crimes and the offense with which defendant is charged. (People v. Evans, 125 Ill. 2d 50, citing People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 209.) More particularly, evidence which goes to show motive, intent, identity, knowledge, absence of mistake, accident, common scheme or plan or modus operandi may also be received even though it may show the commission of a separate offense. (People v. Evans, 125 Ill. 2d 50, citing People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063; People v. Jordan (1974), 18 Ill. App. 3d 133, 309 N.E.2d 274.) People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, cites a variety of other instances in which evidence of the commission of other crimes or wrongful conduct has been found to be admissible and collects the authorities thereon. Such instances include, among others, evidence relevant to prove absence of an innocent frame of mind and consciousness of guilt. See People v. Crayton (1988), 175 Ill. App. 3d 932, 530 N.E.2d 651.

The State’s theory at trial was that Ashley hired defendant and Griffin to kill Gibson, and when the defendant was not paid by Ashley for his part in the murder, the defendant planned to kidnap Ashley and hold him for ransom in order to collect the money that Ashley owed him, a theory amply borne out by the evidence set forth hereinabove. Indeed, defendant states in his brief filed in this court that “[w]hile the statement that he had not been paid for the murder was relevant to establish participation, the claim that he committed another crime for the supposed purpose of collecting the debt added nothing to the evidence of participation in the murder other than to improperly prejudice Mr. Allen with the taint of another crime.” We disagree with the last part of this statement. Because the evidence complained of was all of one coherent piece, there was sufficient reason for the trial court to have held that since the evidence of the act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and the rule relating to “other crimes” evidence is not implicated, simply because such evidence formed an integral and natural part of the witness’ account of the circumstances surrounding the offenses for which defendant was indicted. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

B

The State claims that its “use of evidence that defendant committed kidnappings of drug dealers for ransom was proper and relevant to show modus operandi to establish that defendant did, in fact, intend to kidnap Ashley and hold him for ransom and that defendant did, in fact, kidnap and murder Gibson.” The State adds that “this is true because the practice of kidnapping a drug dealer for ransom is unique enough to bring defendant’s ‘other crime’ within the modus operandi exception to the general rule prohibiting admission of evidence of crimes other than the one charged.”

Defendant responds that “[t]he modus operandi exception is used to establish the identity of the offender based on unique similar actions of a more specific nature than a particular class of victims as broad as drug dealers,” and adds that “while no specifics were offered as to the prior kidnapping for ransom of drug dealers her, there still are several obvious differences from the crime in question since this was a murder with no ransom sought.”

The court in Kimbrough defined modus operandi and discussed its application as follows:

“Modus operandi means, literally, ‘method of working.’ It refers to a pattern of criminal behavior so distinct that separate crimes or wrongful conduct are recognized as the work of the same person. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, 672.) If evidence of other crimes is offered to prove modus operandi, there must be some clear connection between the other crime and the crime charged which creates a logical inference that if defendant committed one of the acts, he may have committed the other act. This inference of identity does not arise from the mere fact that the crime charged and the other crime share certain common features or marks of similarity, for it may be that these similarities are shared not only by the crime charged and defendant’s other crime, but also by numerous distinct crimes committed by persons other than the defendant. Rather, the inference is created when both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. (People v. Matthews (1985), 137 Ill. App. 3d 870, 875-76.) There must be some distinctive features that are not common to most offenses of that type. (People v. Dickerson (1983), 119 Ill. App. 3d 568, 574, 456 N.E.2d 920, 925.)” People v. Kimbrough, 138 Ill. App. 3d at 486-87.

The rules developed by our courts governing the purposes for which extrinsic evidence of crimes, wrongs, or acts may be admitted do not extend to their being inappropriately pyramided or to a prosecutor’s use of bootstrapping methods in invoking them. The State’s having been permitted to introduce evidence of defendant’s intent to kidnap Ashley as his method of forcing Ashley to pay him for his participation in the murder of Gibson does not call for the creation of a “free-fire” zone allowing the admission of Moore’s testimony that he and the defendant had engaged in “kidnapping drug dealers — we would kidnap for ransom.” The State’s theory at trial, we are compelled to reiterate, was that Ashley hired defendant and Griffin to kill Gibson in order to silence him because he was under an arrest warrant along with Ashley in connection with certain drug-related crimes of apparently great magnitude and that later defendant intended to kidnap Ashley to enforce payment of the promised fee. But it is quite another matter to contend that to that stratum of evidence there may be added another layer of testimony relating to other kidnappings, where kidnapping is not in issue, more particularly where the State advances modus operandi in support of its contention. The general kidnapping of drug dealers for ransom is clearly not congruent with killing for hire in order to keep the victim from testifying against his companion in crime, even though the companions are engaged in the drug traffic, even though the murderer later forms the intent to kidnap his procurer as a means of collecting the promised compensation, and even though such compensation is viewed as “ransom.”

We note in the record, however, the following colloquy which took place during the disputed part of Moore’s testimony:

“Q. How long had you been doing work with James Allen?
A. For a matter of weeks.
Q. And what type of work did you and Mr. Allen do together?
A. We was kidnapping drug dealers. He was — he would set it and me and a few other guys—
MR. KUNZ: Objection.
A. We would kidnap for ransom.
MR. KUNZ: Beyond the scope of this and the answer to discovery.
THE COURT: Overruled.
Q. You and Mr. Allen would kidnap drug dealers for ransom?
A. Yes.
Q. And would you be paid the ransom that you demanded?
THE COURT: All right, sustained.”

It might be fairly inferred from the trial judge’s having ultimately sustained the defense’s objection that defendant’s charge of error is not well taken. No matter, we hold that even if we were to assume that error occurred, it was harmless in light of the overwhelming evidence of guilt amassed against the defendant, as witness his admissions as testified to by Overstreet, Moore, and Assistant State’s Attorney Cohen.

C

As to the murder of “Doc,” since the defense was first to raise that subject, the defendant is precluded from successfully claiming that the State’s response thereto was somehow unfair and improper. (People v. Ford (1987), 163 Ill. App. 3d 497, 516 N.E.2d 766.) The record is clear that the defense introduced evidence of “Doc’s” murder in an attempt to explain that defendant “feared going to the police because Ashley was threatening to frame him for the murder” if he reported the matter to the authorities; hence the reason for Ashley’s and Griffin’s forcing him to put his fingerprints on a gun that was subsequently used to kill “Doc.”

IV

As his fourth issue, defendant asserts that since he alleged ineffective assistance of counsel because of his trial attorney’s failure to call certain witnesses, it was erroneous for the court to deny the attorney’s motion to withdraw at sentencing and to refuse to appoint other counsel to assist defendant in his pro se motion for a new trial, citing People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045. In Krankel, defense counsel refused to present an alibi witness and failed to investigate defendant’s whereabouts at the time of the offense. The defendant argued pro se his post-trial ineffective assistance of counsel motion. The appellate court ruled that the trial court should have appointed substitute counsel and remanded the cause for a hearing on the defendant’s motion.

Defendant states that although Krankel does not establish a per se rule for the appointment of counsel, whenever a defendant files a pro se motion alleging ineffective assistance of counsel, the trial court should at least examine the merits of his claim. Defendant further states that People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, sets forth the procedure for the trial court to follow when confronted with this issue: it should examine the factual matters underlying defendant’s claim, and if it goes to matters of trial tactics or strategy, the claim should be declared spurious and the request for new counsel denied; if the factual matters show possible neglect of defendant’s case, the court should appoint new counsel who would undertake an independent evaluation of defendant’s claim. Jackson, 131 Ill. App. 3d at 138.

Defendant indicates that there was a rift between him and his counsel and that there were witnesses whom his attorney did not call to testify. Defendant urges that inasmuch as the evidence against him was not overwhelming, and he faced the possibility of the death penalty, the trial court should have appointed independent counsel to argue the defendant’s ineffective assistance of counsel claim.

We agree with the State that defense counsel’s decision as to which witnesses to call was a matter of trial tactics and strategy, in which case a charge of ineffective assistance of counsel cannot prevail. (People v. Carter (1985), 132 Ill. App. 3d 523, 477 N.E.2d 1307.) Moreover, defendant failed to inform the trial court, as he overlooks doing here, as to who the witnesses might be whom his attorney is alleged to have neglected to call and what evidence they may have afforded the court. Besides, in Krankel, unlike the present case, the defendant’s challenge obviously had merit, and thus justified the appointment of substitute counsel, whereas, here defendant’s argument merely demonstrates that he disagreed with defense counsel’s trial strategy, which is not enough to mandate the appointment of new counsel. Jackson, 131 Ill. App. 3d at 139.

V

As his fifth and final issue, defendant argues, and the State concedes, that pursuant to section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 5), a defendant may not be convicted of both an inchoate offense and the principal one. People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167; People v. Atkins (1987), 161 Ill. App. 3d 600, 515 N.E.2d 272.

Accordingly, we hold that defendant’s convictions for conspiracy to commit murder should be vacated; in all other respects, the judgment of the circuit court is affirmed.

Judgment vacated in part and affirmed.

EGAN and HARTMAN, JJ., concur.

      Justice Egan participated in this opinion before being transferred to the sixth division.