author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE CROSSLEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1960
    Opinion filed September 4, 1992.

      Turner & Wolff, of Chicago (Daniel H. Wolff, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Jeffery J. Wawrzyniak, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant Dwayne Crossley and codefendant Pamela Edison were charged by indictment with one count of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(a)(2)) and with one count of possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1987, ch. SGVz, par. 705(d)). Defendant was also charged with two counts of unlawful use of a firearm by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1). Upon defendant’s motion, the trial court granted a severance and conducted simultaneous but separate trials on the charges against defendant and his codefendant Edison. Following the simultaneous bench trials, defendant was convicted of possession of a controlled substance with intent to deliver and of possession of cannabis with the intent to deliver, but was acquitted of the weapons charges. The trial court sentenced defendant to concurrent terms of 12 years and 5 years, respectively. The court also ordered that these sentences run consecutive to a sentence imposed by another judge for a prior conviction on an unrelated charge. Codefendant Edison, who is not a party to this appeal, was convicted of possession of a controlled substance and received a sentence of 30 months’ probation as well as a $500 fine.

On appeal, defendant contends that (1) he was deprived of his sixth amendment right to confront the witnesses against him by the court’s refusal to allow him to cross-examine codefendant Edison and by the court’s refusal to admit prior inconsistent statements made by Edison, (2) the State produced insufficient evidence to prove him guilty beyond a reasonable doubt, and (3) the sentences imposed on him were excessive and improper under Illinois law.

The record reveals that defendant was arrested October 6, 1987, and was subsequently charged by indictment with one count of possession of a controlled substance with intent to deliver, with one count of possession of cannabis with the intent to deliver, and with two counts of unlawful use of a firearm by a felon. Defendant waived his right to a jury and moved to sever his trial from that of codefendant Pamela Edison, who had been arrested with him on charges of possession of a controlled substance and of cannabis with intent to deliver. The trial judge granted defendant’s motion to sever and stated that he would hold separate but simultaneous trials. In making this ruling, the judge indicated that he would hear the State’s evidence only once and would permit separate cross-examination of the State’s witnesses. The trial judge stated that for each defendant, he would consider only the evidence which was properly admissible against that defendant.

When the trials commenced, the State called Officer James Bauer of the Chicago police gang crimes unit, who testified that at approximately 10 p.m. on October 6, 1987, he and another officer from the Burnham police department went to a residence at 14412 South Calhoun in Burnham, Illinois, to serve a search warrant on defendant, also known as Ameen Muhammad. According to Bauer, there were four vehicles parked outside the house, and two of the four were registered to the defendant. Two more vehicles, which were parked in the garage, displayed stickers indicating that licenses had been applied for. These stickers bore the name of Amad Muhammad. Bauer testified that the officers rang the doorbell, and defendant, who was wearing only a pair of pants, answered the door.

Upon entering the house, the officers told the occupants, which included defendant, codefendant Edison, and her three young children, to sit in the living room while they searched the premises. Bauer testified that he found a purse in the kitchen which contained an Illinois driver’s license and other identification cards which bore the name of codefendant Pamela Edison. The purse also contained $75 in cash and a plastic bag which held a white powder as well as a rock-like substance which Bauer suspected was cocaine. The officers also recovered a Smith & Wesson revolver from the master bedroom. Bauer testified further that the officers searched the basement and found a large tool box. Inside the tool box was a large plastic bag containing a brick of a white rock-like substance. Bauer stated that he observed drug paraphernalia on a work table in the basement and that the officers also discovered a locked safe in the basement.

Bauer testified that he went back upstairs and informed defendant and codefendant Edison of their Miranda rights. Bauer then requested the combination to the locked safe which had been discovered in the basement. Bauer testified that defendant said he would not open the safe for anyone. Bauer testified that he then returned to the basement, broke into the safe, and found $400 in cash as well as two handguns, three clear plastic bags containing a crushed green plant, and a small booklet. Bauer stated that when he asked codefendant Edison whose safe was in the basement, she replied that anything in the basement belonged to the defendant and that she never went down into the basement.

According to Bauer, codefendant Edison said that she had lived in the house with defendant for some time, and she also indicated that one of the children who lived there with them was defendant’s son. Defendant’s counsel objected to the admission of these statements, and the trial judge stated that he would consider them only with regard to the charges against codefendant Edison. Bauer testified further that defendant indicated that all but one of the cars parked outside belonged to him. Defendant stated that the Mazda belonged to Edison.

Bauer stated that when the search was completed, defendant and codefendant Edison were brought to the police station. Before leaving the house, both defendant and codefendant went into the master bedroom and changed their clothes.

Upon cross-examination by defendant’s counsel, Bauer acknowledged that all of the drugs, guns, and money recovered were found in closed containers, and none were in plain view. Bauer admitted that he recovered no contraband or keys when he conducted a search of defendant’s person. Bauer was also questioned about the registration for another car owned by defendant which reflected an address other than the residence searched.

During cross-examination by counsel for codefendant Edison, Bauer stated that defendant did not respond at all when Edison said that the items in the basement did not belong to her but were the defendant’s. Bauer testified further that Edison denied all knowledge about the safe. Bauer acknowledged that the search warrant which he executed did not bear Edison’s name, and he stated that the warrant was directed at defendant. Defendant’s counsel reiterated his standing objection to questions regarding the warrant and to Edison’s statements with regard to defendant. In response to these objections, the trial judge assured counsel that he would consider this evidence with regard to Edison alone.

The State next called Rosetta Driver, an employee of Independence Bank in Chicago, who testified that she was a safe deposit box attendant. Driver’s duties included maintenance of records for the safe deposit boxes and assistance of clients in their use of the boxes. Driver stated that defendant and Shirley Crossley rented safe deposit box number 0752 at the bank. Driver stated further that she had met Shirley Crossley and that Shirley Crossley and Pamela Edison were not the same person. According to Driver, Shirley Crossley was an older woman, but she did not know if she was defendant’s mother. Driver testified that defendant had opened the safe deposit box four times, and the address listed for the safe deposit box was for a home on Luella Street and was not the address of the residence in Burnham where defendant was arrested.

Officer Dennis Cullom testified that when he entered the home, he walked to the back of the house to the kitchen, where he found codefendant Edison and three children. Cullom told defendant, codefendant Edison, and the children to sit in the living room while the officers searched the premises. Thereafter, Cullom went to the basement, where he discovered the locked safe. Cullom testified that upon opening the safe, the officers discovered that it contained two revolvers, $400 in cash, and three bags of marijuana. Cullom stated further that he pried open the locked tool box and found tools and two plastic bags filled with a substance which he believed was cocaine. Cullom also confiscated a scale, a grinder, a mirror, and razor blades which he believed could be used to cut narcotics. According to Cullom, there were bags in the basement near the washing machine and dryer which contained men’s, women’s, and children’s clothing. On cross-examination by defendant’s attorney, Cullom testified that he did not recover any contraband from defendant’s person, and he did not see defendant in the basement. In response to questions posed by codefendant Edison’s attorney, Cullom stated that he believed defendant was the target of the search warrant and investigation.

Chicago police officer Richard Baranski testified that he recovered a loaded revolver from underneath some women’s clothing in the bedroom dresser. Baranski also stated that he observed men’s clothing in the closet along with women’s clothing.

Chicago police department Sergeant Carl Edinfield testified that he was the raid commander on the evening of October 6, 1987. Edinfield testified that during the search of the residence, he found eight car titles dated in 1987 which listed defendant’s address at a different home on Luella Street in Burnham. The names on those titles included Ameen Muhammad, Bobby S. Stevenson, Tommy L. Johnson, Ted Cochell, Pamela Edison, Shirley J. Crossley, and Richard J. Weigle. Several of these titles reflected the address of the house on South Luella.

• Edinfield testified further that he also found a safety deposit box key which was designated number 0752 and a letter addressed to defendant at the residence which was the subject of the search warrant executed on October 6, 1987. Edinfield testified that the top

drawer of the bureau in the bedroom contained a large number of men’s rings, watches, and cuff links. Edinfield stated that he observed several gold men’s rings, some of which bore the initials “D” and “C.” Edinfield also saw men’s clothing in other drawers of the dresser. Inside the closet, Edinfield saw between 8 and 10 men’s suits, several men’s shirts, and at least 10 pairs of men’s shoes.

On cross-examination by defendant’s attorney, Edinfield stated that three of the car titles reflected the address of the house on Luella Street and not the residence where the raid occurred.

Thereafter, the parties stipulated to the chain of custody on all of the physical evidence recovered and to the amounts and purity of the controlled substances. The parties stipulated that Edison was the subscriber for gas and electrical service in the home where the raid occurred. The parties also stipulated that defendant Dwayne Crossley was also known as Ameen Muhammad and that he had previously been convicted of the felony offense of delivery of a controlled substance before another judge.

After the State rested its case in chief, defendant moved for a directed finding, asserting that the cocaine was found in a house which he did not own. Defendant also asserted that the contraband was found in Edison’s home and that he did not live there. Defendant argued that the contraband which was recovered from thé house was not in plain view; there was no proof that defendant had actually or constructively possessed the contraband; and there was no showing that he owned or had access to the locked safe and tool box which were found in the basement. The State opposed defendant’s motion, contending that defendant appeared to live at the home at least part of the time based upon the men’s clothing found there and based upon the discovery of other personal items such as the safety deposit box key and the car titles.

Codefendant Edison also moved for a directed finding, asserting that everything which was recovered by the police belonged to defendant and that she had cooperated with police from the inception of the investigation. The State argued that a directed finding in Edison’s favor was not warranted because the evidence indicated that she lived in the home and that laundry was done in the basement, despite Edison’s statement that she never went into the basement. The court denied both motions for a directed finding. In entering these rulings, the trial judge stated that the evidence demonstrated that both the defendant and codefendant lived in the house; both had control over the premises; and knowledge and possession could properly be inferred for both.

Thereafter, counsel for defendant moved to introduce prior, sworn statements made by Edison during pretrial proceedings and which were exculpatory to the defendant. Defense counsel asserted that Edison would undoubtedly testify on her own behalf and would incriminate him in an effort to exculpate herself. Defendant argued that because Edison would invoke her fifth amendment right to remain silent if called as a witness in his case, she would, under the Federal rules, be deemed unavailable, and her prior, sworn statement would be admissible under the Federal rules.

The trial court denied defendant’s motion, finding that under Illinois law, Edison would not be deemed unavailable. Accordingly, the court ruled that, although this evidence could be used to impeach Edison if she took the stand and offered testimony which was inconsistent with her prior statements, defendant could not offer the previous testimony as substantive evidence in his case in chief. The court also ruled that defendant’s attorney would not have an opportunity to cross-examine Edison in the event that she took the stand in her own case.

In presenting his case in chief, defendant introduced the mortgage and title to the home at which the search warrant was executed. Defendant also introduced into evidence several letters which were mailed in 1987 from the Internal Revenue Service and from the Department of Health and Human Services and which were addressed to him at the house on Luella Street.

Testifying on her own behalf, codefendant Edison stated that she and her three children lived in the house at 14412 Calhoun in Burnham, Illinois, and that she had bought the house and was responsible for the mortgage and for the other household expenses. Edison testified that she had known defendant since she was 12 years old, that she began a personal relationship with him in 1984, and that defendant was the father of her youngest child, who was three years old. Edison also testified that defendant did not live with her and did not pay the household bills, but he came over to her house several times each week to visit with their child. Edison stated further that defendant frequently stayed the night in her home, and he had moved some clothing, a safe, and some boxes into her house about a month or two before they were arrested.

According to Edison, she used only the laundry room in the basement where the washer and dryer were located, and she did not go into the other two rooms in the basement on a regular basis. Edison stated that defendant moved his property into the back room in the basement which held mostly unused items. Edison testified further that she had no idea what was in the boxes that defendant had moved into the back room of the basement. According to Edison, she had previously warned defendant that she didn’t want any illegal substances around her children, and defendant assured her that the safe and boxes contained only car titles and personal papers and that there was nothing illegal in the items that he had moved into the basement. Edison indicated that she told the police officers on the date of her arrest that the safe and other items found in the basement belonged to defendant and not to her.

Following closing arguments, the trial court found defendant guilty of possession of marijuana with intent to deliver and of possession of cocaine with intent to deliver, but acquitted him of the weapons charges. In making this ruling, the court specifically noted that the State had presented sufficient evidence to prove that defendant lived in the house located at 14412 Calhoun and was where the search warrant was executed. The court noted further that the evidence established that defendant exercised dominion and control over the premises and had knowledge that the controlled substances were on the premises.

The trial court acquitted Edison of the charges of possession of cannabis and of cocaine with intent to deliver, but found her guilty of the lesser included offense of possession of cocaine. In entering this ruling, the trial judge stated that the evidence presented by the State established that Edison lived in the house at 14412 Calhoun and had control of the premises. The court noted, however, that she specifically denied knowledge of and control over the contents of the safe, toolbox, and boxes found in the basement. The court found that Edison’s testimony was unrebutted, was consistent with the statements made by her to the police officers at the time the search warrant was executed, and was credible. Accordingly, the court found that the State had presented sufficient evidence to prove only that Edison possessed 4.7 grams of cocaine which were found in her purse.

Defendant filed a motion for a new trial, asserting that the trial court erred in refusing to admit the sworn testimony of codefendant Edison which was made during the pretrial proceedings. Defendant asserted further that the State had presented insufficient evidence to prove him guilty beyond a reasonable doubt and that the trial court erred in finding him guilty where codefendant Edison was found not guilty of the same charges. In denying defendant’s post-trial motion, the trial judge specifically stated that his determination of the case against defendant would not have been different even if the prior statements made by Edison during pretrial proceedings had been admitted.

At the sentencing hearing, Chicago police officer Calvin Holliday was qualified as an expert and testified that the cocaine found in the home where defendant was arrested could have been cut once more before it was sold on the street and would then have had an estimated value of $63,000. Holliday also testified that the cannabis recovered from the home would have a street value of approximately $1,500.

Defense counsel argued in mitigation that defendant was 32 years old and had no previous criminal record with the exception of his conviction on September 14, 1987, for delivery of a controlled substance and for which he was sentenced to nine years in prison. Defense counsel acknowledged that because defendant was free on an appeal bond when he was arrested on the instant charges, any penalty ordered by the court would necessarily run consecutive to the nine-year sentence previously imposed. Counsel for defendant requested that the court impose the minimum sentence allowable which was a term of six years.

The trial court sentenced defendant to concurrent terms of 12 years for possession of cocaine with intent to deliver and five years for possession of marijuana with intent to deliver. The court ordered that these sentences were to run consecutive to the nine-year sentence previously imposed. In sentencing defendant, the trial judge specifically stated that he had considered the facts of the case as well as the statutory and nonstatutory factors in aggravation and in mitigation. The court noted further that there was overwhelming evidence that defendant lived at the house where the contraband was found and that he had exerted control over the contraband. The trial judge noted that defendant was arrested on the instant charges less than one month after he received a nine-year sentence for the prior conviction. Based upon these facts, the trial judge concluded that defendant had not learned “any lesson” and that his character and attitudes indicated that this type of conduct would recur in the future. The trial judge stated that he was aware of what had been offered in mitigation, but determined that a substantial sentence was required to deter the defendant and others who might be inclined to engage in this type of conduct.

In sentencing Edison, the court noted that this was her first offense and that she had three children at home. The court sentenced Edison to a term of 30 months’ probation, imposed a $500 fine, and ordered her to perform 360 hours of community service.

Defendant has appealed his convictions and the sentences imposed by the trial court.

We initially consider defendant’s claim that he was deprived of his sixth amendment right to confront the witnesses against him by the trial court’s refusal to allow him to cross-examine codefendant Edison and by the court’s refusal to admit the testimony given by Edison during the pretrial proceedings.

The right of cross-examination secured by the confrontation clause of the sixth amendment precludes the introduction of testimony against a defendant where the defendant has had no opportunity to cross-examine the witness testifying against him. U.S. Const., amend. VI.

Defendant contends that the trial court erred in precluding him from introducing the prior, sworn statement made by Edison. In support of this contention, defendant argues that a defendant’s sixth amendment right of confrontation may be violated when a nontestifying codefendant’s out-of-court statement implicating the defendant is introduced at their joint trial even though the jury has been instructed to consider such statement only as against its maker. (Bruton v. United States (1968), 391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S. Ct. 1620, 1622; People v. Williams (1990), 196 Ill. App. 3d 851, 862, 554 N.E.2d 1040.) Defendant asserts further that where a non-testifying codefendant’s statement incriminating the defendant is not directly admissible against the defendant, the confrontation clause of the sixth amendment bars its admission at their joint trial even if the trier of fact is aware that it may not consider the statement against the defendant and even if the defendant’s own confession is admitted against him. Cruz v. New York (1987), 481 U.S. 186, 193, 95 L. Ed. 2d 162, 171-72, 107 S. Ct. 1714, 1719; Williams, 196 Ill. App. 3d at 862.

We note, however, that the case before us is factually distinguishable from the cases relied upon by the defendant. In the instant case, defendant successfully moved for a severance. Accordingly, he and Edison were tried in separate, albeit simultaneous, trials. The trial judge specifically stated that he would consider the testimony of each defendant against that defendant only, and both defendant and codefendant acquiesced in this decision. Where a party acquiesces in proceeding in a given manner, he is not in a position to claim he was prejudiced thereby. (People v. Schmitt (1989), 131 Ill. 2d 128, 137, 545 N.E.2d 665.) Edison’s testimony was introduced after defendant had rested his case and was admissible only against Edison. Edison was not a witness in the case against defendant, and defense counsel had no right or obligation to cross-examine or to impeach Edison. Consequently, this case did not involve the admission of a codefendant’s statement which implicated the defendant at their joint trial, and we find that the cases relied upon by the defendant are not controlling here.

In addition, defendant has not established that the trial court relied upon Edison’s statements in finding defendant guilty or that the trial judge was incapable of compartmentalizing the evidence against each defendant.

A reviewing court must presume that the trial court considered only competent evidence unless the contrary affirmatively appears of record. (Schmitt, 131 Ill. 2d at 138-39.) A court of review must also presume that the trial court was capable of compartmentalizing its consideration of the evidence in separate, simultaneous bench trials unless the record establishes otherwise. (Schmitt, 131 Ill. 2d at 137.) This is not a “Herculean” task, but one which is performed by courts across the State every day. (Schmitt, 131 Ill. 2d at 137.) Based upon his particular training and experience, a trial judge, acting as trier of fact, is generally believed to have a superior ability to restrict his use of improper evidence and to consider only competent evidence. (People v. Moore (1984), 128 Ill. App. 3d 505, 514, 470 N.E.2d 1284; People v. McNeal (1977), 56 Ill. App. 3d 132, 138, 371 N.E.2d 926.) Yet, courts employing such a procedure should recite for the record the findings in each case and the reasons for the rulings. Schmitt, 131 Ill. 2d at 138.

The record reveals that in finding defendant guilty of possession of cocaine and of cannabis with intent to deliver, the trial judge recited the evidence against defendant which supported these convictions. In entering these convictions, the court specifically referred to the mortgage and title documents which indicated that the house designated on the search warrant was owned by Edison. The court also referred to the letters from the Internal Revenue Service and mailed to defendant at 8214 South Luella.

In addition, the trial judge noted the evidence which had been considered by the court in determining the defendant’s motion for a directed finding of not guilty at the close of the State’s case in chief. That evidence included the fact that when the officers arrived at the house to execute the search warrant, defendant was only partially dressed when he answered the door. Before defendant was taken into custody and transported to the police station, he went into the master bedroom and changed his clothes. That evidence also included the fact that defendant had large amounts of clothing and jewelry in the house, as well as personal papers and documents, and a key to a safety deposit box. Defendant also had several automobiles parked outside the house and in the garage. When questioned about the safe, defendant indicated that he was not going to give the combination to anybody.

Upon consideration of all of the evidence properly admissible against defendant, the trial court concluded that defendant resided in the house at 14412 South Calhoun and, accordingly, exercised dominion and control over the premises where the contraband was discovered. There is no indication in the record that the trial judge considered or relied upon Edison’s testimony in finding defendant guilty of the crimes charged.

During trial, the judge repeatedly advised counsel that for each defendant he would consider only the evidence which was properly admissible against that defendant. In ruling on defendant’s post-trial motion, the trial judge stated that there was overwhelming evidence that defendant resided in and exerted dominion and control over the premises in which the narcotics were found and that his determination of the case against defendant would not have been different even if the prior statements made by Edison during pretrial proceedings had been admitted.

Upon review of the record before us, we agree that the evidence properly admitted against the defendant was sufficient to sustain his convictions for possession of cocaine and of cannabis with intent to deliver, and we do not believe that the record indicates that the trial judge relied upon Edison’s testimony in finding defendant guilty. Consequently, we hold that defendant has not established that he was prejudiced because he was precluded from cross-examining Edison and from introducing her pretrial testimony.

We next address defendant’s claim that he was not proven guilty beyond a reasonable doubt. Defendant contends that without Edison’s statements implicating him, the State could not have sustained its burden of proving his guilt beyond a reasonable doubt. We find this argument unpersuasive.

To sustain a conviction for constructive possession of a controlled substance, the State must prove that the defendant knew of the presence of the contraband and that it was in his immediate and exclusive possession and control. (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665; People v. Nettles (1961), 23 Ill. 2d 306, 307, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.) Knowledge and possession of drugs are rarely susceptible of direct proof (People v. Embry (1960), 20 Ill. 2d 331, 334, 169 N.E.2d 767), and may be inferred when the drugs are found on premises under his control (Nettles, 23 Ill. 2d at 308-09). Although possession must be exclusive, it may be joint. (Embry, 20 Ill. 2d at 335.) Whether defendant had knowledge and possession of the contraband are factual questions for the trier of fact, and those findings will not be disturbed on appeal unless the evidence is so palpably contrary to the findings, or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to defendant’s guilt. People v. Knight (1985), 133 Ill. App. 3d 248, 258, 478 N.E.2d 1082.

As we have noted above, the trial judge meticulously recited the evidence upon which he relied in finding defendant guilty. That evidence included the testimony that defendant was only partially dressed when he answered the door, and he went into the master bedroom and changed his clothes before being transported to the police station. In addition, defendant had large amounts of clothing and jewelry in the house, as well as personal papers and documents, and a key to a safety deposit box. Defendant also had several automobiles parked outside the house and in the garage. When questioned about the safe, defendant indicated that he was not going to give the combination to anybody, and he made no response at all when Edison told the officers that everything in the basement belonged to defendant. The trial court concluded that although defendant may have used other addresses, this evidence established that defendant exercised dominion and control over the house and its contents. Accordingly, the court found that the evidence demonstrated that defendant constructively possessed the contraband found when the search warrant was executed.

A criminal conviction will not be set aside unless the evidence is so improbable that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) In reviewing a conviction, the court must determine whether, after considering the evidence in the light most favorable to the prosecution, 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, 49, 538 N.E.2d 453, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290; Collins, 106 Ill. 2d at 261.) We find that the State presented sufficient evidence to sustain defendant’s convictions for possession of cocaine and of cannabis with intent to deliver.

Finally, defendant asserts that the sentences imposed upon him were excessive as compared to that received by codefendant Edison. We do not agree.

Codefendants who are similarly situated should not receive disparate sentences. (People v. Earullo (1983), 113 Ill. App. 3d 774, 792, 447 N.E.2d 925, cert. denied (1984), 465 U.S. 1079, 79 L. Ed. 2d 761, 104 S. Ct. 1441.) A disparity in sentences will not be disturbed if warranted by differences in the codefendants’ degree of participation, prior criminal background, and rehabilitative potential. See People v. Wolfe (1987), 156 Ill. App. 3d 1023, 1028, 510 N.E.2d 145; People v. Dixon (1985), 133 Ill. App. 3d 1073, 1087-88, 480 N.E.2d 128; Earullo, 113 Ill. App. 3d at 792.

In the case at bar, the evidence established that defendant was the target of the investigation and that his statements indicated he held an ownership or a possessory interest in the safe. In addition, defendant was arrested on the instant charges while free on appeal bond and only one month after he had been convicted of delivery of a controlled substance in an amount which qualified as a Class X offense. In contrast, codefendant Edison had a long employment history, three small children to support, and no prior criminal record.

It is recognized that in considering the propriety of punishment a court of review must give great weight to the judgment of the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882; People v. Bergman (1984), 121 Ill. App. 3d 100, 110, 458 N.E.2d 1370.) The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (Perruquet, 68 Ill. 2d at 153.) Additionally, the trial judge is normally in a better position to determine the punishment to be imposed than is a court of review. Perruquet, 68 Ill. 2d at 154; People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330.

A reasoned judgment as to a proper sentence must be based upon the particular facts and circumstances of each individual case. (Perruquet, 68 Ill. 2d at 154.) Such a judgment depends upon many factors, including the gravity of the offense and the circumstances of commission, the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, and criminal history. (Perruquet, 68 Ill. 2d at 154.) The sentencing judge is charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541; Bergman, 121 Ill. App. 3d at 109.) Yet, the objective of restoring the offender to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense. People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1, 4; Bergman, 121 Ill. App. 3d at 109.

The record in the instant case reflects that in sentencing defendant, the trial judge specifically stated that he had considered the facts of the case as well as the statutory and nonstatutory factors in aggravation and in mitigation. The trial judge noted that defendant was arrested on the instant charges less than one month after he received a nine-year sentence for the prior conviction of delivery of a controlled substance. Based upon these facts, the trial judge concluded that defendant had not learned “any lesson” and that his character and attitudes indicated that this type of conduct would recur in the future. The trial judge stated that he was aware of what had been offered in mitigation, but determined that a substantial sentence was required to deter the defendant and others who might be inclined to engage in this type of conduct.

We find that the trial judge properly considered all relevant factors in sentencing defendant, and we conclude that the disparity in sentences of defendant and codefendant Edison was warranted by the differences in the degree of their participation, prior criminal backgrounds, and their rehabilitative potential.

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

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.

       Justice LaPorta participated in this case before her death. Justice McNamara has taken her place. He has read the briefs and has listened to the tape of the oral arguments.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEMUEL TAYLOR et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—90—3074, 1—90—3075 cons.
    Opinion filed September 21, 1992.
    Rehearing denied November 23, 1992.

      Daniel J. Stohr, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Michael J. Pugh, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendants were convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401 (a)(2)) and sentenced to 16 years in prison. On appeal defendants argue that: (1) the trial court erred in denying their motion in limine to prohibit the introduction of testimony regarding the results of tests performed on the controlled substance, where the physical evidence was destroyed; (2) the court abused its discretion by assisting the State, through questioning, to proffer a police officer as an expert witness; (3) they were denied effective assistance of counsel because counsel failed to request jury instructions on the lesser included offense of possession; and (4) the court abused its discretion in sentencing them to 16 years in prison, where it commented, “So much for rehabilitative potential.”

At trial the testimony revealed the following facts. About 9 p.m. on October 19, 1988, Officers Martinez and Lockridge received a call from their dispatcher informing them that an anonymous person called to report that individuals were selling narcotics from a green, four-door Oldsmobile in the driveway at 255 West 104th Place in Chicago. The officers drove to the address, where they observed a car parked on the south side of the street. Three males were inside the car. The officers drove around the corner to an alley about one block away where they were able to observe defendants from about 50 feet away.

Officers Martinez and Lockridge radioed for assistance and Officers Flagg and Daniels responded. It was dark outside, but there was artificial lighting along the street. The defendants were kept under surveillance for 45 minutes. On three separate occasions the officers observed a car drive up and park, the driver exit the car, and approach defendant Taylor’s car. On each occasion the person leaned into the driver’s side window and went through a “counting motion.” The officers then observed these people hand something to defendant Taylor on the driver’s side, and he in turn gave each person a package. The officers could not see whether it was money or packages changing hands.

After the third transaction, Martinez gave the arrest signal and drove his car in front of the driveway blocking the path of Taylor’s car. The officers exited their car and ordered the defendants to exit their car. Martinez testified at that time the officers were standing three feet away and could see through the windshield as defendant Taylor passed an object to defendant Wells, who bent down and placed it underneath the seat. Officer Martinez then went to the driver’s side and Officer Lockridge went to the passenger side. The defendants exited the car and a pat down search was conducted. The officers found $1,090 and a beeper on defendant Taylor. Wells and a third person were also searched.

Officer Martinez, while conducting a search of the car, observed a cellular telephone on the front seat. Defendants were never observed using the telephone, nor was the telephone fingerprinted. Martinez observed a bulge underneath the floor mat and turned the mat. He observed a large clear plastic bag containing white powder. The bag was tied at the top. He also noticed that there was a hole in the floor and that it appeared as if the bag was hanging from a jagged edge in the floor. There was also a hand-held scale hanging from the rearview mirror. The officers never saw defendants use the scale, nor did they have it fingerprinted. Defendants were arrested and taken to the police station.

Officer Martinez testified that he weighed the plastic bag and that it weighed 16 grams. He then inventoried, sealed, and initialed the evidence. The evidence was then taken to the crime lab. Both parties stipulated to the chain of custody of all the items that were inventoried.

Jose Mantilla testified that he was a forensic chemist who had worked for the Chicago police department for three years. The court recognized Mantilla as an expert in the field of forensic chemistry, qualified to render opinions as to the identity and presence of controlled substances. He stated that he weighed the powder and found it to weigh 16.53 grams. He then analyzed it by performing tests on the substance and concluded that the substance contained cocaine.

Officer Lockridge testified that she had been involved in several transactions as a “buy” undercover officer. She had made over 100 arrests, 90% having to do with cocaine. She testified that the usual drug transaction involved first obtaining the beeper or telephone number of a seller, then establishing the quantity, price, location, and time for the sale to take place. She stated that 14 grams is considered a large amount.

For trial, Officer Lockridge withdrew the physical evidence, which consisted of the beeper, cellular telephone and scale, from the evidence and recovered property section of the Chicago police department, but was told that the cocaine had been destroyed because of the length of time it took for the case to reach trial. This was not the normal procedure for the police department. She stated that the money recovered was forwarded to the Illinois State Police accounts.

Defendant Taylor testified that on the night of the incident, defendant Wells and his cousin came to Taylor’s home about 9 p.m. The three changed cars and rode in Taylor’s car to a gas station where they purchased beer. They then drove to Taylor’s grandfather’s home and backed into the driveway. He stated that an unmarked car drove into the driveway and that Wells and the officer exchanged words. Wells testified that the previous night the same officer had harassed him. Wells stated that he was “running his mouth” and Officer Lockridge handcuffed him and put him in the detective’s car. The officers then brought defendant Taylor back to the car, handcuffed the two defendants together and took them to the police station. Defendant Wells stated that he was charged with disorderly conduct, and that later an officer came in, put the bag of cocaine in his face and said, “He gave this to you and you put this under the seat.”

Earl T. Wynn, defendant Wells’ grandfather, testified that on the day of the incident he saw both defendants as Taylor backed the car into his driveway. Wynn claimed that before he got to the door, he saw the officers pull into the driveway and defendant Wells told him that the police were “messing” with him. Wynn testified that Wells was hollering so he tried to calm him down. He stated that Officer Lockridge said “Let’s put the handcuffs on him and put him in my car.” Wynn stated that the officers searched his van, his daughter’s car, and a station wagon that were parked in his driveway, by shining a light into the first two cars and running their hands under the wheel of the van. Wynn testified that the officer told him that defendant was being arrested for disorderly conduct.

Before trial, defense counsel filed a motion in limine to exclude any testimony concerning the results of tests performed on the substance recovered from defendant Taylor’s car based on the fact that the substance had been destroyed after the completion of testing. The court denied that motion. Defense counsel also objected to the State’s attempt to qualify Martinez as an expert witness, but the court, after asking Martinez three questions, allowed him to testify as an expert. Lockridge was also allowed, over counsel’s objection, to testify as an expert as to the manner in which drug transactions are conducted.

At the conclusion of trial, defendants were convicted of possession of a controlled substance with intent to deliver and sentenced to 16 years in prison.

Defendants first argue that the trial court erred in denying their motion in limine to prohibit the introduction of testimony regarding the test results performed on the cocaine. They contend that the State’s destruction of the substance before trial deprived them of due process. The State maintains that defendants did not show that the cocaine was destroyed in bad faith, and that it presented sufficient evidence at trial regarding the weight of the cocaine.

Although the presence of narcotics may be proved by circumstantial evidence and the substance in question need not be produced at trial (People v. Lopez (1982), 107 Ill. App. 3d 792, 438 N.E.2d 504), a defendant’s fundamental right to know of adverse evidence and to have an opportunity to rebut it are infringed when the State fails to preserve physical evidence which is crucial to his defense. (People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573.) Further, the right of an accused to be informed of exculpatory evidence is secured both under the Federal Constitution (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), and by Illinois Supreme Court Rule 412(c) (87 Ill. 2d R. 412(c)). (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) In Brady, the Supreme Court held that a criminal defendant has a right to have access to evidence that is “material” either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. That right is not absolute.

In California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528, the Supreme Court addressed the duty of the State to take affirmative steps to preserve potentially exculpatory evidence on behalf of defendants. In that case, each defendant was stopped by the police on suspicion of drunk driving and submitted to a breathalyzer test which showed a blood-alcohol concentration level substantially higher than the level at which a driver is presumed to be intoxicated. They were arrested for driving while under the influence of liquor. Prior to trial, defendants filed a motion to suppress the test results on the grounds that the State failed to preserve samples of defendants’ breath. In denying this motion, the court stated that the State’s action in destroying the breath samples was not a violation of due process. The court reasoned that the State did not destroy the samples in a calculated effort to circumvent the disclosure requirements of Brady.

The Trombetta court stated:

“Whatever duty the Constitution imposes on the States to preserve evidence, the duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. *** [E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (467 U.S. at 488-89, 81 L. Ed. 2d at 422, 104 S. Ct. at 2534.)

Thus, under Trombetta and Jordan a defendant must show that the evidence possessed exculpatory value that was readily apparent in order to show that there has been a due process violation.

In this case, prior to trial the assistant State’s Attorney advised defense counsel that the substance found in defendant Taylor’s automobile was not available for trial because it had been destroyed after being tested. Subsequent to the denial of the defendant’s motion in limine, Jose Mantilla testified that on November 26, 1988, he conducted tests on the substance which had been recovered from defendant Taylor’s automobile. He testified that the substance weighed 16.53 grams and tests indicated the presence of cocaine. Defendants maintain that in the absence of the actual cocaine it was impossible to challenge the weight of the substance. They contend that this fact was significant because if the substance weighed less than 16 grams, defendants would not have been eligible for sentencing as Class X offenders.

Although the evidence was destroyed, the State was able to use the testimony of others to establish the weight of the substance. Defendants contend, however, that destruction of the substance after testing eliminated their ability to dispute the test results by evidence of equal integrity and persuasiveness.

In this case, although the evidence was destroyed, the State offered the testimony of Officer Martinez, who testified that the substance weighed 16 grams. He testified that the substance was inventoried, sealed and taken to the crime lab for analysis. Martinez also testified that he conducted a search of the car and observed a cellular telephone on the front seat. His testimony was corroborated by that of Officers Flagg and Lockridge. Further, Jose Mantilla, a forensic chemist, testified that the substance tested positive for cocaine and weighed 16.53 grams. Moreover, defense counsel stipulated to the chain of custody of the cocaine and never made an attempt to challenge the weight of the substance before trial.

Although the unnecessary destruction of material evidence is condemned (People v. Ellis (1981), 93 Ill. App. 3d 79, 416 N.E.2d 1174), there is no evidence in the record that the evidence was destroyed in bad faith. We believe that the State provided sufficient circumstantial evidence that the substance obtained from defendants remained in the State’s custody until it was destroyed, and that the substance weighed more than 15 grams. Having stipulated to the chain of custody, and having failed to challenge the weight of the substance until the eve of trial, we cannot say that the court erred in denying defendants’ motion in limine to prohibit testimony regarding the results performed on the substance.

Defendants next argue that the trial court abused its discretion by asking questions of a witness whom the State attempted to qualify as an expert witness. At trial, the State presented Officer Martinez on the stand and began eliciting questions to qualify him as an expert with regard to the use of hand-held scales in drug transactions. The trial court inquired as to his qualifications as well:

“THE COURT: Officer Martinez, have you ever seen a hand-held scale used in any fashion?
THE WITNESS: I had it demonstrated to me.
THE COURT: By whom?
THE WITNESS: By an offender that I had arrested.
THE COURT: Once?
THE WITNESS: Several occasions, until I was familiar with how it works.
THE COURT: All right. I will permit you to step down and tell the ladies and gentlemen of the jury, in your opinion as to how it may work or how they are used.”

It is well established that an individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where such testimony will aid the trier of fact in reaching its conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) The burden of establishing the qualifications of an expert witness is on the proponent of his testimony, and it is within the discretion of the trial court to determine whether the witness has been qualified. People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795.

The record reveals that during a sidebar, defense counsel advised the court that he objected to the State’s line of questioning on two grounds: (1) that it was narrative; and (2) that the witness was purely speculating as to how the hand scale was used, what it was used for, the fashion in which it was used, and who used it. He pointed out to the court that the witness never testified that he saw the defendants use or touch the scale, and that there was no testimony to establish that the witness was an expert as to the use or function of the scale. The State then explained that it would lay those foundational questions. The court itself commented “When were you going to do it, after he testified or before?” The court then stated that it would allow the testimony if the proper foundation was laid.

Officer Martinez then testified that he had been a tactical officer for three years, that he had been involved in about four arrests each week, and about two narcotic surveillances each week. Over defense counsel’s objection, the State then attempted to have Officer Martinez demonstrate how the scale is used. The court stated that it did not think the State had laid a proper foundation relative to the officer’s knowledge of the hand-held scale. The State then attempted a third time to tender Officer Martinez as an expert witness, but defense counsel objected. The court then asked the questions which defendants allege were improper.

While it does appear that the court was assisting the State to ascertain the information necessary for Officer Martinez to be qualified as an expert, the court is free to examine witnesses in its discretion, provided it does not become an advocate, abandoning its function as an impartial tribunal. (People v. Griffin (1990), 194 Ill. App. 3d 286, 550 N.E.2d 1244.) The court in this instance did not seem to be clarifying any confusion on its part, or assisting the jury to understand the testimony of the officer. In fact, based on its earlier comments, it appears to have asked the questions that it believed were necessary to determine whether Officer Martinez was an expert. The court had stated earlier that “I will permit him to testify succinctly and before the jury as to how it works, assuming, of course, the proper foundation is laid.” By asking the questions of the officer, it is apparent that the court believed the State had not laid the proper foundation. However, we do not find that the court’s questioning amounted to advocacy. Thus, any error that may have occurred was harmless.

Defendants next argue that they were denied effective assistance of counsel because trial counsel failed to request jury instructions on the lesser included offense. Specifically, they contend that the questionable weight of the cocaine as established by the State was between 16 and 16.53 grams, and that the jury reasonably could have concluded that the quantity of alleged controlled substance possessed by defendant was less than 15 grams.

In People v. Canet (1991), 218 Ill. App. 3d 855, 578 N.E.2d 1146, the defendant was charged with possession of over 15 grams of cocaine and, throughout the trial, defendant counsel’s strategy was to prove that the defendant did not have knowledge or possession of more than 15 grams. Defense counsel failed to request jury instructions on the lesser included offense and defendant was convicted of possession with intent to deliver more than 15 grams of a controlled substance. In affirming the trial court’s decision, the appellate court stated that defense counsel’s failure to request jury instructions on the lesser included offense was a tactical decision lying properly within trial counsel’s province and, thus, did not constitute ineffectiveness. Canet, 218 Ill. App. 3d at 863.

Defendants cite to People v. Crenshaw (1990), 202 Ill. App. 3d 432, 559 N.E.2d 1051, for the proposition that it is error to fail to give a lesser included offense instruction as to simple possession. They maintain that had the lesser included offense instruction been given the jury would have had the option of not convicting defendants as Class X offenders. In that case, defendant was stopped by police officers and his car eventually searched. A loaded revolver was found inside. The arresting officers testified that when defendant exited his car he dropped a package which contained 22 smaller packets total-ling 11.2 grams of cocaine. The parties stipulated to the weight of the cocaine, but during trial defense counsel requested that an instruction on the lesser included offense of possession be given. This request was denied. The appellate court, in reversing the case, stated that even if there was evidence of intent to deliver, the controlling issue was whether the evidence could have also supported a verdict on the lesser included offense. (Crenshaw, 202 Ill. App. 3d at 435.) The court explained that the presence of the weapon and the division of the cocaine into 22 smaller packets was not conclusive evidence of an intended delivery. The court held that it was improper for the trial court to refuse defendant’s request for an instruction to the jury on the lesser included offense of possession.

Crenshaw is distinguishable from the instant case. Here, the evidence offered by the State established that the substance weighed more than 15 grams. The amount of cocaine at issue in Crenshaw was II. 23 grams. Further, in reversing the trial court, the appellate court in Crenshaw reasoned that there was no direct evidence of any sale or delivery of the controlled substance found in defendant’s possession. In this case, three officers testified that they observed several instances of individual transactions where individuals approached defendants in the car and an exchange occurred. Further, the defendant’s request for the lesser included instruction was denied in Crenshaw, but there was never a request made in the instant case.

The test for determining whether a defendant has been denied effective assistance of counsel was established in the United States Supreme Court case Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. There the court established a two-prong test. The first prong is that defendant must prove that trial counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive the defendant of a fair trial. The second component is that defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Incompetence is not established by erroneous or unsuccessful strategic judgments. People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247.

We find here that defense counsel’s failure to request an instruction on the lesser included offense was a matter of trial strategy and did not amount to ineffectiveness.

Defendants finally argue that the trial court abused its discretion in sentencing them to 16 years in prison. Defendant Taylor maintains that he lacked a history of violent crimes, had never been sentenced to the penitentiary, and was a “B” average student in school. He was also 24 years old at the time of the offense. He specifically contends that the court did not consider his rehabilitative potential. Defendant Wells asserts that he was merely a passenger in Taylor’s car, was less culpable than Taylor, and that the amount of drugs involved was small.

In determining an appropriate sentence, the defendant’s history, character, rehabilitative potential, the seriousness of the offense, the need to protect society, and the need for deterrence and punishment must be equally weighed. People v. Coppula (1991), 212 Ill. App. 3d 52, 55, 570 N.E.2d 879.

In this case, the court found that Taylor had pleaded guilty to an earlier offense involving cocaine prior to the current charge. The court also found that defendant Wells while on bond committed an offense and was subsequently charged with the current offense. Based on these factors, the court concluded “So much for rehabilitative potential.” The court further considered that given the amount of cocaine found in defendants’ car and the amount of money in their possession, they were “sophisticated drug dealers.” The court’s comments here indicate that the court considered defendants’ potential for rehabilitation, but that it determined those chances were not great. Trial courts have wide discretion in sentencing a defendant, and, absent a finding of abuse, reviewing courts must defer to that determination. (People v. Gannon (1991), 213 Ill. App. 3d 560, 567, 572 N.E.2d 1133.) We are convinced that the trial court properly considered the relevant factors in aggravation and mitigation in determining defendants’ sentences.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD DAVIS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1671
    Opinion filed September 28, 1992.

      Rita A. Fry, Public Defender, of Chicago (Michael Davidson and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Noreen M. Daly, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant Clifford Davis was indicted for the murder of Alice Burt that took place on October 15, 1987. After a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(a)(1)) and sentenced to an extended term of 70 years in prison. On appeal defendant argues that: (1) he was denied effective assistance of counsel where trial counsel failed to file a motion to quash; (2) several instances of prosecutorial misconduct denied him a fair trial; and (3) the trial court abused its discretion by allowing into evidence hearsay testimony during his sentencing hearing.

Prior to trial the defendant filed a motion to suppress statements. Officer Glynn testified at the hearing that on October 16, 1987, he was assigned to Area 1 headquarters. About 6:30 p.m., Officer Bloore brought defendant to the second floor, where Glynn was stationed. Glynn stated that the defendant was not handcuffed at that time and that defendant was placed in an interview room. At that point defendant was not under arrest. Glynn stated that he told defendant who he was and why he wanted to talk with him. Glynn testified that prior to talking with defendant, he advised him of his Miranda rights. After doing so, he talked with defendant for 10 minutes. Defendant was then asked whether he would be willing to take a polygraph examination, which he agreed to do. He was then taken to 11th and State Streets, where the examination was conducted. They arrived about 7:30 p.m. and left at 9:30 p.m. Defendant was not handcuffed en route to the station or en route back to Area 1 headquarters.

When they returned to Area 1, defendant was placed in an interview room unhandcuffed. About 10:30 p.m., defendant was again advised of his rights and a second conversation occurred that lasted about 30 minutes. During this conversation the defendant told Glynn information which Glynn advised him would have to be verified. Defendant asked whether they would have to contact his mother, and after being told that she would be contacted, defendant confessed. Defendant was then placed under arrest.

Glynn testified that there were no threats made to defendant, that no one kicked defendant and that defendant did not complain of being mistreated.

Detective Tracy’s testimony substantially corroborated that of Officer Glynn. Tracy additionally testified that defendant never stated that he wanted to speak with a lawyer before making a statement, nor did defendant ever try to walk out of the door. After the close of evidence, the court denied defendant’s motion.

At trial, Stephanie Burt testified that the decedent, Alice Burt, was her mother and that the decedent met defendant at a lounge in 1983. She testified that decedent and defendant began living together in the Ida B. Wells housing project about two years after they met. At that time, Stephanie and her son also lived with them. Stephanie stated that decedent and defendant later moved together to another location, and that she did not move with them because she could not get along with the defendant.

Stephanie testified that the decedent eventually moved out of the apartment with defendant and into an apartment with her. The decedent lived with Stephanie from June until October 1987. Stephanie stated that the decedent at that time was employed at Carson Pirie Scott. She testified that, after decedent moved into the apartment with her, decedent began to receive telephone calls from the defendant. The defendant also called the decedent at work and talked with her boss to ask for her support in reconciling the relationship between defendant and decedent. Decedent moved out of Stephanie’s apartment in early October 1987 to a location on 41st Street and Michigan, and Stephanie moved to the north side of Chicago.

Stephanie stated that on October 15, 1987, she and her son took public transportation on their way to the decedent’s apartment. When they exited the bus, several detectives were gathered around an area with blood on the ground. She testified that she went to the decedent’s apartment, rang the bell and no one answered. She waited about 20 minutes and was informed by someone in the apartment that the decedent had possibly been injured. Stephanie then walked outside the building to the area where the detectives were gathered and asked who the victim was. A detective told her the victim’s name, and Stephanie told him that the victim was her mother. She then rode with the detective to the hospital.

Malcolm Thomas testified that on the evening of October 15, 1987, he worked as a receptionist at Unity Funeral Parlor. At about 6:30 p.m. he heard a woman scream “Help.” He looked out the door and saw her struggling with a man. Thomas ran toward the two and saw that the man was holding the woman and hitting her. The woman had a handbag around her arm. Thomas stated that he ran across the street and the man fled. As Thomas approached the woman, he saw that she had been stabbed. Thomas said that he observed the assailant run east on 41st Street. He stated that the assailant wore a black jacket.

Officer Milton Hill testified that on October 15, 1987, he was assigned to the second police district. At about 6:45 p.m., he and Officer Ryan were on patrol on Michigan Avenue. Officer Hill testified that he was flagged down by someone at 41st Street and Michigan Avenue. Hill observed the victim lying near the school adjacent to the corner. The victim was asking for help and waving toward him. She had a handbag around her arm which did not appear to be ripped or searched. The victim was in a pool of blood.

Dr. Joann Richmond, a forensic pathologist, testified that she conducted a post-mortem examination of decedent’s body on October 16, 1987. She determined that there were 13 stab wounds to decedent’s head and hand. Dr. Richmond stated that decedent died from massive blood loss due to multiple stab wounds and cuts on the skull, head and face. Dr. Richmond determined decedent’s manner of death was homicide.

William Murphy, a detective for the Chicago police department, testified that on October 17, 1987, he was assigned to investigate the homicide of decedent, Alice Burt. Murphy testified that a lineup was conducted in which defendant was a subject. Defendant was not identified from the lineup by any of the five witnesses. Malcolm Thomas was not called as a witness to view the lineup.

Detective Glynn testified that on October 16, 1987, he received an assignment to investigate the murder of decedent. He stated that about 6:30 p.m. he was at the second-floor police station when Officer Jack Bloore came upstairs and asked whether he was looking for defendant and Glynn replied that he was. Officer Bloore advised Glynn that the defendant was on the first floor, then went back downstairs and brought defendant to Glynn. Glynn testified that he took defendant into an interview room, introduced himself and told defendant why he wanted to talk with him. Officer George Tracy was also in the interview room with Glynn. Defendant at that point told Glynn that he had been a boyfriend of the decedent. Glynn testified that he advised defendant of his rights and, after doing so, defendant told him that he wanted to talk. Glynn testified that defendant was not handcuffed at that time, but he could not recall whether the door to the interview room was open or closed.

Glynn stated that defendant denied having stabbed the decedent, and stated that at about 6:30 p.m. on October 15, 1987, he was with a woman in an alley on Cottage Grove Avenue, where he stayed for an hour. Defendant testified that he then took public transportation to the home of his cousin, George Scott. Glynn testified that the conversation with defendant lasted 10 minutes.

About 10:30 p.m. that evening, Glynn had a second conversation with defendant in the same interview room. He again advised defendant of his Miranda rights, and defendant again agreed to talk. Glynn testified that defendant told him that on October 15, 1987, he had been at his mother’s house until 5 p.m. He then left and went to the Maxwell Street area, where he purchased watches that he later sold in a bar. He stated that he left the bar and went to his cousin’s home at 98th and Charles Avenue, where he stayed until about midnight. Defendant told Glynn that his cousin then drove him to the elevated train at 87th Street, and that he went to a restaurant on the west side where he stayed overnight. Glynn testified that defendant stated he traveled back to his cousin’s home about 9. a.m. that next morning, telephoned his mother and she told him that the police were looking for him.

Glynn stated that defendant was advised that they were going to check out his alibi witnesses, at which time defendant asked whether they were going to talk with his mother again. Glynn stated that he told the defendant that he planned to do so, and defendant then said, “Well, I did it, I’ll tell you all about it, I don’t want you bothering my mother any more.” Glynn testified that this conversation lasted about 30 minutes. Defendant then gave his statement as to how he murdered the decedent.

Defendant stated that on October 14, 1987, he met the decedent downtown at Carson Pirie Scott and that he went home with her to assist with the groceries. On October 15, 1987, he again went to Carson’s. and met the decedent after she left work. Defendant told the decedent that he wanted to talk with her, and the two got on the bus together. When they arrived at the stop near decedent’s apartment, the two exited the bus. Defendant stated that they got into an argument and that decedent reached into her purse, at which point he took out his knife and began stabbing her. He stated that the decedent ran up Michigan Avenue and he ran up 41st Street. He then took the elevated train to his cousin George Scott’s home, where he arrived about 7:30 p.m. Defendant stayed there until midnight when his cousin took him to the train.

Defendant stated that he rode the train all night, and that the following morning he went to Shopper’s World in Chicago, where he purchased a jogging suit for $34. He then walked to a Burger King restaurant at Clark and Randolph Streets, where he changed his clothes and put on the new jogging suit. He placed the clothes that he had worn in a bag, and later discarded them in the garbage can on the elevated platform. Defendant stated that he then rode the train back to his cousin’s home at 98th Street and Charles Avenue. Defendant told the officers that he disposed of the knife at 58th Street and Calumet. He confessed that his mother called his cousin’s home and told him that the police were looking for him.

Glynn testified that after defendant confessed, they placed him in the back of their car and drove to the various locations that he mentioned to look for evidence. No evidence was recovered, but the detectives did discover a jogging suit like that defendant wore in the window of the Shopper’s World store. Glynn stated that they returned with defendant to the Area 1 headquarters and contacted an assistant State’s Attorney. After the assistant State’s Attorney arrived, he advised defendant of his Miranda rights and defendant told him that he wished to talk. Glynn testified that defendant desired to talk with the attorney by himself and he left the room.

Assistant State’s Attorney Lavin testified that at about 4 a.m. on October 16, 1987, he met with the defendant at Area 1 headquarters. At that time defendant was in the interview room and was not handcuffed. Defendant advised Lavin that he had been treated “okay” by the police. He then indicated his desire to discuss the murder, which he did. Lavin wrote the statement out for defendant because defendant wanted to get the matter over. Defendant read that statement and made corrections, then signed it.

George Scott, defendant’s cousin, testified that on the day of the incident, defendant arrived at his home about 6 p.m. and ate dinner with him. His children were at home, but his wife had not arrived. She normally arrived home about 7 p.m. George stated that defendant remained at his home until 11 p.m., at which time he drove him to the train station at 87th and State Streets. George stated that defendant returned to his home the following day at 2 p.m. The police also came to his home and he gave them the same information.

Mrs. Scott testified that she left work at 5:53 p.m. on October 15, 1987. When she arrived home her children told her that defendant was in the basement with her husband. She testified that she never saw the defendant and that he remained in the basement with her husband until she got ready for bed.

At the conclusion of the evidence, the jury returned a verdict of guilty. During defendant’s sentencing hearing, the court allowed Eva Fielder to testify that, in 1978, her daughter Billie had dated defendant. On July 15, 1978, Billie called her and stated that defendant had filled a tub with water and dunked her in it until she promised that she would never leave him. She stated that on July 17, 1978, defendant came to Billie’s home and shot at Billie four times, injuring her in the back and arm. As a result, defendant was arrested and charged with attempted murder. He pleaded guilty to the charge. After hearing the testimony, the court sentenced defendant to a 70-year extended term in prison.

Defendant first argues that he was denied effective assistance of counsel because his attorney failed to file a motion to quash arrest. He cites People v. Downey (1990), 198 Ill. App. 3d 704, 556 N.E.2d 300, for that proposition. Defendant maintains that when he first arrived at the police station, the officers advised him of his Miranda rights. He asserts that he denied any involvement in the death of the decedent, but that he remained in police custody in the interrogation room. He contends that he continued to remain in the custody of the police when they took him -to another station at 11th and State Streets, where he was again read his Miranda• rights and took a polygraph examination. Defendant maintains that when he was taken back to Area 1 headquarters, he was isolated in the interrogation room, never advised that he was free to leave, and that he was advised of his Miranda rights a third time about 10:30 p.m. He contends that he remained in police custody four hours before he made the confession and was placed under arrest. Defendant argues that because there was no probable cause to arrest him before the confession, the police violated his constitutional rights. Thus, he argues that trial counsel was ineffective by failing to file a motion to quash arrest.

The question of whether or not to file a motion to quash arrest or suppress evidence is generally considered to be a matter of trial strategy. (People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091.) Failure of counsel to file a motion to quash an arrest or suppress evidence is not per se incompetency. (Reppa, 104 Ill. App. 3d at 1127.) Further, the United States Supreme Court case of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, established that a defendant must meet a two-prong test in order to prove that he was denied effective assistance of counsel. The defendant must establish that his attorney’s representation fell below an objective standard of reasonableness. This requirement must be approached with the strong presumption that counsel’s conduct fell within the wide range of professional assistance. Secondly, defendant must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. Moreover, a defendant is entitled to competent, not perfect, representation, and the fact that a tactic was unsuccessful does not establish incompetence. (People v. Barfield (1989), 187 Ill. App. 3d 190, 543 N.E.2d 812.) The test in Strickland was adopted by Illinois in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

Here, defendant’s claim of ineffective assistance of counsel fails to meet that two-prong test as required by Strickland. First, trial counsel’s failure to file a motion to quash arrest was one of trial tactic. Counsel filed a motion to suppress statements and was clearly aware of the fact that defendant had talked with police officers and taken a polygraph test before making his confession to the murder. His decision not to file such a motion cannot be said to have fallen below an objective standard of reasonableness. The facts in the record show that defendant voluntarily went to the police station and remained there of his own free will. Officers Glynn and Tracy stated that defendant was advised of his Miranda rights when he came to the station, that he was placed in an unlocked room during the interrogation, that defendant was not handcuffed any time before he confessed to the murder and that defendant was not threatened or kicked while at the station. Further, although defendant was detained four hours, the record reveals that two of those hours were spent during his polygraph examination.

In People v. Woodson (1991), 220 Ill. App. 3d 865, 873, 581 N.E.2d 320, the court held:

“The test to determine whether a person has been illegally detained is whether a reasonable, innocent person in the circumstances would believe that he or she would be free to leave; the test is not subjective, and thus, a defendant’s belief that he or she was not free to go is not determinative and the subjective intent of the police officers is relevant only to the extent that such intent has been conveyed to the person confronted by the police.”

Here, although the defendant was given his Miranda rights while at the police station, that fact does not of itself provide conclusive evidence that defendant had been improperly detained. In People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003, the defendant voluntarily went to the police station, was placed in a small interrogation room, talked with the police for about 40 minutes, was advised of his Miranda rights and questioned twice at 11 a.m. and 1:15 p.m. The defendant agreed to take a polygraph test, and later confessed to murdering his son and was arrested. The court there held that a reasonable man would not have believed that he was in custody at 1:15 p.m. despite the fact that he was given Miranda rights. The court stated that advising defendant of his Miranda rights does not, of itself, create a custodial situation. After considering the facts and circumstances of this case, we find that a reasonable person in defendant’s shoes would not have believed that he was under arrest. Thus, we conclude that defendant’s statements were not taken in violation of his fourth amendment rights. People v. Melock (1992), 149 Ill. 2d 423, 437.

Additionally, defendant here has not met the second prong of the Strickland test. Defendant must show that but for trial counsel’s failure to file the motion to quash arrest, the outcome would have been different. As a general rule, trial strategy encompasses decisions such as what matters to object to and when to object. (People v. Grant (1976), 38 Ill. App. 3d 62, 70, 347 N.E.2d 244.) Furthermore, counsel’s failure to bring a motion, to object to testimony, or to object to portions of closing arguments does not establish incompetent representation. (People v. Pecoraro (1991), 144 Ill. 2d 1, 4, 578 N.E.2d 942.) There is no evidence present in the record to suggest that defendant’s motion would have been granted if it had been filed. On the contrary, the testimony of Officers Tracy and Glynn provided sufficient evidence that defendant was not detained improperly. Thus, the probability is that the outcome would not have been different had the motion been filed. Therefore, because defendant has failed to meet the two-prong Strickland test, we conclude that he was not denied effective assistance of counsel.

Defendant next argues that he was denied a fair trial by several instances of prosecutorial misconduct. His first instance of error involved the prosecutor’s labeling of defendant as “twisted,” “warped,” and “malignant.” Defendant asserts that these remarks inflamed the jury. He maintains that remarks that are inflammatory or dehumanize a defendant are improper. (People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089.) Defendant also argues that the prosecutor’s reference to the victim’s family likewise aroused the passion of the jury. Defendant’s final contention is that the prosecutor improperly commented on defendant’s decision not to testify at trial.

It is well established that a prosecutor is allowed wide latitude in closing argument. (People v. Morando (1988), 169 Ill. App. 3d 716, 523 N.E.2d 1061.) This includes the right to comment on the evidence and draw reasonable inferences therefrom. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 1132.) The prosecutor may also make comments in rebuttal argument that are invited by comments made in defense counsel’s own argument. (People v. Sutton (1977), 45 Ill. App. 3d 739, 359 N.E.2d 1132.) Further, even if the prosecutor’s comments are improper, they will constitute reversible error only if they result in substantial prejudice to the defendant or constitute a material factor in his conviction. Morando, 169 Ill. App. 3d at 733.

Here, defendant failed to raise these issues in his post-trial motion, so they are waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Additionally, even if the remarks were improper, they cannot be said to individually or cumulatively have had a material effect on the outcome of the trial.

As to defendant’s claim that the prosecutor made remarks about his decision not to testify, when the statement is viewed in context, it cannot be said that the comment was made to inform the jury of defendant’s decision not to testify. Further, although comment on a defendant’s failure to testify is constitutional error, the error does not inevitably require that defendant be granted a new trial. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Notwithstanding the occurrence of constitutional error at trial, a criminal conviction may be affirmed if the reviewing court is able to conclude, upon examination of the entire record, that the error was harmless beyond a reasonable doubt. (People v. Howard (1992), 147 Ill. 2d 103, 588 N.E.2d 1044.) The prosecutor made the following statement:

“Well, ladies and gentlemen, there are two people who were the best witnesses to this crime. One of them is dead and cannot be here to tell you what happened. The other is Clifford Davis. The other witness is Clifford Davis.”

It is not clear that this argument was to direct the jury’s attention to the fact that defendant did not testify. However, the evidence in the record reveals that defendant voluntarily went to the police and agreed to talk. The testimony of Officers Tracey and Glynn supports the fact that defendant was given his Miranda rights, was not handcuffed while at the station, and that defendant voluntarily confessed to the murder. In light of these facts, we find that any reference to defendant’s failure to testify was harmless beyond a reasonable doubt.

Finally, defendant argues that he was improperly sentenced where the court considered unreliable hearsay at the sentencing. He asserts that the testimony of Eva Fielder was unreliable.

Hearsay testimony can be admitted in a sentencing hearing only if it is reliable. (People v. Perez (1985), 108 Ill. 2d 70, 483 N.E.2d 250.) Here, at defendant’s sentencing hearing Eva Fielder, the mother of defendant’s former girl friend, Billie, testified that in 1978 the defendant shot Billie, injuring her hand and foot. Detective Heitman testified at the sentencing hearing that the defendant was subsequently charged and pleaded guilty to the charge of attempted murder. resulting from the incident.

The information provided by Fielder was relevant and reliable. Although hearsay, it was relevant here as it showed defendant’s propensity for violence. The information was corroborated by Detective Heitman, who testified that the defendant was arrested in 1978 on the charges. Thus, it was reliable. We therefore find that the testimony was properly admitted and that defendant was not improperly sentenced based on that testimony.

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

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.