author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY KACZMAREK, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—3182
    Opinion filed March 31, 1993.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, and Dennis M. Cooley, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, defendant, Henry Kaczmarek, was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1), residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3), home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11), and armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 18 — 2). He was sentenced to natural life in prison for the murder conviction. On appeal, defendant asserts that (1) he was not proven guilty beyond a reasonable doubt because no physical evidence was found in the apartment to link him to the crime; (2) he was not proven guilty of armed robbery beyond a reasonable doubt; (3) he was not proven guilty of home invasion or residential burglary beyond a reasonable doubt; (4) the trial court erred in denying defendant the opportunity to offer evidence that someone other than himself committed the offense; (5) the trial court erred in precluding defendant from introducing the remainder of his statement after the State introduced part of that statement; (6) he is entitled to a new trial because the State improperly argued that Ms. Nielson’s blood matched the bloodstains found on his jacket and pants and impermissibly argued that the percentage of people having Ms. Nielson’s blood type was less than 1%; (7) his due process right to a fair trial was denied by restricting his ability to impeach Ron Larry regarding his pending contempt charge; and (8) he is entitled to a new trial because the trial court refused to instruct the jury on the affirmative defense of voluntary intoxication. We reverse and remand.

Millie Nielson, who was 86 years old, lived on the first floor of a two-flat building at 3507 W. Diversey Avenue, Chicago. Dan Larry, his wife, Margaret Larry (now ex-wife), and Margaret’s 19-year-old son, John Fisher, lived on the second floor. On April 25, 1987, Ms. Nielson’s body was found beaten, strangled, and stabbed in her home.

Margaret testified that she saw Ms. Nielson on April 24, 1987, around 4:40 p.m. At 6:15 p.m., Margaret and John went bowling, returning home about 10:40 p.m. Her ex-husband, Dan, was passed out on the couch from drinking. Defendant, who had been living with the Larrys for a month, was in the apartment, drinking beer and watching television. Margaret noticed that defendant was wearing light-colored jeans and a dark, quilted jacket, but did not notice any stains on his clothes. Before Margaret went to bed at 11 p.m., defendant helped her put Dan to bed.

Margaret further testified that she was awakened at midnight by Dan’s brother, Ron Larry, who was ringing the doorbell. When he asked if Dan was there, Margaret told him “no,” because she did not want him in her home.

Around 2 a.m., defendant rang the front doorbell and asked if Dan was awake. After Margaret told defendant that he was asleep and she would not wake him, she locked the door and went back to bed. Margaret stated that defendant was not slurring his words, staggering, or swaying. She did not have trouble understanding him even though she did have trouble understanding him when he was drunk.

When Margaret awoke at 7:15 a.m. on April 25, 1987, defendant was sleeping on the living room couch. He was wearing a short-sleeved yellow dress shirt and clean, dark jeans. Defendant awoke at 8 a.m. Although he did not stumble or sway, he looked nervous as he walked around the coffee table two or three times. Margaret stated that defendant always looked nervous after a night of drinking. Margaret left the house around 9 a.m.

On cross-examination, Margaret testified that she told the police on April 25, 1987, that no one had left the house the previous evening. She also did not tell the police that defendant was wearing different clothes on Saturday morning.

John Fisher testified that he and defendant watched television until John went to bed about 11:30 p.m. or 12 a.m. on April 24, 1987. At that time, defendant was wearing his usual attire, which was light-colored blue jeans, a flannel shirt, and a blue quilted jacket. John did not notice any stains on defendant’s clothes. Defendant left the apartment, returned about 30 minutes later, and asked if Dan was awake. When John replied “no,” defendant told him that he was going back out to find his car. John stated that he had no trouble understanding defendant even though he had trouble understanding him when he was drunk. John further testified that defendant did not stagger, sway, or have any problems walking.

John stated that he awoke at 10 a.m. on April 25, 1987, when the police came to question him. Initially, he told the police that no one had left the house the previous evening. Around noon, after speaking with numerous police officers, John told them that defendant had left the house. John said that it was not unusual for defendant to go out and return late at night. John stated that he was a heavy sleeper and did not hear the doorbell during the night.

Ronald Sadlowski, Ms. Nielson’s maintenance helper, testified that, at 9:45 a.m. on April 25, 1987, he noticed that Ms. Nielson’s back pantry window was broken and the back storm door was open. He called the police.

When Chicago police officer Ross Marsala responded to the call, he found Ms. Nielson’s body lying face up on a bed in the rear bedroom. Marsala testified that bloodstains were on the floor and a bloodstained knife was on a small kitchen table. In the second bedroom, the dresser drawers were open, papers were scattered on the floor, and the bed’s dust ruffle was bloodstained. In the front of the apartment, there was a small cabinet with open doors. Officer Marsala did not notice any signs of forced entry. The front door was locked with the keys still in the lock.

Dennis Yeneigh, a Chicago police crime lab officer, testified that he dusted for fingerprints, but found none suitable for lifting. On the broken pieces of glass near the back door, Yeneigh found fabric impressions, indicating that a cloth or gloves had been used. He also found fabric impressions on the door frame outside the rear bedroom.

Chicago police detective Jerome Bogucki testified that Ron Larry told him that he went to Dan’s apartment around 1 a.m. to sleep on the second-floor back porch from where he saw defendant in the backyard carrying a bag. Around 1 a.m. on April 26, 1987, Detective Bogucki and his partner went with Ron to find defendant. When they found defendant sleeping in his car, the detectives approached the car, shined their flashlights, knocked on the window, identified themselves as police officers, and asked defendant to step out of the car. Bogucki noticed two small bloodstains on the sleeves of defendant’s quilted jacket. Defendant was also wearing blue jeans and a plaid shirt. Bogucki did not notice any bloodstains on defendant’s shirt, pants, or shoes. The detectives placed defendant under arrest, advised him of his Miranda rights, and took him to the police station. Bogucki stated that defendant did not appear to be drunk or smell of alcohol.

At the police station, defendant was cooperative and signed written consent forms to give a blood sample and to search his car. While searching the car, detectives found numerous bloodstained jewelry boxes, jewelry, a Marshall Field’s bag containing serving plates and dishes, an alarm clock, a clock radio, a purse, a claw hammer, a glass cutter, a screwdriver, pliers, clothing, and jeans with bloodstains on both legs.

Detective Robert Davie, the evidence technician who processed defendant’s car, testified that he did not find any gloves or any blood in the trunk and none of the items had fingerprints suitable for comparison. Various evidence technicians testified that there were no fingerprints suitable for comparison found in Ms. Nielson’s apartment, on any of her possessions, or on the knife identified as the possible murder weapon. Ms. Nielson’s family members viewed the property and identified numerous pieces of Ms. Nielson’s jewelry, serving dishes, and alarm clock.

Dr. Michael Chamblis, who performed the autopsy, testified that Ms. Nielson had multiple head and facial injuries, external bruises and abrasions to her jaw and neck resulting from multiple blunt blows, and lacerations and bruises to her arms, left thigh, right forearm, hands, right wrist, and right elbow. There were multiple bruises on Ms. Nielson’s right breast, right front shoulder, upper left chest, and right clavicle. She also had internal injuries that indicated manual strangulation, including a fractured and hemorrhaged larynx, a hemorrhaged tongue, and a bite mark on Ms. Nielson’s tongue. In addition, the undersurface of Ms. Nielson’s scalp, skull, and brain were bruised from multiple blows to the head.

Because it is common for stab wounds to ooze blood after the infliction of the wound, Dr. Chamblis explained, it would not be unusual for the killer to have only a small amount of blood on his clothes despite the fact that Ms. Nielson lost a considerable amount of blood. In Dr. Chamblis’ opinion, Ms. Nielson was on her back when stabbed in the legs. Several of the wounds were defense wounds. Dr. Chamblis concluded that Ms. Nielson died as a result of strangulation with contributing factors of blunt force injuries and multiple stab wounds. Dr. Chamblis also testified that Ms. Nielson could have died from blunt force injuries.

Pamela Fish, a serology expert, testified that she examined blood samples from defendant, Ms. Nielson, defendant’s jeans and quilted jacket, and Ms. Nielson’s kitchen floor. Fish determined that Ms. Nielson had Type A blood with the EAP-BA enzyme and defendant has Type B blood with EAP-CA enzyme. Their ESD, PGM, ADA, AK, hemoglobin, PEP A, and G-6PD enzymes were the same. The blood on defendant’s jeans, defendant’s quilted jacket, and Ms. Nielson’s kitchen floor all tested positive for Type A blood. In addition, defendant’s clothes had the same enzymes as both defendant and Ms. Nielson. There was an insufficient amount of blood on the knife and jewelry boxes from defendant’s car trunk to be able to type the blood.

On cross-examination, the defense counsel questioned Fish about the frequency of Type A blood in the general population. Fish testified that 40% of the population had Type A blood. On redirect examination, she stated that 8 in every 1,000 people, or less than 1% of the population, have the ESD 2-1 with Type A blood.

After the State rested its case, the trial court granted the State’s motion in limine that defense counsel not be allowed to present evidence of similar crimes in his case in chief. Defense counsel argued that he wanted to present evidence of similar crimes against Louis Bergeron and Ruth Agapi that occurred within IV2 blocks of Ms. Nielson’s apartment during the 10 days prior to her murder.

Defendant testified that he was a construction worker, had a ninth-grade education, was not married, had a speech problem, and started drinking when he was 10 or 11 years old. In April 1987, he lived with the Larrys for six weeks. He was not working at the time because he had been laid off the previous fall.

According to defendant, he fought with Bob Hendrickson and Tom Szeszol three days before he was arrested. As a result, Bob and Tom were bleeding and defendant’s knuckle was cut. Later that same night, defendant found a man trying to break into his car, so he hit him three or four times and then kneed him. As a result of that incident, the man bled.

Defendant testified that he began drinking with Dan in the morning of April 24, 1987. They went to Tom’s apartment, where he washed his laundry. Defendant wanted to soak a pair of jeans that had blood on them, but he did not have a chance to do so before Tom asked him to leave. Defendant testified that he put the bloodstained jeans in his car trunk, drove Dan home, and went to Mike’s Tavern until 6:30 p.m. Defendant then went to the Larrys’ apartment, where he and Dan drank a case of beer. Defendant denied helping Margaret put Dan to bed that night.

Defendant stated that he left the Larrys’ apartment at 11:45 p.m. to go to a tavern, where he had two drinks in 15 minutes. He then went to another tavern, where he had 12 drinks. At 2 a.m., he went back to the Larrys’ apartment. Because he had to relieve himself, defendant parked his car in the alley behind the building. While in the alley, he heard a noise and went into the gangway. He saw a garbage bag next to the house, picked it up, and put it into the trunk of his car without looking in it. After relieving himself, defendant drove to the front of the building, parked, and went upstairs to see if Dan was awake.

Even though he had a key to the apartment, defendant rang the doorbell. Margaret told him that Dan was still asleep, so defendant went back to the second tavern. After closing, he gave Liz Finuchi and Dan Funkhauser a ride home. Around 4:30 a.m., he returned to the Larrys’ apartment, parked his car across the street, went upstairs, and went to sleep on the living room couch. He did not take off his clothes before going to sleep.

After awaking at 8 a.m., defendant and Dan went to a tavern and then drove to Bill Brown’s house so that he could repay a debt. Defendant testified that the first time he looked into the bloodstained garbage bag was at Bill’s house. Defendant separated the items, and threw the bag, pillowcase, and worthless items into a dumpster. Bill gave defendant $60 for the silver spoons.

Defendant then drove Dan home and went to a tavern for a few beers. He called Dan, who told him about the murder. Defendant then went to the Larrys’, but no one was home, so he went back to the tavern. Later, he fell asleep in his car. He was awakened by the police, who arrested him and took him to the police station, where he was questioned.

Defendant denied breaking into Ms. Nielson’s apartment, killing her, or stealing her property. He stated that he saw Ms. Nielson only once, did not know that she lived alone, and did not remember telling the police, “maybe I did it, but I don’t remember.”

Detective Raymond Schalk testified that he questioned defendant on April 26, 1987, around 2:15 a.m. After telling defendant that Ron saw him walking through the backyard with a bag, that they recovered items from his car trunk, and that his jacket and jeans had blood on them, defendant responded, “maybe I did it. I don’t remember.”

Assistant State’s Attorney Richard Stevens testified that he interviewed defendant at 9 a.m. on April 26, 1987. When Stevens asked defendant if he was in Ms. Nielson’s apartment on April 24 or April 25, defendant replied that he could have been there. When Stevens asked him if he had killed Ms. Nielson, defendant responded that he could have, but did not remember.

Ron Larry, who had previous felony convictions, testified that he went to his brother’s second-floor back porch around 1 a.m. on April 25, 1987, to sleep after drinking heavily. Ron did not pay attention to Ms. Nielson’s back porch, which was on the first floor.

According to Ron, he saw defendant walking through the back yard carrying a garbage bag about 2:30 a.m. Ron did not see defendant on Ms. Nielson’s back porch nor did he hear any noise coming from Ms. Nielson’s apartment. Ron denied ringing the Larrys’ doorbell or speaking to anyone in the Larrys’ apartment that night. Ron further testified that he awoke at 7 a.m. and left. He did not notice anything unusual on the first-floor porch at that time.

Because he had a pending contempt charge for not complying with a defense subpoena in this case, Ron was appointed an attorney. When the defense counsel attempted to question whether Ron came to court voluntarily or because he had been arrested for noncompliance with the subpoena, Ron’s counsel objected. Because the questioning involved a pending contempt case, the trial court sustained the State’s objection.

Tom Szeszol testified that defendant came to his apartment on the afternoon of April 24, 1987. His ex-wife, Julia, was washing defendant’s clothes. Tom wanted his friends to leave, so he gave defendant a clean set of clothes, which defendant was wearing when he left. Although Tom admitted getting into a fight with defendant, he stated that the fight was two weeks before defendant’s arrest, not three days. Tom testified that his blood type was B positive.

Julia Dillow, Tom’s ex-wife, testified that she was doing defendant’s laundry on April 24, 1987, while he was playing cards and drinking. She did not finish washing his clothes before he left. She stated that Tom gave defendant one of his flannel shirts and a pair of jeans to wear.

Elizabeth Finuchi testified that she had been drinking for four or five hours when she saw defendant at a tavern after 2 or 2:30 a.m. on April 25, 1987. Defendant bought her a drink and then drove her and a friend home around 4 a.m. Finuchi stated that she did not notice anything unusual about defendant or his clothes.

Daniel Funkhauser testified that defendant gave him and Finuchi a ride at 4 a.m. on April 25, 1987. Funkhauser stated that he had been drinking for eight hours, did not notice anything unusual about defendant, nor did he notice any blood on defendant’s clothing, coat, or hands.

Bill Brown testified that defendant and another man came to his home at 1:30 or 2 p.m. on April 25, 1987. Bill stated that defendant showed him some old coins, costume jewelry, work clothes, and silverware, which were in his car trunk. Bill testified that it was not unusual for defendant to have silverware in his trunk. After Bill gave defendant $20 or $30 for the coins and silverware, the two men left.

Pamela Hines, who previously lived with defendant, testified that defendant used a Marshall Field’s bag as luggage when he moved out of her home. She also stated that the two clocks found in defendant’s trunk were his and that defendant owned tools, including a glass cutter.

Chicago police officer William Kaupert testified that there was blood on Ms. Nielson’s kitchen floor, on the floor next to the rear bedroom, in the front bedroom, on a white box, on the door molding, on a table, and on two walls in the rear bedroom. Kaupert stated that there were glove impressions on the molding, no fingerprints suitable for comparison, and the window had been broken out, not in.

The trial court denied defendant’s request for an instruction on the affirmative defense of voluntary intoxication.

During closing arguments, the State remarked:

“[Pamela Fisher] pointed out to you *** that the blood of Millie Nielson matches that of the blood found on Henry Kaczmarek’s jacket and Henry Kaczmarek’s jeans.

* * *

She also told you that less than one percent of the population has the same blood that matches that found on the defendant’s clothes.”

In its rebuttal argument, the State commented:

“[I]f you look at every other enzyme [other than GLO 1, where there was no reaction] and compare it with Millie Nielson’s known blood standard, they all match up. They are all identical, and the reason they are identical is because when Millie Nielson was fighting this defendant, she was dropping blood on his clothes. That’s why they are identical.

* * *

Millie Nielson has supplied us with the evidence to convict the defendant. Her blood is on his clothes.”

Following closing arguments, the jury found defendant guilty of murder, residential burglary, home invasion, and armed robbery. After denying defendant’s motion for a new trial, the trial court sentenced him for murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)) to natural life imprisonment without parole based on the brutal and heinous nature of the offense and on felony murder.

Defendant asserts that he was not proven guilty beyond a reasonable doubt since no physical evidence was found in the apartment to link him with the offense. Neither his fingerprints nor blood was found in Ms. Nielson’s apartment, and no blood was found on his boots. Defendant maintains that the amount of blood in Ms. Nielson’s apartment would indicate that the offender had a significant amount of blood on his clothes and on the bottom of his shoes. Instead, defendant argues, the two small bloodstains on his jacket were consistent with merely carrying the bloody garbage bag to the car and the bloodstains on his jeans were consistent with them being in the car trunk next to the bloody garbage bag. Furthermore, defendant contends, Ron’s testimony is consistent with his explanation that he found the garbage bag in the backyard. Ron testified that he saw defendant carrying a garbage bag with his arms extended in front of him. Defendant states that he threw out the bloodstained garbage bag on the way to Bill’s house the next day. The police did not find the garbage bag.

Moreover, defendant argues, Ron never saw him go inside the apartment, come out of the apartment, on the porch, or any closer than 10 feet from the building. Defendant’s theory of defense was that someone else, probably Ron, was the offender. Defendant states that Ron’s testimony was inconsistent and he had the opportunity to commit the crime. In light of his testimony regarding how he found and carried the bag of items, getting bloodstains on his clothing, defendant concludes that the State’s circumstantial evidence was insufficient to prove him guilty beyond a reasonable doubt.

When a conviction is based on circumstantial evidence, it will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) No longer is the State required to exclude every reasonable hypothesis of innocence. (People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Eyler (1989), 133 Ill. 2d 173, 191.) Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to establish the guilt or innocence of the defendant. People v. Evans (1981), 87 Ill. 2d 77, 83.

Although another jury could have analyzed the evidence differently, this jury could reasonably infer from all the evidence that defendant was guilty of murder even without physical evidence in the apartment that linked him to the offense. Defendant had the opportunity to kill Ms. Nielson. He was seen near her apartment carrying a garbage bag containing some of her property. Blood that is consistent with Ms. Nielson’s blood was on defendant’s jacket and jeans. Some of Ms. Nielson’s property was found in defendant’s car trunk. The evidence is not so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. Therefore, we affirm defendant’s murder conviction.

Next, defendant asserts that the trial court erred in denying him the opportunity to offer evidence of similar crimes committed in close physical and temporal proximity to this offense and that those victims were prepared to testify that defendant was not the offender in those crimes.

During the cross-examination of Officer Bogucki, defendant was precluded from introducing evidence that two people severely beat and robbed Louis Bergeron, who was 86 years old, on April 16, 1987. Then, prior to defendant’s case, the trial court sustained the State’s motion in limine, precluding defendant from introducing any evidence of crimes against Louis Bergeron or Ruth Agapi.

Defense counsel stated that he intended to call both persons in his case in chief. Bergeron would testify that he lived IV2 blocks from Ms. Nielson’s apartment; he was robbed and beaten at his home on April 16, 1987; and the two offenders were wearing gloves. After giving a description of the two people, Bergeron would testify that defendant was not one of the offenders.

Agapi, who lived almost directly across the street from Ms. Nielson, would testify that approximately one week before Ms. Nielson’s murder, she heard noises on her back porch. After continuing to hear noises, she saw a gloved man standing on her previously locked porch. Agapi did not open the door and the man left. Agapi would have testified that defendant was not the man she confronted.

Defendant argues that those two offenses had many similarities to this offense. They were close in time and they both occurred on Diversey Avenue within IV2 blocks of Ms. Nielson’s apartment. The offenders in the Bergeron and Agapi incidents wore gloves as did the offender in this case. Bergeron was an elderly person beaten and left for dead. In the Agapi case, the offender got in a locked door without signs of forced entry. Defendant concludes that he must be given a new trial because the jury was precluded from hearing this relevant exculpatory evidence.

Defendant relies on People v. Watson (1966), 36 Ill. 2d 228, which is factually distinguishable. That defendant, who was charged with attempted forgery by delivery of a forged check, was precluded from introducing evidence that a similar check was forged and cashed after he had been taken into custody. (Watson, 36 Ill. 2d at 231.) The reviewing court ruled that the jury should have been allowed to infer that the defendant did not sign or attempt to deliver either check, thereby exonerating him from the offense charged. Watson, 36 Ill. 2d at 231.

Defendant then cites cases that involve the admission of other crimes evidence against a defendant. See People v. Richardson (1988), 123 Ill. 2d 322; People v. Nitti (1924), 312 Ill. 73; People v. Lewis (1983), 115 Ill. App. 3d 389.

A defendant must be allowed to offer competent evidence that he was not the perpetrator of the offense. (Watson, 36 Ill. 2d at 232.) To do that, the defendant may present evidence that is not too speculative or too remote in time. (People v. Morgan (1991), 142 Ill. 2d 410, 441.) The trial court has broad discretion in ruling on evidentiary issues and will not be reversed absent an abuse of discretion. People v. Bruce (1989), 185 Ill. App. 3d 356, 365.

The trial court did not abuse its discretion in barring the evidence of the other two offenses. They were not similar enough to this crime to be relevant. Even though they were close in time and proximity, the types of offenses were different. Not only were they different from this offense, but they were different from each other. Bergeron was a male, who was not killed or stabbed, and no windows were broken. Agapi was not even attacked. Moreover, there is no evidence that suggests that the same person was involved in the Bergeron and Agapi offenses.

Next, defendant asserts that the trial court erred in precluding him from introducing the remainder of his custodial statement after the State introduced part of that statement. By relating only defendant’s statement that he may have committed the offense, but did not remember, defendant argues that the State falsely insinuated that he never previously told the police about finding the garbage bag in the backyard. Defendant maintains that the entire statement was necessary to give the jury adequate information to determine the weight of the statement, if any; to rebut the State’s theory; and to make sure that the jury was not misled.

On cross-examination, the State asked defendant whether he told the police when he was arrested, “maybe I did it, but I don’t remember.” Defendant replied that he did not recall saying that to the police.

During the State’s rebuttal case, Officer Raymond Schalk testified that on April 26, 1987, defendant denied committing the offense, but later told him, “maybe I did it, I don’t remember.” On cross-examination, defense counsel asked if defendant told him more. The court sustained the State’s objection.

Assistant State’s Attorney Stevens testified that defendant told him that he could have killed Millie Nielson but he did not remember. In its closing argument, the State repeatedly commented that defendant admitted he could have killed Ms. Nielson but did not remember.

Defendant argues that the State misled the jury into thinking that “today” at trial two years after he was arrested, he invented the story that he found the bag, two years after he was arrested. In questioning defendant during the trial, the State repeatedly asked, “[t]o-day you remember picking] up the bag,” “[tjoday you remember putting] it in the trunk.” Later, the State argued in closing argument “[although the defendant told detectives one day after the murder that he didn’t remember, today he remembers, two years later he remembers.”

Defendant relies on People v. Weaver (1982), 92 Ill. 2d 545, 556, where the court ruled that the failure to allow the defendant to bring forth his entire statement was prejudicial because further details about the conversation could have affected the jury’s belief about the defendant’s truthfulness during the conversation. The State was allowed to introduce selected, unrecorded verbal statements made by the defendant, including a statement that there were two men with guns in her house and that she ran from the house in a panic. In that case defense counsel was precluded from bringing out the entire content of the statement, including what else defendant had said about the two men. (Weaver, 92 Ill. 2d at 556-57.) Without the entire conversation, the jury could have been misled into thinking that the defendant said nothing more. Weaver, 92 Ill. 2d at 556-57.

Defendant also cites People v. Klinkhammer (1982), 105 Ill. App. 3d 747, 749, where the court held that a jury should be entitled to hear defendant’s entire statement in order to determine the amount of credence it should give any inconsistency. A State witness had made a tape-recorded statement to police implicating himself and the defendant. (Klinkhammer, 105 Ill. App. 3d at 748.) At trial, during cross-examination, the defendant used portions of the taped statement to impeach the witness by exposing contradictions in his testimony. (Klinkhammer, 105 Ill. App. 3d at 749.) During redirect examination, the trial court allowed the State to introduce the entire statement into evidence. (Klinkhammer, 105 Ill. App. 3d at 748.) The reviewing court ruled that the trial court properly allowed the State to introduce the full statement. Klinkhammer, 105 Ill. App. 3d at 749.

In addition, defendant cites People v. Hartness (1977), 45 Ill. App. 3d 129, 141, where the appellate court held that the trial court erred in limiting the defendant’s further examination of the witness since the unexplained testimony could be susceptible to misconstruction.

The State responds that defendant’s entire statement was introduced when he testified at trial; that the defense counsel’s attempt to re-cross-examine Detective Schalk on rebuttal was improper because it was out of the scope of the redirect examination; and that the defense counsel failed to ask the proper questions on cross-examination. Consequently, the State concludes that the trial court did not abuse its discretion in limiting the re-cross-examination to the scope of the redirect examination.

It is well established that if one party introduces part of an utterance or writing, the opposing party may introduce the remainder or as much as is required to place that part originally offered in proper context so that a correct and true meaning is conveyed to the jury. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556.) Once a conversation is related by a witness, the opposing party has the right to bring out all of the conversation on cross-examination. (Weaver, 92 Ill. 2d at 556.) Furthermore, if a witness has been impeached by proof that he has made prior inconsistent statements, he may bring out all of the prior statements to qualify or explain the inconsistency and rehabilitate the witness. People v. Harris (1988), 123 Ill. 2d 113, 142.

The trial court erred by not allowing defendant to present his entire statement. Without hearing defendant’s entire statement, the jury could have been misled into thinking that the first time defendant stated that he found the garbage bag in the backyard was at trial instead of at the time he was arrested. Furthermore, the prosecutor’s urging the jury to consider his statement substantively made it all the more important that the full context of his statement be given. Since the jury’s assessment of his credibility was crucial, the error was prejudicial. Although the evidence linking defendant to the murder was sufficient for the jury to find him guilty beyond a reasonable doubt, there was not such overwhelming evidence of guilt so as to find the error harmless. (People v. Enis (1990), 139 Ill. 2d 264, 298.) Consequently, we reverse defendant’s murder conviction and remand this cause for a new trial.

Next, defendant asserts that he is entitled to a new trial because the State improperly argued that Ms. Nielson’s blood matched the bloodstains found on his clothes and impermissibly argued that the percentage of people having Ms. Nielson’s blood type was less than 1%. Defendant waived the issue because he did not object to the prosecutor’s closing argument.

Defendant then asserts that his sixth amendment and due process rights to a fair trial were denied by restricting his ability to impeach Ron Larry regarding his pending contempt charge. Defendant argues that it was critical to show that Ron had a motive to lie because (1) defendant’s theory was that Ron implicated defendant to the police because Ron was the offender and (2) Ron had a pending contempt charge for failing to appear at the trial pursuant to a defense subpoena. When defendant attempted to question Ron about the circumstances of the contempt charge, the trial court sustained the State’s objection.

The State responds that the trial court properly precluded defendant from questioning Ron about his pending contempt charge because the charge had no significance to Ron’s motive, bias or interest to lie. Furthermore, the State explains, the trial court prohibited any questions about Ron’s pending charge so that he would not be forced to incriminate himself.

A defendant may question a witness on any matter where it would reasonably tend to indicate that his testimony might be influenced by an interest, bias, or motive to testify falsely. (People v. Triplett (1985), 108 Ill. 2d 463, 475.) That evidence must not be remote or uncertain, but must give rise to the inference that the witness has something to gain or lose by his testimony. (People v. Foley (1982), 109 Ill. App. 3d 1010, 1015.) The accused has the right to question a witness concerning any matter that explains, modifies, or discredits what he said on direct examination. People v. Barr (1972), 51 Ill. 2d 50, 51.

The trial court did not err by prohibiting the defense counsel from inquiring into Ron’s pending contempt charge. Ron’s testimony at trial was essentially the same as his initial statement to the police the day after Ms. Nielson’s murder. Since the contempt charge did not arise until after the trial began, it was irrelevant to any motive, bias or interest to lie. The trial court properly barred that question so that Ron would not be forced to incriminate himself.

Next, defendant asserts that he is entitled to a new trial because the trial court refused to instruct the jury on the affirmative defense of voluntary intoxication. We disagree.

Under Illinois law, a person in an intoxicated condition is criminally responsible for his conduct unless the condition is so extreme that it suspends his power of reason and renders him incapable of forming a specific intent that is an element of the offense. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 555; Ill. Rev. Stat. 1987, ch. 38, par. 6 — 4(a).) Merely being intoxicated is insufficient to create a defense. People v. Feagans (1983), 118 Ill. App. 3d 991, 997.

There was no evidence presented that defendant was intoxicated and not in control of his actions. Instead, there was significant testimony that defendant was not intoxicated the night Ms. Nielson was killed. Thus, the trial court did not abuse its discretion by refusing to tender the voluntary intoxication defense instruction.

The defendant asserts that he was not proven guilty of residential burglary, home invasion and armed robbery beyond a reasonable doubt. Although guilty verdicts were returned against defendant for the offenses of residential burglary, home invasion, and armed robbery, no sentence was imposed on those verdicts. The final judgment in a criminal case is the sentence, and in the absence of the imposition of a sentence, an appeal cannot be entertained. (People v. Caballero (1984), 102 Ill. 2d 23, 51.) The notice of appeal in the record only appeals from the murder conviction and sentence.

For this reason, the residential burglary, home invasion, and armed robbery convictions are not before this court. The appeals for these convictions are therefore dismissed.

Based on the foregoing, the murder conviction is reversed and remanded for a new trial.

Reversed and remanded.

TULLY, P.J., and GREIMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEREK CROSBY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1479
    Opinion filed March 24, 1993.

      Rita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Derek Crosby, was convicted of three counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) and one count of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1) in a jury trial. Following a death penalty hearing, the trial court determined that mitigating factors existed precluding the imposition of a death sentence and sentenced defendant to natural life imprisonment on the murder convictions to run concurrently with an extended term of 60 years’ imprisonment on the attempted murder conviction. On appeal, defendant contends that (1) the trial court erred when it refused to instruct the jury on the affirmative defense of voluntary intoxication; (2) the trial court improperly excused prospective jurors who disagreed with the death penalty; (3) he was denied effective assistance of counsel; and (4) the sentence of natural life imprisonment violates the United States and Illinois Constitutions. We affirm.

On August 1, 1987, Chicago police officers responded to a disturbance at 5430 West Madison Street in Chicago. At the scene, police discovered the slain bodies of Sidney Crosby, Lois Crosby and Ethyl Smith, all of whom had died of multiple stab wounds. Vernita Crosby, the daughter of Sidney and Lois Crosby, also received multiple stab wounds but survived the incident.

Defendant, the son of Sidney and Lois Crosby, appeared at Loretto Hospital complaining of minor lacerations on his left hand and muttering that someone had killed his mother. When police detectives arrived at the hospital to question defendant, he initially told them that a man who sells him cocaine stabbed his mother. After detectives informed defendant that his sister Vernita was still alive, defendant admitted his involvement in the murders and gave the following sworn statement to police:

“Sometime during the early morning hours of August 1st, *** Vernita and [defendant] got into an argument because [defendant] sold Vernita’s VCR. [Defendant] stated Vernita grabbed a knife and that he too picked up a knife and they began slashing at each other. Lois Crosby, [defendant] and Vernita’s mother, stepped in between to break it up and [defendant] stuck her a couple times. [Defendant] stated he cut his mother in the side by her breast and in the stomach area. [Defendant] said his father, Sidney Crosby, came from behind and grabbed him by his left shoulder. [Defendant] had the knife in his right hand and turned around and cut Sidney Crosby a couple times. [Defendant] then chased his sister into the front. [Defendant’s] aunt, Ethyl Smith, was pounding on the door. Vernita opened the door and ran out past Ethyl Smith who was standing at the door. [Defendant] may have cut Ethyl Smith because he was still fighting with Vernita.”

A toxicology screening ordered by treating emergency room physicians indicated that defendant’s blood-alcohol level was .08, slightly below the presumptive level of alcohol intoxication. The test, however, did not detect the presence of cocaine or phencyclidine (PCP). Following a jury trial, defendant was found guilty of three counts of first degree murder and one count of attempted murder. This appeal followed.

Defendant first contends that the trial court erred when it refused to instruct the jury on the affirmative defense of voluntary intoxication where the evidence presented at trial demonstrates that defendant was in a PCP-induced psychosis when he committed the murders in question. Voluntary intoxication is an affirmative defense which excuses or mitigates the conduct charged if the intoxication is so extreme as to suspend the power of reason and render the defendant incapable of forming the requisite intent of the crime charged. (People v. Leger (1991), 208 Ill. App. 3d 333, 338, 567 N.E.2d 68, 71.) While only slight evidence of intoxication is required in order for the trial court to instruct the jury on voluntary intoxication, it is within the discretion of the trial court to refuse to tender an instruction where there is insufficient evidence for a jury to reasonably find that the defendant was intoxicated. (People v. Reece (1992), 228 Ill. App. 3d 390, 394-95, 591 N.E.2d 993, 996-97.) After reviewing the record in its entirety, including defense counsel’s offer of proof and the testimony of Drs. Gniadecki, Roskam, Ganellen, Kaplan and O’Donnell, we find there is insufficient evidence to support a finding that defendant was under the influence of PCP at the time he committed the murders. Accordingly, the trial court did not err when it refused to tender a voluntary intoxication instruction to the jury.

Defendant next contends that he is entitled to a new trial because the trial court improperly excused prospective jurors who disagreed with the death penalty in violation of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and its progeny. It is clear, however, that the proper remedy for a Witherspoon violation is to vacate an imposed death sentence rather than reversal of the underlying conviction. (Morgan v. Illinois (1992), 504 U.S. 719, 739 n.11, 119 L. Ed. 2d 492, 509 n.11, 112 S. Ct. 2222, 2335 n.11; Witherspoon, 391 U.S. at 522 n.21, 20 L. Ed. 2d at 785 n.21, 88 S. Ct. at 1777 n.21; People v. Emerson (1987), 122 Ill. 2d 411, 437, 522 N.E.2d 1109, 1119.) Nevertheless, our review of the record here reveals that the trial court did not err when it excused prospective jurors for cause after determining that their views towards the death penalty would prevent or substantially impair the performance of their duties as jurors. (Morgan, 504 U.S. at 728-29, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229-30; see also Wainwright v. Witt (1985), 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852.) Accordingly, defendant’s contention that he is entitled to a new trial based on a Witherspoon violation is not supported by fact or law.

Defendant next contends that he failed to receive effective assistance of counsel in violation of the United States and Illinois Constitutions. Defendant, relying on People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, and United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, first argues that defense counsel failed to subject the prosecution’s case to meaningful adversarial testing when she stated in her opening argument:

“This is not a case about a planned, premeditated or intentional crime. This is not a case about a cold heart, about benevolence or about evil. It’s a case about weakness, about drug addiction, about drugs, about crazed behavior, and it’s a case about tragedy.
[Defendant] did kill his mother, his father, his aunt. He did stab his sister. He is guilty, but he is guilty of second degree murder, not first.”

Assistance of counsel is not rendered per se ineffective when defense counsel concedes a client’s guilt to a lesser included offense of the crime charged where evidence of the client’s guilt is overwhelming and a vigorous defense is presented to the crime charged. (People v. Johnson (1989), 128 Ill. 2d 253, 269, 538 N.E.2d 1118, 1125.) Rather, each allegátion of ineffective assistance of counsel must turn on its own particular facts. (People v. Brown (1990), 197 Ill. App. 3d 907, 914, 557 N.E.2d 199, 204.) In the present case, the evidence presented at trial, including defendant’s sworn statement to police and Vernita’s testimony that defendant stabbed their father, their mother, their aunt and then her as she tried to escape, overwhelmingly demonstrates that defendant committed the murders in question. Moreover, the record reflects that defense counsel vigorously presented the legitimate affirmative defense of voluntary intoxication to the first degree murder charge here. (See People v. Leger (1992), 149 Ill. 2d 355, 387-88, 597 N.E.2d 586, 600-01; People v. Kyse (1991), 220 Ill. App. 3d 971, 974, 581 N.E.2d 285, 287 (voluntary intoxication can be raised as an affirmative defense to first degree murder).) The fact that the evidence here was insufficient to establish this defense does not render defense counsel’s representation of defendant ineffective. See People v. Potthast (1991), 219 Ill. App. 3d 714, 721, 579 N.E.2d 1027, 1032.

Defendant next argues that he was denied effective assistance of counsel when defense counsel failed to present a closing argument. Only egregious errors of judgment, trial tactics or strategy by defense counsel will provide a basis for a finding of ineffective assistance of counsel. (People v. Davis (1992), 228 Ill. App. 3d 123, 127, 592 N.E.2d 464, 467.) After reviewing the record in its entirety, we find that defense counsel’s failure to make a closing argument after the trial court refused to give a voluntary intoxication instruction was not an egregious error of judgment or strategy. See People v. Arnett (1991), 217 Ill. App. 3d 626, 636, 577 N.E.2d 773, 778-79.

Defendant further argues that he was denied effective assistance of counsel when defense counsel withheld evidence of PCP intoxication until the death penalty hearing. Because we have determined that the cumulative evidence propounded in the present case, including the evidence presented at the death penalty hearing, was insufficient to warrant a voluntary intoxication instruction, defendant was not prejudiced by defense counsel’s actions here. Accordingly, applying the tests enunciated in Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, we cannot say that defendant was denied his right to effective assistance of counsel as guaranteed by the United States and Illinois Constitutions.

Defendant finally argues that his sentence of natural life imprisonment violates the due process and equal protection clauses of the United States and Illinois Constitutions and the prohibition against cruel and unusual punishment set forth in the United States Constitution. (U.S. Const., amends. VIII, XIV; Ill. Const. 1970, art. I, §2.) This argument has repeatedly been rejected by this court. (See People v. Carreon (1992), 225 Ill. App. 3d 133, 148, 587 N.E.2d 532, 542-43.) Thus, for the reasons previously set forth in Carreon, we find that section 5 — 8—1(a)(1) of the Unified Code of Corrections does not violate the United States or Illinois Constitution. 111. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1).

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY, RJ., and GREIMAN, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LaCOUR, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2796
    Opinion filed March 31, 1993.

      Kathryn Hall, of Hall & Kurz, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jon King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Michael LaCour, was tried in a separate but simultaneously conducted bench trial with Kathy Trevino in the circuit court of Cook County. Thereafter, defendant was convicted of two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1), and sentenced to 25 years’ imprisonment and to 3 years’ mandatory supervised release.

On appeal, defendant contends that (1) the trial court erred in partially denying his pretrial motion to suppress; (2) he was not proved guilty of first degree murder; and (3) he was improperly convicted of two counts of murder.

We affirm as modified.

Defendant was charged with three counts of murder, one count of armed violence, one count of residential burglary, and one count of conspiracy, all in relation to the murder of Frank Trevino. Prior to trial, defendant moved to suppress physical evidence and post-arrest statements he gave to police concerning the victim’s death. At the suppression hearing, defendant testified that on May 12, 1988, at approximately 11:45 a.m., school officials at St. Rita High School in Chicago removed him from class and took him to the office. There, two Chicago police detectives arrested defendant for murder and advised him of his Miranda rights. Defendant said he understood his rights and was then taken to the police station. Defendant testified he was not permitted to telephone his parents.

Defendant also testified that while en route to the police station, he exercised his right to remain silent despite the officers’ inquiries about the murder. At the police station, defendant was placed in an interview room where an officer asked whether it was a contract killing or self-defense. Defendant told the officer he wanted an attorney. The questioning ceased but the officers remained in the room. Moments later, the questioning resumed and defendant was again asked whether it was self-defense or a contract killing. Defendant responded: “[N]o, I hadn’t planned on shooting him, and I guess it would be considered self-defense because of what happened.” The officers then left the room.

Defendant further testified that 20 minutes later an officer entered the room and asked about the murder weapon. Defendant stated the gun was in his room at home. The officer left and returned approximately one-half hour later with a gun defendant denied was used to shoot the victim. The officer left and later returned to inform defendant that the police could not locate the murder weapon. At the officer’s suggestion, defendant telephoned his parents and his father eventually found the gun.

According to defendant, he next spoke with attorney John Egan, who told defendant not to speak with anyone. Minutes after attorney Egan left, an officer entered the room with Assistant State’s Attorney Catherine Quattrocchi, who had defendant sign a form containing his Miranda rights. Defendant then told Quattrocchi he wanted a lawyer. As Quattrocchi began to leave, the officer asked defendant to tell her what he had told the officers. Defendant gave Quattrocchi the same statement he gave to the police.

Also at the suppression hearing, Chicago police detective William Kelly testified that he and his partner arrested defendant at St. Rita High School. After receiving his Miranda rights, defendant telephoned his parents and was then taken to the police station. Responding to defendant’s inquiries during the ride to the station, the detectives indicated they would speak with defendant later at the station.

At the police station, the officers placed defendant in an interview room and again advised him of his Miranda rights. Defendant stated he understood but did not request an attorney. Rather, defendant provided the detectives with a brief statement regarding the victim’s death. Detective Thomas Ptak then entered the room and read defendant his rights. Defendant gave Detective Ptak a second statement concerning the victim’s death.

Next, the officers asked defendant if they could search his car. Defendant signed a consent form and Detective Kelly left to search defendant’s car. Approximately five minutes later, Assistant State’s Attorney Quattrocchi arrived and advised defendant of his Miranda rights. Defendant indicated he understood his rights.

John Egan also testified at the suppression hearing that at approximately 12:30 p.m. he arrived at the police station and advised police detective Roy Kwilos that he represented defendant. The detective led Egan to a room where defendant was speaking with Detective Ptak and Assistant State’s Attorney Quattrocchi. Egan spoke with defendant alone for 15 to 20 minutes. Before he left, Egan instructed the officer that no one else should speak with defendant.

Detective Craig Cegielske testified that on May 12, 1988, at approximately 2:45 p.m., defendant called out from the interview room that he wanted to make a telephone call. The officer led defendant to another room containing a telephone. On the way, defendant walked past a .44-caliber revolver sitting on a table and claimed that the revolver was not the gun he used to shoot the victim. Defendant said he shot the victim with a .45-caliber automatic. Defendant then telephoned his parents, who found the murder weapon. Detective Cegielske later went to the LaCour home and recovered the .45-caliber automatic.

After the suppression hearing, the trial court denied defendant’s motion as to all statements made prior to his attorney’s arrival at the station. The trial court reasoned that the statements were voluntarily made and were not the result of improper police procedures. The trial court, however, granted defendant’s motion with respect to all statements and evidence obtained after attorney Egan’s appearance.

Later at trial, the evidence established that Kathy Trevino and the victim were married in 1984. In May 1987, Kathy began working at a restaurant in Berwyn, Illinois. Defendant also worked at the restaurant. In the spring of 1988, Kathy and the victim were seeking to obtain a divorce. Several of Kathy’s co-workers testified at trial concerning their conversations with Kathy about her marital problems. Defendant was present during some of Kathy’s discussions with coworkers regarding her divorce and alleged beatings by the victim.

Co-worker Sherry Cruz testified that Kathy often spoke about fights she had had with the victim. During one conversation, Kathy mentioned that the victim would not agree to the divorce or allow her to have custody of the children. Co-worker Ernest Besaw testified he was also present when Kathy mentioned that the victim was going to take away her children and how she wished the victim were dead. Coworker Michael Paladines testified that Kathy told him of her disappointment because she would not see any of the victim’s inheritance money because of the divorce.

Co-worker Ray Yanez testified that while talking with co-workers in the restaurant parking lot Kathy said something like, “Mike, I wish my husband was dead. Mike[,] I want my husband dead or Mike, would you kill my husband.” In response, defendant said, “[Y]eah, sure.” About 15 minutes later into the conversation, defendant reached in his car and grabbed a gun wrapped in a towel. According to the witness, when defendant unwrapped the gun, Kathy said, “[W]ill that do it.” Defendant replied that the gun would leave a hole in something.

Also at trial, John Gavin, a civilian police dispatcher, testified that on May 12, 1988, he lived at 5837 South Rockwell in Chicago. At approximately 12:05 a.m. that day, Gavin was walking near his home when he noticed a person matching defendant’s description sitting inside a car parked nearby with its engine running. As Gavin walked past the car, he and the person inside stared at each other. Gavin later identified the car as the car owned by defendant’s father.

Raimondo Martenez testified that on May 12, 1988, he lived at 5828 South Rockwell in Chicago. On that day, he returned home from work sometime between 1:30 a.m. and 1:45 a.m. About 15 minutes later, Martenez heard “five or six” slow-paced gunshots. Martenez testified that the shots happened over a “slow period of time.”

Detective Ptak testified that at approximately 3:30 a.m. on May 12, 1988, he was assigned to investigate a shooting at 59th and Rockwell Streets in Chicago. After arriving at the scene, Officer Ptak saw the victim lying dead in the curbway at 5853 South Rockwell. Officer Ptak recovered a spent .45-caliber bullet from the victim’s front shirt area, but he did not find any shell casings near the scene. During further investigation, Detective Ptak spoke to the victim’s mother and grandmother and learned of the Trevinos’ marital problems. Detective Ptak later spoke with Kathy, who agreed to cooperate with the authorities. Following Detective Ptak’s conversation with Kathy, police officers went to St. Rita High School to arrest defendant.

Dr. Robert Kirschner, a forensic pathology expert, testified that an autopsy performed on the victim’s body revealed no evidence of close-range firing. Dr. Kirschner further opined that the multiple gunshots which caused the victim’s death were fired at least 18 to 24 inches from the victim’s body.

Prior to the close of the evidence, the prosecution nol-prossed the residential burglary count against defendant. Subsequently, the trial court granted defendant’s motion for a directed verdict on the single count charging murder during the course of a residential burglary. Following closing arguments, the trial court found defendant guilty of two counts of first degree murder and armed violence. The trial court subsequently denied defendant’s motion for a new trial. After the sentencing hearing, defendant was sentenced to a 25-year prison term and to 3 years’ mandatory supervised release. This appeal followed.

Defendant first contends that the trial court improperly denied in part his motion to suppress both physical evidence and statements he made to police concerning the murder. Defendant argues that the statements were obtained after he requested an attorney, and also that the statements were not voluntarily made.

Whether an accused’s post-arrest statements are admissible depends on whether the State establishes by a preponderance of the evidence that statements were voluntarily made, i.e., that the accused waived his privilege against self-incrimination and his right to counsel. (People v. Smith (1990), 199 Ill. App. 3d 839, 846.) To determine whether a statement was voluntary, a trial court must consider the totality of the circumstances including defendant’s age, background, education, experience, and the conditions and circumstances of the interrogation at the time the waiver occurred. (Smith, 199 Ill. App. 3d at 846-47.) A statement is considered voluntary if made without compulsion or inducement, and if the accused’s will was not overcome at the time he confessed. (People v. Jones (1990), 196 Ill. App. 3d 937, 957.) On review, a trial court’s finding of voluntariness will not be disturbed unless it was against the manifest weight of the evidence. Jones, 196 Ill. App. 3d at 957.

Our review of the record convinces us that the trial court properly denied defendant’s motion to suppress with respect to evidence obtained prior to his attorney’s appearance at the police station. First, based on the evidence, we believe the trial court correctly found that defendant had not requested an attorney. In considering a motion to suppress, the trial court determines witness credibility. (People v. Mackey (1990), 207 Ill. App. 3d 839, 860.) Here, the trial court’s decision not to believe defendant’s version of the events was supported by the evidence.

At the suppression hearing, defendant testified that when arrested at school he was not allowed to telephone his parents and that he requested an attorney twice before making the statements to police. Defendant further testified that police officers had him unwittingly sign a form which mentioned nothing about permission to search his car. In contrast, Detective Kelly testified that defendant called his parents prior to being transported to the police station. Also, several police officers testified that defendant did not request an attorney before attorney Egan arrived at the police station. On cross-examination, defendant admitted he understood at the time he signed the search form that he was giving his permission for the officers to search his car. Given the admitted discrepancies in defendant’s testimony, we do not believe the trial court’s finding that defendant had not requested an attorney to be erroneous.

Second, we find that the evidence supported the trial court’s determination that defendant’s statements were voluntary. Where an individual has been admonished of his rights and indicates that he understands them, his giving of a statement without requesting a lawyer evidences his decision to waive a known right. (People v. Jones (1990), 196 Ill. App. 3d 937, 961.) Here, the evidence demonstrates that defendant was given Miranda rights twice before making his first statement to Officer Kelly concerning the murder. Defendant was given his Miranda rights again each time before he made a second statement to Detective Ptak, and a third to Assistant State’s Attorney Quattrocchi. Defendant’s decision to speak supports the conclusion that he voluntarily waived his right to remain silent.

In ruling on defendant’s motion, the trial court found that the statements defendant made before his attorney arrived at the police station were neither involuntary nor the product of any improper police procedure. Nothing defendant has presented calls into question the trial court’s determination of voluntariness. Rather, in considering the totality of the circumstances, we are unpersuaded that the trial court’s finding of voluntariness was against the manifest weight of the evidence.

Next, defendant contends his acquittal was warranted because the evidence presented at trial failed to support his conviction for first degree murder. Defendant also argues that the evidence demonstrated either that the shooting was accidental or that his behavior was reckless and, therefore, he was guilty of no more than involuntary manslaughter or second degree murder, respectively. In support, defendant claims that the only evidence presented at trial concerning the circumstances surrounding the victim’s death were his post-arrest statements which prove the shooting accidental. We disagree.

At trial, John Gavin, a neighbor of the victim, testified that less than two hours before the shooting he saw a person matching defendant’s description sitting inside defendant’s father’s car near the victim’s home. The evidence at trial showed that defendant regularly drove his father’s car. The prosecution argued that Gavin’s testimony established that defendant stalked the victim prior to the shooting. Also at trial, Raimondo Martenez, another neighbor of the victim who was at home around the time of the shooting, testified that he heard six slow-paced, evenly spaced gunshots. Other evidence showed that some of the shots were fired as the victim lay on the ground.

Moreover, expert testimony revealed that the gunshot wounds which caused the victim’s death showed no evidence of close-range firing. Rather, the weapon used to shoot the victim was at least 18 to 24 inches away from the victim’s body. Further, testimony presented by Kathy Trevino’s co-workers evidenced defendant’s plan to murder the victim. During numerous conversations between Kathy and her coworkers in defendant’s presence, Kathy stated her desire for her husband’s death. On one occasion, following Kathy’s statement that she wished her husband were dead, defendant told her, “[Djon’t worry about it. Everything is going to be okay.” On another occasion, Kathy said she wished someone would kill her husband and defendant laughed and said something to the effect of “just tell me where or when.”

After a thorough review of the evidence, we cannot say that no reasonable trier of fact could have found defendant guilty of first degree murder beyond a reasonable doubt. (See People v. Collins (1985), 106 Ill. 2d 237, 261.) The trial court, which heard the evidence, assessed the credibility of the witnesses and weighed the evidence, found the evidence sufficient to support defendant’s guilt. Upon viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found defendant guilty of murder. See Collins, 106 Ill. 2d at 261.

Since the evidence sufficiently supports defendant’s guilt for first degree murder, we need not address his alternative arguments that he was guilty of nothing more than second degree murder or involuntary manslaughter.

Finally, defendant contends he was improperly convicted of two counts of murder where, as here, only one death occurred. Citing People v. Mack (1984), 105 Ill. 2d 103, the People concede this issue, and we hereby vacate defendant’s conviction on a second count of murder under section 9 — 1(a)(2). (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(a)(2).) Defendant’s sentence remains undisturbed.

For the foregoing reasons, the judgment of the circuit court is affirmed as modified and defendant’s sentence is affirmed.

Affirmed as modified.

JIGANTI, P.J., and CAHILL, J., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALMINEO KIMBALL, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3040
    Opinion filed March 29, 1993.
    Samuel J. Cahnman and Ronald D. Haze, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Monica L. Willis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant Salmineo Kimball was convicted of the murder of decedent Anthony Brown and of the attempted murder of Dwayne Brown. Defendant was sentenced to concurrent prison terms of 30 and 6 years, respectively. Defendant appeals both his convictions.

Vemell Robinson testified for the State that on July 30, 1986, he worked at McDonald’s located at 47th Street and Cottage Grove Avenue in Chicago. On July 30, at about 10 p.m., Robinson saw defendant walk around a wooden fence, which separated a vacant lot from the McDonald’s parking lot, and proceed towards the first parking stall. At the same time, decedent was walking towards his car in the parking lot, while carrying his child. Defendant stood directly adjacent to the bumper of decedent’s car with a gun in his hand. Robinson testified that he shouted a warning to decedent about defendant being armed and then took cover himself. Robinson saw a flame come from a gun at the fence and heard shots being fired. He ran inside the McDonald’s to get a security guard and upon returning to the lot saw the decedent being taken from the scene.

Nicole Wilson also testified for the State. On July 30, Wilson was walking through the vacant lot and saw defendant and his codefendant coming towards her, walking fast. Codefendant walked up to the wooden fence, leaned over it and shot four times at decedent. Wilson testified that she also saw a gun in defendant’s hand.

Next, Dwayne Brown testified that at about 10 p.m. on July 30, he and his brother Larry were driving by the McDonald’s when they saw their brother’s (decedent’s) car. Larry slowed down as he approached his brother’s car. While nearing the parking lot, Dwayne saw a hand with a gun reach over the wooden fence and shoot. Dwayne testified that then, defendant aimed a gun directly at his face and began firing while they were proceeding past the lot. Larry and Dwayne eventually picked up decedent and drove him to the hospital.

Finally, Detective Allen Szudarski testified for the State that both Wilson and Dwayne Brown identified defendant’s photograph as the gunman who shot at Dwayne. Additionally, Dwayne and Robinson identified defendant at a lineup as the gunman.

Defendant testified on his own behalf that on July 30 at 10 p.m., he was at his girl friend’s apartment. Defendant stated that he watched television, then went outside and talked with a friend. Further, defendant testified that two days prior to the shootings, he was taken to a hospital for a knee injury, where his leg was wrapped and he was issued crutches. Defendant claims that on July 30, he was using a cane to walk. Defendant denied any involvement in the shooting.

On appeal, defendant first contends that the circuit court erred in refusing his tendered jury instruction and related verdict form for the offense of aggravated assault. Defendant argues that aggravated assault is a lesser-included offense of attempted murder. An included offense is an offense which is established “by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 9(a).) Generally, in order to be a lesser-included offense, all the elements of the lesser offense must be included within the greater offense. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) A person commits aggravated assault when without lawful authority he engages in conduct which places another in a reasonable apprehension of receiving a battery while using a deadly weapon. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 1, 12 — 2.) An instruction on a lesser offense is appropriate “ ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’ ” (People v. Bryant (1986), 113 Ill. 2d 497, 507, 499 N.E.2d 413, quoting Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995.) Moreover, an included offense instruction “ ‘ “is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” ’ ” Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417-18, quoting People v. Cramer (1981), 85 Ill. 2d 92, 100, quoting Sansone v. United States (1965), 380 U.S. 343, 349-50, 13 L. Ed. 2d 882, 887-88, 85 S. Ct. 1004, 1009.

In Bryant, the supreme court held that the language of the charging instrument described an act constituting criminal damage to property as part of the attempted burglary. Because the indictment described the lesser-included offense of criminal damage to property and the evidence supported a guilty verdict of the lesser crime and an acquittal of the greater, the supreme court held that an instruction on that offense should have been given. Bryant, 113 Ill. 2d at 506, 499 N.E.2d at 415-16.

Defendant also cites People v. Krueger (1988), 176 Ill. App. 3d 625, 531 N.E.2d 396, as authority that an aggravated assault instruction is proper when attempted murder is charged. In Krueger, the appellate court held that the evidence would support a conviction for aggravated assault because although the victim was allegedly visible through the sheer drapes of the living room window, no shots were fired through that window. Furthermore, the indictment charged that the shots were fired at the victim’s house rather than at anyone inside the house. (Krueger, 176 Ill. App. 3d 625, 531 N.E.2d 396.) The court reasoned that the evidence supported a finding that the shots were intended to scare the victim, rather than to kill him. Krueger, 176 Ill. App. 3d 625, 531 N.E.2d 396.

Further, the appellate court recently held that it was error not to instruct the jury on the uncharged offense of aggravated assault in a case where attempted murder was charged. (People v. Ross (1992), 226 Ill. App. 3d 392, 589 N.E.2d 854.) In Ross, while the defendant was “still moving forward,” he turned toward the officer and pointed a pistol at him. The officer testified that he immediately bent down, “his revolver at the ready, stood up, and fired three shots, wounding defendant.” The defendant stumbled and then resumed his flight. (Ross, 226 Ill. App. 3d at 394, 589 N.E.2d at 855.) We note that there was no evidence that the defendant actually fired any shots at the officer. The appellate court reasoned that the above testimony supported the conclusion that the jury could have found the police officer' “feared being struck by a bullet, the requisite element of reasonable apprehension of a battery, to support a conviction for aggravated assault.” (Ross, 226 Ill. App. 3d at 395, 589 N.E.2d at 856.) The court further found that since the charging instrument based the charge of attempted murder on defendant’s actions of “aiming a gun” at the officer, the scope of that language was sufficiently broad to accommodate the element of the officer’s apprehension, thereby providing an outline of the offense of aggravated assault. Ross, 226 Ill. App. 3d at 395, 589 N.E.2d at 856.

In the instant case, the indictment alleged that defendant, “without lawful justification with the intent to commit the offense of murder, intentionally and knowingly attempted to kill Dwayne Brown by shooting at him with a gun.” The indictment does not contain language pertaining to placing Dwayne in reasonable apprehension of receiving a battery as is an element of aggravated assault. (See Ill. Rev. Stat. 1985, ch. 38, par. 12 — 1.) The language of the charging instrument in the instant case differs from that in Ross because it states that defendant “attempted to kill Dwayne Brown by shooting at him with a gun” (emphasis added) as opposed to aiming a gun. Thus, in the case at bar, the charging instrument is not broad enough to accommodate the element of apprehension and thereby provide an outline for the offense of aggravated assault.

Moreover, the facts of defendant’s above-cited cases differ. In the instant case, the intended victim, Dwayne Brown, testified that defendant shot a gun directly at his face. Unlike in Krueger and Ross, there is no evidence that defendant merely shot in the general direction of Dwayne in an apparent attempt to scare him or merely aimed a gun at Dwayne. Therefore, the evidence does not support a conviction of the alleged lesser-included offense of aggravated assault. Rather, the evidence indicates that defendant intended to kill Dwayne. Since an outline of the offense of aggravated assault is not contained in the charging instrument and the evidence does not support a conviction of that charge, we find that the circuit court properly refused to give the proffered aggravated assault instruction and verdict form.

Lastly, defendant contends that the evidence at trial was insufficient to prove the elements of accountability for decedent’s murder. A person is legally accountable for the conduct of another when “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2; see also People v. Bell (1983), 113 Ill. App. 3d 588, 447 N.E.2d 909.) Evidence that a defendant voluntarily attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, makes him criminally liable for any wrongdoings committed by the other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof. (People v. Gutierrez (1985), 136 Ill. App. 3d 774, 483 N.E.2d 944.) A trier of fact’s conclusion that a defendant is legally accountable for a criminal act will not be set aside on review unless the evidence is so improbable, unsatisfactory, or unreasonable that a reasonable doubt of defendant’s guilt exists. People v. Foster (1990), 198 Ill. App. 3d 986, 556 N.E.2d 1214.

In determining whether accountability has been established, the trier of fact may consider factors such as defendant’s presence without disapproving or opposing the commission of the crime, a continued close affiliation with the codefendants after the commission of the crime, defendant’s failure to report the incident or to confide in anyone about it and defendant's flight from the scene. (People v. Green (1988), 179 Ill. App. 3d 1, 15-16, 535 N.E.2d 413, 421-22.) In the case at bar, defendant came armed with codefendant. He stood in tacit agreement with codefendant as codefendant shot at decedent. Furthermore, defendant fired his gun directly at Dwayne Brown’s face and then fled with codefendant. The evidence is not so improbable or unreasonable as to create a reasonable doubt of defendant’s guilt; therefore, we affirm defendant’s conviction of decedent’s murder based upon the theory of accountability.

For the foregoing reasons, we affirm the convictions of the circuit court of Cook County.

Affirmed.

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


author: JUSTICE MURRAY

text:
    ILLINOIS NURSES ASSOCIATION, Petitioner-Appellant, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees (Correctional Medical Systems, Inc., Intervenor-Appellee).
    First District (5th Division)
    No. 1—88—2514
    Opinion filed November 8,1991.
    Sally A. Stix, of Chicago, for petitioner.

      Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for respondents.
    Melbourne A. Noel, Jr., of Laser, Schostok, Kolman & Frank, of Chicago, and David W. Miller, of Baker & Daniels, of Indianapolis, Indiana, for intervenor-appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This case comes before this court for the third time. It does so based on the mandate of the United States Supreme Court entered in this case upon a petition for certiorari granted by that Court. The U.S. Supreme Court remanded the case for further consideration in light of an advisory opinion of National Labor Relations Board (NLRB) in the case of Correctional Medical Systems, Inc. (Systems), the Illinois Nurses Association (INA) and Illinois State Labor Relations Board (Board), 295 N.L.R.B. 95. (U.S. No. 90 — 404, mandate issued April 1, 1991.) That NLRB case involved the same substantive issue as in the instant case.

The cases involve a labor dispute between the INA and Systems and the State of Illinois Department of Central Management Services and Corrections (Departments). Systems is a not-for-profit corporation based in St. Louis, Missouri. It is in the business of contracting with penal institutions, for, among other services, health care for inmates. Systems had a contract with Departments to staff the Shawnee Correctional Center with nurses. The INA filed a complaint with the Board charging the Departments with an unfair labor practice. The INA had a collective bargaining agreement with the State. Systems was not a party to this action as yet. The Board dismissed the charges for lack of jurisdiction. The INA appealed to this court. This court vacated the Board’s dismissal of the action and remanded the case back to the Board for further evidentiary proceedings pertaining to the determination of the Board’s jurisdiction. Illinois Nurses Association v. State Labor Relations Board (1987), 156 Ill. App. 3d 841, 509 N.E.2d 1307.

Upon remand an evidentiary hearing was held. In 1988 the hearing officer concluded that Systems was not a public employer within the meaning of section 3(o) of the Illinois Public Labor Relations Act (Act) conferring jurisdiction on the Board. (Ill. Rev. Stat. 1985, ch. 48, par. 1603(g).) The hearing officer concluded that the Board and Systems were joint employers. The Board itself, on a degree of control test, held that Systems was the sole employer of the INA. The Board dismissed the matter for want of jurisdiction.

Pursuant to the provisions of the Act, the INA brought an appeal from the Board’s conclusion directly to this court. (Ill. Rev. Stat. 1985, ch. 48, par. 1611.) This court reversed the Board and remanded the case to the Board for a rehearing on the INA’s charges of unfair labor practice. This court concluded that the Department had a nondelegable duty to staff its correctional institutions with nurses and that Systems was its agent for that purpose. Illinois Nurses Association v. Illinois State Labor Relations Board (1990), 196 Ill. App. 3d 576, 509 N.E.2d 1307, appeal denied (1990), 132 Ill. 2d 545, 555 N.E.2d 376.

A writ of certiorari was then filed with the U.S. Supreme Court. For the first time in the case, the issue of preemption by the NLRB was raised. On April 1, 1991, the U.S. Supreme Court, showing a good deal of courtesy to this court, did not reverse the court but vacated and remanded it back to this court for further consideration of its opinion in light of the opinion of the NLRB in the cited case. Illinois Nurses Association v. Illinois State Labor Relations Board (1991), 499 U.S. 944,113 L. Ed. 2d 462, Ill S. Ct. 1406.

On receipt of the U.S. Supreme Court’s mandate, this court waited patiently for the parties to file something before it reassumed jurisdiction.

On August 5, 1991, the INA filed a supplemental brief urging this court to reaffirm our prior ruling. The INA does not discuss the serious issue of the court’s jurisdiction in light of the NLRB’s decision in the matter issued on August 31, 1990, the day after the Departments filed their petition for certiorari from this court’s decision.

On August 5, 1991, the amicus curiae, the American Federation of State, County and Municipal Employees, filed its brief conceding Federal preemption in the case, concluding its brief with the following:

“Due to Federal pre-emption substantial intrusion upon the constitutional and statutory responsibilities of the Illinois Department of Corrections and upon clearly stated Illinois public policy will incur should this Court permit the subcontract of labor relations to survive. To avoid this result and maintain the principles of Illinois law, we respectfully urge the Court to void the subcontracting of labor relations. Such action will confer jurisdiction over labor relations upon the ISLRB with judicial review to this court.”

On September 20, 1991, the Board and Departments filed their brief with this strange request:

“For all these reasons, and for all the reasons stated in the NLRB’s advisory opinion, the ISLRB is federally preempted from exercising jurisdiction over INA’s unfair labor practice charge. This court should affirm the NLRB’s July 20, 1988 decision.”

For the reasons set out below, we vacate our previous order of reversal for want of jurisdiction over the subject matter and vacate the court’s opinion subject to reinstatement in the event jurisdiction is reinvested in this court by final action of the NLRB or a Federal court’s decision.

We agree with much of what the INA argued. We also concur in the conclusion of the amicus curiae labor organization. Yet, we are without jurisdiction in light of the action of the NLRB and the present preemption of the case by the Federal government.

The Board and State agencies’ suggestion that we affirm the NLRB’s assumption of jurisdiction is impossible. First, because this court has no jurisdiction in a case of this nature to either affirm, reverse or reverse and remand a decision of a Federal agency and, second, that agency’s order is a nonfinal one.

It is unfortunate that, due to jurisdictional issues, a complaint by the INA filed in June of 1985 of an alleged unfair labor practice by the State Departments and its agent, to date, remains unresolved on its merits because of a judicial ping-pong match involving jurisdiction.

The amicus curiae suggestion that the action of the State Departments and agencies in subcontracting disputes of this nature is against public policy is a good one. However, in this type of action a court’s jurisdiction is limited to review of the questions, law and facts presented in the record. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) We note that no public policy issues are presented in the record.

For the above reasons, the decision of this court in this case is vacated and the appeal dismissed for want of jurisdiction over the subject matter.

Appeal dismissed.

LORENZ, P.J., and GORDON, J., concur.