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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN HOFFSTETTER, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0646
    Opinion filed August 17, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Steven Hoffstetter, was charged by information in Madison County with the murders of Della Riggins, Kevin Burch and Christopher Schrom and with armed robbery and home invasion. A jury found the defendant guilty of armed robbery, home invasion and three counts of murder. The State requested a hearing to determine whether the death penalty should be imposed. However, the State later withdrew this request and the circuit court imposed the mandatory sentence of life imprisonment for each count of murder and concurrent sentences of 30 years’ imprisonment each for armed robbery and home invasion.

The defendant raises the following issues: (1) whether the State failed to prove him guilty beyond a reasonable doubt; (2) whether the circuit court erred in making certain evidentiary rulings; (3) whether the circuit court erred in not instructing the jury on accomplice-witness testimony and the credibility of a narcotics addict; and (4) whether he was denied his right to a fair trial as a result of prosecutorial comments during closing argument.

The following evidence, inter alia, was presented by the State at the defendant’s trial. The remains of three people, which the parties stipulated to be Della Riggins, Kevin Burch and Christopher Schrom, were discovered on the morning of October 7, 1985, in the family room of Schrom’s burned-out residence in rural Edwardsville, Illinois. East Alton Fire Chief William Schumacher testified that he and an investigation team examined the scene and determined the cause of the fire to be use of combustible or flammable liquid. In Schumacher’s opinion, the liquid had been poured on the bodies and had then been trailed out the south door of the family room.

Mark Johnsey, a crime scene technician and forensic archeologist with the Illinois Department of State Police, testified that Riggins’ and Burch’s bodies were found lying on the coil springs from a couch and Schrom’s body was found lying on the floor in front of a large open safe. Johnsey collected various items of evidence, including shell casings and several firearms, from the scene and observed the autopsies performed on the bodies by pathologist Dr. William Drake. Johnsey testified that at the autopsy a projectile was removed from the head of Della Riggins and two pieces of metal were taken from her body. Projectiles were also removed from the left side and left collarbone of Kevin Burch’s body, and from the upper right chest of Christopher Schrom’s body.

Illinois State Police forensic scientist James Hall testified that the lead fragments removed from Riggins’ body appeared to be .22 caliber, although no specific determination could be made. The projectiles removed from Burch’s and Schrom’s bodies were identified as .22 caliber spent bullets. Although Hall could not positively identify any of the recovered bullets as having been fired by the same weapon, he did determine that none of the weapons found at the crime scene could have fired the bullets. Hall stated that at least 13 types of weapons, including one manufactured by Ruger, could have discharged the recovered projectiles.

Steven Howland testified that he was incarcerated in the Madison County jail with the defendant between May 19 and June 3, 1986. On July 24, 1986, Howland contacted the Madison County sheriff’s office and informed them that during his incarceration the defendant had spoken with him about the murders of three people. According to Howland, the defendant stated that the shootings resulted from an argument over drugs and drug money. The defendant told Howland that he had shot one of the men and the woman, and that his friend, whose last name was Fischer, had shot the other man. According to Howland, it was the defendant who decided to burn the house in order to dispose of evidence. The defendant told Howland that he had thrown his gun into a sewer, but that Fischer had kept his gun for a longer period of time.

Three to four days after Howland’s release from the county jail, he received a letter that he believed came from the defendant, requesting help in escaping from the jail and warning Howland not to testify against him. Within the next week, Howland received a second letter, which was similar to the first in content. Both letters appeared to be signed “Hoffstetter,” but the signatures had been partially erased. Howland testified that he had also received two collect telephone calls from the defendant at the Madison County jail requesting his assistance in escaping. These calls, which came on successive days about a week after Howland’s release, were answered by his mother, who stayed on the line and overheard the second conversation. Howland claimed to have told Hoffstetter that he would not assist him.

Howland admitted that it was the fact that his mother and “other people in the jail” knew about the calls and might have notified the authorities that led him to contact the sheriff’s department. Additionally, Howland stated that a former jail inmate who had overheard his conversation with the defendant came to his house and told Howland’s mother that he should not get involved in the case. At the time Howland notified the authorities, he was on probation for burglary, but was not “in any trouble,” and neither asked for nor received any special consideration in exchange for the information. His probation term expired several weeks before he testified at the defendant’s trial.

Joyce Casius, Howland’s mother, also testified concerning the various telephone calls and letters that her son received after his release from the Madison County jail. Mrs. Casius stated that within a month of her son’s release, she accepted a collect call from someone named Steven, whose last name she did not remember, because she thought the caller was her son’s probation officer. After the caller asked to speak with Steve Howland, Mrs. Casius called her son to the phone but remained on the extension. When she heard the caller ask her son about a gun that he had promised to bring to him, she interrupted the call and told the caller that her son was not bringing him a gun and that if he called again she would contact the Madison County sheriff.

Approximately one week later, a man approached Mrs. Casius in front of her home and asked if Steven Howland lived there. Upon learning that he did reside there but was not at home, Mrs. Casius stated that the man said, “Well, tell Steve that I said not to testify against that guy *** or it could cause trouble for your whole family.” Mrs. Casius further testified that she had read two letters her son received after his release from jail. The letters were not mailed from the jail but instead bore a Collinsville, Illinois, return address. The first letter referred to her son’s promise to “bring me up [s-ic] a gun,” and the second, received a week later, chided him for his failure to help.

The State’s only occurrence witness, Tina Marie Rose, testified that she had known the defendant for approximately 13 years. In late September 1985, Rose moved to a residence on Viewland Street in Alton, Illinois, and discovered that the defendant lived across the street. She began visiting the defendant’s house on a regular basis and stated that David Schenk and Tony Fischer sometimes stayed with the defendant.

Ms. Rose testified that around 9 p.m. on an evening in early October 1985, after she, Tony Fischer and the defendant had been “partying” at defendant’s house, i.e., “smoking reefer, doing cocaine *** off and on for two or three days,” the defendant made a telephone call and then asked Rose to give him a ride to collect some money. Ms. Rose agreed and the three set off in her car, with the defendant telling her to drive toward Edwardsville and then requesting that she stop at the Oasis Tavern so that he could make a telephone call. According to Rose, the defendant next directed her to a farmhouse, where he instructed her to wait until he returned. Rose and Fischer stayed in the car while the defendant went into the farmhouse.

Ms. Rose testified that the defendant returned about five minutes later, saying “something about the guy didn’t have the money.” As she was backing the car out of the driveway, the defendant and Fischer pulled guns out and started checking them. When Rose questioned what they were doing, the defendant told her, “we are going to rob these people.” Ms. Rose testified that she then stated “well, I don’t know,” and began driving back toward the Oasis.

At the Oasis, the defendant made a phone call while Rose and Fischer had a drink. Upon leaving the Oasis, the defendant began driving the three back to the farmhouse. Rose stated that she believed the defendant and Fischer had long-barrelled automatic pistols and some nylon stockings taken from her car. At this point, Rose claimed that she told the defendant and Fischer that she did not want to have anything to do with the robbery and wanted out of the car. The car was stopped near a cornfield, and Rose got out and waited until the men picked her up between 10 and 15 minutes later.

According to Rose, upon their return, the defendant and Fischer were arguing and Fischer stated that he had had to shoot a man in the leg. Ms. Rose testified that the defendant was complaining because he had blood on his new boots. As they were driving, the defendant handed Rose $60 to $80 and a small amount of cocaine. The two men also gave Rose a knife sheath, an item of drug paraphernalia called a “pinch hit,” and some empty plastic bags and told her to throw them out the car window, which she did. Fischer, who was seated in the back of the car, was rifling through the contents of a bag which Rose later learned contained a quantity of quaeludes and amphetamines.

Ms. Rose estimated the distance between the cornfield and the farmhouse as “a couple miles,” and testified that she did not see a fire or hear any gunshots during the time that she waited for the defendant and Fischer to return. Rose testified that although the two men had said they were going to rob the people in the farmhouse of $4,000 to $8,000 and three or four ounces of cocaine, “when they got back, they said they didn’t get very much.” After picking her up, the defendant began driving home, but Rose told him to pull over because he was driving “a little radical,” and she drove back to Alton.

Ms. Rose admitted that the first time she told police of this incident was on April 14, 1986, when she was arrested and charged with two counts of delivery of a controlled substance. Ms. Rose said that she voluntarily gave a statement on April 14 and denied that any promises were made to her at that time. Rose testified that she pled guilty to two counts of delivery of a controlled substance and was sentenced on January 28, 1987, to one year of intensive probation and one year of regular probation. However, on cross-examination, she stated that she was “not sure if I pled [guilty] to two [counts] or one of them.”

Although Ms. Rose was charged with home invasion and armed robbery in connection with the Edwardsville incident, she testified that she anticipated not being prosecuted for those charges. Ms. Rose admitted that when she made her statement to police on April 14, 1986, implicating the defendant and Fischer in the homicides, the police had already indicated to her that they had information connecting those two men to the crimes. Rose stated that she was arrested at approximately 10:30 a.m. on April 14 and was questioned until 2 or 3 a.m. the following morning. During the day’s questioning, Rose was supplied with methadone from the methadone clinic.

During cross-examination, Ms. Rose admitted making certain statements to Rodney Mullane, who sometimes worked as an undercover agent for the Metropolitan Enforcement Group. Rose testified that she met Mullane in late November or early December 1985. At that time, Mullane resided at the Bon Air Hotel in Alton where Rose was working selling drugs and as a prostitute. Rose admitted that during December 1985, she “might” have told Mullane that: (1) a friend of hers, Jody Wesley, and two accomplices had robbed a drug dealer in Edwardsville; (2) she had anticipated getting $4,000 and some cocaine, but that Wesley had not counted on the dealer having a gun and had had to shoot him; (3) Wesley and his accomplices had worn nylons on their heads and that Wesley had tied up three dealers but had shot only one dealer who refused to open the safe.

Ms. Rose admitted that the incident she described to Mullane and the one described in her April 14 statement to police were basically the same, except that her statement named the defendant and Fischer as the men involved. Rose testified that the day after the incident described, she read in the newspaper that three people had been shot and killed.

Although Rose stated that she no longer considered herself to be a drug addict, she had been addicted in October 1985, taking cocaine and other drugs on a daily basis. Rose stated that her drug use had increased after she read of the murders and that she was “usually pretty high” when she talked to Mullane. Rose further stated that she was “blowing [Mullane] a lot of hot air because Jody and Tommy [House] was [sic] coming over, and I wanted him to be scared of [Jody] because they didn’t want him around when they would come over and party.” Rose admitted that Wesley and House often visited her at the Bon Air Hotel and provided her with drugs.

Ms. Rose admitted that on December 11, 1985, she “might” have told Mullane that she, Wesley, Fischer and House were going to “do another drug dealer,” and that she was going to drive, as she had done when Fischer shot the dealer in Edwardsville. However, on December 30, 1985, Rose told Mullane that Wesley and House had nothing to do with the Edwardsville murders, that she had driven the car for Fischer and two of his friends and that Fischer had shot one of the dealers. Rose admitted that in November and December 1985 she possessed a .22 caliber weapon that Wesley had given her.

Deputy Ronald Tune, Madison County sheriff’s department, testified that he arrested Tina Rose on April 14, 1986, in connection with contempt and drug charges. After being taken to the station and advised of her Miranda rights, Rose agreed to talk with police. Tune then told Rose that the police had information that she was involved in the murders of Christopher Schrom, Della Riggins and Kevin Burch. When Rose denied any knowledge of the crimes, Tune responded that his information indicated that she had driven Fischer and the defendant to the scene. Rose then said she would tell police “everything she knew.” Tune stated that at the time Rose gave her statement, no promises were made to her regarding charges stemming from the offenses committed at the Schrom residence. Tune admitted that while Rose had been charged with home invasion and armed robbery, she was later told that the charges would not be prosecuted.

David Schenk testified that he had lived with the defendant on Viewland Street in Alton during the summer and fall of 1985. At that time, Schenk owned a .22 caliber Ruger handgun, which he kept under the mattress of his waterbed. Following Tony Fischer’s release from jail in the fall of 1985, he stayed with the defendant and Schenk for a short time. During Fischer’s stay, Schenk discovered that his gun was missing for a day or two, although he could not pinpoint the exact time. Schenk told the defendant that the gun was missing and that he thought Fischer had taken it. Several days later, the gun reappeared under Schenk’s mattress. Schenk’s gun disappeared again in December 1985 or January 1986 and was never returned.

Cynthia Proffer testified that she was the former girlfriend of Tony Fischer and that she was living with Fischer and the defendant on Viewland Street in Alton when Fischer was arrested in March 1986. After Fischer’s arrest and subsequent incarceration at Hillsboro, Proffer moved to a residence in Wood River where she had a phone installed in Fischer’s name. Mrs. Proffer testified that this phone had a three-way calling feature. Sometime in early April 1986, she received a call from Fischer at Hillsboro. Mrs. Proffer testified that Fischer asked her to forward the call to the defendant at another residence. When this task was accomplished, she remained on the line and heard Fischer ask for the defendant.

According to Mrs. Proffer, the two men talked about the defendant leaving town and Fischer then asked the defendant to get in touch with Tina Rose and “to get rid of Tina, that he (Fischer) was worried about Tina.” Proffer testified that the defendant told Fischer that he wasn’t worried about Tina. Mrs. Proffer identified People’s exhibit No. 51 as Fischer’s phone bills for the months April through June 1986. These bills, admitted into evidence, show numerous calls made from Hillsboro to Fischer’s phone number during April 1986.

Mrs. Proffer testified that she had married Noel Proffer on January 22, 1987, but that Mr. Proffer was arrested the following day. On January 26, 1987, Mr. Proffer was taken to the Madison County jail and charged with burglary. On January 28, 1987, Mrs. Proffer spoke with Detective Fischer of the Madison County sheriff’s department and offered to give information concerning Tony Fischer in return for leniency for her husband. In exchange for this information, the Madison County State’s Attorney’s office promised to reduce Mr. Proffer’s sentence to six years and to dismiss any charges which might be filed against Mrs. Proffer in connection with a separate burglary.

Karen Ferrera, an assistant manager for Illinois Bell, identified People’s exhibit No. 52 as a copy of a phone bill listed in the defendant’s name at 2707 Viewland in Alton. According to Ms. Ferrara, the bill indicated that on October 6, 1985, telephone calls were made at 8:50 and 9:01 p.m. from the Hoffstetter residence to a phone number in Edwardsville. That number, 618-692-0080, was the same number listed on a copy of the October 1985 bill for the Christopher Schrom residence. Ms. Ferrara also testified that telephone records for the Tony Fischer residence in Wood River indicated that Mr. Fischer’s service included three-way calling.

Rosemary Hickerson testified that she had known the defendant since grade school and that she was presently serving a three-year Federal prison sentence for a drug conviction. Ms. Hickerson stated that a month or two before Schrom’s death, she had given the defendant two pounds of marijuana to sell for $500 or $550 per pound. The defendant told Hickerson that he had given the marijuana to Schrom to sell. Thereafter, Hickerson told the defendant that she needed to receive payment for the marijuana, but the defendant told her that he did not have the money. Hickerson stated that she had several conversations with the defendant about collecting the money from Schrom and that the defendant had made some partial payments, but had told her that he could not get any money from Schrom because Schrom had mixed the marijuana with some of lesser quality, and it was no longer any good. Ms. Hickerson estimated that the last time she spoke with the defendant about the money he owed her was a week before Schrom’s death.

Ms. Hickerson identified People’s exhibit No. 54 as a tape which came from her telephone answering machine and which contained a threat made by the defendant to her on April 16, 1986, between 6 and 6:45 p.m. Hickerson testified that she knew the defendant’s voice well and that the voice on People’s exhibit No. 54 belonged to the defendant. The tape, which was played for the jury, consisted of an initial message to all callers, followed by this message:

“This is Stevie, I need some bond money, Rosie, or I’m going to have to bring you in on this shit. You know you was [sic] in on planning the robbery on them [sic] mother fuckers now, you bitch. If you don’t help me get out of Jail, I’m going to kill you next.”

Ms. Hickerson was interviewed by police several times in the months following the murders and again in April 1986 after turning the tape over to police. On cross-examination, Ms. Hickerson admitted that she had denied to police any involvement in sending the defendant to Schrom’s residence to get money, and continued to deny any involvement even after the State’s Attorney’s office offered her immunity if she had information relevant to the case.

Louis Colone, assistant jail superintendent at the Madison County jail, testified that according to jail records, the cell block which housed the defendant had telephone access from 9 a.m.until 11 a.m. and from 6 p.m. to 7 p.m. on April 16, 1986. Cynthia Proffer was recalled to the stand and testified that the voice on People’s exhibit No. 54 was that of the defendant.

Jennifer Whitworth, a classmate of the defendant in junior high and high school, testified that she had last seen the defendant on a regular basis during the summer of 1985. She stated that she was familiar with the defendant’s voice, both in person and on the telephone, and that the voice on People’s exhibit No. 54 was that of the defendant. Whitworth stated that while she had never heard the defendant refer to himself as “Stevie,” a lot of people did, including the defendant’s father.

The defendant presented evidence, inter alia, that forensic serologist Debra Depscynski had tested boots taken from the defendant on April 14, 1986, and floor mats and carpeting taken from Rose’s automobile on April 17, 1986, for traces of blood, but had found none on any of the items. Depscynski testified that unless the items had been cleaned, blood would have been found. Nylon stockings taken from Rose’s automobile were never submitted to the crime lab for analysis.

Paula Wardle, Madison County deputy circuit clerk, testified that court records showed that Judge P.J. O’Neill had ordered the defendant held without bail on April 15, 1986. The defendant was taken into custody and made his initial court appearance on April 16, 1986. Ms. War die stated that it is the routine practice of the court to advise defendants of their bond status at their initial appearance.

Henrietta Kauble, the defendant’s mother, testified that she visited her son at the Madison County jail on April 16, 1986, between 6:30 and 7 p.m. Mrs. Kauble stated that at that time her son was aware that he was being held without bond. She further testified that she recognized her son’s voice, that the voice on People’s exhibit No. 54 was not that of her son, and that she had never heard her son refer to himself as “Stevie.”

Ronald Crane testified that he had known the defendant for 15 years and that the voice on People’s exhibit No. 54 was not that of the defendant. David Schenk testified that he had known the defendant for approximately 10 years and that the voice on People’s exhibit No. 54 was not that of the defendant. Although Schenk had heard the defendant referred to as “Stevie,” he said that the defendant did not care for that name.

John J. Fields, Madison County jail superintendent, testified that jail records showed that the defendant had been visited by his mother, Henrietta Kauble, on April 16, 1986, and that visiting hours on that date were 6:30 to 8 p.m. Fields stated that the jail log did not indicate that any letters had been mailed by the defendant or anyone in the jail to Steven Howland. However, it was common for an inmate to mail a letter to one individual which contained a letter to be forwarded to a separate individual.

Herbert Clay, case manager for the Intensive Supervision Program of Madison County, testified that he supervised Steve Howland’s probation following his sentencing on June 3, 1986. Clay stated that petitions to revoke probation had been filed on Howland on July 29, 1986, and December 6, 1986. In each case, Howland’s probation term was modified to include jail time, although the probation office had recommended that Howland be sentenced to the Department of Corrections based on the second petition to revoke. Howland’s probation term ended on June 3, 1987.

The defendant first contends that the evidence presented at trial was insufficient to prove him guilty beyond a reasonable doubt. More specifically, he argues that the testimony of the State’s “key witnesses,” Tina Rose, Steve Howland, Cynthia Proffer and Rosemary Hickerson, was inconsistent, incapable of belief and questionably motivated.

Illinois courts have often held that it is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Foster (1979), 76 Ill. 2d 365, 373, 392 N.E.2d 6, 9.) Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (76 Ill. 2d at 373, 392 N.E.2d at 9.) The test to be applied in reviewing the sufficiency of evidence in criminal cases is whether, after viewing 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. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Under these standards of review, we find no reason to reverse the jury’s determination that there was sufficient evidence of the defendant’s guilt.

The defendant contends that the testimony of the State’s chief witness, Tina Rose, was unbelievable because she was a narcotics addict who was an accomplice to the crimes involved herein, had told conflicting stories about them, and had obtained immunity in exchange for her trial testimony. However, even had the validity of all these claims been established, their existence would not prove fatal to Ms. Rose’s credibility.

Ms. Rose admitted that she was a narcotics addict at the time the crimes were committed in October 1985 and that her use of narcotics had increased by December 1985 when she made statements to Rodney Mullane. However, at the time she gave her statement to police in April 1986, she was receiving methadone treatment for her drug addiction, and in June 1987, when she testified at the defendant’s trial, she no longer considered herself addicted. Therefore, the jury may have given little consideration to Ms. Rose’s history of drug addiction.

Even if the jury had considered Rose’s addiction as bearing on her credibility, it does not follow that her testimony must necessarily be disbelieved, especially when it was corroborated by other evidence and testimony. (See People v. Smith (1968), 41 Ill. 2d 158, 161, 242 N.E.2d 198, 200, cert, denied (1969), 396 U.S. 853, 24 L. Ed. 2d 101, 90 S. Ct. 111.) The defendant’s telephone bill, which reflects two calls to Schrom’s home on the night of October 6, 1985, supports Ms. Rose’s testimony that he made a call before leaving for Edwardsville. Steve Howland’s testimony concerning the defendant’s jailhouse admissions to him further corroborates Rose’s testimony. The account the defendant gave Howland was essentially the same as that presented by Rose at trial — that the defendant and a friend named Fischer had shot and killed three people in an incident concerning money owed for drugs.

The defendant further contends that Ms. Rose was an accomplice and that accomplice-witness testimony is to be viewed with suspicion. However, the evidence presented at trial did not establish that Ms. Rose was an accomplice. An accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. (People v. Robinson (1974), 59 Ill. 2d 184, 190, 319 N.E.2d 772, 776.) The term “accomplice” does not embrace one who has guilty knowledge, is morally delinquent or who was even an admitted participant in a related but distinct offense. (59 Ill. 2d at 191, 319 N.E.2d at 886.) Rather, an accomplice must have had the requisite intent and before or during the offense he must have aided in its commission. People v. Allen (1983), 119 Ill. App. 3d 186,193, 456 N.E.2d 336, 341.

Here, Tina Rose was merely present before and after the crimes because she had agreed to give the defendant a ride so that he could collect some money. She had no intent to commit the offenses which occurred, but instead, after learning that the defendant and Fischer planned an armed robbery, told them that she did not want anything to do with it, and demanded to be let out of the car. Her actions of discarding evidence, accepting money and drugs from the armed robbery, and driving the defendant and Fischer back to Alton occurred only after the offenses had been committed and were thus insufficient to make her accountable. See People v, Coddington (1970), 123 Ill. App. 2d 351, 371, 259 N.E.2d 382, 392.

The defendant also contends that Ms. Rose’s testimony is unworthy of belief because she made statements to police informant Rodney Mullane that conflicted with her trial testimony. However, Ms. Rose explained that at the time she told Mullane that she, Jody Wesley and two of his friends robbed and shot a drug dealer in Edwardsville, she was “blowing [Mullane] a lot of hot air” because she wanted Mullane to fear Wesley and to stay away when he and Tommy House visited her and brought her drugs. She later told Mullane that neither Wesley nor House was involved in the Edwardsville murders, but rather that she had driven Fischer and two others to the scene and that Fischer had shot one of the dealers. This statement is similar in most respects to both the statement Rose gave police and to her testimony at trial. Thus, Rose gave a plausible explanation for her prior inconsistent statements and her trial testimony was supported by- evidence of prior consistent statements.

The defendant lastly alleges that Ms. Rose’s testimony is suspect because she gave it in exchange for a promise of immunity. However, Ms. Rose’s April 14 statement to police paralleled her trial testimony and was made before she had been charged with home invasion and armed robbery or given any promises in reference to her cooperation. While it is true that Ms. Rose anticipated that the charges against her would be dismissed, she denied receiving any promises to this effect from the State. Further, as we have noted, Ms. Rose was not an accomplice to the crimes. Therefore, it is probable that she believed the State’s decision not to prosecute her was based on a lack of evidence rather than a promise of immunity.

However, in exchange for her cooperation, Ms. Rose did receive consideration in sentencing on her guilty plea to unlawful delivery of a controlled substance. Similarly, Cynthia Proffer obtained a reduced sentence for her husband in exchange for her testimony. When it appears that a witness has hopes of a reward from the prosecution, his testimony should not be accepted unless it carries with it the “absolute conviction of [the] truth.” (People v. Williams (1976), 65 Ill. 2d 258, 267, 357 N.E.2d 525, 529-30.) We cannot say that the testimony of Ms. Rose and Mrs. Proffer did not carry with it such a conviction in this case.

The defendant also attacks the credibility of Steve Howland and Rose Hickerson, arguing that their testimony is suspect because he was a “convicted felon” and she a “drug dealer *** serving a federal sentence.” While it is true that the jury can use evidence of a witness’ prior convictions to question his credibility (People v. Walker (1987), 157 Ill. App. 3d 133, 137, 510 N.E.2d 29, 32), here, Howland’s testimony was bolstered by his lack of motive to testify falsely and Hickerson’s by corroborating evidence.

Howland voluntarily came forward with information about the defendant’s admission to the murders and neither asked for, nor received, any special consideration in return for the information. Any favorable action taken with regard to petitions to revoke Howland’s probation, subsequently filed, is irrelevant where, at the time he came forward, he was not yet “in any trouble” and where he had successfully completed his probation term prior to testifying at the defendant’s trial.

Ms. Hickerson’s testimony that the threatening message on her answering machine was left by the defendant was confirmed by both Cynthia Proffer and Jennifer Whitworth’s identification of the defendant’s voice. Further, and contrary to the defendant’s claim, Ms. Hickerson’s testimony was consistent, where she continually maintained that although she had dealt with the defendant and wanted him to pay her for the marijuana she had sold him, she had not sent him to Schrom’s house to obtain the money.

The jury was fully aware of the character of the witnesses and the circumstances of their testimony and was thus able to weigh these factors in assessing their credibility. Given the fact that these witnesses’ testimony was corroborated by other evidence or contained other assurances of credibility, this court cannot say that the jury’s judgment was in error. Thus, we find that the evidence supported the jury’s verdict and that the defendant was proven guilty beyond a reasonable doubt of murder, home invasion and armed robbery.

The defendant next asserts that the circuit court erred in making certain evidentiary rulings. Evidentiary rulings lie within the discretion of the circuit court and will not be disturbed on review absent an abuse of that discretion. People v. Boclair (1989), 129 Ill. 2d 458, 476, 544 N.E.2d 715, 723.

The defendant initially contends that the trial court erred in refusing to allow defense counsel to present detailed evidence of the immunity from prosecution on home invasion and armed robbery charges given Tina Rose in exchange for her testimony. Following Rose’s testimony at trial, defense counsel moved that the court take judicial notice and the jury be informed of the State’s discovery answer filed on May 28, 1987, which stated in part:

“(A) Tina Rose. The State has promised to grant immunity from prosecution for any criminal acts, if any, that her testimony may reveal, pertaining to the murders of Christopher Schrom, Della Riggins, and Kevin Burch, except perjury. Tina Rose pled guilty to unlawful delivery of a controlled substance on January 28, 1987 and was placed on probation for two years, the first year to be under intensive supervision. The State has agreed to dismiss all charges against her pertaining to the offenses of home invasion and armed robbery in 86— CF — 327 and unlawful delivery of a controlled substance in 86— CF — 223.”

The circuit court denied the defendant’s motion, stating that Ms. Rose had testified to both her understanding that the charges against her in this case would be dismissed and to the probation sentence received for her drug conviction, and that this information was sufficient for the jury. The circuit court’s ruling was correct. The defendant was not prejudiced by the court’s refusal to allow the discovery materials into evidence, where he was afforded the right to cross-examine Ms. Rose about arrests and charges which did tend to show that her testimony might be influenced by interest, bias or a motive to testify falsely. See People v. Triplett (1985), 108 Ill. 2d 463, 475, 485 N.E.2d 9, 15.

In addition to Ms. Rose’s testimony, Deputy Sheriff Tune testified that Ms. Rose was told she would not be prosecuted for the armed robbery and home invasion charges. Thus, the jury was accurately informed that the charges were to be dismissed. To have characterized the dismissal as based on a promise of immunity would have been inaccurate, since, where Ms. Rose was not an accomplice to the crimes, the strength of the charges against her was dubious.

Moreover, as the State suggests, the record reveals no evidence that the circuit court was ever asked to grant Tina Rose immunity in exchange for her testimony. Although the right to grant immunity is a power awarded to the State by the legislature (People v. Frascella (1980), 81 Ill. App. 3d 794, 798, 401 N.E.2d 1045, 1047), without the court’s order, no grant of immunity exists. See Ill. Rev. Stat. 1987, ch. 38, par. 106 — 1; People v. Hamm (1985), 136 Ill. App. 3d 11, 23, 482 N.E.2d 1103, 1112, cert, denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1475 (a grant of immunity under statutory authority must be in strict compliance with the terms of the statute).

The jury was also adequately advised of the impeaching evidence concerning Ms. Rose’s drug conviction. Although the discovery material in question stated that one unlawful delivery of a controlled substance charge was to be dismissed, Ms. Rose’s testimony was unclear on this point. However, the defendant’s attorney argued to the jury that Rose had received probation on one drug charge and that the other had been dropped. Additionally, the record reveals that the jury received a certified copy of the order and judgment on plea and sentence for only one unlawful delivery charge. Therefore, the circuit court did not abuse its discretion in refusing to admit the discovery material.

The defendant next alleges that the trial court erred in allowing the State to present evidence concerning a .22 caliber Ruger handgun belonging to the defendant’s roommate, David Schenk. Schenk testified that the gun had been missing for several days while Tony Fischer was staying with Schenk and the defendant during the fall of 1985. Schenk stated that the gun reappeared after he mentioned its disappearance to the defendant, and that it was never seen again after December 1985 or January 1986.

Testimony concerning a weapon may be admitted into evidence where there is proof connecting the weapon to the defendant and the crime. (People v. Wade (1977), 51 Ill. App. 3d 721, 729, 366 N.E.2d 528, 534.) However, it is only necessary that the weapon be suitable for the commission of the offense, it is not necessary that it be the weapon actually used in the offense. (People v. Free (1983), 94 Ill. 2d 378, 415-16, 447 N.E.2d 218, 236, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Further, proof of the connection between the weapon and the defendant or the crime may be circumstantial, and the determination of the evidence’s admissibility is within the circuit court’s discretion. People v. Givens (1985), 135 111. App. 3d 810, 819, 482 N.E.2d 211, 217.

Here, evidence presented at trial showed that although the murder weapon or weapons were never found, the victims were killed by .22 caliber gunshots. A Ruger-manufactured weapon was one of approximately 13 types which could have fired the shots, and both the defendant and Fischer had access to such a weapon around the time of the murders. Therefore, Schenk’s testimony was admissible as circumstantial evidence under the standards outlined above.

The defendant correctly states that no evidence positively established that Schenk’s gun was taken from him by either the defendant or by Fischer, or that it was used by the defendant or Fischer to commit the murders. However, the weight to be given Schenk’s testimony was a determination for the jury. Further, once a weapon is connected to an offense and there is evidence that multiple persons participated in the offense, evidence concerning the weapon may be admitted against all, even though they did not wield or possess it. People v. Ramsey (1986), 147 Ill. App. 3d 1084, 1091, 496 N.E.2d 1054, 1059; People v. McClinton (1978), 59 Ill. App. 3d 168, 176, 375 N.E.2d 1342, 1349.

The defendant also argues that the circuit court erred in refusing to allow him to present evidence that Jody Wesley had told Earl Bradley Flowers that Wesley had killed one of the victims. In an offer of proof, Flowers testified that he had known Wesley for four or five years and that between June and October 1986, Wesley made statements to him about the crimes at the Schrom residence. In June 1986, Wesley told Flowers that he had taken part in some crimes that had occurred in a remote area near Edwardsville, that he had shot “the girl” in the head and that it was “the ultimate high of his life.” Wesley told Flowers that he, Tommy House, the defendant, Tony Fischer and Tina Rose had gone to the Schrom residence to purchase cocaine. Flowers testified that he and Wesley were “real high” on cocaine when Wesley made these statements.

On cross-examination during the offer of proof, Flowers admitted that he had not divulged any of this information to law enforcement officials until several weeks before trial, when he approached the prosecutor about the conversations. Flowers also admitted that he had recently had a “falling out” with Wesley and that they were no longer friends.

Generally, an extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay, though the declaration is against penal interest. (People v. Bowel (1986), 111 Ill. 2d 58, 66, 488 N.E.2d 995, 999.) However, where justice requires, such an extrajudicial declaration may be admissible under the statement-against-penal-interests exception to the hearsay rule where there are sufficient indicia of trustworthiness. Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049; Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 999.

In Chambers, an extrajudicial statement was held admissible because the court found four factors which were sufficient indicia of trustworthiness: (1) the statement was made spontaneously to a close associate shortly after commission of the crime; (2) other evidence corroborated the statement; (3) the statement was self-incriminating and against the declarant’s penal interests; and (4) the declarant was available for cross-examination. (Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.) In Bowel, the Illinois Supreme Court held that these four factors “are to be regarded simply as indicia of trustworthiness and not as requirements of. admissibility. The question to be considered in judging the admissibility of a declaration of this character is whether the declaration was made under circumstances that provide ‘considerable assurance’ of its reliability by objective indicia of trustworthiness.” Bowel, 111 Ill. 2d at 67, 488 N.E.2d at 1000, quoting Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.

In the instant case, the statements made by Jody Wesley to Earl Bradley Flowers were not made under circumstances that provide “considerable assurance” of their reliability. While the statements were made spontaneously to a friend of Wesley’s, they were made at least eight months after the crimes occurred. Although the statements were self-incriminating and against Wesley’s interest, there was no opportunity to cross-examine Wesley at trial.

Further, and contrary to the defendant’s assertion, Tina Rose’s early statements to Rodney Mullane, naming Wesley as a participant in the crimes, are of little corroborative value where they were later directly repudiated by Rose. The fact that Wesley made these statements when both he and Flowers were “really high” on cocaine casts additional doubt on the statements’ trustworthiness (see People v. Green (1988), 179 Ill. App. 3d 1, 19, 535 N.E.2d 413, 424), as does Flowers’ failure to promptly report this information to the authorities and his recent “falling out” with Wesley.

Wesley’s statements did not carry the requisite indicia of trustworthiness. Furthermore, they did not absolve the defendant of guilt, where they placed him at the scene of the murders for the illegal purpose of obtaining cocaine. (See People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 175, 387 N.E.2d 1284, 1291.) Therefore, the circuit court did not abuse its discretion in barring Flowers’ testimony.

The court was also correct in refusing to allow into evidence the defendant’s voice exemplar, made for the purpose of proving that it was not his voice on People’s exhibit No. 54, the Hickerson answering machine tape. In an offer of proof, the defendant presented the testimony of Ross Gentile and James Terry in support of his attempt to have his voice exemplar admitted into evidence and played for the jury.

Ross Gentile, the owner of a recording studio, testified that on February 12, 1987, he went to the Madison County jail and made an audiotape of the defendant’s voice as he repeatedly read from a transcript of the Hickerson tape. Gentile stated that the Hickerson tape was played “many times” for the defendant, and that Gentile “for over two hours, tried to coach [the defendant] to duplicate the voice inflection on the tape.” A voice exemplar tape was made by telephoning Mr. Gentile’s studio and recording samples of the defendant’s duplication efforts onto the studio answering machine’s cassette. Gentile testified that in his opinion, the defendant had not disguised his voice on the voice exemplar.

Sergeant James Terry of the Madison County sheriff’s department testified that he was assigned to prisoner transportation and had frequently conversed with the defendant during the course of the trial. Sergeant Terry stated that he had heard the voice exemplar tape and that while the defendant appeared to use “different pitches and tones,” it was “clearly [the defendant’s] voice.” Following the offer of proof, the circuit court granted the State’s motion in limine, precluding the admission of Gentile’s testimony and the voice exemplar tape, stating that the defendant had no right to manufacture evidence and that it was clear that this tape was a “staged production.”

In People v. Rosenbaum (1921), 299 Ill. 93, 94-95, 132 N.E. 433, 434, the Illinois Supreme Court held that a defendant being tried for forgery was not allowed to sign the forged name before the jury for the purpose of demonstrating that the forgery was not in his handwriting. The court stated that for the circuit court “[t]o have granted such a request and to have permitted such evidence to go to a jury would amount to nothing more than giving the [defendant] an opportunity to fabricate evidence for himself by changing the style and character of his handwriting so as to deceive the jury.” See also People v. Hibbler (1971), 1 Ill. App. 3d 263, 266, 274 N.E.2d 101, 103 (defendant had no right to offer in evidence, as a comparison in forgery case, writing of his made after the controversy over the signature arose).

The defendant herein was similarly not entitled to fabricate evidence. Where his voice exemplar tape was made under circumstances which failed to furnish any satisfactory guarantee of its genuineness, the circuit court did not abuse its discretion in refusing to allow the tape’s admission into evidence.

The circuit court did, however, abuse its discretion in allowing into evidence Cynthia Proffer’s testimony regarding the telephone conversation she overheard between Tony Fischer and the defendant. This portion of Ms. Proffer’s testimony was hearsay which, contrary to the State’s contention, did not fall within the co-conspirator exception to the hearsay rule.

Under the co-conspirators’ exception to the hearsay rule, any act or declaration (1) by a co-conspirator of a party, (2) committed in furtherance of the conspiracy and (3) during its pendency, is admissible against each co-conspirator, provided that (4) a foundation for its reception is laid by independent proof of the conspiracy. People v. Eddington (1984), 129 Ill. App. 3d 745, 771, 473 N.E.2d 103, 121; People v. Goodman (1980), 81 Ill. 2d 278, 283, 408 N.E.2d 215, 216-17.

In Eddington (129 Ill. App. 3d at 773, 473 N.E.2d at 122), the court held that a conspiracy includes subsequent efforts at concealment, but only if those efforts are proximate in time to the commission of the principal offense. “When acts or declarations directed toward concealment are distant from the commission of the offense, they are subject to such grave doubts as to their trustworthiness that they should not be admissible under the co-conspirators’ exception to the hearsay rule.” (129 Ill. App. 3d at 773, 473 N.E.2d at 122.) Based on this reasoning, the Eddington court found that taped conversations between co-conspirators, made more than three months after the offense, were inadmissible against the defendant. 129 111. App. 3d at 774, 473 N.E.2d at 123.

Here, according to Proffer, the conversation between Fischer and the defendant occurred in April 1986, six months after the crimes were committed. Thus, as in Eddington, where the subject conversation did not occur during the pendency of the conspiracy, Cynthia Proffer’s testimony concerning that conversation was not admissible under the co-conspirators’ exception to the hearsay rule.

On appeal, the State further argues that Mrs. Proffer’s testimony was admissible as an implied admission by the defendant that he participated with Tony Fischer in the Edwardsville murders. The State contends that the defendant’s statement that he “wasn’t worried about Tina,” made in response to Fischer’s statement that he wanted the defendant to “get rid of Tina,” was an acknowledgement of Fischer’s intent that Tina Rose be killed because she might incriminate the defendant and Fischer in the crimes.

However, the case cited by the State in support of this theory is factually inapposite. In People v. Whitlock (1988), 174 Ill. App. 3d 749, 771-72, 528 N.E.2d 1371, 1384, the appellate court held that a defendant’s statements were implied admissions which supported an inference of guilt where they “indicated knowledge of the facts of the crime which were admissible to establish his guilt.” Here, Proffer’s testimony did not indicate any details of the crimes, nor were they even mentioned. The conversation overheard by Proffer was thus too vague to be considered an admission of the defendant’s guilt.

Because Mrs. Proffer’s testimony was, thus, inadmissible hearsay, the circuit court erred in allowing its admission into evidence. However, given the totality of evidence presented against the defendant, no reversible error occurred. (See Lutwak v. United States (1953), 344 U.S. 604, 619-20, 97 L. Ed. 593, 604-05, 73 S. Ct. 481, 490.) Although Proffer’s testimony did tend to bolster the credibility of Tina Rose, as we have previously stated, Ms. Rose’s testimony was adequately corroborated by both the testimony of Steve Howland and the defendant’s telephone bill showing calls to the Schrom residence on the night of the murders.

The defendant next asserts that the circuit court erred in refusing to give certain jury instructions. The defendant first alleges that the court erred in refusing his tendered accomplice instruction as to State’s witness Tina Rose. However, as we have previously determined that Ms. Rose was not an accomplice, the circuit court properly refused the instruction. See Robinson, 59 Ill. 2d at 192-93, 319 N.E.2d at 777 (where witness is not an accomplice, no error in court’s refusal to give tendered instruction relative to the testimony of an accomplice); see also People v. Chaney (1987), 157 Ill. App. 3d 552, 562, 510 N.E.2d 997,1013-14.

The defendant also contends that the circuit court erred in refusing his tendered instruction on the credibility of a narcotics addict, where the evidence established that Tina Rose was an addict at the time of the offenses and at the time she made statements to police in April 1986. The defendant’s proposed instruction read:

“Evidence that a witness was a narcotics addict at the time of the alleged crime and at the time the witness made prior statements concerning the alleged crime may be considered by you only as it may affect the credibility of the witness.”

In the absence of an Illinois Pattern Jury Instruction (IPI), the decision whether to give the jury an instruction rests within the trial court’s discretion. (People v. Winfield (1983), 113 Ill. App. 3d 818, 834, 447 N.E.2d 1029, 1042.) Considering the jury’s role as the sole judge of the facts, where cautionary instructions are concerned, the circuit court which confines itself to general instructions on credibility should be affirmed. People v. Rollins (1982), 108 Ill. App. 3d 480, 488-89, 438 N.E.2d 1322, 1328.

Here, the circuit court refused the defendant’s non-IPI instruction stating, in part, that “it usurps the function of the jury, especially where the jury is properly instructed as to the credibility of all the witnesses and *** as to the use of prior inconsistent statements.” The court’s ruling was not an abuse of discretion where it correctly stated the case law. See Rollins, 108 Ill. App. 3d at 488, 438 N.E.2d at 1328.

The defendant’s final contention is that he was denied his right to a fair trial as a result of improper prosecutorial remarks made during closing argument. The defendant assigns error to prosecutorial argument that Tina Rose was not accountable for the offenses involved herein, and that David Schenk’s gun had disappeared because it was evidence in a murder case.

While the defendant objected to the prosecutor’s comment that Ms. Rose “isn’t chargeable with anything here as to this offense,” no objection was made to the gun argument. Additionally, the defendant failed to specify which of the prosecutor’s statements were improper in his post-trial motion, stating merely that the “defendant was prejudiced by remarks made by the prosecutor during closing argument.” The defendant has therefore waived this issue for purposes of review. People v. David (1986), 141 Ill. App. 3d 243, 261, 489 N.E.2d 1124, 1135.

Further, in our view, neither argument constituted error. A prosecutor has great latitude in closing argument, and those statements made by a prosecutor which are based upon evidence presented at trial, as well as reasonable inferences deduced from that evidence, are within the bounds of legitimate argument. People v. Tannahill (1987), 152 Ill. App. 3d 882, 887, 504 N.E.2d 1283, 1287.

Here, evidence presented at trial showed that although Tina Rose had been charged with home invasion and armed robbery, those charges were to be dismissed. As we have repeatedly noted, Ms. Rose was not an accomplice to these offenses, and therefore any attempt to prosecute her for them would not be successful. Therefore, it was permissible for the prosecutor to argue that Ms. Rose was not legally accountable for the offenses.

Similarly, the prosecutor’s argument that David Schenk’s gun was the murder weapon was a fair inference drawn from the evidence. The defendant, in his reply brief, admits that the evidence presented at trial showed the gun’s first disappearance could accurately be assumed in the fall of 1985. Where the evidence further showed that both the defendant and Tony Fischer had access to Schenk’s .22 caliber Ruger handgun, and that that type of weapon could have fired the fatal shots, the prosecutor’s remarks were proper. Thus, there existed no prejudice to defendant so as to deny him a fair trial.

For the foregoing reasons, the judgments of conviction entered by the circuit court of Madison County are affirmed.

Affirmed.

GOLDENHERSH and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HAAS, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0728
    Opinion filed August 20, 1990.
    Rehearing denied September 11, 1990.

      Melroy B. Hutnick, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle and Ellen Eder Irish, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Michael Haas, was convicted of reckless homicide (count I), driving under the influence of alcohol involving great bodily harm (count II), and driving under the influence of alcohol (count III), by a jury in the circuit court of St. Clair County. Defendant was sentenced on counts I and II to concurrent terms of 30 months’ probation. The court refrained from sentencing defendant on count III, on the condition that: defendant provide urine specimens once a week; that he be evaluated by Gateway Foundation and complete any and all rehabilitation, education or treatment; and that he pay a $1,000 fine plus court costs. Defendant appeals his conviction.

The accident which gave rise to defendant’s conviction occurred May 17, 1987, after 1:30 a.m., on 6th Street in Mascoutah, Illinois, just south of where 6th Street intersects Fuesser Road. The speed limit on 6th Street is 55 miles per hour. It is a two-lane highway which intersects Fuesser Road at a 90-degree angle. The intersection of 6th Street and Fuesser Road is controlled only by stop signs for vehicles traveling on Fuesser Road. The area in and around the intersection is flat and without visual obstructions.

Just prior to the accident Michael Haas was driving south on 6th Street, and his friend Matthew Rasp was riding in the passenger seat. Michael Haas testified at trial that as he drove down 6th Street he passed a stopped vehicle and a police car with its red lights on, which were on a side street. Kevin Renth was the driver of the stopped vehicle. As Haas drove past, Renth pulled out behind him. Haas testified that as he approached Fuesser Road, he was traveling 35 miles per hour and was approximately 100 feet from the intersection when he entered the oncoming lane of traffic. He drove into the oncoming lane because he intended to make a left turn onto Fuesser Road. He did not see any oncoming vehicles or any headlights. Haas observed the vehicle behind him begin to pass him on the right. Haas was in the oncoming lane of traffic for one or two seconds when the impact occurred between his vehicle and a police patrol vehicle driven by Officer Brett Warner.

Officer Warner, a patrolman with the Mascoutah police department, was traveling northbound on 6th Street immediately prior to the accident. He was traveling 50 miles per hour. Warner testified that, as he approached the Fuesser Road intersection, he observed southbound traffic in the southbound lane coming towards him. He testified that when he was approximately 100 feet from the intersection he noticed the vehicle in the southbound lane pull into his lane as if it wanted to make a turn onto Fuesser Road. Warner stated that when he saw the vehicle come into his lane he immediately turned to the right and applied his brakes. When Warner started leaving the roadway to the right, the impact occurred. He did not recall much of what happened after the accident.

Matthew Rasp was killed in the accident. After the accident Michael Haas was transported to the hospital and submitted to a blood test for the purpose of obtaining his blood-alcohol content. The results of the tests on the blood samples were admitted at trial over defendant’s objection. Defendant contends that he was not given Miranda warnings (see Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) and that he did not authorize the withdrawal of his blood for the purpose of testing. Defendant argues that even if he were given Miranda warnings and otherwise advised of his rights, he was in no condition to understand those rights or to intelligently waive them. Defendant contends that the trial court erred in ruling that he knowingly and intelligently waived his rights against self-incrimination and voluntarily authorized the withdrawal of his blood. Defendant refers us to the testimony elicited at trial by witnesses who described his condition after the accident.

Kevin Renth identified himself as the person who was driving the car that Michael Haas testified had pulled out behind him on 6th Street prior to the collision. Renth testified that after the collision, he stopped his car and ran over to Haas’ truck. He testified, “the truck had turned over and he was like sitting up *** I think he was knocked out *** he crawled through the window *** there was somebody underneath him.” Renth continued, “he wasn’t hysterical * * * he was just walking around and, you know, saying I can’t believe this happened. I wouldn’t say he was hysterical *** considering what happened, he was in pretty good shape.”

Joseph Beil, the second person to arrive at the accident scene, testified that “the truck was on its side, kind of like sitting kind of straight up, like if there had been a chair sideways before the truck turned over, he was sitting upright.” Beil described Haas after he got out of the truck as “real hysterical and everything *** scared and panicky *** not in a calm state of mind *** he was crying.”

Jeffrey Wombacher, another witness at the scene, testified that he went to the hospital where Michael Haas was transported. Wombacher testified that “he was shaken up pretty bad, had cuts and everything from the wreck *** he was just all excited and he was trying to calm down.”

Michael Haas testified that he does not recall Kevin Renth being at the scene of the accident. Haas remembered the police at the scene asking him what had happened, but did not remember what answers he gave. Haas also could not recall whether he was given any admonitions against self-incrimination. He testified, however, that he remembered the police transporting him to the hospital, and remembered that he was able to provide the hospital admissions personnel with the information they needed. Although he recalled signing a form and the nurse taking his blood in the examining room, he did not recollect anyone explaining to him the rights of motorists with regard to giving blood.

Robert Brandkamp, a deputy with the St. Clair County sheriff’s department, testified that he arrived at the accident scene shortly after the collision. Brandkamp testified that at the time that he spoke with the defendant, Haas was crying and upset, and when he asked Haas what had happened, Haas stated that they had been to the May-fest and were on their way back to Mascoutah. Brandkamp testified that he ceased questioning Haas when he noticed that Haas had the odor of an alcoholic beverage on his breath. Brandkamp testified that he asked the defendant if he would be willing to submit to a blood-alcohol test, and that the defendant responded that he would. Haas was then transported to the hospital by Deputy Klucker.

Keith Klucker, the St. Clair County sheriff’s deputy who transported Haas to the hospital, testified that after the accident and at approximately 2:35 a.m., he read defendant his Miranda rights and warning to motorists. Deputy Klucker stated that after he read defendant his rights, the defendant advised him that he was aware of them and that he understood his rights. Although Klucker did not have the defendant sign the warning to motorists form, Klucker testified that the defendant did sign the hospital form authorizing hospital personnel to draw a blood sample to determine its alcohol content.

Section 11 — 501.1(c) of the Illinois Vehicle Code requires that a person requested to submit to a blood test be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s driving privileges. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c).) A written warning is not required. In re Summary Suspension of Drivers License of Rakers (1989), 187 111. App. 3d 27, 32, 542 N.E.2d 1311,1314.

The trial court found that, while defendant was obviously upset about the accident, he was oriented as to time, place, and circumstances, and was aware of what he was involved in and of what was happening to him as the evening progressed. The court found that the officer advised Haas of his rights and that Haas indicated that he understood those rights. When the evidence is contradictory, it is for the trial court to resolve all conflicts and determine the credibility of the witnesses. We will not disturb the trial court’s findings unless they are against the manifest weight of the evidence. (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656, 665, 485 N.E.2d 1248, 1254.) We find that the trial court’s denial of defendant’s motions to suppress was not against the manifest weight of the evidence.

We also find that defendant’s argument that the court erred in not suppressing the blood-alcohol test results because he was not given Miranda warnings to be without merit. Miranda warnings are applicable only to testimonial evidence. (Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Blood tests are noncommunicative in nature (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826) and, as such, may be conducted without the procedural protections encompassed by the Miranda warnings. See Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 495 N.E.2d 595.

Defendant next argues that the trial court erred in admitting the results of the tests on the blood samples into evidence because there was no proof that a preservative or anticoagulant was used. Defendant directs our attention to the following testimony of Ramona Carpenter, the phlebotomist who drew defendant’s blood samples:

“Q. So you have no idea, you don’t do any testing on those particular tubes to make sure that they are in good working order before you use them, do you?
A. No.
Q. You merely take the tubes, take the blood, inject the blood into the tubes, put them into the container and whatever happens to it next.
A. That’s right.
Q. So as you sit here today testifying, I know honestly and candidly, you can’t say to the ladies and gentlemen of the jury that there, in fact, was that potassium and that ox stuff in those tubes?
A. That I couldn’t say.
Q. Yes, ma’am.
A. Before the blood is in the tube, it’s a powder form like be in the bottom of the tube.
Q. You don’t know how long that had been there?
A. No.
Q. You don’t know if, what was in there was what it was supposed to be, do you?
A. No.
Q. Because you didn’t put it in there.
A. That’s true.
Q. No one in your presence put it in there?
A. No.
Q. Thank you. And it came from the manufacturer someplace else?
A. Yes.”

Defendant does not question the testing procedure performed by Carpenter. Defendant argues, however, that there is no way of knowing what in fact was in the vials at the time they were used, and there is no way of knowing what quality control measures the manufacturer used to insure the integrity of the vials and what they were supposed to contain prior to use.

There is no question that in order for the test results to be considered valid and admissible as evidence, the testing procedures must comply with the Department of Public Health standards. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2(a).) One of the standards promulgated pursuant to section 11 — 501.2(a) requires that “[wjhen vacuum-type blood-collecting containers are *** used as primary collecting tubes, two (2) tubes should be collected each containing an anticoagulant/preservative which will not interfere with the intended analytical method.” (Emphasis added.) Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs §510.110(a)(4)(C) (1982).

Ramona Carpenter testified that she injected the blood taken from defendant into the tubes provided in a testing kit, which the hospital made available to her for that purpose. She testified that to her knowledge, the tubes are prepared by a manufacturer and shipped to the hospital. Carpenter testified that the tubes she used in taking defendant’s blood sample were sealed; she did not remove the seal, but merely punctured the seal with the needle, and injected the blood into the vial. Carpenter testified that the tubes contained a powdered substance, which she presumed was the preservatives potassium oxalate and sodium chloride.

Marian Papiernik, a forensic scientist with the Illinois State Police Bureau of Forensic Science, testified that upon receipt of the vials of blood for testing, she noted that the seals were intact. At the time of testing the blood, Papiernik checked the color, the odor, and the consistency of the blood in the vial. She testified that there appeared to be nothing wrong with the blood. Papiernik explained that had she detected an odor, an off-color, or clotting in the blood, it would have indicated to her that there might not have been a preservative or anticoagulant present.

Based on the testimony, and in the absence of any evidence that the procedure followed was either contrary to the manufacturer’s recommendations or not approved by the Department of Public Health, we do not believe that it was necessary for the State to prove what quality control measures the manufacturer used to insure the integrity of the vials, or what definitive substance was in the vials at the time blood was drawn. (People v. Clark (1989), 178 Ill. App. 3d 848, 854, 533 N.E.2d 974, 978.) We find that the trial court properly determined that results of the test performed on the blood samples were admissible into evidence.

Defendant next contends that the trial court erred in admitting the test results into evidence because a chain of custody was not established. The rule is well settled that the State has the burden of proving a continuous chain of possession in order to establish a foundation. (People v. Cain (1966), 35 Ill. 2d 184, 188, 220 N.E.2d 195, 198, cert, denied (1967), 385 U.S. 1042, 17 L. Ed. 2d 686, 87 S. Ct. 781.) To determine whether the trial court abused its discretion, we will examine the evidentiary foundation presented by the State.

The record indicates that Deputy Klucker was present when defendant’s blood was drawn. After taking the blood, the phlebotomist handed the sealed vials to the deputy, who at that time labeled each vial with his signature. Deputy Klucker placed the vials in a container and gave them to Deputy Brandkamp. Klucker identified the tubes and container at trial as the ones used to obtain blood samples from the defendant. After receiving the container, Brandkamp transported it to the sheriff’s department, where he placed it in the evidence refrigerator. Brandkamp testified that when he received the container and while it was in his possession it was sealed. Brandkamp identified the container at trial as the same one given to him by Deputy Klucker.

Two days later Daniel Jennings, the crime scene investigator for the sheriff’s department, removed the blood sample container from the refrigerator. Although there is no lock on the evidence refrigerator, Jennings testified that it is located by his office, which is separate from the investigating unit. Jennings did not open the sealed package. Jennings initialed the package, wrapped it in brown paper and mailed it by certified mail to the forensic laboratory for testing. He received the container back from the laboratory 10 days after he forwarded it there.

Marian Papiernik, the forensic scientist who tested the blood samples, testified that she received the package containing the samples via registered mail from the St. Clair County sheriff’s department the day after Jennings mailed it. Upon receipt of the package, the container and the vials of blood were sealed. Papiernik labeled the vials and then placed them in the refrigerated vault which is accessible only to the analytical personnel with whom she works. Two days later when she removed a vial for testing, the seal on it was intact. Papiernik identified the vials of blood at trial as the same ones she received and labeled.

Defendant objected to the admission of the blood samples into evidence because the vials, show the initials of a number of people and not all of those persons who initialed the vials testified. In addition, not all of their names had been disclosed to the defendant. We find that a rule requiring that there be positive identification by everyone concerned would impose an unnecessary burden, while it would not assure a fair trial to the accused. People v. Cain, 35 Ill. 2d at 188, 220 N.E.2d at 198.

Defendant also complains that admission of the blood samples into evidence was error because the record shows that, upon delivery to Brandkamp, the vials were placed in an unsecured refrigerator accessible to virtually anyone. In proving chain of custody, the State is required to demonstrate a reasonable probability that the evidence has not been changed in any important respect. (People v. Valentin (1978), 66 Ill. App. 3d 488, 492, 384 N.E.2d 67, 69.) Since there is no evidence of tampering, alteration or substitution in the record (People v. Richards (1970), 120 Ill. App. 2d 313, 340, 256 N.E.2d 475, 489-90), we find that the chain of custody was sufficiently proved to entitle the vials to be admitted into evidence.

Defendant contends that even if we find that the chain of custody was sufficiently established, admission of the blood samples into evidence violated his due process rights. Defendant argues that the undisputed testimony of Marian Papiernik establishes that her findings with regard to the blood analysis were not verified by anyone. Defendant argues that a single unverified blood test is insufficient to convict and constitutes a violation of due process of law.

Contrary to defendant’s assertion that his conviction was based solely on a single unverified blood test, there is additional evidence in the record, as illustrated in the witnesses’ testimony set forth in this opinion, which supports the jury’s finding of guilt. Furthermore, we find that defendant was not denied due process by virtue of the blood-testing procedure conducted in this case. Defendant relies on Jones v. McKenzie (D.C. Cir. 1986), 628 F. Supp. 1500, rev’d on other grounds (1987), 833 F.2d 335, and Capua v. City of Plainfield (D.N.J. 1986), 643 F. Supp. 1507.

In Jones, the plaintiff, an employee of the school district, was discharged when she tested positive after a urinalysis. Plaintiff’s employment was governed by board of education rules which permited discharge of an employee in plaintiff’s position only for cause. Without confirming whether plaintiff’s termination violated substantive due process, the court found that the board of education rules permitting dismissal only for cause, and the urine test manufacturer’s warning that positive results of the urinalysis should be confirmed by an alternate method, were sufficient to demonstrate that plaintiff’s termination was arbitrary and capricious. The Jones court further commented that “confirmation” of the test results, as that term is used in the school district directives and the manufacturer’s warning, contemplated an alternative testing method such as the two suggested by the manufacturer.

Unlike Jones, there is no evidence that alternative testing methods are recommended to assure the accuracy of blood tests such as those which were performed in the instant case. Furthermore, there was additional evidence supporting the accuracy of the blood-test results. In performing the analysis, Marian Papiernik testified that she took two samples of defendant’s blood and ran duplicate tests on each. The samples were analyzed using a head-space gas chromatography. Papiernik testified that routine checks are conducted on the instruments used by the laboratory to test the accuracy of the instruments. On the same day defendant’s blood was analyzed, Papiernik ran a series of controls to test the accuracy of the head-space gas chromatography, and the controls were within acceptable ranges.

In Capua v. City of Plainfield, 16 firefighting personnel were terminated from employment after they tested positive in urinalysis tests conducted on 103 employees of the Plainfield fire department. The plaintiffs were not informed of the substance found in their urine, nor were they provided copies of the laboratory results. The court held that defendant’s refusal to afford plaintiffs a full opportunity to evaluate and review their personal test results or to have their own specimens retested by a technician of their choice offended traditional notions of fundamental fairness and due process. In the case at bar, the element of surprise was nonexistent as defendant was advised of his right to forego the blood test. Likewise, there is no evidence that defendant was denied the opportunity to review his test results, or to have an independent blood test conducted.

It is apparent from the record that the blood-testing procedure performed on defendant’s blood sample was more than a single unverified test. In addition, defendant’s conviction was based on more than the results of the blood test, as there was independent evidence of intoxication presented. We conclude that defendant was not denied due process.

The next issue raised by defendant is whether the court erred in denying defendant’s motion for mistrial made during the State’s closing argument, when the prosecutor stated:

“Now, what about this blood test? Was there any evidence, and if there was any evidence of tampering in this case, do you think this evidence would be before you today? Would the State bring this case if there was evidence of tampering? You'll notice in here, and it’s interesting, he talks about only one sample, only one test. What about the quality assurance, what about the credibility of that test? You’ll notice there’s two vials of blood in here. And you’ll remember the testimony of Marian Papiernik, that she only tested blood from the vial marked 1-A. What’s this other vial for? There was another vial of blood there. Mr. Hutnik had the opportunity if he wanted to test this blood. If he doubted the credibility of this — .”

At this point in the argument defendant moved for a mistrial. The court denied defendant’s motion, instructed the assistant State’s Attorney not to comment further on the matter, and the jury was directed to disregard the last comment made by the assistant State’s Attorney.

Defendant argues that the trial court erred in not granting a mistrial at this juncture because the prosecution mistated the burden of proof and led the jury to believe that defendant had the burden of proving his innocence. The State contends that the assistant State’s Attorney’s comments were made in response to defense counsel’s closing argument. In particular, reference is made to the following comment, taken from defense counsel’s closing argument:

“What also scares me a little about that, he’s put his entire case on one test, by one person in Springfield, Illinois, with no verification. And he says to you that alone ought to be enough to convict Michael Haas of everything here. And that scares me. To say that that person couldn’t make a mistake there had to be some way to verify, run a second test. The State of Illinois has got the money, don’t worry about them running short on funds. Run a second test, do something to verify it, overcome the fact the margin of error that people can make. Nothing to verify it. There is no second opinion if you will, no verification, just that one test quickly run that says he’s guilty.”

While a defendant cannot claim error where the prosecutor’s remarks have been invited and provoked by defense counsel (People v. Suane (1987), 164 Ill. App. 3d 997, 1004, 518 N.E.2d 458, 463; People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180, 183), we do not believe the remarks made by defense counsel warranted the improper rebuttal by the prosecution. Argument as to the testing procedure performed by Marian Papiernik, and comments as to the reliability of the testing procedures as demonstrated by the evidence, would have been sufficient to rebut defense counsel’s argument. Nonetheless, a mistrial should be declared only in cases where there is an occurrence of such magnitude as to deprive a party of a fair trial. People v. Suane, 164 Ill. App. 3d at 1006, 518 N.E.2d at 464; see also People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Contrary to the defendant’s argument that but for the State’s improper closing remarks the jury would not have rendered a guilty verdict, there was not only evidence of the blood-test results, but also evidence that defendant had been drinking and that he was intoxicated at the scene. Proof of the reliability of the blood-testing procedures was also presented. In view of the whole record, and the trial court’s promptly sustaining defendant’s objection to the prosecution’s remarks and instructing the jury to disregard such argument, we find no error in the trial court’s denial of the motion for a mistrial.

Defendant next contests the constitutionality of sections 11— 501.2(b)(3) and 11 — 501(d)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, pars. ll-501.2(b)(3), ll-501(d)(3)), and section 9-3(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(c)(1)). The common element each of these three sections possesses, upon which defendant’s argument is based, pertains to the presumption that a person is under the influence of alcohol if his blood-alcohol concentration is 0.10 or more. Defendant argues that this legislatively created presumption deprives a defendant of his constitutional right to a trial by jury (Ill. Const. 1970, art. I, §13), and also unconstitutionally shifts the burden to a defendant to prove his innocence.

In response, the prosecution maintains that defendant waived this issue on appeal because he failed to raise the objection at trial or in his post-trial motion. After reviewing the record we find that defendant did object at the jury instruction conference to the giving of the jury instruction taken from Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 23.06). Defendant’s post-trial motion also included a claim that the trial court erred in giving each instruction objected to by defendant. We note, however, that while defendant objected to the instruction during the conference, he did not raise the specific objection which he now asserts on appeal, and he did not tender an instruction setting forth his interpretation of the law. It is defendant’s duty to tender at trial a proper instruction on a particular issue, and failure to do so will preclude him from raising objections to the given instruction on appeal. (People v. Smith (1978), 71 Ill. 2d 95, 104, 374 N.E.2d 472, 475.) However, if the interests of justice require, substantial defects in jury instructions in criminal cases are not waived by failing to object properly. 107 Ill. 2d R. 451(c); People v. Reding (1989), 191 Ill. App. 3d 424, 446, 547 N.E.2d 1310, 1324.

The prosecution also points out that defendant has failed to cite any authority in support of his argument that giving IPI Criminal 2d No. 23.06 was error. The rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. (People v. Hoskins (1984), 101 Ill. 2d 209, 219, 461 N.E.2d 941, 946.) We, therefore, will address the merits of the issue raised by defendant.

The Illinois Supreme Court has recognized that the evidentiary devices known as presumptions are categorized into two groups: mandatory and permissive. (People v. Hester (1989), 131 Ill. 2d 91, 99, 544 N.E.2d 797, 801.) A mandatory presumption is one where the fact finder is not free to reject the presumption. The trier of fact must find the presumed elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. (County Court v. Allen (1979), 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2225.) A permissive presumption leaves the trier of fact free to credit or reject the connection between the presumed fact and the basic fact. (County Court, 442 U.S. at 157, 60 L. Ed. 2d at 792, 99 S. Ct. at 2225.) In criminal cases the ultimate test of any device’s constitutional validity remains constant: the device must not undermine the fact finder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. (County Court, 442 U.S. at 156, 60 L. Ed. 2d at 791, 99 S. Ct. at 2224.) In Hester (131 Ill. 2d at 100, 544 N.E.2d at 802), the court held that to determine whether a presumption contained in a jury instruction is mandatory or permissive, a court must examine the words contained in the jury instruction.

In the instant case, the questioned jury instruction given was as follows:

“If you find that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his blood was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of intoxicating liquor.
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of intoxicating liquor.” (Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981).)

In Hester the court stated that the fourth district cases of People v. Elliott (1986), 143 Ill. App. 3d 72, 492 N.E.2d 946, People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165, and People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931, indicate that IPI Criminal 2d No. 23.06 does not fairly state the law, because the first paragraph of the instruction includes language which appears to denote a mandatory presumption, while the second paragraph contains permissive language. The supreme court, however, did not conclusively find that the giving of IPI Criminal 2d No. 23.06 without modification would constitute grave error.

We note that subsequent to trial IPI Criminal 2d No. 23.06 was modified, deleting the mandatory language of paragraph one, and adding language clarifying the jury’s role to consider all of the evidence in determining whether the defendant was under the influence of alcohol. (See Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. Supp. 1981).) While we agree that this modified version of IPI Criminal 2d No. 23.06 is preferable, we will now address whether it was error for the trial court here to give the nonmodified version of the instruction.

In People v. Frazier, IPI Criminal 2d No. 23.06 was given. The court found that since the instruction used the words “you shall presume,” it created an impermissible presumption. The court held, however, that the error created by the first paragraph was cured by the jury instructions read as a whole, because the language of the second paragraph permitted the jury to disregard the presumption. (Frazier, 123 Ill. App. 3d at 573, 463 N.E.2d at 173.) As in Frazier, the court in the case at bar instructed the jurors as to the presumption of innocence and that it was within their province to decide questions of fact. Each of the instructions on reckless homicide, driving under the influence of intoxicating liquor, and driving under the influence of intoxicating liquor involving great bodily harm required the jury to determine that all of the propositions were proven beyond a reasonable doubt. Jury instructions must be construed as a whole and not viewed in isolation. (People v. Housby (1981), 84 Ill. 2d 415, 433-34, 420 N.E.2d 151, 160; People v. Reding (1989), 191 Ill. App. 3d 424, 448, 547, N.E.2d 1310, 1326.) In this case the instructions as a whole informed the jury that it was not bound by any presumptions, nor did they shift the burden of proof to the defendant. (Reding, 191 Ill. App. 3d 424, 448, 547 N.E.2d 1310, 1326.) We find, therefore, that defendant was not deprived of his constitutional right to trial by jury, nor was he shouldered with the burden of proving his innocence.

Defendant also contends that two of the jury instructions given did not accurately state the law. Both instructions were non-Illinois Pattern Jury Instructions.

The first instruction, which was based upon sections 9 — 3(b) and 9 — 3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 3(b), (c)), read:

“Being under the influence of alcohol at the time of the alleged violation shall be prima facie evidence of a reckless act. A person shall be considered to be under the influence of alcohol if the alcohol concentration of such persons blood is .10 percent or more by weight of alcohol.”

Defendant claims that this instruction made it appear that there was but a single definition of being under the influence which applied to each of the charges in this case. Defendant also claims that the instruction’s omission of the language of section 9 — 3(c) that, “the alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2 of the Illinois Vehicle Code,” misrepresented the law.

The test of the correctness or propriety of instructions is not what meaning the ingenuity of counsel can attribute to them, but how and in what sense, under the evidence before them and considering the circumstances of the trial, ordinary men acting as jurors will understand the instructions. (Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 439, 454 N.E.2d 754, 760.) Defendant’s argument that the instruction made it appear that there was but one definition of being under the influence which applied to every charge in this case is without merit. The instruction itself refers to a “reckless act," thus denoting its applicability to the reckless homicide charge. Furthermore, the other instructions given to the jury clearly indicate that the definition of “being under the influence” in the instruction did not apply to the other charges against defendant. The charge of driving under- the influence of intoxicating liquor included its own distinct definition of when a person is considered to be under the influence of intoxicating liquor:

“When as a result of drinking ány amount of intoxicating liquor his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.”

Furthermore, IPI Criminal 2d No. 23.06 was given and explained the standard for determining whether defendant was under the influence of intoxicating liquor so as to sustain the charges of driving under the influence of intoxicating liquor. Jury instructions are to be construed as a whole and not taken in isolation. (People v. Housby (1981), 84 Ill. 2d 415, 433-34, 420 N.E.2d 151, 160.) It is clear that the instruction did not lead the jury to conclude that it was bound to the definition of “being under the influence” as to every charge.

Defendant’s claim that the instruction’s omission of language taken from section 9 — 3(c) mistated the law is also unfounded. The decision whether to give a non-IPI instruction rests within the sound discretion of the trial court. (107 Ill. 2d R. 451(a); People v. Stamps (1982), 108 Ill. App. 3d 280, 298, 438 N.E.2d 1282, 1297.) The language of the given instruction was taken from the language of section 9 — 3. The omitted language of which defendant complains would not have added anything of which the jury was not already apprised. We do not find that the court abused its discretion in giving the instruction.

The second jury instruction which defendant contends the court erred in giving read:

“A person commits the offense of Driving Under the Influence of Intoxicating Liquor Involving Great Bodily Harm when he drives any vehicle while under the influence of intoxicating liquor and was involved in a motor vehicle accident which resulted in great bodily harm to another when such violation was the proximate cause of such injuries.”

Defendant argues that this instruction is cumulative and fails to provide a definition of driving under the influence. As stated in our discussion of the preceding issue, the jury was apprised via other jury instructions of the definition of “driving under the influence.” As jury instructions must be construed as a whole, we find that any alleged error was cured by the other instructions.

Defendant contends that the instruction at issue was cumulative in light of the following instruction which was given:

“To sustain the charge of Driving Under the Influence of Intoxicating Liquor Involving Great Bodily Harm, the State must prove the following propositions:
FIRST: That the defendant drove a vehicle; and
SECOND: That the defendant then was under the influence of intoxicating liquor.
THIRD: The defendant was involved in a motor vehicle accident which resulted in great bodily harm to Brett Warner[’s] injuries.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

While the giving of repetitious jury instructions is not favored, we do not believe that there was prejudicial error committed in giving both of the instructions. Considering the instructions as a whole, we do not find that the jury was misled or that defendant’s rights were prejudiced. Sphatt v. Tulley (1962), 38 Ill. App. 2d 229, 236, 186 N.E.2d 670, 673.

Defendant’s final issue on appeal is whether the trial court erred in denying defendant the right to present a videotaped enactment of the course Officer Warner’s vehicle traveled prior to the accident. Voir dire of defendant’s witness who produced the videotape enactment was conducted outside the presence of the jury. Defendant’s witness, Anthony Golee, testified that he prepared the videotape enactment for the purpose of demonstrating the braking action and stopping distance of a vehicle in an emergency situation. Defendant contends that the videotape clearly shows that Officer Warner would have had no difficulty in stopping his vehicle and avoiding the accident if the accident occurred as Officer Warner testified.

The determination of whether to admit or exclude evidence of experiments rests largely in the sound discretion of the trial judge, and his decision will not be overturned on appeal absent a clear showing of abuse of discretion. (Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App. 3d 217, 225, 334 N.E.2d 764, 771.) Reconstruction experiments are incompetent unless the essential elements of the experiment are shown to be substantially similar to those existing at the time of the accident. (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 280, 404 N.E.2d 311, 318.) In this case there were several material differences between the conditions portrayed via the videotape and the actual accident.

The investigator who produced the videotape enactment testified that he performed no tests to determine if the braking mechanism on the test car differed from the car driven by the officer. The car used in the test was a 4,242-pound 1986 Oldsmobile 98, while the car driven by Officer Warner was a 3,820-pound Ford Crown Victoria. No tests were conducted to determine whether the road surface at the time of the test was the same as it was at the time of the accident. The test was conducted between 8 a.m. and 9:30 a.m., while the accident occurred in the dark early morning hours. Based on these dissimilarities, we cannot find that the trial court abused its discretion in refusing admission of the evidence.

Based on the foregoing, we affirm the decision of the trial court of St. Clair County.

Affirmed.

WELCH and RARICK, JJ., concur.