author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LOPEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3642
    Opinion filed April 15, 1992.

      John M. Cutrone, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, David Lopez, was charged with murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2), and the concealment of a homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3.1) in the death of his estranged wife, Jaynette. After a jury trial, defendant was convicted of voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) and the concealment of a homicide. He was sentenced to consecutive terms of 15 years’ imprisonment for the voluntary manslaughter and five years’ imprisonment for the concealment of a homicide.

On appeal, defendant asserts that (1) the trial court erred when it allowed the State to introduce evidence of the results of electrophoretic testing of dried blood samples and the victim’s blood sample because the testing has not gained general scientific acceptance as being reliable; (2) the error in admitting the electrophoretic test results was compounded by the admission of statistical evidence derived from the tests; (3) the trial court erred in imposing consecutive sentences because they were not required to protect the public from defendant; (4) the trial court erred in refusing to give defendant’s tendered involuntary manslaughter instruction; (5) the trial court erred by admitting other crimes evidence, especially since the State argued in its closing argument that it showed defendant’s propensity to commit crime; (6) there was insufficient information to constitute probable cause to arrest defendant, requiring the suppression of his subsequent statements; and (7) absent defendant’s statements, the evidence was insufficient to convict him. We affirm.

Defendant and his wife, who had been married for four years, had one son. On May 21, 1986, Jaynette and her son were living with her sister, Kathleen Downs. Around 10 p.m., Jaynette left, wearing a black lace blouse, gray wool pants, black high heels, black purse, gray jacket, gold earrings, and a gold medallion. The next morning, Downs awoke and noticed Jaynette had not yet come home. After returning home from work, finding that Jaynette was still not home by 8 p.m., Downs called the police and filed a missing person’s report. On May 24, 1986, Downs found Jaynette’s car parked in an Oseo parking lot at 63rd Street and Pulaski Avenue, Chicago.

When Detective Michael Duffin was assigned to the missing person investigation on May 31, 1986, he asked defendant to come to the police station for an interview. Defendant told Duffin that he and Jaynette were separated, had been living together on and off over the four years of their marriage, and the last time he saw her was on May 2, 1986, in court.

Defendant explained that Jaynette moved out with their son and stayed with relatives in February 1985, after a physical altercation. When defendant was unable to speak with Jaynette on the telephone, he became angry and shot himself in the shoulder. During that next summer, while still separated, defendant took their son to Florida and left him at an ex-girlfriend’s house. Defendant returned to Illinois, told Jaynette where the baby was, and tried to force her to sign consent custody papers. Although he denied taking the baby to get his wife back, soon after he returned with their son, they lived together again.

Defendant began tape recording his wife’s telephone conversations. When Jaynette discovered the tape recorder on February 13, 1986, they argued. Defendant struck Jaynette and threw the telephone at her. Jaynette and her son went to live with her sister, and on May 2, 1986, Jaynette and defendant appeared in court. Defendant stated that he pleaded guilty to a battery charge against Jaynette and received one year’s supervision. At that time, an order of protection was entered against defendant.

Defendant told Duffin that Jaynette had filed for a divorce and that there was a child custody issue. Defendant also told the police officers that he worked in his brother’s auto parts business. Although he had owned a .25 caliber handgun, defendant stated, he had given it to a cousin a week earlier. Defendant refused to give the cousin’s name. He admitted that he had owned another .25 caliber handgun that had been confiscated after he shot himself. Defendant also informed Duffin that he had a psychiatrist.

Defendant gave Duffin permission to search his car. After giving the detective the keys, Duffin went outside and looked through the car, but found nothing. Defendant also gave permission for the police to search his apartment and signed a consent-to-search form. Defendant left the police station alone and met the police, letting them into his apartment. Duffin searched the apartment for V-k hours. He saw numerous articles of Jaynette’s clothing and personal belongings in brown plastic bags with black linings. The police officers left without taking anything and defendant stayed in his apartment.

On June 1, 1986, at 3:03 p.m., Officer Linda Kennedy arrived at the Chicago River at 28th and Hoyne Streets, Chicago, where a body had been found facedown in the river. During an area search, Officer Dennis Veneigh, an evidence technician, found two pieces of blue plaid material, which were the same type used to tie the victim’s hands and feet, approximately 140 to 150 feet from where the body was found. On cross-examination, Veneigh testified that the area where the body was found was at the end of a dead-end street, where discarded debris, including used auto parts, was located. Veneigh did not find Jaynette’s purse, identification items, jewelry, or money.

At 3:30 p.m. on June 1, 1986, Detective James Mercurio observed the body in the river. It was in one foot of water, about two feet from the shore. Brown plastic bags were over the top portion of the body; the hands and feet were bound with blue and white plaid material; there were no shoes; the pockets were turned inside out; the pants were unbuttoned; a wire mesh was wrapped around the body; and an automobile cylinder was tied to the waist. Mercurio testified that blue and white plaid material, which was similar to the material tied around the victim, was found about 300 feet from the body. Blue automotive-type towels were wrapped around the plaid material.

At the morgue, Mercurio stated, he noticed that the body was wrapped in brown plastic bags with black linings. The victim was wearing a black blouse with small white dots and gray wool slacks. During the autopsy on June 2, 1986, Mercurio observed gunshot wounds to the head. He later learned that small caliber bullets were removed from the body.

On June 2, 1986, Detective Duffin learned that a woman’s body matching Jaynette’s description and wearing similar clothing was found in the river. He went to the morgue to view the body. Duffin noticed that the plastic bags wrapped around the body were the same type that he had earlier seen in defendant’s apartment. Duffin informed Mercurio of the plastic bags in defendant’s apartment, the marital problems between Jaynette and defendant, and defendant’s previous ownership of small caliber handguns. Duffin also informed Mercurio that defendant worked in an auto supply store.

After leaving the morgue, Detective Mercurio went to the victim’s parked car. He noticed a playpen in the back seat and blue toweling scattered on the back seat. The toweling was similar to the blue towels found near the body. Officer Frank Gurtowski, an evidence technician, saw blue paper towels on the rear seat and rear floor and a baby s playpen in the rear seat.

Around 1 a.m. on June 3, 1986, Detective Mike Miller went to defendant’s apartment. Defendant agreed to go to the police station for an interview. At the police station, he was placed in an interview room, where Miller advised defendant of his Miranda rights around 2:35 or 2:40 a.m. Miller then placed three colored photographs face-down on the table, telling defendant that he thought they were of Jaynette, taken after she was pulled from the river. Defendant asked to see them. When he looked at the photographs, he became distraught and began to cry. After he returned the photographs and they were placed facedown on the table, defendant composed himself and continued the interview.

Defendant told Miller that he and Jaynette had marital problems and that there was a domestic argument on February 13, 1986, during which he struck his wife with a telephone. After he was arrested, Jaynette took some of her belongings and left with their son. The last time he had seen his wife was on May 2, 1986, when they were in court on the battery charge.

The interview lasted no longer than an hour. Defendant was allowed to use the restroom, was given coffee, and was made as comfortable as possible. Miller described defendant as calm, contemplative, and reflective.

When Detective Mercurio came on duty at 8:30 a.m. on June 3, 1986, the body had tentatively been identified as Jaynette, based on the clothing description, a full upper plate in her mouth, and the amount of time it had been in the river. At 9:45 a.m., Mercurio spoke to defendant, giving him his Miranda rights. Mercurio told defendant that a tentative identification had been made of Jaynette’s body and that they had physical evidence that may link him to his wife’s death. Defendant responded by putting his head down for a couple of moments. When he raised his head, he said, “[Y]ou know, I didn’t get up off the shore *** I lied to you before *** I did kill my wife.” Defendant stated that he wanted to tell what happened, but that he wanted police detective Peter La Porta, who was a friend, to be present.

About 11:05 a.m., Detectives Mercurio and La Porta spoke with defendant for about 45 minutes. Mercurio again advised defendant of his Miranda rights. Defendant responded, “You know, I can’t live with it anymore *** I want to tell you what happened *** I killed her.” Defendant related that, on the evening of May 21, 1986, he saw his wife driving her car west on 63rd Street at Pulaski Avenue. He followed her to a lounge called “Crackers,” watched her park, and then parked his car down the block. He waited for his wife to go into the bar. Defendant debated whether to go into the bar, but decided to go home, where he drank three cans of beer. After buying and drinking another six-pack of beer, defendant took his .25 caliber automatic gun, got into his car, and drove to “Crackers.” Because Jaynette’s car was parked in the same place, defendant parked his car in a nearby restaurant parking lot. He then walked back to Jaynette’s unlocked car, got into the back seat, hid under the playpen, and waited. About 10 to 30 minutes later, Jaynette came to her car with a man, who kissed her and said he would call her later.

Shortly after Jaynette drove away, defendant got up and startled her. Defendant told her to drive into the Oseo parking lot at 63rd Street and Pulaski Avenue. In the parking lot, defendant stated that he wanted to talk about living together again. They began to argue, and defendant pulled out his gun, putting it to his head.

Defendant stated that Jaynette told him that he should have done a better job the last time he tried to commit suicide. When she started to call him names, he put the gun to Jaynette’s head. She raised her arm and the gun went off, striking her behind the right ear. Still conscious, Jaynette slumped over against the driver’s door and asked, “Why me?” Defendant apologized, saying that he had not meant it.

Defendant then moved Jaynette to his car. He began driving to Holy Cross Hospital, but he pulled over because Jaynette was crying and screaming in pain. Defendant stated that Jaynette told him to give the baby his vitamins and to “just let it happen,” which defendant took to mean that she wanted him to kill her. Because the first shot had been so loud, defendant wrapped the gun in his vest. He then fired several more shots into Jaynette’s head, which was on his lap, until the gun jammed.

Defendant drove home and parked in the alley. He went to his apartment, got some brown and black garbage bags and masking tape, changed his clothes and put them into one garbage bag, and went back to his car. He then put the bags over Jaynette’s head and taped them.

He drove back to the restaurant parking lot where he had parked earlier. On the way, defendant threw the shell casings caught in the vest, one at a time, out the car window. In the parking lot, defendant moved Jaynette’s body from the front seat to his car’s trunk. He found a plaid shirt on the ground and put it under Jaynette’s neck in case any blood leaked out of the garbage bags.

Defendant drove home and parked his car in the alley behind his apartment. About 11 p.m. that evening, defendant drove to the river, where he took his wife’s body from the trunk. At that time, blood spilled onto his pants. Defendant took the body to a clearing about 15 feet from the river. He got the plaid shirt and a cylinder head from his trunk. He tore the shirt into strips and used them to tie the cylinder head to the body and to tie her feet. He then found a piece of concrete reinforcement wire, which he rolled around the body to keep the cylinder head attached. Defendant dragged the body to the edge of the river and rolled it into the river.

When defendant returned to his car, he got the garbage bag containing his bloody clothing, the vest he used to cover the gun, Jaynette’s purse, jacket, and shoes, and the blood-soaked blue toweling, which he had used on the car seat so that no blood would get on it. Defendant did not mention the gold medallion or gold earrings. Defendant put bricks into the bag and threw it into the river along with the gun and another cylinder head that had been in his trunk. Defendant stated that he had gotten the blue toweling from the auto supply store where he worked.

Because he could still see the body, defendant used a stick to push it farther into the river. Defendant stated that the blood-soaked black corduroy pants he wore that night were hanging in his closet.

At 2 or 3 p.m. on June 3, 1986, Mercurio, La Porta, assistant State’s Attorney Jeanette Sublett, and assistant State’s Attorney William Frost entered defendant’s interview room. After Frost gave defendant his Miranda rights, defendant made a one-hour statement. Defendant was then left alone.

About 5 p.m., Mercurio brought consent-to-search forms for defendant’s apartment and car. After Mercurio read the forms to defendant and defendant looked at the forms, defendant signed them and gave his keys to Detective Comelison, who later conducted the searches.

During those searches, Comelison found the black corduroy pants hanging in the closet. There appeared to be crusted blood on the front and on both cuffs. Comelison also looked for bloodstains in defendant’s car trunk and passenger compartment, but did not find any. He did not see any bullet holes in the car seat, any trails of blood, or any human tissue.

After again being given his Miranda rights, defendant gave a 45-minute court-reported statement at approximately 5:20 p.m., during which Mercurio, Frost, and Sublett were present. The written statement was substantially the same as the earlier oral statements. Sublett and Mercurio later brought defendant the typed statement. He read the statement, made and initialed corrections, and signed the last page. After signing, defendant stated that he felt better after finally telling someone what had happened.

During a hearing on defendant’s motions to suppress, defendant testified that the statement he gave was not true. He denied telling Mercurio that he killed his wife or that he wanted to confess in front of La Porta. Defendant stated that he asked for La Porta because the police officers offered him a deal that his son would be placed with his family and that he could plead “innocent-crazy” to a crime of passion. Once La Porta arrived, defendant testified, he confessed only after Mercurio again made that same offer.

Defendant also testified that after he told Sublett that he had never been given his Miranda rights, she told him not to repeat that to anyone else. Defendant admitted that he had been fed, was allowed to smoke, and used the restroom every time he asked. He also admitted reading his statement, making corrections, and signing his name.

Finding that defendant had voluntarily gone to the police station and that the arresting officer had probable cause to arrest defendant, the trial court denied the motions to quash arrest, suppress evidence, and suppress statements. The trial court also denied defendant’s motion to suppress evidence based on the consent forms. The trial court found defendant knowingly and voluntarily consented to having his apartment and car searched.

At trial, Dr. Mitra Kalelkar, who performed the autopsy, testified that Jaynette’s body was wrapped in two plastic bags tied over her head and taped; a white plastic bag was taped around her neck; her body was wrapped in wire mesh and weighted down with a heavy metal object tied to her waist with a piece of blue shirt; and the same blue plaid material was used to bind her ankles. Jaynette was wearing a black blouse with lace around the neck, gray pants, and underclothing.

The body was in an advanced state of decomposition. There were four gunshot wounds to her head. Around the wound behind her right ear were black powder and soot deposits, indicating that it was a contact wound. The other wounds were on top of her head, the left side of her forehead at the hairline, and in front of the left ear on her face. There was one exit wound in the right back of her head, probably from the bullet that entered her left forehead.

The bullet that was thought to be the first one fired was lodged in the skull behind her ear. It did not lacerate the brain and would not have caused instantaneous death. It would have bled only slightly because it was caused by a small caliber bullet and did not strike any major blood vessels.

The other bullets perforated her brain. Two of them were lodged in the brain and one exited the head. Dr. Kalelkar testified that those wounds would probably leak a little blood immediately and then would later bleed more heavily. None of those wounds had powder burns around them. If they were close-range wounds, but not contact wounds, Dr. Kalelkar explained, any powder could have been washed away or filtered by her hair. Dr. Kalelkar stated that she removed a vial of blood from Jaynette’s heart. The blood was decomposed and had gone through biological changes. Dr. Kalelkar concluded that the cause of death was multiple gunshot wounds.

It was stipulated that two fired bullets recovered from Jaynette were .25 caliber bullets. There was also a bullet fragment recovered from the body. Jaynette’s body was positively identified through her dental X rays.

Kathy Moorman, a forensic serologist formerly employed by the Chicago police department, testified as an expert witness over defendant’s objection. She explained how she first performed dry stain tests on the victim’s blood and the dry human blood from defendant’s black corduroy pants. Moorman identified both the victim’s blood and the pant’s blood stains as type 0.

Moorman conducted electrophoretic tests to compare the enzymes present in both blood samples. She described the process of electrophoresis, which is a method using an electric field to separate and identify blood proteins. Moorman stated that she had performed a few hundred electrophoretic tests. The results indicated that there were four common proteins present in the two samples. Moorman did not find any different proteins.

On cross-examination, Moorman testified that she tested for 10 enzymes, but only four reacted. If a sample is not suitable or is contaminated, Moorman explained, there will either be a disappearance or a lack of results. When asked whether type 0 blood is common, she testified that 45% of the white population have type 0 blood. Tests performed on defendant’s car seats, car carpeting, and trunk carpeting showed no traces of blood.

On redirect examination, Moorman stated that only 4% of the population have type 0 blood with the same four enzymes found in the blood samples. Moorman indicated that those percentages come from an American Society of Blood Banks study that the Chicago police department uses.

Moorman clarified that her job was to compare blood from different sources to determine common characteristics, not to be a statistician, for which she was not qualified. Even so, Moorman testified, she performed a statistical analysis from the population study. Although she knew that the study is used as the standard reference in the field, Moorman admitted that she had never read the study, did not know who prepared the study, whether it had been updated, or whether there are cautionary comments in the study.

Moorman testified that the chart indicated that 79% of the total population have the ESD 1-1 enzyme pattern; 36% have the PGM 2-1, 30% has the GLO enzyme; and 36% have the PEPA 1. Moorman then multiplied the percentages together because that is the method used to combine independent variables. The study, Moorman stated, does not include such a method and she found “it hard to find a correlation between that study and why I multiply the numbers.”

Emmett Harmon, an analytical biochemistry expert, testified for defendant. Harmon explained the electrophoresis procedure. Because certain enzymes activated after death have an effect on the blood’s protein composition, Harmon stated, a blood sample taken from a body that had been dead for 10 days in 60 degrees Fahrenheit, as Jaynette’s body was, could give false results in the protein analysis.

Harmon testified that there are different enzyme tables for different nationalities since enzyme systems are affected by race and national origin. Because the white population is composed of many different nationalities, it is improper to multiply the percentage of the general white population with the four enzymes.

Harmon never received, asked for, or ran tests on the victim’s blood or the bloodstains on defendant’s pants. He was aware, however, that the tests performed found both blood samples to be type 0. He opined that 60% to 65% of the population would have the four enzymes with type 0 blood.

Furthermore, Harmon indicated, the sample was probably suspect because the more popular enzymes tested did not react. Therefore, Harmon concluded, it was very dangerous to draw conclusions from Moorman’s tests. In addition, Harmon stated, a sample is reliable for testing for only three months. Some of Moorman’s tests were conducted six months after Jaynette’s death.

When defendant testified at trial, he admitted making a statement, but claimed that it was based on what the police officers wanted to hear. He stated that after Mercurio threatened him about his son’s custody, he used the information in the police reports that he had read and pictures he had seen to make up a story. Defendant said that he read and initialed each page of his statement and made corrections because those were the answers the police officers wanted to hear, not because they were accurate. Defendant denied killing Jaynette. He also stated that Jaynette had violent tendencies, having beaten him up at his workplace after he had taken their son to Florida.

After an instruction conference and closing arguments, the jury deliberated and found defendant not guilty of aggravated kidnapping but guilty of voluntary manslaughter and the concealment of a homicidal death.

After the court denied defendant’s post-trial motions, a sentencing hearing was held. In aggravation, Officer Tom Paszkowski testified that, on February 14, 1985, he went to defendant’s apartment, and found that defendant had a gunshot wound to his left shoulder. Paszkowski recovered a loaded .25 caliber automatic gun, which was confiscated and destroyed.

Corporal William Kreitzer of the Burbank police department testified that he responded to the February 13, 1986, domestic disturbance call. When Kreitzer arrived at that address, Jaynette met him in the hallway. She told him that her husband had struck her on the left side of her face and her back with his fist and threw the telephone at her, striking her in the left arm. Kreitzer noticed redness and swelling on the left side of Jaynette’s face, left arm, and back.

Jaynette told Kreitzer that defendant had a history of armed violence. Because defendant had locked her out and was alone in the apartment with their child, Jaynette feared for their child’s safety. Kreitzer knocked on the door and announced himself twice. When defendant did not open the door, Kreitzer kicked in the door and arrested defendant. Kreitzer attended the May 2, 1986, court hearing where defendant pleaded guilty to battery and was given supervision.

Three of Jaynette’s sisters and her brother read letters to be included in the victim impact statement. All expressed concern for defendant’s three-year-old son and denounced defendant’s actions. Jaynette’s brother also testified about how defendant’s killing Jaynette has adversely affected his life. Defense counsel objected to the letters’ use in aggravation. The trial court stated that it would consider the letters only as they pertained to the actual impact of the killing on each individual, but not on any collateral matters.

No mitigation was presented and closing arguments were heard. After defendant addressed the court, the trial court stated that it considered the trial testimony, the presentence investigation report, all statutory factors in aggravation and mitigation, the aggravation testimony, the attorneys’ arguments and cases cited, and defendant’s statement. The trial court specifically found that the crime of concealment of a homicidal death was not committed as part of a single course of conduct, that there was a substantial change in the nature of the criminal conduct, and that justice under the circumstances required a consecutive sentence. Defendant was then sentenced to consecutive terms of 15 years’ imprisonment for the voluntary manslaughter and five years’ imprisonment for the concealment of a homicidal death.

On appeal, defendant asserts that the trial court erred when it allowed the State to introduce the results from the electrophoretic blood tests on the dried bloodstains and on the victim’s blood because the State failed to establish that such testing is reliable and generally accepted in the scientific community. Defendant’s argument is without merit and outdated.

To support his arguments, defendant relies on People v. Harbold (1984), 124 Ill. App. 3d 363, and various articles, most of which are at least 10 years old. All of defendant’s authority discusses dried blood samples, not blood taken from a corpse. Defendant also cites a Michigan case, People v. Young (1986), 425 Mich. 470, 391 N.W.2d 270. Of the decisions analyzed by the Illinois Supreme Court in People v. Eyler (1989), 133 Ill. 2d 173, courts from 10 jurisdictions have held the testimony on dried blood samples to be admissible. Only one jurisdiction, Michigan, has held to the contrary. Eyler, 133 Ill. 2d at 215.

The electrophoresis process is a method used to differentiate among different molecular forms of isoenzymes. Electric current is applied to a blood sample, causing the different enzymes present to separate into their protein components, allowing identification of the enzymes and their protein components. (People v. Partee (1987), 157 Ill. App. 3d 231, 260-61.) The Illinois Supreme Court has ruled that expert testimony on electrophoretic testing of dried bloodstains is admissible. (Eyler, 133 Ill. 2d at 214.) The trial court can take judicial notice of the fact that forensic scientists, which is the relevant scientific community, have determined that the process is reliable. People v. Thomas (1990), 137 Ill. 2d 500, 518.

The supreme court cited the exhaustive California Appellate Court opinion on this issue, People v. Reilly (1987), 196 Cal. App. 3d 1127, 1148, 242 Cal. Rptr. 496, 509, which observed that Dr. Grunbaum, on whose writings defendant in this case relies, “stands virtually alone in his opposition to electrophoretic typing of dried bloodstain evidence.” Eyler, 133 Ill. 2d at 215.

Since the trial court can take judicial notice that electrophoresis is generally accepted by forensic scientists as a reliable method of detecting genetic markers in dried blood, the trial court did not err in allowing Ms. Moorman’s testimony about her electrophoretic tests on the victim’s blood and the dried blood from defendant’s pants.

A defendant’s challenge to the process is properly held in front of the jury by cross-examination of prosecution witnesses and presentation of defendant’s own witnesses. (Thomas, 137 Ill. 2d at 518.) In this case, defendant cross-examined Moorman and presented his own expert witness, who testified about electrophoretic testing.

Defendant then argues that the trial court erred in admitting Moorman’s testimony on the statistical evidence derived from the electrophoresis tests because she is not a statistical expert. Moorman testified that 4% of the white population would have type O blood with the four enzymes found in the tests.

The court found that Moorman’s testimony on the statistics was proper since it was based on an American Blood Bank report that is relied on by the Chicago police department. Furthermore, the court stated, Moorman testified that she had studied statistics as part of her training. Experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based. (People v. Bradney (1988), 170 Ill. App. 3d 839, 862.) An expert does not have to name the publication on which she relied if the general consensus of the medical and forensic science community recognizes the study. (Bradney, 170 Ill. App. 3d at 862.) The American Blood Bank’s study on blood characteristic frequency statistics for the general United States population is generally recognized by medical and forensic science professions. Bradney, 170 Ill. App. 3d at 862.

Because statistical interpretation of electrophoretic test results are very complex, great caution should be used in interpreting their meaning. Unclear statements of the probability values have a significant potential for being misunderstood. There were major problems with Moorman’s testimony about statistics. She admitted not being an expert in statistics and clearly did not understand the method about which she was testifying.

Even though Moorman’s credentials as a statistics expert were questionable, defendant opened the door on cross-examination when he questioned Moorman about the frequency of type 0 blood in the general population. There had been no mention of percentages or frequency in the State’s direct examination. During the redirect examination, the State laid a proper foundation to inquire into the frequency of the four enzymes and type 0 blood in the population.

Where a defendant opens the door to an issue, he interjects the issue into his case (People v. Wilson (1990), 196 Ill. App. 3d 997, 1016) and cannot then contend that bringing it to the jury’s attention was an error. (People v. George (1971), 49 Ill. 2d 372, 379.) If a defendant procures, invites, or acquiesces in the admission of improper evidence, he cannot claim that its admission is error. (People v. Payne (1983), 98 Ill. 2d 45, 50.) For those reasons, there was no error in allowing Moorman’s testimony on statistics. Moreover, defendant presented his own expert testimony on the statistics.

Defendant then contends that his consecutive sentence was improper because the trial court made no specific findings to support its imposition and the record does not support the sentence. We disagree.

Consecutive sentences may be imposed for offenses not committed as part of a single course of action if the nature and circumstances of the offense and the history and character of the defendant indicate that a consecutive term is required to protect the public from further criminal conduct of the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4.) While a court’s statement of the basis for the required finding is considered directory rather than mandatory, it is required that the record contain facts which support such a finding. People v. O’Neal (1988), 125 Ill. 2d 291, 299; People v. Hicks (1984), 101 Ill. 2d 366, 374; People v. Pittman (1982), 93 Ill. 2d 169, 178.

The record supports the consecutive sentence and the trial court clearly stated the factors it considered, including the presentence investigation report, all statutory factors in aggravation and mitigation, the aggravation testimony, the attorneys’ arguments and cases cited, and defendant’s statement. The trial court specifically found that the crime of concealment of a homicidal death was not committed as part of a single course of conduct, that there was a substantial change in the nature of the criminal conduct, and that justice under the circumstances required a consecutive sentence.

Defendant asserts that his good background is a mitigating factor indicating that there is no need to protect society from him. Defendant states that he is hardworking, capable of supporting a family, and constantly trying to improve his life. Noting his educational and work histories and prior psychiatric treatment, defendant claims that he can be rehabilitated.

Defendant also cites his lack of a criminal record and his serious emotional and mental problems as mitigating factors. Although he was not seeing a psychiatrist for the month before the killing, defendant testified that he had previously seen one twice a week. Moreover, defendant claims, his suicide attempt was evidence of his mental state.

The State counters that defendant’s history and character indicate that a consecutive sentence is appropriate. Although defendant has no previous criminal convictions, the State argues that he has a history of violence. Because defendant reacts to situations with violence, the State concludes, his access to handguns, prior violent behavior, and lack of regard for human life are a danger to society.

Defendant then contends that the nature and circumstances of the offense do not support a consecutive sentence. Defendant explains that the killing occurred in the midst of a stormy relationship after the victim provoked him by going out with another man, taunting him about his failed suicide attempt, and calling him names. Furthermore, defendant states, he was acquitted of murder, indicating that the jury believed that there was some mitigation.

The State replies that the nature and circumstances of the offense support the consecutive sentence because defendant’s actions on May 22, 1986, were calculated and planned. Furthermore, the concealment was a separate and distinct act. Defendant left the victim’s body in his car trunk all day before driving around to dispose of it. He took 18 hours to ponder how to dispose of the body.

Finally, defendant’s claim that the trial judge may have been overly influenced by the 38 letters sent to the court by the victim’s family, friends, and co-workers has no merit. The trial judge stated that he did not read the letters, but instead instructed the court clerk to put them into the court file.

While consecutive sentences should be imposed sparingly (O’Neal, 125 Ill. 2d at 298), they are within the sound discretion of the trial court, as long as the decision does not conflict with statutory regulations concerning the imposition of such sentences. (People v. Tigner (1990), 194 Ill. App. 3d 600, 610.) The trial court is ordinarily best situated to tailor a sentence to the needs of the case by balancing the appropriate factors in imposing the sentence. (Hicks, 101 Ill. 2d at 375.) When consecutive sentences are imposed pursuant to the law and are supported by the record, they will not be reversed on review. (People v. Holland (1987), 121 Ill. 2d 136, 162; People v. Steppan (1985), 105 Ill. 2d 310, 323.) Because the trial court considered all the relevant factors and the record supports its finding, the trial court did not abuse its discretion.

Next, defendant asserts that the trial court erred by refusing his involuntary manslaughter instruction since there was some evidence presented that defendant’s conduct was reckless. Defendant contends that his statement that the gun went off when Jaynette moved was sufficient for an involuntary manslaughter instruction.

For an involuntary manslaughter instruction to be given, there must be some evidence at trial, if believed by the jury, that would reduce the crime of murder to involuntary manslaughter. (People v. Jones (1987), 157 Ill. App. 3d 106, 112.) An involuntary manslaughter instruction is not warranted if the nature of the killing, shown either by multiple wounds or the victim's defenselessness, reveals the inapplicability of the theory. People v. Trotter (1988), 178 Ill. App. 3d 292, 298.

If only one shot had been fired, defendant may have had a valid argument. His own statement, however, was that after the first bullet entered behind Jaynette’s ear, she was still alive. Defendant then intentionally fired three more shots because he thought that she wanted him to kill her to alleviate her pain. Because of that evidence, the trial court did not err in refusing defendant’s involuntary manslaughter instruction.

Defendant then asserts that the State improperly used other crimes evidence to show defendant’s propensity for violence. Before trial, defendant filed a motion in limine to preclude the State from using his February 1986 battery charge. After the State argued that it planned to use that evidence to show motive, the trial court denied defendant’s motion. Defendant claims that it was not relevant as a motive. Given the context of the marital discord that existed, defendant argues, the battery charge was insignificant compared to the stormy relationship. Even if the evidence was relevant, its probative value was far outweighed by its prejudicial effect, defendant contends. We disagree. The trial court properly allowed the evidence to show motive.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) If that evidence is relevant to show motive, however, it is admissible. (McKibbins, 96 Ill. 2d at 182.) It is within the sound discretion of the trial court to determine whether the probative value of such evidence outweighs its prejudicial impact. People v. Brown (1991), 214 Ill. App. 3d 836, 844-45.

Even if admissible, defendant argues, the State used the evidence improperly in its closing argument to argue that defendant had the propensity to be violent. The defendant waived that issue because he did not object at trial or include it in his post-trial motion.

Defendant also asserts that there was no probable cause to arrest him on June 3, 1986, and that his subsequent statements and physical evidence from his apartment should have been suppressed as fruits of the illegal arrest.

Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101.) Although mere suspicion that the person arrested has committed the offense is an insufficient basis for arrest, evidence sufficient to convict is not required. (People v. Reynolds (1983), 94 Ill. 2d 160, 166.) Whether or not probable cause for an arrest exists depends on the totality of the facts and circumstances known to the officers when the arrest was made. (Creach, 79 Ill. 2d at 102.) A trial court’s denial of a motion to suppress statements will not be reversed on review unless it is manifestly erroneous. People v. Evans (1988), 125 Ill. 2d 50, 78.

Defendant claims that there were not enough underlying facts to find probable cause. Although the evidence the police had was enough to raise their suspicions, defendant argues, it was not probable cause to justify his arrest. We disagree. The police had enough information to arrest defendant. Therefore, the trial court did not err when it found probable cause to arrest defendant and denied defendant’s motions to suppress statements and evidence.

On May 22, 1986, a missing person’s report was filed. Two days later, the victim’s abandoned car was found in a parking lot. On May 31, 1986, defendant voluntarily went to the police station where he told the police about his marital problems, his separation from his wife, that he last saw his wife on May 2, 1986, in court, when he pleaded guilty to a battery charge, that he owned two .25 caliber handguns, that he had intentionally shot himself with one of the guns, that he had given an unnamed cousin the other handgun, that he had previously taken his son to Florida against his wife’s will, and that he worked in an auto parts business. At that time, he gave the police permission to search his car and his apartment. In his apartment, the police noticed brown plastic garbage bags with black linings containing Jaynette’s belongings.

The next day, a body was found in the river. The top of the body was wrapped in brown plastic garbage bags; an automobile cylinder head was attached to the body; and blue automotive towels were found at the scene. On June 2, 1986, at the morgue, the police observed that the brown plastic garbage bags around the victim’s torso had black linings and that the victim was wearing a black blouse with dots and grey slacks. When the police examined Jaynette’s car, they found automotive towels in the car.

On June 3, 1986, after the police detectives shared this information, defendant went voluntarily to the police station. He was placed unhandcuffed in an interview room. After being given his Miranda warnings and seeing the pictures of the victim, defendant confessed to killing his wife. Over the next 12 hours, he made numerous oral statements and a court-reported statement admitting his guilt.

Taken as a whole, the information the police had was sufficient to find probable cause to arrest defendant. Therefore, the trial court properly denied defendant’s motion to suppress statements and evidence.

Finally, defendant argues that there was insufficient evidence to convict him without his illegally obtained statement. As discussed above, defendant’s statement was properly admitted following a lawful arrest. Therefore, defendant’s argument is meritless. There was sufficient evidence to convict defendant.

Based on the foregoing, we affirm defendant’s convictions and sentence.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BLAND, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2401
    Opinion filed April 15, 1992.

      Marc Davidson, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Judith M. Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, James Bland, was convicted of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1), two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(a)(3)), and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3.1). Defendant was sentenced to extended terms of 40 years’ imprisonment for the attempted murder, 30 years’ imprisonment for the aggravated kidnapping, and 10 years’ imprisonment for the aggravated battery. Defendant argues on appeal that (1) the trial court erred in giving an attempted murder instruction that allowed the jury to find him guilty of attempted murder without finding that he acted with the specific intent to kill; (2) the trial court denied him his sixth amendment right to confront and cross-examine witnesses by precluding him from fully cross-examining the victim; (3) the trial court erred by failing to appoint substitute counsel to argue his post-trial motion, which was based on the ineffectiveness of trial counsel; (4) his convictions for two counts of aggravated battery must be vacated because they are either lesser included offenses of, or arise out of the same acts as, his attempted murder conviction; and (5) the extended-term sentence for aggravated kidnapping and aggravated battery must be vacated.

On September 27, 1986, the victim was hospitalized after sustaining injuries she received in an encounter with defendant. Based on that incident, defendant was charged with attempted murder, aggravated criminal sexual assault, aggravated kidnapping, aggravated battery, and aggravated unlawful restraint.

At trial, the victim testified that she and her husband had coffee in a restaurant in the early morning hours of September 27, 1986. Her husband left the restaurant first, and she followed five minutes later. She further testified that a car pulled up alongside her as she was walking home. The driver asked if she knew where a gas station was. The victim gave him directions, but he pulled up again, slid over to the passenger’s side, and told her that he did not hear her. After looking at her husband turn the comer about a block ahead, she leaned toward defendant to repeat herself. As she did so, defendant grabbed her throat and hair, and pulled her through the open window of the car, holding her face down on the seat so that she could not scream. A struggle ensued.

The victim also testified that during the struggle, defendant told her that they were “going to have some fun and that she would not be able to tell anyone what happened because he was going to throw her in the lake where no one would find her.” The struggle continued, and when they passed two police cars sitting in a McDonald’s parking lot, she screamed for help. Shortly afterward, defendant parked the car, and the victim opened the car door. Defendant pulled her back in, punching her, and said that they were going to have their fun now. The victim said that defendant then unzipped his pants and exposed his penis, pushing her face and mouth down on it. She started to choke and bit his penis. He pulled her head up and they continued to fight. At one point, she grabbed the keys out of the ignition and threw them toward the driver’s door. While fighting, they both fell out of the car and onto the grass. Defendant continued to punch her and then kicked her in the side of the face and back. The victim was screaming, and she bit defendant’s hand.

The two continued to fight. The victim then played dead, and defendant went back to the car. The victim got up and ran to a nearby house, beating on the door, screaming for help. She heard a noise behind her. When she turned around, defendant was standing there, laughing at her. He told her it was time to finish and that she was not going to be able to tell anyone who did it. Defendant hit the victim in the head twice with a tire iron, and she lost consciousness.

Later that day, two police officers visited the victim in the hospital. She admitted that she did not tell them about the sexual assault. While in the hospital, the victim identified defendant from a photo lineup. Later, the victim told police officers that she bit defendant’s penis after he unzipped his pants and tried to shove her mouth down on it.

The victim also testified that two weeks before this incident, she was convicted of delivery of a controlled substance and received a sentence of 30 months’ probation. On cross-examination, the trial court refused to allow the defense attorney to inquire about the victim’s November 1987 arrest for soliciting a ride and the State’s subsequent dropping of that charge and a related violation of probation charge. That arrest occurred after the incident, but before trial.

An eyewitness, Susan Patón, testified that on September 27, 1986, between 3 a.m. and 4 a.m., she looked out her window after hearing the victim scream for help. She saw a man and woman arguing and fighting at the comer. She then observed the man strike the woman, but did not see if anything was in the man’s hand. Ms. Patón then called the police.

Officer Richard Trojanek testified that when he arrived at the scene at about 4 a.m., he heard screaming. He saw a man, holding a stick-type object, get up from the ground where the woman was lying. The victim’s hair, face, and chest were covered with blood, and her jeans were pulled down below her knees. She was moaning hysterically for help. Other police officers testified that they found the car at the scene with the keys still in the ignition, and that the victim was beaten badly, covered with blood.

The victim’s family doctor testified that she went to the hospital on the evening of September 27, 1986. The victim had a laceration on the right side of her head. The doctor did not treat the victim at that time because the wound had already been sutured at another hospital. A week later, however, the doctor removed 52 stitches from the victim’s wound. The doctor also testified that, based on her review of the radiologist’s report, the victim had suffered a fracture of the right side of her skull.

Officers Dan Wolff and David Hartman testified for the defense. Officer Wolff stated that he interviewed the victim twice on September 27, 1986. She did not say anything about a sexual assault. Officer Hartman testified that he interviewed the victim on December 5, 1986. At that time, the victim stated that she bit defendant’s penis as he was trying to push her head onto it, but not that she had the penis in her mouth before biting him.

Defendant testified that, after drinking all night, he was driving home in the early morning of September 27, 1986, when he saw a man and woman fighting. Defendant stated that he stopped the car, and the woman began walking toward him. As she approached, defendant leaned toward the window and asked her if she was all right. The victim, whose eyes were red and puffy, said nothing, but entered the car. After defendant drove a couple of blocks, the victim asked him where he lived, told him that she was a “whore,” and offered sex for $30. Defendant stated that he pulled the car over and ordered the victim out of the car. She refused and slid next to him, again offering to have sex. She took his right hand and tried to put it on her breast and then grabbed his genitals with her right hand. Defendant testified that he shoved her away and again ordered her out of the car.

Defendant further stated that the victim refused to move. Defendant started to open his car door, and the victim stabbed him in the middle of his back. Then, defendant hit her a few times, leaned over, opened the passenger door, and pushed her out of the car. As he started to drive off, he realized that her feet were still in the car so he stopped the car, went around to the passenger side, pulled her out of the car, and placed her on the ground. As defendant walked back to the car, the victim kicked him. She then got up, came at him, called him names, and pushed him. A fight began. At one point, defendant, wearing gym shoes, kicked her in the head and the side. He denied, however, hitting her with a tire iron. Defendant started toward his car, but ran when he saw the police coming.

On cross-examination, defendant claimed that the incident occurred in the grass next to the street. He did not remember the patio area where the victim was found. He also testified that he never heard the victim call for help or moan, and did not see any blood. Further, defendant stated that he never sought medical help for his stab wound.

Prior to closing argument, the defense counsel objected to the attempted murder instruction. According to the certified court transcript, the trial court gave instructions on the offense of attempt, and then instructed the jury that the offense of murder can be committed when a person intends to kill or to do great bodily harm.

The jury found defendant guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1), two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(a)(3)), and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3.1). He was found not guilty of the aggravated criminal sexual assault charges. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14.

Both the defense counsel and defendant filed motions for a new trial. Among the allegations in defendant’s pro se motions were the ineffective assistance of counsel and a request for a new attorney. The court denied both motions. Defendant was then sentenced to an extended term of 40 years’ imprisonment for attempted murder based on exceptionally brutal and heinous behavior indicative of wanton cruelty. In addition, he was sentenced to extended terms of 30 years’ imprisonment for aggravated kidnapping, and 10 years’ imprisonment for aggravated battery.

Defendant asserts on appeal that the trial court’s instruction on attempted murder improperly allowed the jury to find him guilty of attempted murder without finding that he acted with the specific intent to kill. Instead, he argues, the jury was allowed to convict him of attempted murder with a finding that he intended to do great bodily harm. The certified court transcript indicates that the jury was given a three-part instruction. First, the trial court defined “attempt” as it related to the underlying felony of murder:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.”

After giving this instruction, the trial court set forth the necessary elements of attempted murder:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: That the defendant did so with intent to commit the offense of murder.”

Finally, the trial court defined the crime of murder, stating:

“A person commits the offense of murder when he kills an individual, if, in performing the act which causes the death, he intends to kill or do great bodily harm to that individual or another.”

The Illinois Supreme Court has repeatedly held that a finding of specific intent to kill is required for a conviction of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 9; People v. Harris (1978), 72 Ill. 2d 16, 27.) The jury instructions must unambiguously reflect that specific intent to kill is required and that intent to do great bodily harm is not enough. (Jones, 81 Ill. 2d at 8-9.) Improper instructions on the elements of the offense charged denies a defendant a fair and impartial trial. People v. Reddick (1988), 123 Ill. 2d 184, 198.

The State’s argument that the correct instruction was given to the jury is without merit. The State asserts that the certified court transcription is incorrect and the instructions that are separately included in the record are correct. It does not, however, present any evidence that the trial transcript is incorrect. There is no evidence that the common law record includes actual instructions given to the jury. There are a number of instructions missing, including two attempt instructions, a credibility instruction, and an instruction concerning the “substantial step” element in the offense of attempt. These omissions indicate that the written instructions in the common law record were not the actual ones submitted to the jury. In addition, photocopies of the signed verdict forms, not the originals, are included in the common law record.

A reviewing court is bound by the certified record of proceedings in the trial court, and the record is presumed to be correct unless it can be shown to be otherwise. (People v. Allen (1985), 109 Ill. 2d 177; People v. Vincent (1988), 165 Ill. App. 3d 1023, 1028.) In Vincent, the trial transcript indicated that the trial judge misstated the law when reading the voluntary manslaughter instruction, yet the court file contained a correct written instruction. The appellate court reversed the conviction, ruling that the mere fact that a correct jury instruction was found in the court file did not prove that the jury was so instructed. Vincent, 165 Ill. App. 3d at 1030.

The State further asserts that the prosecution never argued to the jury that anything less than an intent to kill was necessary to convict defendant. The trial transcript, however, shows differently. In its closing argument, the State told the jury that to prove the charge of attempted murder, the State had to prove that defendant intended to commit the offense of murder. Also, in the portion of the State’s closing argument concerning the other offenses charged, the prosecution explained that it had to prove that defendant intended to commit great bodily harm. Not once did the State explain that the intent necessary to convict for attempted murder was the intent to kill.

The State’s argument that defendant failed to raise the instruction error in his post-trial motion for a new trial is without merit since the defense counsel’s post-trial motion for a new trial did raise the issue.

Defendant further contends that the instructional error is not harmless because his intent was at issue. His defense was that he wanted to harm the victim in response to her solicitation of sex and the knife attack, but that he did not intend to kill her. While the failure to give the proper attempted murder instruction can be deemed harmless where the defendant’s intent to kill is not at issue (Jones, 81 Ill. 2d at 9), it is reversible error when the defendant’s intent is at issue. (People v. Gentry (1987), 157 Ill. App. 3d 899, 905.) Proof of defendant’s guilt for attempted murder was predicated on proving the requisite mental state. It was a fundamental error when the trial court gave the jury the incorrect definitional murder instruction, which stated that the intent necessary for murder was either the intent to kill or to do great bodily harm. Consequently, defendant’s conviction for attempted murder is reversed and remanded for a new trial.

Defendant next contends that his sixth amendment right to confront and cross-examine witnesses was denied because he was not allowed to cross-examine the victim about her November 1987 arrest for soliciting a ride and the State’s subsequent dropping of those charges and a related violation of probation charge.

The State argues that this issue is waived because, even though the defense counsel raised it at trial, he did not get a court ruling and abandoned that line of questioning. The trial transcript indicates otherwise. The court did rule on the defense counsel’s request by telling him that he could not ask about the arrest.

The sixth amendment to the United States Constitution protects the defendant’s right of cross-examination. (Davis v. Alaska (1974), 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110.) The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. (Davis, 415 U.S. at 316-17, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1110-11.) While the scope of the cross-examination rests largely in the discretion of the trial court (People v. Owens (1984), 102 Ill. 2d 88, 103), that discretion must be exercised in such a way as to allow the defendant wide latitude in establishing bias, motive or interest by the witness. (People v. Wilkerson (1981), 87 Ill. 2d 151, 156; People v. Adams (1984), 129 Ill. App. 3d 202, 208; People v. Pizzi (1981), 94 Ill. App. 3d 415, 420.) The fact that a witness has been arrested or charged with an offense may be inquired into to show that her testimony might be influenced by bias, interest, or a motive to testify falsely. (Adams, 129 Ill. App. 3d at 207.) In Adams, the appellate court rejected the State’s argument that the defense counsel was on a fishing expedition and had no factual basis for the inquiry it sought to make. The court ruled that it was error for the cross-examination to have been so restricted that the defense was unable to explore the possibility that the witness may have been biased or be testifying falsely. The defense wanted to ask the witness whether he had been arrested or charged with the crimes. Adams, 129 Ill. App. 3d at 207.

The defense counsel is not required to show beforehand that any promises of leniency have been made or any expectations of special favor exist in the mind of the witness. Defense counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. (People v. Freeman (1981), 100 Ill. App. 3d 478, 481.) In Freeman, the defendant was allowed only to inquire whether the witness had been promised anything in return for his testimony, but not to probe deeper. The court rejected the State’s argument that the defendant must establish that the State had a deal with the witness before a more thorough cross-examination could be permitted. (Freeman, 100 Ill. App. 3d at 481.) Here, as in Freeman, the trial court erred by not allowing the defense counsel to inquire more fully into the victim’s possible bias, motive or interest in falsely testifying. The victim’s November 1987 arrest for soliciting a ride, the subsequent violation of probation charge, and the dropping of both charges could have provided a motive to testify falsely if she believed that the charges would be reinstated if she did not testify as the State wanted her to testify. Defendant had a right to explore that possibility.

When a trial error affects a Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable doubt. (Owens, 102 Ill. 2d at 104; Freeman, 100 Ill. App. 3d at 481.) In determining whether the error was harmless, the sufficiency of the evidence proving guilt beyond a reasonable doubt must be considered. Pizzi, 94 Ill. App. 3d at 421.

Although the trial court erred in not allowing the defense counsel to inquire fully into the victim’s possible bias, motive or interest in falsely testifying, it was not reversible error. There was overwhelming evidence of defendant’s beating the victim and the resulting injuries. There was testimony from an eyewitness as well as the victim about the attack. Defendant did not claim self-defense. Therefore, the trial court’s error was harmless beyond a reasonable doubt.

Defendant next asserts that the trial court erred by failing to appoint substitute counsel to argue his post-trial motion for a new trial based on the ineffectiveness of trial counsel. Defendant made two pro se post-trial motions for a new attorney and for a new trial partially based on the ineffective assistance of counsel. Defendant argued in his post-trial motions that his retained counsel was incompetent because he failed to properly investigate and find a potential witness, who would have testified that the victim was a known prostitute. Defendant contends that the beating occurred because the victim propositioned him in his car and stabbed him in the back when he rejected her offer. The trial court denied both motions.

Defendant relies on People v. Krankel (1984), 102 Ill. 2d 181, 189, to support his argument that failure of the trial court to appoint new counsel to argue his post-trial motion should result in reversal of the denial of a new trial. As both parties point out, Krankel does not establish a per se rule. The ultimate focus of the trial court’s inquiry must be on the underlying conduct alleged to have prejudiced the defendant. (People v. Jameson (1987), 155 Ill. App. 3d 650, 663.) If the claim involves trial tactics or strategy, the claim is spurious and the request for new counsel should be denied. If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel. (People v. Jackson (1985), 131 Ill. App. 3d 128, 139.) In Jackson, where the defense counsel was retained, the court ruled that no new counsel was necessary. (131 Ill. App. 3d at 140.) The defendant in that case argued that his attorney did not call an alibi witness to testify. The court stated that the defendant’s claims made no difference in the trial’s outcome. Even if the witness testified to the defendant’s whereabouts on the day of the incident and that the defendant could not have physically lifted a television set, there was no set time the crime was committed and there was evidence that the defendant had an accomplice.

Similarly, in this case, any failure to locate the witness and have her testify did not prejudice defendant. Even if there had been testimony that the victim was a prostitute, that was not a defense to the offenses. Because defendant’s claim goes to the matters of trial tactics and strategy, his claims were spurious and the trial court properly denied his post-trial motions based on ineffective assistance of counsel.

The defendant then asserts that his aggravated battery convictions must be vacated because they are either the lesser included offenses of his attempted murder conviction or arise out of the same physical acts as the attempted murder conviction. The State concedes this issue. Aggravated battery is a lesser included offense of attempted murder when it is based on the same act. (People v. Gvojic (1987), 160 Ill. App. 3d 1060.) Therefore, if defendant is convicted of attempted murder on retrial, the aggravated battery convictions must be vacated. If defendant is not convicted of attempted murder on retrial, he should be resentenced on the aggravated battery convictions.

Finally, the defendant argues that his extended-term sentences for the offenses of aggravated kidnapping and aggravated battery must be vacated. The State also concedes this issue. An extended-term sentence can only be imposed for the most serious class of felony for which the defendant is convicted. (People v. Jordan (1984), 103 Ill. 2d 192; Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2(a).) Here, the most serious class of felony is attempted murder, which is a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4(c)(1).) Aggravated kidnapping is a Class 1 felony. (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(b)(2).) Aggravated battery is a Class 3 felony. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(e).) Therefore, if defendant is convicted of attempted murder on retrial, the extended-term sentences for aggravated kidnapping and aggravated battery must be vacated and defendant resentenced only on the aggravated kidnapping conviction. If defendant is not again convicted of attempted murder, however, he must be resentenced on the aggravated kidnapping and aggravated battery convictions.

Based on the foregoing, defendant’s attempted murder conviction is reversed and remanded for a new trial with instructions.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.

      Justice White concurred with the decision prior to his retirement.


author: JUSTICE O’CONNOR

text:
    BANKERS MULTIPLE LINE INSURANCE COMPANY, Plaintiff-Appellee, v. MARJORIE McGUIRE et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—91—0635
    Opinion filed April 13, 1992.

      Hayman & Kirshenbaum, of Chicago (Cynthia J. Hennings, of counsel), for appellants.
    Johnson & Bell, Ltd., of Chicago (Michael B. Gunzburg and Thomas H. Fegan, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following arbitration proceedings, plaintiff, Bankers Multiple Line Insurance Company (Bankers), was required to compensate defendants, Marjorie McGuire and Eleanor Powell, for injuries and property damage sustained in an automobile accident. Thereafter, Bankers, pursuant to a declaratory judgment action filed in the chancery division of the circuit court, successfully sought to have the award nullified.

We affirm the judgment of the circuit court.

Defendant McGuire was insured under an automobile insurance policy issued by Bankers, which provided for uninsured motorist coverage under certain specified circumstances. Relevant here, the policy excluded coverage for accidents involving hit-and-run vehicles where the identity of either the owner or the operator could be determined.

The car in which defendants were occupants was struck from behind by another vehicle on June 27, 1984. The vehicle’s driver refused to give defendants any information or accompany them to the nearest police station. As the driver drove away from the scene, defendant Powell noted the vehicle’s license plate number. Later, it was determined that Raymond Bracey was the owner of the vehicle. An inquiry to the Secretary of State’s office revealed, erroneously, that Bracey was uninsured. On June 28, 1985, defendants filed a demand for arbitration, seeking recovery of benefits under the uninsured motorist and hit-and-run provisions of McGuire’s policy.

In 1986, defendants filed a negligence action against Bracey. During discovery, the parties learned that Bracey and his vehicle were insured by Allstate Insurance Company. In a deposition taken on January 31, 1989, Bracey stated that, on the date of the accident, he had given permission to J.T. Cunningham to operate the vehicle. In light of this information, Bankers requested that the arbitration claim be dismissed. McGuire and Powell agreed to suspend the arbitration proceedings. However, they later requested that the arbitration be reinstated because they had failed to sue Cunningham within the applicable limitations period.

Bankers objected to the arbitration on the basis that the American Arbitration Association (American) had no authority to arbitrate the claim because the vehicle did not fall within the scope of the coverage of the uninsured motorist provision of the policy. Although the arbitrator questioned his authority to adjudicate the claim, he awarded $5,200 to McGuire and $12,000 to Powell.

During the chancery proceedings, Bankers filed a motion for summary judgment. Bankers argued that Bracey’s deposition revealed that Cunningham had driven the car on the date in question, with Bracey’s permission. In support of the motion, Bankers also filed the affidavit of Betty Lawrence, an Allstate claim representative. In that affidavit, Lawrence stated that on the date of the accident, Bracey was the named insured of an Allstate automobile insurance policy and was insured for up to $30,000 against any liability for personal injuries and property damage arising out of the accident alleged in defendants’ civil complaint. Also attached to the motion for summary judgment were two letters from Bankers to defendants’ attorneys and to American which informed them as to Bracey’s insured status. The letter to defendants’ attorney was dated January 8, 1988, and the letter to American was dated February 9,1988.

The circuit court granted Bankers’ motion for summary judgment, finding that defendants’ claims fell outside the coverage provisions of McGuire’s policy.

Defendants initially maintain that Bankers is estopped from challenging the arbitration award because Bankers waited too long to notify them of Bracey’s insured status.

Estoppel may be found to bar rights otherwise accruing where the party’s voluntary conduct has been such as to have caused another party, against whom those rights are sought to be asserted, to have relied upon such conduct and to have altered his position for the worse. (Vasilakis v. Safeway Insurance Co. (1977), 46 Ill. App. 3d 369, 361 N.E.2d 1.) “Strong proof” is not required to establish a waiver of a policy defense, but only such facts as would make it unjust, inequitable or unconscionable to allow the defense to be interposed. Kenilworth Insurance Co. v. McDougal (1974), 20 Ill. App. 3d 615, 620, 313 N.E.2d 673.

In the present case, Bankers did nothing to cause defendants to believe that they were entitled to uninsured motorist coverage under the policy in question. Defendants knew, within days of the accident, the identity of the owner of the vehicle, but they did not commence legal action against him until two years later. When the lawsuit was filed against Bracey, defendants learned that he was covered by an Allstate Insurance policy by virtue of the fact that Allstate retained counsel to defend Bracey. Even after learning that Bracey’s vehicle was covered by Allstate, defendants waited an additional 4V2 years before taking Bracey’s deposition. Only then did they discover the identity of the car’s driver, who also was insured under Bracey’s policy. Therefore, we cannot agree with defendants’ contention that Bankers’ delay in notifying them of Bracey’s insured status provides a basis to assert estoppel.

Defendants next argue that Bankers did not conduct its own investigation into the question of Bracey’s insurance status, which resulted in detriment to the defendants. The record, however, belies these claims. We note that Bankers initially relied on information regarding Bracey’s status that was received by defendants from State officials. Upon learning that Bracey was insured in 1988, Bankers promptly advised both American and defendants’ attorneys that it no longer considered their claims to fall under the uninsured motorist provision of McGuire’s insurance policy. Accordingly, defendants’ argument is groundless.

Defendants further argue that the arbitrator had authority to adjudicate their claims, and that as a result, the ensuing awards are enforceable.

Here, the insurance policy at issue provided

“[protection [ajgainst UNINSURED MOTORIST COVERAGE. The company will pay all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative or the company, or if they fail to agree, by arbitration.”

In the same section, it defined the terms “uninsured motorist” and “insured” and further provided under a subsection entitled “arbitration”:

“If any person making claim under the Uninsured Motorists Coverage and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing thereunder, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this paragraph.”

In interpreting provisions virtually identical to those at issue here, our supreme court has held that such an agreement to arbitrate is limited to issues of the liability of the uninsured motorist to the insured and not to issues relating to the coverage of the policy. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) Accordingly, the circuit court here correctly ruled that the arbitrator could not decide issues of coverage.

Defendants also contend that coverage existed but that they were entitled to a rebuttable presumption of noninsurance, relying on Miranda v. Coronet Insurance Co. (1989), 187 Ill. App. 3d 886, 543 N.E.2d 882. Defendants cite subparagraph 6 of section 143a of the Insurance Code, which provides that the

“[failure of the motorist from whom [an insured] is legally-entitled to recover damages to file the appropriate forms with the Safety Responsibility Section of the Department of Transportation within 120 days of the accident date shall create a rebuttable presumption that such motorist was uninsured at the time of the injurious occurrence.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a(6).)

In Miranda, the court ruled that the insurance company failed to present any evidence to rebut the statutory presumption of the driver’s uninsured status. Here, Bankers presented ample evidence which established that Bracey and his vehicle were insured. The circuit court’s finding on this matter is not erroneous.

Defendants’ final contention is that they are entitled to uninsured motorist protection under the policy at issue here. Defendants appear to argue that the accident fell under the hit-and-run coverage of McGuire’s insurance policy.

McGuire’s insurance policy sets forth the definition of the term “hit and run vehicle,” in pertinent part, as follows:

“a highway vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such vehicle.”

Bracey’s car clearly does not fall under this definition since it was ascertained that Bracey was the owner of the vehicle. In light of the policy’s definition and the facts present here, defendants’ contentions regarding the hit-and-run coverage are meritless.

The judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.