author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY WOIDTKE, Defendant-Appellant.
    Fifth District
    No. 5—89—0668
    Opinion filed January 31, 1992.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (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 CHAPMAN

delivered the opinion of the court:

Rodney Woidtke was found guilty of the murder of Audrey Cardenas on August 24, 1989, following a bench trial. On September 28, 1989, Woidtke was sentenced to 45 years’ imprisonment.

The issues on appeal, in the order in which we will address them, are as follows: (1) whether the police had probable cause to arrest the defendant for the offense of obstructing a police officer; (2) whether the defendant’s waiver of his Miranda rights was knowingly and intelligently made; (3) whether the trial court erred in the admission of Officer Newton’s and Linda Armstrong’s testimony; (4) whether the defendant was proven guilty beyond a reasonable doubt; and (5) whether the defendant is entitled to a new sentencing hearing where the defendant alleges the trial court considered an improper aggravating factor in sentencing. We affirm.

Audrey Cardenas, a Belleville News-Democrat intern reporter, who had been living in the area for about a week, did not report for work on June 21, 1988. When last seen it appeared that she was planning to go jogging on a local high school track. Fliers with a picture of Miss Cardenas and a general description of her had been posted in public places and published in the local newspapers.

The body of Audrey Cardenas was discovered in a dry creek bed adjacent to the Belleville East High School on June 26, 1988, by a high school maintenance man. The victim was found lying on her back with her legs slightly apart and her arms out at her sides, partially raised toward her head. She was naked except for tennis shoes and socks, and an elastic ankle brace on her left ankle. A white blouse was on her left arm and a pair of pink shorts were near her right foot. A section of metal pipe was lying near her left side. A set of keys was found under her left hand after the body was moved. The body itself was infested with insects and maggots and badly decomposed. Crime-scene technician D.W. Heil testified at trial that he had observed signs of a struggle about 20 feet from where the body was found. Heil interpreted this to be consistent with someone being dragged on one knee and trailing a hand. Heil, however, was not certain of this and agreed that numerous police personnel had been in the area possibly distorting or destroying any marks in the mud of the creek bed.

Pathologist Raj Nanduri conducted the autopsy on the body, but she was unable to determine the precise medical cause of death due to the advanced degree of decomposition. She was able to rule out heart disease and gunshot or stab wounds to a vital organ. She also ruled out a severe blow to the head as cause of death due to the absence of any indication of injury to the dura mater lining the brain cavity. Dr. Nanduri could not rule out strangulation because the hyoid bone, which would usually be broken when a person is strangled, was missing. She could only determine, considering where and how the body was found, that the manner of death was homicide. She could not determine whether a sexual assault had occurred. Nanduri testified that death had occurred anywhere from 4 to 10 days prior to discovery. She did not observe any tattoos on the skin which remained on the body, but she did notice that certain teeth were missing. However, Dr. Nanduri believed they fell out due to decomposition rather than from a blow to the mouth. The items she removed from the body included a plastic red barrette, a pair of socks, a pair of tennis shoes, and a wristwatch, still running in the stopwatch mode.

Prior to trial, hearings were held on defendant’s motions to suppress (1) all evidence obtained as a result of defendant’s arrest and (2) any statements obtained during interrogation because of defendant’s alleged inability to waive his Miranda rights.

ARREST

Detectives Knefelcamp and Boyne testified at the hearing on defendant’s motion to suppress evidence obtained as a result of the arrest. On the afternoon of June 26, 1988, the crime-scene area had been taped off approximately 200 yards beyond where the body was found. Sergeant Steve Knefelcamp was assisting the major case squad in its investigation of the crime scene when he noticed the defendant walking toward the creek bed where Cardenas’ body had been found. The defendant, according to Knefelcamp, had walked about 150 yards past the yellow police line sticker and was about 50 yards from the creek bed.

When Detective Boyne initially approached the defendant and identified himself as a police officer, the defendant continued walking towards the crime scene and did not respond to Detective Boyne. Eventually Officer Boyne stopped the defendant and asked him who he was and if he had some identification. The defendant gave his name but said that he had no identification. Boyne was then joined by Knefelcamp and Detective Barfield. They asked the defendant where he was staying, and he replied he was staying with the Salvation Army. The officers sought to verify this but were informed by the dispatcher that, according to the Salvation Army personnel, the defendant was not staying there and never had. When confronted with this information the defendant said that he was staying in the wooded area and pointed in the direction of where the body had been found. Defendant then immediately pointed in another direction, saying, “Well, not there, over there.”

Sergeant Knefelcamp testified that he asked the defendant if he had any identification on him or in his bag or backpack. When the defendant said no, Knefelcamp asked if he would mind if the officer took a look. The defendant said that he had no objection. Inside the bag and backpack were found clothing, books and notes, some of which contained sexual references. There were also letters apparently written by defendant to himself and relating to personal fantasies. When asked if he was married, the defendant said that he presumed himself married because he figured there was a woman out there somewhere that would marry him and love him.

At this point Sergeant Knefelcamp decided to question defendant further at a later time. He told Officers Boyne and Barfield to arrest the defendant for obstructing a police officer. The defendant was taken to the Belleville police department.

INTERROGATION

At the hearing to suppress defendant’s statements due to defendant’s alleged inability to waive his Miranda rights, the State called Officers Boone, Wagner, Heffernan and Morgan. The defendant called Dr. Daniel Cuneo. Following his arrest, the defendant was interviewed and made several statements. Detective Walter Boone was asked to assist in the interrogation of Rodney Woidtke on the Cardenas murder on June 26, 1988. He and Detective Richard Wagner began to interview the defendant around 7:30 p.m. at the Belleville police department. The defendant was first asked if he had any mental or physical problems that would keep him from understanding what he was saying or doing or what the officers were saying or doing. The defendant replied no. The defendant was then read his Miranda rights, acknowledged that he understood those rights, and agreed to waive them.

Officer Boone then questioned the defendant about his sexual activities including acts of homosexuality. The defendant became upset and refused to talk with Detective Boone. At this point Boone left the room. He testified that he found the defendant’s answers rational, and that defendant appeared to be upset but did not appear to be delusional, disoriented or confused.

Detective Wagner testified that after Officer Boone had left the room, he asked the defendant about his background. The defendant was able to clearly relate his background, and his answers to questions concerning the victim’s death seemed responsive and appropriate. During the interview the defendant began to cry and stated that, if he had to die, he did not want it to be violent. Wagner viewed this as an acknowledgement that the defendant had done something wrong, was sorry for it, and feared he might get the death penalty. Detective Wagner found the defendant’s answers responsive and appropriate. He testified that the defendant seemed sane during the questioning and apparently was not suffering from delusions or hallucinations. At one point the defendant did indicate that on occasions he heard voices, but he did not say he was hearing voices during the interview. The defendant stated that he had problems meeting and relating to women. Wagner said that at this time he told the defendant not to confess to anything he had not done. Eventually the defendant revealed that he had been in a mental hospital and that he was attempting to obtain follow-up treatment. When questioned as to why he would continue the interview knowing the defendant’s mental history, Detective Wagner stated that as long as he was getting rational answers to the questions he was asking, he would continue the interview.

At approximately 3 p.m. the following day, June 27, Detective Mark Heffeman interviewed the defendant. Before beginning questioning he advised the defendant of his rights. Defendant indicated that he understood those rights, but he refused to sign a statement to that effect. The interview lasted approximately 21/2 hours. Heffeman said at the hearing that he found the defendant to be very calm and very rational but it was obvious to him the defendant had mental problems. The defendant related to Heffeman that he had had problems with women because they called him a homosexual and made fun of his small penis. It appeared to the officer that the defendant was intelligent and articulate, though his appearance was that of a transient. At one point in the interview the defendant admitted that he had killed Cardenas, but he denied that he had raped her. When Heffeman asked the defendant the location of the clothes he had worn during the attack, the defendant stated that “a guy that had anything on the ball at all would have gotten rid of those clothes.” When the officer asked what had happened to the victim’s panties, the defendant responded, “You’ve got a dump in this town, don’t you?” When pressed for more details the defendant replied, “I’ve given you enough.”

Twice during this interview the defendant asked if he could speak with a female detective, so Heffeman made arrangements to have Agent Debra Morgan interview the defendant. Morgan testified at the hearing that she began interviewing the defendant about 12:45 p.m. on June 28, 1988. Again the defendant was read his Miranda rights and said that he understood them. He signed a form to that effect, but his signature was illegible. According to Morgan, the defendant appeared to understand what was going on and responded appropriately to questions. The defendant gave no sign of hallucinations or delusions, and Morgan testified that she believed the defendant was sane at the time of the interview. A tape recorder was in the room, but Morgan agreed not to turn it on until the defendant agreed to have his statement recorded. At some point the defendant told Officer Morgan that he had been a patient at Alton Mental Health Center, and he told her about his problems with women. He told her that he had a habit of placing his hands in his lap, and he was afraid that the male detectives would feel that he was a homosexual.

The defendant told Morgan that he had lied when he spoke to the other detectives about what had happened to Cardenas and proceeded to tell her what had “really happened.” Morgan testified that the defendant seemed articulate and rational. Eventually the defendant agreed that Morgan could turn on the tape recorder. Sometime afterward, Agent Morgan stepped outside the interview room for approximately 30 to 40 seconds. When she reviewed the recording later she discovered that a portion of the interview that should have been recorded was missing.

Dr. Daniel Cuneo, a clinical psychologist, also testified at the hearing. Dr. Cuneo interviewed the defendant on July 7, 12, and 25, and August 1, 1988, at the St. Clair County jail, and on May 8, 1989, at the Chester Mental Health Center. Cuneo had also reviewed the major case squad’s records of their interviews with the defendant and the defendant’s records from Alton Mental Health Center.

The first exam by Dr. Cuneo was July 7, 1988, 10 days after the defendant’s arrest. Dr. Cuneo testified at the hearing that the defendant was floridly psychotic and actively delusional. His thinking was loose and grandiose in that defendant thought by playing word games he would have power over other people. The defendant told Cuneo that when the police asked him if he “knew” Cardenas, he thought they meant “know” in the “Biblical sense.” Defendant told the doctor that he thought that if he told the officers that he did not have sex with her they would think he was a homosexual. This obsessive fear of being labeled a homosexual continued throughout all of Dr. Cuneo’s interviews with defendant.

Cuneo’s opinion as to the condition of the defendant was that he was “insane” at the time of the obstruction charge. He testified that the defendant was “grossly psychotic” and in his opinion was probably delusional at the time he gave his statements.

While Cuneo found the defendant’s mental problems apparent, he did state that a lay person might not be aware of defendant’s mental problems merely by looking at him. On cross-examination, the doctor testified that Woidtke had a 91 I.Q., an average level of intelligence. He also stated that the defendant was capable of “understanding” his Miranda rights on June 26, 27 and 28, 1988, that defendant was capable of a “voluntary” waiver of those rights, and that the 11 days of incarceration prior to the first exam by Dr. Cuneo may have increased the defendant’s paranoia.

As to his original opinion on the defendant’s unfitness to stand trial, Dr. Cuneo said that that was due to defendant’s gross paranoia. In other words, while he could not cooperate fully with his attorney, he did understand court proceedings. When questioned by the court, Dr. Cuneo stated that, while the defendant was delusional, he could “knowingly, intelligently waive a statement. He understands those rights.”

The court denied the defendant’s motion to suppress statements because of his alleged inability to waive his Miranda rights, on July 13, 1989. On August 21, 1989, the court denied defendant’s motion to suppress all evidence obtained as a result of the defendant’s arrest.

The defendant subsequently waived a jury trial and the matter proceeded to a bench trial before the Honorable Richard A. Aguirre, who had also heard the pretrial motions. In addition to the testimony of D.W. Heil and Dr. Nanduri, Detectives Boone, Wagner, Heffernan, Boyne, Knefelcamp and Morgan testified and elaborated on their pretrial testimony. Dr. Cuneo also appeared and testified.

TRIAL

At trial Detective Wagner testified that he had asked the defendant if he would ever rape a woman. The defendant said that he might “if she would not give it up voluntarily.” The defendant also said to Wagner, “If I have to die, I want to die gently and painlessly. If I live others will die. I don’t want to be a homo. I don’t want to be a woman and I don’t want to be tortured unnecessarily by less than human beings.” Wagner then testified that the defendant had told him that he had gone to the Deutsch Fest to see if he could meet a girl who would agree to have sex with him. The first girl he met, according to the defendant, was a blonde who refused to have anything to do with him. He then saw a white female, five-foot-two, 115 pounds, with shoulder-length brown hair, brown eyes, and a “nice build.” She was wearing a halter top, bare shoulders, blue denim-type short shorts, and skimpy shoes, maybe heels. He followed the woman, after she left, to a park-like area. The defendant drew a diagram showing the location near the high school where he confronted the victim. He caught up with her at one point, grabbed her arm, and asked to talk to her. She agreed and they crossed the street towards the high school. The defendant said that he wanted to have sex with her, but she refused. She then struggled with the defendant, slapping him and scratching his arms with her fingernails. Defendant then told Wagner that he pulled off the woman’s top, stared at her, then pulled her pants off. She got up, ran along the creek area, and then picked up a rusty object similar to a pipe. Defendant told Wagner that he grabbed the pipe from her and hit her with it on the back of the head. The woman fell to the ground, and defendant then took the victim into a wooded area and tried to have sex with her but was unable to complete the act. He covered her mouth because she was yelling and screaming. He then claimed to have pulled the victim’s pants back on her and left her. Defendant told Wagner that he thought she was alive when he left.

Heffeman testified that defendant had told him that he had killed Cardenas, but that he had not raped her. The defendant told the officer that he took the victim down into the creek to molest her but not to rape her. While down there she started cursing him and making “other noises.” Defendant stated that he struck her three times in the jaw with his fist and put his hand over her mouth. The defendant then removed her clothing and inserted his finger into her vagina. Defendant went on to say that he had to do it in a hurry because he was “real hungry.” When asked what he meant by this defendant just smiled. Defendant told Heffernan that the woman was wearing very provocative shorts and that the color of her clothing was white, pink and blue. When asked which items were which colors, the defendant responded, “I’ve given you enough.”

The defendant also stated that although he had told the other detectives that he had struck the victim with the pipe, he had not. The pipe was just down there. When asked why he had gone back to the high school on June 26, 1988, defendant said that he was concerned because he had seen in the newspapers that the girl was still missing. He thought she might have been embarrassed by what had happened and run away. He had planned to notify the police if her body was still in the creek bed. Officer Heffernan commented that that had been a “Christian” thing to do. Defendant corrected him saying, “It’s not Christian, it’s humanitarian.”

When questioned as to any sexual dysfunction, the defendant stated that he had erections all the time, including part of the time he was with the victim. The defendant stated the victim was “pretty strong for a little gal,” but she was no match for him. He said that he had received some scratches on his arms and body during the struggle. Detective Heffeman testified that he saw older scratch marks on the defendant’s arms and hands at the time of the interview.

The day following this interview Heffeman returned with the defendant to the crime scene. The defendant showed the officers how he had walked the victim down into the creek, and defendant then asked about the victim’s relatives. The defendant asked Detective Heffeman to tell the victim’s mother that he was sorry that her daughter was dead. The defendant said he was disoriented because when he was down there with her it had been dark. The defendant then turned around and walked up from the creek bed; according to Heffeman, defendant was grinning as they left the scene.

Agent Debra Morgan testified at trial as to her interview with the defendant. Morgan stated that two-thirds of the interview was spent discussing background. A tape recorder was placed in the room. At some point the defendant agreed to have the interview taped, and the recorder was turned on. Again the defendant talked about the difficulties he had experienced concerning women. He told Officer Morgan that in his interviews with the other detectives he had stated that he had killed the victim accidentally because he thought that if he made it look like an accident he would not have to spend the rest of his life in prison. The defendant divulged to Morgan that what actually happened was as follows.

He had met Audrey Cardenas at the athletic field near Belleville East High School. He walked up to her, had a short conversation, and said something in reference to her breasts. The defendant walked with her to the creek bed where he made a pass at her which she seemed to like. When he grabbed her crotch she started fighting with him. He tried to engage in sexual intercourse with her, but she ran from him and picked up a pipe that was in the creek bed. Defendant took the pipe from her and hit her in the head three or four times, and he punched her in the jaw. The defendant attempted to have sexual intercourse with the victim, but he said that his penis was very small and kept slipping out of her vagina. Instead the defendant had oral sex with her.

According to the defendant, Cardenas was carrying keys and a small gray pouch. Her hair was pulled back with a barrette and she wore a pink, blue, and white shirt, purple shorts, bikini underpants and high-heeled shoes. The defendant said the victim had a rose tattoo on her inner thigh and a bird tattoo on her shoulder.

When Agent Morgan later reviewed the tape of the interview, she found that part of the tape had been erased and instead contained a statement by the defendant not said while Morgan was in the room, specifically, “This is a bunch of fucking bullshit. Gee, can I stick my little dick in your ***.”

O’Fallon Patrolman Brett Newton also testified at trial. He described how he had first encountered the defendant on May 13, 1988, when answering a complaint about a “possible mental subject” at a day care center. The officer found the defendant across the street from the day care center at a laundromat pay phone. After the defendant concluded his call, Newton gave him a ride to Fairview Heights. The officer said he again saw the defendant on May 16, 1988, following a 17- to 18-year-old white female, step for step, for a distance of approximately 150 yards, through a park. The officer spoke with defendant, who gathered his belongings, and Newton then drove the defendant to Belleville.

Linda Armstrong, director of the day care center in O’Fallon, testified at trial. Armstrong stated that she saw defendant on May 13, 1988, watching the center’s children on the playground. When she approached the defendant, he turned and walked away. She asked the defendant if she could help him. At that point the defendant looked at her and then started to walk away again. Armstrong asked him if he was lost and if he would like to come inside for coffee. She was trying to get him away from the children. At that point he followed her into the building where he drank from a drinking fountain. Armstrong, meanwhile, had instructed her bookkeeper to notify the police. Shortly thereafter the defendant walked out the door. Armstrong followed and again asked if she could help. The defendant, according to Armstrong, seemed dazed and said that he had lost his girlfriend. Defendant then reached over and kissed Armstrong on the cheek. She told him not to do that again, and he said he was sorry and asked her if she was married or had a boyfriend. The defendant eventually left and walked toward the laundromat across the street. Armstrong again saw the defendant about two days later as he walked along the highway about a mile from her house. She was driving home from work and saw him walking a few steps in one direction, turning around and walking in the opposite direction, and then repeating those activities.

Dr. Cuneo appeared at trial as a witness for the defense. The bulk of his testimony reaffirmed his pretrial testimony. Based on his own personal evaluations and the records of the major case squad, he diagnosed defendant as a paranoid schizophrenic. He stated the defendant was still obsessed with fears of homosexuality and was experiencing auditory hallucinations. The doctor described how the defendant was afraid to eat for fear people would think he was a homosexual and fel-lating someone. The defendant told Cuneo that he had heard voices telling him he was Jesus Christ or a devil worshiper. Defendant was reluctant to discuss this saying he was “kind of bowing to idols.”

Dr. Cuneo described the defendant as extremely preoccupied with sex, with his own inadequacies, and with his fears of becoming a homosexual. The idea of being perceived as a homosexual was, according to the witness, Rodney Woidtke’s greatest fear. The defendant, said Cuneo, would do anything to prove that he was not a homosexual.

With the factual background in mind, we first consider the issue of the validity of the arrest. The defendant alleges that the arrest must be quashed and all evidence derived from it suppressed as the defendant was arrested on a mere pretext charge of obstructing a police officer in order to interrogate him about the Cardenas murder. An arrest may not be used as a mere pretext to avoid the requirements of the fourth amendment. (People v. Hattery (1989), 183 Ill. App. 3d 785, 813, 539 N.E.2d 368, 387.) However, an objectively reasonable stop or other seizure is not invalid solely because the officer acted out of an improper or dual motivation. People v. Guerrieri (1990), 194 Ill. App. 3d 497, 502, 551 N.E.2d 767, 770.

The fourth amendment of the United States Constitution requires an arrest to be supported by probable cause. (People v. Murray (1990), 137 Ill. 2d 382, 387, 560 N.E.2d 309, 311; Henry v. United States (1959), 361 U.S 98, 4 L. Ed. 2d 134, 80 S. Ct. 168.) Probable cause justifying an arrest without a warrant exists if the facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed. (Henry, 361 U.S. at 102, 4 L. Ed. 2d at 138, 80 S. Ct. at 171.) The proper approach in evaluating compliance with the fourth amendment is to objectively assess the officer’s actions in light of the facts and circumstances before him at the time without regard to his underlying intent or motivation. People v. Hoskins (1984), 101 Ill. 2d 209, 213-14, 461 N.E.2d 941, 943.

The defendant was arrested for obstruction of a peace officer.

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” Ill. Rev. Stat. 1989, ch. 38, par. 31—1.

A review of the record shows that the defendant crossed the yellow police line of his own accord and was 50 to 150 yards within the line when spotted by the officers. This occurred at a time when the police were conducting an authorized investigation of the crime-scene area. The defendant’s intrusion threatened to destroy possible evidence of the alleged crime. The defendant’s disregard for the police tape, his initial failure to stop when approached by an identified police officer, his inability to identify himself or explain his presence, his supplying of false information to the police, and his evasiveness when further questioned provide “probable cause” for his arrest under the offense of obstructing a peace officer.

This being said, an objective assessment of the officer’s actions in light of the facts and circumstances before the officers at that time shows that the police did no more than they were objectively authorized and legally permitted to do.

The “mere pretext” rule has generally been confined to certain narrow circumstances, such as where law enforcement officials follow a suspect, waiting for him to commit some minor offense, then arrest him to collect statements or evidence on an unrelated crime, (Hattery, 183 Ill. App. 3d at 813, 539 N.E.2d at 387.) This was not the case here. The mere fact that the defendant was in custody for one charge does not preclude the police from investigating other unrelated charges concerning the defendant. People v. Evans (1988), 125 Ill. 2d 50, 72, 530 N.E.2d 1360, 1369.

A trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. (Hoskins, 101 Ill. 2d at 212, 461 N.E.2d at 942.) We, therefore, affirm the holding of the trial court on the defendant’s motion to quash the arrest.

Next the defendant alleges that the waiver of his Miranda rights was not knowingly and intelligently made because his statements were given while he was experiencing delusions symptomatic of paranoid schizophrenia.

Federal constitutional law requires that a defendant’s waiver of his Miranda rights must at a minimum be “voluntary” to be effective against the accused. (Colorado v. Connelly (1986), 479 U.S. 157, 169, 93 L. Ed. 2d 473, 486, 107 S. Ct. 515, 523.) The supreme court of Illinois in People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958, held that a Miranda waiver and resulting confession must be knowing and intelligent as well as constitutionally voluntary in order to be admissible.

The defendant does not dispute that the waiver of his Miranda rights was voluntary but instead alleges that it was not knowing and intelligent. Taken separately these terms could present formidable obstacles to obtaining a valid Miranda waiver. It could be argued that one never “intelligently” waives his Miranda rights in that even an innocent man has little or nothing to gain and may in fact risk much by waiving his rights. “Knowingly,” by itself, is also an insufficient term in that one could know a great deal about something without understanding it. Taken together, however, intelligent knowledge can provide a workable standard. To waive one’s rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail. (Bernasco, 138 Ill. 2d at 363, 562 N.E.2d at 964.) It does not require an understanding of the far-reaching legal effects, or an appreciation of the possible full extent of a subsequent interrogation, or even the ability to withstand the influence of stress or fancy. Bernasco, 138 Ill. 2d at 363, 562 N.E.2d at 964.

In reviewing a ruling on a motion to suppress, a reviewing court’s analysis is limited to determining whether the suppressing court’s finding was against the manifest weight of the evidence. (People v. Reid (1990), 136 Ill. 2d 27, 56, 554 N.E.2d 174, 188.) In determining whether a defendant knowingly and intelligently waived his Miranda rights, a court must consider the totality of the circumstances including the characteristics of the defendant and the nature of the interrogation. Reid, 136 Ill. 2d at 54-55, 554 N.E.2d at 187.

While the record contains evidence that the defendant may have been suffering from delusions, hallucinations, and/or paranoia at times, it also indicates that the interviewing officers all found the defendant to be rational, responsive, and understanding of his rights. Dr. Cuneo testified that, in his opinion, the defendant was probably delusional at the time he gave his statements. From his interviews with the defendant and a review of the records, he testified that the defendant was floridly psychotic and actively delusional. On cross-examination he admitted the defendant was of average intelligence and was capable of a “voluntary” waiver of his Miranda rights. When pressed further by the court, Dr. Cuneo stated that the defendant could “knowingly, intelligently waive a statement. He understands those rights.” (Emphasis added.)

This is the issue at hand, the defendant’s ability to execute a “knowing and intelligent” waiver of his Miranda rights. While it is true that Dr. Cuneo was of the opinion that the defendant was “insane” at the time of the obstruction charge, this is a legal term and ultimately a question of fact. The credibility and weight to be given psychiatric testimony is for the trier of fact to determine. The judge may reject all expert testimony and rely on lay testimony. (People v. Lamerson (1989), 190 Ill. App. 3d 52, 60-61, 545 N.E.2d 1025, 1030; see People v. Williams (1980), 87 Ill. App. 3d 860, 864, 409 N.E.2d 439, 441.) However, it is unnecessary to reject Dr. Cuneo’s testimony. The totality of the circumstances, even considering Dr. Cuneo’s testimony, tends to support the trial court’s finding that the defendant understood his Miranda rights and that he was capable of knowingly and intelligently waiving those rights despite allegedly experiencing delusions symptomatic of paranoid schizophrenia. The record suggests that the defendant had at least a basic understanding of the Miranda rights and what a waiver of those rights entailed. The validity of a waiver of rights is essentially a question of fact. (See Bernasco, 138 Ill. 2d at 368, 562 N.E.2d at 966.) Thus, the holding of the circuit court that the defendant’s waiver of his Miranda rights was knowing and intelligent was not against the manifest weight of the evidence, and we, therefore, affirm on this issue.

The defendant additionally alleges that the trial court erred in considering the testimony of Brett Newton and Linda Armstrong as it was at most only marginally relevant and more prejudicial than probative.

Generally evidence of prior acts may not be introduced to show a propensity to commit crime. (People v. Lucas (1989), 132 Ill. 2d 399, 429, 548 N.E.2d 1003, 1014.) However, prior-acts evidence may be admitted to establish a motive theory if it tends to establish the theory. (People v. Stewart (1984), 105 Ill. 2d 22, 56, 473 N.E.2d 840, 857.) “Evidence which tends to establish that the accused had a motive for killing the decedent is relevant, and if the evidence, at least to a slight degree, tends to establish the motive relied on, it is also competent.” Lucas, 132 Ill. 2d at 427, 548 N.E.2d at 1014.

Here, the motive proposed by the State was broad. The defendant had an extensive preoccupation with sex and was plagued by feelings of inadequacy and sexual frustration in his dealings with women. The State’s theory was that defendant randomly sought a victim so that he could engage in sexual relations. The testimony of Linda Armstrong tends to establish that the defendant was socially inept and deluded in regard to relationships with women. The testimony of Officer Newton supports the State’s proposed theory that Miss Cardenas was a randomly chosen victim, in the wrong place at the wrong time, by demonstrating that on at least one other occasion the defendant had been observed following a young white female, step for step, through a park for a distance of around 150 yards. This evidence tended to establish the motive theory relied upon and was, therefore, relevant.

The defendant argues, also, that the prejudicial effect of the disputed testimonies outweighed their probative value. The probative value of the evidence must outweigh its prejudicial impact. This determination rests within the discretion of the trial court. (People v. Harris (1980), 91 Ill. App. 3d 112, 114, 414 N.E.2d 755, 757.) As we are reviewing a bench trial, the prejudicial impact, under the circumstances, may be viewed as minimal and outweighed by its probative value. As such, we find the trial court did not abuse its discretion in admitting the testimony of both Officer Newton and Linda Armstrong and on this issue affirm.

The defendant also alleges that he was not proven guilty beyond a reasonable doubt where the physical evidence was either contrary to or not substantially corroborative of the defendant’s statements, which were themselves unreliable due to the defendant’s mental illness.

The relevant question on review 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.

The defense characterizes the defendant’s description of the body and the state in which it was found as “unexceptional.” We cannot agree. The defendant’s statements entailing the presence of the pipe, the barrette and the set of keys found under the left hand and describing the basic colors of the victim’s clothing and the victim herself cannot be passed off as mere coincidence. We also note that the trial court at the hearing on the post-trial motions characterized the defendant’s diagram of the crime scene as: “Telling evidence showing to the fact that this defendant had inner knowledge of this offense and not something he created out of the ramblings of a delusional vagrant ***.” Since the defendant has failed to provide this diagram for this court to review, we must presume the trial court’s depiction to be accurate, as any doubts arising from an incomplete record must be resolved against the appellant, whose responsibility it is to provide a complete record for review. People v. Hefley (1982), 109 Ill. App. 3d 74, 76, 440 N.E.2d 173, 176.

The evidence suggested that Audrey Cardenas had been sexually assaulted and that the defendant was a man of bizarre sexual obsessions and frustrations and a man who admittedly would rape a woman “if she would not give it up voluntarily.”

The cases cited by defendant are easily distinguishable since in neither of those cases did the defendant confess to the crime (People v. Queen (1985), 130 Ill. App. 3d 523, 474 N.E.2d 786; People v. Holsapple (1975), 30 Ill. App. 3d 976, 333 N.E.2d 683), while Woidtke gave several confessions.

The inaccuracies or distortions contained in the defendant’s statements, such as the suggestion of high heels or tattoos on the victim’s body, can easily be attributed to the defendant’s deluded sexual fantasies. They do not, however, negate the fact that the defendant’s confessions contained ample information unlikely to be known by anyone but the perpetrator himself. All this evidence tends to establish that the defendant’s confessions, however deluded or distorted, were not false.

When presented with a challenge to the sufficiency of evidence, it is not the function of a reviewing court to retry the defendant. (Col lins, 106 Ill. 2d at 261, 478 N.E.2d at 920.) Thus, after viewing the evidence in a light most favorable to the prosecution, we cannot say that any rational trier of fact could not have found the essential elements of the crime proved beyond a reasonable doubt. We, therefore, affirm on this issue.

Finally, the defendant claims that he is entitled to a new sentencing hearing because the trial court considered an improper aggravating factor, the death of the victim, in pronouncing sentence. Alternatively, the defendant alleges that his sentence must be reduced where the trial court supported its sentence with unsubstantiated conclusions from the evidence at trial.

While it may be improper, in sentencing for the offense of murder, for the court to consider as an aggravating factor that the defendant’s conduct caused harm (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138; People v. Pollard (1986), 149 Ill. App. 3d 434, 500 N.E.2d 971), reliance on an improper factor in aggravation does not always necessitate remandment for resentencing (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340). Where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. Bourke, 96 Ill. 2d at 332, 449 N.E.2d at 1340.

The trial court mentioned only once that it had considered harm as a factor in aggravation, while remarking on the serious threat the defendant posed to the public four times. The court also mentioned that defendant showed no mercy to the victim. In mitigation the court cited the defendant’s mental health, absence of any significant prior criminal history and the failure of the system in preventing the offense. It should also be noted that defendant’s sentence of 45 years’ imprisonment is substantially below the maximum sentence of 60 years that was available. (See Bourke, 96 Ill. 2d at 333, 449 N.E.2d at 1341.) We find that the record indicates that the court based its sentence primarily on the serious threat the defendant posed to the public and that the aggravating factor of harm was so insignificant that it did not lead to a greater sentence.

The defendant’s argument, in the alternative, that the court supported the sentence imposed with unsubstantiated conclusions from the evidence at trial is also without merit. First, the court made no remarks concerning the testimony of Officer Newton or Linda Armstrong in sentencing. Second, the defendant’s own acknowledgement that when he left, the victim was still alive, when combined with the evidence showing the victim’s body was found in a ditch, unclothed, abused, and apparently left to die, completely substantiated the court’s statement that the defendant showed no mercy to the victim.

The suggestion that the court considered the defendant’s mental health as an aggravating factor is incorrect. The court plainly stated that the maximum sentence of 60 years’ imprisonment was not called for due to the mitigation of mental illness. The court’s reference to evidence indicating the victim may not have died had the defendant not been released from Alton State Hospital by a prior judicial act was an obvious indictment of the system rather than a factor considered in aggravation.

We, therefore, find the trial court did not abuse its discretion in pronouncing sentence, nor was the sentence imposed because of improper evidence.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    BETTY DELZELL, Plaintiff-Appellant, v. J.D. MOORE et al., Defendants-Appellees.
    Fifth District
    No. 50—90—0690
    Opinion filed February 3, 1992.

      Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellant.
    Richard C. Hayden, of Craig & Craig, of Mattoon, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Betty Delzell, brought an action for damages in the circuit court of Richland County alleging that a popliteal bypass graft was negligently performed on her right leg, as a result of which the leg ultimately had to be amputated above the knee. Named as defendants were Dr. J.D. Moore, the surgeon, and Weber Medical Clinic, the facility where Moore was employed. Following a jury trial, a verdict was returned in favor of defendants and against plaintiff. Plaintiff’s post-trial motion was denied, and she now appeals. The central question before us is whether the circuit court abused its discretion when it denied plaintiff’s motion to amend her pleadings pursuant to section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616) to include additional allegations of negligence which came to light for the first time during the testimony of one of defendants’ expert medical witnesses. For the reasons which follow, we hold that the denial of plaintiff’s motion to amend did constitute an abuse of discretion. We therefore reverse and remand for a new trial.

In 1981, plaintiff sought treatment from Dr. Max Hammer of the Weber Medical Clinic because £he was experiencing claudication in her left leg. Claudication is a symptom exhibited by patients with peripheral vascular disease when the blood flow to their lower extremities is restricted. It manifests itself as a cramping in the extremity which is typically brought on by walking or exercise. Dr. Hammer treated this disorder by performing a popliteal bypass graft on her left femoral artery to improve her circulation.

The surgery was successful. Approximately two years later, however, plaintiff began experiencing similar claudication problems in her right leg, and she returned to the Weber Medical Clinic for further treatment. By this time Dr. Hammer had left the facility, and plaintiff was seen by defendant Dr. Moore. After examining plaintiff and reviewing her history, Dr. Moore performed a popliteal bypass on the femoral artery in her right leg. The material he used for the bypass was a section of plaintiff’s saphenous vein. Although there were no immediate complications from the surgery, the bypass ultimately failed, and plaintiff’s claudication problems persisted. She eventually sought out Dr. Hammer at his new place of employment at the Memorial Medical Center in Springfield. Dr. Hammer attempted to repair the failed bypass graft surgically using a synthetic patching material known as Gore-Tex. The Gore-Tex patch did not work at all. Within days, it was blocked by blood clots.

Dr. Hammer immediately performed additional surgery to remove the clots and, thereafter, administered anticoagulants to her. When that did not solve the problem, plaintiff was returned to surgery. This time, Dr. Hammer did not try another patch. Instead, he redid the entire bypass graft originally performed by Dr. Moore, replacing the saphenous vein with a new graft made of Gore-Tex. The new Gore-Tex graft worked no better than the Gore-Tex patch. Despite repeated procedures to keep the graft open, it kept becoming blocked by blood clots. The resulting impairment of blood flow eventually caused plaintiff’s right leg to degenerate to the point that it had to be amputated above the knee.

Following the amputation, plaintiff brought this medical malpractice action against Dr. Moore and the Weber Medical Clinic. In her complaint, plaintiff sought to hold these defendants liable for the amputation and the attendant damages she sustained on the theory that the amputation would not have been necessary but for the negligent treatment she received from Dr. Moore when he performed the first popliteal bypass graft on her right femoral artery at the Weber Medical Clinic. Specifically, plaintiff alleged that defendants were negligent in that Moore had failed to warn her to refrain from smoking following the bypass graft, that he had used a vein graft which was too small to adequately provide blood supply to plaintiff’s leg, that he had failed to perform proper diagnostic procedures on her, and that he had failed to adequately monitor her progress following surgery.

At trial, defendants presented expert testimony which indicated that Dr. Moore had met the applicable standards of medical care with respect to each of these matters. On both direct and cross-examination, however, one of defendants’ experts, a physician named Hoover, opined that plaintiff’s condition had not been so serious that surgery on her right leg was mandatory. In his view, other, more conservative, alternatives were available, and the surgery should have been regarded merely as one therapeutic option. According to Dr. Hoover, it would have been a deviation from the standard of medical care if Dr. Moore had failed to apprise plaintiff that these alternatives were available and that the surgery was merely one optional course of treatment.

Other evidence was presented which substantiated that plaintiff had never been told by Dr. Moore that the surgery was anything other than mandatory if she wanted relief from her claudication problem. Based on this evidence, and the testimony of Dr. Hoover, plaintiff sought leave to amend her complaint to conform to the evidence to include as an additional basis for holding Dr. Moore negligent that he had “[flailed to advise the plaintiff that the femoral-popliteal bypass surgery was elective in nature and surgery would not of itself prevent future claudication,” and that he “[flailed to advise the plaintiff of the option of conservative treatment through diet, exercise, quitting smoking and medication to stop leg claudication.”

Plaintiff’s motion was denied, and the circuit court subsequently refused a jury instruction tendered by plaintiff which would have included these additional theories of liability. As we indicated at the outset of this opinion, the jury ultimately returned a verdict in favor of both defendants and against plaintiff. Judgment was entered on that verdict, and plaintiff’s post-trial motion was denied. Plaintiff now appeals arguing, inter alia, that she is entitled to a new trial because the circuit court erred in denying her motion to amend her complaint to include the additional allegations of negligence revealed by Dr. Hoover’s testimony. We agree.

Section 2 — 616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a)) provides that

“[a]t anytime before final judgment amendments may be allowed on just and reasonable terms, *** changing the cause of • action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.”

In addition, subsection (c) of the statute provides that “[a] pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c).) This statute is to be liberally construed to allow cases to be decided on their merits rather than on technicalities. Lawry’s Prime Rib, Inc. v. Metropolitan Sanitary District (1990), 205 Ill. App. 3d 1053, 1058, 563 N.E.2d 981, 984.

Whether a pleading may be amended pursuant to this statute is a matter committed to the sound discretion of the trial court. That discretion, however, is not unfettered. The overriding consideration is whether allowing the amendment of pleadings will further the ends of justice. (205 Ill. App. 3d at 1058, 563 N.E.2d at 984.) In making this determination, one must consider the timeliness of the proposed amendment and whether the opponent would be prejudiced or surprised by it. (Carlisle v. Harp (1990), 200 Ill. App. 3d 908, 915, 558 N.E.2d 318, 322.) Once the trial has commenced, leave to amend is properly denied where the facts upon which the proposed amendment are based were known to the party at the time of his original pleading and no good reason is offered for their not having been filed at that time. (200 Ill. App. 3d at 915, 558 N.E.2d at 322.) This, however, is not such a case.

The idea that Dr. Moore may have breached his duty of care by failing to advise plaintiff of the elective nature of her surgery became apparent only after the testimony by Dr. Hoover. Dr. Hoover was a defense witness, not a witness called by the plaintiff. We are aware of nothing in any of the discovery materials which foreshadowed his testimony on this point. Indeed, until he gave his testimony at trial, there was nothing which might reasonably have alerted plaintiff to this as a possible basis of recovery. Defendants were no doubt surprised by Dr. Hoover’s opinion, but that surprise can scarcely be attributed to anything plaintiff did or failed to do. There is no dispute that plaintiff acted promptly to include this theory of recovery in her pleadings as soon as it became known to her.

Defendants argue that the circuit court nevertheless acted properly because allowing the amendment would have violated Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)). In support of their position, defendants rely on that portion of the rule which provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings.” (134 Ill. 2d R. 220(d).)

Defendants overlook, however, that Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)) also provides that an expert “shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” The challenged opinions by Dr. Hoover fall squarely within this category.

The circuit court correctly recognized that Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)) was not an impediment to plaintiff’s motion to amend. The major problem, in the circuit court’s view, was that plaintiff offered no expert testimony to show that Dr. Moore’s failure to apprise her of the elective nature of the surgery was a proximate cause of the injury she ultimately sustained. This determination was based on the principle that in all but the most gross malpractice cases there must be expert evidence not only as to the negligence of the defendant, but also as to a proximate causal connection between the negligence and the injury suffered by the plaintiff. (See St. Gemme v. Tomlin (1983), 118 Ill. App. 3d 766, 769, 455 N.E.2d 294, 296.) We agree that this standard is applicable where the alleged negligence consists of a physician’s failure to adequately apprise a patient of the risks of and alternatives to a particular surgical procedure (see St. Gemme, 118 Ill. App. 3d at 769, 455 N.E.2d at 296; Marshall v. University of Chicago Hospitals & Clinics (1987), 165 Ill. App. 3d 754, 757, 520 N.E.2d 740, 742), which is the type of claim plaintiff here sought to assert through her proposed amendments to her complaint. We cannot agree, however, that the record was devoid of evidence of the requisite causal link.

To establish proximate cause in a failure-to-wam case, it is not enough for the plaintiff to subjectively assert at trial that she would have declined treatment if only she had been informed of the danger. Rather, an objective test applies, namely, whether a reasonable person, in possession of the allegedly omitted information, would have rejected the treatment in question. (Marshall v. University of Chicago Hospitals & Clinics, 165 Ill. App. 3d at 757-58, 520 N.E.2d at 742.) This standard cannot be met where the evidence shows that there is no reasonable alternative to the treatment (see St. Gemme, 118 Ill. App. 3d at 769, 455 N.E.2d at 296), but that is not the case here.

Although plaintiff suffered significant pain as a result of the claudi-cation and was in need of some kind of immediate relief, Dr. Hoover’s testimony plainly demonstrated that conservative, nonsurgical treatment was, in fact, available for her condition. The jury could certainly have concluded that this nonsurgical option was, objectively, a more prudent course than surgery. Indeed, the conclusion that a reasonable person might reject surgery in favor of the conservative treatment is implicit in the very assertion by Dr. Hoover that Dr. Moore should have apprised plaintiff of the surgery’s elective nature. After all, if surgery were the only reasonable alternative, if the nonsurgical approach were something that no reasonable person would select if advised of all the significant perils and alternatives, then the surgery would not really have been “elective” at all. And if it were not elective, it could not possibly have been a breach of the standard of care for Moore to have neglected to inform plaintiff that she had any other choices. There would not have been any other real choices to tell her about.

We acknowledge that following a conservative, nonsurgical course of treatment would not necessarily have saved plaintiff’s leg in the long run. She may ultimately have had to suffer amputation whether she underwent surgery or not. Nevertheless, there was ample evidence from which the jury could reasonably have concluded that having the surgery when she did not only failed to alleviate any of her pain, but actually hastened the time when amputation became unavoidable. Once the surgery was performed, there was no turning back. The possibility of any less drastic remedial measures was eliminated. At the very least, the medical evidence established that what should have been optional surgery was directly responsible for causing her to lose her leg earlier than she would otherwise have had to. The premature loss of a limb is unquestionably a cognizable basis for recovering damages in a medical malpractice action, and plaintiff should have been permitted to amend pleadings so that it could be presented for the jury’s consideration. The circuit court’s refusal to allow her to do so was an abuse of discretion. She is therefore entitled to a new trial. In view of this conclusion, we need not address her other arguments on appeal.

For the foregoing reasons, the judgment of the circuit court of Rich-land County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

RARICK and WELCH, JJ., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE MACKE, Defendant-Appellant.
    Fifth District
    No. 5—90—0416
    Opinion filed January 31, 1992.
    Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    No brief filed for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted by a jury of armed robbery on May 8, 1990. The last day for him to file a post-trial motion was June 6, 1990. On June 22, 1990, defendant was sentenced to 25 years’ imprisonment and ordered to pay $900 in restitution. Defendant appeals only his sentence, claiming that the circuit court erred by requiring him to pay restitution. Defendant failed to file a post-trial motion (Ill. Rev. Stat. 1989, ch. 38, par. 116—1(b)) or a motion to reduce his sentence (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c)), and he did not object to restitution at his sentencing hearing. We affirm.

Defendant argues that it was impossible for him to file a post-trial motion (Ill. Rev. Stat. 1989, ch. 38, par. 116—1(b)), since the error did not occur until after the time period for filing a post-trial motion expired. Defendant claims that rejection of his argument on appeal for failure to file a post-trial motion under these circumstances would require defendants who allege no error at trial to file a post-trial motion prior to sentencing in order to preserve any error that might possibly occur. We, however, affirm for failure to file a motion to reduce a sentence. Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).

Section 5 — 8—1(c) of the Unified Code of Corrections provides:

“A motion to reduce sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. ***
If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, the proponent of the motion shall exercise due diligence in seeking a determination on the motion and the court shall thereafter decide such motion within a reasonable time.
If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.
A motion to reduce a sentence shall not be considered to have been timely filed unless it is filed with the circuit court clerk within 30 days after the sentence is imposed ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).

Section 5 — 8—1(c) requires that before a defendant can appeal only his sentence, he must first file a motion to reduce his sentence with the trial court within 30 days after the sentence is imposed.

Requiring a defendant to file a motion to reduce his sentence is similar to requiring a post-trial motion to preserve issues on appeal (Ill. Rev. Stat. 1989, ch. 38, par. 116—1(b)) and requiring a defendant who pleads guilty to move to withdraw that plea before appealing. (134 Ill. 2d R. 604(d).) Failure to file these motions denies the trial court the opportunity to correct any error that might have occurred and thereby burdens appellate counsel and the court of review with the time and expense of preparing and processing appeals. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) As in Enoch, our decision in this case promotes judicial economy and finality of judgments. Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.

Affirmed.

LEWIS and WELCH, JJ., concur.


author: JUSTICE RARICK

text:
    ALASTAIR REID, Special Adm’r of the Estate of Edna Ruth Reid, Deceased, Plaintiff-Appellant, v. CLAIRE SLEDGE, Defendant-Appellee.
    Fifth District
    No. 5—90—0521
    Opinion filed February 6, 1992.

      Paul Thomas Austin, of Marion, for appellant.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, special administrator of the estate of Edna Ruth Reid, brought an action in the circuit court of Pulaski County against defendant to recover damages for the death of Edna Ruth Reid, which occurred as a result of an automobile accident. The jury returned a verdict for defendant and plaintiff appeals. We affirm.

Plaintiff’s decedent, a passenger in an automobile being driven by Dr. Sledge, was killed when the car ran off the road, down an embankment, and struck a tree. According to the testimony of State Trooper Walter Zeske, who investigated the accident, the vehicle left the roadway just south of a sweeping curve, traveled 122 feet, where it struck a utility pole, then traveled another 100 feet, striking a tree. Zeske stated that the car was totally destroyed. He also stated that there were no skid marks or debris on the roadway. Mounds Fire Chief Bill Calvin also testified that the car was severely damaged. He stated that rescue equipment was used to extricate the defendant from the car and that the car was damaged in the process.

Defendant was precluded from testifying by plaintiff’s invocation of the Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8—201). Two witnesses testified for defendant. Each stated that defendant was a careful and safe driver. Decedent had two children. One was male and the other, although bom male, had a sex-change operation and had become a female several years prior to the accident. Decedent was never made aware of this and had not seen her daughter for several years. The evidence also indicated that decedent and her other child were estranged.

On appeal, Reid first argues that the jury’s verdict was against the manifest weight of the evidence. Specifically, plaintiff maintains that the evidence demonstrates that Edna Reid died from injuries sustained in the accident, and that defendant offered no evidence to show that the accident was caused by something other than defendant’s negligence. Reid contends that under the circumstances, the burden should be on the defendant to demonstrate that she was not negligent.

In Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758, our supreme court held that the circumstances of an automobile accident were such that an inference of negligence on the part of the defendant was warranted given that defendant offered no other explanation for the accident. In so holding, the court stated that “it was [not] incumbent upon the plaintiff to show what caused the defendant’s car to skid to the wrong side of the road, or to prove facts normally within the peculiar knowledge of the defendant.” (37 Ill. 2d at 599, 227 N.E.2d at 760.) The court in Cruse v. Hines (1981), 92 Ill. App. 3d 884, 416 N.E.2d 710, relied upon Calvetti in holding that the burden of production of evidence was properly shifted to the defendant because the facts surrounding the accident were within the peculiar knowledge of the defendant. The facts in Cruse are very similar to those in the present case. There, an automobile being driven by the defendant left the road, went onto a guardrail, and struck an abutment. The roadway was straight and the pavement dry. Plaintiff’s decedent, a passenger in the auto, was asleep at the time of the accident. The Cruse court held that the presence of the defendant’s auto off the roadway, and in an area where it should not have been, raised an inference of negligence and that it was incumbent upon the defendant to make a showing that something other than his negligence caused the accident. (92 Ill. App. 3d at 890, 416 N.E.2d at 715.) The facts in the present case likewise give rise to an inference that the accident was the result of defendant’s negligence.

The Cruse court went on, however, to hold that a directed verdict would not have been proper because “plaintiff’s evidence only shifted the burden of production to the defendant. Had the defendant come forward with some evidence of a cause other than his own negligence, then he would have met his burden and the issue would properly have gone to the jury, with the ultimate burden of persuasion on the plaintiff.” (Cruse, 92 Ill. App. 3d at 890, 416 N.E.2d at 715.) In Cruse, the defendant failed to come forward with any evidence to rebut the inference of negligence. In the present case, however, two defense witnesses testified that defendant was a safe and careful driver.

In accident cases resulting in death in which there are no eyewitnesses, or where eyewitnesses are precluded from testifying, evidence of careful habits has been held admissible to show due care. Typically, such evidence has been introduced by the plaintiff to demonstrate plaintiff’s decedent’s freedom from contributory negligence. (See Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530; Quick v. Nagel (1980), 85 Ill. App. 3d 342, 406 N.E.2d 835, citing Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.) We believe the same principle should be applied in situations such as the one presented in this case. The circumstantial evidence gives rise to an inference of negligence on defendant’s part. Defendant, the only eyewitness, is precluded from testifying by virtue of the Dead Man’s Act. Evidence of defendant’s safe-driving habits was properly admissible to give her some chance of rebutting the inference of negligence. Logue v. Williams (1969), 111 Ill. App. 2d 327, 250 N.E.2d 159.

The introduction of evidence of defendant’s safe-driving habits was sufficient to meet her burden of production and create a question of fact for the jury, with the ultimate burden of persuasion remaining with the plaintiff. That plaintiff failed to meet that burden is evident in the jury’s verdict for the defendant. Plaintiff contends that this verdict is against the manifest weight of the evidence. A jury verdict is against the manifest weight of the evidence only where, upon viewing the evidence in a light most favorable to the party who prevailed, the opposite conclusion is clearly apparent or the jury’s finding is palpably erroneous. (Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 568 N.E.2d 463; Barr v. Groll (1991), 208 Ill. App. 3d 318, 567 N.E.2d 13; Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 555 N.E.2d 1012.) In York v. Stiefel (1983), 99 Ill. 2d 312, 458 N.E.2d 488, our supreme court held that “[rjeversal of a jury verdict must be supported by evidence which, when viewed most favorably to the party prevailing in the trial court, nevertheless so overwhelmingly favors the appellant that no contrary verdict could stand.” 99 Ill. 2d at 321, 458 N.E.2d at 493.

In the present case, Zeske gave detailed testimony regarding the accident scene and the damage to the vehicle. He gave no opinion as to the cause of the accident. Bill Calvin also gave testimony regarding the extent of damage to the vehicle. There were no eyewitnesses to the accident, other than defendant, and no expert reconstruction testimony. Two witnesses testified on the defendant’s behalf. They indicated that they had been passengers in defendant’s vehicle on numerous occasions, that they never observed defendant do anything unsafe, and that they considered her to be a good driver.

Given the paucity of the plaintiff’s evidence, we cannot say that upon viewing the evidence in a light most favorable to defendant, the jury’s finding was palpably erroneous or that a conclusion opposite to the one they drew was clearly apparent. The weight and credibility accorded a witness’ testimony are best determined by the trier of fact who, having observed the witness at trial, is in the best position to make such a determination, and a reviewing court must grant such determinations great deference. (See Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 481 N.E.2d 712.) In this case, the jury obviously accorded great weight to the testimony of the defense witnesses, and it is not the proper function of this court to substitute our judgment for theirs.

Plaintiff also argues that the jury’s verdict with respect to damages was against the manifest weight of the evidence. Having determined that the jury’s verdict regarding liability was not against the manifest weight of the evidence, we need not address this argument.

Plaintiff next argues that the trial court erred in refusing to admit photographs of the car. Admission of photographs rests with the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. (Gaunt & Haynes, Inc. v. Moritz Corp. (1985), 138 Ill. App. 3d 356, 485 N.E.2d 1123.) For a photograph to be admitted, testimony is required to establish that the photograph is a true and correct representation of what it purports to portray. (Pace v. McClow (1983), 119 Ill. App. 3d 419, 427, 458 N.E.2d 4, 10, quoting City of Chicago v. Scandia Books, Inc. (1981), 102 Ill. App. 3d 292, 299, 430 N.E.2d 14, 19.) Admission requires some foundation to establish that the object depicted was in substantially the same condition as it was at the time of the accident. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 131, 478 N.E.2d 581, 590, citing Casson v. Nash (1978), 74 Ill. 2d 164, 171, 384 N.E.2d 365, 368.) In regard to the photographs in question, Trooper Zeske admitted that they were taken sometime after defendant and the decedent were extracted from the vehicle, and he could not say that no changes had been made. Standing alone, this would not present a sufficient foundation. However, changed conditions at the time of taking do not render a photograph inadmissible “if it can be shown by testimony that after the changes are explained, the jury will be able to understand it clearly as a correct representation and not be misled by it.” (Schoolfield v. Witkowski (1964), 54 Ill. App. 2d 111, 123, 203 N.E.2d 460, 465; see Warner v. City of Chicago (1978), 72 Ill. 2d 100, 105, 378 N.E.2d 502, 504.) The testimony of Bill Calvin adequately explained any discrepancy. Calvin was one of the first on the scene. He described the damage done to the vehicle in extracting defendant and the decedent. While we conclude that the trial court erred in refusing to admit the photographs, we consider the error to be harmless. The purpose of the photographs was to show the jury the extent of the damage to the vehicle, and this was accomplished by the testimony of Zeske and Calvin. We conclude that plaintiff suffered no prejudice as a result of this error.

Plaintiff also argues that the trial court erred in refusing his tendered non-IPI (Illinois Pattern Jury Instructions) instruction regarding the presumption that the owner of an automobile is presumed to be driving at the time of the accident. Any potential error from this refusal was harmless. The identity of the driver was never in dispute. The evidence indicated that defendant was pinned in the driver’s seat and that decedent was pinned in the passenger’s seat. That defendant was driving was the only logical inference, and plaintiff could not have been prejudiced by the court’s failure to instruct the jury that as owner of the vehicle, defendant could be presumed to be the driver.

Plaintiff next argues that the trial court erred in denying his motion in limine to exclude evidence that decedent’s son had undergone a sex-change operation. We find this issue to be waived. A motion in limine is an interlocutory order and remains subject to reconsideration by the court throughout the trial. (Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040, 522 N.E.2d 1341, 1347.) Even though denied, the movant must nevertheless object to the evidence in question and failure to do so will result in the issue being waived. (Romanek-Golub, 168 Ill. App. 3d at 1040, 522 N.E.2d at 1348.) The record in this case reveals that plaintiff did not object to the evidence in question when introduced, and in fact introduced it during his case in chief in an attempt to explain the estrangement between decedent and her daughter. Having failed to raise any objection at trial and having introduced the evidence himself, plaintiff cannot now complain. Romanek-Golub, 168 Ill. App. 3d at 1040, 522 N.E.2d at 1348.

Finally, plaintiff argues that defense counsel’s closing argument was improper and prejudicial. Specifically, plaintiff maintains that certain comments made by defense counsel implied that defendant had valuable evidence to present but was prevented from doing so by plaintiff’s invocation of the Dead Man’s Act. Such implication was so highly prejudicial, plaintiff maintains, that a new trial is required. We disagree. Having carefully reviewed defense counsel’s summation, we find that defense counsel was merely commenting on the trial court’s anticipated instruction regarding the Dead Man’s Act. Likewise, we find defense counsel’s comments regarding the lack of evidence relating to why the vehicle left the road to be a fair comment on the burden of proof.

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

Affirmed.

HARRISON and HOWERTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH M. MILLER, Defendant-Appellant.
    Fifth District
    No. 5—90—0395
    Opinion filed February 5, 1992.

      Sharon S. Costa, of Costa, McHaney & Camber, of Mt. Vernon, for appellant.
    James Tomaw, State’s Attorney, of Newton (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Keith Miller was convicted by a jury of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(1)) and sentenced to probation with periodic imprisonment, a fine, and restitution. Miller appeals, alleging that he was not convicted beyond a reasonable doubt and that his constitutional rights were violated during his cross-examination. We affirm.

Below is a brief recitation of the evidence presented at trial.

Jeffrey Whalin testified that he has known Keith Miller for approximately 10 years. The pair met at their place of employment and often did things together: bowling, playing guitars, playing with their remote control cars, and going to cookouts. They were good friends until the night of the occurrence. Whalin testified that on that evening he drove with Clifford Denson in Denson’s van to Miller’s house to retrieve his belongings. Denson stayed inside the van and arranged the items while Whalin and Miller brought the belongings to him. After removing his belongings from the Miller house, Whalin went into the kitchen and asked Miller about the $20 Miller had allegedly borrowed from Whalin a month earlier. Whalin testified that after he asked Miller for the money, “Miller reached up on the refrigerator and grabbed his wallet, flipped it open, shut it. Put it back on the refrigerator and said, T ain’t got it.’ ” Whalin told Miller, “I want my money now.” Whalin testified that Miller did not ordinarily keep money in his wallet. Whalin apparently knew that Miller got paid on Fridays, and since this was Saturday he knew that Miller had money. Whalin continued, “[TJhen I did something stupid. I hit him.” Whalin testified that he did not have a weapon with him and that he hit Miller with his fist. Miller grabbed Whalin with his hand and pushed his arm straight to hold him back. Whalin testified, “I swung again. I think I just grazed him that time and I thought he was swinging with the other hand, but he was evidently stabbing me.” Whalin felt himself being hit in the lower chest area and glanced down to see blood flowing beneath his heart down over his abdominal area. Miller tore the button and the hook off of Whalin’s overalls. Whalin pushed Miller out of the way and fled out the kitchen door.

Whalin denied choking Miller, and he also denied knocking him to the floor. Whalin testified that he never threatened to beat Miller’s wife, Cynthia (Cyndy), or their four-year-old daughter, and he did not recall Cyndy Miller saying that she was going to call the police. Wha-lin denied that Cyndy Miller ever offered to give Whalin money from her purse. Whalin testified that he did not realize that Miller was stabbing him until he saw blood. At no time did Whalin see a knife. He testified that he is 5 feet 9 inches tall and on the date of the stabbing he weighed about 190 pounds. When asked on direct examination whether Whalin saw anything on the kitchen floor when he was at the Miller home, he answered “no.” Denson drove Whalin to the hospital where he had blood transfusions and a kidney removed.

Clifford Denson testified that he and Jeff Whalin are very good friends. Denson testified that he accompanied Whalin to Miller’s house to pick up a drum set and other items which Whalin had stored there. While on their way to Miller’s house Whalin was calm and made no mention of any money which Miller owed him. Denson testified that when they arrived at the Miller home and requested that Miller help them load Whalin’s belongings into the van, Miller and Whalin appeared to be calm. Denson went outside to arrange the items in the van while Miller and Whalin made several trips into the house to retrieve the items. While Denson was busy in the van he heard someone yell from inside the house. Denson then saw Whalin run out of the house and slam the door behind him. Whalin was holding his side when he ran up to Denson and told him that he had been stabbed and to get him out of there.

The defendant, Keith Miller, testified that Whalin came to his home to collect his personal belongings which Miller was storing for him. Among the items Whalin retrieved was a drumset in which Miller had a $16 interest. After they loaded the items into Denson’s van, Whalin followed Miller into the house, started pushing Miller and told him that he wanted $20. Miller testified that Whalin told him that he wanted the money to pay for Denson’s gas. Miller then asked Whalin about Miller’s ownership in the drum set. Whalin called Miller a "mother------” and told him it was his loss. Miller told Whalin to wait until Miller could borrow the money. Miller testified that Whalin then struck him in the face with his fist, knocking him to his knees. Miller stated that his wife grabbed her purse and said, “Jeff, I’ve got money.” Miller testified that Whalin looked at Cyndy Miller, called her a “-------” bitch and said he did not want her money. Miller continued:

“He began, started pushing me around and hitting on me. And he was in the comer between the stove and the sink at that point. * * *
*** [M]y daughter had woken up and come running into the kitchen from [sic] the noise. And my wife had grabbed her and picked her up and told Mr. Whalin to please leave [and] that she was going to go call the police. * * *
Mr. Whalin had [sic] told her that she wasn’t going any where. That after he was done with me, he was going to start on her and then start on that-------kid. * * *
I... Then I grabbed the knife out of the dish drainer. * * *
Jeff was on me like a split second after that and we wrestled around. He throwed [sic] me down on the floor a couple times. He picked me up and slammed me against our piano. At which time — point, I held the knife out in front of me the first time and said, ‘Please Jeff, get out of here.’ And he again come [sic] at me and started hitting me and punching me. And throwing me about the room. And he slammed me up against the refrigerator door. At that point and then [sic] he was probably two foot [sic] away from me and held the knife out in front of me again and I told Mr. Whalin, ‘Jeff you better get the hell out of here.’ And then he come [sic] at me again and he struck me and knocked me down to the floor.”

Miller further testified that at one point Whalin was on top of him and was choking him. He recalls that Cyndy Miller struck Whalin across the back with a broom. Whalin then turned and said “you bitch you and that kid’s [sic] going to pay for that.” Miller testified that at that point Whalin had gone too far and so he stabbed him. Miller estimated that during the course of the fight Whalin hit him four to six times. When asked why he stabbed him, Miller testified, “Because I was in fear for my family. He had threatened them and I thought he was going to do what he had threatened to do.”

With regard to his injuries, Miller testified that Whalin hit him in the eye with his fist. He stated that there were bruises on his neck from where Whalin choked him, a bruise below his left shoulder blade and scratches on his back from where he was slammed against the refrigerator.

After Whalin left, Miller went to his father-in-law’s house to call the sheriff because there was no telephone at the Miller residence. Miller testified that when he returned to his own home he saw that the kitchen was “messed up.” A crock and two plates were on the floor and he assumed they had fallen from the dish drainer during the scuffle. He testified that his daughter was crying and upset and was “clinging to [him] very bad.” Miller estimated that the sheriff arrived at his house approximately four minutes later. Miller testified that when the officers arrived he was holding his daughter because she was still crying.

Cyndy Miller testified that when Whalin arrived at their home on January 6, he kicked at the bottom of the kitchen door, used profanity and said, “hey, let me in.” She testified that Whalin also kicked a hole in the door to the storage room where his personal items were kept. After the men loaded the items into the van, Whalin followed Keith Miller back into the house and became abusive. Cyndy Miller testified that Whalin “began jabbing his finger in my husband’s chest and using profanity.” He told Miller, “You owe me $20.” Cyndy confirmed her husband’s testimony that he did not have the money at the time but that he would pay Whalin. She testified that Whalin hit her husband. Cyndy Miller grabbed her purse and tried to pay Whalin $19 but he said, “I don’t want your money you-------bitch.” Mrs. Miller testified that she told Whalin to leave or she would call the police, and that Whalin responded, “Where the — do you think you’re going? You are not going anywhere. When I’m done with him, I’m starting on you and then I’ll start on that kid.” She continued, “He said he would bum the house over our heads. No one would know what happened here.”

She testified that she became frightened for her daughter’s security so she took her to her bedroom and hid her in a closet. When she returned she saw her husband standing with a knife in his hand begging Whalin to leave. Miller testified that Whalin laughed and started beating her husband again. Keith Miller was “hit, knocked down, picked up, hit, knocked down, picked up, thrown around the room.” She testified that Keith landed on the floor flat on his back. Whalin was straddling her husband. She testified that “he had one hand around my husband’s throat and the other hand drawn back as if to hit him in the face again.” Cyndy Miller testified that she grabbed a broom and hit Whalin. Whalin said, “You bitch, you and that kid are going to pay for that.” Cyndy Miller testified that after that her husband stabbed Whalin. Whalin came at her husband again and Keith stabbed him again. She estimated that Whalin struck her husband four or five times.

Max Bunton, deputy sheriff of Jasper County, arrived at the crime scene shortly after Miller reported the incident to the police. Bunton was the first officer to arrive at Miller’s house. Bunton testified that upon entering the kitchen he observed overturned plates, some debris on the floor and a chair that someone set out away from the table area. Upon questioning Miller, Bunton learned that Cyndy and the Millers’ then three-year-old daughter, Mary, were present during Miller’s altercation with Whalin. Bunton testified that Miller advised him that Whalin had come to his home to retrieve a drum set that was stored there. After loading the drums into Denson’s van, Miller and Whalin returned to the kitchen and began to fight over money. At one point Miller and Whalin were both on the floor. Miller then stated, “stupidly[,] I grabbed a knife and stuck him.”

Bunton testified that at this point he instructed Cyndy and Keith Miller to be careful as to what they said and he advised them of their Miranda rights. Bunton testified that the Millers’ child was in the house while he was questioning the defendant and that she was in and out of the kitchen but was quiet. Bunton recalled that the defendant’s eye was swelling, but Bunton did not recall any other noticeable injuries. Miller did not complain of any physical injuries. Shortly after reading the Miranda warnings to the Millers, Sheriff Benefiel arrived.

Phil Benefiel, Jasper County sheriff, testified that he was called to the scene of the stabbing shortly after the incident occurred. Upon entering the defendant’s home he observed some plates and a cookie jar on the kitchen floor. A kitchen chair had been pulled away from the kitchen table toward the center of the room. Sheriff Benefiel testified that the defendant explained that he had been sleeping on the couch when he was awakened by Jeffrey Whalin, who had come to pick up some of his possessions. Miller assisted Whalin in carrying the items out to Denson’s van, and Whalin asked Miller for $20 which he said Miller owed him. The men reentered the house and began arguing over their right to possession of the drum set. Miller told Sheriff Benefiel that at that point Whalin struck Miller in the eye with his fist. The two men wrestled in the kitchen, and Miller retrieved a bayonet from the dish drainer. Benefiel testified that Miller then stated that he freaked out and stabbed Whalin in the arm. He pushed Wha-lin away, but when Whalin came back at him Miller stabbed him in the chest.

Benefiel testified that he observed the defendant’s daughter in the living room, but there was nothing noticeable about her. Benefiel testified that if they had not introduced her to him, he would not have known she was there. Benefiel testified that while at Miller’s home that evening he noticed that there was swelling between Miller’s left eye and the cheekbone area. Miller is approximately 5 feet 8 inches tall and weighed 160 pounds on the night of the incident.

Dr. Steven Szigethy testified that on January 9, 1990, he examined Keith Miller. Szigethy testified that he found “some scratch marks, abrasions and hematoma.” Under Miller’s left eye Szigethy observed what he termed a resolving hematoma, where the skin was greenish and yellowish in color. Szigethy testified that he also observed scratch marks on Keith Miller’s back, and scraped skin to the left of Miller’s shoulder blade and on his neck. Of the abrasions on the back and neck, Szigethy testified that of his own personal knowledge he did not know how they got there and could not say whether or not they were there before or after January 6, 1990.

Keith Miller argues that he was not proved guilty beyond a reasonable doubt. He contends that there are two conflicting versions of the altercation which took place between himself and Whalin and that the record does not support the determination of the trier of fact. Specifically Miller points out that the jury was instructed on his assertion of self-defense. He argues that it is clear that he was not the aggressor as he had bruises on his face, neck and body; he feared for his own safety and that of his family. Miller argues that the State failed to prove that the force used by him was not justified and that Whalin’s testimony is so improbable on this point that his conviction must be reversed.

“A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. *** When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, ‘the relevant question 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.’ ” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.)

Here the jury’s determination depended upon the credibility of the witnesses and the weight given their testimony. It is the jury’s responsibility to resolve any factual disputes, to assess the credibility of the witnesses, and to determine the sufficiency of the evidence for a verdict of guilt. (People v. Bradford (1985), 106 Ill. 2d 492, 478 N.E.2d 1341; People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.) Based on the record we find no reason to substitute our judgment for that of the jury.

Miller next argues that he was denied a fair trial because of the State’s repeated references to his post-arrest silence.

During cross-examination of the defendant, the prosecutor attempted to question him regarding his conversations with the arresting officers and his failure to tell the arresting officers certain things. The colloquy between the prosecutor and the defendant is as follows:

“Q. You remember the ride to the jail in the car?

A. Yes.

Q. And when you were talking to Deputy Bunton and Sheriff Benefiel, you knew they needed to know everything at that time, didn’t you?

A. Yes.

Q. In fact, you knew they would be relying on what you told him [sic] to make some decision?”

The defense attorney objected to this line of questioning. The trial court sustained the objection and admonished the jury to draw no inference from the failure, if any, of the defendant to make any statement.

Later during the State’s cross-examination, defense counsel posed an objection on similar grounds after the State’s Attorney asked, “Mr. Miller, when you were checked into the County Jail that evening, the jailer asked you about your — whether or not you had any injuries, didn’t he?” Once again the trial court admonished the jury, “the State may not inquire and jury may draw no inference from this individual’s [sic] not making any statements.”

Finally, during the State’s closing argument the court sustained the defendant’s third objection to the State’s reference to the defendant’s post-arrest silence. Specifically, the court sustained an objection to the State referring to Miller’s failure to make certain statements to the arresting officers.

Miller argues that a defendant’s right to remain silent may not be commented upon by the prosecutor and that in this case the State was engaged in a deliberate course of conduct so as to bring the situation out of the realm of harmless error. We disagree.

The Miranda warnings, which were read to the defendant upon his arrest, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The Supreme Court has held that a prosecutor may not seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examination of the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest; use of the defendant’s post-arrest silence in such manner violates due process. Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.

Unlike the defendant in Doyle, “a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.” (Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182.) Here, the defendant made statements to the police after receiving the Miranda warnings. As to the subject matter of his statements, Miller had not remained silent at all. (See Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180.) Because Miller took the stand to testify in his own defense, the State could properly attempt to impeach his testimony. (People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39.) The State points out that there were a number of inconsistencies in Miller’s statement to the arresting officers and his testimony in court, for example: (1) Miller’s failure to inform the police of Whalin’s alleged threats to his wife and child; (2) Miller’s failure to report Whalin’s threat to bum the house down; and (3) Miller’s failure to report any injury other than his eye.

Viewing the prosecutor’s comments, we cannot conclude that the references to Miller’s failure to mention these matters were impermissible. The State’s reference to them was not improper.

Based on the foregoing, we affirm the defendant’s conviction.

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.