author: JUSTICE SCARIANO JUSTICE McCORMICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANSELM HOLMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 90—1466
    Opinion filed July 27, 1993.

      McCORMICK, P.J., dissenting.

      Ralph Ruebner and Sonnenschein, Nath & Rosenthal, both of Chicago (Eric A. Oesterle and Donna L. Marks, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, Sheila MacManus, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Anselm Holman (defendant) and Richie Cole were charged with murder, rape, residential burglary, robbery, home invasion, and aggravated kidnapping, and both were found guilty by a jury on all counts except for the charge of aggravated kidnapping. Defendant was sentenced to natural life for murder, extended terms of 60 years for rape and home invasion, and 30 years for residential burglary, all to be served concurrently. Cole was given concurrent terms of 40 years for murder, 30 years each for rape and home invasion, and 15 years for residential burglary. In the appeal of both defendants from their convictions, Cole claimed that the trial court had erroneously denied his motion to suppress his inculpatory statements. This court agreed and reversed and remanded Cole’s case for a new trial, after holding that his statements were the fruits of an illegal arrest. (People v. Cole (1988), 168 Ill. App. 3d 172.) Although we affirmed defendant’s conviction, we reduced his sentences for rape and home invasion to 30 years; he had not contested the trial court’s denial of his motion to suppress. Defendant’s petition for leave to appeal (People v. Cole (1988), 122 Ill. 2d 582), and his petition for a writ of certiorari (Holman v. Illinois (1989), 489 U.S. 1021, 103 L. Ed. 2d 203, 109 S. Ct. 1143), were both denied. The Illinois Supreme Court appointed present counsel, who later filed a verified post-conviction petition on his behalf. After the filing of memoranda of law and a hearing on the merits, the circuit court denied defendant’s petition, holding that (1) he was not denied effective assistance of counsel, (2) the doctrine of waiver clearly applied to his failure to raise on appeal the issues of quashing his arrest, the suppression of his statements, and the unconstitutionality of the sentencing statute, both facially and as applied, and (3) the sentencing statute, both facially and as applied, is constitutional. On that same day defendant filed this appeal.

The facts of the underlying case reflect that on May 11, 1984, 75-year-old Mary Brackenridge was murdered in her home. After Detective Ralph Vucko was assigned to the case and had done some preliminary investigation of the case, he discovered that someone named “Main” had been at the victim’s home on the evening of her murder and that he might have some information regarding her death. On May 12, 1984, at approximately 2 p.m., Vucko located him and discovered that “Main” was a nickname for defendant. When Vucko suggested that defendant accompany him to the police station for questioning about Brackenridge’s murder, defendant agreed to do so. Vucko further testified that en route to the police station in a squad car, defendant told Vucko and his partner, Detective Vic Switski, that another person was present with him at Brackenridge’s home on the night of the murder, namely, Richie Cole. Defendant led them to Cole’s home, and when they failed to find him there, defendant led the detectives to the home of Cole’s girl friend, where he was eventually found. Cole and defendant were then taken to the police station and placed in separate rooms. Defendant was not handcuffed and the door to his room was unlocked. At approximately 4 p.m., immediately after Cole had given the two detectives a statement in which he had implicated himself and defendant, defendant was “Mirandized” and interrogated. At the time of his interrogation, defendant was under arrest for murder, and although he was told that he was under arrest, he was not informed of the specific charge therefor. In the course of his interrogation, defendant denied having any knowledge of the murder, after which the two detectives left the station to look for the only witness to the crime, a seven-year-old boy named Rickey Brown.

At approximately 5:30 p.m., after their efforts to find Rickey proved to be unsuccessful, the detectives returned to the station, and, because they “felt he was lying,” continued their interrogation of defendant. Defendant was again given his Miranda rights, and during this period of questioning he made several incriminating statements. At about 7 p.m., after Rickey had been located, a lineup was held, but he was unable to identify either Cole or defendant. At 10:30 p.m. defendant was “Mirandized” before being interrogated once more, and during this period of questioning, his statements were reduced to writing and signed by him. Defendant was also interrogated at three different times the following day.

Defendant testified at the hearing on his motion to suppress that during this time he was not fed or allowed to use the bathroom until he was placed in the lockup that night. He stated that he signed the incriminating statement only after the two detectives and an assistant State’s Attorney, Scott Nelson, promised he would be released the next day if he signed some papers. According to the State’s witnesses, however, defendant was not high on marijuana during any of the interrogations; he was not physically abused by anyone; and he was given sandwiches, water and access to toilet facilities. The State also refuted defendant’s testimony that he was denied sleep in the interview room and that he was promised he would be released if he signed certain papers.

I

Defendant’s principal issue is that he was denied effective assistance of appellate counsel because the attorney failed to challenge the denial of defendant’s motion to suppress. Under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.), a defendant must show that “in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both.” (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1; see also People v. Caballero (1989), 126 Ill. 2d 248, 259.) “A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment.” (Caballero, 126 Ill. 2d at 258.) In Evitts v. Lucey (1985), 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37, the Supreme Court of the United States determined that a defendant is entitled to effective assistance of counsel in direct appeals of right. In Caballero, the Illinois Supreme Court determined that the two-part Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, standard, applied originally to challenges to the competence of trial counsel, is also applicable to challenges to the assistance of appellate counsel:

“[W]e believe that the same standard applies a fortiori to a claim that an appellate advocate chose the wrong issues or argued them ineffectively. Where the defendant maintains, for example, that his appellate attorney failed to argue a particular issue, he must show [1] the failure to raise that issue was objectively unreasonable, as well as [2] a reasonable probability that, but for this failure, his sentence or conviction would have been reversed.” (Emphasis added.) Caballero, 126 Ill. 2d at 269-70.

Defendant contends that his appellate counsel did not meet these standards when he failed to appeal the denial of the motion to suppress. It is defendant’s position that “[c]ounsel’s failure to press these claims on appeal cannot be justified as sound appellate strategy.” In support of his position, he cites the affidavit of Gordon Berry, counsel in his direct appeal, swearing to the following: that (1) he did not recall ever discussing the “Fourth Amendment/Motion to Quash Arrest issue” with defendant and that defendant never told him to raise it; (2) the reason for not raising this issue was “that a determination was made that it was not sufficiently meritorious for the appeal,” although Kenneth Jones, an appellate defender who acted as “back up” on the case, thought Berry should “check out or consider the issue.” Berry, however was unable to “recall at the moment what our initial estimate of the merits were [sic]. Suffice it to say that eventually, I decided not to raise it, but I cannot at the moment recall the exact rationale or process I followed in reaching that determination.”

Defendant nonetheless concludes that counsel’s appraisal of the merits was clearly wrong. Defendant also asserts that but for this failure, his conviction would have been reversed, for “[h]ad counsel argued the merits of the constitutional claims, [he] would have received a new trial and benefited by the suppression of illegal evidence. This is what happened to Richie Cole who had competent representation on appeal.”

A

Defendant claims that his counsel on appeal was ineffective because he did not argue that the findings of fact made by the trial judge in the underlying case regarding his motion to suppress were clearly erroneous and contrary to the manifest weight of the evidence. Those determinations were as follows: (1) defendant’s statements were voluntary; (2) they were not the product of any mental or physical coercion; (3) defendant twice signed a waiver of rights; (4) he waived his right to counsel; (5) there was no merit to his claim that he was told by police that if he signed some papers he could go home; (6) during his interrogation by the police he was not high from smoking marijuana the night before; (7) the two-day interrogation was not constant and he was allowed to sleep; (8) he did not complain to the assistant State’s Attorneys that he had been beaten or coerced; in fact, his signed statements indicated the contrary; and (9) he was not tricked when he was told that it was a murder investigation.

As stated in People v. McCleary (1990), 208 Ill. App. 3d 466, 476:

“The test of whether a statement is admissible at trial is whether it has been made freely, voluntarily and without compulsion or inducement or whether the defendant’s will was overcome at the time he confessed. [Citation.] Moreover, wrongful or coercive police conduct is a necessary precursor to finding that a confession is involuntary. [Citation.] The trial court need only be convinced by a preponderance [of the evidence] that the confession was voluntary. [Citation.]”

Thus, it is important to view all of the “circumstances surrounding the making of the statement.” (People v. Stachelek (1986), 145 Ill. App. 3d 391, 401.) As stated in People v. Racanelli (1985), 132 Ill. App. 3d 124, 132-33:

“The characteristics of the accused which must be examined are those which bear upon his ability to make knowledgeable and independent decisions. Pertinent factors are the defendant’s age, intelligence, prior experience with the criminal law and emotional stability. *** While the prosecution bears a heavy burden of establishing that a statement was made knowingly, intelligently and voluntarily, where a trial court so finds after application of the proper legal standard, review is limited to whether that finding is contrary to the manifest weight of the evidence.”

Defendant claims that his appellate counsel “should have been aware from the entire record before him *** that [defendant] was not a typical subject of police/custodial interrogation.” Defendant was 17 years old; he had no juvenile record and no prison record, although he had been placed on three months’ supervision for misdemeanor theft one month before this incident; and he had no charges pending against him. Defendant had dropped out of high school in the 10th grade, was employed as a part-time janitor, and lived with his mother. Moreover, defendant claims that “[ajppellate counsel should have scrutinized the testimony of Detectives Switski and Vucko. The exploits of these two officers are well documented. See, e.g., People v. Ealy (1986), 146 Ill. App. 3d 557,” suggesting that the two officers had previously exhibited a propensity for improper police conduct.

Applying the above-mentioned standards, we hold that the trial court’s findings of voluntariness were not contrary to the manifest weight of the evidence, for “[w]e are not asked to decide whether we would have reached the same conclusion in the first instance.” (People v. Lekas (1987), 155 Ill. App. 3d 391, 415.) Although defendant was a 17-year-old high school drop-out who had had no significant prior experience with the law, the prosecution nonetheless met its burden of establishing that his statement was made knowingly, intelligently and voluntarily. Despite defendant’s claim that his signed statement was the product of physical and psychological abuse, the trial judge found that he failed to contradict sufficiently the testimony of the State’s witnesses that he had received adequate food, drink, and rest; that he was furnished bathroom accessibility; and that six short interrogations over a 25-hour span of time were not abusive. Moreover, it is important to note that it was within his province as trial judge to assess the credibility of the witnesses before him on the issue of voluntariness. (See People v. Racanelli (1985), 132 Ill. App. 3d 124.) Also important is a lack of corroborating facts that a beating had occurred — defendant failed to produce any evidence of physical or mental abuse to contradict the State’s proof of voluntariness. For these reasons we hold that the trial court’s findings that defendant’s statement was made voluntarily were not against the manifest weight of the evidence.

B

Defendant also maintains that his counsel on appeal was ineffective because he failed to argue that the police lacked probable cause to arrest him. “The police may not seize or detain a suspect without probable cause.” People v. Downey (1990), 198 Ill. App. 3d 704, 715, appeal denied (1990), 133 Ill. 2d 563.

Before we consider the issue of probable cause, however, it is necessary to determine when defendant was seized or detained within the meaning of the fourth amendment:

“A person has been seized when, in view of the surrounding circumstances, a reasonable person would have believed that he was not free to leave. [Citation.] The focus in that analysis is on the coercive effect of the police officers’ conduct. [Citation.] The police officers’ subjective belief that the defendant was free to leave is not determinative where it was not communicated to the defendant. [Citation.]” (Downey, 198 Ill. App. 3d at 714.)

Applying these tests to the facts of this case, it is clear that defendant was seized or detained as defined by the fourth amendment only after Cole had implicated him. As noted earlier, defendant agreed to accompany Vucko and his partner to the police station. When defendant and Cole arrived at the police station, the police placed defendant in an unlocked interview room; he was not handcuffed. After Cole had implicated defendant, however, the police locked the door to the interview room and handcuffed him; it was at this time that he was seized or detained within the meaning of the fourth amendment.

We consider next the question of whether the police had probable cause to seize or detain defendant after he had been implicated by Cole. “Probable cause exists when the totality of the circumstances known to the arresting officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime” (Downey, 198 Ill. App. 3d at 715; see also People v. Tisler (1984), 103 Ill. 2d 226, 236). This determination is governed not by technical legal rules but by commonsense considerations which are factual and practical. (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310; People v. Mitchell (1970), 45 Ill. 2d 148, 153-54.) Moreover, the probability of criminal activity, and not proof beyond a reasonable doubt, is the standard for assessing probable cause. (Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590; People v. Exline (1983), 98 Ill. 2d 150, 154.) “A trial court’s finding of probable cause will not be disturbed on review unless it is against the manifest weight of the evidence.” (People v. Zunker (1989), 184 Ill. App. 3d 816, 822.) “Our task on review is simply to ensure that the trial court had a substantial basis for concluding that probable cause existed[ ] Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; People v. Tisler (1984), 103 Ill. 2d 226, 248 [ ]”; (People v. Williams (1991), 147 Ill. 2d 173, 209), in order to determine if the decision of the trial court was “ ‘palpably erroneous and wholly unwarranted’ [citation] or ‘appealed] to be arbitrary, unreasonable, and not based upon the evidence. [Citation.]’ ” People v. Harris (1991), 220 Ill. App. 3d 848, 860, appeal denied (1992), 143 Ill. 2d 643.

We hold that the trial court was well within its warrant in finding that the police had probable cause to arrest defendant. Viewing the totality of the circumstances known to Officers Switski and Vucko, a reasonably prudent person would have believed that defendant participated in the murder of Mary Brackenridge. First, from prior investigation, the police knew that defendant had been at the victim’s home on the evening of her murder. Second, the police utilized Cole’s reliable statement — an admission against penal interest (People v. James (1987), 118 Ill. 2d 214, 223) — which implicated both himself and defendant in the murder of Mary Brackenridge. Both of these factors combined to create sufficient probable cause to arrest defendant.

However, even if we were to assume that the police lacked probable cause to arrest defendant, the trial court nonetheless properly denied his motion to suppress his confession because the taint of the illegal arrest was purged or attenuated. In considering attenuation, the factors to be taken into account are: “[1] the temporal proximity of the arrest and the confession, [2] the presence of intervening circumstances, and [3] the purposefulness and flagrancy of the official misconduct.” (Downey, 198 Ill. App. 3d at 716.) Another factor to be considered is “the presence or absence of Miranda warnings.” (People v. Pierson (1988), 166 Ill. App. 3d 558, 563, appeal denied (1988), 121 Ill. 2d 581.) “A trial judge’s decision on a motion to suppress, including his or her finding under the attenuation doctrine, will not be overturned unless manifestly erroneous.” People v. Lekas (1987), 155 Ill. App. 3d 391, 415, appeal denied (1987), 116 Ill. 2d 569, cert. denied (1988), 485 U.S. 942, 99 L. Ed. 2d 283,108 S. Ct. 1123.

Defendant argues, however, that

“the act of confronting an illegally seized person, while in continuous police custody, with a confession of an accomplice which implicates the two is not a constitutionally valid intervening circumstance to purge the detainee’s confession from the taint of his unlawful arrest. *** In this case, [defendant] was seized unlawfully, and while in custody he named Cole to the police, who in turn seized Cole unlawfully, obtained a confession from Cole unlawfully, and then confronted Holman with that confession.” (Emphasis added.)

It is defendant’s further contention that “confronting an arrestee with an accomplice’s confession is a further exploitation of the arrestee’s illegal arrest.” In support of this theory defendant relies on the dissenting opinion in the Pennsylvania Supreme Court case of Commonwealth v. Wright (1975), 460 Pa. 247, 332 A.2d 809, on habeas proceedings, United States ex rel. Wright v. Cuyler (3d Cir. 1977), 563 F.2d 627. The defendant in Wright had been arrested by the police after he was found to meet the description of someone who had participated in a shooting earlier in the evening; the defendant, however, had denied any involvement in the crime. Meanwhile, the defendant’s co-felon had been apprehended and had made a statement implicating himself and Wright. Wright was then confronted with this statement and eventually made inculpatory admissions. At trial, Wright made a motion to suppress his statement as the fruit of an illegal arrest, but the motion was denied. On appeal the Pennsylvania Supreme Court upheld the trial court’s ruling, noting that “[statements following an illegal arrest must be excluded from evidence only if they are causally related to the invasion of the suspect’s rights ***[, and t]he burden of showing the absence of a causal nexus is on the Commonwealth.” (Wright, 460 Pa. at 250-51, 332 A.2d at 811.) The court went on to hold that the Commonwealth had met its burden on this issue, in that it was Wright’s confrontation with his co-felon’s statement, “rather than any exploitation of the circumstances of the arrest, which prompted his confession.” (Wright, 460 Pa. at 251, 332 A.2d at 811.) The dissent, however, argued that

“[t]he logical and dangerous result of [the majority’s] reasoning is to grant law enforcement officers an unfettered discretion to illegally seize any person or any number of persons on mere suspicion secure in the knowledge that if by chance a subsequent confession is obtained by means of a confrontation with a suspected co-defendant, the illegally seized individual will not have the right to suppress the tainted confession.
The conclusion the majority reaches ignores the purpose of the exclusionary constitutional rules by allowing subsequent discoveries from an illegal seizure to validate an arrest that was made without probable cause.” (Wright, 460 Pa. at 252, 332 A.2d at 812 (Manderino, J., dissenting).)

(See also State v. Winegar (1985), 147 Ariz. 440, 711 P.2d 579 (which adopts the reasoning of this dissent as its holding).) Defendant contends that this court should adopt the reasoning of the dissent of Judge Manderino in Wright.

Defendant fails to note, however, that over a dozen years ago the Illinois Supreme Court adopted the majority opinion of Wright; in fact, neither party has so much as mentioned, either in the briefs or in oral argument, the case of People v. Gabbard (1979), 78 Ill. 2d 88. In Gabbard the defendant was arrested, allegedly without probable cause, for the burglary and armed robbery of a Springfield couple. During one of his numerous interrogations, the defendant was shown “a composite sketch which had been prepared by the sheriff’s police a few days after the robbery from descriptions, supplied to the police by each of the victims.” (Gabbard, 78 Ill. 2d at 97.) One of the detectives inquired whether the defendant thought the sketch resembled him, and the defendant replied that there were many similar characteristics between him and the sketch, but at this time the defendant made no inculpatory statements. (Gabbard, 78 Ill. 2d at 97.) Later, the defendant was identified in a lineup by the two victims. After he was told of the results of the lineup, he gave a “very circumstantial account which *** corresponded closely with the reports previously given to the police by the victims.” Gabbard, 78 Ill. 2d at 98.

At trial the defendant filed a pretrial motion to suppress his inculpatory statements, but the motion was denied and the denial was later upheld on appeal. The supreme court addressed the question of whether the defendant’s confrontation with the sketch could be considered an intervening event, and cited favorably the analysis in Commonwealth v. Wright (1975), 460 Pa. 247, 332 A.2d 809, that “the confession was nonetheless admissible, since it was not causally related to the invasion of the defendant’s rights.” (Gabbard, 78 Ill. 2d at 100.) Gabbard, and its reliance on Wright, was subsequently reaffirmed in People v. White (1987), 117 Ill. 2d 194, cert. denied (1988), 485 U.S. 1006, 99 L. Ed. 2d 698, 108 S. Ct. 1469, in which the court stated, ‘[a] defendant’s confrontation with untainted evidence, which induces in the defendant a voluntary desire to confess, may be a legitimate intervening circumstance’ to dissipate the taint of the defendant’s earlier illegal arrest.” People v. Thomas (1989), 186 Ill. App. 3d 782, 794, quoting White, 117 Ill. 2d at 224.

“Illinois Appellate Court decisions have also held that a defendant’s confrontation with untainted evidence is an intervening circumstance sufficient to purge the taint of an illegal arrest.” (Thomas, 186 Ill. App. 3d at 794.) Two of these cases are cited by defendant: People v. Lekas (1987), 155 Ill. App. 3d 391, and People v. Pierson (1988), 166 Ill. App. 3d 558. In Lekas, defendant Philip Lekas was arrested without probable cause, but the court admitted his confession because it had been purged of any taint when Philip was confronted with new, intervening information after the police had obtained an independent identification by a motel desk clerk who identified Philip “as having recently been there with [his brother] George.” (Lekas, 155 Ill. App. 3d at 414.) In Pierson, the police had arrested the defendant without probable cause, but while he was still in custody, they obtained from a witness who was not a codefendant, independent testimony which supplied probable cause. Pierson, 166 Ill. App. 3d at 561.

Defendant attempts to distinguish these cases on the sole ground that the intervening probable cause in each came as a result of

“independent police investigation while the defendant was in custody. *** In this case, [defendant] was seized unlawfully, and while in custody he named Cole to the police, who in turn seized Cole unlawfully, obtained a confession from Cole unlawfully, and then confronted [defendant] with that confession. No lawful independent police work is present here, [however].” (Emphasis added.)

Defendant posits that his confrontation with Cole’s confession implicating him in Mary Brackendridge’s murder cannot be an intervening circumstance because Cole’s confession is tainted evidence — tainted because the police learned of Cole after defendant had been illegally seized or detained by the police; that but for defendant’s leading the police to Cole, the police would not have been able to question Cole and thus obtain a tainted confession with which to confront defendant.

These arguments are clearly untenable. As previously noted, the facts clearly reflect that defendant had been neither seized nor detained when he supplied Cole’s name to the police while riding in the squad car. At this time, no indicia of arrest were present: he accompanied the police voluntarily, he was not handcuffed while in the squad car, and he was free to leave whenever he desired. We fail to discern anywhere in the record of this case that defendant’s statements were causally related to any invasion of his rights; it was his confrontation with Cole’s statement rather than any exploitation of the circumstances of the arrest which we assume, arguendo, to have been illegal, which prompted his confession. Wright, 460 Pa. at 250-51, 332 A.2d at 811; Gabbard, 78 Ill. 2d at 100.

The facts of this case are unlike those in People v. Winsett (1991), 222 Ill. App. 3d 58, 71 (Reinhard, J., dissenting), appeal allowed (1992), 144 Ill. 2d 642. There, when the defendant was arrested, he invoked his Miranda right to counsel; nevertheless, the police interrogated him, obtaining the name of Glenn Spruille. When the defendant filed a motion to suppress evidence of his statements, the court granted it. He later filed a motion in limine to exclude “ ‘any and all testimony of *** SPRUILLE as it relat[ed] to [him], for the reason that said testimony and said evidence was a direct result of statements elicited from [him], and said statements have heretofore been ruled inadmissible by this Court,’ ” arguing that the evidence was the “ ‘fruit of the poisonous tree and that the police and State should not benefit from any illegal activities on their part,’ ” but the court denied the motion. (Winsett, 222 Ill. App. 3d at 61.) At trial Spruille testified that the defendant had paid him to kill someone, and the jury ultimately found the defendant guilty of attempt (murder), solicitation, and conspiracy.

On appeal the court held that the interrogation of the defendant by the police was a violation of his fifth amendment constitutional right. “Therefore, Spruille’s testimony, as the ‘fruit’ of the actual violation of [the] defendant’s fifth amendment privilege, should have been suppressed.” (Winsett, 222 Ill. App. 3d at 67.) However, no such problems exist in the case at bar. At the time defendant gave Cole’s name to the police, he had not, as we have seen, been seized or detained by the police; therefore, Cole’s name was not obtained in violation of any of his constitutional rights. Consequently, Cole’s subsequent statements to the police cannot be considered in any way as fruit of the poisonous tree.

Accordingly, since we find the distinction drawn by defendant and the dissent to be groundless, we hold that Cole’s confession constitutes a sufficiently valid intervening event or circumstance to attenuate the taint, if any, of defendant’s allegedly illegal arrest. Therefore, since the outcome of this case would not have been different had defense counsel appealed the trial court’s failure to quash defendant’s arrest, we hold that he was not denied the effective assistance of counsel on appeal.

II

Defendant also alleges that the trial court’s sentencing him to natural life because of the presence of brutal and heinous behavior indicative of wanton cruelty must be vacated because the sentencing statute (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(b)) is unconstitutional both on its face and as applied. Addressing first the facial attack, the State argues that defendant’s argument has been waived on appeal. As stated in People v. Stewart (1988), 123 Ill. 2d 368, 372, cert. denied (1989), 489 U.S. 1072, 103 L. Ed. 2d 824, 109 S. Ct. 1356:

“The scope of post-conviction review is limited by the doctrines of res judicata and waiver. In essence, post-conviction proceedings are limited to issues which have not been, and could not have been, previously adjudicated. Put another way, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived.”

The State contends that defendant could have easily presented his facial attack on appeal, and since he neither filed a post-sentencing motion nor argued the constitutionality issue on appeal, these arguments are now waived.

Defendant responds, however, that a claim of unconstitutionality may be raised for the first time at a post-conviction proceeding and that the doctrine of waiver does not apply. In support of this contention, he cites People v. Sarelli (1973), 55 Ill. 2d 169. Although not cited by defendant, People v. Bryant (1989), 128 Ill. 2d 448, 454, also stands for the proposition that “a constitutional challenge to a statute can be raised at any time.” Moreover, in light of the fact that defendant is arguing ineffective assistance of appellate counsel, it would not be meet for this court to penalize defendant by applying the doctrine of waiver to this issue. See People v. Ruiz (1989), 132 Ill. 2d 1, 9-10, cert. denied (1990), 496 U.S. 931, 110 L. Ed. 2d 652,110 S. Ct. 2632.

As to the merits of his argument, defendant posits that the subject sentencing statute is facially vague, “respectfully disagreeing]” with People v. La Pointe (1981), 88 Ill. 2d 482, and United States ex rel. Peeples v. Greer (7th Cir. 1984), 739 F.2d 262. He asserts that since the “statutory basis for the imposition of a natural life term is unconstitutionally vague and ill defined[, t]he imposition of a natural life term is therefore standardless,” resulting in a lack of “principled means to distinguish those who receive this penalty from those who do not.” We disagree. Holding that section 5 — 8—l(a)(l) is not unconstitutionally vague, the LaPointe court found that the word “heinous” has been defined as “hatefully or shockingly evil” or “grossly bad,” and that the term “brutal” includes conduct which is “devoid of mercy or compassion,” or “cruel or cold-blooded.” (La Pointe, 88 Ill. 2d at 499-500.) Moreover, in People v. Barnhill (1989), 188 Ill. App. 3d 299, 309, appeal denied (1990), 129 Ill. 2d 566, the court, in interpreting section 5 — 8—l(a)(l)(b), found that “these words are sufficiently indicative of the type of murder which warrants a sentence of natural life imprisonment and are not unconstitutionally vague on their face,” and that the statute in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, discussed in Barnhill, is sufficiently different and distinguishable. Defendant argues that Barnhill is not binding on this court and is “plainly wrong,” failing to recognize that the supreme court denied the defendant’s appeal in that case, which hardly indicates disagreement with the holding of the court.

The State also asserts that defendant’s as-applied attack is res judicata in that he is “veiling the propriety of his sentence- in the all-encompassing notion that the statute was ‘unconstitutionally’ applied to his case.” Defendant contends, however, that this issue is not res judicata because the trial court considered merely an “excessive sentence” argument and not an “unconstitutionally applied” argument. We disagree with defendant’s position, for his argument appears to be nothing more than an attempt to argue the merits of his natural life sentence — that the trial judge abused his discretion in imposing it. On appeal this court determined that the trial court was “incontestably justified” in imposing a natural life sentence because “Holman was more responsible for the murder, and certainly his leadership role throughout his criminal endeavor with Cole was sufficient evidence upon which to reach that conclusion.” (Cole, 168 Ill. App. 3d at 185.) For these reasons, we hold that defendant’s as-applied attack is res judicata.

Even if we were to agree with defendant as to the nature of his charge, we would nonetheless find defendant’s argument to be without merit. Defendant claims that the trial judge did not apply a narrow construction of the statute when he applied it to defendant, claiming that he relied on the fact that the victim was “actually killed by the defendant Holman [when he placed] his hand over her mouth to stop her from yelling out, calling for help.” Defendant omits from the judge’s remarks, however, that he also based his decision on the fact that the victim was a 75-year-old woman who was attacked in her own home in the middle of the night. Nevertheless, defendant cites People v. Harrison (1990), 196 Ill. App. 3d 298, appeal denied (1990), 133 Ill. 2d 565, as an instance in which the court vacated a natural life sentence where the defendant held a pillow over the mouth of the 87-year-old victim to quiet her during a home invasion. In Harrison, however, the defendant’s acts did not cause the death of the victim; it was codefendant’s beating the 87-year-old victim that caused her death. Defendant also cites People v. Bivens (1987), 163 Ill. App. 3d 472, appeal denied (1988), 119 Ill. 2d 561, for the proposition that the judge lacked authority to impose a natural life sentence since the record did not clearly indicate that the jury found the defendant alone was responsible for the murder. In Bivens, the defendant and codefendant were tried together for murder, and in instructing the jury, the judge gave both a murder and an accountability instruction, such that when the jury returned a verdict of guilty against both defendants, the court was unable to determine whether the defendant was found guilty for having committed the murder or under an accountability theory. Such is not the case at bar. Although defendant claims that in their closing arguments both defendants argued that the other one caused the victim’s death, the jury was given separate instructions for Cole and defendant, and the jury determined that defendant murdered the victim. Thus Bivens is inapposite here. Accordingly, we find that defendant’s as-applied attack is res judicata, and even if it were not, we find that his attack is groundless.

Ill

Defendant suggests that his natural life sentence violates constitutional guarantees of due process and equal protection in that there is no rational basis for differentiating between imposition of an extended-term or natural life sentence for a murder conviction based on the finding that the offense was accompanied by exceptionaUy brutal or heinous behavior indicative of wanton cruelty. Defendant contends that sections 5 — 8—2(a)(1) and 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—2(a)(1), 1005— 5 — 3.2(b)(2)) contain language identical to the language in section 5— 8 — 1(a)(1)(b) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(b) (see People v. Andrews (1989), 132 Ill. 2d 451), and therefore the sentencer is afforded an unbridled choice of sentences to impose, necessarily resulting in the arbitrary imposition of natural life sentences.

The State urges that this argument is waived on appeal, but for the same reasons as discussed above with respect to the waiver of the sentencing statute’s facial vagueness challenge, we hold that this issue is not waived. The defendant in People v. Cartalino (1982), 111 Ill. App. 3d 578, made the same argument that defendant advances here, but the court rejected it, holding:

“Section 5 — 8—l(a)(1) of the Code [citation] does not permit the court to impose a sentence of natural life solely on the basis of the seriousness of the offense committed [citation] without regard to a defendant’s rehabilitative potential. [Citation.] In determining a proper sentence for any felony, including murder, factors in aggravation and mitigation must be considered ***.” (Cartalino, 111 Ill. App. 3d at 591.)

In People v. Abernathy (1989), 189 Ill. App. 3d 292, 318, appeal denied (1990), 129 Ill. 2d 565, the court affirmed the reasoning in Cartalino, finding that “the factors in mitigation and aggravation provide the necessary guidance for the trial court to decide whether a particular defendant should be sentenced to life imprisonment or to an extended term.” Defendant does not attempt to distinguish these cases; accordingly, we find no merit in defendant’s argument on this issue.

For the above-stated reasons, we affirm the decision of the trial court in denying defendant’s post-conviction petition.

Affirmed.

HARTMAN, J., concurs.

JUSTICE McCORMICK,

dissenting:

It was the best of times. Our legal system functioned in all of its magnificent splendor with the utmost care and respect for constitutional dignity. Police officers respectfully requested that defendant, a civic-minded public-spirited citizen, voluntarily accompany them to the police station as part of their investigation of a murder. Defendant complied. He was treated humanely by the police. They gave him food, water and access to a bathroom during his 25-hour stay at the police station. Eventually the police had probable cause to arrest defendant, and they advised him of his Miranda rights. Defendant made incriminating statements.

It was the worst of times. Our legal system utterly failed to protect basic human rights. Without legal justification, police officers took a 17-year-old citizen (defendant) from his home and transported him against his will to a police station. Isolated from relatives, defendant was handcuffed and beaten by the police. Defendant was denied food, water and access to toilet facilities. He was not given Miranda warnings or an attorney to advise and counsel him. He was not allowed to see his family who came to the police station for that purpose.

Unlike the tale of two cities, these two tales cannot both be true. The trial court denied defendant’s motion to suppress and made findings of ultimate facts (mixed questions of fact and law) that totally absolved the State of any impropriety or denial of defendant’s constitutional rights.

The trial court found that defendant signed waivers, was not high on marijuana, was not subjected to mental or physical coercion, was not interrogated constantly over two days, was allowed to sleep and did not complain to the assistant State’s Attorney. These are basic and inferred facts and subject to a very narrow standard of review. These findings cannot be disturbed unless they are clearly erroneous. People v. Saunders (1991), 220 Ill. App. 3d 647, 668, 580 N.E.2d 1246.

The trial court further found that defendant waived his right to counsel and made voluntary statements. These findings of ultimate facts are subject to a broader standard of review. These findings can be disturbed only where there is a legal error in the choice, interpretation or application of a legal precept. The scope of our ongoing question of law is independent, not deferential. (People v. Williams (1984), 124 Ill. App. 3d 734, 736, 464 N.E.2d 1176.) On the basis of these findings, the trial court denied defendant’s motion to suppress.

Appellate counsel for defendant failed to raise the question of the denial of the motion to suppress in defendant’s appeal. In a subsequent post-conviction petition and hearing, defendant urged that the failure of appellate counsel to raise the issue of denial of his motion to suppress denied him effective assistance of appellate counsel. The ruling of the post-conviction court here is an interpretation of a question of law, and as such, it is subject to a broad standard of review on appeal. Williams, 124 Ill. App. 3d at 736.

I respectfully disagree with the majority’s opinion on the issue of ineffectiveness of counsel and probable cause to arrest defendant. As the majority points out, to succeed in his claim of ineffective assistance of appellate counsel, defendant must show both that the failure to appeal the adverse ruling on the motion to suppress was objectively unreasonable and that there is a reasonable likelihood that his conviction would have been reversed had that issue been presented to the appellate court. (Caballero, 126 Ill. 2d at 269-70.) The majority opinion concludes that it is not reasonably likely that defendant’s conviction would have been reversed if appellate counsel had challenged the ruling on the motion to suppress, because the trial court’s ruling on that motion was correct.

Appellate counsel has no obligation to brief every conceivable issue on appeal. “[I]t is not incompetence for counsel to refrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong.” (People v. Ferro (1990), 195 Ill. App. 3d 282, 288, 551 N.E.2d 1378.) The appellate court has found appellate counsel’s assistance ineffective where he failed to raise defendant’s strongest issue on appeal. Downey, 198 Ill. App. 3d at 716.

Defendant argues that he did not receive effective assistance because defense counsel raised three minor issues and failed to raise the issue of the motion to suppress, which is of great magnitude.

This court affirmed defendant’s conviction and stated that: (1) the issue of the proposed question to the venire regarding presumption of innocence was without merit (Cole, 168 Ill. App. 3d at 183); (2) the denial of a continuance was not an abuse of discretion where the motion was made after jury selection and defendant could not offer any assurance that a particular witness would be available and offer relevant testimony (Cole, 168 Ill. App. 3d at 184); and (3) the testimony regarding the accuracy of written summaries was of no consequence in that defendant never denied the statements but contended that they were coerced (Cole, 168 Ill. App. 3d at 184). Counsel successfully challenged the extended-term sentences the trial court imposed for rape and home invasion. That success will have no effect on the time defendant actually serves because this court affirmed defendant’s sentence of natural life in prison for murder. Cole, 168 Ill. App. 3d at 185.

The trial court denied the motion to suppress stating that defendant was not arrested until Cole made statements implicating him. The majority opinion in the present appeal concludes that the trial court’s decision on the motion to suppress is correct and that the taint of the illegal arrest, if any, was purged or attenuated.

In the post-conviction hearing, appellate counsel could not explain why he believed that a challenge to the ruling on the motion to suppress was not sufficiently meritorious for appeal. Our task is to determine whether appellate counsel’s failure to challenge the ruling on the motion to suppress was objectively unreasonable, and if it was unreasonable, whether the failure prejudiced defendant. (See Caballero, 126 Ill. 2d at 269-70.) This court in the first appeal recognized that defendant’s appellate counsel had failed to raise an important issue with its surprised observation: “Although Holman might also have a colorable fourth amendment argument, he has not chosen to raise it before this court.” (Cole, 168 Ill. App. 3d at 178.) This extraordinary uninvited remark demonstrates our bewilderment at the failure of appellate counsel to litigate the denial of the motion to suppress. Appellate counsel chose to raise three weak issues on appeal, and failed to raise defendant’s strongest argument for reversal of the convictions. Appellate counsel’s appraisal of the merits of the issues was patently wrong. The failure to challenge the rulings on the motion to suppress is objectively unreasonable. See Ferro, 195 Ill. App. 3d at 293.

The majority finds that this court would have affirmed Holman’s conviction even if appellate counsel had challenged the trial court’s decision on the motion to suppress.

This view is cursed by the need to distinguish this case from the case against codefendant Cole. We held that the trial court should have granted Cole’s motion to suppress. A review of the similar facts and circumstances between defendant and Cole is enlightening: The State contends that defendant and Cole agreed to accompany the police, on a voluntary basis, to the police station; both were contacted and transported to the police station by the same police officers; both were transported, at some juncture, to the police station by the police in the same vehicle at the same time; both were told by the police officers not to speak to each other while being transported; upon arrival at the police station, they were placed in separate interview rooms, the doors to which were closed; both defendants were interrogated by the same police officers; the officers never told either defendant that he was free to leave; relatives of both defendant and Cole came to the police station; neither of them met with or consulted with their relatives while at the police station; and both testified that they were beaten by the police and that their statements were coerced.

The differences between defendant and codefendant Cole are equally compelling and should be noted: At the time of the interrogation, defendant was 17 years old and codefendant Cole was 16 years old; in the initial appeal to this court, codefendant Cole challenged the trial court’s ruling of the motion to suppress, and defendant did not; defendant’s conviction was affirmed and codefendant Cole’s conviction was reversed (in that Cole’s statements were held to be the fruits of an illegal arrest).

The State concedes that police lacked probable cause to arrest defendant at the time of their initial contact with him. The State relies on its argument that the police did not arrest defendant until Cole implicated him, and that Cole’s statement provided probable cause. Before police developed this probable cause, they went to defendant’s home and suggested that he come to the police station because the station was “more conducive” to questioning. Police never told defendant, who was then 17 years old, that he was free to go. On the contrary, Officer Switski admitted that if defendant had asked to leave he would “definitely” have “tried to talk him out of it.” Defendant remained at the station for 25 hours before he made the incriminating statements the State introduced into evidence.

The core question that we must resolve is, what legal conclusion flows from the factual representation made by the police? (See Williams, 124 Ill. App. 3d at 736.) The history of this court is replete with pronouncements that give us guidance in making these determinations. I cannot better state that which has already been said. In deference to the eloquence of these pronouncements, I humbly quote them:

“In reviewing this case, we bear in mind that in a criminal case the police are considered part of the prosecution team. Thus, when there is a motion to suppress because of alleged police coercion or racial intimidation, the trial judge must maintain a conscious awareness that the testimony of police is not to be viewed in isolation as if they have no interest in the outcome of the case. Rather, the testimony must be examined by the trial judge with the same scrupulous eye that one would expect the trial judge to use to assay the testimony of a party to the lawsuit.
Also, the trial judge must keep in mind that ours is an adversary criminal justice system, and there must not be any naivete that it is otherwise. The stark realities of our adversary criminal justice system are such that what occurs within the confines of a police station during custodial interrogation when there is no attorney present is not always what the unsophisticated would expect. ***
* * *
*** [T]rial judges must be most circumspect when it appears that a right guaranteed to every citizen by our constitution may have been violated by police brutality or racial discrimination, for those affected are invariably the poorest, the weakest and the least educated, who are not sophisticated enough or do not have the resources to see and ensure that they are not denied the protections afforded by the rights and guarantees of our constitution.” People v. Banks (1989), 192 Ill. App. 3d 986, 991-93, 549 N.E.2d 766.

The appellate court has further explicated the coercion inherent in police interrogations:

“Whenever the police choose to conduct ‘non-custodial interrogations’ at the police station, there is a substantial risk that a court subsequently will disagree that the circumstances were noncustodial. [Citations.] This risk arises because police stations are typically the location of custodial interrogations, thereby giving credibility to a suspect’s claim that he believed himself to be in custody despite police testimony about how they treated the suspect. The interrogating officers ought to know that if the suspect makes incriminating statements and is later arrested, a motion to suppress those statements assuredly will be filed, and the defendant, as in the present case, is almost certain to testify that he believed he was in custody at the time he made those statements. *** By choosing the police station as the location for their allegedly ‘non-custodial interrogations,’ police officers give defendants, who later claim they believed they were in custody, the greatest possible advantage to support that claim. As in this case, the setting of the interrogation will be subject to very close scrutiny to see what support it lends to defendant’s claim of custody. ***
Perhaps the best means of demonstrating the risk of finding coercion whenever a suspect is interrogated at a police station is to ask whether the same arguments made by the suspect (T was taken to a small room, the door was closed, I was told to wait, other armed officers were present, et cetera’) would sound nearly as credible or persuasive if the interrogation had occurred instead at the local Burger King restaurant, a nearby park, the suspect’s own residence, or in any location of the suspect’s choosing. We think not, and the case law in point supports that conclusion.” (Emphasis in original.) People v. Gorman (1991), 207 Ill. App. 3d 461, 470-71, 565 N.E.2d 1349.

Cumulatively, the facts and circumstances of this case cry out for a finding that defendant was under arrest before Cole gave the statements incriminating him. In view of defendant’s age, his prior lack of experience with the police, the fact that he and codefendant were told not to speak to each other while being transported to the police station, the fact that they were separated and isolated at the police station, the fact that the police never told defendant that he was free to leave, and relatives who were at the station did not meet with him, demonstrate that defendant was under arrest. There is no plausible explanation to the contrary. Why would defendant and codefendant be instructed not to talk to each other while being transported to the police station? Why separate them? Are cooperating, public-spirited citizens treated this way? By what authority do police officers order cooperating, public-spirited citizens not to speak to each other? By what authority do police officers remove a minor from his home without parental consent? By what authority did the police officers isolate defendant and Cole from each other and their relatives? The authority is the right and the power to arrest. If defendant is under arrest, police officers are not required to obtain parental consent to transport him to the police station. While in the custody of the police after an arrest, defendant is subject to police regulation as to his contact with others. See generally People v. Prim (1972), 53 Ill. 2d 62, 69, 289 N.E.2d 601.

A reasonable, innocent person in defendant’s position would not have considered himself free to leave. I would find that the trial court’s finding that defendant was not arrested until Cole implicated him was manifestly erroneous and that the police arrested defendant without probable cause. See People v. Townes (1982), 91 Ill. 2d 32, 37-38, 435 N.E.2d 103; Ealy, 146 Ill. App. 3d at 564-66.

The majority finds that defendant’s confession was admissible even if the arrest were illegal because the confession was sufficiently attenuated from the arrest. Here, too, I disagree. The majority opinion finds that police obtained Cole’s name from defendant prior to defendant’s arrest, and Cole’s statements to the police then produced defendant’s confession. The majority opinion concludes that Cole’s statements constitute an intervening circumstance which attenuated the taint of the illegal arrest. There is conflicting testimony as to whether defendant gave the police Cole’s name while en route to the police station or while at the police station.

For the reasons stated heretofore, the facts of this case demonstrate that defendant was under arrest at the police station prior to Cole’s statements. Defendant did not give police Cole’s name before this arrest. Cole’s name and any evidence police obtained therefrom are fruits of the unconstitutional arrest of defendant.

Moreover, even if defendant gave police Cole’s name before he arrived at the station, as the police testified, the police car provided a setting effectively as coercive as a police station for questioning this 17 year old. Police did not tell defendant he had the right not to go to the police station, and Officer Switski admitted he would have tried to talk defendant out of leaving. All the reasons cited by the court in Gorman for finding interrogations at police stations custodial apply with equal force to interrogations in police cars. Competent defense counsel could have argued that defendant was under arrest when police put him in the police car to take him to the station. If he was under arrest at that point, police obtained Cole’s name from defendant as a consequence of this unconstitutional arrest. Cole’s statements cannot provide attenuation between the unconstitutional arrest and defendant’s confession because under either account, Cole’s name and Cole’s statements are at least arguably the product of the unconstitutional arrest.

For an intervening circumstance to supply attenuation between an illegal arrest and a confession, the intervening circumstance must be free from the taint of the illegal arrest. White, 117 Ill. 2d at 224; Gabbard, 78 Ill. 2d at 100; Thomas, 186 Ill. App. 3d at 794.

“If an accused establishes the ‘primary illegality’ and shows a connection between the illegality and what are alleged to be fruits of the illegality, the prosecution will have the burden of establishing by clear and convincing evidence that the challenged evidence has come from an independent source.” People v. Wilson (1975), 60 Ill. 2d 235, 238, 326 N.E.2d 378.

Officer Vucko testified that he first learned of Cole’s involvement from defendant. The officers admitted that they did not find out about Cole from another source independent of defendant’s statement. Defendant established the illegality of his arrest, and he has shown that he gave police Cole’s name, which led police to question Cole and obtain statements implicating defendant, and police confrontation of defendant with Cole’s statements led to defendant’s confession. Defendant has shown a connection between the illegal arrest and the confession; the State has not shown that Cole’s statements and defendant’s confession came from an independent source. Under Wilson, Gabbard and White, since Cole’s statements are not free from the taint of defendant’s illegal arrest, those statements cannot be an intervening circumstance attenuating the connection between the illegal arrest and defendant’s confession.

In People v. Althide (1979), 71 Ill. App. 3d 963, 389 N.E.2d 240, police improperly induced the defendant to make statements in which defendant gave the police the names of four persons whom the State later called as witnesses against the defendant. The appellate court reversed defendant’s conviction and remanded the case for a determination of whether the police obtained the testimony of those witnesses from a source independent of defendant’s statement. The court held that if police obtained the names of the witnesses only from defendant’s statement, the evidence obtained from those witnesses was fruit of the poisonous tree of the improperly induced statements. Similarly, Cole’s statements here are fruit of the poisonous tree of defendant’s arrest, unless the State can show a source independent of that arrest for Cole’s statements. The record does not reflect any evidence of such an independent source.

As Cole’s statements are fruit of the poisonous tree, all evidence obtained by use of those statements, including defendant’s confession, remains fruit of the poisonous tree. In People v. Williams (1990), 138 Ill. 2d 377, 563 N.E.2d 385, police took the defendant to the police station for questioning, and he said he had been with Davis and Erving when the victim was murdered. Erving implicated Davis and Davis implicated defendant. Police then confronted the defendant with Davis’ statement and defendant confessed. Our supreme court held:

“As one basis for finding that defendant’s confession was attenuated from the taint of his unlawful arrest, the State contends that, even though Erving’s name first came to police attention because of statements by defendant, and even though Davis was implicated by both Erving and defendant, the police would eventually have discovered Erving and Davis independently in any investigation of defendant, since they were known associates of his. The State cites United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054 ***.***
The flaw in the State’s Ceccolini analysis is that Ceccolini dealt with jurisprudential policy reasons for permitting live testimony at trial by a willing witness, not with whether the witness’ supposed willingness or the inevitability of the witness’ discovery can constitute an intervening circumstance as far as admissibility of the defendant’s own confession is concerned. Ceccolini drew specific attention to this distinction. (Ceccolini, 435 U.S. at 277-79, 55 L. Ed. 2d at 277-78, 98 S. Ct. at 1061.) *** Ceccolini is inadequate to support an attenuation argument as to defendant’s confession itself.” Williams, 138 Ill. 2d at 397-98.

On defendant’s account of when he gave police Cole’s name, Cole’s confession cannot be an attenuating circumstance because it is a product of defendant’s illegal arrest. Even on the police account, defense counsel could present strong argument that defendant was under arrest before he gave them Cole’s name. In light of the conflict in the evidence which the trial court left unresolved, I would find that there is a reasonable probability that defendant could have obtained a reversal of his convictions if appellate counsel on direct appeal had challenged the ruling on the motion to suppress because the trial court erred in finding that defendant was not arrested until Cole made his statement.

It was the worst of times.

I would reverse the decision denying defendant’s petition for post-conviction relief. Defendant’s conviction should be reversed and the case remanded for a new trial.

      Although Detective Switski’s account is substantially similar to Detective Vucko’s, defendant’s version differs. He contends that while still high from smoking marijuana the night before, he was taken from his home via a police squad car to Area 4 headquarters, where he was placed in a room and handcuffed to the wall. Fifteen minutes later, he had a “conversation” with Detectives Vucko and Switski, at which time he told them about Richie Cole; they then took him to find Cole.

      Section 5 — 5—3.2(b)(2) provides as follows:
      “(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender [who was at least 17 years old on the date the crime was committed]:
      ***
      (2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” 111. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(b)(2).
      Section 5 — 8—2(a)(1) provides as follows:
      “(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
      (1) for first degree murder, a term shall be not less than 60 years and not more than 100 years.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2(a)(1).”

      Seetion 5 — 8—l(a)(l)(b) provides as follows:
      “(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
      (1) for first degree murder, *** (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-l(a)(l)(b).


source: Caselaw Access Project

author: PRESIDING JUSTICE McCORMICK JUSTICE DiVITO,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL RUSH, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—1194
    Opinion filed July 27, 1993.
    DiVITO, J., dissenting.
    Law Offices of Patrick A. Tuite, Ltd., of Chicago (Patrick A. Tuite and Brent D. Stratton, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Ann L. Benedek, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendant challenges his conviction and sentence for aggravated criminal sexual assault. We reverse and remand because the trial court made improper and prejudicial comments on the credibility of the complainant, a minor.

On September 9, 1989, Michael Rush hosted a party for the baseball team he coached. Team members ranged in age from 9 to 11 years old. Two members of the team, complainant and another minor, slept over at defendant’s home after the party with their parents’ permission. Before they went to sleep, defendant gave complainant a bath.

On October 5, 1989, complainant told his mother about the bath and she contacted police. Based on police discussions with complainant, the State charged defendant with aggravated criminal sexual assault and aggravated criminal sexual abuse. After the State rested its case in chief at trial, defendant moved for directed verdicts on both counts. The trial court dismissed the aggravated criminal sexual abuse count due to a defect in the indictment. Thus, the jury decided only the aggravated criminal sexual assault count.

To prove that charge, the State needed to prove that defendant committed an act of sexual penetration upon complainant, when defendant was over 17 years old and complainant was under 13 years old. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) Complainant was 9 and defendant was 34 at the time of the party. The only issue contested at trial was whether defendant committed an act of sexual penetration upon complainant. The statute defines sexual penetration as “any intrusion, however slight, of any part of the body of one person *** into the sex organ or anus of another person.” Ill. Rev. Stat. 1989, ch. 38, par. 12-12(f).

Complainant testified that after the party defendant watched movies with him and the other boy. Defendant rubbed complainant’s back “down to [his] tailbone,” pulling complainant’s pants halfway down. Defendant told complainant to take a bath, and complainant answered that he took one before coming over. Defendant told him to take another. Defendant accompanied complainant into the bathroom, told him to take off his clothes, and washed him. Defendant rubbed complainant’s penis for 10 seconds, then “stuck his finger in [complainant’s] butt” and wiggled it for five seconds. Defendant told complainant to dry off and get ready for bed.

Complainant and the other boy slept in defendant’s bed, with defendant between them. Defendant again rubbed complainant’s back down to the tailbone. Defendant gave the other boy a bath in the morning, and after that boy went home, complainant went to breakfast with defendant. Defendant said to complainant, “don’t tell anyone” about the bath.

On cross-examination, complainant admitted that defendant remained fully clothed while giving him the bath and he did not talk dirty to him or kiss him. The morning after the party complainant called home and asked his mother for permission to stay with defendant through breakfast. Although he experienced pain for the day after the party, complainant did not miss school or any of his daily ballet classes following the incident.

On redirect the State asked, “Now you said that defendant put his finger inside of you and wiggled it?” Complainant answered, “Yes.” This was the first time anyone had asked whether defendant’s finger was inside complainant. Complainant had said on direct only that the finger was “in his butt”; no one had sought clarification of whether this meant between his buttocks or in his anus.

The State continued:

“Is there any mistake in your mind? Could that have been mistake — excuse me. Are you mistaken about that or are you sure that’s what happened?”

Complainant hesitated somewhat and looked around the courtroom. He said:

“Um. Um. I’m not sure — .”

The prosecutor cut him off with the start of another question, and defense counsel objected to the interruption. The trial court asked complainant if he had understood the prosecutor’s question. Complainant said “Ya.” The prosecutor suggested that complainant had not understood the question, defense counsel objected, and the trial court again asked complainant if he had understood the prosecutor’s question. This time complainant answered “no.”

The trial court then asked complainant, “Are you sure that this gentleman here put his finger in your rectum?” This was the first use of the word “rectum” in complainant’s examination. The prosecutor immediately interjected that she did not know whether complainant knew what “rectum” meant. The trial court changed the word to “butt” and asked, “Are you sure he did that?”

Complainant again hesitated, and before he answered, the prosecutor interjected, “Did you feel it inside of you?” Defense counsel again objected to the interruption, and before the witness answered the trial court posed yet another question:

“Are you sure he put his finger in your butt?
THE WITNESS: Yes.
THE COURT: Any doubt in your mind he did that?
THE WITNESS: No.
THE COURT: Very important that you tell the truth now.
THE WITNESS: Yes.
THE COURT: I know you were telling the truth. Are you sure he put his finger in your butt?
THE WITNESS: Yes.”

The prosecution resumed redirect examination. Following recross-examination, defense counsel moved for a mistrial based on the trial court’s statement that the witness told the truth. The trial court denied the motion.

Following the next witness’ testimony and after a lunch break, the State asked the trial court to remind the jury that nothing the court said about credibility should influence the verdict. Defense counsel objected on grounds that the requested remark would highlight the improper comment about complainant’s testimony. The trial court told the jury:

“I’m not the one who is going to decide whether a witness is credible or not. It is up to you people. So, if there was any misinterpretation or any idea of any of the jurors I may have been leaning one way or another with a certain witness I would like you to take that out of your mind.”

The trial court’s comments to a similar purpose continued for four paragraphs.

The assistant State’s Attorney then read to the jury a statement defendant signed in which defendant admitted that he washed complainant before bed on the night of the party, he slept in his bed with complainant and the other boy, and he washed the other boy the next morning. He did not admit to any sexual penetration.

The boy who was with complainant and defendant that night testified that when defendant washed him defendant rubbed his penis for about five seconds. He did not say that defendant touched his anus. Defendant did not touch him during the night.

Complainant’s mother testified that she took complainant to the hospital for an examination on October 17, almost two weeks after complainant told her about the incident and 38 days after it occurred.

Dr. Joel Feinstein testified that he examined complainant on October 17. He noticed some bulging and bluish discoloration around complainant’s anus. The anus did not contract symmetrically. He admitted that even if there has been penetration into the anus, there may be normal findings, but in this case he found the anal area “definitely abnormal and consistent with sexual trauma.” He testified, “[W]hat I see are findings of internal trauma which would be due to penetration, forceful penetration into that area.” The trauma could have been the result of the insertion of an adult finger. He admitted that some of the marks he found could have been caused by recent trauma, but they also could have been the result of a trauma which occurred more than a month before the examination. He agreed that in most cases 38 days after penetration there would be no abnormality, “so if you have findings then that’s more significant.” He said that it is difficult to determine the date of injuries to the anal area, and he did not determine how long before the examination the injuries occurred.

Dr. Robert Fay testified for the defense that the findings Dr. Feinstein reported were probably caused by a recent injury, within 7 to 10 days of the examination. This would mean that the injuries occurred after complainant told his mother of the incident with defendant. Dr. Fay believed that the bluish areas were probably caused by “fingernail scratching *** or even poor wiping.” The asymmetrical contraction indicated “a major tear in the anal muscles,” which “absolutely” could not be the result of a five-second digital penetration.

The jury found defendant guilty of aggravated criminal sexual assault and the court sentenced defendant to 20 years’ imprisonment.

Defendant contends that the State did not present sufficient evidence to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault. For sex offense convictions:

“[t]he test to be employed 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.” ’ ” (Emphasis in original.) People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Defendant at trial contended only that he never put his finger in complainant’s anus. Complainant testified that defendant put his finger in his “butt”; on redirect he clarified that defendant’s finger was inside him. With the trial court’s prompting, complainant said that he had no doubt that defendant put his finger in his butt. Defendant contends that the conviction cannot stand because complainant said he was not sure in response to some questions concerning whether defendant inserted his finger.

In People v. Hutson (1987), 153 Ill. App. 3d 1073, 506 N.E.2d 779, the victim, a minor, testified that defendant put his finger in her vagina, but on cross-examination, she said she was not sure if his finger went inside her. On redirect she said it felt like he put his finger inside her. (Hutson, 153 Ill. App. 3d at 1074.) The appellate court upheld the conviction, although it was based solely on the child’s testimony, holding that “any shortcoming[ ] in the victim’s testimony does not destroy the victim’s credibility but merely goes to the weight to be afforded the testimony by the trier of fact.” (Hutson, 153 Ill. App. 3d at 1076.) Similarly, complainant’s hesitations and expressions of uncertainty here affect only the credibility of his testimony, and as such they were matters for the jury to weigh. (See also People v. Tannahill (1987), 152 Ill. App. 3d 882, 885, 504 N.E.2d 1283.) The expression of uncertainty does not alone provide grounds for reversal.

Complainant’s testimony was substantially corroborated by Dr. Feinstein, who testified that complainant’s anal area was “definitely abnormal” and that the abnormality showed “internal trauma which would be due to *** forceful penetration,” possibly by an adult finger. The jury did not need to accept Dr. Fay’s opinion that the trauma that caused the abnormal findings occurred no more than 10 days before the examination, and the findings could not be the result of a five-second digital penetration which happened 38 days before the exam. While Dr. Feinstein could not put any limits on the possible date on which the trauma occurred, his testimony together with complainant’s appears to be a sufficient basis for the jury to find defendant guilty beyond a reasonable doubt of an act of sexual penetration.

The State argues that the testimony of the boy who stayed with defendant and complainant on the night of the party supported the jury’s finding by showing defendant’s modus operandi. That boy did not say that defendant put his finger in his butt or committed any act of sexual penetration. Insofar as the testimony showed modus operandi, it showed that defendant did not put his finger in the anuses of boys with whom he had contact similar to the contact he had with complainant. Thus, that testimony supports defendant’s argument, not the State’s argument, on the sole issue contested at trial. Similarly, defendant’s statement to the police fails to corroborate defendant’s testimony on the sole contested issue. However, the testimony of the other boy and defendant’s statement do not render complainant’s testimony so improbable as to leave a reasonable doubt of defendant’s guilt. Although the evidence was closely balanced and the case turned on the credibility of complainant’s testimony, replete with expressions of uncertainty, since the jury apparently chose to believe complainant, it had adequate grounds for finding defendant guilty beyond a reasonable doubt.

Defendant contends that the trial court prejudicially invaded the province of the jury by stating to complainant, in the presence of the jury, “I know you were telling the truth.” The appellate court recently restated the principles applicable to review of trial court comments:

“[T]he trial judge himself must *** not make any comments or insinuations indicative of an opinion on the credibility of a witness. [Citation.]
One of the reasons behind the rule that the trial judge must exercise a high degree of care to avoid influencing the jury in any way [citation] is based on the belief that the trial judge has immense influence over the jury. [Citation.] Another very fundamental reason is that every defendant is entitled to a trial that is free from improper and prejudicial comments on the part of the trial judge. *** For the comments or questioning by a trial judge to constitute reversible error, the defendant must demonstrate that they were a material factor in the conviction or that prejudice appears to have been the probable result.” People v. Brown (1990), 200 Ill. App. 3d 566, 576-77, 558 N.E.2d 309.

These principles apply even when the witness is a minor. (See People v. Bradley (1984), 128 Ill. App. 3d 372, 378, 470 N.E.2d 1121.) Although Illinois courts have not confronted trial court behavior possibly intended to calm a frightened testifying child, courts in other States have held that in these cases, as in any other criminal case, the trial judge must not, either by her words or acts, give the jury the impression that the judge finds the child’s testimony credible. (See State v. Suttles (Tenn. 1989), 767 S.W.2d 403; State v. Zamorsky (1978), 159 N.J. Super. 273, 387 A.2d 1227.) We agree. The defendant has a right to a trial free from a judge’s comments bolstering the credibility of the State’s witnesses even where the judge might have intended his acts only to relax a frightened minor witness.

The State does not argue that the trial court’s comment was proper. Instead the State contends that the remark could not have prejudiced the jury against defendant.

In People v. Crane (1976), 34 Ill. App. 3d 850, 341 N.E.2d 97, the State’s key witness in a burglary case was the defendant’s accomplice. On cross-examination the witness admitted that the State agreed to recommend probation for him in exchange for his guilty plea and his testimony against defendant, and he agreed to testify to escape incarceration. The trial court then asked the witness:

“[Y]ou understand the penalties of perjury, do you not?
A. Yes.
Q. And the answers which you have given to all questions put to you have been true and correct to the best of your knowledge?
A. Yes.
Q. Notwithstanding the reasons for the questions or the answers or the reasons for your giving this testimony, what you have said is absolutely true and correct?
A. Yes.” Crane, 34 Ill. App. 3d at 853-54.

The appellate court held that the questions served to rehabilitate the witness “and lend the exalted weight of the court” to his credibility. (Crane, 34 Ill. App. 3d at 854.) We find that the questioning by the trial court in this case, together with the comment that it knew the victim was telling the truth, improperly lent the exalted weight of the trial court to the victim’s testimony.

The State contends that the trial court in this case cured any error with its later comment that it did not intend to express any opinion on credibility, and the jury was to evaluate the credibility of the witnesses. In People v. Black (1970), 130 Ill. App. 2d 996, 266 N.E.2d 458, aff’d (1972), 52 Ill. 2d 544, 288 N.E.2d 376, the trial court recognized that it had made an improper remark and immediately admonished the jury to ignore it. The appellate court affirmed the conviction, finding that the immediate retraction partially cured the effect of the improper comment, and the error was not prejudicial because the evidence of guilt was overwhelming.

Here, the trial court did not immediately admonish the jury to disregard the remark. The trial court did not recognize its error until defense counsel pointed it out in chambers, when counsel could comment without calling undue attention to the trial court’s apparent assessment of credibility in the jury’s presence. The trial court attempted to cure the prejudice from the improper remark after the child and the following witness finished testifying, and after lunch. By that time the jurors had already made their preliminary evaluations of the witnesses’ credibility, after absorbing the trial court’s remarks. The appellate court has taken judicial notice that an instruction to disregard an improper remark “tends to bring the improper remark even more sharply to the attention of the jury.” (People v. Arnold (1973), 12 Ill. App. 3d 826, 831, 299 N.E.2d 446.) For just that reason defense counsel here asked the trial court not to admonish the jury. The trial court’s lengthy admonishment highlighted the improper remark and focused the jury’s attention on the trial court’s opinion of the credibility of the witness. The belated admonishment here, unlike the admonishment in Black, may well have increased the prejudicial effect of the improper remark.

This case is also unlike Black in the balance of the evidence. The evidence here is closely balanced, turning on the credibility of a single witness, and the uncertainty of that testimony led to the exchange in which the court made its improper remark. Courts are more likely to find prejudicial effect of errors in cases where the evidence is closely balanced. See People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255.

In Crane the trial court instructed the jury to view the testimony of the accomplice with suspicion, but the appellate court found that the instruction could not offset the prejudicial effect of the questioning, and therefore it reversed the convictions and remanded for retrial. Crane, 34 Ill. App. 3d at 855; see also People v. Rogers (Colo. App. 1990), 800 P.2d 1327, 1329.

In light of the closely balanced evidence here, where the case hinges on the credibility of the uncertain testimony of a child, we cannot say that the trial court’s admonition completely cured the prejudicial effect of the comment and questioning. Defendant here, like the defendant in Crane, has sufficiently demonstrated that prejudice to the defendant was the probable result of the trial court’s comments. Because of the improper comment lending the authority of the court to support the credibility of the State’s key witness, we must reverse the conviction and remand for retrial.

Reversed and remanded.

HARTMAN, J., concurs.

JUSTICE DiVITO,

dissenting:

I respectfully dissent from the majority’s conclusion that this conviction must be reversed and the case retried. I do so because the majority, though stating the proper standard of review, fails to apply it correctly, thus erroneously concluding that the trial judge’s comment constituted such prejudicial error that his corrective efforts were ineffective.

By dissenting, I in no way condone the trial judge’s comment; that it was improper is conceded by everyone. Indeed, the principle that a judge should not vouch for the credibility of a witness in the presence of the jury is well established and needs no vindication here.

The majority provides the proper standard for our review of this issue:

“In reviewing the trial judge’s alleged errors, this court must determine whether reversible error occurred. For the comments or questioning by a trial judge to constitute reversible error, the defendant must demonstrate that they were a material factor in the conviction or that prejudice appears to have been the probable result.” (People v. Brown (1990), 200 Ill. App. 3d 566, 577, 588 N.E.2d 309.)

But, having provided the proper standard, without analysis and relying solely upon People v. Crane (1976), 34 Ill. App. 3d 850, 341 N.E.2d 97, the majority draws the conclusion that the trial judge’s conduct “improperly lent the exalted weight of the trial court to the victim’s testimony.” 250 Ill. App. 3d at 537.

The majority’s reliance upon Crane is misplaced. In that case, the appellate court made clear that the facts it dealt with presented no “alleviating factors.” There, the trial court put to the principal witness, an accomplice, leading questions designed to establish the witness’ knowledge of the penalties for perjury; that his answers were “true and correct”; and that notwithstanding his motivation to testify, what he said was “absolutely true and correct.” This questioning, unlike the situation here, came “at the end of lengthy and possibly effective impeachment by defense counsel, served to rehabilitate [the witness] and lend the exalted weight of the court to [the witness’] credibility.” (Crane, 34 Ill. App. 3d at 854-55.) In that case, except for the pattern instruction concerning accomplice testimony at the end of the trial, there was no curative instruction given by the trial court.

In contrast, here “alleviating factors” are plentiful. The trial judge’s comment was made during a proper attempt to clarify complainant’s testimony and there is no indication that the comment was intended to rehabilitate the witness or lend the “exalted weight” of the court to his credibility. Rather, the circumstances of the trial justified the judge’s intervention. The complaining witness was a young child who hesitated, apparently was unfamiliar with certain words referring to parts of the anatomy, and was testifying while being interrupted by the prosecutor and by defense objections. We have held that a trial court should intervene in the questioning of a witness if justice requires that a fact be better developed or a line of inquiry more thoroughly pursued. People v. Puhl (1991), 211 Ill. App. 3d 457, 471, 570 N.E.2d 447 (holding that it was “not only proper but necessary” for the trial court to interrupt the State’s questioning of a minor complainant in order to clarify his version of the alleged sexual assault); see also People v. Hicks (1989), 183 Ill. App. 3d 636, 646, 539 N.E.2d 756.

In Cupp v. Naughten (1973), 414 U.S. 141, 142, 38 L. Ed. 2d 368, 371, 94 S. Ct. 396, 398, in a case where the defendant neither testified nor offered any witnesses, the trial judge’s charge to the jury included this instruction: “Every witness is presumed to speak the truth.” Pursuant to due process analysis under the fourteenth amendment, the United States Supreme Court reversed the court of appeals’ reversal of the defendant’s conviction, because the jury was properly instructed on the burden of proof, the presumption of innocence, and the appropriate standards for judging witness credibility. Similarly, in this case the trial judge gave all the instructions deemed to have an ameliorating effect in Naughten. Moreover, here the trial judge’s misstatement not only did not carry the weight of a final instruction, he specifically instructed the jury to disregard it.

Also, despite the majority’s statement to the contrary, the evidence against defendant in this case was not closely balanced. Complainant’s testimony was substantially corroborated by defendant’s own statement to the police, in which he admitted that complainant and the other boy spent the night at his house following a party for their baseball team. In that statement, he admitted that he gave complainant a bath that night and the other boy a bath the next morning, and that both boys slept in the bed with him and wore shorts while he wore underwear. Although in his statement he did not admit placing his finger in complainant’s anus, that aspect of complainant’s testimony was corroborated by Dr. Feinstein’s findings, and by the fact that, although contested, complainant’s testimony was not rebutted and remained constant through defense counsel’s cross- and re-cross-examinations. See People v. Walton (1969), 118 Ill. App. 2d 324, 332, 254 N.E.2d 190 (holding that because defense counsel had adequate opportunity to cross-examine the witness, and could not challenge or impeach the witness concerning the very area in dispute, the defendant was not prejudiced by the trial court’s erroneous remarks).

Furthermore, the majority’s statement that the “trial court did not immediately admonish the jury to disregard the remark” (250 Ill. App. 3d at 537) is disingenuous. Despite the majority’s criticism that the limiting instruction was not given until after the lunch break, defendant did not make a contemporaneous objection to the trial judge’s remark. Instead, defense counsel moved for a mistrial only after he completed his re-cross-examination of complainant and after complainant had been excused as a witness. Thus, defendant’s own actions, constituting waiver in most instances, denied the trial judge an opportunity to remedy the situation at an earlier time. Under the circumstances, the trial judge acted promptly and effectively.

Finally, the trial judge’s limiting instruction sufficiently negated any prejudice defendant may have suffered. Our supreme court has recently reiterated that limiting instructions are effective in reducing the prejudicial effect of a court’s improper comments. (People v. Peeples (1993), 155 Ill. 2d 422, 467-68.) In Peeples, before the entire venire the trial court expressed its agreement with a prospective juror’s opinion that the rules of evidence should be relaxed because they “tied” the hands of the prosecution. On appeal, the supreme court held that the trial court improperly allowed the venire to hear the remarks, but found the error to be harmless because, in its written instructions to the jury, the court said that it did not intend to indicate an opinion as to the evidence or what the verdict should be. Peeples, 155 Ill. 2d at 467-68.

In the instant case, the trial judge emphatically instructed the jury that he had formed no opinion as to the outcome of the case and that the jury was required to draw its own conclusions. The majority provides only a small portion of the trial judge’s limiting instruction. An examination of the entire statement reveals that the judge acted carefully to cure the misstatement without highlighting it:

“[THE COURT]: Ladies and gentlemen, before we begin again it was brought to my attention that possibly during part of this trial I may have made a statement or said something which could have been construed the wrong way by the jury, if they even heard it.
I don’t plan on repeating what I said. But, remember that I told you at the beginning of the trial that you will decide the credibility of the witnesses. Not me. And, if a statement was made as to possibly credibility of a witness it was not even to be. [sic] My opinion as to whether or not that witness was credible or not. As I told you before we started the trial I’m not the one who is going to decide whether the witness is credible or not. It is up to you people. So, if there was any misinterpretation or any idea of any of the jurors I may have been leaning one way or anothér with a certain witness I would like you to take that out of your mind. Because I’m — I know I have not made up my mind in this case.
I have not made up my mind in this case. I have not listened to case [sic] — It is not for me to make up my mind. It is not my job. I’m not going to make the decision in this case, you are. So, as far as anything about credibility of the witnesses that by my statement may have been said to [sic] by me I want you to disregard that. Because it was not said in that vain [sic].
Like I said you may not have even heard what I said when I made the statement. Just remember the rules that I told you before. I will rule on the law. You will rule on the facts and evidence. And, you will decide the credibility of every witness, not me. Do you all understand that?
[ALL JURORS]: Yes.”

Thus, the jury was fully informed of its responsibility to determine the credibility of the witnesses, that the trial judge did not have that responsibility, and that it was not to be influenced by the trial judge’s earlier remark. By their response in unison to the trial judge’s specific question, the jurors stated that they understood his instructions. There is thus no basis for concluding, as the majority does, that “prejudice to the defendant was the probable result of the trial court’s comments.” (250 Ill. App. 3d at 538.) Likewise, there is no basis for the majority’s conclusional statements that “[t]he trial court’s lengthy admonishment highlighted the improper remark and focused the jury’s attention on the trial court’s opinion of the credibility of the witness” (250 Ill. App. 3d at 538), or that the “belated admonishment” in this case “may well have increased the prejudicial effect of the improper remark” (250 Ill. App. 3d at 538). Those statements by the majority are inconsistent with the long-established principle, found in Peeples and in countless other cases, that limiting instructions have curative value.

Moreover, in addition to the trial judge’s curative instruction soon after the event, the jury received the following instruction as part of Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981):

“Neither by these instructions nor by any ruling or remark which I have made do I mean to indicate any opinion as to the facts or as to what your verdict should be.”

Because “[f]aith in the ability of a properly instructed jury to separate issues and reach a correct result is the cornerstone of the jury system” (People v. Illgen (1991), 145 Ill. 2d 353, 376, 583 N.E.2d 515), there is simply no basis for concluding here, in conformance with the appropriate standard of review, that defendant has demonstrated that the trial judge’s improper comment either was a material factor in his conviction or that prejudice was the probable result. On the contrary, this record indicates that the trial judge adequately admonished the jury and that his earlier remark served no role in the ultimate verdict.

This conviction should be affirmed.

      here is no basis for the majority’s assertions that complainant’s testimony was “replete with expressions of uncertainty” (250 Ill. App. 3d at 536) and that it was “uncertain” (250 Ill. App. 3d at 538). On the contrary, except for the confusion evidenced by the quoted portions of his testimony, complainant displayed no uncertainty about any of the matters about which he testified, including the fact of penetration.

      In its effort to distinguish this case from the holding in People v. Black (1970), 130 Ill. App. 2d 996, 266 N.E.2d 468, the majority says that there, “the immediate retraction partially cured the effect of the improper comment, and the error was not prejudicial because the evidence of guilt was overwhelming.” (250 Ill. App. 3d at 537.) A reading of Black, however, reveals that the majority places undue emphasis on the “immediacy” of the trial court’s retraction, and that the overwhelming nature of the evidence, though alluded to earlier in the opinion concerning a different issue, was not related to the holding concerning the court’s improper comment.

      The majority’s gratuitous statement, “[b]y that time the jurors had already made their preliminary evaluations of the witnesses’ credibility, after absorbing the trial court’s remarks” (250 Ill. App. 3d at 537) has absolutely no record support and is inconsistent with the trial judge’s specific admonition, before the beginning of trial, that the jury was to keep an open mind and refrain from making a decision until the close of the evidence.

      The majority says “defense counsel pointed [the error] out in chambers, when counsel could comment without calling undue attention to the trial court’s apparent assessment of credibility in the jury’s presence.” (250 Ill. App. 3d at 537.) Of course, the need for a hearing outside the jury’s presence in no way implicates the well-established requirement of a contemporaneous objection to preserve error. A simple sidebar request after the trial judge made his statement would have resulted in a hearing outside the jury’s presence.
      If, however, by the above-quoted statement, the majority intends to explain and condone defendant’s delay in objecting, it must be rejected. Concern about “calling undue attention” to error is inconsistent with the contemporaneous objection rule. Arguably, every objection has the danger of calling undue attention to the error that is addressed; for that reason, there is no “undue attention” exception to the contemporaneous objection rule. In any event, how could it be said that there was danger of calling undue attention to error the majority deems to be fatal?