text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH M. BERGIN, Defendant-Appellant.
    Second District
    No. 2 — 90—0802
    Opinion filed March 30, 1992.

      Philip C. Parenti and Jeffrey J. LeVine, both of Philip C. Parenti, Ltd., of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A single parent of four young children was suddenly awakened in her bed at 4 a.m. on Sunday, September 3, 1989. Two men were in her dark bedroom, one standing right at her bedside. The closest man, whom the victim recognized as a 24-year-old next-door neighbor, covered her face with a pillow and allegedly said “[d]on’t talk or we’ll kill the kids.” Both men then left.

Following a jury trial in May 1990, defendant, Joseph M. Bergin, was convicted of unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3) and intimidation (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 6) for the above acts. The jury acquitted defendant on a charge of home invasion, and the trial court entered a directed verdict for defendant on a charge of residential burglary. Defendant was sentenced to concurrent terms of 30 months’ probation with six months’ periodic imprisonment, which was stayed pending this appeal. Defendant made a timely appeal and argues that the convictions should be reversed for four reasons: (1) because defendant’s motion to exclude certain photographs was improperly denied; (2) because three jury instructions tendered by defendant were improperly denied; (3) because the prosecutor made improper comments during closing argument; and (4) because defendant was not proven guilty beyond a reasonable doubt. We affirm.

TRIAL TESTIMONY

Fifteen witnesses testified, and stipulations from two police officers were entered into the record during the four-day trial. We will not dwell on facts ascertained at trial that are not in dispute. Defendant admits drinking with friends at various Elmhurst, Illinois, establishments on Saturday, September 2, 1989, from 9 p.m. until closing time at around 4 a.m. Defendant then returned to his parents’ home, where he lived, with his friend Harry Gordon, who was visiting from Minnesota for the weekend. Defendant admits entering the victim’s home, directly adjacent to his parents’ home, through a basement door, climbing two flights of stairs to reach the victim’s second-floor bedroom, standing at her bedside while Gordon was elsewhere in the room, placing a pillow over her face, asking her to roll over on her side, and then running out of the house with Gordon. In dispute is whether defendant threatened the victim when she awoke by telling her “Don’t talk or we’ll kill the kids,” which the victim alleges but defendant denies. Defendant’s theory of the case at trial and on appeal is that he was merely trying to extract his drunken friend, who had unknowingly entered the wrong home, from the victim’s home. Defendant and his family and the victim and her family have been next-door neighbors for over 10 years.

The victim testified that she awoke at 4 a.m. to find defendant standing by her bedside. She asked him twice what he was doing there to which he did not reply. She then screamed. Defendant moved closer to her, and she reached up and grabbed his arms. Defendant then placed a pillow on her face and threatened in a raspy voice “Don’t talk or we’ll kill the kids.” She found it hard to breathe with the pillow on her face and said “I can’t breathe.” Defendant repeated the previous threat, and the victim again complained about breathing, asking defendant to “[p]lease let me sit up.” Defendant told her to roll over onto her side, at which time she saw another man standing in the bedroom doorway. Throughout the ordeal, she noticed a “bar odor” about the defendant. Both men then ran out of her bedroom and out of her home, after which she immediately called the Elmhurst police department.

When the police arrived, the victim realized that she had a bloody scratch on her nose from the encounter with defendant. A photograph of her face, showing the scratch and which was taken at the time, was introduced into evidence. The police found the victim’s bed to be a mess and also found what was later identified as defendant’s black L.A. Raiders hat on the victim’s bed near the pillow area. The hat and photographs of the bed were introduced into evidence. Shortly after the police arrived, the victim identified the other intruder, Harry Gordon, whom the police had standing outside in her driveway. She did not recall that Gordon had ever been near her bed. On cross-examination, she testified that the incident had been very emotionally upsetting to her. In response to a question regarding her degree of alertness when she suddenly awoke that particular morning, she said that with four young children, she typically wakes up and responds quickly to their needs at night. The victim stated that she was not taken to the hospital for the scratch on her nose.

The prosecution called seven law enforcement witnesses. Officer Robert Wanderer of the Elmhurst police department testified that he was the first officer to arrive at the victim’s home, at approximately 4:20 a.m. He met the victim at the front door and noticed the scratch on the victim’s nose. He did not, however, take any skin or blood samples from defendant’s fingernails to verify the implication that defendant had inflicted the scratch. Officer Wanderer noticed that the basement screen door latch on the victim’s home had recently been broken. He found recent tracks in the victim’s backyard and footprints in defendant’s backyard; however, he did not request to see defendant’s shoe for a match. Wanderer found the black L.A. Raiders hat on the victim’s bed, which was later used by a police bloodhound for tracking purposes. He described the scene of the crime as being two suburban homes with side-by-side blacktop driveways, separated by a narrow grassy strip. The victim’s home is directly south of defendant’s parents’ home.

Officer Michael Lullo of the Elmhurst police department talked with the victim shortly after police responded to the call. The victim told Lullo that her 24-year-old neighbor, defendant, had been one of the two men in her bedroom and that he was the one who placed a pillow over her face. Lullo testified that he saw the other man, Harry Gordon, that morning at approximately 5:45 a.m. and opined that Gordon was not under the influence of alcohol at that time.

Officer Dennis Kazarian of the Elmhurst police department also responded to the call. He stated that the victim was very emotionally upset and that the victim had a cut on her nose. Kazarian stated that around 6 a.m. that morning he went to defendant’s home next door and found defendant and Gordon sleeping in the basement. He asked Gordon to step outside onto the victim’s driveway, at which time the victim identified Gordon as one of the two intruders in her bedroom.

Deputy Sheriff Dennis Guzlas of the Du Page County sheriff’s department testified that he arrived at 5:45 a.m. that morning with a bloodhound tracking dog. Guzlas stated that he had six years of experience as a dog handler and that the dog he had with him that morning had a 90% success rate. The dog traced a scent from the L.A. Raiders hat. Guzlas placed the dog at the rear kitchen door of the victim’s home, where the intruders had apparently departed. The dog travelled through a few backyards, around the block, and finished the search at the front door of defendant’s home. The prosecution introduced into evidence a copy of the map that Guzlas had made showing the path of the dog through the neighborhood.

Two stipulations were offered by the prosecution concerning tests performed on the L.A. Raiders hat. Elmhurst police officer Don Pasquerella stated that he packaged the hat and submitted it to the Du Page County crime laboratory, along with hair samples from defendant and Gordon that were taken pursuant to a court order. Alfred Lucas, a forensic chemist with the crime laboratory, stated that after testing he found that the hair in the hat was similar to hair samples submitted by defendant and not similar to those submitted by Gordon.

Sergeant Thomas Turek of the Elmhurst police department testified that he arrived 15 minutes after the call, at approximately 4:30 a.m. Turek talked with defendant at defendant’s home shortly thereafter, at which time defendant denied going onto the victim’s property hours earlier. The defendant told Turek that he and Gordon came home from a night of socializing with friends, parked in the driveway for approximately 10 minutes and then went to bed. Defendant did ask Turek “[d]id the guy steal anything?”

During the course of the prosecution’s case, the prosecutor introduced a variety of color photographs of the area around the two homes. The prosecutor also introduced a map of the area around the two homes, drawn by Officer Pasquerella, into evidence.

John Bergin, defendant’s older brother, testified that he and his girlfriend had been out socializing with defendant and Gordon that evening and early morning. He opined that Gordon appeared drunk. He stated that he was parked in the street in front of his parents’ home with his girlfriend when defendant and Gordon arrived and parked their cars in the driveway. While he did not recall what defendant or Gordon did upon their arrival, he did state that he and his girlfriend heard a scream from the victim’s home about five minutes after defendant and Gordon arrived home.

Bernard Eisner, defendant’s employer at the time, testified that he is president of Illinois School Services, where defendant was a salesman in training at the time. The two had a business meeting planned for Sunday, September 3, 1989. Eisner stated that defendant called sometime that day and cancelled the meeting because there had been a death in the family. The two did meet the following day, at which time defendant told Eisner what had actually happened. At that time, defendant told Eisner that his drunken friend had mistakenly entered the wrong home, that he tried to retrieve his friend and that they woke the victim up in the process.

Defendant’s case consisted of testimony from six individuals, plus his own testimony. Kurt Zackrison testified that he has known defendant and Harry Gordon since eighth grade. He stated that he was socializing with both friends for part of the evening on the night of September 2, 1989. He opined that while Gordon was intoxicated that evening, defendant was not.

Maria Guadalupe Carmona testified that defendant’s mother babysat her child from 1987 through 1989. She stated that she occasionally saw defendant playing with her child and the victim’s children.

Jeff Borla testified that he has known defendant and Gordon for 15 years and that he was socializing with the two and other friends on the evening of September 2, 1989. Borla opined that while Gordon was intoxicated on the evening in question, defendant was not.

Defendant presented three character witnesses who testified as to defendant's good reputation in the community. Two football coaches from the College of Du Page, where defendant had played for two years, and an assistant State’s Attorney for Cook County testified on defendant’s behalf.

Defendant was the last witness. He testified that after a night of socializing with friends, Harry Gordon followed him home, both parking their cars in the driveway at about 4 a.m. Defendant told Gordon to wait by a fence while he went behind the house to urinate. When defendant came back, Gordon was gone. Defendant stated that he then looked through a kitchen window in the victim’s home and saw Gordon inside. He found the back door to the victim’s home locked and no windows which were open. He entered the victim’s home through an open basement door, kicking some stacked cans as he walked in. Defendant ran up the stairs to the first floor, heard footsteps above him on the second floor, and ran up to the second floor in search of Gordon. He stated that he saw Gordon standing in the victim’s bedroom and that Gordon was snoring. He tried to grab Gordon to remove him, bumped the victim’s bed, and fell onto the victim’s bed while she was sleeping. The victim awoke and screamed. Defendant put a pillow over her face so that she would not be able to recognize him. She said that she could not breathe, so he removed the pillow and told her to roll onto her side. Defendant then grabbed Gordon and exited the victim’s home through the rear kitchen door. He stated that he was nervous about what had just happened and ran around the block, cut through a yard and jumped a fence to get back to his next-door house because he did not want the victim to see him. When he got to the back door of his house he grabbed Gordon, who was standing there, and went to the basement to sleep.

Defendant testified that he was then awakened at approximately 5:30 a.m. that morning by the police. He denied that he was involved in the incident when he spoke with police at that time. Later that morning, he received a telephone call from the Elmhurst police department and drove down to the station for further questioning at about 9:30 a.m., after which he was placed under arrest. When asked by Officers Lullo and Turek at the police station if he had entered the victim’s home earlier that morning, he shrugged his shoulders. Defendant denied saying “[djon’t talk or we’ll kill the kids” when he was in the victim’s bedroom. He stated that he knew the victim as a neighbor and occasionally played with her children. He also denied calling his employer, Bernard Eisner, that morning and saying that he would not be able to make their scheduled meeting because there had been a death in the family.

Defendant testified that Harry Gordon was a good friend of his and his family for many years and that Gordon had probably been in his home hundreds of times. Defendant stated that the second-floor attic in their home is where he and his brothers used to sleep. He opined that Gordon might have thought that the attic was where he was supposed to sleep, which could explain Gordon’s venturing up to the second floor of the victim’s house. Defendant’s present bedroom is in the basement of his parents’ home. Defendant stated that while the victim’s house has an exposed, outside basement stairway, his parent’s house does not.

PHOTOGRAPHS

At issue is whether reversible error arose when the trial court denied defendant’s motion to exclude a group of color photographs of the two houses that were first tendered to the defense on the last day of trial. Defendant claims that the State violated Supreme Court Rule 412 pertaining to discovery which provides in pertinent part:

“[T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(v) any *** photographs *** which the prosecuting attorney intends to use in the hearing or trial.” 134 Ill. 2d R. 412.

Defendant correctly notes that the photographs were an attempt by the State to rebut defendant’s assertion made during the trial that the houses would appear similar to a drunk at 4 a.m., as Gordon allegedly was, and that Gordon had merely confused the houses and mistakenly entered the victim’s. Defendant claims that the photographs surprised and prejudiced the defense and therefore their introduction was reversible error. We disagree.

We note that while defendant did object to the photographs, he did not seek a continuance so as to allow him time to study the photographs and refute any prejudicial inferences presented. In fact, the following colloquy took place between the trial judge and defense counsel immediately after the trial court denied defense counsel’s objection to the photographs:

“MR. PARENTI [defense counsel]: My motion to exclude the new evidence is denied?

THE COURT: Do you need some time before proceeding with your case here to look at those, and if you have any further preparation?

MR. PARENTI: I have reviewed them, your Honor.”

This court has previously stated that “[exclusion of evidence is a last resort, required only where a recess or a continuance would be ineffective. [Citation.] Generally the failure to seek a continuance waives a claim of error based upon a discovery violation.” (People v. Curtis (1986), 141 Ill. App. 3d 827, 833; see People v. Lucas (1986), 140 Ill. App. 3d 1, 12-13.) We conclude that defendant waived his claim of error by not requesting a continuance. Moreover, we agree with the State that defendant suffered no prejudice by the introduction of the photographs. We have examined the photographs at issue and conclude that they were consistent with other evidence of the scene of the crime and that the defense was not taken by surprise.

Within his argument section regarding the photographs, defendant also raised another discovery issue. Defendant alludes to an allegedly undisclosed statement of the defendant which was first elicited during redirect examination of Officer Lullo. To the extent that defendant has raised this issue for review in his brief, we conclude that defendant has waived appellate review of the alleged error by not including the claim in his written post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186-90; Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(c).

JURY INSTRUCTIONS

Defendant argues that the trial court erred by denying four of his tendered jury instructions: a non-Illinois Pattern Jury Instruction regarding a missing witness (Harry Gordon); an instruction on the affirmative defense of necessity (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.22 (2d ed. 1981) (hereinafter IPI Criminal 2d)); and two non-IPI instructions on unlawful restraint (based on IPI Criminal 2d Nos. 8.06 and 8.07).

We initially note the general rule that a defendant is entitled to instructions on those defenses which the evidence supports, even where the support is slight. (People v. Everette (1990), 141 Ill. 2d 147, 156.) The Supreme Court has stated that “[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988), 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887.) Our supreme court in Everette cautioned that while “ ‘very slight evidence upon a given theory of a case will justify the giving of an instruction,’ *** we must be wary so as not to permit a defendant to demand unlimited instructions based upon the merest factual reference or witness’ comment.”Ill. 2d at 157, quoting People v. Bratcher (1976), 63 Ill. 2d 534, 541.) Whether to give a non-IPI instruction to the jury is a decision committed to the trial court’s sound discretion. (People v. Thompkins (1988), 121 Ill. 2d 401, 441; see 134 Ill. 2d R. 451(a).) Any error in giving or refusing instructions will not justify a reversal when the evidence in support of the conviction is so clear and convincing that the jury’s verdict would not have been different. (People v. Austin (1989), 133 Ill. 2d 118, 124; see People v. Moore (1983), 95 Ill. 2d 404, 410 (harmless error standard applied to alleged jury instruction error).) We analyze each disputed jury instruction in light of the above principles.

Defendant first argues that the trial court committed reversible error in denying the non-IPI missing witness instruction he tendered. The instruction would have informed the jury that it was peculiarly within the power of the State to produce Harry Gordon as a witness and that it could infer from the State’s failure to call him that Gordon would have testified unfavorably to the State’s case. The instruction is based on Seventh Circuit Committee (1980) Instruction 3.25.

As his primary source of authority, defendant cites United States v. Mahone (7th Cir. 1976), 537 F.2d 922, where the court affirmed a trial court’s decision to deny a missing witness instruction. Under Ma-hone, a two-part test exists for the court to grant a missing witness instruction: (1) the absent witness must be peculiarly within one party’s power to produce; and (2) the testimony of the witness must elucidate issues in the case. Mahone, 537 F.2d at 926-27.

Defendant has a weak argument on either part of the test. We find no evidence in the record that Harry Gordon was within the peculiar control of the State, notwithstanding defense counsel’s allegations. Furthermore, we fail to see how Gordon would illuminate facts of the case concerning defendant’s convictions of intimidation and unlawful restraint. According to defendant’s own testimony, he found Gordon snoring in a standing position in the victim’s bedroom. Given the uncertainty of whether Gordon’s testimony would have been useful, we cannot say the trial judge abused his discretion by not giving the missing witness instruction. The conclusion we reach is in fact similar to the conclusion reached in Mahone: that “[i]n cases such as this where it is debatable whether the absent witness’ testimony would have elucidated the issues in the case, there should be latitude for the judge to decide whether the requested instruction would be unnecessary and time consuming for the jury.” (Mahone, 537 F.2d at 927.) We find no error in the trial court’s denial of defendant’s missing witness instruction.

Defendant next contends that reversible error arose from the trial court’s refusal of his tendered jury instruction on the defense of necessity, which states:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the defendant was without blame in occasioning or developing the situation and reasonably believed that such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (IPI Criminal 2d No. 24 — 25.22.)

Defendant argues in his brief that the evidence showed “that he entered the victim’s home solely to rescue Gordon, believed to be intoxicated, and to protect the victim and her children from Gordon,” and that he was without blame in developing the situation.

We fail to understand how a defense of necessity relates to defendant’s convictions of intimidation and unlawful restraint. Defendant’s necessity defense, according to his own argument, relates only to his entry into the victim’s home. The defense of necessity in no way relates to threatening the victim or holding a pillow to her face. Furthermore, the only offenses charged which concerned the defendant’s entry of the victim’s home were residential burglary, of which defendant received a directed verdict, and home invasion, for which defendant was acquitted. We agree with the State that alleged errors in instructions are not subject to attack on appeal where the defendant has been acquitted of the offenses to which the instructions pertain. (See People v. Schneider (1939), 370 Ill. 612, 616-17; People v. Legear (1975), 29 Ill. App. 3d 884, 893.) We find no error in the trial court’s refusal of defendant’s necessity instruction.

Defendant next argues that the trial court erred in denying the following non-IPI instructions on unlawful restraint:

Defendant’s Tendered Instruction No. 19:
“A person commits unlawful restraint when he knowingly and without authority detains another.
To commit unlawful restraint, the defendant must detain his victim with an overriding intent and motivation to detain.
Further, the conduct must prevent the person from moving from one place to another, and said conduct must be directly related to the detention.” (Based on IPI Criminal 2d No. 8.06.)
Defendant’s Tendered Instruction No. 21:
“To sustain the charge of unlawful restraint, the State must prove the following proposition:
First: That the defendant JOSEPH BERGIN knowingly and without legal authority detained [victim] with an overriding intent and motivation to detain her.
Second: That JOSEPH BERGIN’S conduct prevented [victim] from moving from one place to another.
If you find from your consideration of the evidence that this proposition has been proved beyond a reasonable doubt, you may find the defendant guilty.
If you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant JOSEPH BERGIN not guilty.” (Based on IPI Criminal 2d No. 8.07.)

At the outset, we find these two instructions to be non-IPI instructions because they depart substantially from the equivalent IPI versions. Defendant based his formulation of the two instructions on the holdings in People v. Haybron (1987), 153 Ill. App. 3d 906, and People v. Kuykendall (1982), 108 Ill. App. 3d 708. Based on the two cases, defendant argues that without his tendered instructions, the jury was erroneously allowed to convict him of unlawful restraint even if his overriding intent and motivation was not the detention of the victim, but only the avoidance of detection, of which his detention of the victim was only derivative and circumstantially related.

In both Haybron and Kuykendall, the court reversed a conviction of unlawful restraint because of insufficient proof. In Kuykendall, the court discussed how certain offenses against the person or property necessarily involve a degree of restraint. (Kuykendall, 108 Ill. App. 3d at 710.) The court noted that in such cases as rape, murder and robbery, “the overriding intent and motivation of the offender” is something other than unlawful restraint. (Kuykendall, 108 Ill. App. 3d at 710.) The latter quoted language is the language defendant included in his tendered instructions. This court has previously criticized that particular language from Kuykendall for focusing on defendant’s motive, rather than his knowledge, and we do so again here. (People v. Paulick (1988), 174 Ill. App. 3d 868, 871.) The court in Haybron merely repeated the “overriding intent and motivation” language, citing Kuykendall, and reversed for insufficient proof. Haybron, 153 Ill. App. 3d at 908.

Our research shows no other unlawful restraint case in Illinois that has invoked the “overriding intent and motivation” language of Kuykendall. In fact, recent cases interpreting Kuykendall have interpreted it as holding that unlawful restraint is punishable as a separate crime, in cases where a greater offense such as rape or armed robbery is also charged, if the restraint is independent. See People v. Leonhardt (1988), 173 Ill. App. 3d 314, 322; People v. Watts (1988), 170 Ill. App. 3d 815, 826; People v. Sperow (1988), 170 Ill. App. 3d 800, 814.

To the extent that Kuykendall and Haybron stand for the proposition that an offender’s motive is the key factor in an unlawful restraint charge, we disagree and choose not to follow them. We believe the better analysis is to follow the plain language of section 10 — 3(a) of the Criminal Code of 1961 under which an offender must “knowingly without legal authority” detain another. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3(a); see IPI Criminal 2d No. 8.06.) We find no error in the trial court’s denial of defendant’s non-IPI unlawful restraint jury instructions.

PROSECUTOR’S COMMENTS

At issue is whether the trial court erred in denying defendant’s motion for a mistrial. Defendant made the motion in response to a comment by the prosecutor during rebuttal closing argument that there were two defendants in this matter although only one was now on trial. Defendant argues that throughout the trial he never mentioned that Gordon was a defendant and that the prosecutor’s comment implied that Gordon was not being tried because he had pled guilty, from which the jury would infer that defendant, too, must be guilty. Defendant concludes that he is entitled to a new trial. We disagree.

The following exchange took place during the prosecutor’s rebuttal closing argument:

“MR. BIRKETT [prosecutor]: He [defendant] had a job, he was making good dough. And so did Harry.
Ladies and gentlemen, these comments about mother and father, everybody loves Harry, they will continue to love him— Joe, not Harry, my partner just corrected me. Maybe everybody loves Harry, too. There are two defendants in this case, but only one on trial now.
MR. PARENTI [defense counsel]: Excuse me?
MR. BIRKETT: Maybe everybody does love Joe.
MR. PARENTI: Objection. May I have a sidebar?
THE COURT: I will sustain the objection, the jury will disregard the statement with regard to more than one defendant.
MR. BIRKETT: I’m sorry if I misspoke. I mean, Joe. Maybe everybody loves Joe. They will not stop loving him and caring for him if you do your job and find him guilty, the world will not stop. They will continue to love him. And don’t be persuaded by sympathy and prejudice.”

This court has held that “a prosecutor is given wide latitude in closing argument as long as the comments are based on the evidence or reasonable inferences therefrom.” (People v. Cobb (1989), 186 Ill. App. 3d 898, 916; see People v. Thompkins (1988), 121 Ill. 2d 401, 445.) Generally, a prosecutor’s remarks in closing argument do not amount to reversible error unless they constitute a material factor in defendant’s conviction or result in substantial prejudice to him. (Thompkins, 121 Ill. 2d at 445.) Furthermore, prompt instructions by the trial judge to the jury to disregard improper closing argument comments will usually cure any error. (People v. Franklin (1990), 135 Ill. 2d 78, 100.) We will analyze defendant’s contentions of prejudicial error in light of the above principles.

We initially disagree with defendant’s premise that there is no basis in the record for a closing argument comment by the prosecutor implying that Harry Gordon was also charged in the case. In cross-examining both Officer Lullo and Officer Turek, defense counsel asked questions which themselves implied that there had been such a case. We thus conclude that there was evidentiary support for the prosecutor’s inadvertent comment.

Furthermore, defendant neglects to mention in his argument that his objection to the comment was sustained. The trial judge promptly instructed the jury to disregard the comment. In addition, the jury here received the customary instructions both before and after the testimony and arguments that it should disregard comments of counsel which are not based on evidence. We believe the prompt action here by the trial judge cured the allegedly improper prosecutorial comment.

Cases cited by defendant do not alter our conclusion. In People v. Thomas (1975), 25 Ill. App. 3d 88, the court found that the prosecutor’s improper comments did not rise to the level of reversible error in view of the strong evidence of defendant’s guilt. (Thomas, 25 Ill. App. 3d at 92.) Such a result could also stand in the instant case given the strong evidence supporting defendant’s convictions. In People v. Weinstein (1966), 35 Ill. 2d 467, which defendant also cites, the court found reversible error based on repeated improper comments by the prosecutor. (Weinstein, 35 Ill. 2d at 471.) Weinstein therefore does not apply in this case where the prosecutor made one inadvertent comment, which was promptly corrected by the trial judge.

GUILT BEYOND A REASONABLE DOUBT

As the final issue raised, defendant argues that he was not proven guilty beyond a reasonable doubt of either unlawful restraint (Ill. Rev. Stat. 1989, eh. 38, par. 10 — 3) or intimidation (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 6).

Our supreme court discussed the parameters of appellate review of a claim of reasonable doubt in People v. Boclair (1989), 129 Ill. 2d 458:

“It is the jury’s duty to assess the credibility of witnesses and to weigh the evidence in determining a defendant’s guilt or innocence. [Citations.] That determination is entitled to great deference, and when the sufficiency of the evidence is challenged we will not retry the defendant, although it is our duty to set aside a conviction when the evidence raises a reasonable doubt of defendant’s guilt. *** ‘ “[T]he relevant question is whether, after reviewing 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.) Boclair, 129 Ill. 2d at 474, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Regarding his unlawful restraint conviction, defendant argues that the State failed to show that his overriding intent and motivation was to detain the victim, citing People v. Haybron (1987), 153 Ill. App. 3d 906, and People v. Kuykendall (1982), 108 Ill. App. 3d 708, as authority. Defendant argues that the State merely showed that the minimal detention caused by defendant’s holding a pillow to the victim’s face was derivative of his purpose to avoid identification.

Defendant confuses the issue at hand and misconstrues the unlawful restraint statute, which simply states:

“A person commits the offense of unlawful restraint when he knowingly without legal authority detains another.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3(a).)

While defendant’s argument focuses on his motive or lack thereof to unlawfully restrain the victim, the key word in the statute is “knowingly,” about which we see no real debate when applied to the evidence. Furthermore, as stated earlier in the opinion, we disagree with Kuykendall and Haybron to the extent that they suggest that this court should focus on the motive of the defendant. (See Paulick, 174 Ill. App. 3d at 871.) Lastly, we strongly disagree with defendant’s attempt to minimize the import of his placing a pillow over the face of a single woman suddenly awakened in her own bedroom. The victim had a right to suffer no restraint at all. See People v. Satterthwaite (1979), 72 Ill. App. 3d 483, 485 (two-minute impairment of victim’s freedom of locomotion constituted unlawful restraint).

Defendant next challenges the sufficiency of the evidence as to his intimidation conviction for telling the victim: “Don’t talk or we’ll kill the kids.” Defendant argues that the evidence was insufficient to show that he personally uttered the threat, since the victim had a pillow over her face at the time the threat was uttered and since, as a long-time friend of the family, defendant was unlikely to have threatened the victim’s children. We disagree.

Contrary to defendant’s argument, the intent which must be proven by the State is not the intent to carry out the threat but the intent to “cause another *** to omit the performance of any act” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 6), which in this case was talking. We therefore agree with the State that the proof of intimidation is not undercut by the unlikelihood that defendant would have harmed the victim’s children due to his good relationship with the children.

The issue here is therefore one of credibility: whom the jury chose to believe. Defendant denied having uttered the threat while the victim claimed he had. Resolution of that question was within the unique province of the jury as trier of fact. (Boclair, 129 Ill. 2d at 474.) And the jury had reason to reject defendant’s testimony. The jury heard testimony, some from defendant himself, of false statements by defendant to both the police and his former employer following the offense. We find defendant’s speculation that Harry Gordon uttered the threat to be exactly that, speculation. There is no evidence in the record to support such speculation.

The jury in the instant case heard testimony from 17 witnesses over the course of the four-day trial, acquitted defendant on a charge of home invasion, and found him guilty beyond a reasonable doubt of unlawful restraint and intimidation. After our review of the record, we cannot say that the jury’s verdict is so unsatisfactory, unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt on either conviction.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT KEGLEY, Defendant-Appellant.
    Second District
    No. 2—90—0263
    Opinion filed March 30, 1992.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

After a jury trial, defendant, Robert Kegley, was found guilty of home invasion and attempted kidnapping, and the lesser included offenses of criminal trespass to residence, battery and unlawful restraint. Defendant admitted the events that led to his convictions, but asserted defenses of intoxication and insanity induced by such intoxication. After finding defendant’s prior conviction of rape and the victim’s physical impairment to be factors in aggravation warranting an extended sentence (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—2, 1005 — 5—3.2), the court sentenced defendant to 60 years’ imprisonment on his conviction of home invasion and 10 years’ imprisonment on his conviction of attempted kidnapping, with the sentences to run concurrently. Defendant appeals, asserting that the trial court abused its discretion in: (1) excluding certain evidence, which prevented defendant from effectively cross-examining and challenging the credibility of a key State witness; (2) refusing pattern jury instructions as confusing; (3) charging the jury to “keep deliberating” and in sequestering the jury at 1:30 a.m. after almost five hours of deliberations, thereby coercing a guilty verdict or allowing the opportunity for jury misconduct; and (4) imposing an extended sentence. We affirm.

Initially we note that this is defendant’s second appeal. (People v. Kegley (1988), 175 Ill. App. 3d 335.) However, the facts were not necessary to our prior determination of defendant’s first appeal. Therefore, to resolve the issues raised on this appeal, we must fully set out the facts leading to defendant’s indictment and his second trial.

In the early morning hours of March 25, 1986, Sandra Dyer (victim) was awakened by noises at the back door of her second-floor apartment, which she occupied alone. Although she had locked and deadbolted both the front and back doors to her apartment, when she heard footsteps she used the phone next to her bed to call the police. She was still on the phone with the police when she saw defendant, whom she had never seen before, at her bedroom door and screamed. Defendant entered her bedroom and, after hitting her with what apparently was a beer bottle, grabbed her around the neck in a choke hold and said “[y]ou told them, didn’t you[?]” The police dispatcher’s recording of the victim’s call reflected this statement, and one of the victim’s neighbors, Mia Torrez, overheard that comment through the thin adjoining bedroom wall.

Defendant pulled the victim around the apartment while repeatedly asking for her car keys and telling her that they had to get out of there. Despite this close proximity, the victim failed to detect any odor of alcohol on defendant’s breath. Although the victim told defendant that she had a broken back, he responded “[l]ike hell you do.” Eventually, after striking the victim’s head against the wall and punching her in the face, defendant fled with the victim’s car keys as the police arrived. The victim hid in her locked bathroom until the police entered her apartment.

Police officers responding to the victim’s call saw defendant leave the victim’s apartment by the front door, taking the steps two or three at a time and falling to all fours at the foot of the apartment stairs. With his gun drawn, an officer approached defendant and told him to stop, to which defendant responded by telling the officer to shoot, rolling to his feet, and running away. Defendant fell two more times, each time telling the officer to shoot when the officer approached and told defendant to stop. Eventually, the officers tackled defendant and subdued him.

One of the officers noticed the smell of alcohol on defendant’s breath, but defendant walked on his own without stumbling or staggering. A second officer did not notice any smell of alcohol, but did note that defendant walked without problem. Neither of the officers believed defendant was intoxicated. A third officer also failed to notice any indication of alcohol on defendant’s breath. However, a fourth officer, who was involved with defendant’s handling at the police station after his arrest, noticed a slight smell of alcohol, although defendant neither slurred his speech nor mumbled. A blood sample taken from defendant six hours after the break-in tested with an alcohol level of .124.

Defendant’s brother refused to allow defendant to visit his home two days before the break-in on March 23, 1986, because defendant was drunk and not in any shape to be around his nieces and nephews. At home with his father on March 24, 1986, defendant could not sit still, paced and was not himself. A friend, with whom defendant frequently drank, shared a 12-pack of beer with defendant on the 24th. However, defendant’s friend passed out before defendant left. Finally, a bar owner and his wife both testified that defendant had been in their bar drinking on March 24 but that he was not intoxicated.

After his apprehension, defendant told the officers that they had the wrong man and that he had been trying to help the victim. He also indicated that he knew James Sibiski, who was the victim’s neighbor and known by the nickname of “Wiener,” and that Sibiski would be upset when he learned of defendant’s arrest and the events leading to it. Both Sibiski and his roommate, Mia Torrez, overheard some of these comments. For two years, Sibiski was defendant’s foreman at a concrete company and routinely drove defendant to work.

After his arrest, electrical tape matching that found on a railing leading to the victim’s back door was recovered from defendant in addition to a syringe, a bag containing powder containing cocaine, a pipe containing residue of cannabis, and a vial of liquid. Defendant threw himself against the bars and walls of his cell, yelling, spitting and cursing at officers at the police station.

In mid-July 1985, nine months before the incident giving rise to the charges against defendant, the victim and a girlfriend had been abducted at knife point in their car from the parking lot of a bar. Neither girl saw their abductor, who forced them to keep their heads down during a high-speed car chase with the police, which ended in a car crash. The abductor escaped and was never apprehended, although a palm print was lifted from the window of the girls’ car. As a result of the crash, the victim suffered a fractured vertebra in her spine, which required surgery. The abduction was a matter of some notoriety in the local papers.

On March 26, 1986, Sibiski met with police without mentioning any involvement of defendant in the 1985 abduction. However, on April 2 Sibiski told police that several days after the 1985 abduction defendant had admitted abducting the victim and her girlfriend, who was Sibiski’s ex-wife. Although Sibiski told Mia Torrez of defendant’s involvement in the abduction, neither Sibiski nor Torrez, who was a friend of the victim, ever told the victim or police that defendant was the abductor.

Sibiski also told police that defendant had not been at work the two days following the abduction and that on one occasion after the abduction defendant had accompanied Sibiski to his apartment on a lunch break. When the victim came into view, defendant hid his face and ducked down into the car. Originally, Sibiski told police that the lunch-break incident happened in the summer of 1985, but during these proceedings he testified that it occurred in the spring of 1986 shortly before the break-in because he recalled the trees being in bud. Sibiski’s testimony was the only evidence linking defendant to the 1985 abduction because defendant’s palm print did not match that taken from the car in which the victim had been abducted.

The defense did not deny defendant’s part in the 1986 break-in, but asserted voluntary intoxication and insanity based on such intoxication as defenses negating the required intent element of the charges of home invasion and attempted kidnapping. Before trial in his motion in limine and again before his cross-examination and before direct examination of Sibiski, defendant’s counsel sought a ruling that evidence of Sibiski’s involvement with drugs was admissible to impeach his testimony. Defendant’s counsel sought to introduce such impeachment evidence through the testimony of a man named Eisen, who would testify that Sibiski had used and sold drugs, and the similar testimony of defendant’s deceased brother, Charles, at defendant’s prior trial.

Specifically, defendant’s counsel argued that Sibiski’s sales of drugs, about which defendant knew, motivated Sibiski to fabricate defendant’s involvement in the victim’s 1985 abduction to further implicate defendant and prevent defendant from negotiating a plea bargain with the State in exchange for testimony against Sibiski on drug charges. During lengthy colloquies on three occasions, defendant’s counsel repeated this argument with only brief reference to evidence of “the extent of Mr. Sibiski’s drug use.” The court reserved ruling on defendant’s motion in limine until trial and then ruled that any such impeachment was beyond the scope of the State’s direct examination of Sibiski, and its admissibility would be considered during defendant’s case in chief.

On the next day, when defendant began his case, however, Eisen was unavailable to testify. Defendant offered the transcript of the prior testimony of Charles Kegley, Jr., defendant’s brother, that Charles had been introduced to Sibiski by defendant, at which time Charles arranged the first of many drug purchases from Sibiski. Also included in that testimony was a recitation of one incident where Charles had been at Sibiski’s apartment to purchase drugs and had seen cocaine apparently being used by Sibiski and others at Sibiski’s apartment. The court ruled that evidence of Sibiski’s offer to sell drugs to Charles that occurred in defendant’s presence was admissible. However, the court ruled that evidence of sales unrelated to defendant was inadmissible.

Various psychologists and psychiatrists then testified as experts both for defendant and for the State in rebuttal. Their testimony concerned the effect of defendant’s chronic alcohol and drug abuse and his intoxication on his ability to form the requisite intent on the night of the break-in.

During the instructions conference, defendant’s counsel tendered Illinois Pattern Jury Instructions, Criminal, Nos. 2.01R and 26.01R (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)). However, defendant’s counsel agreed such instructions were confusing and should not be given. The court, therefore, instead instructed the jury on each count of the indictment using the former version of those instructions. Illinois Pattern Jury Instructions, Criminal, Nos. 2.01, 26.01 (2d ed. 1981) (hereinafter former IPI Criminal 2d).

Shortly before 9 p.m., the jury began deliberations. After IV2 hours they sent a note to the court asking if they were permitted to reach a verdict on three of the five counts and to be hung on the remaining two counts. The court, over defendant’s objection, responded “[k]eep deliberating.”

After an additional two hours of deliberations, the court inquired of the jury if they were close in reaching verdicts on all five counts. The jury responded “no (but 4/5).”

At 1:20 a.m. the jury sent a second inquiry to the court asking for further instructions on the specific intent necessary for the offense of home invasion. The court responded that the jury had received the instructions on the law. The court denied defendant’s motion for a mistrial or for a declaration of a hung jury based on the lateness of the horn*.

Just after 1:30 a.m., after almost five hours of deliberation, the court told the jury to stop deliberating and order them sequestered for the night at a nearby hotel, two jurors to a room. The court admonished the jurors not to discuss the case. The next morning, the jury resumed deliberations and returned guilty verdicts on all five counts after 15 minutes of deliberations.

After considering evidence in mitigation and aggravation, the court found two factors in aggravation. In addition to defendant’s prior conviction of rape, the court found that the victim’s crushed vertebrae or broken back was a physical disability, justifying an extended sentence. The court sentenced defendant to 60 years’ imprisonment on his conviction of home invasion and a concurrent sentence of 10 years’ imprisonment for attempted kidnapping.

Defendant first asserts that the trial court abused its discretion in ruling that evidence of Sibiski’s sales of drugs made outside the presence of defendant and of a single instance of implicit drug use by Sibiski were inadmissible for purposes of impeachment. We note that no error can be based on the failure to allow the defendant to cross-examine Sibiski about his contact with Eisen, because Eisen was unavailable to testify to perfect such impeachment. (People v. Olinger (1986), 112 Ill. 2d 324, 341; Hackett v. Equipment Specialists, Inc. (1990), 201 Ill. App. 3d 186, 197.) Thus the only evidence that defendant argues was improperly excluded was a portion of the testimony of defendant’s brother, Charles.

The trial court has wide latitude in determining the permissible scope of cross-examination. (People v. Collins (1985), 106 Ill. 2d 237, 269; People v. Doll (1984), 126 Ill. App. 3d 495, 507.) Any matter of permissible impeachment may be developed on cross-examination to test the credibility of the witness. (Collins, 106 Ill. 2d at 269.) Impeachment on a collateral matter is, however, not permissible, and the determination that a matter is collateral is similarly committed to the discretion of the trial court. (Collins, 106 Ill. 2d at 269.) A reviewing court will not reverse such exercise of discretion unless there has been a clear abuse, which results in manifest prejudice to the defendant. Collins, 106 Ill. 2d at 269.

The right to cross-examine a witness about an unlawful or disreputable occupation or activity as a matter affecting the witness’ credibility is unchallenged. (People v. Strother (1972), 53 Ill. 2d 95, 99; People v. Crump (1955), 5 Ill. 2d 251, 260.) Such evidence prevents a witness from falsely presenting a respectable, and therefore credible, image to the jury. (People v. Bond (1917), 281 Ill. 490, 499; People v. White (1911), 251 Ill. 67, 74.) Drug addiction is one such activity that is admissible for purposes of impeachment. (Collins, 106 Ill. 2d at 269; Crump, 5 Ill. 2d at 260.) Evidence of drug addiction is admissible not only to impeach a witness’ ability to perceive and recall or testify, but to impeach such witness’ honesty and integrity generally. People v. Galloway (1974), 59 Ill. 2d 158, 163; People v. Bazemore (1962), 25 Ill. 2d 74, 77.

Defendant’s counsel repeatedly asserted that evidence that Sibiski sold drugs was admissible to impeach Sibiski’s motive for testifying that defendant committed the 1985 abduction. Defendant’s counsel argued that Sibiski’s motive was to implicate defendant and solidify the State’s case. The State would thereby be discouraged or prevented from considering any cooperation and testimony of defendant against Sibiski on drug charges in exchange for more favorable treatment of defendant. Therefore, the court found that absent defendant’s knowledge of Sibiski’s sales of drugs, Sibiski had no motive to fabricate defendant’s part in the 1985 abduction. Defendant’s counsel also argued the admissibility of evidence of drug addiction to attack Sibiski’s honesty generally, although such argument appears to have been almost an afterthought.

Defendant’s offer of proof of Sibiski’s drug addiction consisted of evidence of a single instance of drug use implicit from the obvious presence of drugs in Sibiski’s apartment during Charles’ purchase of drugs from Sibiski. We decline to hold that the court abused its discretion in finding that such evidence alone did not rise to the level of drug addiction. (See People v. Siebert (1979), 72 Ill. App. 3d 895, 903; People v. Nelson (1975), 31 Ill. App. 3d 934, 938 (possession of drugs is not synonymous with addiction).) However, we see no reason to distinguish between a witness who uses drugs and one who sells drugs when a defendant offers such evidence to attack the truthfulness of such witness’ testimony. Although use of drugs is necessary if impeachment is based on the lack of ability to “observe, accurately reflect and retain what was observed” (see Galloway, 59 Ill. 2d at 163), such use is not necessary to attack a witness’ credibility generally. Therefore, we find that evidence of Sibiski’s alleged sale of drugs was admissible for the limited purpose of impeaching Sibiski’s integrity and honesty generally.

However, a finding that evidence of drugs sales is admissible to attack a witness’ honesty and integrity does not necessarily render the trial court’s refusal to admit such evidence in this instance an abuse of discretion requiring reversal. If ample impeachment evidence is allowed, limitations placed on a defendant’s cross-examination are harmless beyond a reasonable doubt. (People v. Owens (1984), 102 Ill. 2d 88, 103-04; People v. Shinkle (1987), 160 Ill. App. 3d 1043, 1055-56; People v. Hines (1981), 94 Ill. App. 3d 1041, 1047-48.) The trial court’s failure to admit evidence of Sibiski’s alleged sales of drugs resulted in part from defendant’s counsel’s almost exclusive argument that such evidence was proof of Sibiski’s motive to fabricate defendant’s involvement in the 1985 abduction. The court correctly determined that such motive would have required that defendant be aware of Sibiski’s sales of drugs. However, the court nevertheless allowed defendant to introduce evidence of Sibiski’s involvement in the sale of drugs that were witnessed by defendant.

The testimony of defendant’s brother, Charles, at the prior proceeding was admitted. Charles had testified that, in the defendant’s presence, Sibiski offered to sell cocaine to Charles the first time they met. Thus, the jury heard evidence of Sibiski’s involvement in the sale of drugs that tended to impeach his general credibility, although such evidence was itself subject to credibility infirmities. Implicit in Charles’ inquiry to buy drugs was his own addiction, which, in addition to his arguable bias as defendant’s brother, diminished the value of Charles’ testimony to attack Sibiski’s credibility.

Defendant also attacked Sibiski’s credibility through evidence that Sibiski and his girlfriend, who was the victim’s friend, failed to reveal defendant’s identity as the abductor despite defendant’s revelation that he was involved almost immediately after the 1985 incident. In addition, defendant presented evidence that Sibiski delayed in revealing such information to the police even after defendant had again directed violent behavior towards the victim. Thus, we find that the jury had ample evidence of impeachment on which to base its determination of Sibiski’s credibility, and any error from the court’s refusal to allow defendant to further inquire into Sibiski’s drug involvement was harmless beyond a reasonable doubt. See Owens, 102 Ill. 2d at 103-04.

Defendant next contends that the trial court erred in not giving revised IPI Criminal 2d Nos. 2.01R and 26.01R (Supp. 1989) and instead giving the former versions of those instructions. However, a party may not raise the failure of the trial court to give an instruction that was withdrawn (see People v. Underwood (1978), 72 Ill. 2d 124, 129-30), and the use of an earlier version of a pattern instruction that still correctly states the law is not reversible error. People v. Tucker (1990), 193 Ill. App. 3d 849, 854.

Defendant’s counsel not only agreed that the revised versions of his tendered jury instructions were confusing, which would have justified the court’s refusal to give such instructions (Tucker, 193 Ill. App. 3d at 854), but also agreed that the former version of each instruction should be given. Thus, in effect defendant’s counsel withdrew his tendered revised IPI Criminal instructions. Therefore, the court did not err in giving former IPI Criminal 2d Nos. 2.01 and 26.01, which still correctly stated the applicable law. See Tucker, 193 Ill. App. 3d at 854.

Defendant next contends that certain conduct of the circuit court improperly influenced the jury’s verdict. Defendant contends that the court coerced the guilty verdicts when it charged the jury to “[k]eep deliberating” after the jury inquired whether they could be hung on two of the five counts. Defendant also asserts that the trial court abused its discretion in sequestering the jury at 1:30 a.m. after five hours of deliberations and that the brevity of the jury’s deliberations upon reconvening indicates jury misconduct.

An instruction to a deadlocked jury is improper if it hastens a verdict, coerces a juror to make a determination in conflict with that juror’s views, or otherwise interferes in deliberations such that a defendant is prejudiced. (People v. Jenkins (1989), 190 Ill. App. 3d 115; People v. Palmer (1984), 125 Ill. App. 3d 703.) The mere opportunity for improper influence absent a showing that such improper influence occurred is insufficient to warrant a new trial. (People v. Kelly (1975), 24 Ill. App. 3d 1018, 1034.) However, a jury is required to return a verdict on each offense charged (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4(j)), and a circuit court has a duty to provide guidance to a jury that is not hopelessly deadlocked. (People v. Prim (1962), 53 Ill. 2d 62, 76.) To do so, the trial court may insist that jurors deliberate further if a jury deliberates only a short time before declaring unanimity unreachable. Lowenfield v. Phelps (1988), 484 U.S. 231, 238, 98 L. Ed. 2d 568, 578, 108 S. Ct. 546, 551.

In this instance, the court’s charge to “[k]eep deliberating” did not hasten the verdict because deliberations continued more than twice the amount of time as had elapsed prior to the jury’s inquiry. Upon polling of the jury after the verdict, no juror expressed any dissatisfaction with the verdict. Thus, on the record in this case, no improper influence is apparent.

Both Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059, and People v. Katalinich (1987), 153 Ill. App. 3d 778, on which defendant relies, are distinguishable. In Jenkins, the improper charge was “[y]ou have got to reach a decision in this case.” (Jenkins, 380 U.S. at 446, 13 L. Ed. 2d at 958, 85 S. Ct. at 1060.) The imperative contained in that charge is totally absent from the circuit court’s direction to “[kjeep deliberating.”

In Katalinich, the jury returned both guilty and not guilty verdicts on several counts, but made no findings as to two counts of the indictment. The trial court instructed that jury they “must return back to the jury room and return two more verdicts.” (Katalinich, 153 Ill. App. 3d at 783.) This instance is distinguishable both because here the court instructed the jury before they returned any verdicts and because the imperative tone of Katalinich’s instruction is absent. Thus, neither Jenkins nor Katalinich is controlling.

Although defendant concedes that the decision to sequester a jury is peculiarly within the discretion of the circuit court (People v. Flint (1986), 141 Ill. App. 3d 724, 736), defendant asserts that Flint, in which we affirmed the trial court’s decision to allow elongated deliberations and People v. Whitecotton (1987), 162 Ill. App. 3d 173, in which the trial court allowed 17 hours of deliberations, require a trial court to allow a jury to deliberate more than the five hours that occurred here. However, neither Flint nor Whitecotton mandates lengthy deliberations, and we reject a mathematical evaluation of the appropriate length of jury deliberations before a court may properly decide to sequester a jury.

In Flint, the jury were allowed to deliberate less than an additional two hours until 2:15 a.m. after the giving of a deadlock instruction. (Flint, 141 Ill. App. 3d at 735-36.) Although the court in White-cotton allowed the jury to deliberate for 17 hours, such deliberations continued only four hours after the court’s deadlock instruction. (Whitecotton, 162 Ill. App. 3d at 186.) In addition, the Whitecotton court’s decision to allow such lengthy deliberations was based on the jury foreman’s explicit indication that the jury could reach a verdict in a few hours and that it was in the best interests of the jury to continue deliberations. Whitecotton, 162 Ill. App. 3d at 186.

In this instance the court sequestered the jury at 1:20 a.m., four hours after its charge to “[kjeep deliberating” and in the absence of any expression by the jury that a verdict was close or that they desired to keep deliberating. In light of the lateness of the hour, the length of deliberations after the court’s deadlock instruction, and the lack of indication of any desire on the part of the jury that they wished to continue deliberations, the trial court’s decision to sequester the jury was not an abuse of discretion.

Nor do we find any merit in defendant’s assertion that the brevity of deliberations upon reconvening the next day is evidence of jury misconduct during the sequester, which is totally unsupported by factual allegations. Rather, we must presume that a jury followed the court’s instructions to refrain from discussion of the case. People v. Barrow (1989), 133 Ill. 2d 226, 266.

Finally, defendant asserts that the court improperly considered as a factor in aggravation the victim’s crushed vertebrae. However, the court also expressly found that defendant’s prior conviction of rape was a factor in aggravation warranting an extended sentence.

Sentencing is a matter for the discretion of the trial court, whose decision will not be reversed absent a showing of abuse of such discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Although the presence of a single statutory factor in aggravation is sufficient to support the imposition of an extended sentence, the court may also consider nonstatutory factors when imposing an extended sentence. People v. Diaz (1989), 189 Ill. App. 3d 473, 477-78; People v. Thomas (1988), 168 Ill. App. 3d 113, 118.

Thus, the court’s consideration of defendant’s prior conviction was sufficient to impose an extended sentence, and we do not address whether the victim’s physical limitations as a result of the crushed vertebrae in her back were a physical handicap for purposes of aggravation as provided in the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(4)(iii).) However, we note that the court was free to consider such condition in fashioning an appropriate sentence having correctly found that defendant was eligible for an extended sentence based on his prior conviction alone.

For the foregoing reasons, we affirm defendant’s convictions and sentences.

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON HALLBECK, Defendant-Appellant.
    Second District
    No. 2—89—1234
    Opinion filed April 3, 1992.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Susan Davis Brunner, of Evanston (John X. Breslin and William L. Browers, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Jason Hallbeck, was convicted of two charges of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21— 1(a)) and sentenced to consecutive terms of 200 and 100 days’ imprisonment in the Kane County jail on the respective convictions. The first count against him charged that the defendant tipped over some headstones in a cemetery in Hampshire on May 3, 1989. The second count charged that he damaged a toilet of the Hampshire Park District.

The defendant raises two arguments on appeal: first, whether the trial court erred reversibly in admitting a prior inconsistent statement as substantive evidence when the prosecutor failed to lay the foundation for the statement by confronting the witness with it; and, second, whether the conviction on the second count must be reversed when the State failed to present any evidence to support the charge.

As no court reporter transcribed the proceedings, the parties have submitted a bystander’s report which they agree contains an accurate description of the trial. (See 134 Ill. 2d R. 323(d).) However, the report does not contain details of the commission of the crime.

The State’s first witness was Christopher Lyga, who testified that on May 3, 1989, in the early morning, he turned over some tombstones. When the prosecutor asked who was with him, he testified that he was alone. The prosecutor asked no further questions, and the defendant had no cross-examination.

The State then called Sergeant Brian Thompson of the Hampshire police department, who testified that on June 22, 1989, he interrogated Lyga at the police department. Sergeant Thompson related that Lyga had said both he and the defendant knocked down the tombstones.

Hampshire police officer Hewitt also testified. He stated that he could not recall any exact quotes from Hallbeck.

The State offered no other testimony, but introduced Lyga’s signed confession, in which he admitted that he and the defendant tipped over the tombstones on May 3, 1989. Although the defendant objected to the document, the trial court admitted it as substantive evidence. The bystander’s report does not reflect that any witness authenticated the document or the signature; nor does it indicate that Lyga was still in the courtroom when the document was offered without foundation. The record on appeal does not contain the confession.

After the State rested, the defendant moved for a directed verdict, which the trial court denied. The defendant then testified on his own behalf and denied he turned over any headstones. The defendant was found guilty on both counts.

On appeal, the defendant first argues that the trial court erred in admitting Lyga’s prior inconsistent written statement as substantive evidence.

Section 115 — 10.1 of the Code of Criminal Procedure of 1963 now provides:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.” Ill. Rev. Stat. 1989, ch. 38, par. 115— 10.1.

A proper foundation must be laid before prior inconsistent statements are allowed into evidence. Part of the necessary foundation is asking the witness whether he made the inconsistent statement. (People v. King (1987), 157 Ill. App. 3d 76, 82; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§613.1, 613.3 (5th ed. 1990).) Generally, the questioner must direct the attention of the witness to the time, place, and circumstances of the statement and its substance. (People v. Bradford (1985), 106 Ill. 2d 492, 500.) The witness must have an opportunity to explain the inconsistency before the introduction of extrinsic evidence of the statement; this requirement prevents unfair surprise and gives the witness an opportunity to explain any inconsistency. (Bradford, 106 Ill. 2d at 501; People v. Cobb (1983), 97 Ill. 2d 465, 479.) Through this process, the opponent to admission of the statement is properly alerted to the existence of the statement and thus is able to cross-examine the witness regarding it. See also Ill. Rev. Stat 1989, ch. 38, par. 115 — 10.1(b).

The parties have cited no cases which explain whether a foundation must be laid before a hearsay statement like the one here can be admitted pursuant to section 115 — 10.1. In every reported case where a prior inconsistent statement was admitted under section 115 — 10.1, the witness was confronted with the prior statement. See, e.g., People v. Wheatley (1989), 187 Ill. App. 3d 371, 376; People v. Coleman (1989), 187 Ill. App. 3d 541, 544; cf. People v. McBounds (1989), 182 Ill. App. 3d 1002, 1011-13 (hostile witness impeached with written statement by confronting him with it and drawing his attention to time and place of statement; statement admissible substantively when witness explained other circumstances during cross-examination).

According to one source, however, section 115 — 10.1 contemplates that before a statement is admitted under its provisions, the witness will be confronted with the statement. (See Steigmann, Prior Inconsistent Statements as Substantive Evidence, 72 Ill. B.J. 638, 639 (1984), citing 83d Ill. Gen. Assem., House Proceedings, Nov. 1, 1983 (statements of Representative McCracken).) The confrontation requirement seems also to have been assumed by Professor Graham, who wrote, “Since all prior inconsistent statements are not substantively admissible, counsel should not have the unfettered right to introduce extrinsic evidence of such a statement before the witness has an opportunity to admit, deny, or explain the declaration.” (Graham, Employing Inconsistent Statements for Impeachment & as Substantive Evidence: A Critical Review & Proposed Amendments of Federal Rules of Evidence 801(d)(1)(A), 613, & 607, 75 Mich. L. Rev. 1565, 1609 (1977).) Judge Steigmann, who authored section 115 — 10.1, based it on Professor Graham’s article. See Coleman, 187 Ill. App. 3d at 547-48, citing Steigmann, 72 111. B.J. at 638, citing 83d Ill. Gen. Assem., House Proceedings, Nov. 1, 1983.

The State never confronted Lyga with his prior inconsistent written statement, but instead introduced the confession only after he and both of the other witnesses had been excused. The bystander’s report in this case clearly reveals that Lyga was never asked about the statement and was excused as a witness long before the State tendered his prior inconsistent statement as substantive evidence. The fact that the defendant did not cross-examine Lyga is hardly surprising since he was never questioned about the statement and he testified favorably for the defendant.

We hold that section 115 — 10.1 does not excuse the need for a proper foundation prior to the admission of an inconsistent statement either for impeachment or as substantive evidence. Thus, before introduction of extrinsic evidence of a prior inconsistent statement, the witness must be confronted with it, whether it is offered for impeachment or substantive purposes. In this case, the State failed to comply with that requirement, and the written statement was not properly admitted.

Because Officer Thompson’s recounting of Lyga’s statement did not meet the requirements for admission as substantive evidence (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1; People v. Redd (1990), 135 Ill. 2d 252, 314), and because the incorrectly admitted written statement was the only other evidence of the defendant’s involvement in the headstone incident, the State failed to present sufficient evidence to prove the defendant guilty on count I beyond a reasonable doubt. Consequently, double jeopardy attached, and this cause cannot be remanded for a new trial. See People v. Denny (1991), 221 Ill. App. 3d 298, 303.

For his second argument on appeal, the defendant argues that there was insufficient evidence to show either that a toilet was damaged or that the defendant was the one who caused the damage. The State concedes that the bystander’s report does not show Officer Hewitt testified that he heard the defendant make a full confession. The State thus confesses error on this issue. We agree that there was no evidence to find the defendant guilty, and his conviction must be reversed.

For the above reasons, the convictions of the defendant are reversed.

Reversed.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE ex rel. HONORABLE CHARLES R. GARNATI, Plaintiff-Appellee, v. $14,000 UNITED STATES CURRENCY, Defendant-Appellant.
    Fifth District
    No. 5—91—0034
    Opinion filed April 13, 1992.

      Robert A. Drew, of Marion, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Claimant, Jorge Diaz, was stopped for speeding. He produced a valid Texas driver’s license and was told he would receive a written warning. Upon running a computer check, Deputy Shaunn Currey learned that Diaz also possessed an Illinois driver’s license which had been suspended. State Trooper Steve Bandy subsequently arrived on the scene with his canine partner. Deputy Currey then asked Diaz to sign a consent to search, which he did. Currey did not inform Diaz that he was going to be arrested for driving with a suspended license. The search revealed a package wrapped in aluminum foil and grey tape in the left wheel well. A similar package was found in the right wheel well and another was found in a suitcase. The three packages contained currency totaling $14,000 in 700 $20 bills. No contraband, drugs, or paraphernalia were found. Bandy’s dog reacted to the currency, and it was taken to the State police crime lab for testing. Lab analysis revealed trace amounts of cocaine. Diaz was taken into custody and charged with driving while license suspended.

The State subsequently filed a forfeiture complaint, and a hearing was held. Although notified, Diaz did not appear, and the defense rested without putting on any evidence. Deputy Currey testified that claimant told him that while visiting friends in Chicago, two men whom Diaz did not know called him and arranged a meeting at a fast-food restaurant. At this meeting, Diaz agreed to transport several bundles of currency to another unknown individual in Houston, Texas, in exchange for $1,000. Currey stated that Diaz also said that he thought the money was “dirty.” Daniel LeCoq, the lab analyst, testified that a trace amount of cocaine was found on the currency, that it could have come from any one of the 700 bills, and that it could have come from the hands of anyone who had handled the money prior to Diaz.

The trial court ruled that while the statutory presumption of forfeitability did not apply, the totality of the evidence was sufficient to warrant forfeiture.

Section 505(a)(5) of the Illinois Controlled Substances Act provided at the time the complaint was filed that:

“(a) The following are subject to forfeiture:
* * *
(5) everything of value furnished, or intended to be furnished, in exchange for a substance in violation of this Act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of this Act ***. All moneys, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of substances, are rebuttably presumed to be forfeitable under this Act. The burden of proof is upon claimants of the property to rebut this presumption.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 1505(a)(5).)

Claimant contends that given the trial court’s finding that the presumption was inapplicable, the burden remained on the State to demonstrate by a preponderance of the evidence that the currency seized constituted proceeds of a drug transaction or was used to facilitate a violation of the Act, and that the evidence introduced was insufficient to meet this burden. The State argues that the presumption was applicable, and that the ultimate judgment of the trial court was correct, albeit for a different reason.

Because the trial court’s finding that the presumption did not arise is a question of law, not fact, we are not constrained to grant such finding the same deference we would a question of fact, and we may substitute our determination for that of the trial court if we find such determination to be erroneous. (In re Marriage of Skinner (1986), 149 Ill. App. 3d 788, 501 N.E.2d 311; Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292.) After a careful review of the record, we conclude that the statutory presumption of forfeitability was applicable.

Claimant relies heavily upon In re $27,110 (1987), 164 Ill. App. 3d 44, 517 N.E.2d 704. In that case, claimant’s husband was stopped for driving under the influence. A passenger indicated that they had driven to a park where two paper bags were exchanged. A subsequent search of the vehicle produced a bag containing 969 bills totaling $27,440. Lab tests disclosed a trace amount of cocaine. As in the present case, the lab analyst testified that the trace amount of cocaine could have come from a single bill. Claimant’s husband and passenger both denied ownership or knowledge of the bag of money. Claimant subsequently filed an affidavit stating that she had received the money from her uncle, she had planned to use it to buy an apartment building, and she had placed it in her car intending to deposit it the next day. Later that evening, her husband had borrowed the car without her permission. The trial court ruled that the currency was not subject to forfeiture, and the appellate court affirmed, holding that the presumption of forfeitability could not “be based upon a presumption or an inference where the undisputed facts may give rise to different reasonable inferences.” (In re $27,440, 164 Ill. App. 3d at 48, 517 N.E.2d at 707, citing Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, 188 N.E.2d 383.) The court noted that the only evidence showing that the currency was in close proximity to a forfeitable substance was the residual amount of cocaine that may have been on only one bill.

If the presence of the trace amount of cocaine were the only evidence that the money in question was the proceeds of or was involved in a drug transaction, we would be inclined to agree with the court in In re $27,440, given that the lab analyst in this case also testified that the small amount of cocaine found could have come from any single bill. However, there are critical distinctions between In re $27,440 and the case at bar. In In re $27,440, both the driver of the automobile and his passenger denied any knowledge of the money, and the claimant provided an arguably reasonable explanation for the presence of the money in the car. The only evidence supporting the presumption was the trace amount of cocaine and some vague testimony regarding the exchange of two paper bags. In the present case, however, the only explanation for the presence of the money was that two men paid Diaz $1,000 to transport the money to Texas. Not only does this explanation not provide an arguably innocent reason for the presence of the money, it militates in favor of the presumption. We find it highly improbable that there would be any legitimate reason for two unknown men to pay Diaz $1,000 to secrete $14,000 in currency in his car and transport it to yet a third unknown individual in Texas. Such evidence gives rise to only one reasonable inference. We conclude that the evidence was sufficient to raise the presumption of forfeitability. Because claimant offered no evidence to rebut the presumption, the money was properly ordered forfeited.

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

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE CHAPMAN

text:
    BEER BARN, INC., Plaintiff-Appellee, v. NEIL DILLARD et al, as Commissioners of the Local Liquor Control Commission of the City of Carbon-dale, Defendants-Appellants. — SALUKI LIQUORS, INC., Plaintiff-Appellee, v. NEIL DILLARD et al., as Commissioners of the Local Liquor Control Commission of the City of Carbondale, Defendants-Appellants.
    Fifth District
    No. 5—91—0063
    Opinion filed April 14, 1992.

      Michael L. Wepsiec, City Attorney, of Carbondale, for appellant Carbon-dale Liquor Control Commission.
    Robert P. Schulhof, of Carbondale, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiffs, Beer Barn, Inc. (Beer Barn), and Saluki Liquors, Inc. (Saluki), applied for retail package-liquor licenses. The defendants denied the applications. Beer Barn and Saluki appealed to the Illinois Liquor Control Commission (State Commission), which reversed the defendants’ decision and ordered the Local Liquor Control Commission (Local Commission) to issue a retail package-liquor license to each plaintiff. On September 7, 1990, the State Commission denied the defendants’ petitions for rehearing. The defendants filed a complaint for administrative review in the circuit court, and the court dismissed the complaints for lack of standing. On appeal we affirmed the circuit court’s decision, in an opinion filed concurrently with the instant opinion. Carbondale Liquor Control Comm’n v. Illinois Liquor Control Comm’n (1992), 227 Ill. App. 3d 71.

On September 11, 1990, the plaintiffs requested that the city clerk issue each of them a retail package-liquor license, and the city clerk denied their request. On September 13, 1990, the plaintiffs filed complaints seeking writs of mandamus. Motions for summary judgment were filed by the parties. The circuit court, in an order consolidating the cases for purposes of its decision, denied defendants’ motion for summary judgment, granted the plaintiffs’ motions for summary judgment and issued a writ of mandamus directing the Local Commission to issue the plaintiffs retail package-liquor licenses. Defendants appeal.

Defendants contend that the trial court improperly issued the writ of mandamus because there was a pending action between the parties which sought to adjudicate the correctness of the decision upon which the plaintiffs rested their right to mandamus. (See Carbondale Liquor Control (1992), 227 Ill. App. 3d 71.) It is undisputed that the Carbondale Liquor Control case was pending at the time the writs of mandamus were sought herein and involved the same parties and the same subject matter as this case.

Mandamus is not a writ of right but is awarded only in the exercise of sound judicial discretion in accord with legal principles. (League of Women Voters v. County of Peoria (1987), 121 Ill. 2d 236, 242, 520 N.E.2d 626, 629.) “A writ of mandamus is a remedy at law to command a public official to perform some ministerial, nondiscretionary duty in which the party seeking such relief has established a clear right to have it performed and a corresponding duty on the part of the official to act.” (Emphasis added.) (People ex rel. Ryan v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1985), 136 Ill. App. 3d 818, 820, 483 N.E.2d 1037, 1039.) It would be improper to compel the defendants to issue the liquor licenses, when the authority of the Illinois Liquor Control Commission over the liquor licenses is currently on review in a superior tribunal, bringing its actions which are the subject of the writ into question. People ex rel. Harrison v. Kelly (1945), 391 Ill. 136,140-41, 62 N.E.2d 705, 707.

The defendants argue that the trial court abused its discretion in granting the writ. They suggest that a potentially awkward situation could arise should the appellate court reverse the trial court dismissal order in the pending appeal contesting the State Commission’s decision granting the liquor licenses. Defendants contend that on remand the trial court could decide that the State Commission erred in granting the retail package-liquor licenses. If it is ultimately determined that the applications for the liquor licenses were properly denied, issuance of the writ of mandamus directing the issuance of the licenses would be erroneous.

Mandamus will lie to compel performance of a duty which a plaintiff is entitled to have performed. (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1063, 566 N.E.2d 785, 793.) Premature action by the trial court in granting the writ could compel the performance of a duty which the plaintiff is not entitled to have performed. Where it is apparent that issuance of the writ will create public confusion or inconvenience and will not promote substantial justice, the writ should be denied. (Retirement Board, 136 Ill. App. 3d at 820, 483 N.E.2d at 1039.) We conclude that given the circumstances of this case the trial court abused its discretion in granting the writ of mandamus.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed.

Reversed.

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