author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARVEY ALLEN, JR., Defendant-Appellant.
    First District (4th Division)
    No. 1—88—0189
    Opinion filed April 22, 1993.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Harvey Allen, Jr., was convicted of four counts of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and arson (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1) following a jury trial in the circuit court of Cook County. He was sentenced to natural life in prison without possibility of parole and to a concurrent term of seven years for the arson conviction. Prior to trial on these charges, defendant filed a motion to quash arrest and suppress evidence on the basis that he was arrested without probable cause. On appeal, he contends that (1) the trial court erred in denying his motion to quash arrest and suppress evidence; (2) the trial court erred in finding that his right to counsel was not violated and his confession was voluntary; (3) the State did not establish the voluntariness of his post-arrest statement because it failed to show that he was provided with the rudimentary necessities of life during his detention at the police station; (4) evidence presented by the State was irrelevant and unduly prejudicial, thereby denying him a fair trial; (5) he was denied a fair trial by the introduction of certain hearsay evidence; (6) the trial court erred in denying defense counsel’s motion to withdraw; and (7) the mandatory natural life provision, pursuant to the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)), is unconstitutional.

We affirm.

The charges stem from a fire which occurred at approximately 3 a.m. on December 7, 1985, in an apartment building located at 1475 East 70th Street in Chicago. Four people died as a result of the fire. Three of the victims died of carbon monoxide poisoning and the fourth died as a result of carbon monoxide poisoning and injuries suffered when she leaped or jumped from the window of her burning third-floor apartment.

Chicago police patrolman Kenneth Parks arrived on the fire scene shortly after 3 a.m. where he witnessed a victim fall to her death. He immediately began questioning onlookers in an effort to determine if other residents were inside the building. In doing so, he met Sarah Davis, who lived in one of the units with her brother, Sherman Young. Parks testified at trial that Davis was hysterical and screaming when he approached her. According to the witness, Davis told him that earlier that evening she had received several telephone calls from a man named “Julian” who threatened to harm her and her brother. Davis told him she later heard a loud noise, suddenly saw her front door engulfed in flames, and ran out of the back door. Her brother was not in the apartment at the time of the fire.

Robert Walsh, an officer of fire investigation for the Chicago fire department, testified that he went to the scene shortly after the fire started. He stated that upon entering the front door he smelled gasoline odors in the hallway. After completing his investigation, he determined that the fire was started by pouring and igniting an accelerant on the front door of Young’s apartment.

Detective Ernest Rokosik of the bomb and arson unit of the Chicago police department testified that he helped clear debris from Young’s apartment. In doing so, he found a charred Black Flag insect can. Rokosik further stated that the can was uncapped and that he clearly smelled the odor of gasoline from the “burn through” hole where the can was found. Rokosik stated that, in his opinion, the fire was deliberately started by someone pouring gasoline on the door of Young’s apartment.

Detective James Swistowicz and his partner, Detective George Carey, were assigned to investigate the fire. Swistowicz testified that building residents and other persons on the scene were transported to the third district police station to be interviewed concerning the fire. Among those interviewed at the police station was Sherman Young. Although the record is devoid of any conversation between Young and third district police officers, Detectives Swistowicz and Cárey sought to locate a man named Julian, after the beat officers spoke with Young. Upon receiving a description of the building where Julian could be found, the detectives proceeded to the 1200 block of East 72nd Street. Unable to locate the building, they radioed the police station and requested a beat officer to bring Young to their location for further identification of the building. They also requested that Detectives Richard Popovits and Leo Wilcosz meet them.

At approximately 6 a.m. on December 7, 1985, three squad cars arrived at defendant’s home. Detectives Swistowicz and Carey approached the front door while Popovits and Wilcosz waited at the back door “just in case someone attempted to run out the back.” The beat officer who transported Young to the scene also went to the back, but he remained in an alley. Defendant’s father (Harvey Allen, Sr.) answered the officers’ knock at the front door. After the officers requested to speak to Julian, defendant’s father escorted Detectives Swistowicz and Carey upstairs. He knocked and asked his son to open the door, because police officers wanted to talk to him. Defendant opened the door and identified himself as Harvey Allen, Jr. In response to the detectives’ questions, defendant acknowledged that he knew Sherman Young, but he denied knowing anything about the fire. Swistowicz asked defendant if he would come to the police station to talk further and defendant agreed. Defendant stated he was leaving for Memphis, Tennessee, later that day and wanted to get the matter “straightened out” as quickly as possible. Defendant, who was clothed in pajamas, asked if he could get dressed. Swistowicz answered in the affirmative and followed defendant into the bedroom as a precautionary matter. Meanwhile, Detective Carey let Wilcosz and Popovits into the apartment through the back door.

The four detectives escorted defendant out of the apartment, and Wilcosz and Popovits drove him to the police station. While at the apartment, none of the detectives drew his gun nor was defendant handcuffed. Upon leaving the apartment building, it was discovered that Young had left the area and was no longer in police custody.

Defendant was taken to the Area 3 police station at about 6:20 a.m., where he was placed in an unlocked interview room. Carey and Swistowicz interviewed defendant without advising him of his Miranda rights. During this conversation, defendant told them that he called Sherman Young at about 7:30 p.m. on December 6, 1985, and that he left a message with a woman for Young to call him. After questioning other persons, the detectives requested that Sarah Davis and defendant be transported to the Area 1 station, to which they agreed.

Detective Anthony Lowery interviewed Sarah Davis sometime later on the morning of December 7, 1985, and she informed him about the threatening calls from Julian. She said that a person named “Bill” had also threatened her brother and had come to their apartment.

At 9 a.m. at the Area 1 station, Detective- Robert Fields advised defendant of his Miranda rights, which he said were given to persons under arrest before obtaining a statement from them. Defendant told Fields that on the evening of December 6 he was styling a friend’s hair and that Sherman Young came to his apartment to get money to purchase narcotics for him. Defendant stated that when he finished -with his customer’s hair, he drank some liquor and went to bed. Detective Lowery then asked defendant to take a polygraph test. He was transported to another police station to take the test at 10:30 a.m.

The police technician who administered the polygraph test told police officers that defendant could not be eliminated as a suspect because the test could not be completed. In the technician’s opinion, defendant was attempting to distort the test by holding his breath during questioning. Defendant was returned to Area 1 police station at 12:40 p.m. and placed in an interview room.

While defendant was taking the polygraph test, Detectives Swistowicz, Carey and Popovits talked with Yvonne Jones, Young’s girl friend. Popovits testified that Jones said Young left her apartment with a friend named Greg Brooks after receiving a telephone call from his sister, Sarah. Young later returned to Jones’ apartment with Brooks and told her Julian had given him some money to purchase narcotics but that he was going to use the money to buy drugs for himself and would not pay defendant back. Popovits testified that Jones said she later received a call from Brooks telling her that Julian had burned down Young’s apartment because he had “ripped off” Julian.

Defendant was placed under arrest at 2:30 p.m., December 7, by Detectives Lowery and Fields. Lowery stated that from 9 a.m. until the time of the arrest defendant was never informed that he was free to go.

After defendant was placed under arrest, Detective Guy Habiak testified that defendant was taken to the lockup where he remained in an interview room until approximately 8 p.m. Habiak stated that he advised defendant of his rights and requested to see defendant’s apartment. Defendant agreed, provided he could go along. After defendant’s apartment was searched, he was returned to an interview room at Area 1. Habiak and his partner next spoke to defendant at 7 p.m. on December 8 in an interview room. Habiak stated that the lockup cells were equipped with washrooms and that bologna sandwiches were provided to prisoners.

Detectives Popovits and Carey testified that after defendant was transported to Area 3 on December 7, they did not see him again until 3:30 a.m. on December 9. Detective Swistowicz testified that on December 9 he and Popovits spoke to two gas station attendants who identified defendant from a group of photographs as the person who purchased gasoline in an insect can just prior to the start of the fire. He further testified that they proceeded to Zayre, a department store, where they purchased a can of Black Flag insect spray identical to the one found at the scene of the fire. The witness also stated that he and Popovits returned to the service station, showed the can to the attendants, and then returned to the police station.

Upon returning to the police station, the detectives provided defendant with some food. Detective Swistowicz testified that this was the first time he had personally provided defendant with food since bringing him to the station on December 7. The record is unclear as to the sequence of events following; however, it appears that after being advised of his rights, defendant repeated his previous statement that he did not threaten Young. The detectives then confronted defendant with an insect can similar to the one that had been found at the scene of the fire. They told defendant that two witnesses at a Shell gas station identified him as purchasing 50 cents worth of gas in an insect can shortly before the fire. The witness testified that defendant was quiet but said he thought he should have an attorney.

Detective Popovits testified that the officers immediately informed defendant that they could no longer speak with him. Popovits also stated he informed defendant that the witnesses who saw him purchase the gasoline could identify his jacket so they needed it for inventory purposes. They took the jacket and moved defendant into a smaller room because they were going to call felony review. Popovits further testified that about five minutes later defendant knocked at the door. Upon the officers’ opening the door, defendant told them that he wanted to talk and that he did not mean to hurt “those people.” The witness stated that Detective Swistowicz again advised defendant of his rights and defendant then admitted committing the offense. After defendant made his statement, the officers told him to finish his food while they contacted the felony review unit.

Assistant State’s Attorney James Kogut testified that, after receiving a telephone call from Detective Popovits, he arrived at the police station at 4 a.m. on December 9, 1985, and was informed of the investigation, but he was not told that defendant had requested counsel. After speaking with defendant alone, Kogut called Detectives Swistowicz and Carey back into the interrogation room and recited the oral statements defendant had made. The witness testified that defendant asked about “a deal” when asked to make a written statement. Upon being informed by Kogut that he had no authority to make a deal, defendant requested an attorney.

Defendant filed a motion to quash arrest and suppress evidence on the basis that he was arrested in his apartment without probable cause. The State argued that defendant was viewed as a source of information'or witness and perhaps a potential witness, but not as an about-to-be-charged suspect.

The trial court took judicial notice that it was 45 hours from the time defendant was brought into the station until he made the alleged statements to Detectives Swistowicz and Carey on the morning of December 9. The trial court ruled the statements were voluntary and the detention of defendant for 45 hours was not illegal or extraordinary as the officers were checking out leads and suspects. The court also ruled that defendant’s knock at the door, while detained, was an intervening factor if the request defendant made was for counsel and he made a knowledgeable decision to waive counsel. The trial court also held that, based on the testimony of Habiak, defendant was provided adequate food and washroom facilities.

After the hearing on this motion, defendant filed a supplemental motion alleging that the police did not have probable cause for his arrest at 2:30 p.m. on December 7, 1985. After a hearing, the supplemental motion was denied.

At trial, the State called Gregory Brooks, who testified that he had known Sherman Young for over 15 years and knew him to be a “hustler” and narcotics dealer. He further stated that he knew defendant as the person who also went by the name of Julian Allen or Julian Diamond. Brooks also testified that he knew defendant as a hairdresser and that defendant had styled his hair in exchange for narcotics.

Brooks testified that on the evening of December 6, 1985, he and Young were at Jones’ apartment. He stated that defendant called Young at Jones’ apartment and that he and Young took a cab to defendant’s apartment. The witness further stated that Young went into defendant’s apartment and returned with $160 for Young to purchase three grams of heroin for defendant. Brooks testified that they then procured the heroin and returned to Jones’ apartment, where they “snorted” one gram of heroin from the bag. Brooks further testified that he left Jones’ apartment at about midnight and, upon returning to his home, called defendant to tell him Young was on his way to deliver the narcotics. Brooks stated that defendant called him 30 minutes later, angry that Young had not arrived. Brooks also stated that defendant said he wanted either his narcotics or his money and that he would blow Young’s head off if he did not get one or the other. Defendant also told the witness that he had telephoned Young’s apartment and that Young’s sister lied by telling him that Young was not there. The witness further stated that at about 4:30 a.m. on December 7, 1985, Young telephoned him and said that defendant had set fire to his apartment.

Howard Borden, a night manager of a gasoline service station located at 7300 Stony Island Avenue, in Chicago, was called as the State’s witness. Borden testified that on the night of the fire he and his friend, Rodney Bradford, were alone at the gas station when defendant arrived. He stated that he had known defendant for years and that Bradford recognized him as a neighborhood resident. The witness stated that defendant needed enough gas to fill an empty insect spray can he was carrying because his car had run out of gas. He further stated that he told defendant that he would have to pump the gas himself because it was illegal to sell gas in anything other than a proper container. He further stated that after defendant finished pumping the gas he walked in the direction of the apartment building. The witness also identified the jacket defendant was wearing on the night of the fire and also identified a Black Flag insect spray can as one similar to that brought to the service station by defendant on the night in question.

A keeper of records for the Illinois Bell Telephone Company testified that on the night of December 6, 1985, several telephone calls had been made from the telephone listed in defendant’s name to a telephone located in the building where the fire occurred.

After hearing the evidence, the jury found defendant guilty of the murder of four victims and also guilty of arson. At a subsequent sentencing hearing, defendant was sentenced to a term of natural life imprisonment on the four murder convictions and to a concurrent term of seven years’ imprisonment for the arson conviction. This appeal followed.

Opinion

The first issue on appeal is whether the trial court erred in finding that defendant voluntarily accompanied police officers to the station for questioning on the morning of December 7, 1985, and that defendant was not subjected to an improper custodial interrogation. Defendant contends that he was placed under arrest when the police came to his apartment on December 7 at 6 a.m. and requested him to accompany them to the police station. Defendant also appeals the trial court’s finding that probable cause existed to place him under arrest at approximately 2:30 p.m. on December 7, 1985. Defendant further contends that no probable cause existed when the arrest occurred and that his incriminating statements and any evidence obtained therefrom were tainted by his illegal arrest.

It is well settled that an arrest has occurred when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Holveck (1990), 141 Ill. 2d 84, 95; People v. Graham (1991), 214 Ill. App. 3d 798.) This court recognized in Graham that there are several factors a court may look to in determining whether a reasonable person would believe he was under arrest. “These include the time and place of the confrontation, the number of officers, the presence or absence of family or friends, the presence of conduct normally involved in a formal arrest procedure, such as physical restraint, the show of weapons or force, booking or fingerprinting, and the manner by which the individual is transported to the police station.” (Graham, 214 Ill. App. 3d at 807.) In addition, our supreme court has considered the following factors: “[WJhether a reasonable person, innocent of any crime, would have considered himself arrested or free to leave [citations]; ‘[t]he intent of the officer and the understanding of the arrestee’ (People v. Sanders (1981), 103 Ill. App. 3d 700, 709); and whether the defendant was told he was free to leave or that he was under arrest.” (Holveck, 141 Ill. 2d at 95.) “A reviewing court will not disturb a ruling on a motion to suppress unless the decision was manifestly erroneous.” People v. Vega (1990), 203 Ill. App. 3d 33, 41; see People v. Reynolds (1983), 94 Ill. 2d 160.

Upon review of all the circumstances preceding the conversation with defendant,' we find that cumulatively they were such that a reasonable person would have concluded that he was not free to leave.

We believe that when Sherman Young pointed out defendant’s apartment to police officers at 6 a.m., they intended to treat defendant as a potential suspect and hold him at the police station until he was formally charged. Two police officers came in the front door while three other officers staked out the back door and a nearby alley. When defendant agreed to accompany the police to the station, one officer watched him dress while the other officer opened the back door so that the remaining police officers could enter defendant’s home. When leaving the apartment, defendant was wedged between the four officers and was not given the choice of arranging his own transportation to the station. Once defendant arrived at the police station, he was placed in a windowless interview room, was not permitted to move around freely, was given Miranda warnings, and was asked to take a polygraph test.

The State’s argument that an arrest did not occur until defendant was formally charged treats various factors in isolation and without regard to the standard of what a reasonable person would have believed in light of all the circumstances. While cases may hold that the absence of one factor or another does not make a police station stay involuntary, here there is a combination of factors which in the total analysis makes it clear an innocent reasonable person would feel he was not free to leave.

The facts of this case are remarkably similar to those in other cases which have held that an arrest occurred at the home. (See People v. Young (1991), 206 Ill. App. 3d 789; People v. Gordon (1990), 198 Ill. App. 3d 791; People v. Vega (1990), 203 Ill. App. 3d 33.) The common scenario is that the police come to the suspect’s home to ask questions concerning a crime. After he denies any knowledge, the police request his presence at the police station for additional questioning and he agrees to accompany them. The police then drive him to the police station, where he is placed in a small interview room and is questioned again. Though the suspect continues to deny any knowledge and does not provide any information which would implicate himself in the crime, he remains in the interview room for an extended period of time. At no time is he told he is free to leave, that he may come back to the station at a later time, or that he is under arrest. After repeated questioning, a polygraph examination, and Miranda rights have been read, the suspect eventually admits his guilt. Although the defendants in Young and Gordon agreed to accompany police to the station, the courts held, respectively, that an arrest had occurred at the home, and we are inclined to hold the same in this case. See Young, 206 Ill. App. 3d at 800; Gordon, 198 Ill. App. 3d at 799.

We find that under the circumstances of this case, a reasonable person would have concluded that he was not free to leave. (See generally Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) We therefore find that the trial court erred in finding no arrest was made at 6 a.m. when defendant was taken from his apartment.

Having found that defendant’s arrest was illegal, we must determine whether the incriminating oral statements he made after the arrest should have been suppressed. Defendant contends that the photo identifications made by the gas station attendants were fruits of the illegal arrest and should have also been suppressed. The State argues that both the incriminating oral statements and the photo identifications were admissible because of certain attenuating factors which broke the causal connection between the arrest and the statements. Specifically, the State maintains that probable cause to arrest defendant constituted an intervening circumstance which attenuated the taint of the illegal arrest. Since defendant appeals the trial court’s finding that probable cause existed to arrest defendant at 2:30 p.m. on December 7, 1985, we will address that issue first and then address the issue of attenuation.

Probable cause to arrest exists when facts and circumstances within an officer’s knowledge are sufficient to lead a reasonable and prudent person to believe the defendant committed the offense. (People v. Tisler (1984), 103 Ill. 2d 226, 237; People v. Thompson (1991), 215 Ill. App. 3d 514, 519.) The probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause exists. (Tisler, 103 Ill. 2d at 236; Thompson, 215 Ill. App. 3d at 519.) “[C]ourts are not disposed to be unduly technical, and the determination is to be based on the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act.” (Thompson, 215 Ill. App. 3d at 519.) The trial court’s finding on the issue of probable cause will not be reversed unless it is manifestly erroneous. People v. Earley (1991), 212 Ill. App. 3d 457, 465; People v. Holmes (1989), 198 Ill. App. 3d 766, 773.

Following the hearing on defendant’s motion to quash arrest and suppress evidence, the trial court held a supplemental hearing to determine whether probable cause existed to arrest defendant at 2:30 p.m. on December 7, 1985. During the supplemental hearing, we believe that sufficient evidence was presented to uphold the trial court’s finding of probable cause and to determine that there were attenuating factors breaking the causal link between the illegal arrest and defendant’s statements.

The trial court heard testimony from investigators that the fire was deliberately set at the apartment door in which Sherman Young and his sister, Sarah Davis, lived. In addition, Davis told officers that defendant made several telephone calls to her home threatening to harm her brother if he did not get what he wanted. The police also determined from conversations with Yvonne Jones and Gregory Brooks that defendant attempted to purchase narcotics from Young but that Young used the drugs for himself. Investigators had questioned other persons who. might have had reason to harm Young and checked out their stories before defendant was arrested. The record not only indicates that Young, the targeted victim, said defendant was the arsonist but his actions in accompanying police and identifying defendant’s residence suggest that Young considered defendant as a suspect. The trial court also heard testimony that defendant held his breath during the polygraph examination and that defendant was preparing to leave town the day after the fire.

Recognizing that polygraph examinations may not be utilized in a determination of probable cause (see People v. Jones (1987), 157 Ill. App. 3d 1006), and that it is improper to consider the fact that defendant was leaving town, we find that any weight given to these considerations was harmless error. We believe police officers had probable cause to arrest defendant based on all of the other aforementioned considerations. We therefore find that the trial court did not err in denying defendant’s second motion to quash arrest and suppress evidence, which was based on the trial court’s finding that the police had probable cause to arrest defendant at 2:30 p.m. on December 7, 1985.

We next address the issue of whether defendant’s statements and the photo identification made by gas station attendants should be suppressed. In People v. Young (1990), 206 Ill. App. 3d 789, 803, we set forth the standard and factors that are taken into consideration in determining whether to suppress illegally obtained evidence. We stated:

“The fact that an arrest is illegal does not mean that all statements made thereafter are per se excludable. [Citation.] The determining question *** is whether defendant’s statements were obtained as a result of the exploitation of his illegal arrest or obtained by means sufficiently distinguishable to be cleansed of the original taint. In Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, the United States Supreme Court noted that this question ‘must be answered on the facts of each case.’ [Citation.] As an aid to answering that question, the Court set forth several significant factors, including: (1) the presence of Miranda warnings; (2) the temporal proximity of the arrest and the statement; (3) the presence of any intervening circumstances to break the causal connection between the arrest and the statement; and (4) the purpose and flagrancy of the official misconduct.” (Emphasis in original.) Young, 206 Ill. App. 3d at 803.

After reviewing the record, we find that defendant’s statements were attenuated from the taint of the illegal arrest. The most important factor in our analysis is the intervening acquisition of probable cause. (People v. Pierson (1988), 166 Ill. App. 3d 558, 564.) “[WJhere the police acquire probable cause after an arrest but before a statement is given, ‘one could question the wisdom of requiring police to go through the formality of releasing [the defendant], only to rearrest him outside the jailhouse door/ ” (Pierson, 166 Ill. App. 3d at 564, quoting People v. Lekas (1987), 155 Ill. App. 3d 391, 414.) In addition, although police conduct in effectuating the arrest was illegal in this case, it was not particularly flagrant. At the time defendant was apprehended, police knew that the fire was the result of arson. They went to defendant’s home after having learned of his threatening telephone calls and after having been led to defendant’s home by the targeted victim of the fire. Moreover, defendant made his inculpatory statements several hours after his arrest and after he had repeatedly been read his Miranda warnings. After reviewing the record, we believe that the statements made by defendant were obtained by means sufficiently distinguishable to be cleansed of the illegal arrest. Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

We also believe that the trial court properly admitted the photograph identification of defendant by Howard Borden and Rodney Bradford as the man who purchased gasoline in an insect can shortly before the fire. Since there is no evidence in the record to suggest that defendant’s photo was taken prior to a finding of probable cause to arrest, we cannot find that police acted improperly in using the photograph to obtain a positive identification of defendant from the gas station attendants.

Defendant also contends that his inculpatory statements should have been suppressed because he was denied his fifth amendment right to counsel. After defendant requested counsel, the police requested his jacket to inventory because witnesses at the gas station could identify the jacket. Defendant contends that this request was a tactic designed to elicit a response from him and that it amounted to a continued interrogation in violation of his right to counsel.

When a suspect invokes his right to have counsel present during custodial interrogation, all questioning must cease until counsel has been made available. (People v. Jackson (1990), 198 Ill. App. 3d 831, 840, citing Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885.) To demonstrate that defendant has waived his right to counsel after the right has been invoked, the State must show, by a preponderance of the evidence, that the accused initiated the further communication with police. (Jackson, 198 Ill. App. 3d at 840; People v. Mackey (1990), 207 Ill. App. 3d 839, 858.) Whether a defendant voluntarily initiates a later statement is determined by examining the totality of the circumstances, and the trial court’s finding on this issue will not be reversed unless it is manifestly erroneous. People v. Gray (1991), 212 Ill. App. 3d 613, 616.

We find the trial court’s ruling that police officers honored defendant’s right to counsel and that defendant voluntarily initiated conversation with police officers was not manifestly erroneous. When defendant requested an attorney, police officers immediately stopped the interrogation. The officers requested defendant’s jacket and then left the room. Approximately 10 minutes later, defendant knocked on the door and reinitiated conversation with the officers. After being advised of his rights, defendant made the first of his two oral confessions. We do not believe that the police request for defendant’s jacket resulted in a continuing interrogation under the totality of the circumstances test. Nor do we believe that the detectives’ conduct amounted to a psychological tactic designed to elicit a response from defendant.

We therefore find that the trial court did not err in finding that defendant’s confession was voluntary.

Belatedly, defendant asserts that his post-arrest statement was involuntary because he was denied food, the opportunity to sleep, and access to washroom facilities. We disagree.

The evidence demonstrates that defendant was held in a lockup cell and in an interview room for the duration of his detention at the police station. The lockup facilities contained washrooms in addition to long benches on which defendant could have slept. Sandwiches were also provided for individuals held in lockup. Defendant never complained about his lack of sleep, lack of food, or about the availability of washroom facilities. Detective Swistowicz testified that he took defendant to the washroom three times. He also stated that he saw defendant sleeping in one of the interview rooms on several occasions. Detective Popovits testified that he brought defendant a cheeseburger and a soda shortly before he confessed. Also during his detention, an assistant State’s Attorney asked defendant about the quality of his treatment and he voiced no complaint.

We believe, contrary to his contentions, that defendant had ample access to the rudimentary necessities of life while in police custody and we do not believe his confession was coercive in nature. “Findings by the circuit court on the question of voluntariness of a confession will not be disturbed by a court of review unless they are against the manifest weight of the evidence.” (People v. Redd (1990), 135 Ill. 2d 252, 292-93; see People v. Jones (1990), 196 Ill. App. 3d 937.) In view of the totality of the circumstances, we perceive no error in the trial court’s finding that defendant’s confession was voluntary.

Next, defendant contends that he was denied a fair trial by the introduction of irrelevant and prejudicial evidence. First, defendant asserts that the State deliberately elicited extensive testimony from four firemen describing how they fought the fire and attempted to rescue trapped victims merely to arouse sympathy for the firemen. Defendant also contends that testimony by surviving fire victims who described their escape from the fire was designed to focus on the victims’ pain and suffering. Defendant contends that the matters presented by the State were irrelevant and were presented in a manner to lead the jurors to believe that they were material and relevant.

Generally, evidence which tends to prove or disprove a disputed fact or to render a matter at issue more or less probable is relevant and should be admitted. (People v. McGee (1991), 211 Ill. App. 3d 641, 650.) “The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion.” People v. Ward (1984), 101 Ill. 2d 443, 455-56.

In this case, defendant was charged with arson and murder and the State’s burden of establishing defendant’s guilt was proof beyond a reasonable doubt. Testimony by firefighters and surviving victims as to the extent of the fire was clearly relevant to proving elements of the offenses charged. The State’s proof of the nature and extent of the arson could not be limited simply because defendant did not contest the fire was an arson. Similarly, although defendant did not contest the fact that four victims died in the fire, the State was nevertheless permitted to present evidence on how the victims died. Although the witnesses’ testimony was prejudicial, we believe that its probative value was not outweighed by its prejudicial effect. We therefore find that the trial court did not abuse its discretion in permitting the State to question its witnesses in detail about the fire.

Defendant also contends that the trial court abused its discretion when it permitted eight blown-up photographs of the deceased victims into the jury’s deliberations.

Our supreme court has held that “photographs of a decedent which are relevant to establish any issue of fact are admissible in spite of the fact that they may be gruesome or inflammatory [citations], and that it is not an abuse of discretion to allow the jury to consider, photographs which may be characterized as ‘disgusting’ [citations].” (People v. Simms (1991), 143 Ill. 2d 154, 177.) The court also held that “ ‘[t]he major bulwark against prejudicing the jury is the sound discretion of the trial judge.’ ” Simms, 143 Ill. 2d at 177, quoting People v. Foster (1979), 76 Ill. 2d 365, 378.

As we previously stated, the State was permitted to present evidence on how the victims died. Although the photographs were gruesome and disgusting, we cannot find that the trial court abused its discretion in admitting the photographs into the jury’s deliberations.

Next, defendant contends that the trial court erred in admitting hearsay evidence by Gregory Brooks that Young told him defendant had burned his apartment. The State argues that defendant failed to raise an objection to Brooks’ testimony during the trial and, therefore, he has waived his right to appellate review.

It is well recognized that alleged trial errors not objected to at trial or preserved in a post-trial motion are waived on appellate review. (People v. Enoch (1988), 122 Ill. 2d 176, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 176, 109 S. Ct. 274.) Only if the evidence is closely balanced or if the error is of such magnitude that defendant was denied a fair trial will a reviewing court consider the error under the plain error doctrine. (People v. Nitz (1991), 143 Ill. 2d 82, 108.) In addition, “hearsay evidence admitted without objection is properly considered by the court and is to be given its natural probative effect.” People v. Darnell (1990), 214 Ill. App. 3d 345, 360.

We find that the plain error rule does not apply in this case, because the evidence is not closely balanced nor is the alleged error of such magnitude that defendant was denied a fair trial. The evidence supporting defendant’s conviction in this case was overwhelming, notwithstanding the admission of Brooks’ alleged hearsay testimony. Because defendant failed to object to Brooks’ alleged hearsay testimony at trial or in any of his post-trial motions, the issue is waived.

Defendant also contends that hearsay testimony by Kenneth Parks that Sarah Davis told him about threatening calls from defendant was improperly admitted and resulted in reversible error. The State argues that Officer Parks’ testimony was properly admitted under the excited utterance exception of the hearsay rule. The trial judge found that the statements were admissible under the excited utterance exception of the hearsay rule.

“It is undisputed that there are three factors to be considered when determining the admissibility of a statement under the spontaneous declaration exception: (1) there must be an occurrence sufficiently startling to produce a spontaneous and unreflected statement, (2) absence of time to fabricate, and (3) the statement must relate to the circumstances of the occurrence.” People v. Hart (1991), 214 Ill. App. 3d 512, 521; In re L.S. (1989), 190 Ill. App. 3d 1031, 1034.

At the time Officer Parks encountered Davis, she was crying and screaming hysterically. She had just witnessed an explosion at the front door of her apartment and had to run for safety. In addition, she had just witnessed a neighboring tenant fall to her death while their home was being destroyed by the fire. We believe that these conditions satisfied the requirements to admit Davis’ comments under the excited utterance exception of the hearsay rule.

We therefore find that the trial judge did not abuse his discretion when he admitted Officer Parks’ testimony that Sarah Davis told him about the threatening calls from defendant under the spontaneous declaration exception.

Next, defendant contends that the trial court erred in denying defense counsel’s motion to withdraw as counsel due to a conflict of interest. After the trial, defendant filed a pro se motion for a new trial alleging inadequacy of counsel in failing to call certain witnesses during the post-trial hearings. During the hearing on this motion, defense counsel moved to withdraw as counsel because defendant filed a civil suit against him. The court found defendant’s civil claim to be without merit and denied the motion to withdraw as counsel. Defendant contends that since his attorney was laboring under a conflict of interest due to his allegations, the trial court erred in not permitting counsel to withdraw.

“Inherent in a trial judge’s authority to conduct and preside over a criminal trial is the discretion to conclude that a defendant’s conduct or pursuit of an otherwise legal right is frivolous and merely an attempt to frustrate the administration of justice.” (People v. Hardeman (1990), 203 Ill. App. 3d 482, 490.) The trial court’s discretion in such cases is subject to review, but “the trial judge must be assured that he is not hamstrung and that he may exercise the discretion.” (Hardeman, 203 Ill. App. 3d at 491.) In addition, “the trial court should examine the factual matters underlying the defendant’s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed.” (People v. Reed (1990), 197 Ill. App. 3d 610, 612.) “Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court should new counsel be appointed.” Reed, 197 Ill. App. 3d at 612.

Upon review of the record, we do not find that the trial court abused its discretion in finding that defendant’s civil claim was without merit. In addition, the record does not demonstrate that the outcome in this case would have been different had defense counsel’s motion been granted. Defendant’s allegations were primarily concerned with defense counsel’s failure to call certain witnesses which is clearly a matter of trial strategy and tactics. (See People v. Allen (1989), 184 Ill. App. 3d 438, 452.) We therefore hold that the trial court did not err in denying defense counsel’s motion to withdraw as counsel due to a conflict of interest.

Lastly, defendant contends that the mandatory natural life provision of the statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)) violates due process and is therefore unconstitutional.

Defendant’s contention that section 5 — 8—1(a)(1) is unconstitutional because it violates due process has been rejected by this court. (See People v. Rivera (1988), 176 Ill. App. 3d 781, 791; People v. Bailey (1987), 164 Ill. App. 3d 555, 579.) We therefore find defendant’s contention challenging the constitutionality of section 5 — 8—1(a)(1) without merit.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LA VANCE PARSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0990
    Opinion filed April 26, 1993.
    Supplemental and modified opinion filed December 13, 1993.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Celeste Stewart Stack, Special Assistant State’s Attorney, and Renee Goldfarb and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, La Vance Parson, was found guilty of murder and two counts of attempted murder and sentenced to a prison term of 40 years for the murder conviction and to two terms of 20 years each for the attempted murder convictions. The mittimus stated the sentences were to run consecutively. On appeal, defendant contends that: (1) the prosecutor made improper remarks during closing argument which denied his right to a fair trial; (2) the trial court’s instructions on attempted murder improperly allowed the jury to find the defendant guilty of attempted murder without finding a specific intent to kill; (3) he was improperly convicted on two murder counts where only one person was killed; (4) the trial court improperly increased his sentence by written order; (5) the trial court erred in imposing consecutive sentences; (6) the trial court erred in refusing to consider his rehabilitative potential; and (7) the trial court erred in refusing to answer the written questions of the jury regarding instructions submitted to the court during the jury’s deliberations. For the following reasons, we affirm defendant’s conviction, remanding this cause for the sole purpose of clarifying defendant’s sentence and correcting the mittimus.

THE TRIAL

The following facts were adduced at trial. On April 17, 1987, at 1 a.m., eight young people stepped out of a first-floor elevator at 3737 South Federal Avenue, Chicago, Cook County, Illinois, and were assailed with gunfire. As a result of the shooting, James Atkins, Jr., was killed and Raymond Spain and Darryl Davis were injured. At trial, William Martin Dossance testified, on behalf of the State, that in 1987 he was in the United States Army stationed at Fort Campbell, Kentucky. In April of that year, he, Atkins and Von Thomas, who were all in the same Army unit, received a three-day pass and drove to Chicago. The three men arrived in Chicago just past midnight on April 17, and proceeded to 35th and State Streets, where they met up with Dossance’s brother, Melchor Spain, his cousin, Raymond Spain, Darryl Davis, Yolanda Spain and Ronald Daney. Together, all eight visited Rose Williams, Raymond’s girl friend, in her apartment on the eighth floor of 3737 South Federal Avenue.

After approximately 45 minutes, the group left Williams’ apartment, taking the elevator down to the first floor. When the elevator door opened on the first floor, Dossance saw two young men standing outside of the elevator; one standing directly in front of the elevator was wearing a light blue jacket with a black “Fila” baseball cap and the other, standing five to six feet away from the elevator, was wearing a gold “Dunbar” shirt and red sweat pants. Dossance identified the defendant in court as the individual wearing the gold shirt and red sweat pants. The other individual was subsequently identified as Anthony Thomas.

Yolanda and Raymond Spain were the first to get out of the elevator. Dossance, Melchor Spain, and Daney followed, with Atkins, Thomas and Davis behind them. They all turned right and began walking toward the building exit, away from the defendant and Thomas. Suddenly, the group heard gunshots being fired from behind them, coming from all directions. Dossance ran out of the building, down a ramp and through an open field. When he got to the street, he turned, noticed Yolanda and Thomas behind him, and flagged down a police car. When he returned to the scene, Dossance found Atkins lying on the sidewalk, bleeding out of his mouth. Later that day, Dossance identified defendant and Thomas in a police lineup.

Yolanda Spain testified to the same essential facts as Dossánce. In addition, she stated that the hallway by the elevator was well lit. When she heard the gunshots, Raymond pushed her and told her to run. She ran down the outside stairs of the building, and when she reached the bottom, turned to look back into the building. At that time, she saw Thomas holding and firing a silver gun, as defendant stood beside him. Defendant and Thomas moved from the doorway and ran through the columns of the building. They ran down the stairway, together, right past Yolanda. All the while, Thomas was firing his gun. When she could no longer see the two men, Yolanda ran over to Dossance and they ran to the next building and waited for the police. Later that day, Yolanda also identified defendant and Thomas in a police lineup.

Raymond Spain testified, corroborating the testimony of Dossance and Yolanda regarding the events of April 17, 1987. Raymond further testified that Ronald Daney was a member of the Del Vikings street gang. When he heard the gunfire from behind him, Raymond pushed Yolanda, told her to run and then ran himself. He then heard more gunfire, coming from all around him. He ran toward the pillars of the building and then ran between them. As he was running between the pillars, he was hit by a bullet in his lower back. He continued to run, and then felt another bullet hit him in the back of the head. He continued running out of the building heading westward. He turned on the sidewalk, running south towards 39th Street, ran down to the next building and hid behind an oak tree. As he was running, he continued to hear gunshots. Raymond stayed hidden behind the tree until his cousin, Melchor, arrived. Raymond told Melchor that he had been hit, and Melchor stayed with him until the police came and took him to Michael Reese Hospital.

Raymond was hospitalized for six days, and had surgery to remove his gallbladder and kidney, and additional surgery on his liver. Approximately one year later, Raymond returned to the hospital for additional surgery on his bowels as a result of scar lesions from his previous surgery.

Darryl Davis also testified on behalf of the State to the same essential facts as the previous prosecution witnesses. When he exited the elevator, he saw defendant and Thomas standing side by side. Thomas took a silver gun from his belt and started shooting at the group. Davis started running to the right, toward the building exit, and then ran to the top of the stairs. When he reached the stairwell, he was shot in the chest while trying to jump off of the stairs. Davis continued running, and when he reached the bottom of the stairwell, he ran west toward Federal Avenue. As he ran, he heard more gunshots fired. He ran to the Dan Ryan “el” station at 35th Street and flagged down a police car. An ambulance arrived and transported him to Michael Reese Hospital. Later that day he identified defendant and Thomas in a lineup.

The parties stipulated to the testimony of Dr. Eupil Choi, of the Cook County medical examiner’s office. Dr. Choi performed an autopsy on James Atkins, Jr., and found three fatal gunshot wounds to Atkins’ body, all entering through Atkins’ back.

The parties further stipulated to the testimony of Dr. Tolitano. Dr. Tolitano performed surgery on Raymond Spain and found an irreparable bullet wound through Raymond’s right kidney, and wounds to Raymond’s gallbladder and liver. Dr. Tolitano removed Raymond’s gallbladder and a portion of his liver. Dr. Tolitano further treated a gunshot wound to Raymond’s head. Dr. Tolitano also treated Davis for a gunshot wound to his chest.

Next, Chicago police officer Alan Szudarski testified that on April 17, 1987, he investigated a shooting at the 3700 block of South Federal. Officer Szudarski found Atkins lying across the street from 3737 South Federal, face down, shoeless, and with three bullet wounds in his back. From previous investigations, Officer Szudarski was aware that the building was controlled by the Disciples street gang. The Del Vikings, a rival gang, controlled two buildings on South State Street, approximately a half block east of the building at 3737 Federal Avenue.

Officer Szudarski left the scene and travelled to Michael Reese Hospital, where he interviewed Raymond Spain and Darryl Davis. At approximately 5:30 a.m., Officer Szudarski interviewed Rose Williams, Ronald Daney and the Spain family members. At 7 a.m., Officer Szudarski proceeded to 3919 South Federal Avenue, where he arrested defendant. The officer read defendant his rights, and defendant stated that he understood them. Officer Szudarski then left the police station and continued his investigation, arresting Anthony and Louis Williams, Anthony Thomas, Victor Pickens, and Randolph Ellis.

At approximately 10:45 a.m., Officer Szudarski spoke to defendant’s mother and then allowed her to speak to defendant. Assistant State’s Attorney Joel Leighton arrived at 2 p.m., and at 6 p.m., he interviewed defendant for 10 to 15 minutes in the presence of youth officer Ronald Mohrs and Officer Segers. At 9 p.m., Leighton returned to defendant’s holding cell and read defendant’s statement to him. Defendant made corrections and signed the statement.

On cross-examination, Officer Szudarski testified that when he arrived at defendant’s apartment to arrest him, defendant was asleep in his bed. At that time, defendant was bare-chested and wearing red sweat pants. The officer denied going through any drawers. When defendant was awakened by the police, he put on a goldenrod-colored “Dunbar” t-shirt.

Assistant State’s Attorney Joel Leighton then testified on behalf of the State to the same essential facts regarding defendant’s interview procedure on April 17, 1987. Leighton informed defendant that witnesses identified him and Thomas in a lineup, regarding the shooting at 3737 South Federal. Leighton advised defendant of his constitutional rights, and defendant responded that he understood them. Leighton also asked defendant if he wanted his mother present during the interview, and defendant said he did not want her there.

Defendant stated that he went to 3737 South Federal at around 1:30 a.m. on April 17, 1987, and that while he was there he met Louis Williams, Anthony Williams, Randy Ellis, Gage (Gerald Jeter), Iced Tea (Anthony Thomas) and Victor Pickens. Defendant stated that he knew these individuals because they were all members of the Black Gangster Disciples street gang, of which defendant was also a member. Defendant stated that Anthony Williams told him and the Black Gangster Disciples that a person named “Rank” was in the building and that Rank was a member of the Del Vikings. Anthony Williams asked Gerald Jeter where the shotguns were to get Rank. Gerald Jeter said he did not know where the shotguns were. At this point, Anthony Williams told defendant and the other members of the group to go to various locations around the building at 3737 South Federal and wait for Rank and the people to come out of the building.

Defendant stated that at Anthony Williams’ direction, he went to the elevators with Victor Pickens and Anthony Thomas. A short time later, Rank came out of the elevator, along with a group of people. Anthony Thomas produced a handgun, and Victor Pickens ran. Defendant and Anthony Thomas followed Rank and the group down the hallway a short distance and then Anthony Thomas fired four or five shots into the group. Defendant stated that he heard 15 to 20 more shots coming from other places. Defendant then ran back into the building and hid until he saw the police leave, then he went home.

Leighton wrote out a summary of defendant’s statement and read it to defendant. Defendant changed the time of the incident from 1:30 to 1:15 a.m. and signed the statement.

On cross-examination, Leighton denied telling defendant that he was not a subject of the investigation of the incident. Leighton also stated that defendant told him he was either a freshman at Dunbar high school or that he was in the eighth grade. At the close of the State’s case, the trial court denied defendant’s motion for a directed finding of acquittal.

Kimulette Spinks, defendant’s sister, then testified on defendant’s behalf. Spinks stated that on April 17, 1987, during the early morning hours, she was at home in bed. Defendant had been out that night, but had returned home at midnight or 12:30 a.m. At that time, defendant was wearing a blue corduroy jacket that belonged to Spinks. At around 8 a.m., the police arrived at Spinks’ apartment. Spinks opened the door and unlocked the gate, and the police came in. The police did not show her a warrant. The police searched the rooms, looking under all • of the mattresses and in drawers. When they found defendant, the police told him to put on his shoes and get a coat, because they were taking him down to the station to answer some questions.

Next, Susan Nichols testified that in 1987 she was defendant’s classroom teacher at Central Baptist Family Services. The Central Baptist Institute is a special school for learning disabled students, who are referred by the Chicago Board of Education. Nichols was defendant’s teacher for approximately IV2 years. In April 1987, Nichols evaluated defendant for reading, math and spelling. At that time, defendant’s word recognition, spelling and comprehension skills were at first-grade level, and his math skills were at the third-grade level.

Defendant then testified on his own behalf. Defendant stated that on April 17, 1987, he returned to his apartment at 1 a.m or 1:15 a.m. and went to sleep. The police awakened him in the morning, told him to step aside and began searching the room. They turned over his mattress and started going through drawers. The officers then told defendant to get dressed and that they were taking him down to the station for questioning. At that time, defendant put on red “snap-down” pants and a yellow “Dunbar” t-shirt.

The police took defendant to the police station and left him alone in a steel room. About five or six hours later, defendant saw his mother. Defendant stated that on the prior evening, defendant went to a party on the seventh floor of the State wing, two buildings down from his building. He was accompanied by Victor Pick-ens. Defendant and Pickens stayed at the party for three to four hours, then began to walk home. As they were walking home, they heard shots and started running to defendant’s apartment. Defendant did not see anybody shooting. When he arrived home, defendant told his sister that he heard shots, but that he did not know if they were shooting at him. Defendant then watched TV and fell asleep. At that time, defendant stated that he was wearing Burgundy dress pants and a dress shirt with a blue corduroy jacket. Defendant stated that at no time on the evening of April 16 or in the early morning hours of April 17 was he dressed in a yellow Dunbar sweater or red button-up pants until after he was awakened by the police.

At the police station, the police asked defendant where he was during the shooting and he told the police that he went to a party with Victor Pickens, that he was not in a gang, and that he had nothing to do with the shooting. Defendant appeared in a lineup, then made the same statement to Assistant State’s Attorney Leighton. Defendant testified that what Leighton wrote down was not true and that defendant only signed the statement so that he could go home.

On cross-examination, defendant stated that neither Victor Pick-ens nor Anthony Thomas is a member of a gang. Defendant was aware that 3737 South Federal is a Disciples building. Defendant stated that he did not see Anthony Thomas that night. Defendant testified that Dossance, Raymond Spain, Yolanda Spain and Darryl Davis were all lying when they testified as to the events of April 17, 1987.

The defense rested, and the trial court held an instruction conference. The instructions given were tendered without objection except for Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981), regarding the believability of a witness, which was tendered by defendant and given over the objection of the State. Both sides presented closing arguments, and the jury found defendant guilty of murder and two counts of attempted murder. Defendant’s timely appeal followed.

Opinion

Initially, defendant contends that the prosecutor made prejudicial remarks during closing argument, thereby denying him a fair trial. Defendant objects to the following remarks made by the prosecutor:

“What do you have to believe to believe his testimony? You would have to believe that Yolanda Spain is a liar. You have to believe William Dossance, United States Army, a liar. Raymond Spain, shot in the back, a liar. Darryl Davis, shot in the chest, a liar.
It is worse than that, though. You have to believe Detective Szudarski is a liar, that Youth Officer Mohrs is a liar * * * * * *
Then he calls ASA Leighton, an assistant state’s attorney, an attorney licensed to practice in the State of Illinois. He says, you know Bill, we know LaVance did not have anything to do with it, but we are just going to frame him. Why don’t you just make up a statement?”

Defendant argues that the prosecutor’s above comments are grounds for reversal because they misstate the burden of proof, incorrectly stating what the jury must find to reach a certain verdict.

Defendant made no objections to these statements at trial nor did he address them in his post-trial motion. As such defendant has waived this issue for review. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Even if defendant had preserved this issue for consideration, closing comments similar to those presented by the State in the present case have been allowed and found not prejudicial where the prosecution’s version of the incident varies substantially from the version given by the defense. (People v. Pecoraro (1991), 144 Ill. 2d 1, 16, 578 N.E.2d 942.) In Pecoraro, the defendant was found guilty of murder. At trial, the testimony of the State’s witnesses differed considerably from defendant’s version of the occurrence. In closing argument, the prosecutor stated:

“ ‘[I]f you go back and you — say you come back with something other than a finding of guilty, what you’re saying is, Mr. Barbaro, we didn’t believe you. *** Officer Becker, we don’t believe you either.’ ” (144 Ill. 2d at 16.)

The supreme court found that under the circumstances, the court appropriately allowed the statements by the prosecution implying that the jury would have to believe one side or the other. See also People v. Smith (1987), 158 Ill. App. 3d 595, 600, 511 N.E.2d 770 (court found that prosecution’s closing argument that in order to believe the defendant, the jury would have to believe everyone else was lying was basically true, as the versions of the incident varied substantially between the prosecution and the defense).

In the present case, the defendant’s version of the incident differed considerably from that given by witnesses for the prosecution.

Moreover, the cases relied upon by defendant in support of his contention, People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827, and People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571, are distinguishable.

In Crossno, it was undisputed that a voluntary act of the defendant caused the fatal injury to the victim. The issue before the court, therefore, was defendant’s state of mind. In closing argument, the prosecutor informed the jury:

“ ‘You can either believe the Defendant or you can believe Ann Lowery, Paul King, Kathy Osborne, and Ricky Seaman. If you believe the Defendant you have got to find him not guilty of everything. If you believe the other witnesses you’ve got to find him guilty of murder and aggravated battery.’ ” (Emphasis added.) (Crossno, 93 Ill. App. 3d at 821.)

The court noted that a review of the testimony of all the witnesses established that the jury could fully believe the testimony of some if not all of the State’s witnesses and still find the defendant not guilty. Thus, the court found that more was involved than the credibility of the State’s witnesses, and the prosecutor misstated the law when he said that a finding by the jury that the stories of those witnesses were sincere necessitated verdicts of guilt as to murder and aggravated battery. Crossno, 93 Ill. App. 3d at 822.

In Wilson, defendant was convicted of attempted criminal assault. This court found that the evidence against the defendant, while sufficient to prove guilt, was not overwhelming. The record further disclosed that the principal witness for the prosecution had a motive to lie about the assault. In closing argument, the prosecutor stated:

“ ‘Is it curious to anyone the defense would have you believe everybody in this case is guilty except the Defendant? [State’s witness] Kondal committed perjury. The State’s Attorney is guilty of trying to frame someone. [The victim] is guilty.’ ” (Wilson, 199 Ill. App. 3d at 796.)

We found that the prosecutor’s statement was not an instruction to the jury concerning how it must consider the evidence, but rather, that the defendant carried a burden of proof to establish his innocence, and to meet that burden of proof, Wilson was required to show that the State’s witnesses had lied. The prosecutor’s statement created doubt as to whether the jury applied the proper standard of proof in considering the evidence, and, therefore, the statement was substantially prejudicial. Wilson, 199 Ill. App. 3d at 797.

In the present case, the comments of the prosecutor do not rise to the level of those comments made in Crossno and Wilson. First, the record indicates that this is not a close case in terms of the evidence. There are no discrepancies between the testimony of the State’s witnesses; rather, the testimony of the defendant is irreconcilable with the testimony of the State’s witnesses. Second, the prosecutor in the present case does not state what the jury must find in order to reach a certain verdict; the prosecutor merely points out that defendant’s testimony is contrary to the testimony of the State’s witnesses. Therefore, regardless of waiver, the comments of the prosecutor were not prejudicial and not reversible error.

Next, defendant contends that the jury was improperly instructed as to his attempted murder charges. The record shows that the jury was given a three-part instruction. First, the trial court defined “murder”:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause death, he intends to kill or do great bodily harm to that individual or another; or he knows that such acts will cause death to that individual or another; or he knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

After giving this instruction, the trial court defined “attempt” as follows:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been committed.”

The court then set forth the necessary elements of attempted murder in the present case:

“To sustain the charge of attempt, the State must prove the following propositions. This is the attempt as to Raymond Spain.
First, that the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step toward the commission of the offense of murder of Raymond Spain; and second, that the defendant, or one for whose conduct he is legally responsible, did so with intent to commit the offense of murder of Raymond Spain.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

The identical instruction was given regarding the attempted murder of Darryl Davis. Defendant contends that the above jury instructions fail to reflect the requirement of a specific intent to kill, but rather, indicate that intent to do great bodily harm is sufficient to convict a defendant of attempted murder.

It is well settled that the specific intent to kill is an essential element of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Solis (1991), 216 Ill. App. 3d 11, 19, 576 N.E.2d 120.) However, a party must specifically object to improper jury instructions in a timely manner. “ ‘[T]he failure to object at trial to an asserted error in jury instructions waives the question.’ ” Solis, 216 Ill. App. 3d at 19, quoting People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027.) Similarly, “issues not raised in a post-trial motion are effectively waived for appellate review.” (Tannenbaum, 82 Ill. 2d at 181.) A limited exception to this rule is available to correct a grave instructional error, or where the facts are close and fundamental fairness mandates that the jury be properly instructed. 134 Ill. 2d R. 451(c); Tannenbaum, 82 Ill. 2d at 182.

Under certain circumstances, an erroneous jury instruction constitutes harmless error. However, an erroneous intent instruction does not warrant reversal where intent to kill is evident from the circumstances. Solis, 216 Ill. App. 3d at 19, citing People v. Bryant (1984), 123 Ill. App. 3d 266, 274, 462 N.E.2d 780; Jones, 81 Ill. 2d at 9.

Defendant relies on People v. Bland (1992), 228 Ill. App. 3d 1080, 593 N.E.2d 639, which is distinguishable from the present case. In Bland, the defendant’s intent to kill was at issue because his defense was that he intended to harm the victim in response to her solicitation of sex, but did not intend to kill her. The evidence disclosed that the State explicitly told the jury during closing argument that to prove the charge of attempted murder the State had to prove that defendant intended to commit the offense of murder and that defendant intended to commit great bodily harm. Not once did the State explain that the intent necessary to convict for attempted murder was the intent to kill. The defendant in Bland raised the error in his post-trial motion.

In the present case, the record shows that defendant neither objected to the instruction at trial nor raised the issue of the improper instruction in his post-trial motion. In addition, the intent to kill is evident from the evidence, which reveals defendant’s overwhelming guilt. As such, the jury instruction constituted harmless error.

Next, defendant contends that the mittimus erroneously indicates two murder convictions when he was actually convicted of two counts of murder for a single homicide. The “narrative” section of the mittimus indicates that the two murder convictions are merged; however, the “offense” section sets out two separate convictions. In addition, defendant contends that his sentence was improperly increased to 80 years’ consecutive imprisonment, after the court pronounced a sentence of 40 years for murder and two 20-year sentences for attempted murder. Defendant points out that the mittimus and the court “half-sheet” both indicate that his sentences are to run consecutively, but the record shows that in pronouncing defendant’s sentence, the trial court failed to indicate that defendant’s sentences were consecutive. The State does not dispute these discrepancies. Under the circumstances, we find it necessary to remand this cause to the trial court for the limited purpose of correcting the mittimus and clarifying the nature of defendant’s sentence.

Defendant further contends that in the event his sentences are intended to run consecutively, the trial court erred in imposing such a sentence. Section 5 — 8—4 of the Unified Code of Corrections (Corrections Code) provides:

“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-4(a).)

Section 5 — 8—4 further provides:

“(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-4(b).)

Defendant argues that the trial court failed to set forth the required finding that consecutive sentencing was necessary to protect the public from defendant’s further criminal conduct. In support of his contention, defendant states that prior to the instant offense, his criminal record was limited to one juvenile battery adjudication, for which he received 30 days in the Juvenile Department of Corrections and one year’s probation. Defendant further states that his level of participation in the instant offense was minimal because he was merely a “tag-along.”

Defendant cites People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836, for the proposition that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public. Pittman, 93 Ill. 2d at 178, 442 N.E.2d at 840; see also People v. O’Neal (1988), 125 Ill. 2d 291, 298, 531 N.E.2d 366, 369 (consecutive sentences should be imposed sparingly, although a trial court need not actually recite the language of section 5 — 8—4(b) when imposing a consecutive sentence).

The State argues, however, that the defendant failed to request a statement of reasons for the sentences given, and because the court does not have an independent duty to give a statement of reasons, defendant’s argument is waived. (See People v. Hicks (1984), 101 Ill. 2d 366, 374, 462 N.E.2d 473, 477; People v. Woods (1985), 131 Ill. App. 3d 51, 475 N.E.2d 589.) The Hicks and Woods courts held that because section 5 — 8—4(b) is directory rather than mandatory in requiring that the basis for a consecutive sentence be set forth in the record, the requirement could be waived.

As mentioned above, it is not clear from the record in the present case as to whether the trial court intended the defendant’s sentences to run consecutively. The facts of the present case illustrate, however, that consecutive sentences are appropriate trader section 5 — 8—4(a) of the Corrections Code because defendant was convicted of murder and attempted murder, a Class X felony, for inflicting serious bodily injury upon two victims. (See People v. Anderson (1991), 211 Ill. App. 3d 140, 142-43, 569 N.E.2d 1178, 1181 (despite waiver, a separate statutory provision specifically authorized the consecutive sentence imposed in that case).) In the present case, section 5 — 8—4(a) of the Corrections Code provides separate statutory authority to impose a consecutive sentence upon the defendant.

Defendant further contends that the trial court erred in specifically refusing to consider his rehabilitative potential in sentencing. In sentencing defendant, the trial court stated:

“[TJhere has been reference made by the attorneys, both the prosecution and for the defense, concerning punishment reflecting the possibility of rehabilitation. And I think it ought to be clear in everyone’s mind that it is the Court’s judgement that a penal institution is not a place where rehabilitation takes place. *** There is no rehabilitation program that exists that is worthy of being named such in any of our penal institutions in the Court’s judgement.”

The trial court then proceeded to sentence the defendant “purely on the basis of punishment,” adding, “And if rehabilitation takes place, fine.” The defendant argues that these comments indicated that the trial court failed to consider mitigation and defendant’s potential for rehabilitation.

The Illinois Constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11; People v. Harris (1990), 196 Ill. App. 3d 663, 678, 554 N.E.2d 367.) Absent an abuse of discretion, a sentence is not altered by a reviewing court. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

In the present case, following a hearing in aggravation and mitigation, the trial judge stated that he was sentencing defendant for the crimes he committed. Defendant has not shown that the trial judge’s criticism of rehabilitation programs in the penal system improperly reflected on his sentence.

Defendant further argues that his sentence is excessive because he was only 15 at the time the crimes were committed. In support, defendant cites People v. Brown (1993), 243 Ill. App. 3d 170, wherein this court modified the sentence of a 20-year-old defendant from 45 years to 30 years. In that case, the defendant was convicted of first degree murder, and this court determined that the trial court did not adequately consider defendant’s rehabilitative potential because the defendant had no criminal background. Brown, 243 Ill. App. 3d at 176.

Brown is distinguishable from the present case, because the record here indicates that the defendant has a criminal background. Moreover, defendant’s sentences of 40 years for murder and 20 years for each attempted murder conviction are well within the statutory guidelines for those crimes. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1) (murder is punishable with a term of not less than 20 years and not more than 40); see also Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(c)(1), 1005 — 8—1(a)(3) (attempted murder is a Class X felony punishable with a term of not less than 6 and not more than 30 years).) We therefore find defendant’s sentences for murder and attempted murder proper.

Finally, defendant contends that the trial court erred in refusing to answer questions submitted to the trial judge by the deliberating jury. The record shows that the jury was instructed as to the definition of “accountability” as is provided by Illinois Pattern Jury Instructions for criminal cases. During deliberations, the jury sent a note to the court which stated: “Are you legally responsible for the conduct of another person simply by being at the scene of the crime?” The record shows that in response to this, the trial judge wrote back, “Read your instructions.” The jury then sent another note to the trial judge which stated: “Your Honor, We have a problem with the legal responsibility for the conduct of another. Is knowing of or simply being at the scene the same as aiding and abetting? We have read the instructions and have many questions.” To this the trial judge wrote back, “Please read your instructions.” (Emphasis in original.) Defendant argues that the trial court’s failure to answer these questions denied him a fair trial.

The instructions relating to accountability (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981)), were stated by the court when the judge gave instructions as follows:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.”

The general rule as to clarification of instructions is set forth in People v. Harmon (1968), 104 Ill. App. 2d 294, 301, 244 N.E.2d 358, 361, as follows:

“If jurors differ as to the instructions they should come into court and have them repeated, or if they wish more information as to the law they should request it of the court, and it has been held that it is not only the right but the duty of the court to reinstruct on any question of law arising from the facts on which the jury say they are in doubt, and on which they ask further instructions. Where the jury make their difficulties explicit, the judge should clear them away with concrete accuracy; and where the question asked is not clear, it is the duty of the court to seek clarification.”

However, the general rule is tempered by the rule that the trial court may properly exercise its discretion and decline to answer the jury’s inquiries where the given jury instructions are readily understandable and sufficiently explain the relevant law. People v. Palmer (1982), 111 Ill. App. 3d 800, 807, 444 N.E.2d 678, 683.

Defendant relies on People v. Shannon (1990), 206 Ill. App. 3d 310, 564 N.E.2d 198. There, the defendant was convicted of aggravated battery for striking the victim in the head with a piece of concrete. The instructions given were a combination of instructions relating to aggravated battery. During deliberations, the jury sent a note to the trial judge stating: “On the first proposition for Agg. Batt. clarify is it intent to throw the Rock and it Resulted in great Bodily Harm or is it to throw it the Rock intending to do great Bodily Harm.” The defense counsel requested that the court inform the jury that the latter definition was correct and the trial court refused, telling the jurors to read the instructions and use their common sense. Shannon, 206 Ill. App. 3d at 316.

On appeal, the court reversed and remanded the cause for a new trial. The court found that although normally the Illinois Pattern Jury Instructions as to aggravated battery are readily understandable, because of the unusual facts of the case, the instructions at issue were not readily understandable because no instructions were given relative to the presumption that a person intends the natural and probable consequences of his act. Thus, when the jury indicated confusion as to whether the required “intent” was to throw the rock, doing great bodily harm, as contrasted with throwing the rock intending to do great bodily harm, additional clarification was required.

Shannon is distinguishable from the present case. Here, there was no odd combination instruction given which omitted a necessary proposition. Furthermore, there is no unusual fact situation which requires additional instruction. Thus, we find the instruction in the present case readily understandable and the trial court’s response to the jury’s inquiry proper.

For the reasons stated, we affirm defendant’s conviction, but remand this cause to the trial court for the sole purpose of clarifying the nature of defendant’s sentence and correcting the mittimus with regard to defendant’s murder conviction, if necessary.

Affirmed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.

SUPPLEMENTAL AND MODIFIED OPINION

JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, La Vance Parson was found guilty of the murder of James Atkins, Jr., and of the attempted murders of Raymond Spain and Darryl Davis, and sentenced to a prison term of 40 years for the murder conviction and two terms of 20 years each for the attempted murder convictions. The mittimus stated the sentences to run consecutively. On appeal, this court affirmed defendant’s convictions, remanding the matter to the trial court for the sole purpose of clarifying defendant’s sentence and correcting the mittimus, which this court found to be inconsistent with the trial court’s sentencing order. People v. Parson (1993), 249 Ill. App. 3d 1021.

In a related case, People v. Jeter (1993), 247 Ill. App. 3d 120, the sixth division of this court affirmed the convictions of codefendant Anthony Thomas for the murder of Atkins and the attempted murders of Spain and Davis, and affirmed the convictions of codefendant Gerald Jeter for the murder of Atkins and the attempted murder of Spain, but vacated the defendants’ sentences, remanding the matter to the trial court for resentencing. The Jeter court determined that the trial court erred in failing to consider defendants’ rehabilitative potential as well as certain mitigating factors during the sentencing hearing. The three defendants in these two interrelated cases were sentenced in the same hearing, by the same trial court.

On November 2, 1993, the Supreme Court of Illinois entered supervisory order No. 75430 (People v. Parson (1993), 152 Ill. 2d 573), directing this court to enter an order vacating defendant’s sentence and remanding this matter to the trial court consistent with this court’s decision in Jeter.

Thus, in accordance with the supervisory order of the Supreme Court of Illinois, we hereby: (1) vacate the language in our opinion in Parson pertaining to the clarification of Parson’s sentence; (2) vacate Parson’s sentence; and (3) remand this matter to the trial court for resentencing on Parson’s murder conviction.

In modifying our opinion, we adopt the following language set forth in Jeter:

“Our review of the record indicates that the trial court did not carefully weigh the evidence presented at defendants’ sentencing hearing, but instead, sentenced defendants ‘for punishment only’ based upon personal beliefs about the state of our prison system. The fact that the trial court failed to articulate the fact that it had considered the statutory factors before sentencing defendants supports this conclusion. We therefore vacate defendants’ sentences and remand their cause for a new sentencing hearing in which the appropriate factors may be carefully considered.” 247 Ill. App. 3d at 131-32.

For the reasons stated, defendant’s sentence is vacated and this cause remanded to the trial court for the purpose of resentencing defendant.

Affirmed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.

      Defendant’s surname is spelled alternatively “Parson” and “Parsons” throughout the record on appeal. In his brief, defendant’s name is spelled “Parson,” while in the State’s brief, defendant’s name is spelled “Parsons.” Defendant’s notice of appeal identifies him as both “Parsons” and “Parson.” As the latter spelling is found in defendant’s own signature, this court has determined “Parson” the proper spelling of defendant’s name.