author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE REESE, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2627
    Opinion filed February 14, 1984.

      Steven Clark and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James Bigoness, and LuAnn Rodi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Willie Reese, appeals from his convictions of two counts of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)), one count of attempt (murder) (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4), one count of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2), and one count of unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 3). The sentences imposed were concurrent terms of 80 years’ imprisonment for the murder conviction, 30 years’ imprisonment for the attempt (murder) conviction, 30 years’ imprisonment for the armed robbery conviction, and three years’ imprisonment for the unlawful restraint conviction.

Four grounds for reversal are presented by defendant: (1) that he was not provided with effective assistance of counsel at trial; (2) that certain prosecutorial comments made during closing argument prejudicially influenced the jury and, thus, denied defendant his right to a fair trial; (3) that certain evidentiary rulings made by the trial court culminated in reversible error; and (4) that the sentence imposed was not warranted under the circumstances of this case. As the issue of reasonable doubt was not raised, only a brief summary of the evidence is necessary.

At approximately 8 p.m. on November 18, 1979, defendant and Calvin Thompson visited Benjamin Smith in his first-floor apartment located at 118 North Waller, Chicago. The three men proceeded to a back bedroom where they met with Smith’s girlfriend, Janice Bates, and Smith’s cousin, Bernard “Duke” Pickett. After Thompson and defendant snorted some cocaine that Smith had offered to them, Thompson left the apartment and returned shortly thereafter armed with a Colt AR-15, .223-caliber semi-automatic rifle. While Thompson pointed the weapon in Smith’s direction, defendant pulled out a .32-caliber handgun and likewise pointed it at Smith. Bates and Smith were then robbed of jewelry and approximately $80 in cash.

Thereupon, Bates was taken into the bathroom by defendant, Smith was ordered to lie on the floor, and Pickett was told to kneel in front of a chair and position his head on the seat cushion. Following repeated demands for more money, defendant threw a pillow over Smith’s head and fired his gun into it, but the bullet missed its intended target. Defendant, believing Smith to be dead, lifted up Smith’s leg and let it fall to the ground. Smith, feigning that he had been killed, lay on the floor motionless and then heard a double shot go off just in front of him followed by his girlfriend’s plea not to shoot; however, two more shots were fired immediately thereafter.

As soon as Smith heard defendant and Thompson leave the apartment, he jumped up and saw Pickett kneeling in front of a love seat with the left side of his head blown away. Smith then went into the bathroom where he found his girlfriend fatally shot, lying between the sink and bathtub.

Although arrest warrants for defendant and Thompson were obtained on November 24, 1979, it was not until May 1980 that defendant was arrested in California. Following extradition proceedings, defendant arrived in Chicago on July 23, 1980. Soon after his arrival at the Area 5 Headquarters, the Miranda warnings were read to defendant for at least the third time; after acknowledging that he understood his rights, defendant agreed to make a statement. While defendant confessed his participation in the instant offenses, former Assistant State’s Attorney Ira Raphaelson took notes; also present was Detective Robert Smitka of the Chicago police department. Specifically, defendant’s narrative of the events which transpired at Benjamin Smith’s apartment on November 18, 1979, implicated Calvin Thompson in that defendant averred that after he fired his revolver at Smith’s head, Thompson proceeded to shoot Pickett and Bates with the rifle.

Since defendant refused to allow this narration to be transcribed into a formal court-reported statement, Raphaelson asked him to read the notes, initial all scratched-out words, and then sign the paper at the bottom. Smitka and Raphaelson also signed this inculpatory statement at the bottom of the page as witnesses to defendant’s signature.

In July 1980, defendant was indicted on six counts of murder, one count of attempt (murder), one count of armed robbery, one count of unlawful restraint and two counts of armed violence. The two armed violence counts were nol pressed and, following a jury trial, defendant was found guilty of murder, armed robbery, attempt (murder) and unlawful restraint. From these convictions, defendant now appeals.

I

Before reaching the legal arguments advanced by the parties, we first consider the merits of the State’s motion before this court to strike a certain portion of the record, as well as the statement of facts and part I of the argument presented in defendant’s brief.

Specifically, counsel for defendant at trial chose not to call Calvin Thompson to testify in the case at bar as a defense witness; yet, following defendant’s conviction, sentence and appeal to this court, the assistant appellate defender filed a brief which extensively referred to testimony proffered by Thompson during his separate jury trial. This exculpatory testimony, in essence, provided Thompson’s jury with an alibi that defendant and Thompson could not have been involved in the crimes with which they were charged. Thompson averred that on November 18, 1979, at approximately 8 p.m., he and defendant arrived at Phil Allen’s house near Washington Boulevard. After Allen’s mother let them in, they waited approximately 20 minutes and then, since Allen had not yet returned home, defendant and Thompson left for the Grand Motel on West Madison Street. Upon their arrival at the motel at approximately 9 p.m. that night, the two men allegedly registered for the eight-hour traveler’s rate, showered, changed clothes and waited for Allen, who arrived at approximately 11 p.m.

Officer Renard Jackson of the Chicago police department, on assignment in the Austin District, was dispatched to the scene of the shootings at 8:45 p.m. It was Benjamin Smith’s assertion that defendant and Thompson had arrived at his apartment at approximately 8 p.m. that night. Thus, as a result of Thompson’s alibi and the testimonial evidence proffered in support thereof, he was acquitted of all charges at the conclusion of his separate jury trial in September 1981.

Defendant now argues that had Thompson testified at his trial, such testimony might have been exonerative. Hence, the assistant appellate defender has incorporated testimony from an entirely separate prosecution into the instant report of proceedings, and has made extensive reference to said testimony in the statement of facts, and part I of the argument of the brief filed on behalf of defendant.

In the absence of a stipulation between the parties, matters outside the record cannot be considered by this court on review (People v. Haas (1981), 100 Ill. App. 3d 1143, 1149, 427 N.E.2d 853), even though they are included in the instant transcript of record (People v. Sheridan (1977), 51 Ill. App. 3d 963, 965, 367 N.E.2d 422, cert. denied (1978), 435 U.S. 975, 56 L. Ed. 2d 68, 98 S. Ct. 1622). Regarding the present case, there was neither a stipulation between the parties, nor a request made by the assistant appellate defender to this court seeking permission to supplement the record from the trial below with the testimonial evidence proffered by Calvin Thompson at his separate jury trial. Therefore, the State’s motion to strike is granted as to the improper incorporation of Thompson’s testimony into the instant report of proceedings, as well as to the facts and argument contained in defendant’s brief which are dehors the record.

II

Defendant initially claims that he was deprived of his constitutional guarantee of effective representation of counsel because his trial attorney did not call Thompson as a witness for the defense. We find no merit to this assertion.

In order to establish incompetent and ineffective assistance of either a privately retained or a court-appointed lawyer, it must be shown that “the incompetence produced substantial prejudice to the defendant without which the result would probably have been different.” (People v. Royse (1983), 99 Ill. 2d 163, 168.) The determination of the efficacy of representation requires an examination of the totality of circumstances and the record as a whole. (People v. Shepard, (1983), 114 Ill. App. 3d 598, 603, 449 N.E.2d 222.) However, a review of counsel’s competency does not extend to those areas involving trial tactics or strategy, which are purely matters of professional judgment. (People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410, citing People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3.) Decisions on whether or not to call certain witnesses for the defense, like jury selection, have been recognized as matters of trial strategy and, thus, are not within the scope of our review. People v. Hebein (1982), 111 Ill. App. 3d 830, 849, 444 N.E.2d 782; see also People v. Witherspoon (1973), 55 Ill. 2d 18, 22, and People v. Shepard (1983), 114 Ill. App. 3d 598, 603-04.

In the case at bar, the fact that defendant’s trial counsel did not call Calvin Thompson as a witness for the defense was purely a matter of professional judgment and trial strategy. The defense attorney even acknowledged this during the argument on his motions in limine: “I do wish to advise the Court that in the event that Calvin Thompson does testify, it may be my judgment, at that time, that I will want our jury to hear that.” The court soon thereafter stated: "That is your strategy. You don’t have to disclose that to me now.” We regard this characterization by the trial court to be correct. Nonetheless, in support of the claim of ineffective representation, defendant cites People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83, where after being convicted of voluntary manslaughter, the defendant filed a post-conviction petition alleging incompetent representation which the trial court dismissed without conducting an evidentiary hearing. Our supreme court held that the defendant was entitled to such a hearing because there was nothing in the record to indicate whether counsel attempted to locate and interview those persons present in the apartment at the time of the shooting; thereafter, defendant presented to the reviewing court favorable evidence that was actually available at trial. (46 Ill. 2d 153, 158-59.) The omitted testimony in Stepheny appeared to unequivocally support the theory of self-defense which defendant had argued throughout trial. Here, however, Calvin Thompson’s testimony does not unequivocally provide defendant with an alibi, particularly in view of the inculpatory nature of defendant’s statement made to the assistant State’s Attorney and the Chicago police officer, the voluntariness of which has not been challenged in this appeal. Consequently, we are of the opinion that defendant’s trial counsel, in his judgment, could well have concluded that Calvin Thompson’s testimony might have been as damaging as it would have been helpful.

In People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701, appeal denied (1982), 91 Ill. 2d 561, another case relied upon by defendant, the accused was convicted on the strength of the identification testimony of one undercover police officer, who did not effectuate the arrest at the time of an unlawful delivery of a substance represented to be a controlled substance. The police officer stated that the criminal was clean shaven; however, counsel at trial was aware of defendant’s driver’s license showing the presence of a beard six days following his alleged commission of the crime. In addition, counsel had received a list of witnesses, none of which were interviewed. Since “[njeither the license nor a single witness was subpoenaed,” defendant’s trial attorney was characterized as actually incompetent, and such incompetence was held to have produced substantial prejudice to defendant without which the outcome of his trial would probably have been different. People v. Corder (1982), 103 Ill. App. 3d 434, 438.

Here, failure on the part of defense counsel to call Calvin Thompson as a witness for the defense may very well have emanated from a misjudgment in trial strategy as to what Thompson would actually say that would either inculpate or exculpate defendant. However, viewing the facts of this case in their totality, rather than focusing upon an isolated, tactical decision made during the course of trial, we cannot conclude that the instant record evinces that degree of prejudice to defendant without which the outcome of his trial would probably have been different. We reach this result particularly in light of the fact that there is no allegation on appeal of any reasonable doubt concerning defendant’s guilt.

Ill

We next consider defendant’s contention that he was denied a fair trial because of the following question asked of a detective during the State’s case-in-chief: “[Wjhat happened between the time that you — that Willie Reese was arrested in May until the time that you went to California in July?” Defense counsel’s objection to this query was properly overruled since the question did not constitute direct evidence of defendant’s consciousness of guilt, but merely permitted an inference of suspicion. The record does not manifest an effort on the part of the prosecution to elaborate on, much less exploit, the detective’s response that extradition proceedings took place.

Defendant also maintains that five comments made during the prosecutor’s closing argument prejudicially influenced the jury and, therefore, deprived defendant of a fair trial. Citations of error are made with regard to the following remarks:

“[STATE]: Ladies and Gentlemen, let me tell you if there was something wrong with this statement [defendant’s confession], if there was some reason you couldn’t hear that statement, that judge wouldn’t let you hear it.”
“[STATE]: Pictures. Why weren’t any pictures taken [during the confession]? There was a picture taken of him that morning. We tried to show it to him, and he objected.”
“[STATE]: Janice Bates had rights. Bernard Pickett had rights. Janice Bates had the right to bring up her two children.”
“[STATE]: *** beyond a reasonable doubt is not some lofty, standard goal.”
“[STATE]: Isn’t it kind of a strange coincidence in this case, he leaves with the key and is arrested close to 200 days later in California and extradited back to Chicago.”

The trial court sustained defense counsel’s objections to the first three comments and, accordingly, instructed the jury to disregard them. In response to defense counsel’s objection to the fourth remark, the trial court told the jury that “[t]here is no definition of reasonable doubt that is going to be given by counsel ***.” Regarding the fifth comment, the court stated that “the jury will decide the case based on the evidence. If it is not in evidence, the jury will disregard it.”

It is an oft-repeated principle that a prosecutor is to be permitted great latitude in his closing argument (People v. Hine (1980) , 88 Ill. App. 3d 671, 679, 410 N.E.2d 1017), and the trial court’s determination of the propriety of such an argument will not be disturbed on review absent extreme error (People v. Maldonado (1981) , 101 Ill. App. 3d 948, 951, 428 N.E.2d 1087, appeal denied (1981), 85 Ill. 2d 571). The standard for determining if prosecutorial comments made during closing argument constitute reversible error is whether those remarks were such that, without their having been made, the jury might have reached a different result. (People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371; People v. Panczko (1980), 86 Ill. App. 3d 409, 413, 407 N.E.2d 988.) In addition, we note with special significance that “it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations,” for “the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise *** prosecutorial overreaching.” United States v. Hasting (1983), 461 U.S. 499, 507, 509, 76 L. Ed. 2d 96, 105, 106, 103 S. Ct. 1974, 1979, 1980.

We therefore conclude that defendant was not substantially prejudiced; however, our determination is such only because it is manifest here that the evidence establishing defendant’s guilt was overwhelming. Indeed, defendant does not contest the sufficiency of the evidence against him.

IV

The next issue for resolution involves defendant’s assertion that two evidentiary rulings made by the trial court culminated in reversible error.

A

First, defendant cites error in the trial court’s refusal to allow defense counsel to cross-examine a State’s witness, Benjamin Smith, with regard to charges brought against him that were subsequently stricken with leave to reinstate. An examination of Smith’s criminal record reveals that from January 23, 1979, through April 23, 1980, he was arrested and charged with possibly one felony and four misdemeanor offenses — all of which were disposed of in a preliminary hearing court. Defendant, however, wás not arrested for the instant offenses until May 1980; he was not indicted for these offenses until July 1980. His trial commenced September 4, 1981. As a result, defendant’s averment that the State dismissed Smith’s charges “DURING THE PENDENCY OF THIS CASE” is delusive.

Nonetheless, it is well settled that the widest latitude must be given to defense counsel on cross-examination to develop matters that can reasonably show bias, motive or willingness of the State’s witness to testify. (People v. Wilkerson (1981), 87 Ill. 2d 151, 156, 429 N.E.2d 526; People v. Barr (1972), 51 Ill. 2d 50, 52, 280 N.E.2d 708.) Cross-examination for such impeachment purposes is a matter of right, subject to the sound discretion of the trial court; reversal is warranted only where there is an abuse of discretion resulting in manifest prejudice to defendant. (People v. Winfield (1983), 113 Ill. App. 3d 818, 831, 447 N.E.2d 1029; People v. Lenard (1979), 79 Ill. App. 3d 1046, 1049-50, 398 N.E.2d 1054.) “[T]here is no such abuse unless an offer of proof demonstrates that the evidence excluded is positive and direct on the issue of bias or motive to testify falsely [citations], rather than remote or uncertain [citation].” People v. Winfield (1983), 113 Ill. App. 3d 818, 831.

The period of limitation for misdemeanor prosecutions is one year and six months; the period of limitation for felony prosecutions is three years. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 5(b).) The State could have reinstated at least two of Smith’s five dismissed charges at the time of the instant trial. We think the jury was entitled to know the nature of Smith’s criminal charges “in order that it [could] have before it complete information so as to be better able to resolve the bias question.” People v. Rufus (1982), 104 Ill. App. 3d 467, 474, 432 N.E.2d 1089, appeal denied (1982), 91 Ill. 2d 578.

However, as we noted in Rufus, “[w]hile the trial court abused its discretion in limiting cross-examination, we cannot say that defendant was manifestly prejudiced by this error.” (104 Ill. App. 3d 467, 474.) Considering the substantial cross-examination of Benjamin Smith by defendant’s attorney as well as his closing argument to the jury, Smith’s credibility, like that of the State’s witness in Rufus, was clearly brought to the attention of the jurors. Therefore, in view of the overwhelming nature of the evidence establishing defendant’s guilt, we cannot conclude that the lower court’s restriction on Smith’s cross-examination warrants a new trial.

B

The second evidentiary ruling contested by defendant concerns the trial court’s refusal to allow the introduction of evidence that one of the murder victims, Bernard Pickett, had once assisted the authorities in apprehending Benjamin Smith on drug charges. It is thus urged that the preclusion of this evidence, allegedly suggesting a motive on the part of Smith to testify falsely, constituted reversible error.

A defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt; but, it is within the discretion of the trial court to exclude such evidence, without infringing on the accused’s constitutional right to present a defense, when the relevancy of the evidence is so speculative as to impart little probative value. People v. Hunt (1981), 99 Ill. App. 3d 958, 965, 426 N.E.2d 568; People v. Mikel (1979), 73 Ill. App. 3d 21, 30, 391 N.E.2d 550.

Following denial of defendant’s motion for a directed finding, Officer Joseph Gawlek of the Chicago police department was called by the defense to establish the alleged motive for the murder of Bernard Pickett. Pursuant to the State’s request, and over defendant’s objection, a voir dire examination was conducted. During this examination, it was established that on November 3, 1977, Officer Gawlek obtained a search warrant “for an individual named Ben at 1210 North Lockwood, on the first floor.” Benjamin Smith was not in the apartment when the officer arrived; however, Pickett was present and told Officer Gawlek that everything in the apartment belonged to his cousin, Smith. Pickett also provided the police officer with a photograph of his cousin. Smith was arrested on November 28, 1977, for possession of controlled substance. After the arrest, Smith stated that he knew from whom the officer obtained the picture and inculpatory information; no elaboration on this statement was made.

At the conclusion of the voir dire examination, and pursuant to the State’s motion in limine, the trial court ruled that Officer Gawlek’s testimony was irrelevant to the resolution of the issues involved in the case at bar. We consider this ruling to be correct, for as the trial court aptly pointed out to defense counsel: “The Court can’t preclude you from calling witnesses at times, but one thing the Court has to seek to do and that is to keep things on track and to avoid being derailed and going off on tangents.”

Smith’s arrest took place on November 28, 1977. Pickett’s murder occurred on November 18, 1979. In essence, defendant’s attorney requested the trial court to speculate on a theory of defense that presented facts which, in the light of logic, were clearly too remote in time to have probative value; defendant’s offer of proof was therefore properly denied for lack of relevancy.

V

Defendant further argues that the trial court abused its discretion in determining his sentence. We disagree.

In Illinois, a sentencing court’s determination of the punishment to be imposed involves consideration of the subjective circumstances presented in each individual case, such as the defendant’s mentality; his habits; his general moral character; his abnormal or subnormal tendencies; and his natural inclination or aversion to commit crime. (People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) In addition to providing for the possibility of the offender’s rehabilitation, we recognize that the lower court is also charged with the “delicate responsibility” of fashioning a sentence that will protect the interests of society. People v. Perruquet (1977), 68 Ill. 2d 149, 155, 368 N.E.2d 882.

In the present case, it is suggested that the trial court was unconcerned with defendant’s mitigating circumstances. To the contrary, however, we discern careful consideration of all relevant factors in aggravation as well as mitigation. The court stated during the sentencing hearing that “[t]he defendant was a policeman in the army, he has a high school education, he has sought to attend college.” The court considered the presentence investigation report which not only revealed defendant’s personal traits and family situation, but also his unsatisfactory probation record and criminal history of unlawful use of weapons. Further, the court provided defendant’s lawyer with ample opportunity, which he fully utilized, for argument in mitigation. In fact, as a prelude to this argument, defendant himself took the stand and testified as to his educational, athletic, military, religious and employment background. It is therefore amiss for defendant to now assert that the trial court completely failed to take into account mitigating factors.

The final citation of error for review concerns the propriety of the lower court’s determination that defendant was eligible to receive an extended term of imprisonment.

Without question, sentencing judges are vested with wide discretion in order to permit reasoned judgments as to the punishment appropriate to the particular circumstances presented in each case. (People v. LaPointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344.) Within this broad discretionary framework, a trial court may impose an extended term of imprisonment upon any offender, at least 17 years old on the date the crime was committed, who is “convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) It was on this statutory provision in the Unified Code of Corrections that the trial court premised its determination that an extended-term sentence was warranted in light of the brutal and abhorrent conduct accompanying the instant offenses.

From our review of the record, it is readily discernible that the sentencing judge was faced with the task of imposing on defendant a penalty that was commensurate with the degree of seriousness involved in the offenses he committed. Before rendition of the sentence, the court aptly commented on the especially brutal method employed to kill the victims: “They were literally blown away, literally blown away *** it had been determined that they were going to die and they had no alternative to do anything except die.”

As we stated in a recent case involving an identical attack on the imposition of an extended-term sentence under section 5 — 5— 3.2(b), “[tjo characterize this action as if it was an everyday occurrence to which society’s sense of outrage has become immune is ludicrous. We find defendant’s acts to be clearly indicative of wanton cruelty.” People v. Hudson (1981), 102 Ill. App. 3d 346, 353, 430 N.E.2d 51, appeal denied (1982), 91 Ill. 2d 554.

The instant record evinces that the sentence imposed upon defendant was rendered after full consideration of all factors presented in aggravation and mitigation. In view of the brutal and heinous nature of the execution-style murders as well as the execution-style attempted murder, the trial court correctly held that an extended term was necessary to serve the ends of justice in this case. We are therefore of the opinion that defendant’s 80-year sentence should not be reduced. As the State concedes, however, the sentencing order incorrectly reflects six counts of murder. Since defendant was convicted for the murder of two people, the lower court’s order shall be corrected accordingly.

VI

Contrary to defendant’s contention, an indigent offender can be assessed costs in the appellate court upon affirmance of his conviction. (People v. Nicholls (1978), 71 Ill. 2d 166, 175-76, 374 N.E.2d 194.) As a result, under the authority of Nicholls and section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8), we assess defendant $50 in costs for the State’s defense of the instant appeal and hereby incorporate it as part of this judgment. However, the State’s request for an additional $25 for oral argument is denied. This denial is predicated on our interpretation of the per diem provision of the statute (“For each day actually employed in the trial of a case, $25”) as referring to an actual trial in the circuit court, rather than an oral argument before this court.

For the foregoing reasons, the State’s motion to strike is granted; the judgment of the circuit court of Cook County is affirmed; and the order of sentence and commitment is to be corrected in accordance with the views expressed herein.

HARTMAN, P.J., and STAMOS, J., concur.

      One of two cases simultaneously tried before separate juries. The second jury trial, involving the prosecution of Calvin Thompson, was presumably requested due to the incriminatory nature of defendant’s statement.

      The value of a stolen automobile was not listed in the records of the Chicago Police Department, Identification Section.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY HUGHES, Defendant-Appellant.
    First District (5th Division)
    No. 82—1814
    Opinion filed February 17, 1984.

      James J. Doherty, Public Defender, of Chicago (Kendall Hill and John Lanahan, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, Sidney Hughes was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1) and received a prison term of 40 years. On appeal, he contends that: (1) the rape shield statute (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7) is unconstitutional; (2) the trial court improperly interrogated him about the complainant’s credibility; and (3) the trial court abused its discretion by denying him a new trial. We affirm. The pertinent facts follow.

On January 8, 1982, the complainant, defendant, Janette King and four additional people were having a card party in King’s apartment. At one point, King and the complainant fell asleep in the bedroom. King later awakened and went into the kitchen. Shortly thereafter, the complainant came out of the bedroom crying and left the apartment but refused to tell anyone why she was upset.

The complainant, who was 18 years old, testified that she knew the defendant and had been friends with King for about four years. She stated that she came to King’s apartment to visit but did not play cards. Instead, she engaged in a conversation with her friends, drank beer and fell asleep with King on the bed. She said that she awakened when she heard someone moving the television in the bedroom. Because the room was dark, she could only hear the person but recognized the individual as the defendant by the sound of his voice which instructed her to “shut your m— f-— mouth.” The defendant then climbed onto the bed and started choking the complainant with both hands. She unsuccessfully attempted to release his hands from her neck, started to cry and eventually acquiesced to his sexual demands.

The complainant further testified that when she called out for help during this ordeal, the defendant “slapped me real hard on the left side of my face *** and then, that’s when he took his hand *** and put it over my mouth and told me to shut up and I told him I would be quiet.” The defendant then removed her pants, panties and one of her boots and had intercourse with her for approximately 20 minutes during which time the complainant did not resist “so that he [defendant] can let me up so I can go.” The defendant then turned on the light. Before he left he threatened the complainant and told her that she had “better not tell nobody.”

Testifying further, the complainant stated that as the defendant was about to leave Janette King entered and asked what was wrong. The complainant accused King of ignoring her calls for help. She left the apartment and called the police from her apartment which was in the same building, two floors above. After explaining to the police what had happened the complainant took them to King’s apartment where the defendant had remained. He was placed under arrest and the complainant was escorted to the hospital. The complainant then identified pictures of her neck and face which revealed the scars and scratches she said the defendant had inflicted, as well as a pair of tom panties.

On cross-examination the complainant testified that when she visited King in the past the defendant had attempted “to feel on” her but that she had never reported these incidents to the police. She further stated that on the night in question she drank one can of beer but had not smoked marijuana and had not been drinking earlier that day. She further testified that she saw defendant take a pill that evening “to get high.”

Under further questioning, the complainant gave conflicting testimony about whether she told one of the women who were present in the apartment that the defendant had raped her. First, the complainant stated that she did report the incident and then she said that she had not. Redirect examination disclosed that the complainant had not had sex with the defendant prior to the occurrence in question and that she did not talk to him at any time afterward.

Following this testimony the trial court examined the complainant. She testified that she lived with her mother, sister and brothers but that her mother was not at home when the complainant returned from King’s apartment.

Next, investigating officer Isaiah Swanigan testified that when he interviewed the complainant in her apartment he noticed that the left side of her cheek was red and slightly swollen. He accompanied the complainant to King’s apartment where the complainant identified the defendant and stated, “That’s him, that’s him right there.” Swanigan testified that after he took the complainant to the hospital he noticed several scratches above her left breast.

Under cross-examination, Swanigan testified that the complainant told him that she awakened in King’s bedroom when she felt the defendant pulling down her pants and unbuttoning her blouse. Swanigan also stated that although he could smell a faint odor of beer on the complainant’s breath, she was not intoxicated, did not stagger and her actions did not indicate that she had had more than one can of beer.

It was then stipulated that the results of the complainant’s vaginal examination which had been performed at the hospital revealed the presence of spermatozoa.

Following the denial of his motion for a directed verdict, defendant testified in his own defense. He stated that he had been living with King for about a year but that the complainant, whom he had known for approximately 12 years, was also his girlfriend. Defendant had visited the complainant in her apartment five or six times in the past.

Further testifying, defendant stated that the complainant entered King’s apartment, approached him and said that she wanted him to accompany her on a “date,” which the defendant understood to mean that she was going to engage in the act of prostitution but wanted the defendant to be present in case the patron refused to pay.

Defendant agreed to this arrangement. The two walked to a nearby residence where the complainant instructed the defendant to wait outside. Fifteen minutes later she emerged and told him that she had taken $50 from a man inside. Defendant also testified that he asked the complainant for $25 for which she said she would give to him at King’s apartment. According to the defendant, that had been the arrangement between them on a number of occasions in the past.

After the complainant and defendant returned to King’s apartment, defendant noticed that everyone was “getting high” with marijuana, pills and liquor. He said that he then played a dice game in the bedroom and that the complainant placed bets on the side. Later, the defendant went to the store to purchase cigarettes. When he returned he again asked the complainant for his half of the money, but she refused and instead offered $12.50, explaining that she had “lost” some of her money. Defendant stated that when he took $25 from the complainant’s hand she argued and kicked the defendant who responded by slapping her and pushing her. Defendant said that shortly thereafter he went to the store to purchase liquor. When he returned he walked to the bedroom, turned on the light and saw the complainant standing on the bed, crying. King then walked in the room and asked the complainant what was wrong. Defendant testified that the complainant did not answer King but instead told him that “You [are] going to get yours” and left. The complainant returned 20 minutes later and again asked defendant for her money. Defendant refused and the complainant left again. On her second return she was accompanied by the police. Defendant said that he had not engaged in sexual intercourse with the complainant that evening but had done so on a number of occasions in the past.

On cross-examination, defendant stated that he considered both King and the complainant as his girlfriends, that he was unemployed and that he supported his child (by King) by robbing people and the complainant’s “dates.” Defendant then testified that on the day in question he accompanied the complainant on a “date” at about 2:15 p.m. and then returned to King’s apartment. He stated that he began drinking that day at approximately 11:30 a.m., took a “downer” and smoked marijuana. He admitted that after he and the complainant returned to King’s apartment he resumed drinking and took another pill. Defendant said that he and the complainant argued about the money from the “date” because the complainant said she had lost some of the money in a dice game and could only give him $12.50 of his $25. When the defendant snatched $25 from the complainant’s hand he said she kicked him and he slapped her. He said he did not grab her by the throat but that it was possible that he had scratched her chest.

Next, the State submitted a motion in limine to preclude defendant from presenting testimony about the complainant’s alleged reputation as a prostitute. Out of the presence of witnesses defendant argued that although he sought to prove that the complainant was a prostitute the purpose of the testimony was only to corroborate his story as to why he attempted to “collect part of his fee” from her.

Following arguments by both sides, the State’s motion was granted and defendant rested his case. The State then submitted a certified copy of defendant’s conviction record for rape and armed robbery, which the court admitted into evidence, reasoning that the defendant placed his credibility in issue by testifying in his own defense and that by admitting to various criminal activities his credibility had been destroyed. After hearing closing arguments by both sides, the court entered a finding of guilty.

Approximately one month after trial defense counsel filed a motion for a new trial which alleged that the evidence against the defendant consisted of a number of inconsistencies and contradictions. Additionally, counsel pointed out that defendant had written a post-trial letter to the trial judge in which he (defendant) stated that he had talked to the complainant a number of times on the telephone since the trial. Counsel argued further that he had an affidavit from Janette King and Gina Morales, who had also been in the apartment on the day in question, which stated that during one of the complainant’s post-trial visits to King’s apartment an argument ensued during which the complainant told King that she had “set [defendant] up. *** I got him locked up. Now I’m going to get you.” The affidavits stated that the complainant hit King on the head with a hammer which injury resulted in King’s hospitalization.

Defendant’s motion for a new trial was denied. This appeal followed.

Opinion

Defendant first contends that the rape shield statute (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7) unconstitutionally denied him the right to present evidence that the complainant was a prostitute. The evidence would prove that the complainant had a motive to lie, defendant asserts, because they had a “business arrangement” whereby the defendant was, in effect, the complainant’s pimp; the complainant’s failure to adhere to the “business arrangement” led to an argument on the evening in question and resulted in her falsely accusing him of rape.

We have previously rejected constitutional challenges to the rape shield statute on the grounds urged by defendant. (People v. Buford (1982), 110 Ill. App. 3d 46, 441 N.E.2d 1235; People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125; People v. Bachman (1981), 92 Ill. App. 3d 419, 414 N.E.2d 1369.) We likewise reject defendant’s contention in the case at bar. The statute reads, in pertinent part, as follows:

“In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill. Rev. Stat. 1981, ch. 38, par. 115-7(a).

In the pending case, contrary to defendant’s assertions set forth above, defendant was, in fact, permitted to present evidence about the complainant’s sexual activities. The record reveals that on direct examination, defendant testified as follows:

“Q. What happened next, Sidney?
A. After she [complainant] said she was going to take care of some business, I asked her, I say, ‘What kind of business you fixing to go take care of?’ She say, T got a date.’ So I say, ‘A date?’ I say, ‘Where is it at?’ She say, ‘Come and go with me.’
* * *
Q. What happened, would you tell the Court what she meant?
A. She meant she was gong to sell her body.
Q. Okay; now, what, if anything happened; What do you mean sell her body?
A. She was going, she was going to have sex with a man.” Further, on redirect examination, the following colloquy ensued:
“Q. When you said [the complainant] and Gina said that they had to take care of business, what do you mean by that?
A. They were both going to sell their bodies out on Broadway ***.”

Additionally, the complainant’s credibility was disparaged during oral argument on defendant’s motion in limine to preclude the admission of his arrest record. Defense counsel argued that:

“And when Sidney knows the [complainant’s] boyfriend’s name, knows how long she has been, he has been in jail, it just shows this whole crowd was together in all their activity, not that [the complainant] happened to go into a nest or den of thieves, and liars, rapists, and robbers. She was part of it. It is so obvious that she was part of this crew, not separate from it.”

The foregoing testimony conclusively demonstrates that evidence concerning the complainant’s character and sexual proclivities as well as the forthright accusation that she was a prostitute was admitted by the trial court. Defendant’s contention that he was precluded from presenting such evidence is, therefore, wholly without merit.

Defendant further challenges the limitation placed on his cross-examination of Janette King. In this regard, he argues that King’s testimony would have corroborated his story that the complainant was a prostitute and that they got into a fight over the defendant’s share of the money. Thus, defendant urges, a “blanket rule” which precludes the admission of any evidence about the complainant’s reputation is unconstitutional. Again, based on the evidence before us, we cannot agree.

The express language of the rape shield law precludes the admission of evidence of the complainant’s prior sexual activity and reputation except when it concerns the past sexual conduct of the complainant with the defendant. (People v. Cornes (1980), 80 Ill. App. 3d 166, 175, 399 N.E.2d 1346.) In the pending case, however, defendant admitted that the sole import of the testimony he sought to elicit from Janette King would be that she had heard that the complainant was a prostitute and that she would not testify about any “business arrangement” between the defendant and complainant. Defendant stated that his other witness, Richard Goins, would refute the complainant’s testimony that no one in the apartment was drinking or taking drugs.

The trial court’s ruling on this issue was correct as the complainant’s past sexual conduct with persons other than the defendant was irrelevant and would have little or no probative value on the question of whether she consented to have sexual relations with the defendant on the day in question. (People v. Cornes (1980), 80 Ill. App. 2d 166, 175.) Moreover, testimony concerning the complainant’s alleged unchaste reputation falls within the express statutory prohibition of the rape shield law. (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7(a).) Additionally, the exclusion of this evidence did not prevent defendant from challenging or attacking the complainant’s credibility or veracity or otherwise utilizing cross-examination as an effective tool of impeachment. It merely denied the defendant the opportunity to harass and humiliate the complainant at trial and divert the court’s attention to issues not relevant to the controversy. (People v. Cornes (1980), 80 Ill. App. 3d 166, 175.) As the trial court properly observed, “The point involved here is, did a rape occur on that day. *** [Y]et, they [defendant’s witnesses] are not here to testify that they heard anything about that business arrangement ***. [A]ll you [defendant] want to do is come in and show that she [complainant] was in the business of being a prostitute.” For the reasons stated above, we find that the court’s ruling was proper.

Defendant’s second contention on appeal is that the trial court improperly questioned him about the complainant’s credibility. Specifically, defendant assigns error to the following colloquy:

“Q. Well, you heard her [complainant] testify here, didn’t you?
A. Yes.
Q. She seemed to appear very sincere in what she was saying, didn’t she?
A. Yes, sir.
Q. And you admit engaging in all these other illegal crimes and activities and you are saying that she is not telling the truth?
A. No, she isn’t, your Honor.
Q. In other words, you admitted all these other crimes but you didn’t commit the crime of rape as she said you did?
A. No, I didn’t, your Honor.
Q. Even though she appears very sincere in what she is saying and very truthful?
A. No, your Honor, I didn’t commit this crime.
The Court: All right, you can step down.”

Defendant argues that the foregoing examination denied him a fair trial because the court improperly buttressed the complainant’s credibility. We cannot agree.

Where a case is tried without a jury, the danger of prejudice from questions by the court is lessened. (People v. Palmer (1963), 27 Ill. 2d 311, 315, 189 N.E.2d 265; People v. McCommon (1979), 79 Ill. App. 3d 853, 868, 399 N.E.2d 224.) It has also been held that in a nonjury case, even a rather extensive examination by the trial court may be justified if the court has reason to believe that a witness is not telling the truth. (People v. Dixon (1967), 81 Ill. App. 2d 330, 336, 225 N.E.2d 445.) The court must not forget its judicial function, however, and assume the role of an advocate. People v. McCommon (1979), 79 Ill. App. 3d 853, 868, 399 N.E.2d 224.

In the pending matter, defendant cites our recent decision in People v. Johnson (1980), 83 Ill. App. 3d 586, 404 N.E.2d 531, where we ruled that the court’s examination of the defendant, though improper, was not prejudicial. Defendant contends that in that case, which involved an attempted murder charge, there was sufficient evidence to support a finding of guilt beyond a reasonable doubt. In the case at bar, defendant posits, the complainant’s testimony was uncorroborated.

The trial judge in Johnson examined the defendant concerning his “regard for law enforcement,” and whether he believed in the job his father was doing as a police officer. The court asked the defendant if he “didn’t think seriously enough of his life” to report an altercation he had had with another man, Stewart, to his father or the police. Finally, the trial judge asked the defendant if two of the State’s witnesses who testified as to what the defendant said to Stewart before he shot him were lying. When the defendant answered affirmatively as to one and affirmatively in part as to the other witness, the court asked, “Everybody is lying?” The defendant replied, “Yes.” People v. Johnson (1980), 83 Ill. App. 3d 586, 587.

The court in Johnson concluded that the trial court’s interrogation was improper for three reasons: (1) it asked the defendant to set himself up as the judge of the credibility of another witness; (2) it was directed to matters which did not bear upon the defendant’s guilt; and, (3) it added nothing to the witness’ testimony or their credibility. (83 Ill. App. 3d 586, 588.) The court ruled, however, that while it did not condone the court’s interrogation, the defendant had not been prejudicially harmed because there was sufficient evidence in the record to support the trial judge’s finding of guilt beyond a reasonable doubt. Moreover, the court ruled, the trial court’s interrogation gave the State and the defendant an idea at almost the very end of the case as to how the trial judge viewed the evidence. 83 Ill. App. 3d 586, 589.

In the case at bar, the trial court never asked the defendant whether the complainant was lying. Rather, the court queried whether the defendant thought that the complainant “was sincere in what she is saying and very truthful.” Such interrogation, in our judgment, is not improper and does not approximate the court’s interrogation in Johnson. Here, there is nothing in the record to indicate that the court forgot its function as a judge. The court’s questions did not indicate a bias, prejudice or hostility against the defendant; rather, the questions posed were appropriate to the court’s role as the finder of fact. It may very well be that the court merely sought to clarify the defendant’s version of the incident and attempted to elicit testimony as to why the complainant’s story should not be believed. (People v. McCommon (1979), 79 Ill. App. 3d 853, 868-69, 399 N.E.2d 224.) These questions did not suggest an abuse of discretion. (People v. Dixon (1967), 81 Ill. App. 2d 330, 336, 225 N.E.2d 445.) Moreover, even if the court’s examination could be found to be improper, it fell short of causing prejudicial harm as the record indicates that the complainant’s testimony was sufficiently corroborated by other evidence and remained essentially unchanged on direct and cross-examination.

The final question presented for review concerns the trial court’s denial of defendant’s motion for a new trial wherein the defendant stated that he had secured evidence which would prove that the complainant accused him of rape only to seek revenge against Janette King. This newly discovered evidence consisted of affidavits by King and her roommate, Gina Morales, which allege that approximately one month following defendant’s arrest, the complainant argued with King and said that she had “set up” the defendant and that she was now “going to get [King].” The affidavits stated further that the complainant struck King on the head with a hammer.

Newly discovered evidence is not favored in the law. (People v. Farris (1980), 82 Ill. App. 3d 147, 157, 402 N.E.2d 629.) Whether to grant or deny a motion for a new trial based on newly discovered evidence is discretionary with the trial court, whose ruling will not be disturbed on review absent a showing of manifest abuse. (People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) The evidence must have been discovered since the trial and be of such a character that it could not have been discovered prior to the trial by the exercise of due diligence. (People v. Farris (1980), 82 Ill. App. 3d 147, 157, 402 N.E.2d 629.) Such evidence must also be of such affirmative character as to show facts which could probably produce a different result on a new trial. (People v. Pruitt (1974), 16 Ill. App. 3d 930, 936, 307 N.E.2d 142, cert. denied (1974), 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232.) Evidence which merely discredits, contradicts or impeaches a witness does not afford a basis for the granting of a new trial. People v. Carpenter (1979), 74 Ill. App. 3d 770, 774, 393 N.E.2d 50.

Applying these standards to the case before us, we are of the opinion that the trial court did not manifestly abuse its discretion on this issue. The proposed testimony would not likely have changed the result of retrial since the sole effect of the evidence would have been to impeach the complainant’s testimony that she engaged in sexual intercourse with the defendant against her will. Also, at most, the evidence was only cumulative to defendant’s testimony that the complainant was angered over the fact that the defendant had forcibly taken his “share” of the money. Furthermore, the purported testimony is hearsay concerning an alleged event which, as the trial court recognized, there were no criminal charges filed or arrests made. (See People v. Farris (1980), 82 Ill. App. 3d 147, 157, 402 N.E.2d 629.) We therefore conclude that there is no basis for believing that the newly discovered evidence would have changed the outcome of the trial.

For these reasons, we resolve the foregoing issues against the defendant and affirm the trial court’s judgment.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ROBINSON, Defendant-Appellant.
    First District (5th Division)
    No. 82—2073
    Opinion filed February 10, 1984.

      Steven Clark and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and David Kluever, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted and sentenced to concurrent terms of 30 years for two counts of armed robbery and a consecutive term of 30 years for armed violence. On appeal, he contends that the trial court erred in (1) denying his motion for a continuance; (2) not allowing him to exercise a peremptory challenge; and (3) refusing to grant a mistrial when the State introduced improper evidence of (a) his prior statements and (b) his prior incarceration.

At trial, the owner and an employee of the Lucky Day Lounge (Lounge) testified that they were at work in the Lounge on December 13, 1979, when defendant entered and ordered a drink. He left approximately 45 minutes later, leaving the glass he had used on the bar. He returned in 15 minutes with a gun in his hand and ordered the employee, Bertha Cornelius, to put the money from the cash registers into a bag. After she complied, defendant ordered the owner, John Neal, to place the money from his pockets into the same bag. Defendant took the bag and started to leave, but stopped to hide the gun under his shirt when he saw police officers standing in front of the Lounge. Immediately after defendant departed, Neal told the officers of the robbery and pointed to defendant, who was still in sight. One of the officers pursued him, and two hours later Neal and Cornelius identified defendant in a lineup. Both also identified him at trial, as did a third witness who was a patron of the Lounge at the time of the robbery. Police evidence technicians established that fingerprints found on the glass used by the offender matched fingerprints taken from defendant at the time of his arrest.

Officer Marshall testified that when he and his partner made a traffic stop in front of the Lounge, he noticed defendant emerge from the Lounge carrying a paper bag and walk west through a vacant lot, and then Neal ran out and told him that defendant had robbed the Lounge. When ordered to halt, defendant began running, and during the pursuit he saw defendant drop the paper bag and a pair of sunglasses. Defendant continued running for a short distance, then turned, dropped to a crouch, and fired three shots. He (Marshall) returned the fire, and defendant began running again, firing two more shots as he ran; neither of them was injured in the incident. He lost sight of defendant, but learned that other officers found him hiding in a nearby apartment. Marshall identified defendant at the apartment and then recovered the paper bag and sunglasses. The bag contained cash and a receipt bearing the name of the Lounge.

Officer Pustay testified that during a search for defendant, he and his partner entered a rear yard of a nearby apartment building where he noticed that the screen door on the third-floor porch had recently been kicked in. They went up to the porch door and entered the apartment after noting that the rear door was also splintered and cracked. Defendant, clad only in underwear, was found in the apartment; he was breathing heavily and appeared to be highly agitated. After Officer Marshall identified him, defendant was placed under arrest, and his clothing was recovered from a bedroom of the apartment. Another officer testified that a weapon with five expended cartridges was found in a hall linen closet.

Dr. Stipes, a psychiatrist employed by the Psychiatric Institute of Cook County, a defense witness, testified that in his opinion defendant was unable to conform his conduct to the law or to appreciate the criminality of his conduct on December 13, 1979. He said that during initial interviews, defendant was confused, disoriented, slow of movement and speech, and showed defects of recent and past memory. Based on these interviews, as well as on psychological tests and the reports of other psychiatrists, he concluded that defendant had suffered from organic brain syndrome since 1976, a disease which is manifested by confusion and illogical thinking. Those symptoms are exacerbated by the consumption of alcohol. Dr. Stipes acknowledged that in his earliest reports, he had stated that the disruption of motor coordination incident to organic brain syndrome made it highly implausible that defendant was physically capable of committing the crimes charged. He further admitted that his opinion was rendered prior to reviewing reports which showed that an EEG taken of defendant was normal; that when he first saw defendant, he had a suspicion that he was faking an illness; and that other psychiatrists and psychologists had indicated in their reports that there was a strong possibility that defendant was malingering. He explained, however, that those reports also stated that there were problems of memory and communication which could be indicative of organic brain syndrome.

Dr. Bogen, another psychiatrist employed by the Psychiatric Institute of Cook County, testified for the State in rebuttal that in his opinion defendant was able to conform his conduct to the requirements of the law and to appreciate the criminality of his acts at the time of the crime. He examined defendant twice after reviewing all available medical and police reports, and determined that he lacked the classic symptoms of organic brain syndrome; i.e., lack of orientation to person, time and place, low intelligence, poor reasoning power and memory, and lack of rational judgment. During interviews, defendant was able to remember and relate past events in detail, and his use of language indicated that he was of normal intelligence. Furthermore, defendant showed an ability to indulge in rather sophisticated abstract reasoning and showed excellent judgment. Dr. Bogen further testified that defendant was malingering; i.e., faking an illness or exaggerating the symptoms of an illness actually present. He noted that there were discrepancies between the objective findings and what defendant claimed was his disability. While defendant asserted that he suffered brain damage as a result of a blow to his head in 1976, and such an injury was possible, the symptoms thereof would have appeared immediately and would have been most prominent during the period immediately following the injury. However, in defendant’s case, no symptoms were reported during the year following the injury; in fact, during that time, reports indicated that defendant had a good memory and could engage in abstract reasoning. Moreover, there were numerous inconsistencies in the results reported by different psychiatrists, both in the information defendant was able to provide and in the tasks he was able to perform. Dr. Bogen also testified that defendant was uncooperative in the diagnostic evaluation, which is a further consideration in determining whether he is malingering. He also stated that the reports of five other interviewers also suggested the possibility of malingering, and that the fact defendant ran from the scene, shot at his pursuer, and tried to conceal his involvement were indicative of the ability to appreciate the criminality of his conduct.

Opinion

Defendant first contends that the trial court abused its discretion in denying his motion for a continuance. On the day trial commenced, defense counsel sought a continuance, explaining that he had not understood that trial was to begin that day, and that another attorney, who had expertise in psychiatric matters, was on vacation and would be unavailable to try the case with him for two weeks. In denying the motion, the trial court noted that the prosecutor had reminded defense counsel of the trial date several days in advance; that all discovery had been completed for a substantial period of time; and that the case had been pending for over two years.

Defendant acknowledges that the decision to grant or deny a continuance was within the sound discretion of the trial court (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e); People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 424 N.E.2d 1178), and that its determination will not be disturbed on review absent a clear abuse of that discretion (People v. Surgeon (1958), 15 Ill. 2d 236, 154 N.E.2d 253); that is, unless it appears that denial of the continuance impeded the accused’s preparation of his defense or prejudiced his rights (People v. Petrovic (1981), 102 Ill. App. 3d 282, 430 N.E.2d 6). However, he asserts that this criterion is met in the instant case because the trial court’s failure to grant the continuance deprived him of his right to effective assistance of counsel. He maintains that trial should have been delayed until co-counsel was available to conduct the examination of the psychiatric witnesses.

Initially, we note that “[t]here is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend.” (People v. Lott (1977), 66 Ill. 2d 290, 297, 362 N.E.2d 312, 315.) Thus, we must weigh the particular facts and circumstances of the individual case before us in determining whether the trial court has abused its discretion (People v. McEwen (1982), 104 Ill. App. 3d 410, 432 N.E.2d 1043); however, we also note that denial of a continuance because of the unavailability or incapacity of counsel has been affirmed where co-counsel was available to adequately try the case (see People v. Miller (1958), 13 Ill. 2d 84, 148 N.E.2d 455, cert. denied (1958), 357 U.S. 943, 2 L. Ed. 2d 1556, 78 S. Ct. 1394; People v. Davis (1950), 406 Ill. 215, 92 N.E.2d 649; People v. Cates (1982), 111 Ill. App. 3d 681, 444 N.E.2d 543; People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330), since courts are reluctant to find prejudice where defense counsel was prepared and conducted the accused’s representation with diligence and skill (People v. LaFiura (1981), 92 Ill. App. 3d 714, 415 N.E.2d 1365).

Defendant does not argue that the trial court lacked sufficient reason to seek a prompt resolution of this case. It had been pending for over 21lz years and had been the subject of numerous delays, many of which were occasioned by defendant. Moreover, the court was dealing with a defendant who had been found fit to stand trial after having been declared unfit. It is defendant’s position, however, that the desire of the trial court not to further delay the trial should have yielded to his right to effective assistance of counsel.

The key question here, then, is whether defendant received adequate representation. Therefore, although defendant has not raised it as a separate issue, in determining whether the trial court abused its discretion in denying a continuance, we must consider whether defendant was denied the effective assistance of counsel which is guaranteed by the sixth and fourteenth amendments to the United States Constitution. (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681.) In so doing, we are required to consider the totality of the circumstances rather than focusing on isolated incidents (People v. Conley (1983), 118 Ill. App. 3d 122, 454 N.E.2d 1107), and determine whether counsel was “actually incompetent as reflected in the performance of his duties as a trial attorney” to the extent that it affected the outcome of the trial (People v. Martin (1983), 112 Ill. App. 3d 486, 493, 445 N.E.2d 795, 802).

Defendant asserts that defense counsel was unprepared to conduct an insanity defense and his performance was therefore ineffective, citing as examples counsel’s difficulty in eliciting the opinion of an expert witness; his failure to object to hearsay testimony introduced by the State during cross-examination of an expert witness; and his failure to object to a narrative answer given by the State’s expert witness. We have considered each of these matters in the context of counsel’s overall performance of his duties, and do not believe that they were indicative of incompetence or that they affected the outcome of the trial.

With regard to the direct examination of defendant’s expert, it appears that counsel did have some difficulty in formulating the questions necessary to elicit the expert’s opinion, prompting the court to sustain several objections based on the form of the question. However, counsel did bring out the requisite opinion; i.e., that defendant was unable to conform his conduct to the law or to appreciate the criminality of his conduct at the time in question. Furthermore, in examining this witness, counsel also laid a proper foundation for his qualification as an expert, explored the basis for his opinion, and elicited extensive testimony detailing the procedures used in testing defendant. Since the testimony was eventually presented in an intelligible form, we do not believe that counsel’s initial difficulty in formulating the question amounted to ineffectiveness. It is defendant’s position that the outcome would have been different if an attorney more experienced in presenting an insanity defense had conducted the examination of the psychiatric witnesses; however, we will not indulge in mere conjecture or speculation as to the result of the trial had representation been of higher quality (People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523).

With regard to counsel’s failure to object on two occasions, we note that, in general, decisions on when to object and what objections to interpose are matters of trial strategy (People v. Grant (1976), 38 Ill. App. 3d 62, 347 N.E.2d 244), and we will not extend our review to areas involving the exercise of judgment, trial tactics, or strategy, even where appellate counsel or this court might have acted differently (People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782).

Here, defendant maintains that counsel should have objected to allegedly hearsay testimony. In cross-examining defendant’s expert witness, the prosecutor inquired whether he had relied upon the report of Dr. Kelly, who did not testify at trial, in formulating his opinion. Then, although the witness stated that he had not relied on that report, the prosecutor proceeded to elicit the contents thereof. Defendant asserts that while an expert psychiatric witness may be cross-examined with regard to reports upon which his opinion is predicated (see People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171), the expert here stated that he had not relied on the Kelly report because it was not even available at the time he rendered his opinion; therefore, defendant insists, he should not have been questioned concerning the contents thereof. While we agree with this position of defendant, it appears to us that counsel’s failure to object may have been a matter of strategy. We note that, on redirect, he elicited extensive testimony from the witness regarding portions of the Kelly report which were consistent with the opinion of the witness. For example, the witness testified that Dr. Kelly found that defendant had certain defects of memory and communication; that there were signs indicative of organic brain syndrome; that defendant suffered from headaches and delusions which were physical in origin; and that defendant suffered from other organic deficits. Counsel further brought out Dr. Kelly’s statement that he could not determine whether defendant was sane at the time in question. The contents of this report were otherwise unavailable to defendant, and it was not likely that he would call Dr. Kelly as a witness since he had formulated no opinion on the issue of sanity. Defense counsel was able to demonstrate thereby that there was some corroboration for his expert’s physical findings and that, despite numerous interviews, the State’s expert witness was the only psychiatrist who had made a finding that he was sane when the crime was committed.

Defendant has also raised counsel’s failure to object to a narrative answer given by the State’s expert witness as further evidence of counsel’s incompetence. While narrative answers are generally improper, if an objection had been made, the State could easily have elicited the identical testimony; thus, we cannot say that the outcome would have been different had counsel objected. See People v. Moore (1981), 105 Ill. App. 3d 264, 434 N.E.2d 300.

Considering the totality of the circumstances here, it is our view that defendant was not deprived of effective assistance of counsel, and therefore was not prejudiced in the presentation of his defense by the trial court’s refusal to grant a continuance.

Defendant next contends that the procedure adopted by the trial court in selecting the jury denied him his right to freely exercise his peremptory challenges. The trial court called prospective jurors in panels of 12 and, after voir dire, required defendant and the State to submit written lists of the jurors they wished to peremptorily challenge; this was done simultaneously, so that, in exercising their chailenges, neither side knew which jurors would be challenged by the other. The jurors remaining after these lists were submitted were sworn, and a second panel was called, sufficient in size to complete a panel of 12, whereupon the above-described manner of exercising peremptory challenges was repeated. In all, 17 peremptory challenges were exercised, but because of the procedure employed, it is impossible to determine how many challenges were exercised by defendant, which jurors were challenged by the respective sides, or whether, in the case of overlap, each side was deemed to have exercised a challenge. On appeal, defendant argues that the entire procedure was improper, and he also objects specifically to one particular incident. After voir dire of the initial panel of 12, each side submitted its list of challenges, and the lists were read aloud to the attorneys outside the presence of the prospective jurors. At that time, defense counsel stated that he had “inadvertently” omitted the name of one juror he intended to challenge, but also stated that he had expected the State to challenge that juror. The trial court ruled that the challenge was untimely, and the juror in question was sworn over defendant’s objection.

Initially, we note that while defendant preserved the question whether he was timely in exercising his peremptory challenge by objecting at trial and raising the issue in his post-trial motion, it appears that no objection was made at trial to the procedure followed, and that defendant did not raise that issue in his post-trial motion. Under those circumstances, we would ordinarily deem the question waived for purposes of appeal. (See, e.g., People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020 (failure to object to the court’s practice of using panels of 12 waived the issue).) However, since this is a matter of first impression, and because “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice” (Swain v. Alabama (1965), 380 U.S. 202, 219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835), we have found it necessary to consider whether reversal is required pursuant to the plain error rule set forth in Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)).

For a number of years, the manner of selecting a jury in criminal cases was prescribed by a statute which provided in relevant part that “[a]fter examination by the court the jurors shall be examined, passed upon, accepted and tendered as a panel of 4 commencing with the State.” (See, e.g., Ill. Rev. Stat. 1977, ch. 38, par. 115 — 4(f).) Recently, however, that statute was amended to provide that the manner of selecting a jury shall be “as provided by Supreme Court rules.” (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(f).) Pursuant thereto, the supreme court added Rule 434, effective April 1, 1982, which provides that “[i]n criminal cases the parties shall pass upon and accept the jury in panels of four, commencing with the State, unless the court, in its direction, directs otherwise.” (Emphasis added.) (87 Ill. 2d R. 434.) Thus, the trial court is now vested with discretion in determining the manner in which peremptory challenges may be exercised, but since this rule is of recent origin, we have no Illinois cases to guide us in the standard to be applied in determining whether the trial court has abused that discretion. However, because of defendant’s failure to preserve the issue, for purposes of Rule 615(a) we need consider only whether, as defendant contends, the right to freely exercise his peremptory challenges includes the right to know what challenges have been exercised by the State prior to presenting his challenges.

Defendant asserts that the practice of requiring each side to submit written lists of challenges simultaneously prevents him from (a) knowing what challenges were exercised by the State, which (b) forces him to exercise peremptory challenges he need not use where the State has challenged the same juror. We cannot determine from the record before us whether any of the jurors in the instant case were challenged by both sides; however, we believe that both- of these questions were resolved years ago by the United States Supreme Court in Pointer v. United States (1894), 151 U.S. 396, 38 L. Ed. 208, 14 S. Ct. 410. There, 37 potential jurors were found qualified to serve, and the defendant and the prosecution were then required to submit a list of those jurors they wished to challenge, the defendant being allowed 20 challenges and the prosecution five. After these lists were submitted, no further challenges were permitted, and the jury was selected from the first 12 names remaining. On appeal, the Supreme Court rejected the defendant’s contentions that (a) he was entitled to know which jurors had been challenged by the prosecution, and (b) his right to exercise peremptory challenges was restricted by the fact that it was possible some jurors were stricken by both sides. It found that the defendant’s right to exercise peremptory challenges did not include the right to have the State proceed first, noting that “the general rule is, that where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court.” (151 U.S. 396, 410, 38 L. Ed. 208, 214, 14 S. Ct. 410, 415.) With regard to the defendant’s second contention, the court stated:

“It is true that, under the method pursued in this case, it might occur that the defendant would strike from the list the same persons stricken off by the government. But that circumstance does not change the fact that the accused was at liberty to exclude from the jury all, to the number of twenty, who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular persons from the jury. He was not entitled, of right, to know, in advance, what jurors would be excluded by the government in the exercise of its right of peremptory challenge.” (151 U.S. 396, 412, 38 L. Ed. 2d 208, 215, 14 S. Ct. 410, 416.)

Thus, since the right to exercise peremptory challenges does not include the right to have the State proceed first so that the defendant might preserve his challenges, we see no basis for reversal under the plain error exception set forth in Rule 615(a).

As noted above, defendant did preserve the question whether his right to exercise peremptory challenges was restricted by the court’s ruling that his attempt to challenge a juror was untimely after the State’s challenges had been disclosed.

The question whether a peremptory challenge was exercised in a timely manner has never been prescribed by statute; however, under the statutorily mandated procedure for selecting a jury, the rule developed that “when both sides have accepted a panel of jurors, it is too late for either side to exercise a peremptory challenge as to any member of that panel previously tendered to the other side” (People v. Villa (1981), 93 Ill. App. 3d 196, 200, 416 N.E.2d 1226, 1230), unless the party seeking to challenge a juror previously accepted demonstrates that new information has been revealed which, if known prior to acceptance, would have prompted him to exercise a peremptory challenge (People v. Scheidt (1983), 113 Ill. App. 3d 632, 447 N.E.2d 536). In the instant case, defendant did not predicate his challenge on any newly discovered information. He asserted that the omission was inadvertent, although his counsel also indicated that the omission may have been a calculated attempt to avoid “wasting” a challenge where counsel perceived a possibility that the juror in question would be challenged by the State. The question, then, is whether the jurors which remained after each side had exercised its peremptory challenges could be deemed accepted.

Defendant asserts that “it cannot be accurately argued that both sides had accepted a panel of jurors” because “[i]n the traditional method of selecting a jury, a panel of prospective jurors is not deemed ‘accepted’ until all prospective members have been openly tendered to both sides and both sides have accepted the panel in full.” However, as defendant is well aware, the procedure followed here was not the “traditional” one. It is no longer mandated that the jury be “examined, passed upon, accepted and tendered as a panel of 4”; under Rule 434, the trial court may, in its discretion, direct otherwise. Clearly, the trial court here directed that any juror not challenged by either side would be deemed accepted, and defendant does not contend that such was not his understanding at the time he exercised his peremptory challenges. The question, then, is whether the trial court abused the discretion now vested in it pursuant to Rule 434.

Other than contrasting the procedure used here with the former, statutorily prescribed procedure, defendant makes no attempt to explain how he was “denied his right to exercise his peremptory challenges freely, without explanation, and without interference from the court.” He could have included the name of the juror in question on his list of challenges. In other jurisdictions which allow the trial court discretion in setting the procedure for exercising peremptory challenges, it has been held that no abuse is demonstrated where the defendant has adequate notice of the system to be used, and the method chosen does not unduly restrict the use of challenges (see, e.g., United States v. Turner (9th Cir. 1977), 558 F.2d 535), and it has also been held that there is no abuse of discretion in requiring that both sides exercise their challenges simultaneously and in writing (see, e.g., United States v. Roe (11th Cir. 1982), 670 F.2d 956, cert. denied (1982), 459 U.S. 856, 74 L. Ed. 2d 109, 103 S. Ct. 126; United States v. Sarris (5th Cir. 1980), 632 F.2d 1341; Carbo v. United States (9th Cir. 1963), 314 F.2d 718, cert. denied (1964), 377 U.S. 953, 12 L. Ed.2d 498, 84 S. Ct. 1626; Hart v. State (1976), 265 Ind. 145, 352 N.E.2d 712). Therefore, it appears to us that if the procedure used is not an abuse of discretion, then there can be no such abuse in refusing to allow defendant to exercise a challenge once he has submitted his list and has been informed of the State’s challenges. To hold otherwise would negate the entire procedure and render meaningless our determination that the procedure itself is not an abuse of discretion. Once counsel submitted their lists, the jurors who were not challenged by either party were deemed accepted by both, and the trial court did not abuse its discretion in so ruling.

Finally, defendant contends that the trial court erred in refusing to grant a mistrial when the State’s expert witness (a) testified to a statement made by defendant during the course of his examination, and (b) revealed that defendant had been incarcerated previously.

The decision whether to grant a mistrial is within the broad discretion of the trial court (People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350), and its determination will not be reversed unless it appears that there was a manifest necessity for the mistrial or that the ends of justice would be defeated by continuing with the trial (People v. Roberts (1980), 83 Ill. App. 3d 311, 404 N.E.2d 278). Thus, it must appear that the jury has been so influenced and prejudiced that it would not, or could not, be fair and impartial (People v. Rose (1979), 77 Ill. App. 3d 330, 395 N.E.2d 1081), and the damaging effect cannot be remedied by admonitions or instructions (see People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239).

Defendant first argues that he was denied a fair trial when the State introduced improper testimony regarding the result of a verdict of not guilty by reason of insanity. In explaining the basis for his opinion that defendant was not suffering from organic brain syndrome, the State’s expert stated:

“I find him having, in my opinion, rational judgment, and I say that for good reason, because in talking with him and examining the record, it’s indicated that *** he knew that his defense would be not guilty by reason of insanity. He knew that if found that way he would not have to serve 30 years, but perhaps 5 and 10, and with time already served he indicated he would be up in 3 or 4 years ***.”

Defendant acknowledges that the above testimony was admissible under a statute which provides that “[statements made by the defendant *** in the course of any examination *** ordered [to assess fitness] *** shall not be admissible against the defendant unless he raises the defense of insanity ***, in which case they shall be admissible only on the issue of whether he was insane ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 14.) Nevertheless, he argues that the prejudicial effect of this statement outweighed its probative value because it appealed “to the fears of the jurors that they may be responsible for the future criminal behavior of the accused should they acquit him.”

We disagree with defendant’s characterization of the above statement; if anything, it implies that defendant would be incarcerated even if the jury found him not guilty by reason of insanity. Moreover, it was highly probative of defendant’s ability to engage in abstract reasoning and make rational judgments, a fact placed in issue by the testimony of defendant’s expert witness, whose diagnosis was based in large part on a finding that defendant was incapable of engaging in abstract reasoning or making rational judgments.

Furthermore, as defendant seems to acknowledge, where testimony is proper for one purpose, but improper for another, the defendant may request a limiting instruction. No such instruction was given or requested in the instant case, and the usual rule is that one who fails to request an instruction cannot complain of its absence. (People v. Howell (1977), 53 Ill. App. 3d 465, 368 N.E.2d 689.) The sole relief requested by defendant was a mistrial; that motion was properly denied because the testimony was admissible on the issue of sanity. Thereafter, defendant could have requested a limiting instruction, but failed to do so. We find no error in the trial court failing to give such an instruction sua sponte; the statement in question was not inculpatory, nor did it reveal anything of defendant’s involvement in prior crimes. Its only possible value was as evidence of defendant’s mental condition, and in our view it does not even introduce improper considerations of the consequences of a not guilty by reason of insanity verdict, since it contains no implication that defendant would go free if such a verdict were reached.

Defendant also maintains that a mistrial should have been granted when the expert witness revealed that he had been incarcerated previously, in violation of a ruling precluding introduction of that information. During direct examination, the witness was asked whether defendant remembered, and was able to give details of, events which occurred prior to 1979. Before the witness answered, defense counsel requested at a side bar conference that the witness be precluded from revealing the details of what defendant remembered, i.e., that prior to 1979 he was serving a term for murder. The motion was granted, and the witness was admonished that, in describing defendant’s ability to remember, he was to avoid giving specific details which might reveal that defendant had been in the penitentiary for murder. The witness complied, but in answering a subsequent question regarding the basis for his opinion that defendant was malingering, he stated:

“In reviewing the records, there was a report from Dr. Kelly, and Dr. Kelly reviewed the Correctional Report, the records from some correctional place, I don’t know where that was. But Dr. Kelly reports that following his injury — from the report *** he was well oriented.”

Defendant characterizes the above testimony as a deliberate disregard of the trial court’s ruling, and so prejudicial as to require the granting of a mistrial.

We question whether the above statement was encompassed by the preclusion ruling, which was couched in terms of what the witness might reveal in connection with defendant’s ability to remember past events; certainly that is how it was explained to the witness. For this reason, we believe that the above reference was inadvertent, not a deliberate disregard for the court’s instruction. Furthermore, we have held that such inadvertent,, isolated references, even where they clearly state that defendant was previously incarcerated, are not necessarily so prejudicial as to require declaration of a mistrial. (See, e.g., People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) We find that rule particularly appropriate in the instant case. Defendant has never denied committing the acts charged, choosing to raise instead the defense of insanity. The testimony in question did not tend to negate that defense, therefore we do not believe that it was so prejudicial as to require a mistrial. See People v. Upshaw (1981), 103 Ill. App. 3d 690, 431 N.E.2d 1138.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.