author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH EDDINGTON et al., Defendants-Appellants.
    First District (1st Division)
    No. 82 — 304
    Opinion filed September 12, 1983.

      Donna Finch, of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas Wood Flynn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants Keith Eddington and Gary Hart were found guilty in a jury trial of kidnaping and unlawful restraint. They were both sentenced to an extended term of 12 years for kidnaping. On appeal, defendants raise the following issues: (1) whether the jury received extraneous prejudicial information when several jurors saw a list of additional charges pending against defendants posted outside the courtroom; (2) whether testimony of unrelated criminal activity was improperly admitted at trial; (3) whether the trial court erred in refusing to allow the defense to impeach a State witness with prior inconsistent statements; (4) whether the trial court erred in giving to the jury a non-IPI instruction on the secret confinement element of the kidnaping charge; (5) whether prosecutorial misconduct during closing argument denied defendants a fair trial; and (6) whether defendant Eddington was eligible for an extended sentence.

No issues are raised concerning the sufficiency of the evidence.

Barbara Montley testified that on June 6, 1981, at approximately 5 p.m., she and her former boyfriend, Warren Hardwick, were at Miller’s Meadow, a forest preserve in Maywood, Illinois. Montley’s current boyfriend, Alvin Daniels, arrived and an argument began between Hardwick and Daniels. A crowd of people gathered to listen to the argument. Montley testified that two young men stepped out of the crowd and one said to Daniels, “Well, if he took your girlfriend, why don’t you just let him have her.” Montley identified the man that spoke as defendant Hart and the other man as defendant Eddington. She testified that she did not know the men nor did she think that Hardwick and Daniels knew them.

After the argument broke up, Montley and Hardwick left Miller’s Meadow in Hardwick’s car. While they were waiting at a stop light about a block from the forest preserve, a man that Montley identified as Eddington approached the passenger side of the car. He told Montley that he was a cousin of her boyfriend and was going to take her to him. Montley testified that Eddington then grabbed her by the arm and pulled her out of the car. She was dragged across the roadway and pushed into a “big black car.” There were three males already in the car, Hart who was driving and two others.

After driving around Maywood for 15 minutes, the two other males were dropped off. One of the males, who was sitting in the back seat, had to climb over the front seat to get out of the car because the rear door of the passenger side was not operative. Montley and Eddington were left sitting alone in the backseat. Hart then drove past a park where defendants waved to several friends playing basketball. They then continued on to the Eisenhower Expressway. Montley testified that at this point she began to scream. Eddington told her that they would take her home but she had to be quiet. She began fighting with Eddington and, then, she jumped out of the rear window of the car on the passenger side. She landed on the expressway and rolled across a lane of traffic to the shoulder of the road.

Frank Kolar testified that on June 6, 1981, at about 6 or 6:30 p.m. he and his wife were driving east on the Eisenhower Expressway when he saw a woman leap from the window of a moving car. At the time the car, a black Cadillac, was traveling about 50 miles per hour in the right hand lane in heavy traffic. Kolar saw Montley fall on her hands and then roll and skid across the center lane and the left lane of traffic and onto the left shoulder. Several cars swerved to avoid her and accidents ensued. Kolar pulled over to the side of the road and went to assist Montley. Her clothes were ripped and shreaded by the pavement. Kolar testified that the skin was completely off the palms of her hands and her back was badly scratched. Kolar flagged down another car and the driver of that car called the police. A Maywood police officer arrived and took Montley to a hospital where she was treated.

Warren Hardwick testified that on the day in question he was with Montley at Miller’s Meadow when Daniels arrived. Hardwick testified that Montley argued with Daniels and that he did not notice anyone approach or say anything to them. Hardwick also stated that he did not pay much attention to the man who took Montley out of his car and that although the man grabbed Montley’s hand, she did not struggle. Hardwick also testified, however, that the man had gotten out of a four-door black Cadillac.

Officer Fernando Reyes of the Cook County Forest Preserve Police testified that he interviewed Montley at the hospital. Four days later, on June 10, at approximately 11 p.m., Reyes was on patrol in a squad car at Miller’s Meadow and was assigned to close the park. Reyes noticed a black Cadillac parked in the forest preserve parking lot. As he approached the car he saw someone jump from the back seat into the front seat and exit the car on the passenger side. Reyes observed that the man was pulling up his pants. Reyes then got out of the squad car and shone his flashlight into the backseat. He observed a female and a male. The male was pulling up his pants and the female was crying. At trial, Reyes identified Hart as the first man who exited the car and Eddington as the man in the backseat of the car. Hart was unable to produce a driver’s license at Officer Reyes’ request and there was no record of a license being issued to Hart under the several names and birthdates he gave Reyes. Reyes placed defendants under arrest. The following day, in a lineup conducted at Maywood courthouse, Montley identified defendants as her abductors.

On cross-examination, Reyes testified that he arrested defendants that night and charged them with an offense other than the offense against Montley. In response to a specific defense question, Reyes stated that he had testified against defendants with respect to the other offenses and that the matter was dismissed. The State objected and in sidebar informed the court that although the charges were dismissed at a preliminary hearing, the grand jury did return indictments charging defendants with rape. The court ruled that defendants had opened the door to bring out the fact that defendants had been charged with rape but the State did not clarify the matter. Additionally, the defense handed Reyes his police report of defendants’ arrest and asked Reyes to identify it. Reyes replied, “It is a rape report.” Reyes’ answer was striken, and the jury was instructed to disregard it.

Stephanie Eddington, defendant Eddington’s sister, testified that defendant was at home until about 4 p.m. on June 6. Stephanie testified that when she went to a park near their home at about 6 p.m. she saw Eddington playing basketball with some friends. Reginald Williams testified that on the day in question he played basketball with Eddington from approximately 4:30 to 8 p.m.

Alma Sanders testified that on June 6 Hart came to her home at about 1 p.m. to pick up her daughter Nanette. Nanette and Hart spent the day together at Hart’s home. Mrs. Sanders testified that she called them and spoke to Hart at about 6 and 7:45 p.m. Both times Mrs. Sanders told Hart that it was time to bring Nanette home. Hart brought her home at about 8 p.m. Nanette Sanders testified that she spent the day with Hart at his home.

Defendants first contend that the jury verdict must be vacated because during trial jury members saw a sheet of paper posted outside the courtroom listing additional charges pending against defendants. At a hearing on defendants’ motion for a new trial, a former jury member, John Stepney, testified that he had seen these papers while on a lunch recess from trial. Stepney testified that during deliberations he and several other jury members briefly discussed the charges pending against defendants that they had seen on the list. When asked if he could recall what the charges were, the juror answered, “I believe it was deviate sex, and rape and I don’t know exactly all of them but I know there were about eight on one and six or seven on the other.” The juror also testified that his decision was not affected by the fact that other charges were pending against defendants. On cross-examination, Stepney stated that two weeks after trial he was at a party at defendant’s home and told defendant’s father that he was a juror in his son’s trial. Several days later, Stepney received a call from the defense attorney. In response to defense counsel’s question about the jury deliberations, Stepney mentioned that the jurors had seen the posted list. The trial court refused to consider the testimony of Stepney to impeach the jury verdict and denied defendants’ motion for a new trial.

Defendants argue that the trial court misapplied the standard for attacking a jury verdict enunciated in People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656. Defendants argue that Stepney’s testimony shows that the jury was exposed to highly prejudicial information which defendants had no opportunity to refute. Defendants assert that the repulsion felt by many toward the offenses of rape and deviate sexual assault suggest the likelihood that information of these charges was highly prejudicial to defendants. The State contends that if the jurors saw the list, it was not so prejudicial as to require reversal since the jury had already heard the same information when the arresting officer testified to the circumstances surrounding defendants’ arrest.

In People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, a crucial issue at trial was the identification of the defendant by comparison of heel prints left at the scene of the crime to those of defendant. A police officer testified to the similarity of the prints in that both contained a crack and the insignia “Florsheim.” At a post-trial hearing, the defendant presented testimony that several jurors had made an independent visit to a Florsheim shoe store to Observe the designs of shoe heels and had reported their findings to the jury during deliberations. The supreme court held that the testimony of a juror may be used to impeach the verdict of the jury only in those cases where the juror is testifying to whether extraneous prejudicial information was improperly brought to bear upon any juror. Evidence relating to the effect of such influence on the mental processes of the jury members is inadmissible.

The Holmes court held that it first must be determined whether any extraneous prejudicial information was improperly brought to the jury’s attention or any improper outside influence brought to bear on a juror. Second, the court must consider whether the conduct involved such a probability that prejudice will result that the trial is to be deemed inherently lacking in due process. The Holmes court held that, under the circumstances of that case, defendant should receive a new trial since he was neither confronted with this crucial identity evidence nor given an opportunity to refute it at trial.

Following Holmes, it has been held that a new trial was not mandated when the extraneous information received by the jury consisted in a chance meeting between the prosecutrix in a rape case and several members of the jury where there was not evidence of conversation between the parties. (People v. Chatman (1977), 52 Ill. App. 3d 631, 367 N.E.2d 1050.) The court has also found that a defendant is not entitled to a new trial in a case involving a charge that defendant filed a fictitious injury claim when several jurors who were employees of the same company as defendant discussed their own recollections of the site of defendant’s alleged injury. (People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306.) Wurster held that the description of the scene was strictly a collateral issue and too insignificant to justify reversal of defendant’s conviction.

The State contends that the present case is analogous to People v. Hayes (1979), 70 Ill. App. 3d 811, 388 N.E.2d 818. In Hayes members of the jury saw photographs of the murder victim that the State’s Attorney was holding while examining a witness. The trial court had previously ruled that the pictures were too gruesome to be shown to the jury. On appeal the court held that since several witnesses had testified to the condition of the victim’s body when it was discovered, the pictures did not provide the jury with any crucial information which defendant had not been confronted with at trial. 70 Ill. App. 3d 811, 828, 388 N.E.2d 818, 831.

It is significant that in the case at bar evidence of defendants’ other criminal activity was provided to the jury from the witness stand. After Officer Reyes’ testimony on direct and on cross-examination, the jury was informed that defendants had been arrested and charged with other crimes resulting from their activity on June 10. Also, the jury was instructed that evidence of defendants’ involvement in an offense other than that charged was to be considered only for the limited purpose for which it was received. As in Hayes, the posted list did not present the jury with crucial information with which defendants neither had been confronted at trial nor had an opportunity to refute.

The second contention raised by defendants is that they were denied their due process rights to a fair trial by the introduction of Officer Reyes’ testimony on the circumstances surrounding defendants’ arrest. The trial court found the officer’s testimony to be admissible on the issue of intent, and at the close of trial gave the jury the appropriate limiting instruction on other crimes evidence.

Testimony of other criminal activity is admissible if relevant to demonstrate absence of mistake, intent, motive, design, plan, identity or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Furthermore, evidence of unrelated criminal activity is admissible when relevant to police investigation of the crimes charged and when it is an integral part of the narrative of a defendant’s arrest. (People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The supreme court has stated that “evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime.” People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824.

Defendants contend, however, that the testimony elicited by the State exceeds these exceptions. The State asserts that the officer’s testimony was highly relevant to explain the circumstances of defendants’ arrest and to show intent and modus operandi. Defendants were arrested in the same forest preserve where they allegedly abducted the victim, in an automobile matching the description the victim had given and five days after the victim’s abduction. Under these facts the evidence of defendants’ arrest was admissible for a purpose other than to show defendants’ propensity to commit a crime. McKibbins.

Defendants also argue that the State improperly attempted to impeach Nanette Sanders, an alibi witness for Hart, by suggesting that Hart had committed other crimes. Sanders testified that she remembered the day of June 6 because her sister had graduated two days earlier. The State attempted to impeach this testimony with statements the witness had made to an investigator claiming that she remembered that date because Hart had spent the previous night in jail. The State contends that they are entitled to impeach a witness by her prior inconsistent statements which tended to disprove alibi testimony. Since Sander’s statement was relevant for impeaching her testimony at trial, the trial court did not err in admitting this evidence. McKibbins.

Defendants next contend that the trial court committed reversible error in refusing to allow the defense to impeach the victim’s testimony that she was in Hardwick’s car at the time of her abduction. Defendants wanted to show that she told Officer Reyes and an investigator that she was walking at the time she was seized. The State contends that this issue is waived for the purpose of review because defendants failed to raise it in their post-trial motion. Further, the State argues that the defense counsel did not lay the proper foundation for impeachment during his initial cross-examination of the victim and was not entitled to a second opportunity to establish the foundation when the victim was recalled for cross-examination on an unrelated point.

Defendants’ failure to raise this issue has waived consideration of it upon appeal. (People v. Irwin (1965), 32 Ill. 2d 441, 207 N.E.2d 76.) Further, the error, if any, was not so prejudicial as to constitute plain error which denied defendants their right to a fair trial. Reyes testified to the victim’s impeaching statement. Also his police report and the investigator’s report, both of which contained the impeaching statement, were read into the record. People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.

The fourth contention raised by defendants is that the trial court erred in giving an instruction to the jury that is not found in the Illinois Pattern Jury Instructions (IPI), Criminal (1968). An element of the offense of kidnaping is secret confinement. (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 1.) The instruction at issue read, “Confinement in an automobile may constitute secret confinement.” Defendants argue that this instruction wa,s confusing to the jury and that even the trial judge initially indicted confusion as to its meaning. Defendants further argue that the IPI instruction on kidnaping is accurate and sufficiently reflects the law and, therefore, only the IPI instruction should have been given. The State argues that the concept of secret confinement is not adequately covered by the IPI instruction and is not a matter of common knowledge so the non-IPI instruction was helpful to the jury.

The IPI instruction states that for the offense of kidnaping the State must prove:

“First: That the defendant acted knowingly; and Second: That the defendant, by force or threat of imminent force, carried_from one place to another place; and,

Third: That when the defendant did so he intended secretly to confine_against her will.” IPI Criminal No. 8.02.

The trial court, in its discretion, may give a non-IPI instruction when the pattern instructions do not adequately state the law. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 379, 394 N.E.2d 1329, 1336; 87 Ill. 2d R. 451(a).) There is no question that the instruction is an accurate statement of the law. (People v. Bishop (1953), 1 Ill. 2d 60, 114 N.E.2d 566, cert. denied (1953), 346 U.S. 916, 98 L. Ed. 412, 74 S. Ct. 278; People v. Hamil (1974), 20 Ill. App. 3d 901, 314 N.E.2d 251.) Since the instruction was phrased in the conditional tense, the instruction did not remove from the jury’s consideration the element of secret confinement. When viewed in the context of the entire charge, it cannot be said that the trial court abused its discretion in giving the non-IPI instruction at issue here. (See People v. Griffin (1982), 113 Ill. App. 3d 184, 446 N.E.2d 1175.) Further, any error in so instructing the jury is harmless in light of the overwhelming evidence of defendants’ guilt. People v. Jones (1979), 81 Ill. 2d 1, 9, 405 N.E.2d 343, 346.

Defendants next maintain that the cumulative effect of the State’s improper remarks during closing argument was so prejudicial as to deny them their right to a fair trial. Defendants concede, however, that they failed to mention the alleged errors in their post-trial motion, but they ask this court to consider the merits of their arguments under the plain error exception to the waiver rule. (People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743.) When a defendant fails to make a timely objection at trial or in a post-trial motion, irregularities in the closing argument complained of on review are ordinarily deemed waived. (Jackson.) If, however, the State’s improper argument was so prejudicial as to prevent a defendant from receiving a fair trial, a reviewing court will consider whether substantial error occurred. (Jackson.) In the case at bar, several of the alleged improper comments may affect substantial rights of defendants and warrant consideration by this court.

Defendants argue that in its rebuttal argument the prosecutor commented on defendants’ failure to testify. A review of the record reveals that the comments were in response to a statement made by the defense attorney in his closing argument. The defense attorney stated that all his clients could tell him about the case was that they did not know the victim and had never before seen her. It has been held that where a prosecutor’s comments on defendant’s failure to testify are in the form of a response to defense counsel’s comments in closing argument, “defendant may not predicate error on a response by the prosecutor which he himself provoked.” (People v. Carruthers (1974), 18 Ill. App. 3d 255, 267, 309 N.E.2d 659, 668; People v. Conner (1976), 42 Ill. App. 3d 234, 355 N.E.2d 662.) The comments complained of did not exceed the bounds of proper rebuttal to the closing argument of the defense.

Defendants also allege that the State improperly commented on the fact that only one of the several potential alibi witnesses testified for Eddington. Alibi witness Reginald Williams named several other men who were playing basketball with Eddington and himself at the time of the crime. When the defense interjects the existence of potential alibi witnesses into the case, the prosecutor may comment on the fact that these potential alibi witnesses did not testify. (People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170; People v. Smylie (1981), 103 Ill. App. 3d 679, 431 N.E.2d 1130.) Any error committed by the State in additionally claiming that these potential witnesses did not testify because they would not perjure themselves was harmless.

We have reviewed the remaining comments complained of and find that they did not affect defendants’ substantial rights. The prosecutor’s comment on the State’s burden of proof is very similar to a comment found to be harmless error in People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127, 130. Also, the State did not commit reversible error in referring to defendants as “predators.” (See People v. Terrell (1975), 62 Ill. 2d 60, 64, 338 N.E.2d 383, 385.) The evidence against defendants was strong. It cannot be said that the cumulative effect of these comments was a material factor in defendants’ conviction and that the verdict would have been any different if none of the alleged improper comments had been made. People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771, cert. denied (1970), 396 U.S. 1016, 24 L. Ed. 2d 507, 90 S. Ct. 578.

The final contention raised by defendants is that the trial court abused its discretion in sentencing defendant Eddington to an extended-term sentence of 12 years. Eddington argues that he was not eligible for an extended term under the prior conviction portion of that statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1)), because his only prior conviction was the result of a guilty plea. Defendant’s argument is without merit. The Unified Code of Corrections defines conviction as a judgment of conviction or a sentence entered either upon a finding of guilty or upon a plea of guilty. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—5; People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) Under the plain meaning of the statute, Eddington is eligible for an extended term based upon his prior conviction. See People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316.

Eddington also argues that the trial court abused its discretion in sentencing him because the court allegedly did not consider his potential for rehabilitation and other mitigating factors in his background. A reviewing court will not reduce a defendant’s sentence absent a showing that the trial court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Before rendering its sentencing decision, the trial court heard the arguments of counsel in aggravation and mitigation. It should be noted that at the time of this offense, Eddington was on a felony probation following a conviction for aggravated battery and burglary. In light of his criminal record and the seriousness of the present offense, the trial court did not abuse its discretion in sentencing Eddington to 12 years’ incarceration.

Additionally, defendants contend, and the State agrees, that the judgment order incorrectly reflects convictions for both unlawful restraint and kidnaping. The trial court ruled that the unlawful restraint conviction merged into the kidnaping conviction and sentenced defendants only on the kidnaping conviction. Therefore, the judgment order should be amended to reflect only a conviction and sentence for kidnaping. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

For the foregoing reasons, defendants’ convictions and sentences for kidnaping are affirmed. Defendants’ convictions for unlawful restraint are vacated.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT BARNES, Defendant-Appellant.
    First District (4th Division)
    No. 82 — 459
    Opinion filed September 8, 1983.

      Neville, Pappas & Mahoney, Ltd., of Chicago (Ronald Neville, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat, Michele A. Grimaldi, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant, Roosevelt Barnes, was convicted of murder and armed violence and was subsequently sentenced to 40 years’ imprisonment. On appeal, the defendant raises seven issues which involve admission of evidence, suppression of identification testimony, jury instructions, comments made during closing arguments and reasonable doubt.

The first issue is whether the trial court erroneously allowed a statement into evidence which was made in the hospital by the victim prior to his death. The victim was shot on August 14, 1980. He made a statement to an assistant State’s Attorney and a policeman in the intensive care unit at the hospital on August 28, 1980. The victim died on August 31. Prior to trial, the defense presented a motion in limine requesting that the court preclude the State from introducing evidence at trial concerning the victim’s statements. During the hearing on the motion, the defendant argued that the victim’s statements were not admissible as either a dying declaration or any other exception to the hearsay rule.

The police officer who was present in the victim’s hospital room testified both at the hearing in limine and at trial. The assistant State’s Attorney who questioned the victim testified only at trial. Their testimony disclosed that when the victim was questioned in the hospital, he was suffering from injuries incurred when he was hit in the chest with a close range blast from a shotgun. His liver had been removed and he had lost IV2 of his lungs. Further, his heart was being monitored, he had a tube down his throat as a result of a tracheotomy and he had three separate intravenous lines attached to his arm. The victim was not under the influence of any medication during the interview. Due to the nature of his injuries, the victim was unable to speak during the interview. However, he was able to respond to questions by nodding his head affirmatively or negatively and by making limited motions with his hands and arms.

The assistant State’s Attorney testified that after he introduced himself, he asked the victim if he realized that he was in imminent danger of dying and had little or no chance of recovery. The victim nodded affirmatively. He next nodded affirmatively when he was asked if he knew the defendant. The assistant State’s Attorney then asked the victim if he could identify the person who shot him, and the victim nodded affirmatively. When he was asked if the defendant had shot him the victim nodded yes. The assistant State’s Attorney then asked the victim how long he had known the defendant. The victim held up three fingers and nodded affirmatively when asked if that meant three years. The victim was then asked whether he or any other person present during the shooting incident had a weapon and the victim shook his head negatively. The assistant State’s Attorney asked the victim if the defendant had said that he was going to kill him. The victim nodded affirmatively. The victim was then asked how close the defendant was to him when the shot was fired. Because the victim could not speak, the assistant State’s Attorney asked him whether the distance was five feet. The victim shook his head and motioned with his hand that the distance was further than five feet. When asked if he was shot from a distance of 10 feet, the victim nodded affirmatively. The victim was next asked what caused the dispute. He motioned with his hand toward his head. When asked if this gesture meant that the dispute was over a comb or hair pick, the victim nodded affirmatively. The victim was next asked whether he could identify a photograph of the person who shot him and the victim nodded affirmatively. After the police officer and the assistant State’s Attorney placed six photographs on the bed next to the victim, the victim pointed to the defendant’s photograph.

On appeal, the defendant argues that the testimony of the police officer and the assistant State’s Attorney was insufficient to create the necessary foundation for introducing the victim’s statements as dying declarations. Specifically, the defendant contends that there was insufficient evidence to indicate that the victim was aware that he was in imminent danger of dying; that because the victim could not speak, there was no way to judge his state of mind; that the victim did not possess his mental faculties when he was questioned; and that the victim could not reasonably believe that he was in danger of dying because he was not questioned until 14 days after he was shot. The defendant further urges this court to require an additional and unprecedented factor to be present in order for a statement to be recognized as a dying declaration: “That the decedent was of such a moral conviction that he would not have likely lied just prior to death.”

In order for a statement to qualify as a dying declaration, the statement must be made under the fixed belief and moral conviction of the person making it that his death is impending and certain to follow almost immediately. (People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.) The belief of the dying person that death is impending furnishes the guarantee of truthfulness which makes his declaration admissible in evidence. (People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.) The declarant’s belief may be determined by anything said by him and also by the facts and circumstances surrounding the making of the statement. (People v. Davis (1981), 93 Ill. App. 3d 217, 416 N.E.2d 1197.) The declarant must be in possession of his mental faculties sufficiently to understand what he is doing and to be able to give a true and correct account of the facts to which the statement relates. (People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.) Finally, following a preliminary hearing outside the presence of the jury, the trial court must first be convinced beyond all reasonable doubt that all of the elements of a dying declaration are present before such statements may be heard and considered by the jury. People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.

In the instant case, we believe that the victim’s statements were properly allowed into evidence by the trial court as dying declarations. First, we believe that there was sufficient evidence that' the victim was operating under the fixed belief that his death was impending and certain to follow almost immediately. The victim had been shot in the chest at close range with a shotgun. His liver had been removed and he had lost one and one-half of his lungs. His heart was being monitored, he had a tube down his throat as a result of a tracheotomy, he had three separate intravenous lines attached to his arm and he was in the intensive care room of the hospital. Further, he indicated to both the police officer and the assistant State’s Attorney that he realized that he was in imminent danger of dying and had little or no chance of recovery. We believe that all of these circumstances, taken together, demonstrate that the victim was well aware of the fact of his imminent death.

• 4 Second, we believe that the victim was in possession of his mental faculties, was able to understand what he was doing and was able to give a true and correct account of the facts to which his statements related. The victim was not on any medication at the time he was questioned. Further, the victim was able to capably answer questions that were posed to him which required more than a simple yes or no answer. For example, the victim motioned with his hands in response to the assistant State’s Attorney question concerning the' distance from which he was shot. The victim also motioned with his hands toward his head when asked what had caused the dispute. In addition, the assistant State’s Attorney and the police officer both testified that the victim appeared to understand the questions asked to him. We believe that these circumstances indicate the victim’s ability to have perceived, recollected and communicated the circumstances surrounding the incident about which he was questioned.

The defendant nonetheless argues that the victim could not reasonably believe that he was in danger of dying because he was not questioned until 14 days after he was shot and that because the victim could not speak, there was no way for the trial court to judge his state of mind. The defendant cites no support for either contention and we fail to find them relevant to the circumstances presented to the court in the instant case. As we have indicated above, the victim was well aware that he was in imminent danger of dying and was possessed of his mental faculties when he was questioned. “The circumstances of each case will show whether the requisite consciousness [of approaching death] existed; and it is poor policy to disturb the [ruling of] the trial judge upon the meaning of these circumstances.” (People v. Smith (1974), 21 Ill. App. 3d 366, 372, 316 N.E.2d 170, 175.) In the case at bar, we will not disturb the ruling of the trial court where we believe that a sufficient foundation was laid to admit the victim’s statements as dying declarations.

As a final matter, the defendant urges that an additional factor must be present in order for a statement to qualify as a dying declaration, namely, “[t]hat the decedent was of such a moral conviction that he would not have likely lied just prior to death.” The defendant cites no case law or statutory authority for this novel proposition. The Illinois Supreme Court has clearly set out the elements that comprise a dying declaration (see People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328), and we see no reason why those factors should be increased upon or modified.

The second issue we shall address is whether the defendant was found guilty of murder and armed violence beyond a reasonable doubt. The evidence established that on August 14, 1980, the defendant was approached on a street corner by the victim and three of the victim’s friends. After the victim asked the defendant for a hair pick, the defendant refused to supply him with one and walked away. When the defendant looked back at the group from a half of a block away, the defendant stated that he could see the victim and his friends pointing at him. In a statement read at trial, the defendant said that he never saw any weapons but assumed that the group possessed weapons and that they were planning to harm him at a later time. The defendant further stated that he then borrowed a shotgun from a friend and returned to the street corner within five to seven minutes after the initial altercation. The victim and one of his friends were still present on the street corner. The defendant admitted that he walked up to the victim and shot him with a single shotgun blast from nine feet away. The defendant then fled, dismantled the gun and threw it in Lake Michigan.

On appeal, the defendant maintains that he voluntarily returned to the scene of the initial altercation and shot the victim because he was in fear for his life. Further, the defendant argues that the victim’s hearsay statement was the only evidence offered by the State which contradicted the defendant’s evidence of self-defense. We disagree.

We have already established that the victim’s statements were properly allowed into evidence as dying declarations. The victim stated that the defendant shot him and that no one else at the scene of the altercation had a weapon. The defendant himself did not testify at trial but a previous statement made by him was read into evidence. The defendant admitted that he walked away from the initial altercation and that he did not see-any of the other men carrying weapons. The defendant then obtained a gun, voluntarily returned to the scene and shot the victim in the chest.

A person is justified in using force intended to cause death or great bodily harm only where the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.) An argument of self-defense cannot stand where the defendant unreasonably believed that it was necessary to kill the victim in order to prevent his own death or great bodily harm. (People v. Mosley (1979), 68 Ill. App. 3d 721, 386 N.E.2d 545.) Whether the facts and circumstances of a particular case would induce a defendant’s reasonable apprehension of serious bodily harm is a question of fact for the jury. (People v. Moore (1976), 43 Ill. App. 3d 521, 357 N.E.2d 566.) A jury’s finding on the issue of self-defense will not be reversed unless it is so unsatisfactory or improbable as to raise a reasonable doubt as to the defendant’s guilt. People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499.

In the instant case, the defense offered no evidence that any person other than the defendant possessed a weapon at the time of either altercation. Furthermore, the defendant voluntarily returned to the scene and shot the victim. A defendant may not complain of self-defense when the perilous situation with which he was confronted arose out of his own aggressive conduct. (People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.) Under the facts of this case, we cannot say that the jury’s finding was so unsatisfactory or improbable as to raise a reasonable doubt of guilt and therefore, we find that the defendant was found guilty of murder and armed violence beyond a reasonable doubt.

The third issue raised by the defendant on appeal is whether the trial court erred in refusing to allow the defendant to introduce evidence of the victim’s prior conviction for burglary. The defense sought to introduce evidence of the victim’s prior convictions for battery in 1979 and for burglary in 1980. The trial court excluded evidence of the burglary conviction but allowed evidence to be admitted concerning the prior battery conviction. The defendant now argues that it was reversible error for the trial court to exclude evidence of the burglary conviction.

Even assuming for purposes of argument that exclusion of this evidence was improper, we do not believe that the exclusion was reversible error. First, the trial court allowed evidence of the victim’s prior battery conviction in support of the defendant’s proposition that the victim, rather than the defendant, was the aggressor. Second, we believe that there was a significant amount of evidence concerning the defendant’s guilt in this case. Specifically, the defense offered no evidence that the victim or his friends brandished a weapon at any time and the defendant voluntarily returned to the scene of the initial altercation in order to shoot the victim. Therefore, where one of the victim’s prior convictions was allowed into evidence and where there was such substantial evidence concerning the defendant’s guilt, we do not believe that it was reversible error for the trial court to exclude evidence concerning the victim’s burglary conviction.

The fourth issue raised on appeal is whether the trial court erred when it denied the defendant’s motion to suppress identification testimony. When the victim was interviewed in his hospital room by an assistant State’s Attorney and a police officer, he was shown six different photographs and he identified the defendant’s photograph when asked if he could identify a photograph of his assailant.

The defendant argues that the photographic identification was unnecessarily suggestive and that an actual lineup should have been conducted. Specifically, the defendant maintains that the photograph of the defendant was identified only after the assistant State’s Attorney and the police officer improperly suggested by the form of their questions that the defendant had shot the victim. Further, the defendant argues that because it was not impossible to conduct an actual lineup in the intensive care unit of the hospital, an actual rather than photographic lineup should have been conducted.

There is no legal necessity that a defendant must be identified in a lineup. (People v. Moore (1974), 17 Ill. App. 3d 507, 308 N.E.2d 210.) The practice of showing photographs of suspects to witnesses has been approved as essential to effective law enforcement. (People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1; People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332.) While the Illinois Supreme Court has expressed its disapproval of the use of photographs when a suspect is in custody and a lineup is feasible (People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634), the court did not establish a per se rule prohibiting the use of photographs under these circumstances. See People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E .2d 332.

In the instant case, although the defendant was in custody, we do not believe that it was feasible to conduct a lineup in the intensive care unit of the hospital where the victim had had his liver removed, had lost of his lungs, was having his heart monitored, had a tube down his throat as a result of a tracheotomy, and had three separate intravenous lines attached to his arm. We think that in such a situation it was permissible for a photographic identification to be conducted.

Furthermore, we believe that the circumstances surrounding the identification indicated that the identification itself was reliable. (See Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) Under Manson, the five factors to be considered in assessing a witness’ ability to make an accurate identification are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the amount of time between the crime and the confrontation. In the instant case, the victim had known the defendant for three years prior to the shooting at issue in this case. Further, the victim had two opportunities to view the defendant ori the morning of the shooting. The victim also immediately picked the defendant’s photograph from the group of six photographs that was presented to him. In addition, only two weeks had elapsed between the crime and the time the victim made his identification of the defendant. We believe that all of these factors taken together demonstrate the reliability of the victim’s identification of the defendant. We find no merit in the defendant’s argument that the victim identified the defendant’s photograph only after improper prompting by the assistant State’s Attorney and the police officer. Where the victim could not even talk due to the nature of his injuries, the only manner in which he could be questioned was to ask him direct questions. Therefore, where it was not feasible to hold a lineup in the intensive care unit of the hospital and where the circumstances surrounding the photographic identification demonstrated its reliability, we do not believe that the trial court erred when it denied the defendant’s motion to suppress identification testimony.

The fifth issue on appeal is whether the trial court erred in giving and refusing certain jury instructions and in providing the jury with certain verdict forms. The defendant first argues that the court improperly refused a non-Illinois Pattern Instruction tendered by the defense. This proposed instruction stated: “Evidence that the victim has been convicted of a crime of violence may be considered by you in determining who was the initial aggressor.”

The decision whether to give a tendered non-Pattern Instruction is within the discretion of the trial court. (People v. Larson (1980), 82 Ill. App. 3d. 129, 402 N.E.2d 732.) A non-Pattern credibility instruction may be properly refused by the trial court where an IPI instruction is given which adequately addresses the same issue. (People v. Pardo (1980), 83 Ill. App. 3d 556, 404 N.E.2d 501.) In the instant case, IPI 3.12 was read to the jury and it states: “Evidence that a witness had been convicted of an offense may be considered by you only as it may affect the believability of the witness.” We believe that the substance of the defendant’s tendered instruction was sufficiently covered by IPI Criminal No. 3.12, the instruction that was read to the jury. Further, where the decision to give a tendered non-IPI instruction is within the trial court’s discretion, we cannot say that the trial judge abused his discretion in this case.

The defendant next argues that the trial court improperly allowed an instruction tendered by the State over defense counsel’s objection. The instruction was IPI Criminal No. 3.11, which instructs a jury that they may consider a witness’ prior inconsistent statement or conduct in judging that witness’ credibility. In the instant case, none of the witnesses were impeached with prior testimony or prior acts. The State admits that the instruction should not have been given but claims that its inclusion was harmless error. We agree.

While the defendant gave conflicting accounts of his involvement in the crime prior to trial, he never testified at trial so the instruction could not have been considered in respect to him. Furthermore, a trial court’s error in giving or refusing an instruction will not warrant reversal where the evidence of the defendant’s guilt is so clear and convincing that the jury could not reasonably have acquitted him. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343.) In the case at bar, the victim identified the defendant as his assailant, the defendant was identified in a photographic lineup and the defendant admitted that he shot the victim. We believe that this was clear and convincing evidence of the defendant’s guilt. Therefore, where we find that the defendant was not prejudiced by the instruction and where we believe that the evidence of the defendant’s guilt was clear and convincing, we do not believe that it was reversible error for the trial court to have read IPI Criminal No. 3.11 to the jury.

The defendant also argues that the trial court erred in refusing the defendant’s request for additional verdict forms. The jury was given five verdict forms: guilty of murder, guilty of voluntary manslaughter, guilty of armed violence, not guilty of armed violence and not guilty. The defendant argues that he was prejudiced because the jury “had to believe that they could not find the defendant guilty of only armed violence, but had to find defendant guilty of another charge as well.” We disagree.

The jury in this ease was instructed that they could only convict the defendant of armed violence if they first found him guilty of murder. In light of this instruction, we do not believe that the defendant was prejudiced when the court refused his request for additional verdict forms. In addition, the trial court need not grant a defendant’s. request for separate not guilty forms for each offense charged. (People v. Stokes (1981), 95 Ill. App. 3d 6, 419 N.E.2d 1181.) Thus, we do not see how the defendant was prejudiced and we find no instance of reversible error.

The sixth issue raised by the defendant is whether he was prejudiced by comments made by the prosecutor during closing arguments. Specifically, the defendant argues that the prosecutor made an impermissible reference to the defendant’s failure to testify; that the prosecutor improperly commented upon the defendant’s failure to call any witness on his behalf; that the prosecutor improperly commented upon the defendant’s exercise of his Miranda rights; and that the prosecutor made certain statements that were designed solely to inflame the passions and prejudices of the jury.

We shall first determine whether the prosecution made an impermissible reference to the defendant’s failure to testify. During the defense closing argument, counsel stated that the defendant did not testify because the assistant State’s Attorney would browbeat, scare and confuse him. During the State’s closing argument, the prosecutor stated that the reason that the defendant did not take the stand was because he did not want to explain his self-defense argument. A defendant may not complain of statements made in rebuttal closing argument by the prosecutor which were invited by remarks made by defense counsel. (People v. Wilson (1980), 87 Ill. App. 3d 693, 409 N.E.2d 344.) In the instant case, we believe that the prosecutor’s statements were invited by defense counsel’s statements regarding the defendant’s failure to testify. Furthermore, even if a prosecutor’s comments may exceed the bounds of proper comment, the verdict will not be disturbed unless it can be said that the remarks resulted in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) While the defense argues that the defendant was severely prejudiced because the prosecutor inferred that the defendant was required to take the stand in order to maintain a theory of self-defense, we do not believe that this argument possesses merit in the context of the entire record of the closing arguments. The entire arguments of both the prosecutor and the defense must be considered and the comments complained of must be placed in their proper context. (People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.) Where the comments complained of by the defendant are placed in their proper context, we believe that the statements uttered by the prosecutor were invited by statements of defense counsel, and we do not see where the defendant suffered any real prejudice.

The defendant next argues that the prosecutor improperly commented upon the defendant’s failure to call any witnesses on his behalf. During defense closing arguments, counsel argued that the State’s failure to call as witnesses certain individuals on the State’s discovery list of potential witnesses implied the defendant’s innocence and that the State should have proven why the defendant was initially a suspect in the case. During the State’s closing argument, the prosecutor explained the discovery process and stated that defense counsel had the same subpoena power to bring witnesses into the courtroom as that possessed by the State. Again, we believe that the prosecutor’s statements were invited by those statements made by defense counsel in his closing argument. In addition, when the prosecutor’s statements are considered in light of the context of the entire closing argument, we do not believe that they resulted in substantial prejudice to the accused.

The defendant also argues that the prosecutor improperly commented upon the defendant’s exercise of his Miranda rights. However, defense counsel did not object to the complained of statement when it was made during closing arguments and did not raise this issue in his motion for a new trial. Consequently, we believe that this issue has been waived for purposes of appeal. The waiver rule applies to constitutional questions as well as to other issues. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Allegedly prejudicial argument is waived in the absence of objection unless the remarks were so prejudicial that the defendant did not receive a fair trial or were so flagrant as to threaten deterioration of the judicial process. (People v. Wilson (1980), 87 Ill. App. 3d.693, 409 N.E.2d 344.) We do not believe that the comment complained of in the instant case met the above standard and therefore, we do not believe that the prosecutor’s comment constituted reversible error.

The defendant also argues that certain comments made by the prosecutor were designed solely to inflame the passions and prejudices of the jury. Specifically, the prosecutor stated that the defendant considered the case to be a “big joke” and that “he wouldn’t be smiling” at the police or the prosecutor if the jury found him not guilty or found him guilty of voluntary manslaughter. The test for determining whether remarks of the prosecutor in closing arguments constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. (People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988.) The substance and style of closing arguments are within the discretion of the trial court and its finding will not be disturbed absent extreme error. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.) In the instant case, we do not believe that the jury would have reached a different result if the complained of comments had not been uttered by the prosecutor. As we have related above, there was extensive evidence concerning the defendant’s guilt. Therefore, we do not believe that the trial court abused its discretion when it allowed the prosecutor to make the complained of statement.

As a final matter on this issue, we also observe that the jury was instructed that evidence consists only of the testimony of the witnesses and that neither opening statements nor closing arguments are evidence. Further, the prosecutor twice stated during closing arguments that statements made by the attorneys could not be considered as evidence. Therefore, we do not believe that the defendant was significantly prejudiced as he so contends.

The last issue raised on appeal is whether the trial court erred in refusing to bar the State from introducing the defendant’s prior conviction for armed robbery. In a pretrial motion in limine, the defendant sought to preclude the State from introducing evidence of his past convictions for purposes of impeachment. The court stated that it would permit introduction of a 1979 armed robbery conviction but that it would exclude evidence of certain earlier convictions. The defendant now argues that the trial court’s ruling effectively forced the defendant not to testify at trial. In other words, the defendant contends that he was precluded from testifying because it would have opened him up to impeachment.

The admissibility of prior convictions, such as the one which could have been introduced here, is within the sound discretion of the trial court. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Felonies such as the defendant’s armed robbery conviction are presumed to be probative of a person’s credibility. (See People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.) Further, a defendant’s constitutional right to testify in his own behalf is not prejudiced simply because the State may impeach him with evidence of prior convictions if he takes the stand. (People v. Austin (1976), 37 Ill. App. 3d 569, 346 N.E.2d 166.) Therefore, we do not believe that the trial court abused its discretion in this case where the defendant’s prior conviction could have been properly admitted as impeachment evidence and where the defendant cannot complain that he was precluded from testifying because it would have opened him up to impeachment.

For the foregoing reasons, the decision of the trial court is affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE ALLOY JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BYAS, Defendant-Appellant.
    Third District
    No. 82 — 351
    Opinion filed September 7, 1983.

      BARRY, J., dissenting.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin, Gerry R. Arnold, and Rita Kennedy Mertel, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant was charged with one count of rape and two counts of armed violence. In a bench trial, the court convicted him of all charges and sentenced him to concurrent terms of 20 years in prison.

The complainant was 13 years old at the time of the rape. On October 5, 1981, sometime between 8:15 and 8:20 a.m., she left home to walk to school. As she was walking along a sidewalk, a car stopped on the opposite side of the street. She described the car to police as a two-door, black over burnt orange 1968 or 1969 Buick. A man got out of the car, looked at its tires, and crossed the street to intercept the complainant. The complainant testified that she did not have a long time to see the man’s face.

The man displayed a gun and ordered the complainant into the back seat of the car. He took the books she was carrying and placed them under the seat. According to the complainant, he was not wearing gloves. The man covered her head with a blanket and ordered her to stay down. After driving for about three minutes, he stopped, climbed into the back seat, removed the complainant’s clothes and took off his own clothes. The blanket was still covering her face. The man put the gun to the complaint’s head and told her to do as he ordered. As he began to rape her, she tried to push him away, discovering that he had a hairy chest. She also had a brief opportunity to see the man when the blanket momentarily fell from her eyes.

After the rape, the man dressed the complainant and then himself. He blindfolded her with a tom towel and told her his name was Thomas. The man moved the complainant out of the car and handed her books to her. When she heard him drive away, she removed the towel, ran home, reported the incident to her mother and called the police.

The initial information which the complainant gave to the police described her assailant as a black male, six feet tall, 170 pounds, in his early twenties and wearing blue jeans. During an in-depth police investigation the next day, the complainant revised and expanded her description of the attacker, stating that he was approximately 23 years old, 5 feet 11 inches tall, 175 pounds and darkly complected. She also told the police that the man had a soft voice, short hair, a ■ slight beard and mustache and hair on his chest. She also said that the man wore blue jeans, white gym shoes and a black leather jacket.

To establish the identity of the defendant as the assailant, the State primarily relied upon the complainant. After the complainant assisted the police in making a composite drawing of her attacker, one of the police officers assembled a photographic display of known sex offenders. According to this officer, the complainant stated, “[tjhat’s him,” when she saw the defendant’s photograph. The complainant, however, testified that she selected the defendant’s photograph in response to the police officer’s instructions to select the man that most resembled her assailant. She also testified that the police officer asked . her if the defendant’s photograph most resembled her attacker.

Based on the complainant’s selection of the defendant’s photograph, the police arrested the defendant and placed him in a lineup with four other men. The defendant was represented by counsel at the lineup. After the complainant received directions from the officers, she viewed the men for 20 minutes. During this time, each man read aloud statements which the assailant made to the complainant. The complainant was behind a one-way mirror during the viewing. Each man stepped within two.feet of the complainant. After viewing all the men, everyone in the viewing room moved to a conference room and a police officer asked the complainant to select the man who looked familiar. The complainant was unable to identify anyone and stated that no one looked familiar. At this point, the defense counsel departed the police station. Shortly afterwards, the police officer asked the complainant to disregard the voices and identify anyone who looked familiar. The complainant selected the defendant. At the trial, the State introduced evidence of the lineup identification.

The State also introduced evidence of the complainant’s identification of the defendant at a preliminary hearing. At this hearing, the complainant was asked to identify her assailant in court. She asked to have the defendant stand, move closer to her and speak. When she was asked to make the identification, the complainant hesitated, but eventually identified the defendant as the man who raped her. At the trial, the complainant promptly and positively identified the defendant, who was seated at the defense table, as her assailant.

The State attempted to corroborate this identification with scientific evidence and evidence of a prior rape by the defendant to establish a modus operandi. The State produced an expert witness who testified that the semen found on rectal and vaginal swabs could have come from the defendant. The blood type in the semen was type 0, which is the same type as the defendant and the complainant. Over 40% of the population has type 0 blood and 60 to 80% of the population will secrete their blood type in their body fluids. The expert also testified that he tested the defendant for the enzyme PGM. The defendant has a PGM of 1. This same PGM was found in the vaginal swab. The expert failed, however, to test for PGM in the complainant. According to this expert, though, all males secrete PGM in their semen, while women do not secrete it vaginally or do so only in low concentrations. Thus this expert concluded that all the PGM could not have come from the complainant alone.

A defense expert also testified as to his findings in regard to the blood types. Although he disputed some of the methods and conclusions of the State’s expert, he also agreed that the defendant could not be ruled out as the source of the semen. The defense expert also testified that approximately half the population has type 0 blood and over half the population has a PGM of 1.

The same expert for the State testified that he conducted tests and comparisons between hair samples of the defendant and hairs found on the complainant’s body. According to this expert, a fragment found on the complainant’s bra was similar in diameter and color to the defendant’s pubic hair. The expert also compared two hairs that were found on the complainant’s socks and shoes. He concluded that these hairs were similar in color and pigmentation to the defendant’s head hair. This expert testified, though, that the defendant’s hair displayed a very wide range of traits. The defense also produced expert testimony on this point. In uncontradicted testimony, the defense expert explained that almost all dark pigmented hair would be consistent with the fragments found on the complainant. The defense expert agreed that the defendant could not be ruled out as a possible source of the hairs.

Finally, the State introduced the testimony of Sandra Hernandez, the victim of a rape in which the defendant participated. Ms. Hernandez was 20 years old at the time of her attack. On April 28, 1979, at 2 or 2:30 a.m., she was walking along a street towards her uncle’s house. A car followed her slowly for five or six miles. The driver continually asked her if she wanted a ride. Ms. Hernandez repeatedly refused. Eventually, she stopped at an all-night convenience store. After she left the store, she continued walking. As she saw the car ahead, parked in a driveway, someone grabbed her from behind, put something in her side and threatened to kill her if she was not silent. The car backed up, and she was placed on the floor of the back seat. The man also put a stocking cap over her face and took her purse. Ms. Hernandez testified that she saw the driver but not the man who grabbed her. The men drove to a garage, where one man climbed into the back seat, removed her clothes and his own clothes and raped her. When this man left the car, the other man entered it and raped her.

When the second man finished, he told Ms. Hernandez to get dressed. They ordered her to stay on the floor while they were driving. The man returned Ms. Hernandez’ purse to her, although they removed several items from it. When they released her in an alley, the men threatened her once more, removed the stocking cap and departed. The defendant later confessed to involvement in this rape.

The defendant presented an alibi defense. The essence of his alibi is that he was with his wife and sisters at the time of the offense. His wife and one of his sisters testified in support of this alibi.. All of them testified in detail as to their activities on the morning of the crime. Although their recollection differed as to particular times of some events, everyone agreed that the defendant was at home at the time of the crime. On cross-examination, the State confronted the wife and sister with prior statements made to police officers on the day of the defendant’s arrest. When the police came to arrest the defendant, the wife said she had “nothing to do” with the defendant or his family. On that same day, the sister suggested to the police that the defendant was in Louisiana, even though she had seen him that morning.

At the close of the trial, the court found the defendant guilty of all charges. The defendant now appeals, alleging several errors, including the State’s failure to prove the defendant guilty beyond a reasonable doubt. We agree with this contention and reverse the defendant’s conviction.

Although a reviewing court will not substitute its judgment for that of the fact finder on matters of weight and credibility, a conviction cannot be sustained if the identification of the accused is vague, doubtful or uncertain. (People v. White (1978), 56 Ill. App. 3d 757, 372 N.E.2d 691.) Moreover, “[i]f a conviction is to be sustained, it must rest on the strength of the People’s case and not on the weakness of the defendant’s case.” (People v. Coulson (1958), 13 Ill. 2d 290, 296, 149 N.E.2d 96.) In this case, the evidence of the defendant’s identification is insufficient to sustain his conviction.

The State, citing People v. Berry (1980), 86 Ill. App. 3d 755, 408 N.E.2d 466, argues that a positive identification by a single witness who had an adequate opportunity to observe her assailant is sufficient to support a conviction. The State also notes that the lack of extended opportunity to view the ássailant does not vitiate an otherwise positive identification. People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239.

In this case, however, the victim did not make a positive identification of the defendant. The State’s evidence is in conflict concerning the photographic display. The police officer testified that she heard the complainant identify the defendant as her attacker when she saw his photograph. The complainant, however, testified during direct examination that she picked the defendant’s photograph only in response to the officer’s request to select the man who most resembled her assailant. The complainant explained that this picture looked most like the man who raped her.

Similarly, the lineup identification was equivocal. The complainant was unable to identify the defendant after viewing the lineup for 20 minutes. Her eventual identification of the defendant was not positive or certain. On the contrary, she told the police, in response to an inquiry of whether anyone looked familiar, that the defendant looked most similar to the man who attacked her.

During the preliminary hearing, the complainant again had difficulty identifying the defendant as her assailant. The State argues that her hesitancy is merely a result of the complainant’s exercise of great care not to accuse an innocent man. This explanation is in marked contrast to the State’s position at the hearing, when the prosecutor told the court, “I think it’s clear here that there is an issue as to whether this witness can identify this man who is sitting over at that table.” Only at the trial, after viewing the defendant or a photograph of him three times, did the complainant promptly identify the defendant, who was seated at the defense table.

In addition, the complainant’s description of her assailant substantially differs from the actual physical characteristics of the defendant. The complainant initially described her assailant as being six feet tall, 170 pounds and in his early twenties. The next day, during a police interview, the complainant revised her description of the attacker, stating that he was 5 feet 11 inches tall, weighed approximately 175 pounds, was approximately 23 years old, darkly complected and had a hairy chest. In fact, the defendant is 5 feet 7 inches tall, weighs 147 pounds and has no hair on his chest or stomach. The State calls these discrepancies “minor.” These are not trivial variances, and the State’s evidence offers no explanation for these differences. (People v. Marshall (1966), 74 Ill. App. 2d 483, 221 N.E.2d 133. See also People v. Carroll (1970), 119 Ill. App. 2d 314, 256 N.E.2d 153 (substantial variance in height, weight and presence of beard); People v. Barney (1965), 60 Ill. App. 2d 79, 208 N.E.2d 378 (variances in height, weight and posture).) In particular, the absence of a physical characteristic which the witness claims the defendant possesses undercuts the strength of her identification. (Cf. People v. King (1973), 10 Ill. App. 3d 652, 295 N.E.2d 258 (failure to assert a distinctive physical feature which the defendant possesses is prima facie inconsistent conduct which, unexplained, tends to discredit the witness).) The State coyly contends that the trial court observed the defendant’s chest and could determine for itself the degree of hair on it. The uncontradicted evidence is that the defendant has no hair on his chest.

Additionally, there is no meaningful corroboration of the defendant’s identification. The scientific evidence demonstrates that the defendant cannot be excluded as a possible assailant. Almost half the population has type 0 blood and a PGM of 1. Alone, this evidence is far too vague to provide meaningful corroboration. Similarly, the State’s expert testimony on the hair samples indicates that the defendant could not be excluded as a possible source. The same witness, however, also testified that the defendant’s hair displays a very wide range of physical characteristics. Moreover, the uncontradicted testimony of the defendant’s expert is that every darkly pigmented hair would be consistent with the fragment found on the complainant.

Furthermore, the State never produced the clothing that the defendant allegedly wore on the morning of the attack. The State never found the automobile that the defendant allegedly used, nor could it even trace any car to him. In uncontradicted testimony, the defendant denied owning an automobile. In addition, the defendant’s fingerprints were never found on the complainant’s books, which he is supposed to have handled twice during the attack. In a curious argument, the State contends that this corroborates the identification, because while the defendant’s fingerprints were not on the books, neither were anyone else’s. Suffice it to say, the absence of evidence, where its presence is required, is not sufficient corroboration of an identification.

Finally, the defendant’s involvement in a prior rape is insufficient corroboration of the defendant’s identity in the case at bar. Evidence of extra-indictment offenses can be admitted to demonstrate a defendant’s modus operandi. (People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470.) To be probative, and hence corroborative, there must be a strong and persuasive showing of similarity of the offenses and the evidence must show that both crimes were “ ‘so nearly identical in method as to earmark them as the handiwork of the accused.’ ” People v. Emmett (1975), 34 Ill. App. 3d 167, 170, 340 N.E.2d 235, citing with approval McCormick, Evidence sec. 190, at 449 (2d ed. 1972). See also Tate; People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608, cert. denied (1978), 439 U.S. 837, 58 L. Ed. 2d 134, 99 S. Ct. 122.

The evidence of the defendant’s prior rape is not sufficiently similar to the offense charged so as to be corroborative of his identity. In the prior offense, the defendant acted with an accomplice in the middle of the night. The defendant and his accomplice stalked the victim for six miles, eventually seizing her from the rear. The defendant always kept the gun hidden and they released the victim only after they moved her to another location. In the case at bar, however, the assailant attacked the complainant by himself and in daylight. The assailant approached the complainant almost immediately after he spotted her. The assailant approached the complainant directly and openly displayed his gun. He also released the complainant in the same spot as where the rape occurred.

The State argues that there are similarities between the two crimes: Both women were attacked in the same area; both assailants used cars and guns; both victims were placed in the back seats of the cars; both victims were told to do as they were told or they would be killed; both victims were blindfolded; both assailants took off the victims’ clothing; and both rapes occurred in the back seat. These similarities, though, are common to many sexual attacks and are not so distinctive as to earmark them as the handiwork of the defendant. (See, e.g., People v. Camel (1974), 59 Ill. 2d 422, 322 N.E.2d 36 (16-year-old victim accosted by man while walking to school, eventually forced into the back seat of car and blindfolded, told to be silent under threat of death, disrobed by assailant and raped in the back seat).) The State also makes much of the fact that, in this case, the assailant told the complainant that his name was Thomas. In the prior rape, according to the State, the defendant told the victim that his name was Clay. Thus, the State sees another similarity between the two rapes. There is no basis for this assertion in the record. Ms. Hernandez testified that the defendant was called Clay. There is no evidence that he volunteered the information to her.

The lack of positive identification by the victim and the absence of meaningful corroborative evidence requires this court to reverse the defendant’s conviction.

In his appeal to this court, the defendant also raises an issue concerning the use of hypnosis on the complainant by a police investigator. During the police investigation, but prior to the photographic identification, an investigator with some training in psychotherapy placed the complainant under hypnosis in order to illicit additional information from her. The defendant argues that the hypnosis irreversibly contaminated the testimony and that the trial court should have barred the complainant from testifying, or at the least should have suppressed her identification testimony.

Our resolution of this appeal makes it unnecessary to determine this issue. We note, however, that most courts which have addressed this question have ruled that the suggestiveness in a hypnosis session may affect the credibility of the witness, not the admissibility of the testimony. (E.g., People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848; United States v. Adams (9th Cir. 1978), 581 F.2d 193; Clark v. State (Fla. App. 1979), 379 So. 2d 372.) We agree with this approach. We are mindful, however, that in a particular case, the peculiar hypnotic procedure may be “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States (1968), 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971. Cf. Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (identification testimony which resulted from an unnecessary and suggestive pre-trial photographic or show-up identification procedure may be admitted into evidence without violating defendant’s right to due process, only if the identification possesses sufficient aspects of reliability).

It is unnecessary to rule on the remaining issues raised by the defendant. The judgment of the circuit court of Will County is reversed.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

I agree with the defendant and my colleagues that the principal issue at the trial of this cause was the identification of the assailant of Leticia Hernandez, which I will later address. However, I would not reverse the judgment of the circuit court and will therefore address all the other issues presented by the defendant.

On October 5, 1981, a 13-year-old female child was raped. She asked the assailant, “Why me?” and he responded that he liked Mexicans and that he had been watching her for a long time. Upon being released by the assailant, the victim immediately went home, reported the incident to her mother, and then called the police. She was taken to the local hospital where the rape was medically verified. On October 6 she gave an in-depth interview to the officers and described the assailant. Subsequent thereto, on October 9, hypnosis was performed by an officer without any suggestions whatsoever regarding any description of this defendant. Sometime thereafter the victim identified the defendant from a series of photographs. Later she identified the defendant at a physical lineup procedure, and then again in court.

The defendant claims that the identification testimony of the complainant should have been suppressed or excluded because she was hypnotized before trial. As indicated above by the majority, most courts have ruled that the suggestiveness in a hypnosis session is a factor that may affect the credibility of the witness, not the admissibility of the testimony, and here we have á session without any semblance of suggestiveness whatsoever. In fact, the victim gave her description of the assailant prior to the hypnosis; the session was tape recorded and the lack of suggestiveness therein verified. Nothing resulting from the hypnosis changed her description of the defendant, except to then add that he was “ugly.” The court ruled that hypnosis did not taint the identification. Obviously the victim’s identification had an origin which is independent of any suggestiveness and was not tainted by the hypnosis. Therefore the identification testimony was not inadmissible by reason of the hypnosis.

The defendant also claims that his identification subsequent to the lineup should have been suppressed because he was not represented by counsel when the identification was made. Certainly there is no right per se to counsel at the identification made prior to the commencement of the prosecution. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) And, as certainly, it is unquestioned that after formal criminal proceedings have been instituted against the defendant, the defendant has a right to have counsel present at an in-person lineup. (United States v. Wade (1967), 338 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) Here the defendant was represented by counsel at the lineup. It is uncontroverted that the voices of those participating, including the defendant, at the lineup could not be heard. The victim did not identify the defendant until subsequently asked, shortly after the defendant’s representative had left, whether she could identify the assailant without having also heard his voice, and then she did. What occurred outside of the presence of the defendant’s counsel was testified to by Leticia and Officer Jencon; the credibility of that testimony was for the trial judge to determine, and he obviously found that no activity adverse to the defendant occurred. As in State v. Kimball (1976), 14 Wash. App. 951, 546 P.2d 1217, in an analogous factual situation, the court held that even though counsel was not present at the identification, the identification was admissible. By my view the admission of the additional lineup identification was not reversible error.

The next issue presented by the defendant is whether the trial court failed to exercise properly its discretion when it arbitrarily denied the defendant’s pretrial motion in limine to exclude evidence of other crimes. Defendant’s argument is without merit. The trial judge’s remarks at the pretrial hearing, granted on the defendant’s motion, indicate that he was exercising his discretion. Clearly he did not refuse to consider the motion in limine. Under the facts presented in the instant case only the defendant’s supposition suggests arbitrariness.

In exercising its discretion, the trial court should determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) As has been heretofore indicated, the principle issue here is the identity of the perpetrator. One of the most legitimate uses of other crimes evidence is where identity is at issue. (See People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.) In the instant case, the prime characters are a 13-year-old female victim and a defendant with a sex offense record. The defendant’s claim that he was denied a fair trial when the trial court allowed the State to introduce evidence of his prior criminal conduct at a bench trial is without merit. The other crime was the sexual assault of another 20-year-old Mexican female in the same neighborhood, which was admitted by the defendant. The trial court properly admitted that evidence to establish the defendant’s modus operandi. The facts are sufficiently similar, as has been detailed otherwise by the majority, in my opinion.

The defendant’s next argument, that the permitting of cross-examination of the defendant about his past possession of a gun was erroneous, is also of little merit. The defendant testified on direct that he did not have access to a gun on the date of the instant offense. I believe it is within the discretion of the trial judge to allow cross-ex-animation to test credibility regarding the subject matter. See People v. Gray (1980), 85 Ill. App. 3d 726, 410 N.E.2d 493.

While the State concedes that the defendant’s conviction for armed violence based upon the offense of indecent liberties must be vacated, the State does not agree that the offense of armed violence based upon the offense of unlawful restraint should be vacated. This defendant was convicted of both rape and armed violence based upon the underlying offense of indecent liberties with a child, the same act of sexual intercourse, and thus one of the two convictions must be vacated. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, and People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.) The People elect that the conviction of armed violence (indecent liberties with a child) be vacated.

However, this defendant’s conviction for armed violence based upon unlawful restraint may stand. (See People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322.) The two offenses were separately accomplished and not part of one physical act. The defendant accosted the victim as she walked down the street, held a gun on her, and forced her into the back seat of his car. Thereafter, after driving her to a different location, he proceeded to rape her. The offenses are not included within the same section of the criminal code. Both convictions may stand.

The defendant also argues that the offense of unlawful restraint cannot be used as a predicate felony. It is the People’s contention that the legislative intent is clear that armed violence may be based upon a Class 4 felony of unlawful restraint, because “a person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2.) The language should be given its plain meaning. Had the legislature intended that the offense of unlawful restraint not be a predicate offense for armed violence, it could have easily so provided as an exception. Prosecutorial discretion must be recognized. (People v. Graham (1975), 25 Ill. App. 3d 853, 323 N.E.2d 441.) And, we have held the general statutory construction rule requiring that a specific statute prevail over a general one is not sufficient to demonstrate a legislative preference for prosecution under one applicable statute rather than another (People v. Cole (1980), 84 Ill. App. 3d 347, 405 N.E.2d 347), I would hold that “any felony” means any felony.

Whether the vacatur of the armed violence conviction based upon indecent liberties mandates a remand for resentencing, is the final issue put by the defendant. I would rule not. In the recent supreme court case of People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E. 477, Justice Ward writing for the majority observed there that the trial court had imposed concurrent sentences for both armed violence and the underlying felony, that both convictions could not stand, but that remandment was unnecessary. The record here shows that this defendant previously pleaded guilty to the offenses of kidnaping and intimidation after having been charged with two rapes, and it is clear that the sentences imposed in the instant case are justified independently of each other. Under the circumstances, remandment for resentencing is unnecessary.

Finally, with regard to the superseding issue, whether the defendant’s identity as the victim’s assailant was proved beyond a reasonable doubt, defendant’s position is that the total evidence presented by the State failed to so establish, while the People’s position is that the identification was positive and sufficiently corroborated.

Though a judge, as fact finder, is required to resolve all facts and circumstances in evidence on the theory of the defendant’s innocence, rather than his guilt, if that can reasonably be done (People v. Sheppard (1949), 402 Ill. 347, 83 N.E.2d 587), here, in my opinion, we do not have such a case. The record indicates that the victim, a 13-year-old female, gave a description of this defendant prior to any hypnosis, and did not vary that description except for minor discrepancies through the trial, hesitating only because she preferred both at the lineup and at trial to hear the defendant speak as well. Her concern for the truth seems obvious. Her identification was positive, and without any hesitation when she initially identified the defendant by photograph. The only questionable factor included in her testimony was whether the assailant had a hairy chest, as she indicated he did in cross-examination, and that factor was specifically a subject for the judge’s observation and determination as the finder of fact. The trial judge witnessed the removal of the shirt of the defendant to view the defendant’s chest; the defendant was allowed to put his shirt back on, and thereafter the defendant was asked by his counsel whether he had ever used any artificial means of removing hair, and he responded negatively. Obviously defendant’s credibility and what is a hairy chest in the eyes of a 13-year-old, and what is a chest with or without some hair were for the trial judge to decide.

This victim had an opportunity to view her assailant for some 10 or 15 seconds while he crossed the street, when he put a gun on her and caused her to get into the back seat, and thereafter when he put a blanket over her face. Afterwards it would appear that she pulled the blanket down, looked at the back of the assailant’s head for a time, and then he caught her and caused the blanket to be again put over her face. Thereafter at various times he replaced the blanket over her eyes with her blouse, and then again the blanket, and thereafter he placed a towel over her eyes. Her level of certainty at the confrontation with the assailant were factors to be considered by the trial judge in evaluating the reliability of her pretrial identification and her testimony. In addition there was some corroboration of the identification. All the expert testimony regarding hair samples and semen did not exclude the defendant. Further the attack upon Sandra Hernandez was admitted by this defendant. In my opinion the identity testimony by the victim was clear and convincing.

Most importantly, the evidence here is not so culpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused. (People v. Peyton (1980), 84 Ill. App. 3d 181, 405 N.E.2d 18.) It should be noted that all of the defendant’s alibi witnesses were thoroughly impeached. My consideration of the record and the well-done briefs presented to us in this case do not suggest that we should overrule the trial judge in this bench trial. I would vacate the armed violence based upon indecent liberties conviction, and affirm the convictions for rape and armed violence based upon unlawful restraint.

      The defendant properly raises the issue of whether this testimony should have been excluded because the police violated his right to counsel during the lineup. The defendant was arrested and charged by complaint with rape, so he had a sixth and fourteenth amendment right to counsel during the lineup. (Gilberg v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (plurality opinion).) Violation of this right requires exclusion of the lineup identification evidence. (Gilberg; People v. Swift (1980), 91 Ill. App. 3d 361, 414 N.E.2d 895.) At the least, a new trial would be required in the case at bar, because the equivocal identification and the lack of meaningful corroborative evidence would restrain us from finding the testimony harmless beyond a reasonable doubt. Swift.