author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUTH MIMS, Defendant-Appellant.
    First District (2nd Division)
    No. 77-1356
    Opinion filed December 29,1981.
    Ralph Ruebner and Fe Fernandez, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard B. Levy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Following a jury trial held on July 21,1977, defendant was convicted of murder and sentenced to 14 to 20 years in the penitentiary. The appeal filed by defendant’s privately retained counsel was dismissed for want of prosecution on June 28, 1978. Counsel made a motion to withdraw as defendant’s attorney on April 24, 1979, which was denied for lack of jurisdiction. The State Appellate Defender was substituted as defendant’s attorney and moved to vacate the order dismissing the appeal, which was denied on August 27,1979. In People v. Mims (1980), 82 Ill. 2d 63, 66, 411 N.E.2d 215, the Illinois Supreme Court, in exercise of its supervisory authority, ordered that defendant’s appeal to the appellate court be reinstated. The sole issue on appeal is whether defendant was denied her right to a fair trial by the State’s exercise of its peremptory challenges, allegedly so as to exclude black women from sitting on the petit jury.

The record concerning the jury selection process is sketchy, particularly in the beginning, when only part of the proceedings were recorded. Defendant moved that since there were only 7 blacks on the 49-veniremen panel, the court should order the clerk to send up “at least 15 blacks.” The court denied defendant’s motion observing that 40 people were called up, of which 8 were black. No court reporter was present to record the voir dire examination of the individual prospective jurors and the exercise of the first 6 of the State’s 10 peremptory challenges. Approximately halfway through the jury selection process, defendant moved that the entire venire be dismissed on grounds that it was tainted by the comments of an excused juror. The trial court denied defendant’s motion but ordered that a court reporter record the rest of the proceedings, which was done.

Among these persons who were subject to voir dire examination were two blacks, Michael Evans and Louise Hardy. Evans stated that he was reluctant to serve on the jury, because “it is a murder trial and I don’t want to have nothing to do with it.” When the State moved to excuse Hardy and Evans, defendant objected to the exercise of the peremptory challenges to excuse the “two blacks.” The State asserted that it was not attempting to exclude any group and that there were then already two blacks on the jury. The trial court denied defendant’s motion, but questioned the State’s motive:

“* ° * [Y]ou are telling me now that you have no prejudice yet in almost every one [peremptory challenge] now it is getting to the point where it is strictly a black that you are excluding. * * * I can understand excluding Michael Evans, but I will be frank with you. If you continue in this vein, I am going to maybe take another position.”

During the discussion on defendant’s motion, the State noted that six of its eight challenges were used on blacks.

Later, the prosecution challenged the one remaining black woman on the venire, Linda Schurm, without asking her any questions, explaining that it did not want an “all-woman jury.” The court again appeared skeptical of the State’s motive, observing that it had used six of its eight challenges on blacks. At the end of a lengthy legal discussion, however, the court concluded that the presumption that the prosecution was employing the State’s challenges to obtain a fair and impartial jury had not been rebutted, and the motion to challenge was allowed.

Because the sole question before the court pertains to the jury selection process, the evidence adduced at trial is not in issue and may be summarized in broader terms than usual; however, our examination of the entire record reveals that the jury’s verdict was supported by the requisite quality and quantum of proof. Lavelle Jones, testified that on August 7, 1975, following earlier telephonic communication, defendant entered Jones’ house carrying a gun, approached her husband, the victim Richard Mims, and said, “You lied. It’s all over.” Defendant fired two shots into her husband from a distance of three feet. The victim “stumbled and fell” and was shot by defendant four more times. Cleo Jones testified that on the day in question the victim came to his home to tell him that he had a job “lined up” for Jones. Later, defendant entered his house stating, “This is it between I and you” and started shooting the victim. Defendant kept on shooting even after the victim fell. Officer Fred Schulz testified that at approximately 1:15 a.m. on August 7, 1975, he received a call to go to Jones’ home. When he arrived, he asked defendant, “what happened?” Defendant replied, “Yeah, I shot him.” The testimony of Officer Robert Bresnahan concerning the incident substantially corroborated Schulz’ and need not be set forth.

The defense presented the following evidence. Alma Smight testified that in 1971 the victim and defendant were in an alley together when the former stated in a loud voice, “I will kick your ass.” Later that night, she saw defendant’s hand bleeding. Lucretia Hasegawa, defendant’s sister, testified that she saw bruises on defendant’s face more than 10 times, and that once she saw the victim hit and beat defendant. William Ozenborne, James Cooley, Alma Smith and Ardrene Thomas all testified that they had seen bruises on defendant’s face several times. Cooley further testified that he had heard numerous “arguments and fighting” between victim and defendant.

Defendant testified that during her 11-year marriage with the victim she became an alcoholic. She described several occasions when her husband hit or bit her. Between noon of August 6 and the early morning hours of August 7, she consumed an estimated 18 to 24 cans of beer. When she went with a gun to the Jones’ house, Val opened the door and started hollering and screaming. After hearing some “popping,” she walked out of the house but returned a short time later to call the police. On cross-examination, defendant testified that after she entered Jones’ house, her husband began walking toward her with a glass in one hand and his other hand up in the air. She did not shoot her husband nor did she hear a gunshot. She did not know what her husband was doing immediately prior to the “first firecracker.”

During rebuttal testimony, Officer John Yucaitis testified that he spoke briefly with defendant at the scene of the crime and that in his opinion defendant was not drunk; she did not stumble or slur her speech. On cross-examination he stated that he had seen people under the influence of alcohol who neither staggered nor slurred their speech.

The jury, which consisted of eight women and four men, of whom two were blacks, found defendant guilty of murder.

I

Defendant contends that she was denied her right to a fair trial because of the State’s use of its peremptory challenges to exclude black women from the petit jury. Defendant relies on Peters v. Kiff (1972), 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163, and Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, to support her claim under the Federal Constitution. In Peters, the Supreme Court addressed the question of whether a white defendant had standing to attack the grand or petit jury selection process where the claim is that blacks were systematically excluded from jury service. Since the standing of defendant is not in issue in the.instant case, Peters is inapposite. In Swain, the Supreme Court held that, in light of the purpose of the peremptory system, the Constitution does not require an examination into the prosecutor’s reasons for the exercise of the State’s challenges. The presumption in any given case is that the State is using its challenges to obtain a fair and impartial jury to try the case; this presumption is not overcome by allegations that all blacks were excused by the State’s peremptory challenges. (380 U.S. 202, 222, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) The State was held to have constitutionally exercised its peremptory challenges to remove six blacks, thereby leaving an all-white jury; however, the systematic use of peremptory challenges against Negroes over a period of time, in case after case, whatever the circumstances, raises a prima facie case of discrimination in violation of the fourteenth amendment. (380 U.S. 202, 222-28, 13 L. Ed. 2d 759, 774-77, 85 S. Ct. 824, 837-40.) In the present case it was the exclusion of a particular sex of black persons of which defendant complains, rather than blacks as a group.

Defendant maintains that the Swain presumption that the State exercises its challenges in any given case to obtain an impartial jury, was overcome by the “prosecutor’s statement” and by the failure of the State to question two prospective female jurors. Defendant’s first contention is unclear, because the “statement” referred to is not identified. Her second argument ignores the fact that the prosecution listened to the voir dire examination of Hardy and Schurm by defendant and the trial court before exercising its peremptory challenge. Swain makes clear that the presumption is not rebutted by allegations that all members within a racial class have been removed. (380 U.S. 202, 222, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 837.) Under such circumstances it is difficult to see how the exclusion of a more particularly identifiable group, black females, can serve to rebut the presumption. Finally, there is nothing in the record to suggest that the State has employed its challenges to systematically exclude black females over a period of time, in case after case, whatever the circumstances, in order to raise a prima facie case of discrimination under Swain.

II

Defendant argues that even if her United States constitutional rights were not offended, her rights under the Illinois Constitution were infringed by the exercise of the State’s challenges. A challenge similar to that articulated in Swain was denied in Illinois even prior to Swain, however, in People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 755. Further, defendant’s position appears untenable in light of the Illinois Supreme Court cases decided after Swain. In People v. Butler (1979), 46 Ill. 2d 162, 165, 263 N.E.2d 89, the opinion closely tracks the language of Swain, holding that the presumption in favor of the prosecutor is not rebutted by “ ‘allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.’ ” (46 Ill. 2d 162, 165, quoting Swain, 380 U.S. 202, 222, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 837; see People v. King (1973), 54 Ill. 2d 291, 298, 296 N.E.2d 731. Accord, People v. Attaway (1976), 41 Ill. App. 3d 837, 852, 354 N.E.2d 448; and People v. Thornhill (1975), 31 Ill. App. 3d 779, 783, 333 N.E.2d 8.) In People v. Powell (1973), 53 Ill. 2d 465, 478, 292 N.E.2d 409, the court held that the exercise of peremptory challenges removing five prospective black jurors and leaving one failed to constitute a prima facie case of purposeful discrimination. 53 Ill. 2d 465, 478.

Defendant’s argument is founded primarily upon certain out-of-State cases, especially People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, a case decided subsequent to the Dlinois Supreme Court cases noted above. The Wheeler court held that the use of peremptory challenges to remove prospective jurors on the sole ground of “group bias” violates defendant’s rights to a fair trial under the California Constitution. (22 Cal. 3d 258, 277, 583 P.2d 748, 761-62, 148 Cal. Rptr. 890, 903.) Although the court retained a presumption that any given peremptory challenge was constitutionally permissible, it lowered the quantum of proof necessary to rebut this presumption. A party must meet three requirements in order to rebut and to make a prima facie case of discrimination:

“First, * e * he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association ° * (22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905.)

If a party meets these conditions, thereby making a prima facie case of discrimination, the burden shifts to the other party to demonstrate that the challenges in issue were not predicated on group bias alone. 22 Cal. 3d 258, 281-82, 583 P.2d 748, 764-65, 148 Cal. Rptr. 890, 906.

Several Illinois cases have recently considered Wheeler, and reached somewhat different conclusions as to its merit. In People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, the court appears to have followed the reasoning in Wheeler, but declined to reverse on the ground that evidence of purposeful exclusion of blacks from jury service was insufficient. (91 Ill. App. 3d 523, 530-32.) The language in Smith, in support of Wheeler, has been subsequently narrowly construed as dictum in People v. Vaughn (1981), 100 Ill. App. 3d 1082, 421 N.E.2d 840, and People v. Bracey (1981), 93 Ill. App. 3d 864, 870, 417 N.E.2d 1029. In both Bracey and Vaughn, the courts declined to decide whether Wheeler should be adopted in Illinois, because defendant failed to establish a prima facie case of purposeful discrimination.

The court in People v. Fleming (1980), 91 Ill. App. 3d 99, 105-06, 413 N.E.2d 1330, and this court in People v. Allen (1981), 96 Ill. App. 3d 871, 878, 422 N.E.2d 100, expressly refused to follow Wheeler, finding the test articulated therein vague and uncertain, and one which would severely undermine the purpose of the challenge. In light of the foregoing authorities we decline to alter the rule prevailing in Illinois, particularly where, as in this case, evidence of purposeful exclusion of black females is speculative and insufficient.

Also applicable here is the rule, mentioned in other contexts, that defendant is not entitled to seek particular kinds of jurors, only fair and impartial jurors. Brown v. New Jersey (1899), 175 U.S. 172, 175, 44 L. Ed. 119, 120-21, 20 S. Ct. 77, 78; People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602; People v. Lobb (1959), 17 Ill. 2d 187, 302, 161 N.E.2d 325; People v. Phillips (1981), 99 Ill. App. 3d 362, 368, 425 N.E.2d 1040.

From the foregoing consideration, we conclude that no rights of defendant, under either the Federal or State constitutions, were infringed by the exercise of peremptory challenges by the prosecution and the jury’s verdict, based upon sufficient evidence of guilt must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SMYLIE, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1633
    Opinion filed December 29, 1981.
    Rehearing denied January 26, 1982.

      Ralph Ruebner, Steve Clark, and Barbara Kamm, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

James Smylie was charged by information with the murder of Lawrence Sanders. After a jury trial, Smylie was found guilty of murder and sentenced to 25 years in the Illinois Department of Corrections. Defendant appeals, asserting: (1) he was denied a fair trial by the trial court’s limitation of defense counsel’s cross-examination of two police officers; (2) he was denied due process and a fair trial by the State’s improper closing argument; (3) he was denied a fair trial when the trial court admitted into evidence a number of prejudicial photographs of the decedent; and (4) he was not proved guilty beyond a reasonable doubt.

On August 17, 1978, at about 4 a.m., a Harvey police officer responded to a radio dispatch to investigate the area of 158th Street and Lincoln Avenue for a man face down in the street. The officer found the body of Lawrence Sanders, who had been shot four times at close range. The State’s evidence was as follows.

Detective McCarthy of the Harvey police department interviewed the decedent’s girlfriend, Peggy Price, at her home on the evening of August 17, 1978. She said that at 1 a.m. on August 17, she was sleeping with the decedent when defendant knocked on the door and said he wished to talk to the decedent. The decedent was awakened and after some coaxing by defendant, went for a ride with defendant in the latter’s car. Price testified that she recognized defendant’s voice and appearance from the two or three times she had met him previously. She also testified that she heard defendant tell the decedent that he needed the $60 owed him. When she looked out the window of the apartment as the man left, Price saw the decedent get into the car with defendant. McCarthy, along with Detective Thomas Morrison and others, went to defendant’s house and were told defendant wasn’t there. They then went to defendant’s brother’s house. A man answered and identified himself as James Smylie. He was arrested and taken to the Harvey Police Station. At the station, the man told the officers he was John Smylie, not James Smylie, and said he told them he was James because there were árrest warrants for traffic violations issued against him (John) in Chicago. McCarthy left the station but returned when he was informed that defendant had come to the police station to turn himself in for the murder of Lawrence Sanders.

Officer Rizzi, who was working the front desk of the police station when defendant arrived, testified that defendant came in and said they were “holding the wrong guy” and that “he was there to give himself up” for killing Sanders. Morrison testified that defendant was given his rights and that defendant filled out a constitutional rights form acknowledging that he understood his rights. Defendant then gave an oral statement confessing to the killing of Sanders.

When he was asked to complete a written statement, defendant began but said he was too nervous to write and asked Morrison to write it out for him. Morrison said he couldn’t do that but said he would have it typed. Detective McCarthy, with defendant present, dictated a statement to Phyllis Egelbrecht, a civilian typist, who typed it on a statement form. Defendant read the statement and signed it. Morrison denied asking defendant to take a paraffin test.

During cross-examination, defense counsel attempted to question Morrison concerning the information he received from Peggy Price. The State objected on the ground that such testimony was hearsay. Defense counsel responded that the testimony was not hearsay since it would not be used to prove the truth of the matter asserted. Defense counsel said it would be used to show that the police had sufficient information to fabricate defendant’s alleged confession. The trial court ruled that the testimony was irrelevant and immaterial to the issue of the voluntariness of the confession.

Defendant offered the following evidence in his case-in-chief. A stipulation was read stating that if called to testify, Michael Schaeffer, a toxicologist, would say that he tested specimens of decedent’s blood, urine and bile and did not detect the presence of alcohol. Defendant argues that this proves the confession was fabricated since it states that defendant and the decedent went for “a few drinks” prior to the shooting. Jimmy Cole, who lived with defendant’s mother, testified that defendant was in his mother’s house at midnight on the morning of the killing. Defendant’s wife testified that she and defendant went to bed between 11 and 12 on the night of August 16 and that defendant did not leave the house anytime that night. Defendant’s brother Gregory testified that he and defendant went to the Harvey police station to bail out their brother John and that defendant never said he was there to turn himself in. Jerry Robinson, who had known the decedent for about six months, testified that he went to pick decedent up on the night of August 16. Robinson said he was accompanied by another friend, James Walker, who waited in the car while Robinson went to get decedent. Decedent went with the two men to a bar in Harvey. They became separated and Robinson and Walker left when they couldn’t locate decedent.

Robert Beseth, a private investigator hired by defense counsel, testified that he interviewed Peggy Price at her apartment on September 25,1979, and again on February 10,1980. At the latter meeting Beseth was accompanied by defense counsel and Jerry Robinson. Beseth testified that Price told them that Robinson resembled defendant to the extent that the two could have been brothers and that Robinson could have been the man who picked up the decedent the night he was killed. According to Beseth, who said he did not take notes during the interviews but instead composed reports a short time thereafter, Price told him that the man who picked up Sanders remained in the hallway and that she saw the decedent leave the apartment and enter what appeared to be a blue Cadillac. This account conflicted with Price’s testimony that Beseth took notes during the interview on February 10 and'that he never asked her if Robinson looked like defendant or if Robinson could have been the man who picked up the decedent in the early morning of August 17,1978. Price also denied telling Beseth that the man who picked up the decedent remained in the hallway and denied saying that the decedent left in a blue Cadillac.

Defendant testified on his own behalf and corroborated the testimony of the other defense witnesses. He stated that he never went to see the decedent on the night in question, that he went to the police station to bail his brother out of jail and not to turn himself in, and that he did not shoot Lawrence Sanders. He further testified that while in custody, he was told by Detective McCarthy to press his hands on seven sheets of paper to test if he had fired a gun within the last three days. One of these sheets was attached to a clipboard and had some writing on the top. Defendant signed this sheet at McCarthy’s insistence. Defendant stated that the sheet of paper bearing his alleged confession was blank when he signed it.

During rebuttal, Detective McCarthy testified that he interviewed defendant on the morning of August 18. Also present at that time were Detective Morrison and the secretary, Phyllis Egelbrecht. Defendant asked Morrison to write out the statement. Morrison said he couldn’t but would have it typed by Egelbrecht. The completed statement was read to defendant, who said it was correct and signed it. Morrison and McCarthy, who both denied using a clipboard, signed the statement as witnesses. The portion of defense counsel’s cross-examination of McCarthy dealing with information he had gathered prior to the confession was limited because the trial judge ruled it went beyond the scope of the direct examination. Phyllis Egelbrecht testified and corroborated McCarthy’s testimony and said there were no signatures on the bottom of the statement form when she typed it.

The case was submitted to the jury, which returned a verdict of guilty on the charge of murder. Defendant’s motion for a new trial was denied, and defendant was sentenced to 25 years in prison.

Defendant’s first contention on appeal is that he was denied a fair trial by the trial court’s limitation of defense counsel’s cross-examination of Detectives Morrison and McCarthy. This, defendant urges, prevented him from presenting his theory that the confession was manufactured by the police. Specifically, defendant endeavored to show that after interviewing Peggy Price, the police had sufficient information to fabricate the alleged confession. According to defendant’s theory, the police had him place his hand on a sheet of paper for the stated purpose of testing if he had fired a gun within the last three days. This piece of paper was attached to a clipboard and had some printing on the top which was covered by the clip portion of the clipboard. Pursuant to instructions by the police, defendant signed the bottom of the paper. The police later typed a confession in the space where defendant had placed his hand. We note that defendant never mentioned the fact that the confession was typed on a form that had printing at both the top and the bottom of the sheet. The printing on the bottom of the sheet read: “I have read the above statement consisting of_pages and attest that it is a true and accurate account of the events which took place on ,__It was given by me freely and voluntarily, without fear of threat or promise of reward.” Following this printing was space for the signatures of the person making the statement and two witnesses. During the cross-examination of Detectives Morrison and McCarthy, defense counsel attempted to elicit what they were told by Peggy Price. The State’s objections during cross-examination of Morrison were sustained on the ground that such testimony was irrelevant and immaterial to the issue of voluntariness of the confession. The State’s objections during cross-examination of McCarthy were sustained because the questioning went beyond the scope of the direct examination.

The scope of cross-examination in a criminal case rests largely within the discretion of the trial court and its decision will not be disturbed unless there has been an abuse of discretion which has prejudiced the defendant. (People v. McElroy (1980), 81 Ill. App. 3d 1067, 1072, 401 N.E.2d 1069.) Irrelevant evidence which would only serve to confuse or mislead the jury may properly be excluded without violating defendant’s right to confront witnesses. (McElroy, at 1072.) However, the accused in a criminal prosecution should be given wide latitude in cross-examining State’s witnesses, and the examiner should be allowed to develop all circumstances tending to explain, qualify, or discredit the testimony of an adverse witness. People v. Gamboa (1975), 30 Ill. App. 3d 242, 251, 332 N.E.2d 543.

In the case at bar, the trial judge ruled that testimony regarding what the police knew prior to defendant’s alleged confession was irrelevant to the central issue, i.e., the voluntariness of the confession. The issue defendant sought to put before the jury, however, was not the voluntanness of the confession but rather its authenticity. In seeking to show that the police had sufficient information to manufacture the confession, defense counsel questioned Officers Morrison and McCarthy about what they learned from Peggy Price prior to the time defendant allegedly made his confession. The cross-examination of Officer McCarthy went well beyond the scope of his testimony on direct examination and was therefore properly limited. Defense counsel should, however, have been permitted to show in his cross-examination of Morrison that, prior to defendant’s coming to the police station, the police had enough information to fabricate the confession.

We find, however, that the error was harmless. Improper limitation of cross-examination warrants reversal only where there has been a clear abuse of discretion and a showing of manifest prejudice to the defendant. (People v. Halteman (1956), 10 Ill. 2d 74, 86, 139 N.E.2d 286.) An error in restricting cross-examination may be deemed harmless where the prosecution does not rely solely on the credibility of the witness sought to be cross-examined. (See People v. Patterson (1980), 88 Ill. App. 3d 168, 175, 410 N.E.2d 396.) In the case at bar the jury knew that the police had begun their investigation into Sanders’ death prior to defendant’s coming to the police station. It was also clear that the police interviewed Peggy Price prior to defendant’s arrest. In addition, defense counsel made full use of his opportunity in closing argument to argue his theory that the confession was manufactured. We also note that when the State asked Peggy Price whether she told the police that defendant had come to her home and left with decedent, defense counsel’s objection was sustained. It would be incongruous to hold that defendant was prejudiced by his inability to elicit information where defense counsel successfully objected to the prosecution’s inquiries that in all likelihood would have elicited the same information defendant sought to introduce. See generally People v. Kalpak (1957), 10 Ill. 2d 411, 424, 140 N.E.2d 726.

Defendant’s next contention is that he was denied due process and a fair trial because of the State’s allegedly improper remarks during closing arguments. Defendant claims that he was prejudiced by the prosecution’s repeated attacks on defense counsel’s character, such as accusing defense counsel of concocting the defense, of suborning perjury and of misleading the jury. Defendant further argues that he was prejudiced when the prosecution misstated the evidence and made reference to defendant’s failure to call James Walker as a witness.

Courts have generally held that a defendant’s failure to raise an issue in his written motion fór a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on appeal. This waiver rule applies to constitutional as well as other issues. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) A post-trial motion that includes only general allegations is insufficient to properly preserve a matter for review. (See People v. Goble (1976), 41 Ill. App. 3d 491, 499, 354 N.E.2d 108 (post-trial motion that raised “such other grounds and each and every error as may appear from the Report of Proceedings” held insufficient to preserve error for review); People v. Rogers (1975), 32 Ill. App. 3d 788, 790, 336 N.E.2d 784, (post-trial motion that said defendant “hereby presents any and all errors, and requests relief from this court, or if denied, from the courts on review” did not preserve errors for review since to do so would destroy the rationale behind post-trial motions, i.e., to allow the trial court to correct its own errors).) In a recent appellate court case, allegations in a motion for a new trial that the State’s closing arguments were inflammatory, prejudicial, infringed upon defendant’s right to counsel and “exhorted the jury to convict the defendant based on matters which [are] dehors the record in violation of the defendant’s rights under the Sixth and Fourteenth Amendment” were held insufficient to inform the trial court of the alleged errors and thus waived them for purposes of review. (People v. Turk (1981), 101 Ill. App. 3d 522, 428 N.E.2d 510). Nowhere in defendant’s post-trial motion is there mention of attacks on defense counsel. The motion is worded in broad, general language without reference to remarks attacking the character of defense counsel. In People v. Rivera (1978), 62 Ill. App. 3d 401, 378 N.E.2d 1293, however, a defendant’s allegation in his motion for a new trial that he was denied a fair trial because of the assistant State’s Attorney’s “prejudicial inflamatory [sic] and erroneous statements in closing argument” was held sufficient to apprise the trial court of the error relied on. (62 Ill. App. 3d 401, 406.) Without specifically ruling on the sufficiency of defendant’s motion for a new trial in the instant case, we will assume that the errors he alleges were not waived.

It is error to charge defense counsel with using improper tactics to defend his client. Such errors exist when the defense is accused of fabricating its case or of suborning perjury. (People v. Lavoy (1980), 91 Ill. App. 3d 639, 644, 415 N.E.2d 487.) However, where the prosecution merely charges defense counsel with obscuring the evidence, no reversible error is committed. (Lavoy, at 644.) Even improper remarks by the prosecutor do not constitute reversible error unless they result in substantial prejudice to the defendant (People v. Johnson (1979), 73 Ill. App. 3d 431, 434, 392 N.E.2d 587), or are a material factor in the defendant’s conviction. People v. Swets (1962), 24 Ill. 2d 418, 423, 182 N.E.2d 150.

In accusing defense counsel of concocting the defense, the prosecution in the case at bar went beyond the bounds of permissible comment. (See People v. Gamboa (1975), 30 Ill. App. 3d 242, 250, 332 N.E.2d 543.) We find, however, that this and the other allegedly improper attacks on defense counsel did not substantially prejudice defendant nor did they constitute a material factor in his conviction. We therefore decline to grant defendant a new trial. See also People v. Porter (1981), 96 Ill. App. 3d 976, 984-87, 422 N.E.2d 213.

We note in this regard that the vast majority of defense counsel’s objections to the prosecution’s remarks were sustained. The fact that the assistant State’s Attorney inexcusably chose to ignore some of the court’s admonitions does not change the nature of the error in this case. We also note that defense counsel’s argument was clearly more than an attack on the credibility of the State’s witnesses; it impliedly included accusations of perjury and the falsifying of evidence. Defense counsel specifically accused the police of being evil, racist and unethical. The prosecutions overzealous behavior is more readily understood in light of defense counsel’s argument and theory of the case. See generally People v. Griggs (1977), 51 Ill. App. 3d 224, 226, 366 N.E.2d 581.

There is no question that defendant preserved his allegation that it was prejudicial error for the State, in its closing, to attempt to shift the burden of proof to defendant by commenting on defendant’s failure to call James Walker as a witness. Walker was the person who, according to Jerry Robinson’s testimony, accompanied Robinson when he allegedly picked the decedent up in the early morning of August 17, 1978. The comments relied on by defendant are the prosecution’s reference to Walker as an alibi witness who failed to testify and the statement that Walker was not called to testify by the defense “because he wouldn’t back up Robinson’s statement.” An objection to the latter remark was sustained. Defense counsel, however, did not at that time request the trial court to inform the jury not to consider Walker’s absence as indicating his testimony would contradict Robinson’s.

As with other comments by the prosecution, this reference to defendant’s failure to call James Walker, even if improper, does not constitute reversible error unless it results in substantial prejudice to the accused. (See People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.) In view of the trial court’s sustaining of defense counsel’s objection, the tangential nature of Walker’s potential testimony (see People v. Better (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857), and the strength of the State’s evidence against defendant, we conclude that the remarks were harmless beyond a reasonable doubt. See People v. Olejniczak (1979), 73 Ill. App. 3d 112, 123-24, 390 N.E.2d 1339.

We nevertheless feel obligated to point out the conflicting authority in Illinois regarding the propriety of the State’s comment on a defendant’s failure to call a witness. (See Nilsson, at 248, and cases cited therein.) The basic rule, set out in People v. Munday (1917), 280 Ill. 32, 117 N.E. 296, is that since the State has the burden of proving the defendant’s guilt, it is improper to imply an argument that the defendant has a duty to produce a witness when that witness is equally accessible to the State. (Munday, at 47.) Our supreme court appears to have carved out an exception to the Munday rule where the absent witness is an alibi witness. In People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170, the court found no error in the State’s comment on defendant’s failure to call alibi witnesses named in defendant’s testimony. (See Blakes, at 358-60.) In People v. Better (1979), 74 Ill. 2d 514, 386 N.E.2d 857, the court held that a prosecutor’s comment on the defendant’s failure to call a witness was improper because the witness was not an alibi witness and there was no showing that he was not equally available to both parties. Better, at 526; see also People v. Smith (1969), 105 Ill. App. 2d 8, 11-12, 245 N.E.2d 23.

The confusion arises when one considers our supreme court’s opinions in People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645, cert. denied (1969), 393 U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004, and People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170, which quoted the following from Williams:

“ ‘[A] jury in its deliberations is not limited to a consideration of that which is, strictly speaking, testimony. To the contrary, it may properly consider any facts developed in the trial from which a reasonable inference may be drawn for or against either party. For instance, if it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon. * * *
[I]t is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charges, nonetheless, if other evidence tends to prove the guilt of a defendant and. he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.’ ” (Blakes, at 359-60, quoting Williams, at 528-29.)

It is true that Williams involved the defendant’s failure to produce certain physical evidence and the witnesses in Blakes were, in fact, alibi witnesses. The logic of the court’s opinion, however, is not so limited. (See also People v. Lion (1957), 10 Ill. 2d 208, 216, 139 N.E.2d 757.) In People v. Pepper (1971), 2 Ill. App. 3d 621, 276 N.E.2d 416, the appellate court attempted to distinguish Williams, noting that the supreme court there concerned itself with the question of self-incrimination and the right of a defendant to testify. • (Pepper, at 624.) In our opinion, this distinction ignores the plain language in Williams that the prosecution may comment, although not rely, on the defendant’s failure to produce evidence within his control to explain or refute the prosecution’s evidence. In view of these differing views on the propriety of prosecutorial comment on a defendant’s failure to produce a witness or an item of physical evidence, the confusion of the bar, particularly prosecuting attorneys, is understandable.

Defendant’s next contention is that he was denied a fair trial when the trial court improperly admitted into evidence numerous inflammatory photographs of decedent’s body. Defendant argues that the gruesome photographs prejudiced defendant and had little probative value. The admission of photographs of a murder victim is a matter reserved to the sound discretion of the trial court. (People v. Myers (1966), 35 Ill. 2d 311, 331, 220 N.E.2d 297.) Even gruesome photographs are admissible when they are relevant and establish some fact in issue. (See People v. Owens (1976), 65 Ill. 2d 83, 90, 357 N.E.2d 465, cert. denied (1977), 430 U.S. 955, 51 L. Ed. 2d 805, 97 S. Ct. 1600; People v. Henenberg (1973), 55 Ill. 2d 5, 13-14, 302 N.E.2d 27.) In People v. Lindgren (1980), 79 Ill. 2d 129, 143-44, 402 N.E.2d 238, our supreme court held that it was not an abuse of discretion to admit two photographs showing a victim whose genitals had been severed and placed in his mouth. The court in that case ruled that such photographs were probative of the cause of death, the amount of force used in the murder, the condition of the scene of the crime, and tended to corroborate the testimony of the pathologist, the coroner and several other witnesses. Likewise, in People v. Gerecke (1977), 45 Ill. App. 3d 510, 359 N.E.2d 1178, the court held that the two color photographs of the victim taken at the murder scene and three color photographs taken at the morgue were properly admitted because they were relevant to prove the cause of death and the identity of the victim. The court also held that the pictures were not unnecessarily cumulative even though there was oral testimony concerning the same issues. (45 Ill. App. 3d 510, 514.) In the case at bar, the photographs of the victim’s bullet-ridden body were relevant to prove the cause of death, the identity of the victim and to corroborate the portion of the confession stating that “[I] emptied my piece” into Sanders. We find it was not an abuse of discretion for the trial court to admit these photographs.

Defendant’s final contention on appeal is that he was not proved guilty beyond a reasonable doubt. Defendant’s position at trial and on appeal is that the written confession introduced at trial and the oral confessions testified to by Rizzi, Morrison, McCarthy and Egelbrecht were fabricated. Defendant also asserts that Peggy Price erroneously identified him as the man who picked decedent up a few hours prior to decedent’s death. The standard of review we are bound to is that a conviction will not be reversed on appeal unless the evidence presented is so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of guilt. (People v. Lewis (1979), 75 Ill. App. 3d 259, 281, 393 N.E.2d 1098.) Where the testimony is conflicting but legally sufficient if the prosecution’s evidence is believed, the question is for the trier of fact. (People v. Carpenter (1963), 28 Ill. 2d 116, 122, 190 N.E.2d 738.) The trier of fact may accept all, part or none of a confession and discrepancies between a confession and other evidence are for the trier of fact to assess. People v. Schultz (1981), 99 Ill. App. 3d 762, 770, 425 N.E.2d 1267.

The jury in the present case chose to believe the testimony of the State’s witnesses. Such evidence was clearly sufficient to prove defendant guilty beyond a reasonable doubt. Peggy Price testified that defendant was with decedent a few hours before the decedent was murdered. There was also a written confession signed by defendant and corroborated by oral confessions heard by three police officers and a civilian secretary. The testimony of those who heard the oral confessions and witnessed the circumstances of the written confession was devoid of any material inconsistencies. We conclude the evidence presented was not so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of defendant’s guilt.

The judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P. J., and DOWNING, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EZRA UPSHAW, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1782
    Opinion filed December 29, 1981.

      James J. Doherty, Public Defender, of Chicago (James L. Rubens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stem Geis, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged with, and, after a jury trial, convicted of three murders. He was sentenced to 300 to 900 years imprisonment. For appellate review he raises the issues of whether: (1) the trial court properly admitted evidence of defendant’s attempted escapes subsequent to his arrest; (2) the jury should have been instructed as to the consequences of a verdict of not guilty by reason of insanity; (3) the prosecutor’s closing argument was improper and deprived defendant of a fair trial; and (4) defendant was proved sane beyond a reasonable doubt. We affirm.

Defendant was charged on September 25, 1974, with the murders of Henry Stewart, Mary Wilson, and Christ Wilson. He was found unfit to stand trial from March 10,1975, until April 23,1980, when, after a hearing, he was adjudged competent to stand trial.

At trial, Chicago Police Officer Thomas McKenna testified that three days after the victims’ bodies were discovered, police found defendant in an apartment hiding in a crouched position behind a refrigerator. He was calm, stated that he understood his rights, and asked to which police station the officers were taking him. A woman, Karen Mundane, was in the apartment, and a gun was found in her purse. Defendant claimed ownership of the gun, stating that he had put the gun in the purse when the police ¿rrived thinking the gun would not be found there.

At the police station, defendant again stated that he understood his rights and gave a narrative oral statement to Officer McKenna. Several hours later, he gave substantially the same statement in question and answer form to felony review assistant State’s Attorney James Klein and a court reporter. During the interview with Klein, defendant understood, the questions, gave responsive answers, appeared logical and rational, and talked in a normal, animated voice. In a signed confession, defendant related that in the early evening on August 23, 1974, he saw Henry Stewart, Mary Wilson, and her three-year-old daughter Christ, on the street. Earlier in the day, defendant had pawned, for $25, a .32-cáliber gun to Stewart. Defendant now wanted to pay Stewart the $25 in return for his gun. Stewart said he did not have the gun. Defendant went to his mother’s house nearby and got another .32-caliber gun which he kept there. He then went outside and caught up with Stewart, Wilson and her daughter. He offered to let them stay at his house since their apartment had been raided and they felt they couldn’t return to it. They all went to defendant’s house and the three adults “shot some stuff.”

Sometime after they had taken the drugs, the confession continued, Mary Wilson dropped her purse and defendant’s gun fell to the floor. Stewart and defendant argued about the gun; thereafter, Stewart reached for it. Defendant shot him with the other gun. Mary Wilson attacked defendant and was also shot by him. Christ Wilson, Mary’s three-year-old daughter, began screaming so defendant put his hand over her mouth and nose, and afterwards realized she was dead. Defendant then dismembered the bodies of Henry Stewart and Mary Wilson, severing their heads, legs and arms, in order to move them from the apartment. He put the various body parts in garbage bags and disposed of the bodies in different locations near his apartment. Defendant’s girlfriend helped him dispose of Stewart. They then cleaned up the blood in the apartment, dumped the knives in the garbage and flattened the murder weapon with a hammer.

For the defense, Dr. Werner Tuteur, a psychiatrist, testified that he examined defendant on four separate occasions: the first examination was on September 28,1974; the second was on April 21,1979; the third on June 13, 1979; and the fourth on April 19, 1980. In Dr. Tuteúr’s opinion, defendant was mentally ill and suffering from schizophrenia on the date of the killings, from which he still suffered on the date of the April 19 examination. Defendant was not faking or malingering. In his further opinion, defendant did not comprehend the criminality of his actions and was in no condition to appreciate anything he might do wrong at the time, of the offense. Dr. Tuteur based his opinions, in part, on statements made by defendant to him during the examinations, for example: he enjoyed seeing blood spurt; and that he would kill again. He had no remorse and Dr. Tuteur considered that very psychotic. Dr. Tuteur saw the police report of the murders prior to examining defendant for the first time. Although he formed his opinion of defendant’s sanity and mental state on September 28, 1974, four weeks after the offense, he did not put it in writing until five years later when he was directed to do so by the court.

On cross-examination, Dr. Tuteur had no knowledge of whether or not defendant had an opportunity to consult his attorney before he discussed the case with him on September 28,1974. He had not submitted defendant to psychological testing and relied totally on his interview of defendant for his diagnosis. He had not interviewed defendant’s mother or family, teacher or the state’s attorney in charge of the case. In his report of September 28, 1979, he stated that the possibility of malingering was considered and that defendant had behaved clownishly. The fact that defendant had perfect recall of the incidents leading up to the deaths did not affect his diagnosis because schizophrenics have good memories. The fact that an offender acts with motive does not indicate that he has a sound mind. The fact that an offender cleans up blood after the commission of a crime does not indicate that the person could conform his conduct to the precepts of the law. The planning of a crime doesn’t demonstrate that a person understands the consequences and criminality thereof.

On rebuttal for the State, Dr. Jewett Goldsmith, a psychiatrist, testified that he evaluated defendant on October 17, 1977, at the Illinois State Psychiatric Institute (ISPI). This evaluation included a psychiatric interview, a physical examination, and 24-hour observation; it did not include psychological testing. Dr. Goldsmith diagnosed defendant as having an antisocial personality, not a major mental disease. Defendant acted rationally while with other ISPI staff members but was very disturbed during the psychiatric interview. He appeared to be consciously controlling his psychosis; his acts were no better than that of a grade “B” movie actor.

On cross-examination Dr. Goldsmith testified that he had previously examined defendant in 1975 and found him to be schizophrenic. At that time, defendant constituted a danger to himself and others and was not malingering or faking his schizophrenia. Defendant was then committed on the basis of examinations by other psychiatrists. According to Dr. Goldsmith, it is conceivable that a schizophrenic could plan acts despite not appreciating the criminality of those acts. He had given no opinion in 1975 as to defendants’ mental state as of August 23, 1974, the date of the offense, and had no way of knowing what it was at that time.

Dr. Richard Rogers, a clinical psychologist at the Isaac Ray Center, examined defendant for 2 hours on September 27, 1979 and for 2 hours and 45 minutes on October 16, 1979. He tested defendant with the Schedule of Affective Disorders and Schizophrenia, which he claimed is very reliable. He diagnosed defendant as having an antisocial personality disorder and schizotypical co-features on August 23, 1974. This was defined as a persistent and recurrent pattern of antisocial behavior in which the rights of others are violated. He further characterized it as a nonpsychotic disturbance which causes difficulty with perceptions, with communication and with forming long-lasting responsible relationships. In his opinion, defendant was not suffering from a psychosis or any major psychiatric disorder on August 23,1974, and he was able to appreciate the criminality of his behavior and conform his behavior to the requirements of the law on that day.

Dr. Jonathan Kelly, a psychiatrist at the Isaac Ray Center, examined defendant for a total of 2 hours on August 6,1979 and November 15,1979. He reviewed police reports, investigations regarding defendants’ friends, preliminary hearing reports, Dr. Rogers’ testing results, and defendant’s signed confession. In his opinion, defendant did not suffer from a mental disease or defect on August 23, 1974, nor did he lack the substantial capacity both to appreciate the criminality of his conduct and to conform his behavior to the requirements of the law. In Dr. Kelly’s opinion, defendant was not suffering from acute schizophrenia at the time of the offense.

At trial, the State also introduced testimony of four correctional officers and one police officer concerning successful escapes by defendant from custody and attempts within a 51-month period after his arrest. Sergeant James Harris, a policeman for the State of Illinois Mental Health Police Department, testified that on April 10, 1975, defendant escaped from custody during a court proceeding held at the Illinois State Psychiatric Institute. Levi Ramseur, a correctional officer at Cook County Jail, testified that on July 7, 1977, at about 3:30 a.m., he prevented an escape by defendant from the jail compound. Herbert Martin, a guard at Cook County Jail, testified that on November 25, 1978, defendant and seven other inmates armed with homemade knives, jumped Martin and handcuffed him then locked him up during an escape attempt. Defendant escaped for two days but the other seven inmates were recaptured. James Montgomery, a correctional officer at Cook County Jail stated that while searching the roof at the jail on November 27, 1978, he found defendant hiding in an airvent. Chicago Police Officer Harry Gaines testified that on October 1, 1976, he and his partner placed defendant under arrest after a shootout following his emergence from a currency exchange.

Defense counsel moved to strike all testimony by the correctional officers and for a mistrial because such testimony was evidence of other crimes and was not probative or relevant. The trial court denied both motions. The court also denied a motion in limine made by defense counsel to prevent any reference to a book which allegedly contained two hacksaw blades found in the defendant’s possession during the pendency of the trial. Defendant argued there was no showing that he knew hacksaw blades were inside the book and any probative effect of such evidence would be outweighed by severe prejudice.

Clifton Bates, a correctional officer at Cook County Jail, thereafter testified on rebuttal that on the previous day, April 24, 1980, defendant returned to the maximum security lockup after spending the day in court pursuant to the instant trial, carrying a book. A jail guard ripped off the back covers of the book. Inside were two hacksaw blades. On cross-examination Officer Bates stated that he previously had not seen defendant carrying that book. Defendant told Bates that the book belonged to Francis Scott, an inmate who shared a cell with defendant and denied knowing that the hacksaw blades were in the book.

Dr. Edward Kelleher, a psychiatrist, testified on defense surrebuttal. He examined defendant on October 9, 1974; February 24, 1975; October 16, 1976; November 3, 1977; and November 15, 1977. He also examined police and psychological reports. In October, 1974 it was Dr. Kelleher’s opinion that defendant was schizophrenic and suffered from the same illness in February 1975. On cross-examination, his opinion was that as of November 15, 1977, defendant was able to appreciate the criminality of his acts and he was able to conform his behavior to the requirements of the law as of the day of the murders. In 1977, Dr. Kelleher reduced to writing his findings that defendant was sane in 1974.

I

Defendant first argues that it was reversible error to admit rebuttal evidence concerning his escape attempts because he was unfit to stand trial at the time of those incidents and such evidence grossly prejudiced his right to a fair trial. According to defendant, the court’s reason for admitting the evidence, to allow rebuttal of defense testimony to the effect that defendant was legally insane during the murder by permitting evidence of defendant having engaged in rational acts subsequent thereto, was not well founded. He claims that he cannot be deemed to have possessed guilty knowledge where he was found to have been unfit to stand trial for six years following his arrest. Defendant objects further to the admission of Officer Gaines’ testimony regarding the exchange of gunfire between Gaines and defendant after his emergence from the currency exchange, and defendant’s subsequent arrest, as prohibited evidence of other crimes. He also argues that the rebuttal testimony, since it concerned matters which occurred subsequent to the murders, was not relevant to defendant’s mental státe on that date. Defendant also claims that evidence of his possession during the trial of a book containing hacksaw blades was not relevant to his mental state on the day of the murders and should have been excluded.

Admission in evidence of rebuttal evidence testimony rests within the discretion of the trial court. (People v. Veal (1978), 58 Ill. App. 3d 938, 966, 374 N.E.2d 963, cert. denied (1979), 441 U.S. 908, 60 L. Ed. 2d 378, 99 S. Ct. 2001.) Testimony concerning defendant’s escape and attempted escapes tended to explain defendant’s psychiatric evidence with regard to the periods of lucidity referred to by Dr. Tuteur. It was also intended to show that just two days before trial, defendant was found to possess the means of yet another escape attempt, the book-bound hacksaw blades, contrary to Dr. Tuteur’s opinion that defendant was at that time schizophrenic. The attempts at escape and actual escapes could have been regarded by the jury as evidence of defendant’s capacity to act in a rational and calculating manner during a period in which he was allegedly schizophrenic; when considered along with other evidence, it constituted strong presumptive evidence of defendant’s guilty knowledge (People v. Gambino (1957), 12 Ill. 2d 29, 32, 145 N.E.2d 42; People v. Armstrong (1976), 43 Ill. App. 3d 586, 357 N.E.2d 84), and was, therefore, proper rebuttal. In Armstrong, that defendant first sought to hide from police, as in the instant case, and later escaped as were the circumstances here. There the court stated (43 Ill. App. 3d 586, 595): “The attempt of the defendant to avoid arrest by hiding under a bed and his actual escape from the custody of the police constitute strong presumptive evidence of his guilty knowledge which impelled him to flee.” Possession of the means of escape, such as hacksaw blades, stands upon the same footing as evidence of escape or attempted escape. (People v. Yonder (1969), 44 Ill. 2d 376, 392, 256 N.E.2d 321, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094. See, also People v. Neiman (1967), 90 Ill. App. 2d 337, 344-45, 232 N.E.2d 805, setting forth rationale for the rule.) No error is found in the admittance of this evidence. People v. Carbona (1975), 27 Ill. App. 3d 988, 1005, 327 N.E.2d 546, cert. denied (1976), 424 U.S. 914, 41 L. Ed. 2d 319, 96 S. Ct. 1114.

With regard to the testimony of Officer Gaines of events during the shootout after defendant was observed leaving the currency exchange, to be noted is the fact that there was no connection made by the State with respect to how this evidence tended to prove defendant’s sanity on the date of the crimes under consideration here. Evidence of other crimes is generally inadmissible, exceptions being limited to the establishment of motive, common design, identity, intent, knowledge or a fact material to an issue on trial. (People v. Brunning (1981), 95 Ill. App. 3d 673, 676, 420 N.E.2d 587; People v. Scott (1968), 100 Ill. App. 2d 473, 241 N.E.2d 579.) No such exception appears applicable to the facts of this case and the evidence should have been excluded. Defense counsel made no objection to the admission of this evidence, which ordinarily constitutes waiver. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N,E.2d 233.) Defendant also failed to preserve this issue in his motion for a new trial, which again triggers the waiver doctrine as to this point. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Defendant does not deny having committed the murders with which he is charged here; he raises the defense of insanity. Since the asserted error of admitting evidence of other crimes did not tend to negate that defense, it cannot be deemed to have influenced or prejudiced the jury in its consideration of defendant’s asserted insanity so as to invoke the plain error rule. Ill. Rev. Stat. 1979, ch. 110A, par. 615(a); People v. Carlson.

II

It is next claimed by defendant that the trial court erred in failing to give, on its own motion, a jury instruction explaining the consequences of a verdict of not guilty by reason of insanity. He argues that a jury is persuaded to convict despite a plea of insanity where it is not aware that finding a defendant not guilty by reason of insanity would result in a hearing to determine if he requires hospitalization. He contends that failure to so instruct the jury constitutes a substantial defect which cannot be waived by defendant’s failure to have tendered such instruction to the court; therefore, the court should have sua sponte required the instruction. (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513), and relies upon People v. Smith (1976), 41 Ill. App. 3d 776, 354 N.E.2d 546. Smith, however, lends no support to his position. Purporting to follow Federal law, Smith held that submission of the verdict form of “not guilty by reason of insanity” without an instruction as to the consequences of such a verdict does not constitute reversible error where no such instruction was tendered to the court. The Smith court declined to hold whether the instruction should be given sua sponte where defendant has a “strong” insanity defense.

Cases cited by the defense from other jurisdictions do not specifically reach the question of whether such an instruction should be given absent defendant’s, or the jury’s, request, except for Lyles v. United States (D.C. Cir. 1957), 254 F. 2d 725, which held that such an instruction should always be given even absent such a request. Parenthetically, the court in Smith refused to follow Lyles. Further, in People v. Meeker (1980), 86 Ill. App. 3d 162, 170, 407 N.E.2d 1058, the trial court’s refusal to give such an instruction, even when tendered by the defendant, was held not to have constituted reversible error. The Meeker court reasoned that such an instruction is not allowed by most jurisdictions, and that Illinois, unlike many jurisdictions that do allow the instruction, does not require mandatory institutionalization following a verdict of not guilty by reason of insanity. Further, the court stated such an instruction could result in a compromise verdict. We find the foregoing reasons persuasive. Accord, People v. La Fiura (1981), 92 Ill. App. 3d 714, 415 N.E.2d 1365.

III

Defendant next identifies error in prosecutorial conduct committed during closing argument, which is claimed to have been improper, inflammatory, and without basis in the record. These include the prosecutor’s repeated statement that defendant is “trying to walk out that door”; the prosecutor’s reference to defendant’s “using the system” to escape responsibility for his crime; the prosecutor’s suggestion that defendant’s insanity defense was not advanced until he met other lawyers and prisoners; and, the prosecutor’s reference to a notorious case involving John Wayne Gacy and 33 murders.

The State argues that comments made regarding defendant walking out the door were invited by defendant, who raised the issue of self-defense in his argument and in an instruction to the jury. The prosecutor in closing argument may dwell upon the results of a crime and comment upon its effect on the community. People v. Johnson (1979), 73 Ill. App. 3d 431, 435, 392 N.E.2d 587; see also People v. Bost (1980), 80 Ill. App. 3d 933, 956, 400 N.E.2d 734.

The State claims that the prosecutor’s comment that defendant’s insanity defense was not advanced until he met other prisoners and his attorney was a reasonable inference drawn from the following evidence: testimony describing defendant as behaving rationally during questioning; evidence of escape attempts in which he behaved rationally; Dr. Tuteur’s statement in his first report that the possibility of malingering was considered; and, testimony from another psychiatrist which described defendant as consciously controlling his psychosis. Although the prosecutor’s observations had been better left unsaid, we cannot say that they materially contributed to defendant’s conviction here, as was the case in People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68, where a conviction was reversed by reason of prosecutorial comments which went far beyond any evidence in the record in which they could have found legitimate support.

Reference to John Wayne Gacy is claimed by the State to have been in response to defendant’s cross-examination of police investigators regarding the small number of murder victims whose bodies had been dismembered and to defendant’s opening statement and closing argument in which he suggested the murders were so bizarre that defendant had to be insane. Reference to a well-known case in closing argument is not improper where the comments do not inflame the jury or suggest a personal similarity between defendant and another criminal. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 324, 379 N.E.2d 847; People v. Tolefree (1980), 85 Ill. App. 3d 844, 848, 407 N.E.2d 604.) In People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1125-26, 408 N.E.2d 1098, an obvious reference to John Wayne Gacy was also made. There the prosecutor commented that every time a vicious crime is committed, defendant’s neighbors testify that he is a wonderful person and a good citizen, that he used to dress up as a clown and was a member of the Junior Chamber of Commerce. The court there held, as we hold here, that the State cannot be said to have attempted a comparison between that notorious case and the case at bar. If anything, the comments made in the instant case, that “it doesn’t mean he was crazy just because he cut up the bodies. John Gacey [sic] buried thirty-three of them under his home,” is less suggestive of comparison than the comments in Szerletich. We find no basis for reversal in those remarks.

IV

Defendant next contends that he was not proved sane beyond a reasonable doubt. We have analyzed the psychiatric and other evidence set forth in the body of this opinion from this perspective and find ample support for the jury’s verdict beyond a reasonable doubt.

For the reasons set forth above, the conviction of defendant by the jury in this case cannot be disturbed. Accordingly, the verdict, conviction and sentences must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES SANDERS et at., Defendants-Appellants.
    First District (2nd Division)
    Nos. 80-1810, 80-1813 cons.
    Opinion filed December 29, 1981.
    Rehearing denied February 4, 1982.

      Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant Charles Sanders.
    James J. Doherty, Public Defender, of Chicago (Timothy K. McMorrow, Assistant Public Defender, of counsel), for appellant Benjamin Hunter.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and David L. King, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

At the close of a joint trial, a jury found defendants Charles Sanders and Benjamin Hunter guilty of murder, armed robbery and home invasion of Killis Dickerson (victim), an 81-year-old resident of the Stateway Gardens Housing Project (Stateway Gardens). Sanders was sentenced to the penitentiary for concurrent terms of 30 years for murder, 25 years for armed robbery and 25 years for home invasion. Hunter was sentenced to serve concurrent terms of 24 years for murder, 20 years for armed robbery and 20 years for home invasion. Their separate appeals have been consolidated.

The issues raised by Hunter on appeal include whether: (1) defendant was denied his constitutional right to confront witnesses; (2) the prosecutor’s comments in closing argument were proper; (3) evidence of a separate robbery perpetrated against the victim the day before the incident was properly admitted into evidence; (4) a psychologist was erroneously prohibited from testifying as to Hunter’s inability to read and low intelligence; and (5) Hunter’s inculpatory statement was the product of an unlawful arrest.

Sanders raises the issues of whether: (1) the trial court erred in denying his motion for severance under the circumstances of the case; and (2) 'the trial court’s allowance of hearsay testimony denied Sanders his right to a fair trial.

Defendants were indicted separately; however, on the State’s motion, the cases were consolidated for trial. The trial court denied subsequent motions made by both defendants for severance on the ground that each defendant made a statement inculpating themselves and the other in the crime, thereby constituting “interlocking” confessions. Hunter’s pretrial motion to quash arrest and suppress evidence was also denied by the trial court.

At trial, the State presented the following case. Otis Harris, who lived in the apartment above the victim on April 14, 1979, testified that at 4:30 or 5 a.m. on that date, he was awakened by a call for help. The voice sounded like the victim’s. He called the police. Chicago Police Officer Claude Insley testified that he and his partner responded to that call and were directed to the victim’s apartment, where they found the door locked. They called the fire department for assistance. While waiting at the door, Insley heard a noise near the window, turned and saw a shadow near the balcony and heard a thud below, like somebody jumping down from the window, coming from the victim’s apartment. He could not recognize anyone. When Insley finally gained entrance to the apartment, he found the victim lying on the floor bleeding heavily.

The victim was transported to a hospital, where he died shortly thereafter. Dr. Eupil Choi testified that he performed an autopsy on the victim, from which he concluded that death was due to cerebral-cranial injuries inflicted by blunt trauma to the head.

Lonnie Austin, a security guard employed by Stateway Gardens, testified that after learning of the victim’s, death, he went to his apartment. He noticed that the bars of the window right next to the door had been pried open and that the window itself was open. The window was adjacent to the apartment door. One could open the window and reach around and unlock the door from the inside. On the day before the homicide, he spoke with the victim and observed that his face was swollen.

. Chicago Police Investigator John Markham testified that after speaking with some residents in the victim’s building two days after the incident, he went with his partner to Hunter’s home and brought him to the police station. He had a conversation with Hunter there, during which Hunter stated that on the night before the homicide he met with another individual to discuss the robbery of the victim. On that same night they went to the victim’s apartment, beat him and took $25. Hunter received $5 for his part in the robbery as a lookout man. In a second conversation, Hunter related that in the early morning hours of April 14, 1979, he discussed with Sanders the prospect of robbing Dickerson. Hunter was to act as a lookout. They entered Dickerson’s apartment together.. Hunter then left the apartment and went downstairs. When he saw a police car approaching, he went back upstairs to warn Sanders. Shortly thereafter, they left the apartment together. Hunter received $5 for his part in this robbery.

Elaine Geer, assistant state’s attorney, testified that she went to the police station and met with Investigator Markham. She thereafter interviewed Hunter twice after apprising him of his constitutional rights, which he waived; once in the presence of a court reporter and once without. The recorded statement was essentially the same as the oral one. In his recorded statement, reduced to writing, and initialed by Hunter, who claimed that he could read and write, he stated that he was to act as the lookout man. They both entered victim’s apartment through the balcony window. When the victim saw them he reached for a knife, but before he could do so, Sanders hit him in the face. After taking $5 from the victim, Sanders struck him in the head with a wood stick. Sanders beat the victim for 15 minutes, asking him where the money was. Hunter, standing at the kitchen door as lookout, observed these actions and, while he told Sanders not to hurt the victim, he did nothing to stop him. Hunter then went downstairs, looking to see if any police were coming. When he saw a squad car approach, he returned to warn Sanders. They left the apartment, but, once outside, Sanders decided to go back because the “old man got some more money”. Hunter went home and sat on his porch where he saw Sanders jump out of the front window of the victim’s apartment. At the close of Geer’s testimony, the trial court instructed the jury to consider Hunter’s statement only against him.

Chicago Police Investigator Joseph Murphy testified that he questioned Sanders about the incident after he was brought in on April 18, 1979. Sanders claimed that he was with his cousin, Oscar Flowers, in Freeport, Illinois, at the time. When Flowers was contacted by another officer, he said he had not seen Sanders since January of 1979. When told of this contact, Sanders stated that he was at home with his mother on the day of the crime. When the police contacted Sanders’ mother, she said she had not seen her son for a period of several days. Murphy told Sanders about the statement given by his mother and confronted him with Hunter’s written confession. Sanders thereafter orally related that in the early morning hours of April 14,1979, he met Hunter in the breezeway of Stateway Gardens. Hunter, armed with a lead pipe, said they should rob the victim. Sanders was to remain on the first floor in the breezeway to watch out for the police. Hunter left for the victim’s apartment while Sanders remained at the breezeway. He became interested in a dice game going on in a nearby hallway. He saw two police officers running by, but since he did not have enough time to warn Hunter, he left the building. The next day he spoke with Hunter, who said he beat the victim and stole $10 but almost got caught. Hunter escaped by jumping out of a window when he heard the police at the door. Hunter offered Sanders $5 but he didn’t take it because he felt that the police knew who committed the robbery and did not want to get involved any further. Sanders refused to put his statement in writing. The State then rested.

Sanders called his mother, Beatrice Sanders, to the stand. She testified that her son left with his sister-in-law on April 12 to go to Freeport, Illinois, and did not return until the 17th. Pamela Mitchell, another defense witness, testified that she lived across the yard from the victim’s apartment. At about 4 a.m. on April 14, she saw a boy named “Tyrone” jump to the ground from the victim’s balcony. The police were never given this information. She was a good friend of both defendants. Several other defense witnesses testified that Hunter was at a party from 10 p.m. on April 13 to 5 a.m. on April 14, 1979. Hunter’s mother testified that her son had trouble in school and did not read very well.

Hunter attempted to call Dr. Paul Sabatini, a clinical psychologist, who was prepared to testify that, based upon his analyses of the tests administered to him upon entering prison, Hunter was a borderline defective and was unable to read. The trial court disallowed his testimony.

Certain evidence, adduced during Hunter’s motion to quash arrest and suppress evidence, will further an understanding of defendants’ arguments on appeal. At the hearing, Hunter’s mother, Estoyel Hunter, testified that at about 8 a.m. on April 16,1979, two police officers came to her apartment and asked to see her son, who was asleep. Hunter testified that his mother woke him up to tell him that the police wanted to see him. He went to speak to them. They wanted to ask him some questions about the homicide at the police station. Although he was “willing” to go there, he was never told he did not have to go. The police handcuffed him both in the car and at the station. They also beat him with a night stick.

Also at the hearing, Investigator Markham testified that he and his partner went to Hunter’s apartment in plainclothes without a warrant at about 10:30 or 11 a.m. on April 16. He asked Hunter if he would accompany them to the station for questioning with respect to the homicide. Hunter agreed to cooperate. Markham would not have compelled Hunter to come to the station if defendant had refused to cooperate. Hunter was not informed that he was free to remain at home. They did not search Hunter prior to transporting him to the station nor did they handcuff him at any time. At the station, Hunter was neither booked, nor placed in a lockup. No arrest information was taken from him. Hunter was taken into an interview room where he made an inculpatory statement.

I

Both defendants contend they were denied their rights under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, because each made extrajudicial, inculpatory statements which were admitted at trial and which incriminated the other, yet neither testified. In particular, each defendant maintains that the denial of their motion for severance and the subsequent admission of the incriminatory statements into evidence, in view of the allegedly scanty evidence of guilt, was reversible error under Bruton and its progeny. Bruton held that the confrontation clause of the sixth amendment was violated by the admission at trial of an out-of-court statement of a co-defendant who did not testify, incriminating the other defendant, although the jury received a proper, limiting instruction. An exception to Bruton was announced later in Parker v. Randolph (1979), 442 U.S. 62, 75, 60 L. Ed. 2d 713, 99 S. Ct. 2132, however, when a four-member plurality of the court held that the admission of “interlocking confessions” with proper cautionary instructions, that the confession of one defendant cannot be considered as evidence of the guilt of the other, did not offend Bruton. Their reasoning was that since a defendant’s own confession is probably the most damaging evidence that can be admitted against him, the right of cross-examination is of far less importance to a defendant who has confessed than to one who has consistently maintained his innocence. (442 U.S. 62, 72-73, 60 L. Ed. 2d 713, 723, 99 S. Ct. 2132, 2139.) Even before Parker, the Illinois Supreme Court has held that there was no Bruton violation where the complaining defendant himself has made “similar inculpatory admissions.” People v. Bassett (1974), 56 Ill. 2d 285, 295, 307 N.E.2d 359; People v. Rosochacki (1969), 41 Ill. 2d 483, 494, 244 N.E.2d 136. See also People v. Turner (1980), 92 Ill. App. 3d 265, 270-71, 415 N.E.2d 1114, decided after Parker.

In the present case, defendants’ rights of confrontation were not infringed by the statements being received into evidence because of the similar inculpatory admissions therein. In their statements, both defendants admitted that in the early morning hours of April 14,1979, they met in the breezeway of Stateway Gardens. They discussed the prospective robbery of the victim. An agreement to carry out this offense could be reasonably inferred from each statement. Each defendant took actions which promoted the crime. Each purportedly acted as a lookout while the other robbed and beat the victim. Although the confessions differ as to who initiated the plan and physically committed the robbing and beating, each confession, when considered only against its source, is by itself sufficient to support the convictions of each defendant. The rule governing interlocking confessions does not require that they be identical twins. (United States ex rel. Stanbridge v. Zelker (2d Cir. 1975), 514 F.2d 45, 48-49.) The question here of how the crime was specifically executed is of diminished significance in view of the Illinois accountability statute (Ill. Rev. Stat. 1977, ch. 38, par. 5—2(c)), under which each defendant could be properly found responsible for the other’s deeds. Further, each inculpatory statement is highly damaging to and probative on the issue of guilt; any prejudice to either defendant from the admission of the other’s statement is minimal where, as in this case, the jury was instructed to consider each statement only against its source. People v. Randolph (1979), 442 U.S. 62, 72-63, 60 L. Ed. 2d 713, 722-24, 99 S. Ct. 2132, 2138-39.

Hunter further contends that without Sanders’ statement the jury might easily have concluded that the fatal blows were struck when Sanders returned to the apartment for money while Hunter went home. This argument is without merit. According to Hunter’s own statement, when Sanders beat the victim in the head with a stick for 15 minutes, Hunter watched from his vantage point at the kitchen door where he stationed himself in order to see if the police were coming. It was well within the province of the jury to conclude, without any consideration of Sanders’ statement, that when the fatal blows were struck, Hunter was aiding and abetting Sanders by acting as a lookout. (Ill. Rev. Stat. 1977, ch. 38, par. 5—2(c); People v. Jones (1980), 86 Ill. App. 3d 278, 282, 407 N.E.2d 1121; People v. Krouse (1975), 30 Ill. App. 3d 446, 333 N.E.2d 17.) We find no error.

II

Hunter asserts that the prosecutor, in closing argument, stated that defendant had confessed to Lonnie Austin, a statement which had no support in the evidence. In particular, defendant maintains that the following prosecutorial comment was improper:

“He [Lonnie Austin] told you how these two guys told you they broke into Mr. Killis Dickerson’s apartment. * * * [Defense counsel’s objection is sustained] * * *. He told you how the break-in occurred. He described it.”

Initially, we observe that since Hunter failed to raise this issue in his written motion for a new trial, he has waived any consideration of it. People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

Assuming, arguendo, that defendant’s contention had not been waived, it is nevertheless without substance. The prosecutor’s remark did not claim that defendants confessed to Austin; rather, it referred to Austin’s corroboration of Hunter’s statement concerning defendants’ method of gaining access to the victim’s apartment. At trial, Austin stated that he went to the deceased’s apartment and noticed that the bars on the window had been pried open. A person could “open the window and reach around and unlock the door from the inside.” This corroborated Hunter’s statement that defendants entered the victim’s apartment through his window. The comment, correctly interpreted, was substantially supported by the record; any inaccurate inferences were cured by the prompt objection of counsel, sustained by the court. In addition, the jury was given an instruction (IPI Criminal No. 1.03), which told them that statements in closing argument not based upon the evidence should be disregarded. (People v. Dominique (1980), 86 Ill. App. 3d 794, 806-07, 408 N.E.2d 280.) No basis for reversal exists under these circumstances.

III

Hunter assigns error in the admission of evidence indicating that defendant was involved in a crime collateral to the offenses charged. Specifically, he objects to Austin’s testimony that the victim’s face was swollen on April 13,1979, and Hunter’s oral and written statement that the night before the homicide he participated in a robbery of the victim.

Evidence of “other crimes” is admissible only if it shows knowledge, intent, motive, design, plan or identification (People v. Armstrong (1969), 41 Ill. 2d 390, 398, 243 N.E.2d 825), and if its probative value outweighs its prejudicial impact. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288; People v. Oliver (1977), 50 Ill. App. 3d 665, 674, 365 N.E.2d 618.) There were strong similarities between the prior robbery and the offenses charged in the present case, including evidence of the robbing and beating of the same victim, in the same apartment, at night, with Hunter acting as a lookout, the day before the victim was robbed and fatally beaten. The disputed testimony is highly probative on the issue of intent, identity and modus operandi and tended to prove the guilt of Hunter. The probative value of such evidence, clearly outweighs any prejudice therein and, accordingly, was properly received. People v. Wilson (1970), 46 Ill. 2d 376, 381, 263 N.E.2d 856; People v. Tranowski (1960), 20 Ill. 2d 11, 16, 169 N.E.2d 347.

Furthermore, the jury was instructed that evidence of the commission of another crime should be considered by the jury only for the limited purpose of showing identification, presence, intent, motive, design and knowledge (IPI Criminal No. 3.14). Such an instruction substantially reduced any prejudicial impact which may have resulted by virtue of the admittance of such evidence. (People v. Kirkwood (1980), 82 Ill. App. 3d 252, 260, 402 N.E.2d 677.) We find no abuse of discretion by the trial court in admitting this evidence.

IV

The trial court is next charged with having erroneously refused to allow a defense psychologist to testify as Hunter’s low intelligence and inability to read. Hunter maintains that had this evidence been allowed, it would have supported his claim that he did not voluntarily sign his written confession and would have raised serious questions as to his ability to make a knowing waiver of his rights. Outside the presence of the jury, and for purposes of defendant’s offer of proof, Dr. Paul Sabatini testified that he was a clinical psychologist in charge of the dignostic center at the Cook County House of Corrections. Upon entering the House of Corrections, as in the case of each new inmate, Hunter was given a battery of tests, including an intelligence and personality test administered on a group basis by someone under Sabatini’s general supervision. There was, however, no way of ascertaining which member of his staff administered the particular test taken by Hunter. The test results indicated that Hunter had an I.Q. of 69 or 70 and was “no reader whatsoever.”

Relying upon People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, Hunter argues that Dr. Sabatini was improperly barred from testifying as an expert with respect to his low intelligence and inability to read. Ward held that a physician may express his opinion as to a defendant’s sanity based in part upon medical reports compiled with others which have not been admitted into evidence, provided that such reports are commonly utilized by the medical profession. The court in Ward bottomed its holding on the premise that materials customarily employed by the medical profession attribute a high degree of reliability to them. 61 Ill. 2d 559, 567-68; see Fed. R. Evid. 703, 28 U.S.C.A. 503 (1975).

Hunter’s reliance on Ward is patently misplaced. On examination by the court during defendant’s offer of proof, Dr. Sabatini stated he would have to “go into further tests” in order to evaluate whether defendant really was a nonreader and that someone taking the test given defendant “could just look at that paper, not perform the test and yet be a reader.” The record fails to establish that the tests given defendant were commonly used by the medical profession in ascertaining one’s intelligence or ability to read or sufficiently reliable to warrant the receipt of Dr. Sabatini’s opinion. Further, unlike the expert testimony in Ward, Dr. Sabatini’s opinion was based exclusively, rather than in part, on materials not in the record. (People v. Cooper (1978), 64 Ill. App. 3d 880, 886, 381 N.E.2d 1178; see also Wilson v. Clark (1981), 84 Ill. 2d 186, 193, 196, 417 N.E.2d 1322.) We find no error in the trial court’s ruling in this regard.

V

Hunter maintains that he was illegally under arrest when he made his inculpatory statements at the police station and, therefore, the statements should have been suppressed. An arrest occurs when the police inform a suspect of a violation, he submits to their control, and it is clearly shown that the officers intended to effectuate the arrest and the defendant understood them. (People v. Wipfler (1977), 68 Ill. 2d 158, 165, 368 N.E.2d 870.) The absence of a threatening presence of several officers, display of a weapon, a physical touching, use of language or tone of voice which indicates that compliance with the officer’s request might be compelled, permits, as a matter of law, the conclusion that no seizure of the person has taken place. (United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 497, 100 S. Ct. 1870.) The intent of the officer and the understanding of the arrestee are two essential elements in the definition of an arrest (68 Ill. 2d 158, 165), the former of which is absent in the instant case. Investigator Markham testified that he and his partner, dressed in plainclothes, went to defendant’s apartment and asked Hunter if he would accompany them to the station for questioning with respect to the homicide. He agreed. Hunter would not have been forced to come to the station had he sought to stay at home. He was allowed to get fully dressed. Prior to making his inculpatory statement, he was not searched, handcuffed, booked, fingerprinted, photographed, nor placed in a lockup. No arrest information was taken from him. In view of the foregoing, the trial court’s ruling that defendant was not under arrest when he was given Miranda warnings and made his inculpatory statement was supported by the record. (People v. Wipfler; United States v. Mendenhall.) The fact that Miranda warnings were given is merely indicative of proper cautiousness on the part of the police officer, rather than of the officer’s intent to arrest. People v. Wipfler; People v. Gale (1979), 72 Ill. App. 3d 23, 25, 390 N.E.2d 921.

Relying upon Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, Hunter contends that he was under “arrest for purposes of this Fourth Amendment right against unlawful searches and seizures.” In Dunaway, the Supreme Court held that the police violated the fourth amendment when, without either probable cause or a warrant, they “seized petitioner and transported him to the police station.” (442 U.S. 200, 216.) Dunaway, however, is inapposite, because in that case the detectives were ordered to bring petitioner in and petitioner would have been physically restrained had he attempted to leave, whereas in the instant case the investigators were under no such orders and would not have forced defendant to come to the station had defendant resisted. People v. Dowdell (1980), 81 Ill. App. 3d 266, 401 N.E.2d 295, People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781, and People v. Townes (1981), 94 Ill. App. 3d 850, 419 N.E.2d 604, cited by Hunter, are of little aid to his position. The first two authorities were decided prior to United States v. Mendenhall; the last, unlike the present case, involved five separate interrogations lasting over 12 hours before a confession was made.

VI

Defendant Sanders contends that the trial court erroneously allowed Investigator Murphy to testify about another officer’s telephone call to Oscar Flowers, defendant’s cousin and to Beatrice Sanders, defendant’s mother, the contents of which contradicted Sanders’ defense. On direct examination, Murphy testified that Sanders said he was with his cousin in Fréeport, Illinois, at the time of the incident. Against defendant’s objection, Murphy was allowed to testify that he told Sanders that his cousin had informed the investigators that he had not seen him since January of 1979. Sanders then said he was with his mother at the time of the occurrence. Murphy told Sanders that the investigators had contacted his mother and that his mother related that “if he had told us he was home that night he was lying to us.” Murphy was not the investigator who “contacted” defendant’s cousin or mother.

Defendant, however, by failing to raise this issue in his written notice for a new trial has waived his right to urge it as a ground for reversal. (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Close examination of the transcript and briefs reveals that the defect complained of fails to rise to the level of plain error. Ill. Rev. Stat. 1979, ch. 110A, par. 615(a); People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233.

For the reasons set forth above, we find no bases upon which to disturb the jury verdicts or judgments entered in the present cases, and we are therefore compelled to affirm in each instance.

Affirmed.

STAMOS and PERLIN, JJ., concur.