author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN GUYON et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 81 — 0979, 81 — 1108 cons.
    Opinion filed August 24, 1983.

      James J. Doherty, Public Defender, and David J. Bradford, both of Chicago (Hugh Stevens, Assistant Public Defender, and Jenner & Block, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendant, Melvin Guyon, was found guilty of aggravated kidnaping, rape and armed robbery of Josephina. His codefendant, Michael Guyon, was found guilty of aggravated kidnaping, rape, deviate sexual assault, and armed robbery of Josephina’s ’sister, Alicia. Motions to sever their trials and to suppress information, filed by both defendants, had been heard and denied prior to trial.

On appeal Melvin argues that (1) the trial court erred in refusing to allow him to introduce evidence of other crimes committed by Michael, as well as in denying the motion to sever the trials of the two brothers; (2) the trial court improperly restricted Melvin’s closing argument as well as his cross-examination of one of the State’s witnesses; (3) references to other crimes of Melvin were improper; (4) the prosecutor’s improper arguments during closing argument denied Melvin a fair trial; and (5) the court abused its discretion in sentencing Melvin to extended terms of 45 years on each count, consecutive to his prior Federal sentence of life imprisonment.

Michael Guyon argues on appeal that (1) the State failed to prove his guilt beyond a reasonable doubt; (2) a new trial is necessary since the trial court erred in denying his motion in limine to prevent the introduction of his prior conviction for impeachment purposes; and (3) the prosecutor’s improper comments and argument denied defendant a fair trial.

In the early morning hours of September 17, 1978, Josephina and Alicia were returning home from a discotheque where Josephina worked as a waitress. Alicia had been dancing at the discotheque since 8 or 9 p.m., and had had six or seven mixed drinks in the course of the evening. As they walked toward home at 6 a.m., a man approached them, pulled out a small gun and forced them into a car parked in an alley. Although Alicia testified that she was afraid to look at the man, both women identified this man from a photo array, a lineup and at trial, as Michael Guyon.

Michael traded places with Melvin, the driver of the car, who got into the back seat with Alicia and Josephina. Both women identified the second man from a photo array, a lineup and at trial as Melvin Guyon. He had a small knife which he kept pointed at Alicia. Alicia was crying with her head in Josephina’s lap. Michael told her to “shut up.”

They drove to a parking lot near 43d and Halsted streets. Michael took the knife from Melvin and told Alicia to climb over the seat and to take off her underclothes. After she did so, he ripped her skirt up the front. Alicia offered him $7 and her jewelry not to harm her. He took the money and then had forcible sexual intercourse with her. Ali-' cia was crying and bleeding and Michael asked Melvin for some tissues for the blood.

Melvin ordered Josephina to undress and forced her to engage in sexual intercourse. He then took $5 or $6 from Josephina’s wallet. The men allowed the women to dress and gave them each 30 cents for bus fare. The men threatened to hurt them if they told anyone about the incident. The ordeal had lasted about 30 to 40 minutes, and Josephina testified it was still dark when they were released. Alicia testified that it was getting light.

The women took a bus to 35th and Halsted streets. Alicia was in a state of shock when the two went into a restaurant. Alicia entered the restroom and Josephina told two policemen who were in the restaurant that they had been raped.

Officer Lenore Flaherty of the Chicago police department came to the restaurant. She testified that Alicia was hysterical and told her only, “I was a virgin.” Josephina told Officer Flaherty that they had been raped, and described the offenders and their car. The man in the front seat was described as black, 24 to 28 years old, black hair, brown eyes, approximately 190 pounds, black pants, brown sweat shirt with the .sleeves cut off, black hairnet, and missing a bottom tooth. He said his name was “Jack.” He had a small gun. Officer Flaherty did not remember being told that he had a mustache or a goatee, although Josephina remembered saying he had a mustache.

The man in the back seat was described as black, 20 to 24 years old, six feet tall, black hair, brown eyes, 180 pounds, black pants, black mesh shirt, black hairnet and crooked teeth. Josephina did not remember if she said he had hair on his chin.

The car was described as a late model, blue, with power windows, cloth seats and a box of yellow Puffs tissues in the back window. The back window had black lines on it. Officer Flaherty testified that Alicia told her there was blood on the front seat. At trial, Alicia did not remember that and denied it. Neither sister described a C.B., C.B. equipment, eight-track tapes, initials on the dashboard or a dent on the side of the car.

Officer Flaherty drove the women to Mercy Hospital where they were examined by a gynecologist, Dr. Jose Balboa. He testified that his examination of Alicia revealed a tear in the hymen with active bleeding. His examination of Josephina revealed no injury. His examination of slides from both women’s vaginal areas did not show sperm. Other slides were delivered to the microanalysis unit of the Chicago Crime Laboratory along with Alicia’s skirt and panties. Michael Ziefeldt, an employee of the laboratory, testified that he examined the slides and found sperm. Alicia’s clothing revealed blood but not sperm. The clothing and slides were admitted into evidence.

On September 18, 1978, two investigators for the Chicago police department, Raymond Luth and Gerald Slattery, visited Alicia and Josephina and obtained a description of the offenders and their vehicle. The women did not mention a mustache or a goatee or that the car had a C.B., eight-track tapes or initials on the dashboard. On September 20, 1978, the sisters viewed photographs in two to 10 books and identified no one. At trial Luth testified on cross-examination that Michael’s picture could have been in one of those books.

On September 23, 1978, Alicia and Josephina viewed a lineup and a blue car but made no identification. Both identified a photograph of a blue car with license number TA 7142 and a box of yellow Kleenex in the back window as the car of their attackers.

On October 3, 1978, Michael Guyon was arrested for abducting a 41/2-year-old girl. Over objection of counsel for Michael, the arresting officer was allowed to testify regarding the circumstances of the arrest as long as he did not use the word “abducted.” The officer testified that when he arrested Michael Guyon with the 41/2-year-old girl he was driving a blue car and wearing a black hairnet. A gun and shells were recovered from the floor of the front seat of the car. At trial, Josephina testified that the gun from the car looked like the one her assailant had used. A pocketknife taken from the car was also identified by Josephina.

The officer testified that when the car was impounded it had another knife, wires, a tape deck and tapes on the transmission hump. The parties agreed that evidence of the second knife could not be introduced at trial. A swab of unknown substance from the front passenger seat was submitted to a microanalyst for analysis. He found neither blood nor sperm.

Michael’s wife, Donna Guyon, testified that their car was a 1977 Chevrolet with defroster lines on the back window. It had eight-track tapes, a tape player, a C.B. radio and red wires on the front window relating to the C.B. There were initials, M. D. Z., on the dashboard. On cross-examination, one of the prosecuting attorneys asked whether she had a four-year-old daughter in 1978. Counsel for Michael objected and the objection was sustained.

The arresting officer testified that Michael was wearing a black hairnet when arrested and placed in the police lockup.

On October 4, 1978, Alicia and Josephina viewed a lineup of five black men including Michael. They also viewed his car and the black hairnet taken from him when arrested. The sisters viewed the lineup separately and each identified Michael as the man who had initially accosted them and raped Alicia. Front and side views of the lineup were admitted into evidence.

Josephina testified she identified the car and the hairnet after the lineup. She identified People’s exhibits Nos. 9 to 14, for identification, as pictures of the car. She mistakenly identified pictures of the car she saw on September 23, 1978, as the same car she saw on October 4, 1978, and mistakenly testified that both cars were the same. She had made the same error at the pretrial hearing. She testified that the yellow tissue boxes in the rear windows of the two cars were the same.

Alicia identified People’s exhibits. Nos. 9 to 11 and 14, for identification, as pictures of the car. She testified that the car was not the same car she had viewed on September 23, 1978; that both cars had yellow tissue boxes but that the boxes were different.

Alicia testified that she identified the hairnet and the car before viewing the lineup in which she identified Michael. Investigator Luth testified that he showed the sisters the hairnet and the car and that they identified both. However, none of the police reports mentioned the hairnet. Luth testified, in explanation, that there had been a multitude of reports concerning many things on October 4, 1978. Michael moved for a mistrial based on this remark. The motion was denied. The court also denied repeated requests by counsel for Melvin to question Luth regarding whether, following Michael’s arrest, his wife, Donna, gave Luth information leading to Melvin’s arrest.

On October 7, 1978, Luth contacted the Cleveland police department regarding Melvin. On October 14, 1978, Alicia and Josephina were shown separately eight black-and-white photos including one of Melvin taken on March 1, 1978. Prior to showing the photos, Luth covered all the writing on them with white paper. Both sisters identified Melvin in separate showings.

On October 16, 1978, Luth obtained warrants for Melvin’s arrest. On October 18, 1978, Luth procured a warrant for Melvin for unlawful flight to avoid prosecution. On March 18, 1980, Luth and another investigator brought Melvin from Marion, Illinois. Both Alicia and Josephina identified him separately from a lineup with four other men.

Michael’s and Melvin’s indictments were consolidated on the motion of the State and over the objections of both defendants. Prior to trial, both defendants moved for a severance on the ground that Melvin intended to show that Michael and an unidentified party had committed rapes and kidnapings in the same area of the city and around the same period of time as the offenses against Alicia and Josephina. Melvin alleged that these other acts constituted a modus operandi, as well as tending to prove that he had been misidentified, and thus would be admissible as tending to prove Melvin’s innocence, and, therefore, the defenses of Melvin and Michael were in conflict. Both defendants also moved to sever on the ground that they would be prejudiced by their filial relationship. In response, the State made a motion in limine to preclude the use of evidence of other rapes involving Michael Guyon. Following a hearing, the court granted the State’s motion in limine and denied defendants’ motions.

During trial, the court allowed testimony, objected to by Michael, concerning the circumstances of his arrest including the discovery of a 41/2-year-old girl in his car.

During trial Michael made a motion in limine to exclude admission of a long black kitchen knife, which had no relation to the case, that had been found in his car. Although the State agreed to the motion, at trial the prosecutor asked Michael’s wife if she could identify the knife. She testified she had never seen it before, and it was not admitted into evidence. Nevertheless, during closing argument the prosecutor held the knife up to the jury and claimed that defendant had had it with him during the rapes for reinforcement. Defendant’s objection was sustained.

During the State’s closing argument the prosecutor referred to Melvin’s presence in Marion, Illinois (the location of a Federal penitentiary), when arrested. The prosecutor also referred to the defendants as “jackals *** waiting for their prey,” “barbarians,” and “guards at the gates of hell.” In addition, he stated: “It’s not a responsibility to defend him, he carries with him the presumption of innocence, but that presumption is stripped from them [sic] when the case has been proven, and it has been proven. When you go back to the jury room that presumption of innocence is ripped off of them like any shroud that cowards hide behind.” These remarks were objected to by defense counsel and, in most instances, the objections were sustained. Defendants’ motions for mistrial on the basis of the improper remarks of the prosecutor were denied.

The jury entered verdicts of guilty on all counts and the court entered sentences on the verdicts. Melvin was sentenced to 45 years on each count, the sentences to be concurrent but consecutive to a prior sentence of life imprisonment. Michael was sentenced to 60 years on each count to run concurrently with his prior 60-year sentence. Defendants appeal.

I

We first address the issues raised by defendant Melvin Guyon. Melvin argues that the trial court erred in granting the State’s motion in limine precluding the introduction of evidence of other rapes committed by his codefendant, Michael, and an unidentified third party. It is Melvin’s contention that his absence from these other offenses tends to prove that he was not the perpetrator of the instant offenses. Thus, he contends he was denied his right to a defense.

Although it is within the discretion of the trial court to decide which evidence is admissible, and its decision should not be reversed unless such discretion has been clearly abused (People v. Martinez (1979), 76 Ill. App. 3d 658, 663, 395 N.E.2d 124), our supreme court held in People v. Peter (1973), 55 Ill. 2d 443, 459, 303 N.E.2d 398, cert. denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627, that any circumstances may be put into evidence which tend to make the proposition at issue more or less probable. In the instant cause the issue was whether Alicia and Josephina correctly identified Melvin as the man who raped Josephina. Both women positively and independently identified Melvin as the offender. We do not believe the fact that Melvin was not involved in other rapes in which his brother participated tends to make it less probable that it was Melvin who raped Josephina.

This situation is distinguishable from People v. Outlaw (1978), 67 Ill. App. 3d 327, 384 N.E.2d 898, where this court held that a defendant who was charged with aggravated battery and attempted murder of a police officer had been deprived of his right to a defense by the trial court’s exclusion of the testimony of witnesses to the robbery of a shoe store immediately prior to the shooting, who would have testified that they were unable to identify the defendant as the robber, or as the person who shot the officer in his flight from the store. Because of the obvious connection between the robbery and the shooting in Outlaw, we held that “the exclusion of the testimony of the persons who witnessed the robbery was error.” 67 Ill. App. 3d 327, 331.

In the case at bar there is no established connection between Michael’s other crimes and the one committed with Melvin. At most the introduction of these other crimes could have created speculation in the minds of the jurors that someone else could have been with Michael when the sisters were attacked. Evidence of a speculative nature is of little probative value, and it is within the discretion of the trial court to exclude it. People v. Logan (1980), 87 Ill. App. 3d 351, 408 N.E.2d 1086; People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550.

Melvin argues in addition that he should have been allowed to introduce evidence of the other rapes committed by Michael and an unidentified third party, because they constituted a modus operandi. However, as the State points out, Michael’s most recent conviction was for a rape he committed alone, thus no modus operandi has been established. (See People v. Guyon (1981), 101 Ill. App. 3d 799, 428 N.E.2d 998.) Therefore, we find that the trial court did not abuse its discretion in refusing to admit evidence of the other rapes committed by Michael.

II

Melvin next contends that the court erred in refusing to order a severance of his trial from that of his brother. He argues that in separate trials he would have been allowed to introduce evidence of Michael’s other crimes since there would have been no prejudice to his codefendant. In view of our finding that this evidence was of little probative value concerning the case against Melvin, as well as our finding that these other offenses did not establish a modus operandi as to Michael, this argument is without merit.

It is well established in Illinois that separate trials are required only where the defenses of the codefendant are so antagonistic that a fair trial cannot be assured without a severance. (People v. Brooks (1972), 51 Ill. 2d 156, 281 N.E.2d 326; People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.) The decision as to whether separate trials should be granted is within the sound discretion of the trial court on the basis of the degree of antagonism between the defenses of those being jointly tried. People v. Malaszenko (1979), 76 Ill. App. 3d 1, 393 N.E.2d 1350.

A conclusory assertion that defenses are antagonistic is not sufficient to warrant a severance. (People v. Davis (1976), 43 Ill. App. 3d 603, 357 N.E .2d 96.) There must be a true conflict; such as where each defendant attributes an offense to the actions of the other (People v. Clark (1972), 50 Ill. 2d 292, 278 N.E .2d 782); where each defendant condemns the other and declares the other will testify to facts exculpatory to himself and incriminating to the other (People v. Braune (1936), 363 Ill. 551, 2 N.E .2d 839); where a codefendant’s confession implicating defendant is received into evidence without instructions to the jury limiting its admissibility to the maker of the statement (People v. Sweetin (1927), 325 Ill. 245, 156 N.E. 354); or where each codefendant makes an admission or confession orally and the references to the codefendant applying for the severance are not eliminated from the testimony. People v. Barbara (1946), 395 Ill. 264, 69 N.E.2d 692.

In the instant matter, Melvin claims that he was prejudiced through association because certain evidence was admitted tending to establish Michael’s poor character, which Melvin was not allowed to develop since the trial court had ruled that Michael’s other crimes were not admissible. Specifically, Melvin mentions that Michael was originally identified from a group of mug shots which a witness for the State had testified were shown only to the victims of certain crimes, implying that Michael had been involved in other rapes. In addition, the arresting officer was allowed to testify that Michael had a 41/2-year-old girl in the car with him when he was apprehended, although there was no testimony that the girl had been abducted. Finally, the State elicited testimony that there were “a multitude of reports on October 4, concerning a number of things.” In our opinion these remarks are too ambiguous to have caused prejudice to Melvin. Certainly, they are not antagonistic as defined by case law and, thus, separate trials were not required.

Finally Melvin argues that a severance was necessary because Melvin had once been accused of molesting Michael’s daughter. However, even though this may have caused Michael to feel hostile toward Melvin, defendant offers no concrete manifestations of antagonism resulting from this hostility. Mere apprehension of antagonism is not enough. (See People v. Cart (1981), 102 Ill. App. 3d 173, 429 N.E.2d 553, cert. denied (1982), 459 U.S. 942, 74 L. Ed. 2d 199, 103 S. Ct. 255.) Failure to show .antagonism, combined with independent evidence linking a defendant to a crime negates the necessity of severance. (People v. Malaszenko (1979), 76 Ill. App. 3d 1, 393 N.E.2d 1350.) There was ample independent evidence linking Melvin to the instant offense. Melvin was unequivocally and independently identified by both women from mug shots, as well as from a lineup, and again in court. Thus, no severance was required.

Ill

Melvin next argues that the court erred in restricting the cross-examination of Investigator Luth, since Luth’s apprehension of Michael led to the arrest of Melvin. Melvin alleges that if cross-examination had not been restricted counsel would have been able to show that the critical information leading to Melvin’s arrest was supplied by Michael’s wife, Donna. He contends this would have supported his assertion that he was involved in this case solely because of his relationship with Michael. Thus, he argues, he was denied his right to a defense.

It is well established that a defendant is entitled in cross-examination to develop all circumstances within the knowledge of a witness which explain, qualify, discredit or destroy his direct testimony. (People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201.) The scope and manner of cross-examination are within the discretion of the trial court. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398, cert. de nied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627; People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286.) Its decision in this regard will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to defendant. People v. Halteman.

In the instant matter we do not believe the trial court’s restrictions of the cross-examination of Investigator Luth could have been prejudicial to Melvin. Clearly, the decision of the court rested upon the belief that the possible prejudice to Michael resulting from any further discussion of the circumstances of his arrest was greater than the relevance of those circumstances to the identification of Melvin as Michael’s accomplice.

This cause is readily distinguishable from People v. Strother. In Strother, the court had restricted cross-examination regarding whether the principal prosecution witness, a police informant, was addicted to narcotics. Noting that narcotics addicts are “notorious liars” and that their testimony is “subject to suspicion,” the court stated:

“It is our opinion that inasmuch as [the informant’s] credibility was the crucial factor in the determination of this case, there being, insufficient independent evidence in the record to establish defendant’s guilt, the trial court’s rejection of defense counsel’s request to examine the informant’s arm was an abuse of discretion and prejudicial error. [Citation.]” People v. Strother (1972), 53 Ill. 2d 95, 99.

The testimony of Investigator Luth regarding the circumstances of Michael’s arrest was not “crucial evidence” in the action against Melvin. There was clearly sufficient independent evidence to establish Melvin’s guilt. He was identified by both women on three separate occasions: from his photograph, in the lineup, and again in court. Both women had been with the defendant for over 30 minutes in the early morning hours when it was beginning to grow light. Where identification of a defendant is at issue, the testimony of only one witness is sufficient to convict if she has viewed defendant under circumstances allowing a positive identification. (People v. Gonzales (1978), 60 Ill. App. 3d 980, 377 N.E.2d 91; People v. Davis (1977), 53 Ill. App. 3d 424, 368 N.E.2d 721.) Therefore, it is our opinion that the trial court did not abuse its discretion in restricting the cross-examination of Luth.

Melvin contends that the trial court abused its discretion in restricting his closing argument. Defense counsel had attempted to argue that all of the physical evidence linking Melvin to the crime had been found in the possession of Michael. The State objected to this statement, and the objection was sustained. The character and scope of closing argument are within the discretion of the trial court, and absent an abuse the trial court’s ruling will not be reversed. People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.

We believe that Melvin’s argument was needlessly prejudicial to Michael. The same information could have been relayed to the jury simply by arguing that none of the physical evidence was found in Melvin’s possession without any reference to Michael. Although a defendant has an absolute right to argue his cause in a criminal case, the exercise of that right is subject to the discretionary power of the trial judge to control, within reasonable limits, how that right shall be enjoyed. (People v. Diaz (1971), 1 Ill. App. 3d 988, 275 N.E.2d 210.) Thus, we see no error in this regard.

Furthermore, because of the strength of the independent evidence of defendant’s guilt, contrary to defendant’s assertion we do not believe that any violation of due process occurred.

IV

Melvin next asserts that references to his “other crimes” were prejudicial, denying him a fair trial. He bases this argument (1) on the prosecutor’s remark during trial that a warrant had been issued for Melvin for unlawful flight to avoid prosecution; (2) upon the fact that the police photograph from which he was identified had been allowed to go to the jury, and that two of the jurors were post office employees and the photograph had been displayed in the post office in connection with an F.B.I. manhunt; and (3) on the prosecutor’s remark, “you don’t find him (Melvin) in Marion, Illinois in a hairnet, if they allow that ***.”

Regarding the mention of the warrant and the reference to Melvin’s presence in Marion, it is well established that informing the jury of the consequential steps in the investigation of a crime is necessary and important to the full explanation of the State’s case. (People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174.) Such facts are properly received into evidence. (People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167.) Further, the remarks contained no details as to what criminal activities were involved, and were, in our opinion, too vague to have caused prejudice. See People v. Stacker (1979), 77 HI. App. 3d 302, 395 N.E.2d 997.

As to the police photograph going to the jury, we first note that the printed information had been taped over and that the photographs were the ones Investigator Luth had shown to the two women and from which they had originally identified Michael and Melvin. In People v. Byrd the court stated that police photos are admissible to show the reasonableness of a witness’ identification. Since Melvin’s identification was at issue, we believe the probative value of the photos far outweighed any possible prejudice to him. See also People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816.

Regarding the possibility of prejudice where two jurors were employed at the post office during the period when Melvin’s photograph was displayed there, we first point out that there was no objection to these jurors at voir dire although they informed the court of their employment. In addition, whether they recognized defendant is purely speculative. It has been held that jurors need not be ignorant of the extraneous facts of a case, as long as they are able to put aside their own impressions and base their verdict on the evidence presented at trial. (People v. Logan (1980), 87 Ill. App. 3d 351, 408 N.E.2d 1086.) In view of the overwhelming evidence of Melvin’s guilt, we do not believe the jurors in the instant matter reached a verdict of guilty on the basis of outside knowledge.

V

Melvin asserts that he was deprived of a fair trial by the prosecutor’s comments during closing argument. In his brief on appeal he has organized these comments into seven groups. Without minimizing the importance of any comments during closing argument, for purposes of this opinion we will discuss only those which had the greatest potential for prejudicial effect on the jury.

First, Melvin correctly asserts that the prosecutor’s remarks regarding the reasonable doubt standard were highly improper. The prosecutor stated:

“Every defendant who has ever been convicted in this country, in this state, in this county, in this building, has been convicted beyond a reasonable doubt.”

In People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86, we stated that a prosecutor’s comment, that people throughout the United States were being found guilty beyond a reasonable doubt every day of the week, lessened the State’s burden of proof by implying that reasonable doubt was merely a minor detail. Similarly, in the case at bar, we believe that the prosecutor’s implication that the reasonable doubt standard was a mere formality or ritual tended to reduce reasonable doubt in the minds of the jury to an empty phrase.

Such behavior by the prosecutor cannot be tolerated. A prosecutor is expected to show respect and due regard for defendant’s constitutionally protected right to a fair trial. People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011.

The prosecutor further stated:

“*** [H]e carries with him the presumption of innocence, but that presumption is stripped from them [sic] when the case has been proven, and it has been proven.
When you go back to the jury room that presumption of innocence is ripped off of them like any shroud that cowards hide behind.”

It is a fundamental doctrine of our system of criminal justice that the law presumes a defendant to be innocent until he is proved guilty beyond a reasonable doubt. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) This presumption is founded upon the “first principle of justice, and is intended, not to protect the guilty, but to prevent, so far as human agencies can, the conviction of an innocent person.” (22A C.J.S. Criminal Law sec. 581, at 336 (1961).) We believe that the prosecutor’s characterization of this presumption as a shield or refuge for the guilty demeans our criminal justice system. It is an affront to the law and cannot be tolerated by this court. The fact that defense counsel’s objections to these remarks were not sustained further aggravates the situation.

In addition, during closing argument the prosecutor showed the jury a kitchen knife found in the car when Michael was arrested. This knife had no relationship to the case at bar. It had, in fact, been the subject of an agreed motion in limine. Nevertheless, the prosecutor represented to the jury that the knife had been brought along by defendants for “reinforcement” on the night of the rapes. It can be sufficient error to reverse a judgment if the prosecutor comments on matters not properly in evidence and pertinent to the issues in a case, even if defense counsel’s objections are sustained. People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924; People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

Further, the prosecutor argued to the jury that he would not have allowed any of the State’s witnesses to testify falsely, stating:

“If they had misidentified anyone at anytime, as I stand here, you would have heard it from that stand.
* * *
Mr. O’Brien and I would have had to have been willing to suborn perjury;
* * *
My own integrity comes into play also ***.”

Although a prosecutor may comment on the credibility of witnesses (People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86), he may not inject his personal opinion of defendant’s guilt. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) This is improper and prejudicial final argument. People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256.

Based on these instances alone, there can be no doubt that the State’s closing argument exceeded the bounds of propriety and jeopardized defendant’s right to an impartial trial. In addition we are aware that courts are examining improper prosecutorial argument with vigorous and growing concern. See People v. Clark (1983), 114 Ill. App. 3d 252, 448 N.E.2d 926; People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011; People v. Starks (1983), 116 Ill. App. 3d 384.

In determining whether a prosecutor’s closing comments are prejudicial, reference must be made to the content of the language used, its relation to the evidence and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) Error caused by the prosecutor’s closing argument does not become reversible error unless there is substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.) Thus, despite the indefensible behavior of the assistant State’s Attorney, we are constrained to hold that under the circumstances present in the instant matter, Melvin’s conviction should not be reversed on this ground. As in the Baptist case, we are faced with overwhelming evidence of guilt. Melvin was positively identified by the unimpeached testimony of two eyewitnesses, under circumstances establishing the credibility of that identification. It is clear that the evidence of guilt is so strong that the improper arguments were harmless error beyond a reasonable doubt. See People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254; People, v. Shepard (1983), 114 Ill. App. 3d 598, 449 N.E.2d 222; People v. Battles (1981), 93 Ill. App. 3d 1093, 418 N.E.2d 22.

VI

Melvin contends that the trial court erred in sentencing him to an extended term of 45 years for aggravated kidnaping, since aggravated kidnaping is a Class 1 felony for which an offender may be sentenced to no more than 30 years even under an extended term. (Ill. Rev. Stat. 1979, ch. 38, pars. 10-2, 1005-8-1(a), 1005-8-2(a).) The State concedes that this argument is correct.

In addition, section 5 — 8—2(a) of the Unified Code of Corrections provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense for which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a).)

In People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, our supreme court established that under the statute cited above an offender can only receive an extended sentence for the most serious class of offenses for which he has been convicted. The most serious offenses for which Melvin was convicted were rape and armed robbery, both Class X offenses. Therefore, his extended sentence for aggravated kidnaping must be vacated and this case must be remanded for resentencing in regard to that offense. See People v. Freeman (1982), 104 Ill. App. 3d 980, 433 N.E.2d 974.

Melvin next argues that the court erred in imposing an extended sentence for rape, because that offense allegedly was not accompanied by brutal or heinous behavior indicative of wanton cruelty as is required for the imposition of extended sentence by sections 5— 8 — 2 and 5 — 5—3.2(b) of the Unified Code of Corrections. However, we find that the defendant’s conduct was both brutal and heinous, indicative of wanton cruelty: two young women were abducted by strangers at gun point and held prisoner in an automobile under the additional threat of a knife; they were both brutally raped and forced to witness the rapes of each other; one was left bleeding with her clothing tom; they were robbed of everything but bus fare. In our opinion this indicates wanton cruelty. Thus, extended sentences were warranted.

Melvin further contends that the court erred in imposing sentences consecutive to his term of Federal imprisonment for the murder of an F.B.I. agent. The Unified Code of Corrections provides:

“When multiple sentences of imprisonment are imposed on' a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to *** or for a sentence imposed by any district court of the United States, the sentences shall ran concurrently or consecutively as determined by the court.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8 — 4(a).)

Paragraph (b) of the same statute provides that the court may impose consecutive sentences when it believes that such a term is necessary to protect the public from further criminal activity by the defendant. The basis for this must be set forth in the record. In the instant matter the court stated:

«*** j>ve heard many rape cases and there are rape cases and there are rape cases. I feel this is heinous and repulsive. At least in the material I heard.
I feel an extended term is necessary in this case. I think a long sentence is necessary for one thing, due to the type of crimes we have here, plus it’s necessary to deter others in the community from committing the same types of crimes in the same manner. I think the public demands it and it has a right to demand firm action in a case of this kind.”

From this statement it is obvious that the court believed consecutive sentences were necessary to protect the public as authorized by the statute. Accordingly, we find no error in this regard.

Melvin’s final contention is that his sentence was unfairly disparate to that of his codefendant. However, at the time of his arrest Melvin was serving a sentence for the murder of an F.B.I. agent. Thus, we agree with the State that it is absurd to suggest that his criminal history was superior to that of his brother who had a history of rapes, attempted batteries, murder, and aggravated kidnaping. In our opinion the murder of a member of a law enforcement agency in the performance of his duty is one of the most odious transgressions possible. Thus, the trial court did not abuse its discretion in sentencing Melvin.

VII

We now address the issues raised by Michael Guyon on appeal. Michael first asserts that he was not proved guilty beyond a reasonable doubt. However, as we have stated previously, the clear and convincing testimony of only one eyewitness is enough to sustain a conviction if she has viewed the accused under circumstances permitting a positive identification. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Michael was independently identified by the unimpeached testimony of both Alicia and Josephina in a photo display, from a lineup and again in court. For reasons we have delineated earlier the sisters viewed the accused under circumstances permitting a positive identification.

Michael points out certain discrepancies between the sisters’ original description of Alicia’s rapist and Michael’s appearance at trial. As an example, the attacker had been described as 24 to 28 years old. Michael was 36 years old at that time. There were also certain discrepancies involving weight and facial hair. However, we first note that over two years had passed by the time Michael was brought to trial. Further, this court has previously stated:

“The failure of the victim, within a matter of a few hours of traumatic sexual assaults, to recall infallibly and relate to the police every detail, description and observation does not render her later recollection of a more complete version of the events implausible. Because of the nature of the assaults and the lack of sleep, discrepancies which exist between her original statements to the authorities and her trial testimony are understandable. Such differences as exist between the two versions go only to the weight given the testimony by the triers of fact. [Citation.]” (People v. Utinans (1977), 55 Ill. App. 3d 306, 314-15, 370 N.E.2d 1080.)

Although courts of review have a duty to review the evidence, we are neither required nor permitted to substitute our judgment regarding the weight or credibility of the evidence for that of the jury. In rape cases a jury verdict will not be reversed unless it is so unreasonable and contrary to the manifest weight of the evidence as to raise a reasonable doubt of defendant’s guilt. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288; People v. Utinans.) Our review of the record raises no such doubt. On the contrary, we find the testimony to be both consistent and believable. Nor do we believe errors in the women’s description of the defendant’s car or his gun to be significant. Again, they were matters for the jury to evaluate in reaching their determination. (People v. Guyon (1981), 101 Ill. App. 3d 799, 428 N.E.2d 998.) In our opinion Michael was proved guilty beyond a reasonable doubt.

VIII

Michael next contends that the trial court erred in ruling that the State would be allowed to impeach him with evidence of a prior rape conviction if he testified. He asserts that this prevented him from testifying in his own behalf, thus denying him a fair trial and depriving him of a defense. The Illinois rule regarding the admissibility of prior convictions for impeachment was established in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. In Montgomery, the supreme court adopted Rule 609 of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States which provides that, for purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible if the crime was punishable by death or imprisonment of more than one year and the accused was convicted of such crime within the last 10 years, unless the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. See People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340.

Thus, Michael’s conviction for rape in 1980 was admissible for impeachment purposes since it was a Class X felony punishable by imprisonment for more than one year (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1; Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3), unless the trial judge determined that its probative value was substantially outweighed by the danger of unfair prejudice. Defendant asserts that the trial court failed to perform this balancing test. We disagree. In the case at bar, the record reveals that the admissibility of Michael’s previous rape conviction was argued thoroughly before the court, including a discussion of the Montgomery case. The court concluded that the conviction was probative and would be helpful to the jury in determining Michael’s credibility. Where, as here, it appears in the record that the court is clearly aware of Montgomery, “[I]t must be assumed that the judge gave appropriate consideration to the relevant factors and they need not appear of record. [Citation.]” (People v. Hovanec (1979), 76 Ill. App. 3d 401, 421, 394 N.E.2d 1340; see People v. Johnson (1982), 104 Ill. App. 3d 572, 432 N.E.2d 1232.) According to Montgomery this rule should not be applied rigidly, but flexibly on a case by case basis to allow the trial court to exercise its discretion. People v. Johnson.

A defendant’s decision not to testify is a question of trial strategy. (People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340.) He may not defeat the discretion of the trial court simply by deciding in retrospect that the decision was a poor one, when the trial court’s ruling has been legally correct. (People v. Johnson; People v. Ganter (1977), 56 Ill. App. 3d 316, 371 N.E.2d 1072.) Thus, we find Michael’s argument in this regard to be without merit.

IX

Michael next contends that he was deprived of a fair trial by the prosecutor’s erroneous comments and arguments during trial and in closing argument. As in the case of his codefendant, Melvin, the prosecutor’s remarks regarding reasonable doubt, the presumption of innocence and the prosecutor’s own integrity were unquestionably improper and certainly would have jeopardized the right of any defendant to a fair trial. However, again similarly to Melvin, Michael’s guilt was established by overwhelming evidence. Prosecutorial error does not become reversible error unless there is substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.) In the instant case there was overwhelming evidence of the guilt of Michael. As in the case against Melvin, Michael was positively identified by the unimpeached testimony of two eyewitnesses. The credibility of that identification was clearly established. Therefore the improper arguments were harmless error beyond a reasonable doubt. People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.

X

Finally, Michael argues that the prosecutor improperly referred to other crimes he had allegedly committed, thereby causing him serious prejudice. However, our review of the record establishes that the references to other crimes allegedly committed by Michael were made principally in connection with his original apprehension, in the course of a police search for a missing child. It is well established that informing the jury of the consequential steps in the investigation of a crime is necessary to the full explanation of the State’s case. (People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167; People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174.) It is a necessary adjunct to the State’s case in explaining why defendant was arrested. (People v. Harper (1981), 94 Ill. App. 3d 298, 418 N.E.2d 894; People v. Byrd.) Furthermore, since the prosecutor did not go into the details of any other offense, we find his remarks too ambiguous to have caused substantial prejudice. See People v. Stacker (1979), 77 Ill. App. 3d 302, 395 N.E.2d 997.

Regarding the testimony elicited from the police investigator regarding reports on Michael concerning other offenses, defense counsel’s objections were sustained and the questions were stricken. The jury was properly instructed to disregard testimony which had been stricken. We believe this was sufficient to cure any harm to the accused. People v. Lindsay (1978), 67 Ill. App. 3d 638, 384 N.E.2d 793.

Accordingly, this case is affirmed except as to the sentencing of Melvin Guyon for aggravated kidnaping. It is remanded for proper sentencing as to that offense.

Affirmed in part; remanded in part.

McNAMARA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE GAMBLE, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 370
    Opinion filed August 23, 1983.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant;
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

The sole question presented by this appeal is whether defendant’s equal protection rights were violated when he was involuntarily committed to a Department of Mental Health and Developmental Disabilities (Department) facility upon his acquittal of three counts of aggravated battery by reason of insanity. We affirm the circuit court’s commitment order.

At trial, after jury waiver, stipulated evidence revealed that on March 26, 1981, defendant struck and kicked two paramedics and one police officer who were attempting to place him in an ambulance. That evidence further presented the conclusion of psychiatric examinations to the effect that defendant was legally insane at the time of the alleged offenses because he substantially lacked the capacity to appreciate the criminality of his acts and was unable to conform his conduct to the requirements of the law. The court found that although defendant committed the acts charged, he was innocent by reason of insanity.

In accordance with section 5 — 2—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)), defendant was ordered to undergo an examination for purposes of determining whether he was subject to involuntary admission or in need of mental health services. Pursuant to his motion, defendant was examined by the Psychiatric Institute of the Circuit Court of Cook County rather than the Department. At a section 5 — 2—4(a) hearing, psychiatrist Robert Reifman, M.D., testified that on the day of examination, defendant was suffering from schizophrenia currently in remission, but was in need of mental health services on an inpatient basis. He had seen defendant previously in 1979, when the latter was charged with a battery offense, and found him to have been suffering from schizophrenia and to have constituted an immediate danger to himself and others. He had a history of “institutionalizations” and could not function outside them without resorting to drugs and violence.

A second psychiatrist, In Foo Lin, M.D., denied defendant’s need for inpatient treatment, and believed that defendant should be placed in an outpatient program for alcoholism and drug abuse, provided he cooperated with authorities. Following the hearing, the court found that defendant: was not subject to involuntary admission to an institution for treatment; reasonably could be expected to inflict physical harm upon himself or another; and was in need of inpatient mental health treatment. Defendant was committed to a Department facility for a period not to extend beyond September 25, 1983. The facility director was given 30 days to file with the court a treatment plan evaluating defendant’s progress and was ordered to file such a plan every 60 days thereafter.

The principal defense argument raised is that the instant statutory scheme unconstitutionally permits a lesser burden of proof for an involuntary commitment to the Department of individuals found not guilty of a crime by reason of insanity than for the involuntary commitment of all other individuals. In Illinois, a defendant may be acquitted of a criminal offense by reason of insanity if two events occur: (1) the evidence must raise a reasonable doubt as to defendant’s sanity; and, (2) the State must be unable to satisfy its burden of showing defendant’s sanity beyond a reasonable doubt. People v. Foster (1979), 76 Ill. 2d 365, 378-79, 392 N.E.2d 6; People v. Redmond (1974), 59 Ill. 2d 328, 336-38, 320 N.E.2d 321; People v. Gardner (1981), 97 Ill. App. 3d 854, 856, 424 N.E.2d 95.

The challenged statute, section 5 — 2—4(a) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)), provides that an insanity acquittee shall be committed to a mental health facility if found by the court to be “subject to involuntary admission or in need of mental health services on an inpatient care basis.” (Emphasis added.) The accentuated phrase applies to an insanity acquittee “who is reasonably expected to inflict physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)(1)(B).) Findings of the court shall be established by clear and convincing evidence. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(g).) The initial order for admission of an insanity acquittee may not exceed the maximum length of time that the acquit-tee would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).) Within 30 days after admission and every 60 days thereafter, as long as the initial admission order remains effective, the facility director must file a “treatment plan” with the court. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).

The standard for involuntarily committing nonacquittees is different than that described above. Under the Mental Health and Development Disabilities Code (Ill. Rev. Stat. 1981, ch. 9D/2, par. 1 — 100 et seq.), an adult may be involuntarily committed by court order provided there is a minimum finding, supported by clear and convincing evidence, that the adult is “subject to involuntary admission.” (See Ill. Rev. Stat. 1981, ch. 91½, pars. 3-700, 3-808, 3-811, 3-812.) An adult so committed must be proven “mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future" or is unable “to guard himself from serious harm.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 91½, pars. 1 — 119(1), (2).

The crux of defendant’s argument is that the legislative scheme creates a double standard in violation of his equal protection rights because an insanity acquittee may be committed without being “mentally ill” and without a reasonable expectation that he would inflict “serious” physical harm in the “near future,” as in the case of an involuntary nonacquittee. Insanity acquittees, however, belong to a special class of persons whose dangerousness has been demonstrated by the criminal acts committed, thereby justifying additional safeguards prior to their release from detention. (People v. Valdez (1980), 79 Ill. 2d 74, 82-84, 402 N.E.2d 187; People v. Thiem (1980), 82 Ill. App. 3d 956, 403 N.E.2d 647; Chase v. Kearns (Me. 1971), 278 A.2d 132, 138.) A similar approach recently was taken by the United States Supreme Court in Jones v. United States (1983), 463 U.S. _, 77 L. Ed. 2d 694, 103 S. Ct. 3043, where it was held that insanity acquittees could be involuntarily committed based on a “preponderance of the evidence” standard, even though clear and convincing evidence of mental illness was needed to commit nonacquittees, because of the “widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” 463 U.S. _, _, 77 L. Ed. 2d 694, 709, 103 S. Ct. 3043, 3052-53.

The classifications created by the enactments involved here are neither unreasonable nor irrational. Insanity acquittees such as defendant have themselves advanced insanity as a basis for their conduct, which has been found to have constituted criminal offenses beyond a reasonable doubt. In contrast, nonacquittees have not been adjudicated to have injured society by the performance of a criminal act. Their conduct may be perceived by some as abnormal and symptomatic of a mental or emotional disorder; nonetheless, it may be merely idiosyncratic, yet within the range of acceptable behavior. (See Addington v. Texas (1979), 441 U.S. 418, 426-27, 60 L. Ed. 2d 323, 331, 99 S. Ct. 1804, 1809-10.) The legislature here rationally and reasonably may have believed that, since criminal acquittees have already revealed their dangerous propensities, it is unnecessary to show that they would inflict “serious” physical harm in the “near future” before involuntarily committing them to a mental health facility. See Warren v. Harvey (2d Cir. 1980), 632 F.2d 925, 931-32; United States v. Ecker (D.C. Cir. 1976), 543 F.2d 178,199.

It must also be observed that the statute requires a determination that the acquittee “would benefit from inpatient care or is in need of inpatient care” as a prerequisite to commitment (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)(1)(B)), thereby insuring that an insanity acquittee’s freedom will not be curtailed unless he is in need of inpatient treatment. Further, the distinction drawn between those who are “mentally ill” and those who “would benefit by inpatient care” in section 5 — 2—4(a) (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 2—4(a)(1)(A), (B)) does not render it unconstitutional. There has been no prior adjudication of any kind respecting the sanity of nonacquittees. With regard to acquittees, however, a prior tribunal has determined that a reasonable doubt exists as to their sanity. (People v. Foster.) The Illinois definition of insanity is quite narrow (see Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(a)); a defendant may not fall within the purview of the. legal definition of insanity, yet he may be afflicted by a “mental illness” (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(c)). Given the narrowness of this insanity classification, a finding that the acquittee “would benefit from inpatient care” provides a sufficient foundation for commitment. Rigid constitutional principles which may undermine legislative attempts to find an acceptable solution to a complex problem should not be established, particularly in view of limited scientific understanding of the criminally insane. Therefore, we conclude that the procedures and distinctions established in this legislative scheme are not violative of the equal protection clause.

The precedent primarily relied upon by defendant, Baxstrom v. Herold (1966), 383 U.S. 107, 15 L. Ed. 2d 620, 86 S. Ct. 760, and Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, is inapposite, since neither case involved the class at issue here, namely, persons acquitted of criminal offenses by reason of insanity.

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

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.


author: JUSTICE VAN DEUSEN

text:
    ROBERTA KYKER, Petitioner-Appellant, v. WINFORD H. KYKER, Indiv. and as Ex’r under the Will of Lillie R. Kyker, Deceased, et al., Respondents-Appellees.
    Second District
    No. 82 — 831
    Opinion filed August 26, 1983.

      Charles T. Beckman, of Keller, Magdich & Beckman, EC., of Dixon, for appellant.

      Craig E. McGuire, of Polo, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The petitioner, Roberta Kyker, appeals from an order of the trial court that dismissed her petition to contest the validity of the will of her grandmother, Lillie Kyker, on the ground that the petitioner’s acceptance of a benefit under a provision of the will precluded her from maintaining the instant will-contest action.

On appeal, Roberta contends that (1) her temporary acceptance of a bequest under the will, which she tendered back to the executor of the estate after she had filed the will-contest proceeding and after her petition to contest the will had been dismissed, should not estop her from contesting the will where none of the beneficiaries under the will was prejudiced by her temporary acceptance of the bequest; and (2) equitable estoppel may not be invoked as a shield unless the party claiming equitable estoppel demonstrates that he relied on the conduct to his prejudice.

With regard to the second issue, the short answer is that the doctrine of equitable estoppel was not a defense raised by the respondents nor relied upon by the trial court in making its decision in this matter. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse and who on his part acquires some corresponding right. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 279.) Equitable estoppel must be pleaded to be available (Chicago Budget Rent-A-Car Corp. v. Maj (1972), 5 Ill. App. 3d 265, 267-68; Clark Equipment Co. v. Schenck (1962), 34 Ill. App. 2d 249, 253), and respondents did not plead such equitable estoppel but, rather, moved to dismiss the petition on a different equitable basis. They alleged that petitioner had admitted the instrument under which she took to be the will of the testator by her acceptance of the bequest thereunder and was thereby precluded or estopped from attacking its validity because of her election to take under it. (See Remillard v. Remillard (1955), 6 Ill. 2d 567, 571; Lloyd v. Treasurer of the State of Illinois (1948), 401 Ill. 520, 525-26.) Equitable estoppel in the sense urged by plaintiff as her second ground on appeal was simply never an issue in this case.

We turn then to a consideration of petitioner’s principal contention on appeal.

The facts underlying this cause which are pertinent to the present appeal are not in dispute. Lillie Kyker died testate on May 23, 1981. In a one-page will, dated May 19, 1981, she devised the totality of her property and material assets to various heirs and legatees. Under the provisions of her will, she bequeathed her son, Gene Kyker, $5,000; her granddaughter, Roberta Kyker, the petitioner in this cause, $500; various other grandchildren $500 each; and certain friends either $500 or $100 each. In addition, she left the remainder of her estate to her son, Winford Kyker, whom she also appointed as executor of her will. In asking that the will be admitted to probate and that letters testamentary issue, Winford Kyker estimated that the personal property of the estate was valued at $30,000 while the real property was worth $235,000.

The court admitted the will to probate on June 17, 1981, and appointed Winford Kyker as executor of the estate of the deceased. On July 15, 1981, the executor issued a check to the petitioner in the sum of $500 in satisfaction of her bequest under the will. Subsequently, petitioner filed a two-count petition to contest the will (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1) on September 24, 1981. The petition named Winford Kyker, individually and as executor, and the rest of the devisees under the will as respondents in this action. In her petition she alleged that the will was invalid for two reasons: (1) that her grandmother lacked the testamentary capacity to execute the will; and (2) that Winford Kyker had exerted undue influence and control over the testator which deprived her of her free will. On October 23, 1981, Winford Kyker, both individually and as executor of the estate, filed an answer to the petition in which he denied the allegations that formed the basis of the petitioner’s claims.

Early in January 1982 the petitioner endorsed and cashed the $500 check she had received from the executor of the estate the previous July. The executor then, upon due notice, filed a motion to withdraw his answer, and he filed a motion to dismiss the petition in which he asserted that the petitioner was estopped from maintaining the will contest action because she had accepted the benefits of the will. On April 5, 1982, the trial court granted the executor leave to withdraw his answer and also granted the motion to dismiss. Petitioner and her attorney were not present on April'5, 1982, because of inclement weather.

On May 4, 1982, the petitioner filed a motion in which she indicated for the first time that she wished to tender back the bequest and sought a rehearing and vacatur of the April 5, 1982, order. On May 14, 1982, the trial court vacated the order of April 5 and, on June 16, 1982, granted petitioner leave to tender the $500 bequest back to the estate; the court also denied respondent’s motion to dismiss. The petitioner then tendered a check to the estate, which the estate refused to accept. On July 16, the executor filed a motion requesting that the trial court reconsider its rulings and grant the motion to dismiss the will contest petition. After hearing arguments of counsel, the court below reconsidered its earlier order, reversed itself, and again dismissed Roberta Kyker’s petition on September 21, 1982. Thereafter, the petitioner filed a timely notice of appeal.

The well-settled equitable doctrine in this State, which the parties to this appeal recognize, is that any person who voluntarily accepts a beneficial interest under a will is held thereby to ratify and confirm the entirety of the will which conferred the benefit. In other words, the beneficiary may not accept a bequest of the testator and at the same time set up any right or claim which would defeat or prevent the full operation of the will. (Remillard v. Remillard (1955), 6 Ill. 2d 567, 571; Schlimme v. Schlimme (1936), 364 Ill. 303, 305; Friederich v. Wombacher (1903), 204 Ill. 72, 76; Burnet v. First National Bank (1957), 12 Ill. App. 2d 514, 529; see Lloyd v. Treasurer of the State of Illinois (1948), 401 Ill. 520, 526; Burns v. First National Bank (1922), 304 Ill. 292, 296; In re Estate of Johnson (1976), 39 Ill. App. 3d 246, 251.) By accepting the benefits, the legatee admits the instrument to be the will of the testator, and she cannot both take under it and make a claim against its terms. (Chaney v. Baker (1922), 302 Ill. 481, 484; Fishburn v. Green (1920), 291 Ill. 350, 353; In re Estate of MacLeish (1977), 46 Ill. App. 3d 957, 961.) The result is that once a beneficiary has accepted a bequest under the will, she will be estopped from asserting any claim inconsistent with the validity of that will. In re Estate of Johnson (1976), 39 Ill. App. 3d 246, 251.

The general rule of preclusion or estoppel to attack the validity of a will under which a beneficiary has accepted a bequest is subject to two well-recognized qualifications or exceptions. First, acceptance of a bequest under a provision of the will must have been made with full knowledge of the relevant facts and circumstances (see Elmore v. Carter (1919), 289 Ill. 560, 562; Dougherty v. Gaffney (1909), 239 Ill. 640, 643; In re Estate of MacLeish (1977), 46 Ill. App. 3d 957, 961, citing Wilbanks v. Wilbanks (1856), 18 Ill. 17, 21), including the contents of the will and the circumstances surrounding execution of the will (In re Estate of MacVicar (Iowa 1960), 104 N.W.2d 594, 598; see Tennant v. Satterfield (W. Va. 1975), 216 S.E.2d 229, 233), and must not have been procured or induced by fraud or mistake (Annot., 28 A.L.R.2d 116, 154 (1953); 36 Ill. L. & Prac. Wills sec. 172, at 256 (1958); cf. In re Estate of King (1923), 310 Ill. 90, 97). Second, even though a person accepts a benefit under the will, she is not precluded from questioning the validity of any provisions that are contrary to the law or public policy. Chaney v. Baker (1922), 302 Ill. 481, 484; Elmore v. Carter (1919), 289 Ill. 560, 562; In re Estate of Gerbing (1974), 22 Ill. App. 3d 454, 458, aff’d in part and rev’d in part on other grounds (1975), 61 Ill. 2d 503.

Petitioner does not seek to come under the protective banner of either of these exceptions. First, she asserted in her will contest petition that the testator did not possess the requisite testamentary capacity to execute the will and that Winford Kyker executed undue influence over the testator. At the time the petitioner evidenced her unequivocal acceptance of the bequest by cashing the $500 check that represented the full amount of her legacy under the will, her action contesting the will had been on file for over three months. Thus, it is clear, given the two grounds of her petition, that she was fully aware of the circumstances surrounding the execution of the will that she alleged in her original pleading in this cause. (Compare In re Estate of MacVicar (Iowa 1960), 104 N.W.2d 594, 598-99; Medill v. Snyder (1899), 61 Kan. 15, 19, 58 P. 962, 963-64.) Second, as to the exception allowing for questioning the validity of any provisions on the grounds that they are violative of the law or public policy, petitioner has not challenged any portion of the will on that basis.

A possible third exception to the general rule of estoppel recognized in some jurisdictions is the timely tender or repayment of the benefits received under the will (In re Estate of MacVicar (Iowa 1960), 104 N.W.2d 594, 598; Annot., 28 A.L.R.2d 116, 154, 157-66 (1953)) if temporary acceptance of the bequest under the will did not prejudice other parties interested in the estate (Annot., 28 A.L.R.2d 116, 158 et seq. (1953); 80 Am. Jur. 2d Wills sec. 899, at 83 (1975)). It has been stated that the better view is that, in order to permit a contest of the will, the return of or an offer to repay a legacy should be made prior to instituting the contest proceeding. (80 Am. Jur. 2d Wills sec. 899, at 83 (1975).) However, the failure to proffer the benefits prior to the filing of the lawsuit is not an absolute bar to the maintenance of the will contest action. (In re Estate of Burrough (D.C. Cir. 1973), 475 F.2d 370, 373.) At least one court has determined that an offer to return a bequest was sufficient to permit the beneficiary to maintain the will contest action where the tender was made in her pleading and under circumstances where the legatee had not been aware, at the time she accepted the bequest, of the facts she later cited to show the testator’s testamentary incapacity. Medill v. Snyder (1899), 61 Kan. 15, 19, 58 P. 962, 963-64.

We have found no cases recognizing this third exception to the general rule in Illinois, nor has petitioner cited any such authority. However, even if such an exception were recognized in this State, petitioner would not fall within that exception, since the tender of her bequest was not timely.

Petitioner received her bequest in the form of a check on July 15, 1981. On September 24, 1981, when petitioner filed her petition to contest the will she had full knowledge concerning the circumstances surrounding the will and the estate, yet she did not return the check prior to commencement of her suit or offer to return it as part of her pleadings. Here, the petitioner with full knowledge elected to accept her benefits under the will more than three months after she had filed her will contest action and did not tender the return of those benefits until after the respondents had moved to dismiss her petition contesting the will and after the court had granted that motion.

Petitioner’s contention, however, is even broader. She asserts that the general rule should be subject to an exception that where a legatee tenders back a bequest and no one is prejudiced, preclusion or estoppel no longer applies. This exception would apparently apply without regard to whether or not the tender is made in a timely manner or the election to accept was made with full knowledge.

The sole Illinois case cited by the petitioner in support of this contention is In re Estate of MacLeish (1977), 46 Ill. App. 3d 957. MacLeish in no manner supports petitioner’s position. In MacLeish, the court held that under the circumstances of that case the plaintiff who had filed the will contest had not made any real election to accept the benefits under the will. The case specifically gave approval to the proposition that, if a legatee or devisee does not have full knowledge of the circumstances under which he takes and an election is made in actual ignorance of material facts, it will not preclude the party from exercising the right anew upon obtaining full information. 46 Ill. App. 3d 957, 961.

Relying upon American Law Reports, petitioner also asserts that courts of other jurisdictions recognize “that tender or repayment of benefits may be invoked as an exception to the general rule where no prejudice has resulted to other interested parties from the contesting legatee’s temporary acceptance of the benefits.” (Annot., 28 A.L.R.2d 116, 158 (1953).) The cases cited in support of this statement, however, all contain requirements that the tender be made promptly or in the absence of unreasonable delay. As we have already pointed out, the tender in the present case was not timely.

Although not argued by the petitioner on appeal, we are aware that some courts of other jurisdictions have held that the repayment of the benefits received under a will that is later challenged as invalid is not required where the contestant’s share as heir in the event of intestacy would equal or exceed the amount of the legacy under the challenged will. (In re Estate of Burrough (D.C. Cir. 1973), 475 F.2d 370, 373 n.8; In re Will of Peacock (1973), 18 N.C. App. 554, 555-56, 197 S.E.2d 254, 255.) In a limited sense this is the lack of prejudice argument advanced by petitioner and is similar to that apparently made and rejected in In re Estate of MacLeish (1977), 46 Ill. App. 3d 957, 961. We agree with the MacLeish court that acceptance of such a position would require the court to speculate as to what share of the estate the contestant would be entitled to under another will or by intestacy in the event that the challenged will is held to be invalid. We find no support for such a position in Illinois case law.

In sum, lack of prejudice alone is not sufficient to permit the rescission of an election to accept benefits under a will made by one with full knowledge of the circumstances. This is not to say that a beneficiary should not be granted a reasonable time after the receipt of a bequest in which to make an election to accept or reject it and be permitted to reject it as long as she acts within a reasonable period of time and without prejudice to other parties in the estate. However, where, as here, the beneficiary has made an election to accept the benefits of a will with full knowledge of the relevant facts and circumstances and without that election being induced by fraud or mistake, she is bound by that election and cannot change her mind and be permitted to contest the will by tendering back those benefits.

The order of the trial court dismissing the petition of Roberta Kyker to contest the will of her grandmother, Lillie Kyker, is affirmed.

Affirmed.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD KONRAD, Defendant-Appellant.
    First District (1st Division)
    No. 83 — 0085
    Opinion filed August 22, 1983.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Bomba, Assistant Public Defender, of counsel) for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thalia B. Photos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Ronald Konrad (defendant) was charged with burglary by an information filed October 13, 1981. On May 10, 1982, upon his plea of guilty, he was sentenced to probation for five years in conjunction with his entry to a drug abuse program referred to as T.A.S.C. (Treatment Alternatives to Street Crimes). On September 15, 1982, a petition was filed alleging violation of probation by the defendant in that he failed to complete his treatment through the T.A.S.C. Drug Abuse Program. After a number of hearings, defendant again appeared before the court on December 10, 1982. The court sentenced defendant to an extended term of eight years. Defendant appeals.

Defendant concedes he left the T.A.S.C. Drug Abuse Program and thereby violated his probation. However, defendant urges his sentence to an extended term was improper because his original probation sentence contained a finding which precluded an extended-term sentence.

During the hearing of May 10, 1982, the trial court was most thorough and careful in acceptance of the plea of guilty to burglary. The court explained each step in the proceedings to defendant with fine detail. The defendant was able to take advantage of the opportunity of the T.A.S.C. program by virtue of the statutory authority contained in the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91½, par. 120.1 et seq.), which is itself a part of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 1 — 100 et seq.).

There are two pertinent portions of the Dangerous Drug Abuse Act. Section 9 provides for admitting the defendant to treatment without a finding of guilty and “with the consent of the State’s Attorney” continuing “the pending criminal proceeding against him *** without final disposition” to be dismissed if the treatment has been satisfactorily completed. Ill. Rev. Stat. 1981, ch. 91½, par. 120.9.

Section 10 provides, for a defendant to be placed on probation provided that he elects to submit to treatment and is accepted for treatment by a properly “licensed program designated by the Commission” such as T.A.S.C. Under this section the defendant may be placed on probation and admitted to the treatment in conjunction with probation. The Act then expressly provides (Ill. Rev. Stat. 1981, ch. 91½, par. 120.10):

“Failure of an individual placed on probation and under the supervision of a licensed program designated by the Commission to observe the requirements set down by a licensed program designated by the Commission shall be considered a probation violation. Such failure shall be reported by a licensed program designated by the Commission to the probation officer in charge of the individual and treated in accordance with probation regulations.”

The difference between these two sections of the statute (Ill. Rev. Stat. 1981, ch. 91½, pars. 120.9, 120.10) is apparent and certain. It is equally certain, and the trial court stressed and repeated the point, that defendant was being placed on probation and his probation was contingent upon his completion of the T.A.S.C. program. The court carefully and expressly told the defendant:

“If you don’t complete the program you will be brought before me on a violation of probation for sentencing.”

The defendant, who spoke clearly and well, immediately responded:

“MR. KONRAD: I understand, sir.”

The court also expressly told the defendant he was subject to the possibility of an extended sentence in the event he violated his probation. It is well to observe that at the time of this sentence defendant was already on parole for an unrelated criminal act. He was not a stranger to court proceedings. The defendant pleaded guilty with a clear understanding of his problem and the nature of his plea. The assistant State’s Attorney expressly stated that his office was opposed to allowance of probation.

On September 15, 1982, a petition was filed which alleged defendant had violated a condition of probation in that he had left the program against the advice of the T.A.S.C. staff. Appended to the petition is a sworn letter advising the probation department that defendant decided he no longer wished to remain in treatment and he left the program on September 5, 1982, against the advice of the staff. In due course a warrant issued and defendant was brought before the trial court.

Defendant was represented by his own counsel. The attorney argued to the court at some length that the defendant was improperly sentenced by the trial court under section 10, and that he should have been sentenced under section 9 of the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1981, ch. 91½, pars. 120.9, 120.10.) As has already been shown, this contention has no merit. Since the assistant State’s Attorney refused to consent to continuation of the proceedings to permit defendant to obtain treatment, the trial court necessarily proceeded under section 10. The trial court so stated specifically.

Also, the point now relied upon by defendant before this court, that the original probation sentence in and of itself precluded an extended term, was never raised before in the trial court. This point, therefore, is waived and should not be considered. (People v. Godinez (1982), 91 Ill. 2d 47, 56-57, 434 N.E.2d 1121; People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) We will, however, consider the argument which is readily refuted.

The pertinent statute above quoted provides specifically that where a defendant placed on probation fails to observe the requirements of the commission on mental health created by the statute, the failure by the defendant is to be reported to the probation officer and such failure is to be “treated in accordance with probation regulations.” Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.

The applicable probation statute expressly provides that if the court finds a violation of probation the court may continue the offender on the existing sentence “or may impose any other sentence that was available under Section 5 — 5—3 [Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3] at the time of initial sentencing.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—4(e).) The result is that when the defendant was before the trial court and the court found defendant had violated his probation, the court was empowered to impose any sentence that it could legally have entered at the time of the initial hearing on the information held May 10,1982.

However, defendant refers us to the statute on probation. He argues that the essential statutory findings by the court when probation was granted to the effect that defendant’s imprisonment was not necessary to protect the public and probation would not deprecate the seriousness of the offense operated to prevent a sentence of imprisonment. The pertinent statute provides (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-1):

“Sentences of Probation and of Conditional Discharge and Disposition of Supervision, (a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

Defendant completely forgets the provision that resentencing after revocation of probation is necessarily under the original provision for sentencing. (See Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 6—4(h), 1005 — 4—1 et seq.) In other words, when the trial court found defendant guilty of violating his probation by leaving the T.A.S.C., and revoked the probation, it followed necessarily that the situation reverted to its condition immediately prior to the sentencing which took place on May 10, 1982. Thus, any statutory sentence was then open and available to the trial court. See also Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—4(e).

The able and careful trial judge then considered the criminal background of the defendant. The defendant has a lengthy criminal record. Prior to defendant’s conviction for burglary on May 10, 1982, defendant was convicted of robbery, a Class 2 felony (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(b)), in 1980; and burglary, a Class 2 felony (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(b)), in 1977. In fact, defendant’s counsel stated in open court that there were two prior convictions and he added, “I am not arguing that point.”

The pertinent statute provides that an extended term may be imposed where a defendant is convicted of a felony “after having been previously convicted in Illinois of the same or greater class felony, within 10 years *** and [of which] charges are separately brought and tried and arise out of different series of acts ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) Consequently the trial court had a clear legal right to sentence defendant to an extended term.

We gather from defendant’s brief that he concedes, or virtually concedes, that there may be, and should be, a sentence of imprisonment in this case. Defendant would be correct in making this concession. Since defendant had been convicted of more than one Class 2 felony within 10 years prior to the offense with which he was charged, he was not eligible for probation when he appeared before the court on May 10, 1982. See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(2)(F). See also People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259; People v. Cain (1982), 106 Ill. App. 3d 409, 410-11, 436 N.E.2d 32.

The ordinary prison term for burglary may be fixed between three and seven years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(5).) The extended term for burglary may be fixed between seven and 14 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)(4).) As above demonstrated, the imposition of an extended term is proper in the instant case. In fact defendant’s previous record with commission of two previous Class 2 felonies within the 10-year period, virtually demands an extended term. Certainly the trial court acted well within the reasonable bounds of discretion in imposing the extended term and in designating a comparatively low sentence of eight years. (People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861; People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344; and, of course, People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, and various cases cited in these authorities.) Also, the trial judge ordered that defendant receive a credit for time served on probation. The court could have provided otherwise. See Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-4(h).

We conclude that the defendant has been treated most reasonably and with complete fairness by the trial judge. The judgment appealed from is accordingly affirmed.

Judgment affirmed.

McGLOON and CAMPBELL, JJ., concur.