author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH HARBOLD, Defendant-Appellant.
    First District (5th Division)
    No. 82—616
    Opinion filed May 18, 1984.

      Julius Lucius Echeles and Frederic F. Cohn, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Marie Quinlivan, Assistant State’s Attorneys, and Matthew J. Egan, Special Assistant State’s Attorney, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) and sentenced to an extended term of 75 years’ imprisonment. On appeal, defendant contends that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt, and that he was denied his sixth amendment right to a fair trial by: (1) improper comment; (2) erroneous admission of irrelevant and hearsay “motive” testimony; (3) erroneous admission of irrelevant scientific and physical evidence; (4) improper references to weapons; and (5) improper jury instructions. For the reasons stated below, we reverse the judgment of the trial court.

The following facts were adduced at trial. At 6 p.m. on March 31, 1981, Frank Paul left his offices at 747 Devon Avenue, Park Ridge, Illinois, to dine at a restaurant across the street. At about 6:45 p.m. he returned to his offices, known as Interport, Inc. At about 7:15 p.m., the restaurant owner and two friends observed Frank Paul staggering toward the restaurant, drenched in blood. Paul’s last words were “I have been attacked.” Paramedics took Paul to Resurrection Hospital, where he was pronounced dead at 8:35 p.m.

The autopsy revealed seven stab wounds and ten cutting wounds. According to the pathologist, cutting wounds on the right forearm and wrist indicated that the victim attempted to defend himself by “raising his forearm, hand, or grabbing the knife.” The pathologist testified that the victim’s injuries could have been caused by any knife with a blade at least four inches long.

Park Ridge Police Officer Douglas Dostert arrived at the restaurant while the paramedics were still attending to Frank Paul. He went to Interport where he was joined by other officers. They found the front door locked and the rear door standing open. There was no sign of a forced entry; no one was inside. A telex machine was in the “on” position, as were some of the lights. The victim’s jacket and wallet were undisturbed on a hanger near the victim’s desk. An employee of Interport testified that nothing of value had been taken from the offices. Dostert saw a large amount of blood on the floor and carpeting.

The Park Ridge police began a search of nearby streets, alleys, sewers and roofs at 7:30 p.m. Assisted by Cook County sheriff’s police, the Chicago police canine unit, and the city’s fire and public works departments, they searched an 18-block area, a park and a shopping center by 5 a.m., April 1. They recovered a tweed and suede hat, a pen-type flashlight and one latex glove in the alley behind Interport. Officers also recovered a number of blood-stained items on the 1200 block of South Fairview Avenue, less than a block from the Interport offices. They found pantyhose on the sidewalk, a camel-colored sportcoat under a parked van, a knife in a catch-basin, and a second latex glove in a different catch-basin. The blood on the knife and second glove was wet; this glove.had.been cut with a knife in the palm and thumb area. A Park Ridge police evidence technician photographed and inventoried the items recovered from South Fairview Avenue and from the alley adjacent to Interport. Fingerprint impressions and blood samples were prepared from these items and from the Interport offices.

On April 7, 1981, investigators went to the Century Medical Labs at 8347 South Stoney Island in Chicago. There they saw the defendant and observed bandages on his left hand between the thumb and index finger. “Almost immediately” after investigators looked at the bandages, defendant placed his left hand in the pocket of his examining coat, where he kept it until the investigators left. Two employees of the First State Bank of Park Ridge, corroborated by bank security photographs, testified that they did not notice any cuts or bandages on defendant’s hands on the morning of March 31,1981.

On April 10, 1981, investigators executed a search warrant for defendant’s residence at 5025 West Dakin in Chicago. They spoke with defendant’s sister, Marlene Harbold, and asked whether she had noticed any injuries to her brother. She said that his left hand was bandaged, and that he had explained to her that he had cut his hand while using an electric saw to cut a door. She also said that she had seen a circular saw and a door, both with blood on them, in the basement.

The circular saw and door were photographed, seized and inventoried along with defendant’s automobile and several other items. When asked what was found during the search, Officer’ Terrence Conley said “*** a gg snub-nosed revolver.” After a hearing in chambers, the court sustained defendant’s objection and instructed the jury to disregard any reference to a weapon. However, Conley was questioned extensively concerning knives and sheaths found at defendant’s residence.

Pursuant to a subpoena, the defendant presented himself for examination by Dr. Joseph Danna on April 10, 1981. Dr. Danna observed two cuts; one on the left thumb, the other in the webbing between the left thumb and index finger. The cut in the webbing was several inches long and about one-third of an inch deep. Danna stated that the wounds were caused by a sharp, straight object and not by a circular saw. Based on the stage of healing, both wounds were between five and 14 days old, but the wounds might not have occurred simultaneously. Danna further opined that the wounds could have resulted in a loss of sensitivity and manipulation in the fingers and that the wounds should have been sutured. Defendant’s treatment, closing the wound with butterfly bandages, was not consistent with accepted medical practice.

Defendant’s sister, Marlene Harbold, was called as a court’s witness. She was in Chicago on March 29 and 30, 1981, to attend a confirmation party for defendant’s daughter. Frank Paul was a guest at the party, and she noticed no argument between defendant and Paul. A week later, on April 5, 1981, defendant called her at her home in Louisville and asked her to come to Chicago to care for his children as he was not feeling well. When she arrived on April 5, defendant appeared to be ill. The next morning she saw a band-aid on his hand and asked him what happened; he said, “it was just a nick, I nicked it on a saw.” Later in the week her brother told her that he had cut himself twice recently with a butcher knife. She admitted that she may have neglected to mention defendant’s remark concerning the butcher knife to investigators on April 10 and to the grand jury on April 13, but she explained that she first recalled the remark in November of 1981.

Three technicians from the Illinois Department of Law Enforcement (IDLE), Mark Stolorow, seralogy coordinator, Michael Podlecki, forensic scientist, and Mohammad Tahir, forensic scientist, testified for the State concerning their scientific analysis of blood samples prepared from stained physical evidence, the victim’s stained clothing and the bodies of defendant and victim. The samples were typed according to 10 systems of genetic characteristics or “markers.” For identification purposes, the genetic marker system works by process of elimination: each characteristic which is found in a given sample excludes all persons lacking that characteristic or having a different characteristic from having shed that blood. Stolorow testified that given the 10 groups of characteristics tested and the percentages of the population known to display each characteristic, “*** the probability of an accidental match is less than one in 500.” He explained that the fewer tests that could be performed on a given sample, the fewer people could be excluded and the greater the chance of an accidental match. He stated that, as contrasted with fingerprinting, blood typing technology does not permit the association of a blood sample with any one person.

Defendant’s blood tested as type O according to the conventional ABO typing system. The sample taken from the victim’s body was considered unreliable because five pints of universal type 0 blood was transfused into Frank Paul before he was pronounced dead. In addition, the vial containing the sample was broken when IDLE technicians received it. The IDLE experts “assumed” that the victim’s blood-stained shirt, slacks, shoes, and socks contained the victim’s blood. These stains were type A. The results of the remaining genetic marker tests were placed before the jury in the form of testimony and exhibits, but we see no need to catalog those results here.

All of the blood found near the scene was consistent with either defendant’s blood sample or stains on the victim’s clothing. The sport-coat contained both type 0 and type A blood. The glove recovered from the catch-basin had only one type 0 blood on it; the blade of the knife, only type A. Type 0 was found on the face of the circular saw blade, but no blood could be detected in the blade’s teeth. Based on spatter analysis, Tahir testified that the blood on the circular saw could not have been shed while the blade was moving. Tahir stated that blood spatters throughout the Interport offices indicated a violent struggle.

Motive evidence was introduced over defense objection. Frank Paul’s wife, Nancy, operated a Reedsburg, Wisconsin, airport which leased two airplanes from defendant. Airport employees testified that in 1979 and 1980 defendant telephoned and asked to speak to Nancy Paul when she was in Reedsburg. However, he did not telephone when she was away from Reedsburg, nor did he ask them about business. They further testified that defendant and Nancy Paul attended three or four airport-related public functions in Wisconsin; Frank Paul, the Paul children, and the Harbold children also attended these functions.

Gregory Wisniewski, an Interport employee, stated that defendant and Nancy Paul had been in Florida at the same time to purchase an antique automobile. On cross-examination, he recalled that Frank Paul had given him this information. Roy Palmer, an attorney who had represented defendant, testified that defendant and Nancy Paul arrived at Palmer’s apartment one evening in November or December of 1977, and remained there alone together after Palmer left. They were gone when Palmer returned at about 2 a.m. Defendant and Nancy Paul also attended a holiday season open house at Palmer’s apartment. Carol Yoshioka, an acquaintance, indicated that she and her date attended the theater and went to dinner with defendant and Nancy Paul one evening early in 1978. Over defense objection to hearsay, Yoshioka answered the question, “*** did Ralph Harbold and Nancy Paul ever make reference to the home that she owned up in Wisconsin?” and said, “Yes, they were talking about that they had been there.”

Gary Meisner testified that he flew Nancy Paul back to Chicago from Phoenix on March 31, 1981. Nancy Paul had told one of the airport employees that she wanted to move to Phoenix permanently. Meisner stated that over a four-day period immediately following his return he tried without success to reach defendant by telephone at his home and office. Defendant did not attend Frank Paul’s funeral.

Although he did not testify on his own behalf, nor did he call any witnesses, defendant was compelled to model the camel-colored sport-coat before the jury, and to display his left hand to the jury. Defendant introduced into evidence a study which contained updated population statistics associated with certain genetic markers, and a chart which incorporated the new statistics and the IDLE technician’s negative blood test results.

In closing argument, the prosecutor stated: “You can also look at the blood sample of the defendant, and look at the genetic markers across the board, and you will see that Ralph Harbold’s blood is on both rubber gloves, and on the pantyhose, it is on the left cuff of the sportcoat and it is also on the saw.” While discussing the chart introduced by the defense, the prosecutor stated: “What you see is that there is not one smallest piece of evidence that shows that Ralph Harbold is not guilty of this offense.” Although a defense objection to this comment was sustained, three similar statements were made, another objection was sustained and two more such comments were made before the prosecutor abandoned this line of comment.

In addition, the prosecutor argued that the motive testimony was “unrebutted and uncontradicted,” and corrected defendant’s characterization of Yoshioka’s testimony as placing Frank Paul with defendant and Nancy Paul at the Reedsburg residence. The prosecutor also stated:

“[I]n the hands of someone as competent as Mr. Schippers [defense counsel] *** [cross-examination] is as deadly as the knife in the hands of Ralph Harbold, or it is just like a scalpel in the hands of the plastic surgeon, to take this and then mold it into what he wants it to be. Just by asking questions, you can kind of transform things.”

The trial court’s instructions to the jury included Illinois Pattern Instruction (IPI), Criminal, No. 3.11 (2d ed. 1981), concerning impeachment with a prior statement. However, the court transposed the words “in this case” from the end of the first sentence to the beginning of the second. The court also included an instruction to the effect that defendant’s testimony should be evaluated in the same way as the testimony of other witnesses, although the defendant did not testify.

Following deliberations, the jury returned a verdict of guilty and defendant was sentenced to an extended term of 75 years’ imprisonment. Defendant appeals.

Opinion

Defendant first contends that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt. Initially, we note that the evidence of defendant’s guilt is entirely circumstantial.

The jury’s determination of guilt will not be set aside by a reviewing court unless the determination is palpably contrary to the weight of the evidence or so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Where a conviction rests solely upon circumstantial evidence, the guilt of the defendant must be so thoroughly established as to exclude every other reasonable hypothesis of innocence. (People v. Garrett (1975), 62 Ill. 2d 151, 163, 339 N.E.2d 753.) It is not required that the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances, so long as the evidence on the whole convinces the trier beyond a reasonable doubt of the guilt of the defendant. People v. Foster (1979), 76 Ill. 2d 365, 374, 392 N.E.2d 6.

Defendant argues that evidence of motive and blood type was inconclusive, resulting in a conviction based upon suspicion and probability. We consider issues of admissibility separately below, but we note here that to the extent defendant’s arguments go to the weight of evidence, he misconceives our role as reviewing court. We have carefully examined the record and analyzed the jury’s verdict in light of all the evidence. The State’s relevant and competent evidence permitted the jury to find or infer that the victim was stabbed to death in the course of a struggle on March 31, 1981; that the perpetrator was cut between the thumb and index finger and shed blood at the scene; that defendant’s hand was cut between the thumb and index finger some time after the morning of March 31 and before April 6, 1981; that defendant’s blood exhibited characteristics consistent with blood shed at the scene; that defendant knew the victim and had some connection with Nancy Paul; and that defendant displayed consciousness of guilt. We believe that the proof offered by the State, while not overwhelming, was not so unsatisfactory and unconvincing as to raise a serious doubt of defendant’s guilt.

Although the evidence was sufficient to sustain a conviction in a trial free from prejudicial error, our examination of the record reveals a number of trial errors which, considered together, deprived defendant of his constitutional right to a fair trial. Of course, overwhelming evidence would not lessen his entitlement to a fair trial (see People v. Weathers (1975), 62 Ill. 2d 114, 120-21, 338 N.E.2d 880), but the evidence in this case was close and circumstantial. “The fact that the evidence of [defendant’s guilt] is by no means of a conclusive character, requires us to consider the record to determine whether or not it is free from prejudicial error.” People v. Grizzel (1943), 382 Ill. 11, 20, 46 N.E.2d 78.

Defendant contends that he was deprived of his right to a fair and impartial trial by a pattern of improper prosecutorial comment. He asserts that the prosecutors undercut his presumption of innocence, cast aspersions on defense counsel’s methods, and mischaracterized the certainty of scientific evidence. The State maintains that the comments were waived, proper or cured by the trial court and that defendant was not unduly prejudiced.

In general, matters in evidence and reasonable inferences therefrom are proper subjects of comment to the jury. (People v. Warmack (1980), 83 Ill. 2d 112, 125-26, 413 N.E.2d 1254.) However, arguments which diminish the presumption of innocence are forbidden. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) A reviewing court should assess arguments of counsel in the context of the whole trial, and should sustain a conviction unless it appears that improper comment substantially prejudiced the accused. People v. Tate (1970), 45 Ill. 2d 540, 545-46, 259 N.E.2d 791, cert. denied (1971), 401 U.S. 941, 28 L. Ed. 2d 222, 91 S. Ct. 944.

Here, the prosecutor repeatedly argued that no evidence showed defendant to be not guilty. The prosecutor stated: “What you see is that there is not one smallest piece of evidence that shows that Ralph Harbold is not guilty of this offense.” The trial court sustained the objection to this clearly improper comment. Again, the assistant State’s Attorney argued: “There wasn’t one single piece of evidence that went through the lab *** that in any way shows that Ralph Harbold is not guilty of this offense.” And again, “*** there isn’t one single thing around the entire area that shows he is not guilty.” And yet again, “*** I am going to bring before you all the evidence because when we bring all of the evidence to you I believe you can see there is nothing here that shows that he is not guilty.” Defendant’s objection to this comment was sustained, and the trial court admonished the jury that defendant need not prove his innocence. Thereafter, the assistant State’s Attorney commented that, “the crime lab proved that absolutely nothing there showed that he is innocent,” and later stated, “Certainly, it doesn’t prove him not guilty.”

We can discern no purpose for this theme except to focus the jury’s attention on defendant’s failure to introduce evidence of innocence. The comments tended to shift the burden of proof to the defense and to diminish the presumption of innocence, and accordingly, were erroneous. (See People v. Giangrande (1981), 101 Ill. App. 3d 397, 402, 428 N.E.2d 503.) Furthermore, we believe that the repetition of the remarks after objections were sustained worked to the substantial prejudice of defendant. Our supreme court has held with respect to comments which undercut the presumption of innocence:

«*** fact that some of the remarks were repeated after an objection had been sustained by the court would indicate a disregard for the ruling of the court and the preservation of the constitutional rights of the accused, and constituted prejudicial error.” (People v. Grizzel (1943), 382 Ill. 11, 22, 46 N.E.2d 78.)

Accord, People v. Weinstein (1966), 35 Ill. 2d 467, 470-72, 220 N.E.2d 432.

We reject the State’s claim that the comments were invited by defendant’s argument concerning the inconclusive nature of the scientific evidence. In effect, the State asks us to countenance argument on the absence of proof of innocence because defendant attacked the strength of the State’s evidence, a position clearly repugnant to defendant’s presumption of innocence. The State’s position is particularly unpersuasive where defendant’s remarks were proper and based on testimony from the State’s experts, and where the prosecutor persisted in making improper remarks over sustained objections. We also reject the State’s contentions regarding waiver and cure. We believe that defendant’s objections and his specific reference to these remarks in his post-trial motion brought the matter to the attention of the trial court sufficiently to preserve it for review. (See People v. Clark (1982), 108 Ill. App. 3d 1071, 1077, 440 N.E.2d 387.) The constant repetition of this improper comment renders doubtful the effectiveness of the trial court’s admonitions. (See People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432.) We are unable to conclude that these comments which diluted one of the defendant’s fundamental protections were harmless.

Defendant’s complaints that the prosecutor cast aspersions on counsel’s methods and mischaracterized the certainty of scientific evidence are less compelling. While we question the comparison between counsel’s use of cross-examination and defendant’s use of the murder weapon, the context indicates a focus on the testimony of witnesses as opposed to the content of questions, and so the remark did not rise to the level of prejudicial error. Although a contemporaneous objection may have entitled defendant to a more correct statement (see People v. Giangrande (1981), 101 Ill. App. 3d 397, 402-03, 428 N.E.2d 503), the prosecutor’s comment that defendant’s blood “matched” blood found at the scene was not improper, because “match” connotes equality, similarity or suitability (see Webster’s Third New International Dictionary 1391 (1976)), and so understood, the remark was within the limit of testimony and inference. Similarly, the prosecutor’s statement that the genetic marker evidence showed defendant’s blood to be on the gloves, sportcoat and saw, while overstating the scientific evidence, could be inferred from all the evidence, and so did not constitute prejudicial error.

Defendant next contends that the admission of hearsay evidence violated his sixth amendment right of confrontation and deprived him of a fair trial. He asserts that Carol Yoshioka’s testimony to the statements of Nancy Paul denied him the opportunity to confront Nancy Paul and cross-examine her before the jury. The State argues that the statements were admissible as nonhearsay, not for the truth of the matter asserted, or in the alternative, as admissions, excepted from the hearsay rule. The testimony at issue appears in the record as follows:

“Q. [Assistant State’s Attorney] During the time you were having dinner at Nick’s Fishmarket, did Nancy Paul ever refer to any property that she owned or operated?
A. [Ms. Yoshioka] Yes.
Q. And what was that?
A. She said that there was a summer home and that she owned an airport that she was trying to bring business up there and develop the area.
Q. And during the course of that conversation, did Ralph Harbold and Nancy Paul ever make reference to the home that she owned up in Wisconsin?
A. Yes, they were talking about that they had been there.
Q. And do you recall what reference they made to in terms of when they had been there?
A. They had referred to the time there was some plumbing problems up there when they had been there.
Q. Plumbing problems?
A. Yes.”

The record belies the State’s position that the statements were nonhearsay. The nonhearsay purpose suggested by the State, to show that defendant and Nancy Paul held themselves out as a couple, was not accomplished by the fact of the statement; the jury must have believed that defendant and Nancy Paul spent time together in Wisconsin in order to infer from the statements that they held themselves out as a couple. The State’s nonhearsay purpose was accomplished by Yoshioka’s nonhearsay testimony to the participants, activities and circumstances of the evening; testimony to the statements added only the content of the statements. In addition, the manner in which the testimony was elicited, notably the prosecutor's repetition of “plumbing problems,” was calculated to impress upon the jury the truth of the matter asserted and the State argued that content of the statements to the jury in closing argument.

The record also negates the State’s contention that these statements were' admissions. A statement must be made or adopted by the defendant to be introduced as an admission of a criminal trial. (People v. Simpson (1977), 68 Ill. 2d 276, 281-82, 369 N.E.2d 1248.) Where a statement affecting defendant is made in circumstances affording an opportunity to reply, and where others similarly situated would naturally reply, defendant may be deemed to have adopted the statement by silence. (People v. Pfanschmidt (1914), 262 Ill. 411, 448, 104 N.E. 804.) This record is inadequate to support an argument that defendant either made or adopted statements concerning the Reedsburg residence. The form of the questions and answers failed to identify any statement to defendant. The casual circumstances of the conversation were not such that defendant or others similarly situated would naturally reply. Everyday conversation is rife with ambiguous, exaggerated and humorous expression, and the participants are seldom inclined to demand rigorous accuracy or to subject one another to critical scrutiny. We hold that the trial court erred when it overruled defendant’s objection to this hearsay, and in our opinion, this error deprived defendant of another substantial constitutional protection.

The sixth amendment to the United States Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” (U.S. Const., amend. VI.) The confrontation clause applies in State proceedings, as a matter of fourteenth amendment due process. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) The Illinois Constitution provides in part: “In criminal prosecutions, the accused shall have the right *** to meet the witnesses face to face ***.” (Ill. Const. 1970, art. I, sec. 8.) These provisions are essentially coextensive, and seek to secure for the accused the opportunity of cross-examination. (People v. Tennant (1976), 65 Ill. 2d 401, 408, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184.) The United States Supreme Court recently stated that the confrontation clause,

“envisions
‘a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ [Citation.]
These means of testing accuracy are so important that the absence of proper confrontation at trial ‘calls into question the ultimate “integrity of the fact-finding process.” ’ [Citations.]” Ohio v. Roberts (1980), 448 U.S. 56, 63-64, 65 L. Ed. 2d 597, 606, 100 S. Ct. 2531, 2537-38.

Recognizing that face-to-face confrontation is not always possible, the court in Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, set forth a two-part standard for conforming hearsay evidence with the goal of the confrontation clause:

“[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ ” 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.

In the instant case, the State sought to introduce Nancy Paul’s statements as proof of defendant’s motive. Therefore, the State was required to produce her at trial or show that she was unavailable. There is nothing in the record to indicate that the State made any effort to secure Nancy Paul’s presence at trial. Moreover, the record actively indicates that the statements were unreliable and prejudicial. The conversation took place four years before the witness testified, and the circumstances were not such as to assure the accuracy of the statements or to impress the witness with a full or accurate recollection. Indeed, the witness exhausted her recollection of the subject in the passage quoted above from direct examination.

As a result of the erroneous admission of this hearsay, the jury was exposed to the bare fact that defendant and Nancy Paul spent time together at a cottage in Wisconsin, proved by Nancy Paul’s words, through a witness whose lack of personal knowledge of underlying events prevented any qualifying or explanatory information from being revealed. The State thus accomplished precisely what the confrontation clause forbids: it presented Nancy Paul’s testimony against defendant and circumvented defendant’s right to cross-examine Nancy Paul. The presentation of motive evidence from the mouth of defendant’s purported paramour clearly prejudiced defendant, and viewed in the light of remaining motive evidence and other trial errors, we cannot say that this error was harmless.

Apart from hearsay, defendant argues that the motive evidence was irrelevant and should have been excluded in its entirety. Generally, any evidence which tends to show that the accused had a motive to kill the victim is relevant in a homicide case, but “such evidence to be competent must, at least to a slight degree, tend to establish the existence of the motive relied upon or alleged.” (People v. Gougas (1951), 410 Ill. 235, 238-39, 102 N.E.2d 152.) The State’s theory of motive in this case is that defendant admired the victim’s wife, Nancy Paul, and feared that she would leave the Chicago area. We agree with defendant that the State’s theory of motive is flawed.

The fact that Nancy Paul wanted to move to Phoenix could indicate motive only if defendant knew of her plans and had some reason to believe that killing Frank Paul would alter those plans. The State maintains that defendant’s knowledge may be inferred from the fact that one of the Reedsburg airport employees knew; the State makes no attempt in its brief to explain how killing Frank Paul could have altered Nancy Paul’s intention to move. However, the State offered this closing argument for the jury’s consideration:

“[Defendant] had a relationship with Nancy Paul. He had a crazed relationship because Nancy Paul was going to leave the Chicago area, and in despair he could do only one thing. The thing that was left to him was to kill Frank Paul to prevent Nancy from leaving.”

In People v. Gougas (1951), 410 Ill. 235, 102 N.E.2d 152, the State introduced evidence that the accused was the beneficiary of the victim’s insurance policy, but made no attempt to show that the accused knew of the policy. The court reversed defendant’s murder conviction, stating that evidence of the policy could do “little more than excite a suspicion of guilt.” (410 Ill. 235, 240, 102 N.E.2d 152.) Here, evidence that Nancy Paul wanted to move to Phoenix at least confused and distracted the jury, and we believe that the State’s use of the evidence excited suspicion of guilt.

The “Phoenix argument” was crucial to the State’s motive theory because the evidence failed to indicate a reason to kill Frank Paul in 1981. The evidence indicated that in late 1977 and early 1978, defendant and Nancy Paul were seen together in a variety of social settings, that they were in Florida at some unnamed time, and that in 1979 and 1980, they attended airport-related public functions along with their families. This evidence was relevant because it tended to show some relationship from which the jury could have inferred motive. (See People v. Branion (1970), 47 Ill. 2d 70, 77, 265 N.E.2d 1, cert. denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2213.) However, the probative value of the evidence suffered from its remoteness in time; evidence that the two spent time alone together predated the crime by three years or more. Our supreme court recently stated, “A love affair whose embers have long since cooled is not exactly a motive for murder. Its value is likely to be outweighed by the unfair prejudice against the defendant the evidence engenders.” (People v. Weaver (1982), 92 Ill. 2d 545, 562, 442 N.E.2d 255; see also People v. Holtz (1920), 294 Ill. 143, 160-62, 128 N.E. 341 (fact that incidents of marital problems occurred one to three years before crime was one factor in court’s conclusion that there was no evidence of motive).) The State bootstrapped the more remote motive evidence into the present with the Phoenix argument. In our opinion, defendant was entitled to have the existence of motive determined without this incompetent evidence and the accompanying inflammatory argument.

We must conclude that the introduction of irrelevant and hearsay motive evidence constituted substantial prejudice to defendant in this case. Evidence of motive is especially important where a conviction rests on circumstantial evidence. (People v. Holtz (1920), 294 Ill. 143, 155, 128 N.E. 341.) “[A]ny reasonable hypothesis of innocence is likely to be discounted progressively by degrees as evidence of possible motives compounds.” (People v. Weaver (1980), 90 Ill. App. 3d 299, 303, 412 N.E.2d 1353, aff’d (1982), 92 Ill. 2d 545, 442 N.E.2d 255.) We cannot say what the jury would have done if only relevant and competent motive evidence had been submitted, hence his right to a fair trial requires a new trial.

Defendant next contends that physical and scientific evidence should have been excluded because its probative value was outweighed by prejudice. He argues that the blood-stained items of physical evidence were not adequately connected to him and to the crime, and that the blood analyses rendered scientifically inconclusive results. The State rejoins that the physical evidence was adequately connected and that the blood test results were admissible even though inconclusive. Despite our reservations concerning some of the analytic results, we agree with the State that the evidence at issue was admissible. However, we find that testimony to the statistical probability of matching blood constituted plain error.

Physical evidence must be connected to both the defendant and the crime to be admissible, but the inquiry is one of relevance and not of weight. (People v. Free (1983), 94 Ill. 2d 378, 415-17, 447 N.E.2d 218, cert. denied (1983), 464 U.S. _, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Accordingly, it has been held that an item is connected to the crime if it is suitable for the commission of the crime, and it is not necessary to show that the item was actually used. (People v. Miller (1968), 40 Ill. 2d 154, 159, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401.) Similarly, a defendant was connected to weapons found at a public dump where “a person answering defendant’s general description had been seen in the vicinity of the dump after the killing.” People v. Ashley (1960), 18 Ill. 2d 272, 280, 164 N.E.2d 70, cert. denied (1960), 363 U.S. 815, 4 L. Ed. 2d 1157, 80 S. Ct. 1255, explaining People v. Collins (1940), 375 Ill. 253, 31 N.E.2d 295.

In this case, a sportcoat, pantyhose, penlight, gloves and knife were found within a block of the crime scene, within hours of the crime, stained with blood, many characteristics of which were consistent with blood shed at the scene. Keys found in the sportcoat’s pockets turned the locks at Interport, and according to experts, the knife was suitable for commission of the crime. The sportcoat, pantyhose and cut latex glove were connected to defendant in that several characteristics of the blood on these items were consistent with defendant’s blood. Further, the cut on the glove corresponded to the wound on defendant’s left hand. We hold that these items were sufficiently connected to one another, to the crime and to defendant so as to be admissible.

A more difficult problem is presented by expert testimony concerning the analysis of blood stains and whole blood samples, and the conclusions drawn therefrom. As a rule, expert testimony is admissible where the expert has knowledge or experience not common to laymen which renders his or her opinion an aid to the jury in determining a fact in issue. (People v. Jennings (1911), 252 Ill. 534, 550, 96 N.E. 1077.) A scientific opinion must be based upon principles which have gained general acceptance in the scientific community. (See People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) Illinois courts have taken judicial notice of the scientific reliability of the ABO blood grouping system. (See, e.g., People v. Gillespie (1974), 24 Ill. App. 3d 567, 573, 321 N.E.2d 398.) In fact, in People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514, the court took judicial notice of the ABO system’s reliability where expert testimony was based on a combination of ABO and Esterase D (EsD) typing. We would be remiss in our duty if we disposed of the issue of scientific acceptance on this authority.

Scientific acceptance of the ABO system provides little basis for accepting evidence of genetic marker detection by electrophoresis or opinions deduced from such information. The ABO system has been studied and refined since the turn of the century, and is widely recognized because accurate ABO typing is essential in order to administer blood transfusions safely. (See People v. Gillespie (1974), 24 Ill. App. 3d 567, 572-73, 321 N.E.2d 398, and sources cited therein.) By contrast, other genetic markers have only recently been isolated, do not affect transfusion compatibility, and are tested by electrophoresis, a technique entirely different from the one used clinically to determine ABO type. (See Robinson v. State (1981), 47 Md. App. 558, 574-75, 425 A.2d 211, 220; Forensic Science Handbook 340-42 (R. Saferstein ed. 1982).) There is some dispute among scientists as to the accuracy of results derived from electrophoretic testing of dried blood stains. (See State v. Washington (1981), 229 Kan. 47, 49-52, 622 P.2d 986, 988-91.) In an extensive review of scientific and legal authorities on the subject, one scholar has concluded that “the forensic tests for the detection of genetic markers in blood have not been proven to be reliable and should not be admitted into criminal trials.” Jonakait, Will Blood Tell? Genetic Markers in Criminal Cases, 31 Emory L.J. 833, 912 (1982) (hereinafter referred to as Jonakait, Genetic Markers).

In this case, genetic marker evidence seems to have been received on the basis of Mark Stolorow’s statement that these techniques are used in crime labs nationwide. Both of the cases we have found which consider the matter, State v. Washington (1981), 229 Kan. 47, 622 P.2d 986, and Robinson v. State (1981), 47 Md. App. 558, 425 A.2d 211, found scientific acceptance based on widespread use in crime labs. While this fact is certainly relevant to scientific acceptance (see e.g., People v. Jennings (1911), 252 Ill. 534, 546-49, 96 N.E. 1077 (fingerprint evidence)), we do not believe that use in crime labs alone can justify admission of evidence in the face of a bona fide scientific dispute. (Cf. People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070 (polygraph evidence).) Not every useful investigative tool is necessarily admissible in a criminal trial. (People v. Monigan (1979), 72 Ill. App. 3d 87, 92, 390 N.E.2d 562.) One of the most important factors in Illinois’ rejection of polygraph analysis, the subjectivity of interpretation of test results (see People v. Baynes (1981), 88 Ill. 2d 225, 236, 430 N.E.2d 1070), is also involved in genetic marker analysis. (See State v. Washington (1981), 229 Kan. 47, 50-52, 622 P.2d 986, 989-91; Jonakait, Genetic Markers 893-95.) We believe that cautious consideration of this evidence is indicated before the reliability of ABO grouping is assumed to apply to it as a matter of law.

In addition to these general indictments against automatic recognition of genetic marker evidence, our examination of the record reveals several specific points of expert testimony which seem to conflict with other scientific authorities. For example, Stolorow stated categorically that all of the genetic markers have functions in the body apart from their use by crime laboratories, whereas Jonakait cites authority to indicate that science is presently unable to assign a precise function to each genetic marker. (Jonakait, Genetic Markers 849.) Stolorow also stated: “We know that there is enough genetic information in a person’s blood stain to isolate him alone in the population as the only possible donor,” but that “technology has not yet reached that stage.” This does not accurately represent current scientific understanding: scientists believe identical twins have the same blood groupings hence it may never be possible to “identify” blood in the same way that fingerprints can (Jonakait, Genetic Markers 833 N.2, citing Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543, 549 (1978)), and some experts believe that the current approach to genetic marker analysis is inherently incapable of individualization. Jonakait, Genetic Markers 833-34, N.3, citing Sweet & Elvins, Studies by Crossed Electroimmunodiffusion on the Individuality and Sexual Origin of Bloodstains, 21 J. Forensic Sci. 498, 505 (1976).

Other inconsistencies in the blood evidence disturb us. Podlecki testified that there are six varieties of the Erythrocite Acid Phosphatase (EAP) enzyme; testimony in another case indicates that there are five varieties of this enzyme. (State v. Washington (1981), 229 Kan. 47, 49, 622 P.2d 986, 988.) The test results did not uniformly meet the expert’s expectations. A person with type A blood who received five pints of type 0 blood by transfusion would most likely exhibit both types, according to Stolorow, and the least likely test result would show type 0 alone. Yet when Frank Paul’s blood tested as type 0, the experts simply disregarded this result. Finally, the population frequency statistics, upon which all of the State’s experts based their opinions, came from an apparently unpublished study. In People v. Gillespie (1974), 24 Ill. App. 3d 567, 575-77, 321 N.E.2d 398, the court admitted published population frequency figures under the “Learned Treatise” exception to the hearsay rule. The rationale for admitting published statistical compilations does not extend to unpublished studies, and though Stolorow claimed personal knowledge of the study, we suspect that he relied upon others for certain aspects of sampling, analysis, compilation and validation of results.

We believe that this testimony tended to exaggerate the conclusiveness of the scientific techniques used in this case. We imply no criticism of the State’s experts, for the Illinois Department of Law Enforcement has helped to pioneer genetic marker detection in this country, and may well have a sound basis for zealous advocacy of these techniques. If defendant had raised these apparent inconsistencies, the experts might have qualified their testimony or given a satisfactory explanation. The defense corrected a flaw in the State’s evidence in at least one respect, by introducing published population statistics. We cannot hold that electrophoretic detection of genetic markers in field conditions is unreliable as a matter of law, but we believe that some questions as to scientific acceptance of the technique remain unanswered in this record and in the case law. Should the State elect to retry this case, we believe that the defendant and the people would be well served by a careful evaluation of this evidence, mindful to the oft-quoted passage from Frye v. United States (D.C. App. 1923), 293 F. 1013, 1014:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principal must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gainful general acceptance in the particular field in which it belongs.”

One glaring defect in the State’s evidence warrants consideration under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), which provides for review of plain error affecting substantial rights where the evidence is closely balanced, despite the defendant’s failure to bring the matter to the trial court’s attention. Mark Stolorow testified that “the chances of selecting any two people at random from the population and having them accidently have identical blood types in each one of these factors is less than one in 500, that is, what we call the probability of an accidental match is less than one in 500.” We believe that this testimony was irrelevant, beyond the proper scope of expert opinion, and highly prejudicial to defendant.

Illinois courts have not addressed the propriety of introducing statistical probabilities for the purpose of establishing a historical fact. The reasoning of the California Supreme Court in People v. Collins (1968), 68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497, has been cited with approval in all of the subsequent cases which have considered the issue. Collins involved an interracial couple accused of robbery. The State’s case was mainly circumstantial, and in an attempt to bolster the witnesses’ uncertain identification, the prosecutor called a mathematician to the stand. The mathematician testified to the “product rule” which states that the probability of the joint occurrence of a number of independent events is equal to the product of the individual probability of the occurrence of each event. The prosecutor then provided the witness with individual probabilities for the characteristics in evidence. Combining these factors under the product rule, the prosecutor concluded that there was “one chance in 12 million that any couple possessed the distinctive characteristics of the defendants.” 68 Cal. 2d 319, 325, 438 P.2d 33, 37, 66 Cal. Rptr. 497, 501.

The Collins court reversed defendants’ convictions, stating:

“[T]he prosecution’s introduction and use of mathematical prob-' ability statistics injected two fundamental prejudicial errors into the case: (1) The testimony itself lacked an adequate foundation both in evidence and in statistical theory; and (2) the testimony and the manner in which the prosecution used it dis-' tracted the jury from its proper and requisite function of weighing the evidence on the issue of guilt, encouraged the jurors to rely upon an engaging but logically irrelevant expert demonstration, foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory.” 68 Cal. 2d 319, 327, 438 P.2d 33, 38, 66 Cal. Rptr. 497, 502.

The foundational defects in Collins were grave. The prosecutor in .that case invented figures which he terms conservative and applied them to mutually dependent variables to reach his conclusion. The questions we raise concerning the scientific acceptance of detection techniques are preliminary to the statistical flaws criticized in Collins. The're is empirical support for the independent occurrence of genetic markers, and there are published population frequency studies. (See Forensic Science Handbook (R. Safterstein ed. 1982).) Therefore, assuming that scientific acceptance can be shown, a statistically valid probability figure could be computed. Illinois courts have tacitly approved one application of the product rule by permitting experts to testify to the percentage of the population exhibiting certain combinations of blood characteristics. (People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514; People v. Gilliespie (1974), 24 Ill. App. 3d 567, 321 N.E.2d 398.) Here, however, the State went much farther and expressed the similarity between the perpetrator and defendant in terms of the likelihood of a random match.

Our concern is more with the impact of the probability statistic upon the jury than the foundation for the testimony. The statistic was patently irrelevant. Probability theory is necessarily silent on the crucial question before the jury: Of the relatively small percentage of the population with consistent characteristics, which one, if any, committed the crime? (People v. Collins (1968), 68 Cal. 2d 319, 330, 438 P.2d 33, 40, 66 Cal. Rptr. 497, 504.) Jurors would be hard pressed to explain how the l-in-500 chance of an accidental match did not equate with a l-in-500 chance that defendant was innocent. (See Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1355 (1971).) Of course, the statistic means nothing of the sort. Absent a sound basis to limit the number of possible defendants, the defendant here is but one of thousands of people who share these same characteristics. Legion possibilities incapable of quantification, such as the potential for human error or fabrication, or the possibility of a frame-up, must be excluded from the probability calculation.

In State v. Carlson (Minn. 1978), 267 N.W.2d 170, the supreme court of Minnesota considered random match probabilities of l-in-800 and l-in-4500 on the identification issue. Holding that the foundation was proper and “based upon empirical scientific data of unquestioned validity,” the court concluded:

“Testimony expressing opinions or conclusions in terms of statistical probabilities can make the uncertain seem all but proven, and suggest, by quantification, satisfaction of the requirement that guilt be established ‘beyond a reasonable doubt.’ ” (267 N.W.2d 170, 176.)

(Accord, State v. Boyd (Minn. 1983), 331 N.W.2d 480.) We believe that testimony to statistical probabilities encouraged the jury to disregard evidential risks traditionally weighed in determining guilt or innocence, and focused unfairly upon a numerical conclusion. (See People v. Collins (1968), 68 Cal. 2d 319, 330-31, 438 P.2d 33, 40-41, 66 Cal. Rptr. 497, 504-05.) As such, we find that the testimony violated one of the primary requirements of expert opinion, that the opinion be an aid to the jury. (See People v. Stapelton (1972), 4 Ill. App. 3d 477, 480-81, 281 N.E.2d 76.) In light of the closeness of this circumstantial case, we cannot say that this improper testimony, which gave a false impression of precision in the measurement of guilt, did not affect the jury’s deliberations.

Defendant next contends that he was irreparably prejudiced by the prosecutor’s intentional misconduct in eliciting testimony concerning weapons found at his residence. The State maintains that the references were waived, proper, or cured by the trial court.

It is well settled that the prosecution may not initiate an inquiry into defendant’s evil character for the purpose of establishing guilt. (Michelson v. United States of America (1948), 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The rationale for the rule against character is that “it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” (Michelson v. United States of America (1948), 335 U.S. 469, 476, 93 L. Ed. 168, 174, 69 S. Ct. 213, 218.) In People v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120, our supreme court granted defendants a new trial based on evidence of unrelated crimes coupled with improper argument. The court noted, as a corollary to the rule against character evidence, that the State’s Attorney’s duty to safeguard the rights of all the people extends to criminal defendants, and the prosecutor’s failure to delete prejudicial and improper matters from a statement constitutes a breach of that duty. 22 Ill. 2d 601, 604, 177 N.E.2d 120.

At trial in this matter, the assistant State’s Attorney asked a detective of 11 years’ experience what weapons were found pursuant to the execution of a search warrant. The detective responded: “we find [sic\ a .38 caliber snub-nosed revolver.” Defendant objected, and the trial court heard arguments in chambers. The assistant State’s Attorney offered proof stating “in his basement was a bullet-proof vest and two gas masks and I believe that is indicative of the type of person that Ralph Harbold is.” We find that the prosecutor violated his duty to safeguard defendant’s right to be judged solely with respect to the crime charge, and demonstrated disrespect for defendant’s right to a fair and impartial trial. (See People v. Clark (1983), 114 Ill. App. 3d 252, 256, 448 N.E.2d 926.) The issue was not waived. Defendant made his motion for a mistrial in chambers, and renewed the motion post-trial. Although the trial court admonished the jury to disregard any reference to a weapon, the admonition followed the reference by several minutes. Under different facts, even intentional misconduct such as this might be considered harmless. In this case, however, the prosecution’s consistent tactic of bolstering its case with irrelevancy militates against a finding of harmless error. We are not convinced beyond a reasonable doubt that this reference had no effect on the jury’s resolution of the issues.

We decline defendant’s invitation to comment upon the relevance of the knives found in the course of the search. We noted earlier that an item suitable for commission of the crime is usually admissible. (See People v. Miller (1968), 40 Ill. 2d 154, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401. We note here that the subject was raised by defense counsel and that no objection was raised at trial.

Finally, defendant contends that the trial court erroneously instructed the jury. He asserts that the addition of the words “in this case” to the impeachment instruction indicated to the jury that Marlene Harbold’s testimony had been' impeached. We disagree. The words “in this case” were merely transposed from the end of the first sentence to the beginning of the second. The transposition had no substantive effect upon the instruction.

Defendant also contends that the trial court erred in instructing the jury as to defendant’s testimony, where defendant did not testify. Notably, the written instruction was stricken, and both oral and written instructions submitted to the jury properly apprised them that the defendant’s failure to testify should not be considered. Defendant submitted the instruction complained of, and defense counsel expressly waived any resulting error. We trust that this mishap will be avoided in a new trial.

In sum, we hold that the prosecutor undercut defendant’s presumption of innocence in closing argument, that the trial court erred in admitting hearsay motive testimony, that the prosecutor introduced irrelevant motive evidence accompanied by inflammatory argument, that testimony to an irrelevant probability statistic was improperly received, and that the prosecutor unfairly injected defendant’s character into the trial. We believe that defendant’s right to a fair trial was consistently compromised by irrelevancy and error which enhanced the State’s case. We cannot say beyond a reasonable doubt that defendant was not prejudiced by the cumulative effect of error in this close, circumstantial case. Therefore, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

SULLIVAN and WILSON, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL SINGLETON, Defendant-Appellant.
    First District (5th Division)
    No. 83—120
    Opinion filed May 25, 1984.

      Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of deviate sexual assault, aggravated kidnaping and two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 3, 10 — 2 and 18 — 2, respectively), and sentenced to concurrent prison terms of 25 years for each offense. On appeal, defendant argues that: (1) the trial court erred in instructing the jury on aggravated kidnaping predicated upon secret confinement when the charging document alleged aggravated kidnaping predicated upon intent to secretly confine; (2) the 25-year sentence for the offense of aggravated kidnaping without a ransom, a Class 1 felony (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(b)(2)) exceeds the statutory limitation set forth in section 5 — 8—1(a)(4) of the Unified Corrections Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(4)); (3) the trial court improperly based defendant’s sentence on his refusal to admit his guilt; and (4) the concurrent sentences of 25 years were excessive in light of defendant’s excellent prior record. For the reasons that follow, we affirm all convictions, affirm the sentences for deviate sexual assault and armed robbery, and reduce the sentence for aggravated kidnaping.

Testimony at trial disclosed three versions of the events leading up to defendant’s arrest in the early morning of April 25, 1982: (1) the State’s version presented by the two complainants and the arresting officers; (2) the defendant’s version; and (3) the impeachment version presented by a rebuttal witness for the State.

State’s Version

The female complainant, D.H., testified that approximately 2:45 a.m. on April 25, 1982, she left her home near 21st and Pulaski in Chicago to pick up her live-in boyfriend, R.K., who had just finished work as a bartender at a nearby lounge. On the way home, D.H. and R.K. stopped at a carryout restaurant to pick up some ribs and beverages to take home. Upon arriving home and parking the car in the vacant lot next to her house, D.H. noticed a male walking toward the car. When she and R.K. exited from the car, the male shouted, “Halt!” and they turned around and saw a gun “staring us in the face.” At trial, D.H. identified defendant as the man with the gun and further identified the gun previously introduced into evidence by the State as the weapon defendant had been holding that night.

Defendant told D.H. and R.K. to walk back to the car and then demanded their money. He took R.K.’s money first and when D.H. handed him only paper currency, defendant said, “B — , I said give me all the money,” and clicked his gun. When R.K. heard the gun click, he turned around to see what was happening and defendant struck him in the head with the gun, causing a laceration on the right side. Defendant then told D.H. to unlock the trunk of the car and ordered R.K. to climb inside. When R.K. took his time moving items in the trunk, defendant threatened to blow his brains out if he did not hurry.

Once R.K. was locked into the trunk, defendant led D.H. to the driver’s side of the car at gunpoint, ordered her to get inside, then ran around to the passenger’s side. D.H. stated that she was going to lock the automatic door locks and leave, but defendant ran around to the passenger side too fast and had the gun pointed at her from the other side of the car window. He then got into the car, and with the gun pointed at her, told her to drive to the lakefront.

When D.H. backed the car into the alley, defendant told her to stop the car and unzip her pants, take her right leg out of her pants, and pull down her undergarments. Then, while keeping the gun pointed at her chin, he performed cunnilingus on her. When D.H. asked defendant what he was going to do with her and R.K., he said he was going to kill R.K., rape her, and then knock her out.

As they were driving to the lakefront, defendant scooted down in the front seat and, while holding the gun in his right hand, aimed at D.H.’s side, he started fondling her breasts. As he was doing this, he lost concentration on the gun and, although it was still in his hand, it was practically lying on the seat. When D.H. stopped at the stop sign at Cullerton and Pulaski, she noticed a police squad car coming down the street. She drove away from the stop sign slowly, waiting for the squad car to get closer, and then ran a stoplight to get their attention. D.H. then grabbed for the gun and began struggling over it with defendant. Finally, D.H. let go of the steering wheel, lunged for the gun, opened the door and fell out of the car while it was still moving. By this time the squad car had its spotlight on the car and D.H. began yelling to the police, “This guy is trying to rape me and I got the gun, and my boyfriend was [sic] in the trunk.” The car eventually ran up over the curb, hit a fire hydrant and light pole and came to a stop. By then, the police had exited their squad car, and were standing behind the car doors with weapons drawn. One of the officers took the gun from D.H. and told her to put her clothes on in the squad car. While in the squad car, D.H. saw the police officers approach her car and also saw defendant fall out of the passenger door to the ground. The police released R.K. from the trunk, took D.H. home so that she could change her clothes, then drove both D.H. and R.K. to the police station.

On cross-examination, D.H. stated that she has been dating R.K. exclusively for four years and that he would be very upset if she dated others. R.K. works part-time Friday, Saturday and Sunday evenings as a bartender until 3 a.m. on Friday, 2 a.m. on Saturday, and midnight or 1 a.m. on Sunday. While R.K. is bartending, D.H. stays home with her four children. D.H. also testified that she does not drink alcoholic beverages, had never seen defendant prior to the night of the incident, and had never seen R.K. with a gun. Further, D.H. denied: (1) having ever been in the Texas Lady Lounge at 21st and Pulaski; (2) knowing Rosie Hill, defendant’s girlfriend; (3) having seen either Tommy Strong, defendant or Rosie Hill the week prior to the incident; (4) telling defendant that she wanted to get rid of R.K.; (5) having any insurance on R.K.; (6) voluntarily pulling down her pants; and (7) having previously had sex with defendant.

Next, R.K. testified to substantially the same events leading up to his confinement in the trunk. In addition, he stated that while in the trunk, he felt the car initially move backward, stop for a minute or two, start up again, move forward and then begin to weave back and forth. He then heard D.H. scream just before the car came to a crashing halt. When he heard more voices, he started banging on the trunk and a police officer opened it. At trial, R.K. identified the gun used by defendant and stated that he had never seen either the gun or defendant prior to the incident. On cross-examination, R.K. further stated that he saw money change hands between defendant and D.H.

Next, Daniel Rosas, Chicago police officer, testified that on the morning of April 25, 1982, while driving northbound on Pulaski near 19th Street with his partner, William Marose, he observed a silver-colored Oldsmobile go through a red light, and then begin to move erratically from side to side. When he directed the emergency lights and spotlight on the Oldsmobile, he could see two people in the front seat apparently struggling. Suddenly, while the Oldsmobile was still moving, the female driver jumped out of the car, holding a revolver in her hand. One of her legs was completely out of her slacks and she was screaming hysterically that the passenger had a gun and had tried to rape her. The Oldsmobile then ran up over the curb, hit a fire hydrant or light pole and came to a stop. Rosas observed a black male exit from the passenger side, take a couple of steps, then intentionally fall to the ground when he saw the police. At trial, Rosas identified defendant as the man who had exited from D.H.’s car.

As Rosas approached defendant with his gun drawn, defendant said, “Okay, I’m cool. I got the money in my back pocket.” Marose then handcuffed defendant, and took the money out of defendant’s back pocket. Meanwhile, Rosas heard pounding coming from the trunk and D.H. told him that her boyfriend was in there. While the back-up unit took defendant into custody, Rosas and Marose drove D.H. home so that she could change her clothes and they could inventory what she had been wearing. They then took D.H. and R.K. to the police station.

Next, William Marose, Chicago police officer and Rosas’ partner on the night of the incident, corroborated Rosas’ testimony, identified defendant as the passenger and further testified that while D.H. was changing her clothes, he walked through the vacant lot next to her house and observed some food that looked like chicken or ribs lying on the ground. He inventoried the money taken from defendant and the six-inch .37 magnum taken at the scene. At trial, Marose identified the gun, the five live rounds recovered from the gun, photographs of the scene of the accident, and a photograph of defendant taken on the night of the arrest.

At the conclusion of the State’s case, defendant’s motion for a directed finding was denied.

Defendant’s Version

Defendant testified that he originally met D.H. on March 1, 1982, at a neighborhood grocery store. At that time, she told him that she frequently visited the Texas Lady Lounge and the Sheba Lounge. The following weekend, defendant saw D.H. at the Texas Lady, bought her a beer and they talked until approximately 1:30 a.m. when they left in D.H.’s car to go to a motel. This was the general pattern for four subsequent “dates” within the period from early March to the night of the incident. Because defendant was unemployed, D.H. would frequently give him money and she always registered and paid for the motel rooms herself. On one occasion, when D.H. did not have enough money to pay for the room, she and defendant had sexual intercourse in D.H.’s car, a silver Oldsmobile. Defendant stated that although he and D.H. were sexually attracted to each other and both were unmarried, they continued to meet secretly because each had a personal commitment to another person who would be very upset if their relationship were discovered. Despite their attempt at secrecy, however, defendant’s girlfriend, Rosie Hill, walked into the Texas Lady Lounge one weekend night and saw defendant and D.H. embracing. Hill became furious, but defendant cooled her down and took her home before an actual physical altercation took place.

Defendant further testified that the week prior to the incident, D.H. and defendant made plans to meet at the Texas Lady Lounge on April 24. That night he arrived at the lounge approximately 11 p.m. and waited for D.H. until the lounge closed approximately 3:30 a.m. When defendant left the lounge and started walking toward D.H.’s house, he saw her standing by herself on 21st Street. She told him that she had been detained, but that she would get in touch with him the next day and arrange a time when they could get together. When defendant turned to leave, R.K. came running from the vacant lot next to D.H.’s house, carrying a gun similar to the one admitted into evidence. Pointing the gun at them, R.K. accused D.H. of having an affair with defendant. While D.H. was explaining that they were just friends, defendant kicked the gun out of R.K.’s hand and grabbed him. D.H. picked up the gun. As soon as D.H. had the gun in her control, defendant released R.K. and started to walk away, assuming D.H. could handle the situation herself. When he turned back to look at them, defendant saw R.K. jump at D.H., at which point she swung the gun and hit R.K. in the right side of the head. D.H. then directed R.K. into the vacant lot at gunpoint and opened the trunk of the Oldsmobile. Defendant continued to walk away and did not see D.H. force R.K. into the trunk. When he saw her open the trunk, he thought she was just going to put the gun inside. As defendant approached the corner of 21st and Pulaski, D.H. pulled up to the curb in the Oldsmobile, honked the horn, and motioned defendant into the car. She was by herself. After he got in, she pulled the car into a nearby alley, turned it off and asked him if he wanted to have sex. When he agreed, she handed him some money and started to remove her pants. At this time, defendant did not know that R.K. was in the trunk.

While defendant was removing his clothes, D.H. told him that the money was an advance payment for defendant to shoot R.K. who was in the trunk. When defendant refused to do it, D.H. said that she would make it worth his while because she would be receiving insurance money and would have access to other money as well which was currently unavailable to her. When defendant told her that she was crazy and started to put on his clothes, D.H. started the car and sped off. She had not even pulled up her pants. Defendant told D.H. that he was going to jump out of the car the first time that she stopped, but she never did. Instead, she ran through both a stop sign and stop light. Defendant tried to grab the steering wheel and did manage to get the car to the right side of the road when suddenly D.H. grabbed the gun from under the seat and jumped out of the moving car. The car ran up over the curb and came to a stop next to a light pole. Defendant squeezed out of the passenger door and took a few steps toward a police officer who pulled out his gun and ordered defendant to lie down on the ground. When he tried to talk, the police officer told him to shut up or he would “blow his brains out.” A second police officer handcuffed him, searched him and took the money D.H. had given him. When R.K. was released from the trunk, he ran over to defendant and kicked him in the face. One of the officers then hit defendant on the forehead with a hard object, causing a wound that required six stitches. Defendant denied owning a gun and further denied ever having had oral sex with D.H.

During cross-examination, defendant stated that he did not recall an officer named Detective Rave and did not recall telling Rave that on the night of April 24, he had met D.H. at the Texas Lady Lounge early in the evening and arranged to meet her later at her house. Further, he did not recall telling Rave that he had put R.K. in the trunk and that D.H. voluntarily unzipped her pants and told him to perform oral sex. Defendant also claimed that while he was in jail the morning of his arrest, he was dizzy and kept passing out from his head wound that continued to bleed although it had been stitched and bandaged. The State then showed defendant photographs taken of him while in the cell which did not indicate that defendant’s head wound was bleeding through the bandages.

Rosie Hill, defendant’s girlfriend and mother of his two children, testified that prior to her appearance in court, she had seen D.H. twice and would never forget her face. Hill saw her the first time two weeks prior to the incident at the Texas Lady Lounge approximately 10 p.m. Hill had gone to the lounge looking for defendant and saw D.H. sitting on defendant’s lap, hugging and kissing him. Hill was furious and was about ready to start a fight when defendant took her home. The following weekend, Hill saw D.H. standing in front of the Texas Lady Lounge talking to defendant. When defendant saw Hill, D.H. left.

After the defense rested its case, the State recalled R.K. to the stand as a rebuttal witness. R.K. stated that D.H. was not a beneficiary on any of his insurance policies and that he had no large sums of money in the bank, nor did he have any joint bank accounts with D.H. Further, defendant, not D.H., was the one who had hit him on the head and forced him into the trunk.

D.H. also testified as a rebuttal witness that she does not own any life insurance policies on R.K. and does not know of any policies on R.K.’s life that name her as beneficiary.

Impeachment Version

Detective Edward Rave of the Chicago police department testified in rebuttal that when he interviewed defendant at police headquarters immediately following his arrest, defendant told him that he met “the girl” approximately two or three weeks earlier at a lounge and saw her again at the lounge on the night of April 24, approximately 8 p.m. At that time, they arranged to meet later at her house. Approximately 2 a.m., when defendant met D.H. in her backyard, he saw a male pull up in front of her house, stop for a second, drive away, and then return a short time later. While they were in the backyard, D.H. asked defendant to kill her boyfriend, explaining that she would pay him from the insurance proceeds. D.H. and defendant then walked to the front of the house where defendant took money from both D.H. and R.K. and forced R.K. into the trunk. D.H. and defendant then got into the car where D.H. unzipped her pants and asked defendant to perform oral sex. When they had been driving a short distance, and defendant told D.H. that he would not kill R.K., she became furious and “piled the car into a barricade.” Defendant told Rave that the gun belonged to D.H. Throughout the interview, defendant consistently referred to D.H. as “the girl,” and never mentioned either her or R.K. by name. When Rave asked defendant what “the girl’s” name was, defendant replied, “You know it.” At trial, Rave identified defendant as the man he had interviewed on the morning of April 25, 1982.

Following closing arguments and jury instructions, the jury returned its verdicts of guilty, and the court granted the State’s motion to revoke bond.

At the sentencing hearing, the trial court denied defendant’s motion for a new trial and heard testimony in mitigation from defendant’s girlfriend, his mother, a former employer and a niece. Following further argument by both counsels as well as a statement by defendant, the trial court sentenced defendant to concurrent terms of 25 years on each of the four counts.

Opinion

We shall first address defendant’s contention that the trial court’s erroneous jury instructions regarding the charge of aggravated kidnaping denied him a fair trial. Defendant bases his argument on the fact that the indictment set forth the following elements of the offense: that he (1) knowingly, (2) by force or threat of imminent force while armed with a dangerous weapon, (3) carried R.K. from one place to another with intent to secretly confine R.K. against his will; while the jury instructions stated that to sustain the charge of aggravated kidnaping, the State must prove that defendant, while armed with a dangerous weapon, secretly confined R.K. against his will. Because the indictment set forth intent to secretly confine as one of the essential elements and the instructions set forth actual secret confinement, defendant contends that the jury was not instructed on the elements of the crime charged.

In response, the State argues that defendant has waived review of this issue because he did not object to the jury instruction at trial and did not allege it as error in his post-trial motion. We agree and find People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248, dispositive of the issue. In Huckstead, at the conclusion of a murder trial, the jury received instructions regarding the State’s burden of proof (Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.03 (1968)) and the elements necessary to sustain a murder charge (IPI Criminal No. 7.02). However, the jury did not receive IPI Criminal No. 25.05, which provides that'the State must also prove beyond a reasonable doubt that the degree of force used by defendant was not justified. Defendant argued that the trial court’s failure to give IPI Criminal No. 25.05 constituted plain error. The Huckstead court held that because defendant did not object to the jury instructions at trial, did not tender IPI Criminal No. 25.05 to the court, and did not raise the issue in his post-trial motion, the asserted error was waived. (People v. Huckstead (1982), 91 Ill. 2d 536, 543.) Addressing the plain error argument, the court further stated:

“The [plain error] exception is restricted to the correction of ‘grave errors’ [citations] or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. [Citations.]
* * *
We believe in this case, the instructions, in combination with the closing arguments by counsel for both sides, apprised the jury that the State had the burden of proving that defendant was not justified in the force he used. Consequently, the failure of the trial court to give IPI Criminal No. 25.05 did not constitute ‘grave error.’ ” 91 Ill. 2d 536, 544-45.

Similarly, in the present case, defendant failed to object to the jury instructions at trial, failed to tender substitute jury instructions to the court, and failed to include the jury instructions issue in his post-trial motion. Thus, we find that he has waived the issue for review. Moreover, in light of the fact that actual secret confinement of one by another who is armed with a dangerous weapon is a manifestation of the intent to secretly confine another by force or threat of force, proof of the former is necessarily conclusive of the latter. Accordingly, we conclude that the discrepancy in jury instructions did not constitute grave error such as would give rise to review of the issue under the plain error rule.

Defendant’s correlative contention that defense counsel’s failure to object to improper jury instructions does not constitute waiver when the instruction at issue deals with the elements of the offense is inaccurate. In People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027, the supreme court held that the trial court’s error in instructing the jury as to an essential element of the offense of felony theft had been waived by defense counsel’s failure to object to the instructional error at trial or to raise the issue in the post-trial motion. In Tannenbaum, as in the present case, the court found that the evidence as to the missing element was so overwhelming and uncontradicted, that it was “inconceivable that defendants could have suffered any prejudice.” 82 Ill. 2d 177, 182.

Defendant further relies on People v. Lewis (1969), 112 Ill. App. 2d 1, 250 N.E.2d 812, as support for his argument that the error cannot be waived because it is the trial court’s duty “to ensure the jury was properly instructed on the elements of the offense.” We find Lewis factually distinguishable from the present case and, thus, of no persuasive value. In Lewis, defendant, charged with the unlawful sale of narcotics, plead insanity as his defense. The appellate court held that the jury was not adequately instructed as to the elements of the crime charged because the instructions (1) omitted the element of the crime relating defendant’s mental state; and (2) failed to delineate authorized statutory exceptions to the sale of narcotics. In our opinion, there is no comparison between the egregious omissions in Lewis and the inconsequential discrepancy in the present case which the evidence, closing arguments and instructions as a whole clearly nullify.

Finally, even if defendant’s objection to the jury instructions had not been waived, defendant would not have prevailed on this issue. The offense of aggravated kidnaping is defined, in pertinent part, as follows:

“Aggravated kidnaping, (a) A kidnaper within the definition of paragraph (a) of Section 10 — 1 is guilty of the offense of aggravated kidnaping when he:
* * *
(3) Inflicts great bodily harm or commits another felony upon his victim, or
* * *
(5) Commits the offense of kidnaping while armed with a dangerous weapon, ***.” (Ill. Rev. Stat. 1983, ch. 38, pars. 10—2(a)(3), (5).)

Collaterally, the offense of kidnaping is defined, in pertinent part, as:

“(a) Kidnaping occurs when a person knowingly:
(1) And secretly confines another against his will, or
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will. ***.” Ill. Rev. Stat. 1983, ch. 38, pars. 10 — 1(a)(1), (2).

As previously discussed, the indictment in the present case charged defendant with aggravated kidnaping predicated upon intent to secretly confine R.K. against his will, while the instructions focused on actual secret confinement of R.K. against his will. As the above statutory definitions clearly indicate, the discrepancy does not result in an indictment for one offense and an instruction for another offense as defendant argues. Rather, the discrepancy is merely between two subdivisions of the same offense (People v. Turner (1976), 35 Ill. App. 3d 550, 573, 342 N.E.2d 158), which does not serve to vitiate a conviction unless the discrepancy was of “ '*** such a character as to mislead the defendant in his defense or expose him to double jeopardy.***’ ” (People v. Allen (1974), 56 Ill. 2d 536, 542, 309 N.E.2d 544.) In the present case, there is no evidence that defendant was misled in his defense, by surprise or otherwise, and there is no possibility of the existence of double jeopardy. Accordingly, we conclude that defendant was not prejudiced by the jury instructions and any error by the trial court was harmless.

We turn next to defendant’s contention that pursuant to section 5 — 8—1(a)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(4)), the trial court erred in imposing a sentence in excess of 15 years for the offense of aggravated kidnaping without a ransom which is classified as a Class 1 felony. Ill. Rev. Stat. 1983, ch. 38, par. 10-2(b)(2).

The general rule regarding sentence review is that imposition of a sentence is a matter of judicial discretion and absent an abuse of discretion, the sentence of the trial court will not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) The rationale behind this rule is that because the judgment as to the proper sentence must be based on the particular factual circumstances of each case as well as on the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age, which the court is in a superior position to consider, its decisions as to sentencing are entitled to great deference and weight. People v. Daugherty (1982), 104 Ill. App. 3d 89, 91-92, 432 N.E.2d 391.

With respect to the alleged statutory violation, we are cognizant of the fact that this issue was raised for the first time during oral argument, having been overlooked not only at the trial level, but also in the appellate briefs. Ordinarily, such an oversight would result in waiver of the issue for review. (People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) However, because the sentence imposed for aggravated kidnaping is patently violative of the sentencing statute, we elect to review this issue under the plain error rule. 87 Ill. 2d R. 615(a).

The offense of aggravated kidnaping other than for ransom is. statutorily defined as a Class 1 felony (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(b)(2)), punishable by a sentence not less than four years and not more than 15 years (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8— 1(a)(4)), unless the trial court has expressly indicated that the particular circumstances warrant an extended term sentence (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2). Because the record in the present case is void of any evidence that the trial court intended to impose an extended-term sentence, we conclude that the trial court abused its discretion and erroneously imposed a 25-year sentence for the offense of aggravated kidnaping without a ransom. Accordingly, pursuant to Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)), which grants reviewing courts the power to reduce sentences imposed by the trial court, we reduce the aggravated kidnaping sentence to 15 years.

With respect to the sentences imposed for the remaining convictions, we shall address defendant’s contentions that the trial court erroneously considered his refusal to acknowledge guilt and did not give proper consideration to his excellent prior record. We disagree.

At the sentencing hearing, following arguments in aggravation and mitigation, which included mitigating testimony by several of defendant’s family members and a former employer, the trial court stated:

“Mr. Singleton, you stand convicted of two counts of armed robbery and one count of aggravated kidnapping and one count of deviate sexual assault. A jury heard the evidence in the case and found you guilty of those four charges.
I would say the State’s case was a very, very strong case, a very strong case. I think you have received a fair trial, and I think you received effective and vigorous representation.
I take note of the fact that you have some people in your family, someone you worked for [for] a couple of years, who love you very much and care a great deal about you. I wish you had been thinking about them on the night that you got into all this trouble. I believe very strongly that you did it.
I had the opportunity to observe your testimony during the course of the trial, and I must say that I couldn’t believe the preposterous story you told any more than the way you told it. Your own effect on the witness stand lacked any credibility as far as I’m concerned.
Under the law I could sentence you to consecutive sentences amounting to 120 years. When I think about your family, they all seem to be very nice people, but I’m also thinking about the people who you hurt, people you might have hurt much worse if that squad car hadn’t been where it was on Harlem Avenue on the night in question.
I note your total lack of contrition, a total sense of disregard for the conventions that you must have been taught as a young child at home or at church, and you have rejected all that. I saw you sitting up on that witness stand perjuring yourself so you rejected it just as you rejected it on that night. I don’t think you are entitled to any leniency in sentencing.
However, I take note of the fact that you are 25 years old, and that you do have a family that cares about you and that may work with you over the years to come and perhaps bring you around to believe that what you were taught in church was right.”

As a general rule, a sentencing judge has the legal authority to evaluate a defendant’s testimony on the stand, to determine whether that testimony contained wilful and material falsehoods and to balance that determination against his prospects for rehabilitation and restoration to a productive position in society. (People v. Galati (1979), 75 Ill. App. 3d 860, 865, 393 N.E.2d 744.) Moreover, a sentencing judge may properly consider what he believed to have been perjury committed by defendant during the trial. United States v. Grayson (1978), 438 U.S. 41, 55, 57 L. Ed. 2d 582, 592, 98 S. Ct. 2610, 2618.

In the present case, the trial court commented on the State’s strong case, defense counsel’s vigorous representation, defendant’s rehabilitative potential as demonstrated by a caring family, defendant’s lack of credibility on the stand, his absence of any sense of contrition, and the court’s belief that defendant had perjured himself on the stand. In our opinion, none of these comments demonstrates an abuse of discretion by the trial court. Moreover, we do not interpret the court’s comment regarding defendant’s lack of contrition as an improper comment on his refusal to admit guilt. Instead, we construe it as a comment on defendant’s demeanor, a factor well within the trial court’s purview. Thus, in light of the circumstances and factors considered by the trial court in rendering its sentence determination, we conclude that the imposition of concurrent terms of 25 years for the remaining convictions was not an abuse of discretion.

Finally, we find that defendant’s reliance on People v. Williams (1978), 62 Ill. App. 3d 966, 379 N.E.2d 1268, People v. Hastings (1979), 72 Ill. App. 3d 816, 390 N.E.2d 1273, and People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655, as support for his argument that his clean record, youthful age and rehabilitative potential mandate reduction of his sentences is misplaced. In Williams, defendant, age 21, was sentenced to a term of 40 to 140 years’ imprisonment for convictions of armed robbery, aggravated battery and attempted murder. On appeal, the reviewing court reduced defendant’s sentence to 15 to 45 years, noting defendant’s young age, the absence of previous convictions, his unstable home life, and the fact that he had a young child. In reaching its decision, the court stated, “[W]e have an obligation to uphold the constitutional objective of restoring this youthful offender to resourceful citizenship.” (People v. Williams (1978), 62 Ill. App. 3d 966, 976.) The pivotal distinction between Williams and the present case is the length of the original sentence imposed in Williams which the court found impeded rehabilitation. To the contrary, we do not find that the 25-year concurrent sentences imposed in the present case impinge on the goal of restoring defendant to “resourceful citizenship.”

In Hastings, the appellate court focused on defendant’s rehabilitative potential and reduced his sentence of 20 to 60 years for deviate sexual assault to nine to 27 years. In making its determination, the Hastings court considered defendant’s youth, his record of only one misdemeanor conviction and his successful completion of trade school. Admittedly, in the present case, defendant is also young and has no prior convictions. However, the similarities terminate there. Defendant is a high school drop-out, and has held eight different jobs within a period of seven years, the longest one for a year. Further, although he is enlisted in the Marine Reserves, the record reveals that defendant’s monthly reserve pay has been terminated for nonattendance at weekend reserve meetings. More importantly, in Hastings, defendant was convicted solely of deviate sexual assault, while, in the present case, defendant was armed with a .37 magnum, robbed both D.H. and R.K., forced R.K. into an automobile trunk at gunpoint, threatened R.K.’s life, and performed cunnilingus on D.H.

Finally, in Nelson, defendants’ sentences for armed robbery were reduced from 20 years to 10 years in light of their ages, prior scholastic records, work histories, and criminal records. Again, we acknowledge the similarity between the two cases as far as age and absence of a prior criminal record. However, we also acknowledge the dissimilarities, i.e., scholastic records, work histories, and the expressed desire to receive job counseling and training, and therefore find Nelson unpersuasive.

In summary, we find that the trial court properly considered the evidence in mitigation and did not abuse its discretion in imposing 25-year concurrent sentences for deviate sexual assault and two counts of armed robbery. We further find that the trial court’s error regarding the sentence imposed for aggravated kidnaping does not necessitate a remand for resentencing on all counts. See People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655.

Accordingly, we affirm the convictions, affirm the 25-year sentences for deviate sexual assault and the two counts of armed robbery, and reduce the aggravated kidnaping sentence to 15 years, all to be served concurrently.

Affirmed as modified.

MEJDA, P.J., and O’CONNOR, J., concur.

      This opinion was prepared by the late Mr. Justice Wilson and was adopted and filed as the opinion of the court.