author: PRESIDING JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL PUENTE, Defendant-Appellant.
    First District (5th Division)
    No. 82—2358
    Opinion filed June 22, 1984.

      William P. Murphy, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Jack M. Bailey, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Samuel Puente, appeals from his conviction and sentencing, following a bench trial, for the offenses of attempted murder, armed violence and aggravated battery. He raises four issues for review: (1) whether his sixth amendment right to confront witnesses was violated; (2) whether he was proven guilty beyond a reasonable doubt; (3) whether he was denied effective assistance of counsel; and (4) whether the court erred in imposing sentence. We affirm.

Marie Hernandez testified that on December 25, 1981, she lived at 4300 West 25th Street in Chicago with her husband, Lupe Hernandez, her niece, Michelle Puente, and her son. At about 2 p.m. on that date her brother, the defendant, came to her home. He gave her a small package and told her that it contained $2,000. Defendant then went to lie down in one of the bedrooms and slept until about 6:30 p.m. At that time, at defendant’s request, Marie returned the package to defendant and then left the house with other family members. Only Lupe and defendant remained in the house. Marie returned about 11 p.m. accompanied by her three sons, her daughter-in-law, her 2V2-year-old grandchild and her niece, Michelle. Shortly thereafter her sons and daughter-in-law left the house but Marie’s grandchild and Michelle remained and stayed in the kitchen. Defendant then again requested that Marie return the money. When she told him that she had given it to him at 6:30 p.m. he started to argue with her. Lupe said that he didn’t want defendant to argue with his wife and threatened to call the police unless defendant left the house. Marie told Lupe not to call the police and he then hung up the telephone. Marie testified that at that time she saw nothing in either defendant’s or her husband’s hands. She turned her back to go into the dining room and then heard a shot. When she heard the shot she ran to her bedroom and locked herself in and called the police. From the bedroom she heard more shots but did not know how many.

The witness testified that her husband had been hospitalized since that day. He was wounded in the head, neck and stomach. He is partially paralyzed and drags his feet when he walks. His speech is slurred and he has suffered some memory loss. At the time of trial the hospital bills totaled over $300,000. Marie also testified that her husband did not own a gun or keep one in the house.

Michelle Puente testified that she is 18 and has lived with Lupe and Marie Hernandez for seven years. She is their godchild and calls them father and mother. Defendant is her uncle. Michelle stated that on the day in question defendant came to the Hernandez house, gave Marie Hernandez a package which he said contained $2,000 and asked her to hold it for him. Marie put the package in a drawer and returned it to defendant, upon his request, before leaving the house at 6:30 p.m. The witness testified that later that evening she was in the doorway of the kitchen, about 10 steps away from defendant and Lupe when they began arguing. Defendant kicked Lupe and Lupe then grabbed defendant’s foot. Defendant then pulled out a gun. Michelle stated that defendant and Lupe struggled over the gun and she saw defendant’s hand on the gun just before she heard the first shot. She recalls hearing two shots fired. When Lupe fell to the floor she screamed and ran for the back door. Defendant then pointed the gun at her face and said, “You are not going anywhere. You want me to kill you?” The witness then stated that defendant stood over Lupe as he was lying on the floor, pointed the gun at him and said, “I’m going to put you to sleep.” Michelle then ran out of the house and remained outside until the police arrived.

David Bocian, a police officer, next testified that he and his partner entered the Hernandez home in response to a call about 11:15 p.m. on December 25, 1981. He pointed to his own gun and asked a child, approximately two to three years old, where the man with the gun was. The child led him to the stairs going to the second floor and pointed up the stairway. As the officers went up the stairs, defendant was there, pointing a gun at them. They retreated downstairs, announced that they were police officers and ordered defendant to throw down his gun. Defendant did so upon the second request and was placed under arrest.

The .38 caliber revolver recovered from defendant was introduced into evidence along with six live cartridges and three spent casings. The spent casings and two live rounds were recovered from the cylinder of the revolver. The other four live rounds were recovered from the floor of the kitchen and from defendant’s pockets. The police officer did not know whether Lupe’s fingerprints were on any portion of the gun.

It was stipulated that, if called, Drs. Kaplan and Richardson would testify that 1,000 pages of medical history concerning Lupe Hernandez was true and accurate and that they had performed a series of operations on Lupe including operations on his brain and on portions of his body in the area of his stomach and that the nature and extent of Lupe’s injuries was extremely serious.

Defendant testified in his own behalf. He stated that he went to his sister’s house on December 25, 1981, to pick up a package he had left there. He had a conversation with his sister and then asked her for his belongings — a leather pouch containing a .38 caliber handgun, some money, the title to a truck and some other papers. He took the pouch and his sister left'to go to the store. He finished several drinks, then fell asleep at the table. He testified that when he awoke the pouch was open, the money was gone and Lupe was standing by the table. They argued over who had taken his money and Lupe told him to get out of the house. Defendant said that Lupe then pulled a gun which had been in the pocket of defendant’s jacket hanging on the back of his chair. The two struggled for the gun. Defendant stated that he was drunk and does not remember exactly, but that the gun went off two or three times. Defendant then took the gun from Lupe and went up into the attic. He denied pointing the gun at the police officers and said that he surrendered his gun upon their request. He denied being the aggressor at any time. Defendant said that neither the three-year-old child nor Michelle was in the kitchen when the shooting occurred. He also denied that Marie was home at that time and stated that she had gone to the store. Defendant denied pointing the gun at Michelle and stating that he would kill her.

After finding defendant guilty on all charges and that the convictions for aggravated battery merged into the convictions for attempt murder and armed violence, the court then imposed sentence of 40 years’ imprisonment under the extended-term statute for attempt murder and armed violence. Defendant appeals.

Opinion

The first issue is whether defendant’s sixth amendment right to confront witnesses was violated. It is undisputed that the right granted to an accused by the sixth amendment to confront the witnesses against him is a fundamental right essential to a fair trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) Such right includes both the opportunity to cross-examine and the occasion for the trier of fact to assess the credibility of the witness. Barber v. Page (1968), 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318.

Defendant here asserts that Lupe Hernandez, as the “victim of the alleged attempt murder” was, in fact, the ultimate witness against him. He argues, therefore that the State’s failure to call Hernandez as a witness or to establish his unavailability for trial violated his right of confrontation.

We find no merit in this contention. Defendant’s argument that Hernandez was a witness against him solely because he was the victim of the shooting here at issue is specious. It is not disputed that Hernandez was shot as a result of an altercation with defendant. However, he was not a sworn witness in the instant trial nor was his testimony introduced into evidence in any form. (Cf. Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (testimony taken at a preliminary hearing was introduced at trial).) He, therefore, was not a “witness” against defendant; accordingly, defendant had no constitutionally guaranteed right to cross-examine him.

Moreover, the State is not required to call every witness to a crime in order to sustain its burden of proof. (People v. Nowak (1970), 45 Ill. 2d 158, 168, 258 N.E.2d 313; People v. Zehr (1982), 110 Ill. App. 3d 458, 442 N.E.2d 581.) The State was, therefore, under no duty to call Lupe as a witness if it could meet its burden of proof without his testimony. Further, the witness in question was known to defendant and could have been called by him to testify. Having failed to do so, defendant cannot claim prejudice by the State’s failure to call him. People v. Nowak (1970), 45 Ill. 2d 158, 258 N.E.2d 313.

Defendant also asserts that a negative inference may be drawn from the unexplained absence of an apparently available witness. “While such an inference is sometimes proper (People v. DiVito (1966), 66 Ill. App. 2d 282, 214 N.E.2d 320) it has not been invoked where *** an eyewitness testified directly as to the event, and [her] testimony is ‘clear and convincing’ and ‘complete in all respects.’ People v. Graham (1970), 127 Ill. App. 2d 272, 277, 279, 262 N.E.2d 243, 246.” (People v. Rowe (1977), 45 Ill. App. 3d 1040, 1045-46, 360 N.E.2d 436.) This is such a case. Any negative inference drawn from the absence of Lupe Hernandez as a witness could properly be abated by the testimony of Michelle Puente. Accordingly, we find no violation of defendant’s right of confrontation.

The second issue raised is whether defendant was proven guilty beyond a reasonable doubt. In support of his contention that he was not proven guilty beyond a reasonable doubt defendant asserts, first, that the State failed to prove all the material and essential facts constituting the crimes he was charged with and, second, that the court failed to consider his testimony that he had acted out of self-defense.

Resolution of this issue turns on the credibility of the witnesses. It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be accorded their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) Wliere the evidence is merely conflicting the reviewing court will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Clark (1964), 30 Ill. 2d 216, 195 N.E.2d 631.) A criminal conviction will not be reversed unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.

It is unnecessary to repeat the testimony of all the witnesses at trial. The testimony of a single witness, if credible, is sufficient to sustain a conviction even where that testimony is contradicted by the accused. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) The trial court here heard the witnesses’ accounts of the shooting and made its determination as to credibility. The court was under no duty to accept defendant’s testimony as true where other conflicting testimony was presented. Our review of the record discloses ample evidence to support the judgment of the trial court. We are, therefore, unable to say that defendant was not proven guilty beyond a reasonable doubt.

The third issue is whether defendant was denied effective assistance of counsel. Our supreme court recently held that the standard for determining when the inadequacy of trial counsel entitles a defendant to a new trial is whether the incompetence produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163, 169-70, 457 N.E.2d 1217; People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Effective assistance means competent, not perfect, representation. (People v. Berland (1978), 74 Ill. 2d 286, 311, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64.) Matters involving the exercise of judgment, trial tactics or strategy will not be reviewed by this court (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213), even where appellate counsel or the reviewing court might have handled the case differently. (People v. Smith (1980), 81 Ill. App. 3d 764, 773, 401 N.E.2d 1017.) Furthermore, a defendant who charges that his counsel was incompetent must establish both the actual incompetency and the resultant prejudice and may not rely on mere conjecture or speculate as to the outcome of the case had the representation been of a higher quality. People v. Hills (1980), 78 Ill. 2d 500, 505-06, 401 N.E.2d 523.

Defendant here contends that he was denied effective assistance of counsel because of (1) the brevity and content of the opening statement; (2) his counsel's failure to cross-examine any of the witnesses on the issue of self-defense; (3) counsel’s stipulating to over 1,000 pages of medical records concerning the victim’s injuries which resulted from the shooting here at issue; and (4) counsel’s failure to object to the State’s failure to explain the unavailability of the victim as a witness. Making or waiving an opening statement has been held to be a question of judgment in strategy (People v. Georgev (1967), 38 Ill. 2d 165, 169, 230 N.E.2d 851, cert, denied (1968), 390 U.S. 998, 20 L. Ed. 2d 97, 88 S. Ct. 1202) and therefore will not be reviewed. (People v. Gallardo (1983), 112 Ill. App. 764, 445 N.E.2d 1213.) Thus the making of a brief opening statement and the content thereof cannot be said to indicate professional incompetence. Similarly, we find the extent to which witnesses are cross-examined to be a matter of strategy and, therefore, beyond the scope of our review. A stipulation to the contents of voluminous medical records was also a matter within the judgment of trial counsel, who may have considered such stipulation preferable to the possibility of having such evidence emphasized by lengthy and detailed testimony regarding the victim’s injuries. Finally, defendant maintains that counsel’s failure to have the State explain the unavailability of the victim evidences incompetence. He infers that, if called to testify, the victim would have supported his own assertion of self-defense. Upon review, the record discloses that the State represented to the trial court that the victim would encounter transportation difficulties in appearing before the trial court due to paralysis and other physical conditions resulting from the shooting. Marie Hernandez testified to the victim’s physical condition and to his loss of memory due to his injuries. As stated earlier in this opinion we do not believe the State was under any obligation to produce, as a witness, the victim of this shooting but, in any event, we find that the decision not to require evidence that, due to the severity of his injuries, the victim was absolutely incapable of appearing before the trial court was within the judgment of trial counsel. Moreover, the contention that the victim’s testimony would exculpate defendant is no more than speculation on defendant’s part for which we find no support in the record. Regarding all of the above assertions of incompetence, defendant fails to show a resultant prejudicial effect without which the outcome of the trial would probably have been different. (See People v. Moore (1981), 102 Ill. App. 3d 651, 658-59, 429 N.E.2d 1312.) Accordingly, on the record here presented we are unable to find that defendant was denied effective assistance of counsel.

The final issue for review is whether the sentence imposed upon defendant was improper. The sentencing judge is vested with wide discretion “in order to permit reasoned judgments as .to the penalty appropriate to the particular circumstances of each case.” (People v. La Pointe (1982), 88 Ill. 2d 482, 492, 431 N.E.2d 344.) The trial court is normally the proper forum for determination of a suitable sentence and its decision will not be disturbed absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

The statute provides that the sentence for the crime of attempted murder, for which defendant was convicted, is the sentence for a Class X felony. (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)(1).) An extended term of not less than 30 nor more than 60 years may be imposed if the factors in aggravation set forth in section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2) are found to be present. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)(2).) Such factors include a finding by the court that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2).) The statute further provides that the court shall, at the sentencing hearing, consider evidence and information in aggravation and mitigation and shall specify on the record the particular factors that led to its sentencing determination. Ill. Rev. Stat. 1981, ch. 38, par. 1005-4-1.

Defendant argues that the court failed to give due regard to the mitigating factors of his case: his age (49), stable employment record and minimal prior criminal record. He asserts that the analysis that must accompany each sentencing determination is summarized by our supreme court’s statement that “[i]n this State, the spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant.” (Emphasis added.) (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233.) Defendant contends, therefore, that in imposing a 40-year sentence the trial court abused its discretion.

The record does not support that contention. Ignored by defendant is the supreme court’s statement which immediately preceded the above-quoted language. There the court stated: “This court will not disturb a sentence imposed by the trial court unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose.” (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233.) In the instant case the trial judge heard factors in aggravation and in mitigation in accordance with the statute. He then made a specific finding that the acts of the defendant were “heinous, brutal and outrageous” and, on that basis, imposed an extended-term sentence. Nothing in the record indicates that the court failed to consider the rehabilitative potential of the defendant. The term of the sentence imposed was well within the allowable range and was not the most severe allowed by law. Based upon this record, we cannot say that the sentence imposed constitutes a great departure from the fundamental law or its spirit and purpose and, accordingly, we are unable to say that the imposition of such sentence was an abuse of discretion.

The State requests that this court grant costs in the amount of $50 for defending the appeal and $25 for oral argument. Under the authority of section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8) and People v. Nicholls (1978), 71 Ill. 2d 166, 174, 374 N.E.2d 194, we assess defendant $50 in costs for the State’s defense of this appeal and hereby incorporate it as part of this judgment. We deny the State’s request for an additional $25 for oral argument. Our denial is predicated upon our interpretation of the per diem provision of the statute as referring to an actual trial in the circuit court, not to an oral argument on appeal. See People v. Hall (1983), 117 Ill. App. 3d 788, 805-06, 453 N.E.2d 1327.

For all the foregoing reasons we affirm the judgment of the circuit court.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SHIFLET, Defendant-Appellant.
    Second District
    No. 2—82—0245
    Opinion filed June 20, 1984.
    Rehearing denied July 20, 1984.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Prei-ner, Thomas L. Knight, and Diana Fischer-Woods, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, John Shiflet, was convicted of the murder of his wife, Rose Shiflet (Ill. Rev. Stat. 1979, ch. 38, par. 9— 1(a)(1)) and was sentenced to imprisonment for his natural life.

He appeals, contending that the trial court erred: (1) by failing to exclude evidence seized pursuant to a search warrant obtained in violation of defendant’s attorney-client privilege; (2) by denying defendant an evidentiary hearing of his assertion that the complaints for two earlier search warrants under which evidence was seized contained false statements; (3) by the admission in evidence of a statement by defendant which the State had failed to disclose prior to trial; (4) by the admission of evidence relating to the victim’s blood for lack of foundation and proof of chain of custody; (5) by admission of certain building records without adequate foundation; and (6) by denying defendant due process and equal protection of the law in imposing a sentence of natural life imprisonment.

Rose Shiflet was reported missing by her husband, defendant herein, on the evening of September 30, 1980, and her body was discovered early the next morning in an unincorporated area near Na-perville about three miles from the apartment she had shared with defendant in Lisle. She was wearing a shirt and jeans and was barefoot; an investigator noted her hands and feet were very clean, there were blood stains on the shirt and a black tar-like substance on the jeans. He then went to the Shiflet apartment complex, where he found a blood-spotted leaf lying next to an automobile identified as belonging to the victim and blood spots on the rear portion of the car and also on the steps leading to the Shiflet apartment.

Officers had a conversation with defendant later that morning when they asked him to relate the events of the previous evening. Defendant stated that when she arrived home from work about 4:45 p.m., his wife was upset over an argument with her father and a kidney infection. They talked for over an hour and he advised her to seek professional help, which she rejected. At about 8 p.m., while they were watching a television movie, he stated she became emotional and threw a glass of iced tea on the floor, saying, “five got to get out of here”; she then left the apartment. When Rose didn’t return, defendant stated he drove around looking for her, then called her sister and brought her to the apartment where decedent’s mother later joined them. Defendant stated he called the sheriff’s office at 11:30 p.m. to report his wife missing and did so again at 5 a.m., when an officer was dispatched to take a missing person report.

Joan Alieva, decedent’s mother, testified defendant called her between 7:30 and 8 a.m. on September 30 and requested that she not call her daughter that evening, as was her custom, because defendant wished to have a serious discussion with Rose without interruption. Defendant also called decedent’s sister, Lynda Alieva, at 4:45 that afternoon with the same request.

Lynda Alieva testified she had also received a call from defendant at 10 p.m. on September 30, advising her Rose had been missing since leaving the apartment at 8 o’clock. Lynda told defendant she was coming over, and he at first refused to let her come, but then agreed to pick her up. Defendant arrived at Lynda’s home, a 20-minute drive, at 11:10 p.m., saying he had been searching for Rose. On the trip back to defendant’s apartment, he told her that Rose had become upset and, after throwing tea on the floor, left, saying she was going to a store for ice cream and would return later. When they arrived at the apartment, defendant went into the bathroom where he remained for quite a while and Lynda could hear water running. When he came out defendant had changed his pants and he then pointed out a wet area on the rug where he said the tea had been spilled.

Joan Alieva came over later and, after calling the hospitals, she and Lynda decided to walk around looking while defendant remained in the apartment by the telephone. As they left the apartment, defendant advised them to be careful on the stairs as he had slipped and scratched his knuckles on the brick wall. He also told them the scratches and gouges on his arms they had observed were caused when he looked in bramble bushes for Rose.

After walking about the complex for 10 minutes the women returned for the car and found defendant at the rear of it with the trunk open; he then closed the trunk and they all went into the apartment. The women noticed Rose’s glasses on a bookcase and were disturbed because she could not see well without them, especially at night. At about 5 a.m. the police were called again, and at 9 a.m. they were informed Rose’s body had been found. That evening Joan Alieva saw Rose’s body at a funeral home and noticed her fingernails had been cut very short, although she had always worn them long.

Dennis Varhol, the Shiflet’s next door neighbor, testified he heard whimpering and hitting noises from the Shiflet’s apartment at approximately 8:30 p.m. on September 30 which lasted for several minutes.

An autopsy of decedent’s body disclosed a large wound on top of the head which penetrated to the skull. The physician testified such a wound bleeds profusely and as the victim’s hair was not contaminated by blood, he concluded it had been washed. The doctor also noticed small scratches on the neck and hemorrhages of the skin of the face and neck. He expressed the opinion the victim died from loss of blood and that at least one-half of the blood volume was absent. The doctor also noted evidence of strangulation, but could not say it contributed to the death. The doctor was unable to take fingernail scrapings from the victim as the nails had been clipped too short, but did remove a tar-like substance from her body and drew two blood samples, one of which he gave to Thomas Duhig, a sheriff’s evidence technician who was present at the autopsy.

At about noon on October 1, defendant attempted to remove his wife’s car from its parking place near the apartment. When an officer stopped him, defendant stated he was taking it on his attorney’s advice, but was not permitted to do so. At 2:30 p.m. that day a vacant apartment below defendant’s was searched by officers, who found blood and matted hair in a closet and traces of blood on the bathroom fixtures. On October 1, search warrant No. 3218 was issued by the circuit court authorizing a search of defendant’s apartment which was conducted at 5:45 p.m.; a pair of blue jeans and a shirt were seized. The pants were damp, and benzidine tests conducted on stained areas were positive for the presence of blood. On October 2, search warrant No. 3215 was issued authorizing a search of Rose Shiflet’s 1980 Chevrolet automobile. Positive test results for the presence of blood were, obtained on several items including the trunk carpeting, plastic molding on the interior of the trunk, a tarp and on the handle of an ax. The officers also noted that the rubber molding around the lid had torn away and a tar-like substance was there seen which was similar to the substance found on Rose Shiflet’s foot and hand.

At 8:30 p.m. on October 3, 1980, search warrant No. 3219 was issued authorizing a second search of defendant’s apartment. On examining the living room carpet the officers noted that a section of it was stiff and cut the carpeting out at that spot, finding blood stains on the padding and flooring below. In addition, the officers seized a hair dryer bearing a blood stain, a vacuum cleaner bag and its contents, nail clippers, a towel, and a hammer to which human hair similar to the victim’s had adhered. The evidence seized in the search was submitted to the Du Page County crime laboratory, the director of which testified in trial to having performed tests which determined that one of the hairs on the hammer was human, the ends crushed and it compared with that of decedent, although he could not say conclusively that the hairs were identical. Tests conducted on the hammer disclosed positive results for blood, and he determined that type A human blood was present on Rose Shiflet’s shirt, the samples taken from the trunk of her automobile, the blood-spotted leaf found next to the car, the wallboard taken from the closet of the lower, vacant apartment, the blue jeans found in the bedroom of defendant’s apartment, and on the padding and flooring from that apartment. He was unable to type the blood found on the carpeting although he determined it was human. He further testified that the tar-like substance removed from the victim’s hand and foot were essentially the same in chemical composition as the sample removed from the rear of her automobile. This witness further testified that he had received a blood sample taken from the victim and determined that it was type A. He also discovered a nail clipping caught in the fibers of the carpeting removed from defendant’s apartment and further clippings in the vacuum cleaner bag.

I

Search Warrant No. 3219

Defendant contends first that the evidence seized from his apartment pursuant to search warrant No. 3219 should have been suppressed pursuant to his motion, as the complaint and affidavit for search warrant were premised upon privileged information in violation of his attorney-client privilege.

At the hearing of the defendant’s motion to suppress, evidence was presented that at 1 p.m. on October 1, 1980, defendant met with attorney Charles Kaeding, to whom he had been referred for possible representation on a murder charge, although none had yet been filed. They discussed the ongoing investigation into the death of Rose Shiflet, and attorney Kaeding agreed to defend in the event charges were placed against defendant. Attorney Kaeding then brought into his office an investigator, John Ylisela, and instructed defendant that Ylisela would discuss the matter with him in greater detail and he should answer his questions and cooperate with him. Defendant did so.

Paul Dugan, a deputy sheriff, testified at the hearing that John Ylisela called him at the sheriff’s office on the evening of October 1 and, after inquiring whether Dugan was working on a murder investigation in which the victim’s name was Rose, Ylisela asked to meet with him. Dugan had known Ylisela for several years and they had been fellow police officers; Dugan believed Ylisela was now working as an investigator for an insurance company. When they met a few minutes later at about 8 p.m. in a parking lot, Ylisela told Dugan that defendant had killed his wife and gave a detailed account of how he had done so and disposed of her body. Ylisela related that while watching a loud movie on television, defendant struck Rose on the head with a hammer with a new handle; she fell to the floor but was not dead so he choked her. She scratched him repeatedly on his arms and upper body. Defendant placed a plastic bag over her head and clipped her fingernails, then cleaned up the carpet with soap and water, drying it with a hair dryer. He placed the body in the trunk of her car, then called the police to advise his wife was missing. Thereafter, defendant drove into the country and dumped the body near the road. When defendant returned to the apartment, he called his wife’s family and brought one of them to the apartment. While she was there he noticed blood on his pants and cleaned them in the sink. Dugan inquired as to the source of Ylisela’s information and was told he did not want to know. Ylisela also said he would deny having met -with Dugan or telling him anything.

Dugan returned to the police station and prepared a report containing the information received by Ylisela, noting the source as an unnamed informant. Dugan’s superiors did not accept that, and he rewrote the report naming John Ylisela as the source, describing him as a citizen who was not a paid informant.

John Ylisela testified at the suppression hearing that he was a private investigator with an office in Wheaton which he rented from attorney Charles Kaeding. He interviewed defendant on October 1 at attorney Kaeding’s direction and gave Kaeding a synopsis of the interview. He and Kaeding also discussed whether defendant’s arrest was imminent and who Ylisela might question about the matter. Yli-sela then called Officer Dugan and arranged to meet him; they had been acquainted since 1973 when both were police officers. Ylisela had seen Dugan twice in 1980 and had then advised him he was employed as a private investigator for Hargraves Secret Service. When Ylisela met with Dugan that night, they exchanged information about the case with Ylisela providing Dugan with details regarding the homicide in response to questions. Ylisela advised Dugan he would not reveal his source, and they agreed neither would discuss the fact of the meeting as it would put Ylisela’s position in jeopardy. On the following day, Ylisela was called to the sheriff’s office and Sergeant George Weihofen asked whether he had given any information to any member of the department; he denied that he had done so.

Sergeant Weihofen testified he headed the investigation of Rose Shiflet’s death and had been advised by Officer Dugan that Charles Kaeding was defendant’s attorney; he believed Dugan learned that on October 1 when Dugan saw Kaeding at defendant’s apartment. Weiho-fen later learned Ylisela shared office space with Kaeding.

The defendant testified to the fact of his conversations with attorney Kaeding and John Ylisela on October 1 and stated he did not authorize Ylisela to talk to anyone other than defendant’s attorney.

The record also discloses that on October 3, Officer Paul Dugan presented a complaint for search warrant, supported by his affidavit, to a judge who issued warrant No. 3219 authorizing the second search of defendant’s apartment and the seizure of “blood stains, fingernail clippings, hammer with a new handle.” The search warrant was executed that day and, as earlier noted, evidence of blood was seized together with fingernail clippings and a hammer with a new handle, all of which were introduced at defendant’s trial.

The complaint and affidavit initially stated that Detective Dugan had been contacted by and met with John Ylisela on October 1, 1980. It then repeated the detailed information given to Dugan by Ylisela relating to the killing of defendant’s wife as earlier noted, identifying Ylisela as an ordinary citizen who is not a paid police informant.

The next paragraphs of the complaint stated “that independently of this above-mentioned conversation with John Ylisela, your affiant, being assigned the investigation of this homicide is informed as follows.” There followed a recitation of purported facts known to the af-fiant through his personal observation and the investigative efforts of

other officers, in which the affidavit stated, inter alia:

That decedent’s body was discovered at 7:50 a.m. by a jogger and reported to the sheriff’s office, that affiant went to the scene and viewed it; that John Shiflet identified the deceased as his wife; that on September 30, 1980, between 7 p.m. and 10 p.m., a television program dealing with the execution of Jews in Nazi Germany was aired, affiant gaining this information from WBBM TV, Channel 2 in Chicago; that decedent’s head bore a wound consistent with being struck with a hammer, as observed by affiant and by discussion with the physician who performed the autopsy; that a hammer with a new handle was observed in the decedent’s apartment by other officers who so advised affiant; that wounds on decedent’s throat were consistent with strangulation; that Joan Alieva reported to officers that John Shiflet had scratches on his arms on the night of October 1, 1980; that no blood or wet spots were seen on the carpet by officers executing a search warrant on October 1, 1980; that decedent’s fingernails were cut short and fingers cleaned, as observed by the autopsy physician, and decedent’s mother noted the nails were extremely short and poorly clipped although they had been long and well groomed; that blood was observed by affiant on the staircase of decedent’s apartment on October 1, and also on rocks near the building and decedent’s car; that her car had blood in the trunk; that John Shiflet reported to the sheriff’s office his wife had been missing since 8 p.m. on October 1; that decedent’s purse was found by a truck driver, who reported it to affiant, and her shoe was found by the side of the road; that no plastic bag containing blood has been recovered; that on execution of a prior search warrant No. 3218 on October 1, damp blue jeans containing blood were located in John Shiflet’s closet; that decedent’s mother observed defendant’s knuckles were cut and bruised on October 2.

The complaint and affidavit concluded by reciting that on the morning of October 3, 1980, affiant was told by Assistant State’s Attorney Thomas Knight that he had just received a telephone call from attorney A1 Botti, who told him no one should question John Ylisela about anything he may have learned from Botti’s client, Shiflet, as it was protected by the attorney-client privilege because Ylisela was working for Shiflet’s attorney.

In denying defendant’s motion to suppress, the trial court found there had been no invasion of defendant’s attorney-client privilege by the State as the information given to the police by the investigator for defendant’s counsel had not been affirmatively sought out by the police. The trial court also found that there was a sufficient factual basis to support issuance of search warrant No. 3219, but did not indicate whether that finding was dependent upon or apart from the information provided by Ylisela.

Defendant argues that the knowing use of the privileged information given to the police by Ylisela as a basis for issuance of the search warrant violates defendant’s right under the sixth amendment to the effective assistance of counsel. He asserts that the evidence seized in that search of his apartment should be excluded in a new trial. The State contends that as the police did not acquire the information as a result of any affirmative conduct on their part to breach the attorney-client relationship, the lawfully received facts could properly be used in support of issuance of the search warrant. The State also argues that the complaint and affidavit were sufficient to establish probable cause based only upon the facts acquired by the investigative efforts of the police, disregarding the information imparted by Ylisela'. The State further contends the communication by Ylisela was not protected by the attorney-client privilege, as it fell within the crime-fraud exception to it.

It is clear that the communications between defendant and his attorney or the attorney’s investigator were privileged and thus immune from compelled disclosure unless waived. (People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205; People v. Knippenberg (1977), 66 Ill. 2d 276, 282-84, 362 N.E.2d 681.) It also seems apparent that if such privileged matters are procured by the State it may not use them as substantive evidence or for impeachment of defendant in trial. (66 Ill. 2d 276, 362 N.E.2d 681.) The State and defendant agree no Illinois case has addressed the issue as presented here and offer no factually similar cases from any other jurisdiction.

Defendant considers analogous People v. Knippenberg (1977), 66 Ill. 2d 276, 285, 362 N.E.2d 681, wherein the court found use of defendant’s privileged communication to an investigator for his attorney for impeachment of defendant in trial violated his right to a fair trial and to the effective assistance of counsel. In that case, defendant’s statements were secured by the State’s Attorney by undisclosed means from the public defender’s investigator and used in trial to impeach defendant without prior notice the State had acquired the privileged matters. In the present case, however, the State did not act to breach the attorney-client relationship as the privileged material was divulged by the attorney’s investigator who was privy to it. Nor were the police aware, when they received the information, that its source was a privileged communication. Moreover, no use was made by the State in trial of defendant’s communications to his attorney or the investigator. We consider People v. Knippenberg to be factually inappo-site to the circumstances presented in this case.

Defendant also offers in support of his argument State v. Sullivan (1962), 60 Wash. 2d 214, 373 P.2d 474, Muetze v. State (1976), 73 Wis. 2d 117, 243 N.W.2d 393, and Bishop v. Rose (6th Cir. 1983), 701 F.2d 1150. In State v. Sullivan defendant’s attorney was called as a witness for the State in her trial for murder and was required to testify to information he had received from his client. The reviewing court understandably reversed defendant’s conviction because of the forced disclosure of the confidential communications between attorney and client.

In Muetze v. State (1976), 73 Wis. 2d 117, 243 N.W.2d 393, a search warrant was obtained based solely upon information disclosed to the police by defendant’s wife in violation of the marital privilege provided under the Wisconsin statute. In holding that disclosures made in violation of that privilege may not be used to obtain a search warrant, the court applied that State’s statutory rules of evidence which specifically extended that privilege to search warrants. The court noted, however, that “there appears to be no Fourth Amendment prohibition against using privileged communications as the basis for a finding of probable cause to search.” 73 Wis. 2d 117, 126, 243 N.W.2d 393, 397.

In Bishop v. Rose (6th Cir. 1983), 701 F.2d 1150, defendant was in jail awaiting trial for murder. Following an attempted escape by his cellmates, the cell was searched and police seized a document prepared by defendant at the request of his attorney relating to the defense of his case. The police returned the document, but first made a copy which was used in trial to impeach defendant. The reviewing court concluded that delivery of the document to the prosecutor and its use in trial was an improper interference with the attorney-client relationship under the sixth amendment.

We do not consider these cases support extension of the exclusionary rule to the evidence seized in the search of defendant’s apartment as the circumstances are not similar.

While it appears that defendant’s privilege to consult freely with his attorney was violated without his consent by the investigator engaged by defendant’s attorney, no conduct by the State was involved. The police responded to an offer of information regarding the murder investigation and were not then aware of Ylisela’s connection with defendant. Most of the information given by him was already known to the police, with Ylisela supplying some details and the name of the defendant. That could not have been a surprising revelation to the police as they had already focused upon defendant and had searched his apartment under an earlier warrant.

If, as urged by defendant, the facts improperly divulged to the police by Ylisela, and those same facts learned through the separate investigation by the officers, may not be used for search warrant or any other purpose, enlightened defendants may well seek to arrange a similar breach of the privilege to foreclose the production or use of evidence against them. We do not believe that the sixth amendment requires that conclusion.

It is clear that the complaint and affidavit for search warrant, absent the facts supplied by Ylisela, was sufficient to establish probable cause for the second search of defendant’s apartment. While it is true this search focused upon the hammer with a new handle and blood stains on the carpet not earlier noticed, sufficient facts were known to the officers, without Ylisela’s assistance, to induce them to return to the apartment seeking further evidence of the crime. As the untainted facts in the complaint and affidavit amply support issuance of the search warrant, we conclude the evidence seized was not subject to suppression on the grounds urged by defendant. Compare Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The State has also argued that the crime-fraud exception to the attorney-client privilege applied to defendant’s conversation with John Ylisela, asserting defendant sought legal assistance for illegal or fraudulent purposes. (See People v. Wurbs (1976), 38 Ill. App. 3d 360, 347 N.E.2d 879; Lanum v. Patterson (1909), 151 Ill. App. 36; People v. Marcofsky (1920), 219 Ill. App. 230; 8 Wigmore, Evidence sec. 2292 (McNaughton rev. 1961).) The State suggests defendant sought to cover up his commission of the homicide and prepare a fraudulent defense through the assistance of the investigator and attorney.

The trial court determined that the State had not made a sufficient showing that the crime-fraud exception applied to defendant’s conversation with the investigator, and we conclude that finding was not against the manifest weight of the evidence. People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.

II

Search Warrants Nos. 3215 And 3218

Defendant next contends the trial court erred in denying an evidentiary hearing of his allegation the sworn complaints upon which these search warrants were based contained false statements. He argues that the affiant falsely or recklessly stated therein that he had observed in decedent’s car a rope “soaked” with blood and an ax “covered” with blood; that the statements were untrue, and defendant was entitled to an evidentiary hearing to determine whether the search warrant should be declared void and the evidence seized suppressed.

In Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, the court established a limited right to an evidentiary hearing challenging the truthfulness of facts contained in an affidavit for a search warrant. Where a defendant makes a substantial preliminary showing that (1) a false statement, made knowingly or intentionally or with a reckless disregard for the truth was included by affiant in his affidavit; and (2) the alleged false statement was necessary to the finding of probable cause, the trial court must conduct an eviden-tiary hearing if requested by defendant. At such hearing, defendant has the burden of proving his charge of perjury or reckless disregard for the truth by a preponderance of the evidence. If the false statement is established and is disregarded, and if the affidavit is then insufficient to establish probable cause, the search warrant will be held void and the results of the search suppressed. (Franks v. Delaware (1978), 438 U.S. 154, 164-65, 57 L. Ed. 2d 667, 677-78, 98 S. Ct. 2674, 2681; People v. Hothersall (1981), 103 Ill. App. 3d 183, 430 N.E.2d 1142.) For an assertion of fact to be considered false, it must be such as will support a prosecution for perjury. People v. Young (1972), 4 Ill. App. 3d 602, 605, 279 N.E.2d 392; People v. Moran (1978), 58 Ill. App. 3d 258, 259, 373 N.E.2d 1380.

Defendant relies upon People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, cert, denied (1983), 460 U.S. 1040, 75 L. Ed. 2d 792, 103 S. Ct. 1433, to support his argument that Illinois has gone beyond the two-prong test set forth in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and states that once defendant has made a preliminary showing a complaint for search warrant contains a deliberate misstatement of fact, he is entitled to an evidentiary hearing even though the remainder of the affidavit is sufficient alone to establish probable cause. See People v. Farnsworth (1981), 95 Ill. App. 3d 105, 107, 419 N.E.2d 693, 694; People v. Reynolds (1981), 96 Ill. App. 3d 79, 420 N.E.2d 1193.

At the hearing of defendant’s motion to suppress, preliminary evidence was presented by him that the laboratory reports stated no visible reddish-brown stains were observed on the rope and a benzidine test was negative, demonstrating an absence of blood. As to the hatchet, the report stated the head tested negative for blood and a small reddish-brown discoloration on the label yielded positive benzi-dine tests, as did also the handle and cover. Defendant argues that af-fiant’s statements the exhibits were “soaked” or “covered” with blood were clearly false, thus entitling him to an evidentiary hearing regardless of whether the remaining allegations were sufficient to support the finding of probable cause.

The trial court found that defendant had made specific allegations of falsehood or reckless regard for the truth as to a portion of the affidavit; however, it reserved ruling on the question whether defendant’s supporting reasons for the allegations were sufficient to make the “substantial preliminary showing” required by Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and considered first whether the affidavit would be sufficient absent the challenged matters. The court concluded the remaining facts were sufficient to establish probable cause and denied defendant’s motion.

Defendant does not here challenge the ultimate ruling of the trial court, and argues only that on the strength of People v. Garcia (1982), 109 Ill. App. 3d 142, he is entitled to a full evidentiary hearing of the alleged false statements in the affidavit and suppression of the evidence if that determination is made without consideration of the sufficiency of the balance of the affidavit.

Initially, we agree with the trial court that the affidavits were sufficient to establish probable cause for the search of defendant’s apartment and the car without the challenged words. As to those words, we conclude defendant failed to make a substantial preliminary showing they were false or made with a reckless disregard for the truth.

As relevant, the detailed affidavits by Sergeant George Weihofen stated:

“While examining the outside of that vehicle [decedent’s car] your affiant observed what appeared to be a spot of human blood on the rear hatch of the vehicle and also what appears to be a hand print in blood at the lower edge of the rear hatch of the vehicle. From outside the car your affiant observed within the vehicle what appears to be a rope soaked with blood and a small ax, the handle of which appears to be covered with blood. Immediately adjacent to the car was a leaf bearing what appeared to be a spot of blood.”

Other statements in the affidavits recited further facts known to the officer relating to the death of Rose Shiflet.

While it is apparent the exhibits were not soaked or covered with blood when the officer viewed them, affiant’s statements reflect his belief as to their appearance through the car window. The laboratory report noted positive tests for blood on the ax and that the discoloration on the label appeared to have been washed. The rope is shown in photographs contained in the record as it was located in the car and it has, in part, an observable reddish cast which could be mistaken for blood as viewed by the affiant. While the terms used by affi-ant were exaggerated, they cannot be said to be knowingly or recklessly false.

As we conclude defendant did not make a substantial preliminary showing of falsity, we need not determine whether People v. Garcia (1982), 109 Ill. App. 3d 142, was correctly decided. It is noteworthy, however, in that case the court also stated, “This, of course, does not mean that any negligent or honest misstatements would prove fatal or that every fact stated in the affidavit must be factually true. However, it certainly must mean that every fact stated in the affidavit is included in good faith and is believed to be true by the police officer.” 109 Ill. App. 3d 142, 148, 440 N.E.2d 269, 274.

Ill

Defendant next contends that use in trial of an oral statement made by him which was not disclosed to the defense should be excluded as a sanction for the discovery violation and, also, that its prejudicial effect denied him a fair trial.

At trial the following colloquy took place during the examination by the State of Officer Litzo:

“MR. KNIGHT: During the time that you were in the vicinity of the Chevy Citation at 1601 Maple Terrace in that parking lot area, do you recall having any conversation with anyone concerning the cleaning of the automobile?
A. Yes. I was approached by a gentleman who identified himself as Mr. Shiflet, and he said he wanted to take the Citation.
sk 4» st*
MR. KNIGHT: Can you tell us, to the best of your recollection, what was said and by whom in that conversation?
A. Mr. Shiflet stated that he was going to take the automobile, and we said that — or, I told him that he couldn’t take the automobile.
And he said, ‘Well, he was doing it under his attorney’s advice.’
I told him that if he insisted on taking the automobile I would place him under arrest.
At that point he left. ’ ’

Defendant’s motion for a mistrial was denied.

Defendant’s initial argument that this testimony should be excluded as a sanction for the State’s failure to comply with discovery orders was not preserved for review by inclusion in his post-trial motion and is waived. People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091; People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.

Defendant also argues the testimony had the effect of discrediting the defense in the eyes of the jury by implying his counsel had advised defendant to conceal evidence, thus allowing the jury to infer defendant’s guilt from his exercise of the right to counsel. See, e.g., People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924; People v. Meredith'(1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306; People v. Jackson (1974), 24 Ill. App. 3d 700, 321 N.E.2d 420.

We consider defendant’s argument that he or his counsel was somehow discredited by this testimony to be speculative and without merit. Essentially, all that it disclosed was that defendant sought to take the car and had been advised in that regard by his counsel. This was an uncontested fact relating to defendant’s activities on that day, and the State did not refer to it in its arguments to the jury.

In the cases relied upon by defendant, the prosecutors did in argument make improper comment relating to defendant’s right to consult with counsel suggesting improper conduct on the part of defendants or counsel. In the present case, the State did not attempt in argument to link defendant’s statement either to his guilt, use of counsel or suggest defendant’s wish to take the car was to conceal evidence. We conclude the trial court did not abuse its discretion in the admission of that testimony and defendant is not entitled to a new trial on this grounds.

IV

Defendant next contends that the expert witness’ testimony as to the victim’s blood type should have been excluded as the chain of custody of the blood sample was not established.

The autopsy physician testified he withdrew blood samples from Rose Shiflet’s body which he placed in two vials. One was given to the toxicology laboratory of the coroner’s office and the other vial to Deputy Sheriff Thomas Duhig, who was present when the blood was withdrawn. Officer Duhig testified he sealed the vial and kept it in his possession until placing it in the evidence locker of the sheriff’s office crime laboratory. Phillip Gilman, director of the crime laboratory, testified he received a sealed vial of blood from the sheriff’s evidence technician which was marked with the name “Shiflet,” bore a sheriff’s office complaint number and was sealed with tape marked “Coroner’s Office.” Gilman unsealed the vial and, after conducting tests, determined the blood was type A.

Defendant argues that as Gilman did not identify the evidence technicians who gave him the vial in the laboratory and Duhig did not testify, the vial he received from the autopsy physician was the same one tested by Gilman, the chain of custody was broken and a doubt is raised as to the identity and unchanged conditions of the blood sample Gilman tested. Defendant concludes he is entitled to a new trial at which the test results are excluded.

The trial court has broad discretion in determining the admissibility of evidence and expert testimony, and its determination will be reversed only for an abuse of that discretion which prejudiced defendant. (People v. Reyes (1981), 102 Ill. App. 3d 820, 832, 429 N.E.2d 1277; People v. Franklin (1981), 93 Ill. App. 3d 986, 993, 418 N.E.2d 155, appeal denied (1981), 85 Ill. 2d 569.) A chain of custody foundation is required when the offered evidence is not readily identifiable or is susceptible to alteration by tampering or contamination; the chain of custody must be of sufficient completeness to render it improbable that the item has been tampered with, exchanged or contaminated. (People v. Winters (1981), 97 Ill. App. 3d 288, 289-90, 422 N.E.2d 972, cert, denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282; see People v. Cole (1975), 29 Ill. App. 3d 369, 329 N.E.2d 880, appeal denied (1975), 60 Ill. 2d 598.) To establish a sufficient chain of custody, the State need not exclude every possibility that the evidence was tampered with, but only that it was reasonably probable the evidence was unchanged in any important respect, or substituted. (People v. Witanowski (1982), 104 Ill. App. 3d 918, 925, 433 N.E.2d 334; People v. Gustowski (1981), 102 Ill. App. 3d 750, 753, 430 N.E.2d 317; People v. Tribett (1981), 98 Ill. App. 3d 663, 673-74, 424 N.E.2d 688.) Unless defendant provides actual evidence of tampering or substitution, the State need only establish the stated probability and any deficiencies go to weight and not admissibility of the evidence. See United States v. Lampson (7th Cir. 1980), 627 E2d 62; People v. Witanowski (1982), 104 Ill. App. 3d 918, 433 N.E.2d 334; People v. Winters (1981), 97 Ill. App. 3d 288, 422 N.E.2d 972, cert, denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282; People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553.

In the case at bar, it was established a blood sample taken from decedent’s body by the physician was given Deputy Duhig, who sealed the vial and placed it in an evidence locker. Evidence technicians then gave a sealed vial of blood marked “Shiflet” to Gilman for testing. While it is unclear whether the second vial of blood drawn by the physician was sealed, the vial tested by Gilman was sealed when he received it. Defendant’s assertion that the vial tested may not have been the vial delivered to Duhig is mere speculation. The chain of custody was sufficiently complete to allow admission of the evidence, absent any affirmative showing of tampering or substitution. Further, even were the chain of custody considered insufficiently established, the evidence thereby derived was cumulative as type A human blood was found on the victim’s clothing, car, carpet padding and flooring as well as on other items. Defendant’s blood was tested independently revealing his blood type as O. Due to the nature of decedent’s wound and the body’s lack of blood volume, as well as the numerous bloodstained items, it would be an obvious inference that the victim’s blood type was A without reference to the test to which defendant objects. Admission of evidence is not error where it is otherwise established properly. People v. West (1981), 102 Ill. App. 3d 50, 54-55, 429 N.E.2d 599; People v. Duckworth (1981), 98 Ill. App. 3d 1034, 1037-40, 424 N.E.2d 1337.

V

Defendant next contends the trial court erred in allowing testimony of a witness whose name was not disclosed on the State’s list of witnesses and who was also not qualified to testify to the contents of the business records of the apartment complex.

During cross-examination of the crime laboratory director, Phillip Gilman, defendant elicited from him the fact Gilman had not determined the age of blood stains found on the carpet of defendant’s apartment. The State’s Attorney then called Robert McSweeney, the building maintenance supervisor for the Four Lakes Village apartment complex, who testified, over defendant’s objection, that by reference to the building records and his own recollection defendant’s apartment had new carpeting installed two or three months before the offense. Business records of the complex pertaining to that apartment were also admitted in support of McSweeney’s testimony.

Supreme Court Rule 412(a) (87 Ill. 2d R. 412(a)) requires the State to disclose to defendant the names and addresses of persons whom it intends to call as witnesses. The State’s intent to call the witness is the critical element (People v. Hanna (1983), 120 Ill. App. 3d 602, 606, 457 N.E.2d 1352), and until the State forms that intent, there need be no disclosure (People v. Hine (1980), 89 Ill. App. 3d 266, 267, 411 N.E.2d 930). The trial court may in its discretion, as an appropriate sanction, exclude evidence for noncompliance with discovery provisions; however, that is a harsh sanction of last resort. People v. Brown (1982), 106 Ill. App. 3d 1087, 1093, 436 N.E.2d 696, appeal denied (1982), 91 Ill. 2d 573; People v. Galindo (1981), 95 Ill. App. 3d 927, 933, 420 N.E.2d 773, appeal denied (1981), 85 Ill. 2d 569.

Until defendant partially impeached Gilman’s testing procedure by demonstrating his failure to determine the age of the blood stains on the carpet, there was no need for McSweeney to testify. Any prejudice or surprise to defendant was also blunted by his interview of the witness prior to his testimony and defendant’s opportunity to cross-examine. It is also apparent that defendant was aware the carpet in his apartment was new. The State need not inform defendant of a witness’ name until it forms the intent to call him, even if during trial. (People v. Manley (1974), 19 Ill. App. 3d 365, 371, 311 N.E.2d 593.) The trial court’s discretion to allow an undisclosed witness to testify has been abused only if defendant is surprised or prejudiced, even where the State has not fully complied with discovery. People v. Morales (1982), 109 Ill. App. 3d 183, 189, 440 N.E.2d 302; People v. Rice (1982), 108 Ill. App. 3d 344, 351, 438 N.E.2d 1333.

Cases cited by defendant, People v. Bailey (1982), 103 Ill. App. 3d 503, 431 N.E.2d 723, People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823, and People v. Mourning (1975), 27 Ill. App. 3d 414, 327 N.E.2d 279, are distinguishable as there the State’s failure to disclose was by design, in bad faith and far more egregious than the State’s failure here. The State’s Attorney asserted he only became aware of the potential issue of the age of the carpet during trial and would have had no reason to call McSweeney but for defendant bringing out the failure to determine the age of the blood stains. In the circumstances presented, the trial court’s decision to allow this witness to testify was not an abuse of discretion and imposition of the discovery sanction would not have been appropriate.

Defendant also contends that neither McSweeney’s testimony nor the apartment records were admissible under the business records exception to the hearsay rule as he was not competent to lay a proper foundation for the exception. He argues McSweeney did not make the records himself and there was insufficient evidence he was familiar with the record keeping practices of the complex as he only used and had access to them.

Section 115 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 5(a)) provides as follows:

“Sec. 115 — 5. Business Records as Evidence.
(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
The term ‘business,’ as used in this Section, includes business, profession, occupation, and calling of every kind.”

In People v. Lewis (1977), 52 Ill. App. 3d 477, 367 N.E.2d 710, appeal denied (1977), 67 Ill. 2d 594, a motel ledger was considered to have been properly admitted into evidence although the foundation witness did not keep the ledger.- As the witness testified the record was made in the ordinary course of business and testified to procedures used in compiling it as well as to its accuracy, it came within the hearsay exception.

In the case at bar, McSweeney testified that a separate maintenance file was kept on each apartment unit in the ordinary course of business; that he was familiar with and routinely used the records and that transactions noted therein were recorded as they occurred. He further testified that if a buyer or renter ordered carpeting or a change in an apartment, an order sheet was filled out for anything that was ordered. A property inspection form and check list was given to each occupant to fill out and return to the maintenance department, and such records were kept in the file for defendant’s apartment.

We conclude the foundation provided was sufficient to clothe this evidence with sufficient indicia of reliability and trustworthiness as to support its admission within the exception. See People v. Clark (1982), 108 Ill. App. 3d 1071, 440 N.E.2d 387; People v. Lewis (1977), 52 Ill. App. 3d 477, 367 N.E.2d 710, appeal denied (1977), 67 Ill. 2d 594.

VI

Defendant’s final contention is that the imposition of a sentence of natural life imprisonment violated his right to due process and the equal protection of the laws. This argument has been waived as it was not raised in defendant’s post-trial motion or at the sentencing hearing. People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091; People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227; People v. Perez (1983), 113 Ill. App. 3d 143, 151, 446 N.E.2d 1229, appeal denied (1983), 94 Ill. 2d 556.

In any event, it has been determined that the statute under which defendant was sentenced met due process and equal protection constitutional standards after consideration of arguments which are essentially the same as presented here. See People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Perez (1983), 113 Ill. App. 3d 143, 151, 446 N.E.2d 388, appeal denied (1983), 94 Ill. 2d 556; People v. Cartalino (1982), 111 Ill. App. 3d 578, 591-92, 444 N.E.2d 662, appeal denied (1982), 93 Ill. 2d 544.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN GARZA, Defendant-Appellant.
    First District (5th Division)
    No. 83—1444
    Opinion filed June 15, 1984.

      Gordon H. Berry, 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 William G. McGarr, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was found guilty and sentenced to concurrent eight-year terms for home invasion and rape. On appeal, he contends that: (1) in imposing sentencing the trial court improperly considered a prior arrest for a similar offense; (2) his conviction for rape must be vacated because it is a lesser-included offense of and therefore merged with his conviction for home invasion; and (3) the complaining witness’ prior identification of him as well as certain physical evidence were the fruits of an illegal arrest and should have been suppressed.

At trial, the complainant testified that she was living in a second-floor apartment of a furnished rooming house at 4422 South Emerald on May 31, 1980. At approximately 8:30 p.m. on that date she was standing at the door of her apartment when defendant suddenly appeared at her side, pushed her through the doorway, and entered the room. Once inside, he turned on the light, forced her to disrobe, and after removing his own clothing, he pushed her onto the bed, and raped her. During that time, he struck her on the left side of the forehead, causing it to swell, and threatened to kill her if she screamed for help. After the attack, she asked defendant if she could fix a drink and, when he agreed, she prepared two drinks, handed one to defendant, then sat on the edge of the bed for approximately 15 minutes while he drank. When defendant allowed her to put on her clothes, she asked if she could take her dog out, and he agreed after she promised to return. Complainant further stated that, as soon as she left the room, she ran to the home of a friend in an apartment across the street and related the incident to her friend’s daughter and the building manager who called the police and also paramedics because she (complainant) was experiencing severe vaginal bleeding. She was transported to a hospital where she remained through the weekend. The same night, while she was being treated in the emergency room, officers brought two men into the room, and she identified defendant as her assailant. On cross-examination, the complainant acknowledged that she had resided in her apartment for only a few days, and that during the incident she did not cry out or observe any weapons.

Officer Tyler testified that he was in the vicinity of 44th and Halsted at approximately 10:30 p.m. on the date in question when he received a call of a “woman down.” Upon arriving at the scene, he spoke to several people, then briefly interviewed the complainant, who stated that she had been raped and described her assailant as a male Mexican, approximately 5 feet 6 inches tall, and weighing 145 to 150 pounds. Tyler also testified that he went immediately to the building where the incident occurred and found two male Latins who matched the description. Both men were held for questioning and taken to the hospital, where the complainant viewed each of them separately. When the first man entered the room, the complainant stated that he was not her assailant; however, when defendant entered, she became very upset and said that he was the man who had raped her.

It was stipulated that, if called, laboratory technicians employed by the Chicago police department would testify that a fingerprint lifted from a drinking glass in the complainant’s apartment on the night of the incident matched prints taken of defendant at the time of his arrest; and that a small amount of human blood was found in the crotch area of the pants defendant was wearing when arrested, but the amount thereof was insufficient to determine blood grouping. It was further stipulated that, if called, Dr. Paguaga would testify that when he examined the complainant after the incident, he observed an abrasion and laceration in the external genital area of the vagina, as well as vaginal bleeding.

Defendant testified that when he first moved to the rooming house at 4422 South Emerald one month before the incident, he resided in the room later occupied by the complainant. However, approximately one week before the incident, he moved to the .room next door. He did not know that complainant had moved into his former room, and had never seen her in the apartment building. Defendant also stated that all of the rooms were furnished by the landlord, but the tenants supplied their own pans, glasses, utensils and bedding, and that when he moved to the second room, he took all of his clothing and utensils with him. Defendant further testified that on the date in question he left work at 4 p.m., had a few beers with co-workers, then visited a friend at 83rd and Burleigh until a little after 9 p.m., when he took a bus back to his apartment. Shortly after arriving there, he heard a commotion in the hall, and when he opened the door a police officer grabbed him and placed him under arrest. Defendant stated that he did not go to the complainant’s room that day, and denied ever having sexual intercourse with her.

Opinion

Defendant first contends that his sentences should be reduced or vacated because the trial court improperly considered a prior arrest for a similar offense where there was no accurate, reliable evidence thereof, and under circumstances which deprived him of the opportunity to challenge its reliability.

The law with regard to what may properly be considered in imposing sentence is well settled, and places within the trial court’s sound discretion the delicate task of balancing the need to protect society’s interests against the mandate that sentences allow for the possibility of rehabilitation (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882), and as an aid to the court in the exercise thereof, the legislature has set forth specific factors which may be considered in aggravation and mitigation (Ill. Rev. Stat. 1981, ch. 38, pars. 1005— 5 — 3.1, 1005 — 5—3.2). In addition, case law provides that the trial court may consider the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age {People v. Perruquet) as well as prior convictions (People v. Franklin (1978), 64 Ill. App. 3d 400, 380 N.E.2d 1082), but it is established that mere charges or arrests may not be considered (People v. Perry (1976), 38 Ill. App. 3d 81, 347 N.E.2d 340), unless relevant, accurate evidence thereof has been presented under circumstances which allow the defendant to confront and cross-examine witnesses (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344). However, even where improper evidence is presented, such as a showing of the bare fact that an arrest occurred or a charge was made, we will presume that the trial court, knowing the law, considered only proper evidence in imposing sentence, and disregarded that which was improper (People v. Mosley (1980), 87 Ill. App. 3d 903, 409 N.E.2d 381). Thus, it is not enough to show that the trial court had knowledge of prior arrests (People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36), or that the State argued that factor in urging the imposition of a harsher sentence (People v. Mosley (1980), 87 Ill. App. 3d 903), or even that the trial court itself mentioned the arrest during the sentencing hearing (People v. Shumate (1981), 94 Ill. App. 3d 478; People v. Jones (1980), 81 Ill. App. 3d 798, 401 N.E.2d 1054); rather, the record must affirmatively disclose that the arrest or charge was considered by the trial court in imposing sentence (People v. Poll (1980), 81 Ill. 2d 286, 408 N.E.2d 212; People v. Shumate (1981), 94 Ill. App. 3d 478).

In the instant case, the record reveals that the presentence investigation report contained a sheet of paper from the Chicago police department identification section which listed defendant’s numerous encounters with law enforcement officials, both convictions and arrests for which no convictions were shown. The vast majority of those incidents were for driving while intoxicated, but the list included a single arrest, without showing any disposition thereof, for “aggravated assault on a female.” No objection was made to the inclusion of this information in the presentence report, and the State made no mention of any convictions or arrests in arguing factors in aggravation during the sentencing hearing. However, during defense counsel’s argument of factors in mitigation, the following colloquy took place:

“COUNSEL: Your Honor, I know that you read the Pre-Sen-tence Investigation. It indicates that Mr. Garza has no significant prior criminal history. It indicates that he has had some problem with drinking.
COURT: Well, he had one case in Texas, where he was found guilty — it doesn’t say whether he was found guilty or not. But he was charged, in June of ’75, with aggravated assault on a female.
COUNSEL: Your Honor, I believe the charge is not really relevant for sentencing purposes.
COURT: I’m just adding that to the rest of the B and I’s.”

It is defendant’s position that this exchange demonstrates that the trial court considered the arrest in imposing the sentences. We disagree. It appears to us that it shows only the knowledge of the trial court that there had been a prior arrest, and its response to defense counsel’s reminder that it should not be considered is indicative of the court’s understanding of that principle. As noted previously, it is not enough to show that the trial court made mention of the improper evidence — it must affirmatively appear that the evidence was a factor in the sentence imposed. Recently, in People v. Jones (1980), 81 Ill. App. 3d 798, 401 N.E.2d 1054, we rejected a similar argument where the trial court stated at the sentencing hearing that it had reviewed the defendant’s record, including the fact that he “ha[d] an extensive record though only two convictions,” noting:

“We believe that this statement is too unclear to represent a ‘definite indication’ that the trial court considered the prior arrests in rendering sentence. [Citation.] Certainly, defendant’s prior record of convictions, his violation of probation by committing the present crime, and the seriousness of the present crime formed a proper and sufficient basis for the six- to 10-year sentence which he received from the court. In light of this . background and without some definite indication that the trial court considered the prior arrests in determining sentence [citations], we cannot say that a new sentencing hearing is required on this ground.” 81 Ill. App. 3d 798, 806-07, 401 N.E.2d 1054, 1061.

Similarly, here, the record does not contain any definite indication that, in imposing sentence, the trial court considered the arrest in question, and the sentences of eight years, only two years beyond the statutory minimum of six years for Class X felonies (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(3)), were proper in light of the seriousness of the crimes for which defendant was convicted. Therefore, it appears to us that neither a reduction in the sentences or a new sentencing hearing is mandated under the circumstances.

Defendant next contends that his rape conviction must be vacated because, it is a lesser-included offense of his home invasion conviction, where the information charges that he “committed the offense of home invasion in that he not being a peace officer acting in the line of duty without authority knowingly entered the dwelling place of [complainant] and had reason to know that one or more persons were present therein and intentionally injured [complainant] within such dwelling place by raping her.” (Emphasis added.)

The standard by which we are to determine the propriety of multiple convictions and sentences was set forth in People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, wherein the supreme court ruled:

“Prejudice results to the defendant only in those instances where more than one offense is carved with the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense.”

More recently, in defining a lesser-included offense for purposes of this standard, we noted that “to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also.” People v. Pavic (1982), 104 Ill. App. 3d 436, 448, 432 N.E.2d 1074, 1083-84.

Under the above rule, it is clear that rape is not, by definition, a lesser-included offense of home invasion. Home invasion requires proof that

(1) one who is not a peace officer acting in the line of duty,
(2) knowingly entered into the dwelling place of another without authority,
(3) having reason to know that one or more persons was present, and
(4) intentionally caused any injury to any person or persons therein. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11.)

Rape, on the other hand, requires proof that

(1) a male person 14 years of age or older,
(2) had sexual intercourse with a female, not his wife, and
(3) by force and against her will. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1.)

Thus, the two crimes have no common elements. However, because of the unusual wording employed by the State in charging the offenses herein, the question remains whether the State has converted rape into a lesser-included offense. It is defendant’s position that it did so because, as charged, the rape is a necessary element of the crime of the home invasion; i.e., the injury. We disagree. We have determined that injury, for purposes of the home invasion statute, necessarily requires physical injury, that is, pain or damage to the body. (People v. Bitner (1980), 89 Ill. App. 3d 1106, 412 N.E.2d 721.) Rape, however, requires no physical injury. The State need not prove that any pain or damage to the body occurred in order to sustain its burden of proving that a rape occurred. (People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633.) In the instant case, then, the State could not have sustained the charge of home invasion merely by showing that a rape occurred; it had to prove some physical injury resulting therefrom. It met that burden through proof that the victim, as a result of the rape, suffered an abrasion and laceration of the external genital area, vaginal bleeding, and swelling on her forehead where defendant struck her.

It is our view that, in charging that defendant “intentionally injured [complainant] *** by raping her,” the State did no more than make explicit that which was implicit in the facts of this case: that the acts which constituted the crime of rape also gave rise to the physical injury which is a necessary element of the crime of home invasion. One requirement of rape is that there be sexual intercourse, defined as penetration. That occurred in the instant case, and it appears that, incidental thereto and perhaps in the course of accomplishing penetration, the defendant also caused physical injury to the complainant. Similarly, the element of force necessary to the charge of rape was satisfied, in part, by proof that defendant struck the complainant; that blow also caused physical injury which, again, would sustain the charge of home invasion.

It seems to us that defendant’s true contention, although expressed as an assertion that the rape, here, was a lesser-included offense of home invasion, is that the crimes charged were carved out of the same physical act. Therefore, we have considered whether reversal is required where, although multiple acts occurred, one or more of the acts served a dual purpose in establishing an element of each crime charged. After a careful analysis of recent cases, we have concluded that multiple convictions are proper under those circumstances.

In People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074, we affirmed the defendant’s convictions for rape, deviate sexual assault, robbery, burglary, and home invasion. There, the defendant entered the complainant’s home, choked and threatened her, then raped and robbed her. Clearly, the acts which constituted the element of force, for purposes of the rape, also constituted the element of physical injury to sustain the charge of home invasion. More importantly, we rejected the defendant’s contention that burglary was a lesser-included offense of home invasion because both were based on the same act of entry, ruling that, since they required proof of different mental states, “[cjonsonant with the supreme court’s reasoning in People v. King, defendant’s interrelated acts adequately support the multiple convictions and concurrent sentences because burglary is not, by definition, a lesser included offense of home invasion.” 104 Ill. App. 3d 436, 449, 432 N.E.2d 1074, 1084.

More recently, in People v. Dixon (1984), 122 Ill. App. 3d 141, 460 N.E.2d 858, we affirmed convictions for burglary, home invasion, and murder where the defendant set one foot inside the victim’s home and fired a single shot. Clearly, under those circumstances, the single act of entry was an element of both burglary and home invasion, while the act of shooting the victim established both the injury element of home invasion and the killing without legal justification which sustained the murder conviction. Nevertheless, we ruled that, since none of the crimes were lesser-included offenses of the others, and there were multiple acts, their interrelationship did not preclude multiple convictions and concurrent sentences. 122 Ill. App. 3d 141, 149, 460 N.E.2d 858, 862-63.

Finally, in affirming the defendant’s conviction for home invasion and aggravated battery based on the use of a deadly weapon in People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272, the court observed that there was no authority for the proposition espoused by the defendant therein “that a person cannot be guilty of two offenses when a common act is part of both offenses or part of one offense and the only act of the other.” (106 Ill. App. 3d 774, 778-79, 436 N.E.2d 272, 276.) Based on the foregoing cases, it is our view that multiple convictions and sentences for home invasion and rape are proper in the instant case.

Defendant further contends that the complainant’s identification of him at the hospital as well as the bloodstained pants taken from him after his arrest should have been suppressed because both were the fruits of an illegal arrest. He acknowledges that this issue was not raised at trial, but asserts that we may consider it under the plain error exception established by Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), and argues that, since the only information that the arresting officer had was a general description supplied by the complainant, there was no probable cause for his arrest.

Under proper circumstances, we may review the question of probable cause for arrest despite the defendant’s failure to make a motion to suppress or to object to the admissibility of evidence obtained as a fruit thereof (see People v. Willis (1976), 39 Ill. App. 3d 905, 351 N.E.2d 330); but we have made it clear that the question will be deemed waived where the defendant’s failure to raise it precludes us from determining what the full evidence might have been had the State been called upon to justify the arrest (People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571). Here, the arresting officer testified that the complainant described her assailant as a male Mexican, approximately 5 feet 6 inches tall, and weighing 145 to 150 pounds. It is defendant’s contention that this information alone was insufficient to justify his arrest. However, Officer Tyler further stated that he spoke to others at the scene, but did not identify them or repeat the substance of their conversations, evidence which would have been admissible at a motion to suppress. Furthermore, the arrest report indicates that another officer also responded to the call, and it is stated therein that “[bjased on victims [;sic] description and approx, apartment on floor, 2 suspects were interviewed and taken where victim identified [defendant] as the offender.” It appears, then, that the officers may have had additional information, not revealed at trial, regarding approximately where the assailant resided, and it is possible that witnesses informed the officers that no one had exited the building subsequent to the attack.

In the instant case, we need not- speculate on what further information the officers might have had, for it is our view that the police procedure in the instant case was proper, regardless of the existence of probable cause. In People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, cert, denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92, the supreme court noted that “a middle ground can exist wherein an investigatory procedure, such as an immediate showup, can be employed by officers acting on somewhat less than probable cause to arrest” (89 Ill. 2d 171, 182, 432 N.E.2d 605, 610), reasoning that “a short period of detention was only minimally intrusive when compared to the benefit of immediate investigation” (89 Ill. 2d 171, 183, 432 N.E.2d 605, 610). There, an officer was told by victims of a robbery that the crime had occurred approximately 25 minutes earlier, and they described one of the offenders as 5 feet 11 inches tall, with medium length blond hair, and another as having bushy brown hair and wearing a blue jacket. A short time later, the officer encountered a car containing two men who matched the description. The men were stopped, taken into custody, and transported to the place where the victims were located. The victims identified both men as their assailants, and later that night each of them gave an inculpatory statement to the police. On appeal they argued that the initial identifications and the subsequent confessions should have been suppressed because the officer lacked probable cause to detain them or to transport them to another location for purposes of identification.

The supreme court found that, while the question was close, probable cause existed since the area was sparsely populated, noting that, under those circumstances, the number of persons likely to fit the rather general descriptions, was sufficiently limited to avoid arbitrary or wholesale arrests. (89 Ill. 2d 171, 180, 432 N.E.2d 605, 609.) The court went on to state:

“While we have determined that probable cause to arrest existed at the time defendant was placed in the deputy’s squad car, we also consider the transportation of the defendant the short distance involved here for purposes of a showup to have been a legitimate investigatory procedure even if one considers the grounds to have been less than probable cause to arrest.” (89 Ill. 2d 171, 181-82, 432 N.E.2d 605, 609-10.)

The factors considered by the court in determining that the procedure therein was proper are remarkably similar to the facts of the instant case, and are therefore worthy of detailed description:

“Deputy Dugan * * * was conducting a field investigation within just a few minutes of the crime. The stop of defendant occurred no more than 35 minutes after the robbery and very close to the scene of the crime. In the context of the time and place of the stop, late night on a virtually deserted country road, considering that both defendant and his passenger fit the descriptions given him by the victims, considering that simple questioning was inadequate to produce further information, considering that the victims, who were only a few minutes away, could immediately confirm or deny the identification of the suspects as the robbers, and, perhaps most importantly ***, considering that the transportation of defendant to the inn was not significantly more intrusive upon his liberty than detaining him to await arrival of the victims, we believe that the circumstances are much closer to those of permissible stop under Terry and Adams than the impermissible station house, custodial questioning tantamount to a full blown arrest in Brown and Dunaway.” 89 Ill. 2d 171, 184, 432 N.E.2d 605, 611.

Here, Officer Tyler was conducting a field investigation in the immediate area of the crime shortly after it occurred. The population of the building being searched was small, and defendant matched the description provided. In addition, as in Lippert, the complainant was only a short distance away and could immediately confirm or deny the identification. Therefore, we conclude that the detention of defendant and his transportation to the hospital were proper and, in the absence of any allegation that the showup identification was unreliable, it is our view that evidence thereof was properly admitted. Moreover, once the complainant identified defendant, probable cause for his arrest existed, and there is therefore no merit to his contention that the physical evidence obtained thereafter should have been suppressed.

For the foregoing reasons, defendant’s convictions and sentences for rape and home invasion are affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.