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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS VANDA, Defendant-Appellant.
    First District (4th Division)
    No. 80-1147
    Opinion filed December 23, 1982.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

After a jury trial, the defendant Thomas Vanda was found guilty of the stabbing murder of Marguerita Bowers and was sentenced to serve 300 to 500 years imprisonment. The sole issue raised at trial was whether the defendant should be found not guilty by reason of insanity; it has remained undisputed that the defendant killed Bowers. On appeal, the defendant contends that he was denied a fair trial because of eight alleged trial errors and consequently asserts that the evidence that reached the jury was so unbalanced in the State’s favor that the jury had virtually no choice but to find the defendant guilty of murder. Specifically, the defendant contends: (1) that the trial court erroneously refused to admit letters written by the defendant as rebuttal evidence of his mental state; (2) that the trial court improperly allowed evidence of another killing committed by the defendant and that the State violated the trial court’s ruling in limine regarding discussion of the facts surrounding the earlier crime; (3) that it was error for the court to admit the defendant’s post-arrest request for a specific attorney as evidence of the defendant’s sanity because it infringed upon the defendant’s Miranda rights; (4) that the court erroneously admitted a receipt into evidence without proper foundation; (5) that the court improperly restricted cross-examination of State expert witnesses; (6) that expert psychiatric witnesses called by the State were allowed to testify outside their area of expertise; (7) that the court allowed a jury instruction that improperly highlighted the testimony of State’s witnesses; and (8) that the prosecution made improper comments during closing arguments. For these reasons, the defendant requests that we remand his case for a new trial.

The first issue raised by the defendant is whether the trial court improperly refused to admit letters into evidence that were written by the defendant to his parents and to his former attorneys. During its case in chief, the State offered into evidence a letter written by the defendant to a fellow inmate after the defendant’s arrest. It described how to successfully evade a murder charge by pleading insanity. In rebuttal, the defendant sought to admit several letters written by him to his parents and to the attorneys who had represented him on a prior murder charge. From what we can gather from the record, these letters contained defendant’s false representations that he was acting in authoritative positions within the prison, such as helping the superintendent run the jail or serving as a fireman and being injured while putting out fires at the jail. While in most instances the defendant offered the actual letters into evidence, he also wished to have his mother testify regarding the contents of letters he had written to her that had been destroyed. Stating that all of the letters offered by the defendant were inadmissible hearsay and “self-serving,” the court refused to allow them to be admitted into evidence. We disagree and find that the letters should have been admitted as relevant nonhearsay evidence of the defendant’s mental state.

We first find that the letters were relevant to the issue of the defendant’s mental state. When a defendant’s sanity is in issue, great latitude is allowed in admitting evidence relating to a defendant’s mental condition because “[t]o determine insanity, you cannot take an isolated cross section of a single series of acts and myopically examine it within the narrow confínes of the date set forth in a formal charge. In order to make a proper determination, there must be more than a cross section; we must examine the person, his history, his relationship with the victim, prior mental illnesses and other intervening factors of causation.” (People v. Haun (1966), 71 Ill. App. 2d 262, 268, 217 N.E.2d 470, 473.) Within reasonable time limits, every act in a defendant’s life is relevant to the inquiry regarding his sanity (McCormick, Evidence sec. 249, at 592-93 (2d ed. 1972)), including events that occurred both prior to and subsequent to the crime committed by the defendant. (People v. Lannes (1966), 78 Ill. App. 2d 45, 223 N.E.2d 440.) Therefore, as Professor Wigmore has stated, “The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue.” (2 Wigmore, Evidence sec. 228, at 9 (Chadbourn rev. ed. 1979).) We thus find that the defendant’s letters were relevant to the issue of his sanity because they were offered to demonstrate alleged delusions under which he suffered.

Because we find that the letters were relevant evidence, we must now determine whether they nonetheless should have been excluded as inadmissible hearsay. We find that the letters are quite simply not hearsay statements and that the hearsay rule should not have barred their admission into evidence.

Hearsay is in-court testimony or written evidence concerning an out-of-court statement where the out-of-court statement is offered to prove the truth of the matter asserted in the statement. (People v. Garlick (1977), 46 Ill. App. 3d 216, 360 N.E.2d 1121; McCormick, Evidence sec. 246, at 584 (2d ed. 1972).) Where out-of-court statements are offered to circumstantially prove or disprove insanity, they are offered to show the defendant’s mental state rather than the literal truth of the defendant’s assertions. (2 Wigmore, Evidence sec. 228, at 14-15 (Chadbourn rev. ed. 1979); McCormick, Evidence sec. 249, at 592-93 (2d ed. 1972); see also E. Cleary and M. Graham, Illinois Evidence sec. 801.6, at 402-03 (3rd ed. 1979).) In the instant case, the defendant’s letters were not offered to prove that he was actually helping the superintendent run the jail or that he was a prison fireman, but rather to demonstrate that the defendant was suffering from delusions and was therefore insane. Thus, the letters were not offered to prove the truth of their contents and they consequently cannot be considered as hearsay. See also People v. Garlick (1977), 46 Ill. App. 3d 216, 360 N.E.2d 1121 (defendant’s out-of-court statements admissible as nonhearsay evidence of mental state); People v. Chancy (1980), 91 Ill. App. 3d 817, 414 N.E.2d 1239 (the words “Fantastic, Super Dopee and Me” written on blackboard at scene of crime were nonhearsay); Sollars v. State (1957), 73 Nev. 248, 316 P.2d 917 (defendant’s “classic paranoid letters” admissible as nonhearsay evidence of mental state); Chase v. State (Alaska 1962), 369 P.2d 997 (defendant’s out-of-court statements admissible on insanity issue).

The State cites People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466, in support of its position that the defendant’s letters were “self-serving” hearsay. The Hester court held that an examining doctor secured solely for the purpose of testifying at trial cannot testify regarding subjective symptoms described by the patient. (See also McCormick, Evidence secs. 292, 293, at 690-94 (2d ed. 1972).) However, in the instant case, the State fails to make a distinction between statements, such as those in Hester, that are offered for the truth of their contents and statements, such as those in the case at bar, that are offered simply as circumstantial evidence of the defendant’s mental state. Illustratively, in State v. Lucas (1959), 30 N.J. 37, 152 A.2d 50, the New Jersey Supreme Court found that even an examining physician, such as the doctor in Hester, could testify regarding statements made to him by the defendant where the issue is insanity rather than guilt. Therefore, the State’s reliance upon Hester is misplaced, and we conclude that the letters offered by the defendant were not inadmissible hearsay.

Having determined that the defendant’s letters were relevant nonhearsay evidence, we must determine whether they could be refused admission into evidence simply because they were “self-serving.” We find the term “self-serving” to be something of a misnomer because any evidence or testimony offered by any party to a lawsuit is logically and necessarily “self-serving” to that party’s presentation of his case. An examination of Illinois case law reveals that it is the hearsay rule that generally precludes a party from proving his own self-serving statements. (People v. Colletti (1968), 101 Ill. App. 2d 51, 242 N.E.2d 63.) The rationale for exclusion is that testimony regarding out-of-court statements made by a defendant after commission of a crime is not competent because the defendant had a motive to fabricate favorable testimony relating to his innocence. (People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098.) However, in the instant ease, the fact that the defendant killed the victim is not at issue; the jury was only concerned with the question of the defendant’s sanity or insanity. Indeed, while the defendant may have had a motive to lead others to believe he was insane, we find two reasons for this to be a matter weighed in the jury’s determination of his sanity rather than an issue of admissibility. First, the defendant’s “self-serving” statements were not hearsay and therefore do not fall under the hearsay rule’s ancient prohibition against admission of such statements. (See generally McCormick, Evidence sec. 290, at 688 (2d ed. 1972).) Second, as we determined earlier, practically all evidence of a defendant’s mental state is relevant when the defendant’s sanity is at issue, and we hesitate to restrict the bounds of the jury’s inquiry into the defendant’s mental state.

As the Seventh Circuit has observed, “We think that a flat rule of . exclusion of declarations of a party on the grounds that they may be described as ‘self-serving’ even though otherwise free from objection under the hearsay rule and its exceptions, detracts from the fund of relevant information which should be available to the jury, without, in compensation, materially insuring the integrity of the trial process.” (United States v. Dellinger (7th Cir. 1972), 472 F.2d 340, 381.) We therefore conclude that the letters offered by the defendant were relevant and should not have been excluded as either inadmissible hearsay or as “self-serving” statements.

As a final matter, the State contends that the best evidence rule should bar any testimony concerning the letters sent to Vanda’s parents which were subsequently destroyed. However, it appears from the record that testimony regarding these letters was excluded by the trial court on hearsay grounds rather than under the best evidence rule. While the State claims that “the judge obviously found insufficient showing of legitimate loss or destruction,” we cannot indulge in this presumption where there is no evidence to support it in the record. Rather, the defense offered to provide testimony that the letters had not been destroyed with intent to defraud or to conceal evidence, and the State did not indicate that it could offer testimony to rebut the defendant’s offer of proof. The trial court subsequently ordered that the letters were inadmissible as “self-serving” hearsay. Where the record is unclear concerning any ruling on the best evidence question and where the defense could apparently meet its initial burden of proving legitimate loss or destruction, we believe that the best evidence rule should not have barred admission of this evidence. See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

The second issue raised by the defendant is whether the trial court improperly allowed the State to introduce evidence concerning a previous crime committed by the defendant. Specifically, in 1971, the defendant had been found not guilty of murder by reason of insanity of the stabbing death of a 15-year-old girl. The defendant was committed to the Department of Mental Health and was subsequently released.

In the instant case, an expert psychiatric witness called by the defense had previously examined the defendant at the Department of Mental Health following the earlier murder charge. In a pretrial motion in limine, the defense moved to restrict the State from referring to the previous killing and its disposition. The State argued that in order to cross-examine the defense expert, it was necessary to determine the facts which led the expert to reach his diagnosis, including the fact that the defendant had previously been charged with murder and had been committed to the Department of Mental Health. The court ruled that the State could introduce evidence of the previous murder charge and the defendant’s confinement with the Department of Mental Health, but ordered that the disposition of the case and any facts surrounding the incident could not be presented to the jury. Apparently for tactical reasons, the defense, in its opening argument, introduced the fact that the defendant had been found not guilty of a previous murder charge by reason of insanity. Further, in the State’s cross-examination of the defense expert referred to above, the prosecutor asked if the defendant had blacked out “at the very moment of the act causing the death of the girl involved here,” referring to the facts of the previous killing. The defense moved for a mistrial. The trial court denied the defendant’s motion but it did strike the prosecutor’s question from the record and promptly admonished the jury to disregard it. The defendant now contends that both the court’s initial ruling on the motion in limine and the prosecutor’s alleged violation of the ruling in limine require this court to remand the defendant’s case for a new trial. We disagree.

We believe that evidence of the defendant’s previous murder charge was admissible because it was relevant for a purpose other than to show criminal disposition and because its probative value outweighed its prejudicial effect. As we have previously discussed in detail, practically every event in the defendant’s life is relevant when the defendant interposes an insanity defense. This inquiry may include consideration of a defendant’s history of criminal conduct. People v. Burress (1971), 1 Ill. App. 3d 17, 272 N.E.2d 390.

Further, once the defendant raised the defense of insanity, the State was required to shoulder the formidable burden of proving the defendant sane beyond a reasonable doubt. (See, e.g., People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423.) Where the State had to meet this affirmative duty of proving the defendant sane, we think it would be inequitable to curtail meaningful avenues of inquiry during the State’s cross-examination of the defendant’s own expert on the issue of insanity. And we do believe the State’s inquiry to be relevant. Where an examining psychiatrist is clearly aware that his patient was found not guilty of murder by reason of insanity, we cannot help but suggest that this information could have had a significant impact upon a doctor’s diagnosis of the patient’s sanity or insanity. Further, in order for the State to effectively cross-examine the witness, it was necessary for the State to elicit testimony concerning the circumstances upon which the expert based the opinions he expressed at trial. Without this background, the jury would have been unnecessarily presented with a very one-sided view of the facts surrounding the doctor’s examination of the defendant.

Thus, having determined that this information was relevant, we observe that “[a]s a general rule, evidence is held inadmissible if it points to crimes unrelated and unconnected to the crime for which the defendant is being tried. [Citations.] However, evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime.” (Emphasis added.) (People v. Bailey (1980), 88 Ill. App. 3d 416, 420, 410 N.E.2d 545, 547; accord, People v. Hoppock (1981), 98 Ill. App. 3d 58, 423 N.E.2d 1351; People v. McKibbins (1981), 100 Ill. App. 3d 787, 427 N.E.2d 238.) In the instant case, information relating to the defendant’s previous murder charge was relevant for two reasons other than to demonstrate general bad character or criminal disposition. First, the information was probative as to the circumstances under which the defense expert developed his diagnosis. Second, the information was probative as to the issue of insanity, not guilt. Importantly, the fact that the defendant actually stabbed the victim was not in issue in this case. Rather, the sole issue to which evidence was directed at trial was the inquiry into the defendant’s sanity or insanity. Therefore, the defense cannot object to evidence regarding the defendant’s prior crime where propensity to commit a crime, or the fact that the defendant killed this victim, is not even in issue.

Finally, evidence of the defendant’s prior crime still would not be admissible, even if relevant, if the prejudicial effect of the evidence outweighed its probative value. (People v. Hoppock (1981), 98 Ill. App. 3d 58, 423 N.E.2d 1351; People v. McKibbons (1981), 100 Ill. App. 3d 787, 427 N.E.2d 238.) However, we do not believe that to be the case here. We cannot find that the fleeting references to the defendant’s prior crime unduly prejudiced the defendant’s position. Therefore, we conclude that the trial court was not in error when it allowed limited evidence concerning the defendant’s prior murder charge.

The third contention advanced by the defendant is that the trial court erroneously admitted the defendant’s post-arrest request for a specific attorney as evidence of his sanity. During the State’s case on rebuttal, the defense made a motion in limine to prevent two assistant State’s Attorneys from testifying that the defendant had requested his attorney after being read his Miranda rights. The trial court denied the defense motion but instructed the jury that this evidence was only to be considered in assessing the defendant’s sanity or insanity. The State thereafter brought out evidence relative to the defendant’s request for an attorney both in its case on rebuttal and in its closing arguments. On appeal, the defendant argues that the admission of this evidence even for a limited purpose violated his constitutional right to contact an attorney as established by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. We agree.

The thrust of the State’s argument is that evidence concerning the defendant’s request for his attorney was allowed not as an inference of the defendant’s guilt, but rather as evidence of his mental state. We disagree with the State’s position for two reasons. First, while we realize that considerable latitude is permitted in admission of evidence when the insanity defense is raised (People v. Haun (1966), 71 Ill. App. 2d 262, 217 N.E.2d 470), as we stated earlier, we do not believe that it goes so far as to penalize the defendant for exercising his constitutional right to request assistance of counsel. Even though the evidence arguably demonstrated the defendant’s awareness of the circumstances surrounding his arrest and his understanding of the warnings read to him, the United States Constitution acts as a bar to this sort of evidence regardless of how relevant it may be to the issue of the defendant’s mental state. Were we to hold otherwise, a defendant would have to sacrifice his constitutional right to counsel in order to avoid having such evidence introduced against him at trial. Under the reasoning of the United States Supreme Court decisions chronicled below, we believe that it would be constitutionally abhorrent to require the defendant to surrender his right to counsel rather than risk being penalized at trial for the exercise of that right. The second reason we cannot accept the State’s contentions is because we do not believe that the defendant’s request for an attorney was so probative as to the issue of his sanity that it outweighed the prejudicial effect to him.

A prosecutor may not comment upon a defendant’s failure to testify at trial because to do so would violate the self-incrimination clause of the fifth amendment. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) As the United State Supreme Court stated in Griffin, “It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” (380 U.S. 609, 614, 14 L. Ed. 2d 106, 109-10, 85 S. Ct. 1229, 1232-33.) In the instant case, the defendant was similarly penalized where the State was allowed to introduce evidence relating to the defendant’s exercise of his right to counsel as substantive evidence of his sanity during the State’s case on rebuttal. Where a constitutional right is at stake, we do not believe that it matters whether the inquiry is into the defendant’s sanity rather than his guilt. The result is identical; the defendant has been penalized for the exercise of his constitutional right to request counsel.

The same reasoning is found in Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed.2d 1247, 88 S. Ct. 967, where the defendant moved to suppress evidence discovered during an improper warrant-less search. In order to establish standing to raise the suppression issue, the defendant testified that he owned the items found during the search. Over the defendant’s objection, his suppression hearing testimony was admitted against him at trial. The Supreme Court found admission of this evidence to be error, stating, “[I]n this case [the defendant] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.” (390 U.S. 377, 394, 19 L. Ed. 2d 1247, 1259, 88 S. Ct. 967, 976.) In the instant case, we believe that the defendant was faced with a similar plight; he would either have to forego his constitutional right to counsel or bear the prejudice of having his exercise of this right introduced against him at trial on the issue of his sanity.

Further, in People v. Meredith (1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306, this court found that it was plain error for a prosecutor to question a defendant’s innocence because the defendant had requested assistance of counsel. We observed, “The crux of the claimed constitutional error is that the prosecutor’s comment and its resulting inference equate the exercise of a constitutional privilege with an admission of guilt, thereby penalizing defendant for the exercise of his right.to counsel. We agree.” (84 Ill. App. 3d 1065, 1071-72, 405 N.E.2d 1306, 1311.) In Meredith,'we further found Justice Black’s concurring remarks in Grünewald v. United, States to be “particularly noteworthy” and find them to be similarly applicable under the facts of the case at bar:

“[There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.” Grunewald v. United States (1957), 353 U.S. 391, 425-26, 1 L. Ed. 2d 931, 955, 77 S. Ct. 963, 984-85 (Black, J., concurring).

In summary, where the defendant’s exercise of his constitutional right to counsel was used to discredit him and to prejudice his position at trial, we believe the evidence submitted by the State in this case was improperly allowed into evidence. Where the defendant’s state of mind was the sole issue raised at trial, we cannot accept the State’s contention that the Constitution will only protect the defendant from admission of such prejudicial evidence where the issue is guilt rather than sanity. A constitutional privilege remains a constitutional privilege in either event, and a defendant who raises an insanity defense should not be denied the protection of the Constitution simply because the crux of his case revolves around his mental state.

We also do not think that the defendant’s request for an attorney is so probative on the issue of his sanity that it outweighs the prejudicial effect to him. Illustratively, a prosecutor may not comment upon a defendant’s silence after he is given his Miranda warnings because the silence is considered to be “insolubly ambiguous.” (Doyle v. Ohio (1976), 426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244; see also United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133.) We believe that a defendant’s request for an attorney can also offer a number of different interpretations and is similarly ambiguous. For example, as the State contends, the request for counsel may indicate that the defendant was sane and appreciated the criminality of his conduct. However, the defendant’s request could also mean that he was merely reacting to the police officer’s remarks because he was confused or intimidated by the arrest or the setting at the police station. We cannot accept the fact that only sane people contact their attorneys and we therefore cannot find that the defendant’s request for counsel was particularly relevant to the issue of his mental state.

Further, in both Doyle and Hale, the United States Supreme Court found it improper to impeach the defendant’s testimony with the fact that he remained silent after he was given his Miranda warnings. In the instant case, the defendant did not take the stand and his credibility was not in issue. Thus, evidence of his request for counsel was allowed not for impeachment purposes but rather as substantive evidence of his sanity. Under Doyle and Hale, the admission of this information as substantive evidence would be an even more repugnant penalty to the defendant for exercising his constitutional rights. Specifically, the Supreme Court would not even allow a defendant’s silence to be used to test his credibility, let alone to be admitted as substantive evidence.

Finally, two cases cited by the State can be easily distinguished from the case at bar. In both People v. Finkey (1982), 105 Ill. App. 3d 230, 434 N.E.2d 18, and People v. Muskgrove (1976), 44 Ill. App. 3d 381, 358 N.E.2d 336, the defendants’ requests for counsel were allowed into evidence but neither defendant raised this issue in his post-trial motion in order to preserve the issue for appeal. Consequently, both the Finkey and Muskgrove courts refused to recognize the admission of this sort of evidence to be plain error and did not decide the constitutional issue. However, in the instant case, the admission of evidence concerning the defendant’s request for an attorney was properly preserved for purposes of appeal and we therefore need not address the plain-error question. We find that the trial court improperly penalized the defendant for exercising his constitutional privilege to contact an attorney by allowing evidence to be admitted concerning the defendant’s request for counsel and by allowing the State to comment upon this evidence in closing arguments. Contra, Sulie v. Duckworth (7th Cir. 1982), 689 F.2d 128.

The fourth issue raised by the defendant is whether the trial court properly allowed a receipt into evidence. When the defendant was arrested as he fled from the victim’s apartment building after the killing, he was carrying a knife, a leather sheath and a paper bag containing a receipt from “Shaver’s World.” While the defense objected to testimony concerning the receipt, the arresting officer was allowed to testify that the receipt was in the defendant’s possession at the time of arrest. Further, a representative from Paul Cutlery, the sole distributor of the type of knife carried by the defendant, testified that his company distributed this kind of knife to Shaver’s World and that the suggested retail price for the knife was $12.50. The receipt reflected a $12.50 purchase from Shaver’s World on the day of the killing and was allowed into evidence as a State exhibit.

The defendant contends that an improper foundation was laid for admission of the receipt and that the State failed to establish a proper chain connecting the receipt to the defendant’s purchase of the knife. Consequently, the defendant argues, the probative value of the receipt was minimal while it prejudiced the defendant by indicating that he purchased the knife with premeditation on the day of the killing. We cannot accept the defendant’s argument and therefore find that the receipt was properly admitted into evidence. We find it necessary to reach this conclusion for three reasons.

First, we find this receipt to be admissible because a physical object may be admitted into evidence provided there is a connection established between the object, the defendant and the crime. (People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688.) In the instant case, the receipt was found in the defendant’s possession when he was arrested immediately following the killing. We find this to be a sufficient connection between the receipt, the defendant and the crime. In contrast, the cases cited by the defendant are concerned with evidence that was not in the defendants’ possession at the time of the crimes or at the time of the arrests. For example, in People v. Malkiewicz (1980), 86 Ill. App. 3d 417, 408 N.E.2d 47, several books with sexually oriented titles were found during an inventory search of the defendant’s car after he had been charged with rape. The court found that the books had been improperly allowed into evidence solely to show criminal propensity. Specifically, the State failed to demonstrate that the books belonged to the defendant, that the defendant had read the books or what the contents of the books were. Further, there was no evidence that the books were present at the scene of the crime or were an instrumentality of the crime. The instant case poses no similar problems of connecting the receipt to the defendant and the crime where the defendant apparently had the receipt in his possession throughout the entire incident.

In addition, a proper foundation may be laid for the introduction of an object into evidence by a witness’ identification of the object. (People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 424 N.E.2d 1178.) In the instant case, the receipt was identified by the arresting officer. Importantly, the propriety of receiving physical evidence rests primarily within the sound discretion of the trial judge. (People v. Ford (1980), 83 Ill. App. 3d 57, 403 N.E.2d 512.) Thus, where both the connection and the foundation were proper, we will not disturb the trial court’s ruling.

Our final reason for holding that the receipt was properly allowed into evidence is that where the jury could circumstantially infer from the defendant’s possession of the receipt that the knife was purchased before the killing, this was probative as to whether the defendant lacked “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a); see also People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423.) Therefore, where this ev-' idence was relevant within the terms of the Illinois insanity statute, we cannot agree with the defendant’s final contention that the probative value of the receipt was minimal. We consequently find that the receipt was properly admitted into evidence.

The fifth issue advanced by the defendant is whether the trial court improperly restricted the defense’s cross-examination of certain State experts. Specifically, following the killing of the victim in this case, Doctors Rogers and Cavanaugh of the Isaac Ray Center examined the defendant and subsequently testified on behalf of the State. The Isaac Ray Center is partially funded by the Department of Mental Health. The parents of the victim in the instant case were suing the Department of Mental Health in an unrelated civil suit at the time of the defendant’s trial, claiming that the Department of Mental Health had negligently released the defendant prior to the time he killed the victim.

The defense attempted to draw out this information during crossexamiantion of Doctors Rogers and Cavanaugh in order to demonstrate that they had an improper motive to testify that the defendant was sane. In essence, the defense claimed that testimony of the defendant’s insanity would be damaging to the- Isaac Ray Center’s funding source, and in turn would be damaging to the Isaac Ray Center and to the doctors themselves. The court sustained the State’s objection to this line of inquiry. We find the relationship between the doctors, the Department of Mental Health and the civil suit to be too remote and therefore uphold the trial court’s ruling.

The latitude allowed in cross-examination of a witness is generally a matter within the trial court’s discretion. (People v. Outlaw (1979), 75 Ill. App. 3d 626, 394 N.E.2d 541.) The trial judge’s decision in this area will not be reversed on appeal absent a clear abuse of discretion that results in manifest prejudice to the defendant. (People v. Robinson (1978), 67 Ill. App. 3d 539, 384 N.E.2d 962.) While we recognize that the defendant should be allowed wide latitude in establishing a prosecution witness’ bias, motive or interest (People v. Pizzi (1981), 94 Ill. App. 3d 415, 418 N.E.2d 1024), we cannot find that the trial judge abused his discretion in finding the defendant’s claim of bias to be too tenuous under the facts of this case. First, neither doctor would be personally liable if the Department of Mental Health lost its civil suit. Second, the doctors were not employed by the Department of Mental Health; rather, the Isaac Ray Center merely received partial funding from the agency. Thus, as the trial judge observed, there was no showing that the doctors would attempt to protect the agency. Finally, over two years had passed between the defendant’s 1976 release from the Department of Mental Health and his 1978 examination by Doctors Rogers and Cavanaugh. It does not follow that a 1978 diagnosis of the defendant’s sanity or insanity would have any real bearing upon a civil suit concerned with the defendant’s mental state at the time of his 1976 release. Thus, even disregarding the doctors’ somewhat vague connection to the Department of Mental Health, we do not see how they could reasonably be perceived as being unduly biased.

Therefore, because we see no concrete motive for either doctor to develop an uncandid or deceptive diagnosis of the defendant’s mental state, we find the defendant’s arguments to be too speculative. We find that the trial court did not abuse its discretion in refusing to allow the defense to pursue this line of inquiry on cross-examination. Further, we cannot see that the defendant has suffered any “manifest prejudice” where both doctors were rigorously cross-examined by the defense and where an extensive amount of evidence contrary to the doctors’ testimony was presented to the jury.

The defendant’s next assignment of error on appeal is that State’s experts were allowed to improperly testify regarding the Illinois insanity statute and that the trial court highlighted this improper testimony by allowing a non-Illinois Pattern Jury Instruction offered by the State. The defendant argues that the trial court erroneously allowed State experts to state the statutory test for insanity in Illinois and describe how they perceived the defense to operate within the framework of the law. Further, the defendant asserts that it was improper to allow a psychiatrist testifying for the State to observe that he did not believe that a diagnosis of schizophrenia, standing alone, would fulfill the legal definition of insanity under the Illinois insanity statute. (See Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).) The defendant also argues that the trial court improperly highlighted this testimony by allowing a State non-pattern instruction which read “a personality disorder is not a mental disease or defect within the meaning of the Illinois Statute.” In addition, the defendant asserts that the trial court erred in not allowing a defense non-pattern instruction which stated that schizophrenia and organic brain disease are mental diseases or defects in Illinois. We find that the trial court properly allowed the State’s experts to testify in terms of the Illinois insanity statute but we also find that the trial judge should not have allowed either non-pattern jury instruction.

An examination of the record reveals that the State experts’ testimony was couched in terms of the doctors’ medical expertise as it related to the Illinois insanity statute. Illinois courts prefer to have a medical expert in an insanity defense case testify in terms of the insanity statute regarding the existence of a mental disease or defect and its relationship to a defendant’s conduct. (People v. Anderson (1981), 93 Ill. App. 3d 646, 417 N.E.2d 663; People v. Zemola (1972), 9 Ill. App. 3d 424, 292 N.E.2d 195.) Where the State experts testified utilizing the statutory language, we cannot accept the defendant’s position that the doctors were improperly offering legal expertise rather than testifying within the bounds of their respective areas of medical knowledge. Thus, because the statutory language is preferred as a basis for expert testimony, it would be unreasonable to require the experts to ignore this legal terminology while testifying.

We also find that in the context of the record, it was not improper for the State psychiatrist to state that the mere diagnosis of schizophrenia would not in itself meet the statutory test of insanity. While a diagnosis of schizophrenia may qualify as a mental disease or defect under the Illinois insanity statute (People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388), the doctor in the instant case was merely observing that in addition to having a mental disorder or defect such as schizophrenia, a defendant must also be unable to comprehend the criminality of his conduct or conform his conduct to the law in order for him to meet the statutory test of insanity. (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).) Again, we believe this testimony was properly presented in terms of the insanity statute and we find no error.

We do think, however, that it was improper for the trial court to allow the State’s non-pattern jury instruction. A trial judge should be particularly hesitant to allow non-pattern instructions, especially where the instruction may call particular attention to certain portions of the evidence. (People v. Godbout (1976), 42 Ill. App. 3d 1001, 356 N.E.2d 865.) Here we believe that the additional instruction could have placed undue emphasis upon the testimony of the State witnesses and should have therefore been refused. However, one superfluous or misleading jury instruction does not necessarily require a reviewing court to reverse (People v. Robinson (1974), 21 Ill. App. 3d 343, 315 N.E.2d 95) and, because we find the instant error to be relatively minor, we decline to do so here.

Finally, we do not believe that the trial court erred in refusing the non-pattern jury instruction that was offered by the defendant because again, the unnecessary inclusion of non-pattern instructions is not favored. Further, even if it was error to refuse the defendant’s instruction, we cannot say that substantial justice was denied in the instant case and the jury’s verdict may have been the result of the trial court’s failure to give the defendant’s instruction. (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112.) Therefore, we find that the trial court properly refused to give the defendant’s tendered jury instruction.

The final issue raised by the defendant is whether two allegedly improper remarks made by the prosecutor during closing arguments require this court to remand the defendant’s case for a new trial. First, the defendant contends that the prosecutor improperly commented that the defendant’s collection of three matchbox cars was not indicative of an abnormal adult preoccupation with toys. The defendant points out that the actual number of such toys was 60 and that the prosecution misstated the evidence presented at trial. However, because the defendant made no objection to these comments during the State’s closing argument, we find this matter to have been waived for purposes of appeal. People v. Cobb (1981), 97 Ill. App. 3d 615, 422 N.E.2d 1106.

The second remark objected to by the defendant concerns the State’s implication that the public defender’s office had withdrawn from the defendant’s case because it found the case to be hopeless. In fact, the withdrawal was necessitated by a potential conflict of interest. The prosecutor mentioned the withdrawal of the public defender’s office twice during closing argument. The first time it was mentioned, the defense did not object and therefore, the matter is waived for purposes of appeal. (People v. Cobb (1981), 97 Ill. App. 3d 615, 422 N.E.2d 1106.) The second time the prosecutor mentioned the withdrawal, the court sustained the defense’s objection and instructed the jury to disregard the comment.

Generally, if timely objection is made at trial concerning an improper remark made by counsel to the jury, the court can usually correct any error by sustaining the objection and instructing the jury to disregard the comment. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Thus, although we think the comment would have been best left unsaid by the prosecutor, we do not find that the defendant was prejudiced where the trial court promptly acted to cure any alleged error.

We think this is especially true when we examine the record of the closing arguments in detail. The closing arguments of both the State and the defendant must be examined in their entirety and the complained of comments must be placed in their proper context. (People v. Nemke (1970), 46 Ill. 2d 49, 263 N.E.2d 97; People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.) In the instant case, the complained of remark is isolated in lengthy closing arguments which extend over 175 pages of the trial transcript. Taken in context, we do not believe that the prosecutor’s comment was a material factor in the jury’s determination of the defendant’s mental state and therefore, we do not find that the defendant was unduly prejudiced. (People v. Kitchen (1977), 53 Ill. App. 3d 521, 368 N.E.2d 528.) Consequently, we will not recognize the prosecutor’s comment to be reversible error. People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.

After examining all of the above alleged trial errors cited by the defendant, we are left to consider whether we must reverse this case due to the two instances of error that have been recognized by this court. Specifically, we have found that it was erroneous to exclude from evidence the letters written by the defendant to his family and former attorneys. Further, we found that it was error to admit the defendant’s post-arrest request for an attorney as evidence of his sanity and for the prosecutor to refer to this evidence during closing arguments. We must now decide whether these errors prejudiced the defendant to such an extent that we must now reverse his conviction and remand his case for a new trial.

We note first that this was a lengthy trial where voluminous evidence was presented by both the defense and the State. The trial spanned a two-week period and generated nearly 2,000 pages of trial and pretrial transcripts. The parties presented and examined 30 witnesses, including seven expert medical experts. Also, additional potential witnesses were not called because the parties stipulated as to the nature of their respective testimony. The defense had the opportunity to present an exhaustive amount of testimony through both lay and expert witnesses regarding the defendant’s mental condition and to extensively cross-examine the State’s witnesses. Ultimately, a vast amount of evidence was presented by both the defense and the prosecution concerning the issue of the defendant’s mental state.

When we realistically weigh the two trial errors in relation to all of the other evidence presented at trial, we cannot conclude that the complained of errors influenced the verdict reached by the jury in any significant manner. (See People v. West (1981), 102 Ill. App. 3d 50, 429 N.E.2d 599.) “Generally, a reviewing court will not reverse a jury verdict due to an error in the admission of evidence unless it appears that there was a denial of real justice.” (People v. West (1981), 102 Ill. App. 3d 50, 54, 429 N.E.2d 599, 603; see also People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.) We do not think that the trial court’s errors in admitting evidence either included or excluded evidence that was pivotal in the jury’s determination of its verdict. Importantly, reversal is not required if, after a close examination of the record, it appears to us that the error complained of would not be the basis of an average jury’s verdict. (People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169.) We think that this is the case here.

While the defense was improperly barred from admitting the defendant’s letters into evidence, we do not think that this significantly prejudiced the defendant. Specifically, the defense sought to admit these letters to demonstrate that the defendant was suffering from delusions. However, we observe that the testimony of several defense witnesses, including the defendant’s mother, independently established facts of the sort contained in the defendant’s letters. The witnesses testified that the defendant told police that he was, for example, a fireman or a policeman. Similarly, the defense claimed the letters were indicative of the defendant’s insanity because he claimed in the letters to be such things as a prison fireman or an aide to the prison superintendent. Thus, where the jury in fact considered evidence very similar to the evidence contained in the letters, we do not believe that the jury’s verdict would have changed in the event that the letters had been admitted. We therefore find this error to be harmless.

The admission of evidence concerning the defendant’s post-arrest request for an attorney was an error of constitutional magnitude. However, a Federal constitutional error can be held harmless if we believe it to be harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169.) While we tread very lightly in the area of an individual’s constitutional rights, we think that the error committed here was harmless beyond a reasonable doubt. Again, where this evidence was isolated in a lengthy trial and there was an exhaustive amount of evidence on both sides of the insanity issue, we do not believe this evidence had a significant impact upon the minds of the jury. (See Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726.) Therefore, on this record, we believe the error to be harmless beyond a reasonable doubt even when measured under a constitutional error standard.

Based on the foregoing, we find that the errors committed at trial, either individually or cumulatively, were harmless beyond a reasonable doubt and we therefore affirm the judgment of the circuit court.

Affirmed.

JOHNSON, P.J., and LINN, J., concurring.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    MODEL INDUSTRIES, INC., Plaintiff-Appellant and Cross-Appellee, v. WALSH PRESS & DIE COMPANY, Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 81—1721
    Opinion filed December 23, 1982.

      Thomas J. Keevers, of Chicago (Thomas J. Keevers and Patricia M. Sack, of counsel), for appellant.
    James T. Keating, of Chicago (James T. J. Keating and Elizabeth S. Davis, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Prior to trial, Model Industries, Inc. (hereinafter Model), gave notice to Walsh Press & Die Company (hereinafter Walsh) and sought a voluntary dismissal of its suit pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1009) formerly section 52 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52) (hereinafter section 2—1009). Subsequently, Walsh filed a motion for costs and attorney fees pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—611) formerly section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41) (hereinafter section 2—611) in the amount of $6,128.64, later amended to $6,248.64. After hearings were held on the motions, the trial court awarded to Walsh costs pursuant to section 2—1009 in the amount of $766.15 and also attorney fees pursuant to section 2—611 in the amount of $4,575.15. Model’s sole issue on appeal is whether the trial court erred in awarding attorney fees to Walsh. In addition, Walsh cross-appeals for an increase in its attorney fees award. For the reasons that follow we reverse the trial court.

On April 10, 1978, Model filed a products liability suit against Walsh and Allen-Bradley Company to recover costs in the amount of $11,896, paid by Model pursuant to a successful worker’s compensation claim filed by one of its employees for injuries sustained while working on a punch press, designed, manufactured and sold by Walsh and equipped with a foot pedal, designed, manufactured and sold by Allen-Bradley Company. After extensive pretrial discovery, Model filed an amended complaint which itemized several additional conditions of the press which rendered it not reasonably safe. Thereafter, Walsh filed affirmative defenses.

On February 27, 1980, Allen-Bradley Company filed a motion for summary judgment, stating that prior to the accident in question, the foot pedal on the punch press had been altered by Model, thus changing the condition of the pedal from that which it was in when it left Allen-Bradley’s control. Several months later, Walsh filed a motion to join Allen-Bradley’s summary judgment motion. The trial court granted the motion as per Allen-Bradley Company, but denied it as per Walsh.

On June 2, 1980, one day before trial, Model served notice on Walsh that the next day it would present a motion for voluntary dismissal pursuant to section 2 — 1009 “on the grounds that plaintiff’s counsel has after great diligence been unsuccessful in locating witnesses for presentation of plaintiff’s case.” Subsequently, Walsh filed a motion for costs and attorney fees pursuant to section 2 — 611 alleging, in pertinent part, that (1) the claim against Walsh was not brought in good faith; (2) the claim was made without reasonable cause; (3) the suit was frivolous and vexatious; (4) the suit put an undue burden upon defendant to expend money upon attorney fees which the court should restore; and (5) “expenses and attornye’s [sic] fees should be awarded when pleader’s allegations are found to be untrue and made in bad faith without reasonable cause.”

Thereafter, on December 22, 1980, a hearing was held on the motions for voluntary dismissal and for costs and attorney fees, after which the trial court entered an order allowing Model additional time to file proofs supporting its objection to Walsh’s allegations. At that time, the court indicated that it was “gravitating to the position that [the suit] was unreasonable based on what [it had] heard so far.”

At the second hearing, the court granted Model’s motion for voluntary dismissal subject to payment of costs incurred by Walsh in the amount of $766.15. The next area of discussion was the award of attorney fees. At the outset, the record reveals that there was some confusion as to whether Walsh was proceeding under section 2 — 1009 or section 2 — 611.

“MR. KEEVERS: *** I do have an objection to the interchangeable use of the word of ‘costs’ and ‘attorney’s fees’. These are two separate things recognized in the law. Section [2 — 1009] allows the costs. It does not allow for attorney’s fees. Attorney’s fees are conspicuous by their absence from Section [2-1009],
* * *
THE COURT: *** which brings me back to a question, again, if Mr. Keevers’ point is correct, and you say you are still proceeding under [2 — 1009]—
* * *
THE COURT: You may do so, but then, that’s in derogation of his view of the law. He thinks you should be under [2 — 611].
MR. KEATING: Well, my understanding is what you were doing, your Honor, is that you had read Section [2 — 1009] and that at the end of Section [2 — 1009], it says, dismissal, voluntary dismissal will be upon any other order of the court. I myself have never pursued the attorney’s fees under Section [2— 1009]. I thought that you were indicating to me that you believe that the attorney’s fees might be pursued under [2 — 1009] under — as other costs as the Court might deem reasonable.
THE COURT: Let me state for the record that I am aware of no case that permits me to allow attorney’s fees under [2— 1009],
MR. KEATING: I’m not either, your Honor.
THE COURT: I’m sorry if I-
MR. KEATING: I wasn’t going to close the gate and then come back later.
THE COURT: We are on [2-611].”

At the conclusion of the hearing, the court took the matter under advisement. On June 12, 1981, the court granted Walsh’s motion for section 2 — 611 attorney fees in the amount of $4,575.15, covering the period from June 16, 1978, through June 3, 1980. Thereafter, pursuant to Illinois Supreme Court Rule 305 (73 Ill. 2d R. 305), Model moved to stay enforcement of the order pending appeal. The motion was granted. Subsequently, Walsh filed a notice of cross-appeal, requesting this court to amend the trial court’s award to $7,531.30, the amount originally requested by Walsh for attorney fees.

Opinion

Model contends that the trial court erred in awarding attorney fees pursuant to section 2 — 611 on the grounds that the allegations in Model’s amended complaint were true, and, in fact, were admitted to be true by defense counsel in the course of the trial court proceedings.

Section 2 — 611 of the Code of Civil Procedure provides in part:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee ***.”

It is well established in Illinois that absent a statute or contractual agreement, attorney fees and ordinary expenses and burdens of litigation are not allowable to the successful party. An established corollary to this rule is that any statute providing for the recovery of such costs must be strictly construed. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 417 N.E.2d 167.) Because section 2 — 611 is penal in nature, Illinois courts have steadfastly adhered to this principle of strict construction and have invoked section 2 — 611 sanctions only in cases falling strictly within its terms and each of its requirements; specifically, “allegations and denials, made "without reasonable cause and found to be untrue” must be proved by the party seeking relief. (Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 481, 407 N.E.2d 1013, 1017.) Furthermore, the award of expenses and fees is within the discretion of the trial court and will not be reversed absent abuse of that discretion. Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405, 432 N.E.2d 1035.

In the pending case, Model’s amended complaint, filed on July 13, 1978, added, inter alia, the following allegations to Paragraph 7 of the original complaint:

“f. Said machine was not equipped with a presence sensing device to deactivate the ram when the operator’s hand is in the point of operation.
g. Said machine was not equipped with a gate or moveable barrier device to enclose the point of operation.
h. Said machine was not equipped with a pull-back device to withdraw the operator’s hands from the point of operation.”

In its argument for section 2 — 611 attorney fees, Walsh attacked the allegations in Model’s amended complaint as unreasonable and untrue, and set forth an extensive analysis of products liability law in an attempt to support its contentions. In so doing, Walsh confused defenses which might have been available to it in the principle case with the elements it must prove under section 2 — 611. The issue is not whether Model had a likelihood of prevailing in the suit, but whether Model made allegations which were found to be untrue.

After reviewing the record, we find that the record itself is dis-positive of the issue. It is replete with admissions by Walsh that the press was shipped to Model without guards of any kind attached. For example, during the section 2 — 611 proceedings, defense counsel stated:

“Model Industries was the one who guarded [the punch press], not Walsh Press. Walsh Press sent out a multi-function type press with no guards on it. The employer guards them themselves, and that’s set forth in our motion for summary judgment.
The employer sets them out themselves.
* * *
*** The machine as it left Walsh had no barrier.”

In effect, the truth of Model’s allegations that the press was not equipped with guards when it left Walsh’s control was stipulated to by the parties. Because Walsh focused on liability, and not the factual truth of the allegations, it presented the court with a plentitude of data and case law that is inapplicable to the section 2 — 611 fee issue. Accordingly, we find that Walsh did not meet its burden of proof in establishing the requisite elements of section 2 — 611, and hold that the award of attorney fees thereunder was an abuse of the trial court’s discretion.

• In addition to its misdirected focus, Walsh was also not aided by its reliance on Ready v. Ready (1961), 33 Ill. App. 2d 145, 178 N.E.2d 650, and Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297, both of which are factually distinguishable from the situation at bar. In Ready, the court found that the complaint not only stated an erroneous theory, but that most of the allegations were factually untrue. As stated, there were no factually untrue statements in the pending case. In Pole, the supreme court reversed the appellate court on the ground that no hearing had been held on the section 2 — 611 motion. By comparison, extensive hearings were held on Walsh’s motion. As a final note, our decision that attorney fees were improperly awarded by the trial court obviates the need to discuss Walsh’s cross-appeal for an increase in the fees awarded.

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

Reversed.

LORENZ and MEJDA, JJ., concur.

      An amendment by the Illinois legislature (Pub. Act 79—1434, sec. 8, eff. Sept. 19, 1976), removed the good faith requirement from section 2 — 611. Therefore, as to fact situations arising after the effective date of the amendment, if the amendment is to be effective, the only requirements must be that the statements be made without reasonable cause and be found to be untrue. Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 511, 394 N.E.2d 1273, 1281-82.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CARTALINO (Impleaded), Defendant-Appellant.
    First District (2nd Division)
    No. 80—235
    Opinion filed December 28, 1982.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant John Cartalino and codefendant Robert Bridges were charged with the offenses of murder, home invasion, burglary, attempted armed robbery and armed violence. Cartalino was tried by a jury while Bridges was tried in a separate but simultaneous bench trial. The trial was structured so that the jury heard evidence intended to relate primarily to the guilt or innocence of Cartalino. The State’s witnesses were cross-examined by Cartalino’s counsel in the presence of the jury. Bridges’ counsel cross-examined them in the absence of the jury. Questioning of defense witnesses for Bridges and Cartalino followed a similar pattern.

Bridges was found by the court not guilty on all charges. Cartalino was convicted by the jury of murder, home invasion, armed violence, burglary and attempted armed robbery. The court imposed a natural life sentence for Cartalino’s murder conviction. The principal issues on appeal include whether: Cartalino was proven guilty beyond a reasonable doubt; undue emphasis was given to a prior consistent statement of an accomplice witness when the statement was allowed into the jury room; and Cartalino’s life sentence was constitutionally permissible.

For the reasons which follow, we affirm.

Barbara Colgan testified for the State. She was scheduled to meet the victim’s girlfriend, Joyce Roscoe, for the purpose of working as a prostitute for Roscoe. At about 3:30 p.m. on that day, she, a man named Timothy Perkins, and Bridges, drove to a restaurant located at State and Division. She left them and walked to her appointment at 17 East Goethe, Chicago. At about 4 p.m., she rang the doorbell. Donald Ewing, the victim, opened the door and she told him of her appointment with Roscoe. She entered the apartment and stood to the left so that he could close the. door. The victim looked “past” her and said, “What the shit is this?” Bridges came through the door with Cartalino directly behind him. Bridges pointed a silver revolver at the victim; Cartalino wielded a black automatic pistol. Bridges pulled out handcuffs from a clear plastic bag. Cartalino and Bridges told the victim to sit down and “shut up.” They asked him, “Do you want to die, motherfucker?” The victim said “I’m already dead.” A growling German shepherd ran towards them but stopped at the end of the hall. Colgan “panicked” and ran out of the apartment. At an alley about 20 feet from the building she heard four shots coming from inside the apartment.

Colgan returned to Perkins’ apartment. Only Marilyn Perkins, Timothy’s wife, was home. At about 4:28 p.m-., she looked through the window and saw Timothy Perkins running towards the house. She saw Cartalino on the driver’s side and Bridges on the passenger side of a black Oldsmobile Cutlass parked on the street in front of the house. Timothy entered the apartment and had a conversation with her. She went home but did not remain there overnight. The next day she was with Marilyn and Timothy Perkins. On April 1, 1979, she had her mother call the police, spoke with various policemen at the station, and gave them the names of Marilyn and Timothy Perkins. When shown a group of males in eight black and white photographs, she identified Cartalino as the man she had seen in the victim’s apartment. After giving her statement to police investigators on April 1 and 2, she was granted immunity from prosecution for any criminal matters other than perjury disclosed by her testimony.

Joyce Roscoe testified for the State. In March of 1979 she lived with the victim at the Goethe Street apartment. They were involved -with call girls and sold cocaine. Marilyn Perkins worked as a prostitute for her. At about 3:30 p.m. on the day of the murder, she telephoned the victim at Irene Hyaz’ apartment, asked him to go to their apartment to meet Colgan, and tell her she would be 15 or 20 minutes late. When Roscoe returned to their apartment at approximately 4:30 p.m., the door was wide open and the apartment smelled of smoke. Nothing was stolen but she found the victim lying on the floor.

Timothy Perkins testified for the State. During the second week of March 1979 he saw Bridges at his McClurg Street apartment. Bridges asked him if he knew of anybody who he could “stick up” that was “off into vice” and would not complain to police. Timothy responded that if he learned of anyone he would let him know. The Monday preceding March 29, at the McClurg apartment, Perkins told Bridges that he thought of someone Bridges could stick up and expect to find money, drugs, jewelry and possibly furs. He would try to get the address for him, which he did. He did not tell Bridges the name of the person who lived there. He told Bridges that he could not go with him because he knew the people.

Perkins later explained to Bridges that he knew Colgan had an appointment at that address on Thursday and they could probably get in by following her. He had known Colgan for a couple of weeks. At 10:30 a.m. on the day of the murder he went to Bridges’ apartment. Bridges had a set of handcuffs, two ski masks and a nickel-plated revolver. Later he drove Colgan and Bridges to a restaurant at Division and State Streets. A few minutes after Colgan left for her appointment, he and Bridges began following her. Cartalino joined them and Bridges said Cartalino was going to go with him. Bridges handed Cartalino a ski mask, but neither man wore them. They walked north on State to Scott Street. He went east on Scott and last saw Bridges and Cartalino going north on State. He was going to go into the alley to wait as a lookout, but when he saw a delivery truck and workers there, he continued east on Scott. When he got to Scott and Astor, he heard two muffled gunshots. He could not tell where they came from. He heard three more louder shots.

Cartalino pulled up in a black Oldsmobile driven by Bridges. He got in the back seat. Bridges asked if he saw “the girl.” Cartalino told him that they had to find her because she could get them all “busted.” Bridges said they had to “pop the guy,” and Cartalino said “he did, too,” three times. Cartalino showed Perkins that his gun clip was missing three cartridges. They drove around the block unsuccessfully looking for Colgan, and went to Perkins’ apartment 10 or 15 minutes later. While Bridges and Cartalino remained in the car, Perkins entered his apartment. He told Colgan that they were going to kill her and that she should hide in the basement. He went back and told Bridges and Cartalino that Colgan had not returned, but had called and said she was going to a motel and would call back later. Bridges said that he would keep in touch and Cartalino said that they had to kill her. Colgan remained at his apartment that night. The next evening he took Colgan and Marilyn to O’Hare Airport and left them at a terminal. The following morning, he picked up Colgan and his wife at a motel near the airport.

On cross-examination, Perkins stated that the charges of murder, home invasion, burglary, and attempted armed robbery lodged against him would be reduced for his testimony. His lawyer told him his sentence would be five years. He was going to do 2 k years, counting the six months he already had in. He got “three to nine” for possession of a controlled substance on August 14, 1974, and “one year to one year and a day” for unlawful use of weapons on April 17, 1978. He was on parole from his narcotic conviction when he was arrested in the instant case. On redirect examination, the State asked Perkins about his court-reporter statement of April 2, 1979, a statement given months before he was “promised” five years. The statement, as elicited during redirect examination, concerning the formulation and execution of the crime, was essentially consistent with his prior in-court testimony.

The physician who performed the autopsy on the body of the victim testified that she found seven gunshot wounds of entrance and six of exit.

An investigating police officer, Ronald Gates, stated that on the day in question he searched the victim’s apartment but found nothing unusual other than a German shepherd hiding behind the toilet in the bathroom. He noticed no signs of forcible entry and the apartment was not in disarray. Officer Thomas Beland, a member of the criminalistics division of the Chicago Police Department, stated that he arrived at the scene at 5:18 p.m. He identified People’s Exhibit No. 18 as an envelope containing two handcuff keys on a ring which were similar to the handcuff keys he recovered from the floor of the apartment. He found no handcuffs.

Several spent bullets, metal fragments and .380 cartridge casings were recovered and introduced into evidence at trial. A firearms examiner testified that the three cartridge casings recovered from the victim’s apartment were determined to have been fired from the same gun. Three of the recovered bullets were fired from an automatic .380 caliber having six lands and grooves inclined to the right. It was not possible to determine whether the .380 automatic bullets came from the three .380 cartridge casings. The two .38 special revolver bullets were fired from the same weapon. Such bullets may be fired from either a .38 special revolver or a .357 revolver. No ammunition similar to that found in People’s Exhibit No. 26 was submitted to him in regard to this case. A homicide investigator testified that he found six live rounds of .38 round nose ammunition, identified as People’s Exhibit No. 26, in Bridges’ coat pocket when the latter was arrested.

Homicide Investigator Hans Hietmann stated that on April 2, 1979, he observed a 1978 or 1979 black Oldsmobile in front of 5918 West 88th Place, Oak Lawn, which was believed to be the home of defendant. They met a woman there who identified herself as defendant’s mother. On April 9, 1979, Cartalino was arrested at 2332 West 22nd Street. The same black Oldsmobile that was parked in Oak Lawn was now parked in front of this latter address. It was stipulated that if a State’s witness, Andrew DiBrowski, were called to testify he would state that he resided at 2329 West 22d Place, and on four different occasions had observed Cartalino inside the Oldsmobile at which times the vehicle was always in front of 2322 West 22d Place.

Irene Hyaz, a call girl, testified for Cartalino. She had indirect knowledge that Ronald Birch and Barry Fischer dealt with the victim in drugs. The three were friends. They had a disagreement two months before the victim’s murder, because they believed he had informed on them. She “heard” they made “threats.” Two additional witnesses testified on behalf of Bridges only. One witness testified in essence, on the basis of measurements he made, that the shortest possible distance from the rear of 17 E. Goethe to Astor and Scott was 250 feet. A building manager for the McClurg Court Apartments testified that Bridges did not move in until March 23, 1979, but could have had access to the apartment any time after March 19, 1979.

The State was allowed to reopen its case. An Oak Lawn police officer testified that the day before trial he went to Cartalino’s home and spoke with his parents. Cartalino was not present at that address, nor did he know where he was. Cartalino was absent during the course of the trial.

In acquitting Bridges, the circuit court found: the testimony of Perkins and Colgan was not credible; it was improbable that Perkins would seek the help of Bridges or Cartalino to rob the victim; and that Perkins was the “individual who was the shooter.” The court, however, expressly stated it was not determining the guilt or innocence of Cartalino.

I

A. Cartalino maintains that the State failed to prove him guilty beyond a reasonable doubt, since the evidence of Bridges’ guilt was at least as great as the evidence tending to prove his guilt. He contends that in both cases, the State relied exclusively on the testimony of Perkins, an accomplice witness, and Colgan, a partially immunized witness, to prove the guilt of the codefendant and defendant himself. Cartalino emphasizes that in acquitting Bridges, the circuit court made no reference in his findings to any evidence which was not common to both trials. He argues that since the State’s cases against Bridges and himself depended equally on the trier of fact’s assessment of Perkins’ and Colgan’s credibility, and the finding of the circuit court as to Bridges expressly questioned their credibility, the inconsistent verdict as to him cannot be tolerated.

The failure to convict one codefendant does not raise a reasonable doubt as to the guilt of the other codefendant unless it is demonstrated that the evidence against both defendants is identical in all respects. (People v. Vriner (1978), 74 Ill. 2d 329, 343, 385 N.E.2d 671; People v. Stock (1974), 56 Ill. 2d 461, 465, 309 N.E.2d 19. See Annot., 22 A.L.R. 3d 717 (1968).) Where there is the slightest difference in the evidence as between codefendants, the acquittal of one does not raise a reasonable doubt as to the guilt of the other. (People v. Hobson (1979), 77 Ill. App. 3d 22, 26, 396 N.E.2d 53.) In the instant case, the evidence against both defendants was dissimilar for several reasons.

First, only Bridges introduced evidence which established the unlikelihood of Perkins having met Bridges in the McClurg apartment during the second week of March. Second, only Bridges introduced defense evidence tending to show that it was improbable that Perkins heard the shots fired from his alleged position on the street. This evidence was especially damaging to the State’s case, since it undercut the credibility of one of the State’s key witnesses, Perkins. Third, the State introduced evidence of defendant’s absence from the courtroom and home from which the jury could have reasonably inferred a consciousness of guilt. Fourth, a statement made by Cartalino to Perkins in the lockup after their arrest was admitted only as to Cartalino, to the effect that the latter told Perkins that when he got out, he would kill Bridges and Colgan, and that he knew Bridges “gave him up.” Further, the inculpatory evidence of Cartalino’s guilt was stronger. His auto was identified as that used to leave the scene of the crime. He was seen with the black automatic handgun. He reported that he shot the victim three times and revealed the gun clip which was missing three cartridges. A bullet from an automatic handgun was found under the victim’s head in a pool of blood. We are compelled to conclude that the acquittal of Bridges did not raise a reasonable doubt as to the guilt of Cartalino under these circumstances. People v. Vriner (1978), 74 Ill. 2d 329, 343; People v. Hiller (1980), 92 Ill. App. 3d 322, 326, 415 N.E.2d 1202.

The cases cited by Cartalino, e.g., People v. Perez (1980), 82 Ill. App. 3d 1007, 403 N.E.2d 688, and People v. Beasley (1976), 41 Ill. App. 3d 550, 353 N.E.2d 699, are distinguishable because in those cases the evidence against convicted defendants) was no stronger than the evidence against the acquitted codefendant. Cartalino’s reliance on People v. Patterson (1972), 52 Ill. 2d 421, 288 N.E.2d 403, is also misplaced. In Patterson the supreme court simply held that the uncorroborated testimony of the State’s key witness, contradicted in part by defendant and three other witnesses, was sufficiently improbable as to raise a reasonable doubt as to defendant’s guilt. In contrast, here, Cartalino’s absence from the trial and the largely consistent testimony of Perkins and Colgan, corroborated in part by the testimony of Roscoe, Officers Gates and Beland, Investigator Heitmann, the firearms examiner, the physical evidence, and the stipulation of DiBrowski, amply supported the jury’s verdict. Cartalino’s argument, that Perkins’ testimony was uncorroborated or that the State relied exclusively on the testimony of Colgan and Perkins to establish defendant’s guilt, must be rejected.

B. Cartalino urges that Perkins and Colgan had ample opportunity and time to fabricate a consistent explanation for the death of the victim that would shift the major responsibility from themselves. He emphasizes that Perkins was an accomplice and Colgan was partially immunized and argues that their testimony was fraught with improbabilities and failed to prove him guilty beyond a reasonable doubt. Colgan’s testimony was supported by her April 2, 1979, statement which was given before any immunity was granted. Perkin’s testimony was also supported by his earlier statement which was recorded well before he was “promised” leniency. Despite their opportunity to fabricate and the purported inconsistencies therein, the jury properly may have found the partially corroborated testimony of Perkins and Colgan credible and that such testimony and other evidence proved Cartalino guilty beyond a reasonable doubt. People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331; People v. Farnsley (1973), 53 Ill. 2d 537, 544-45, 293 N.E.2d 600.

II

A. Cartalino maintains that the six live rounds of .38 round nose ammunition found in Bridges’ pocket when he was arrested in his apartment three days after the incident was improperly admitted into evidence as People’s Exhibit No. 26. He argues that there was no evidence connecting these bullets to either the offenses charged or himself; therefore, their admission served no purpose other than to persuade the jury that Cartalino and Bridges were the kind of men likely to have committed the crimes charged. Cartalino also emphasizes, in effect, the firearms examiner’s testimony that no ammunition similar to that found in People’s Exhibit No. 26 was submitted to him in regard to this case.

Physical evidence may be admitted provided there is proof to connect it with the defendant and the crime. (People v. Tribbett (1968), 41 Ill. 2d 267, 270, 242 N.E.2d 249.) It is not necessary to show that an object admitted in evidence was actually used; however, the object at least must be suitable for the commission of the crime. (People v. Miller (1968), 40 Ill. 2d 154, 159, 238 N.E.2d 407.) The ammunition in question was properly admitted into evidence because of the proof connecting it with the crime and defendant. The same weapon in this case, a .38 special revolver, could fire both the .38 bullets recovered in the victim’s apartment and .38 round nose ammunition found in Bridges’ coat pocket. The fact that the latter type of ammunition was found in Bridges’ coat would allow the jury to infer that Bridges had access to the type of gun used in the incident. Since the ammunition was connected to the offense and since there was evidence that Cartalino participated in the offense, the ammunition was properly admitted. See People v. McClinton (1978), 59 Ill. App. 3d 168, 176, 375 N.E.2d 1342; People v. Dixon (1976), 36 Ill. App. 3d 247, 253-54, 343 N.E.2d 583.

Cartalino appears to argue that the evidence showing that Bridges was in possession of these bullets was evidence of other crimes, but he does not articulate how the mere possession of bullets by itself indicates the existence of “other crimes”; nor does he identify the specific nature of the crimes generally asserted. Assuming, arguendo, that the bullets were indicative of other crimes, they were still admissible if relevant for any purpose other than to show propensity to commit a crime (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489), provided that the probative value outweighs any prejudicial effect. (People v. Triplett (1981), 99 Ill. App. 3d 1077, 1082, 425 N.E.2d 1236.) The range of purposes for which evidence of other crimes is admissible is broad. (McCormick, Evidence sec. 190, at 447-48 (2d ed. 1972); E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 404.5, at 134-35 (3d ed. 1979).) Here, as noted above, the .38 bullets were probative on the issue of whether Bridges had access to the type of gun employéd in the commission of the crime. Accordingly, the circuit court did not abuse its discretion in allowing the bullets to be received into evidence (People v. Johnson (1981), 97 Ill. App. 3d 1055, 1068, 423 N.E.2d 1206) and into the jury room. People v. Allen (1959), 17 Ill. 2d 55, 62-63, 160 N.E.2d 818.

B. The following comment in the prosecutor’s closing argument is identified by Cartalino as improper:

“Then there are the little things that counsel was referring to; the .380 bullets found in the jacket of the defendant Bridges. I ask you to consider what types of people carry .380 bullets. I submit to you that there are only two types; on is a [sic] law enforcement officers who are authorized by statute to carry bullets and the second type are people who create the necessity for the first type. People like Bobby Bridges and Johnny Cartalino, killers.”

Cartalino neither objected to this comment at trial nor in his post-trial motion; the matter therefore has been waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Assuming that this issue had been properly preserved on review, such error nonetheless would not warrant reversal. People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432.

C. Cartalino assigns error to the admission of hearsay evidence regarding the black Oldsmobile purportedly driven by him showing that it had been registered to a fictitious person. Investigator Heitmann testified that the vehicle was registered to a Susan Drann at a certain address. No driver’s license had ever been issued to a Susan Drann. Cartalino maintains that this evidence tended to prove only that he was a person of bad character likely to commit a murder. This issue was waived by his failure to object at trial or to include it in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 282-83.) His reliance on People v. Figueroa (1975), 30 Ill. App. 3d 656, 333 N.E.2d 586 (abstract), misses the mark, since in that case only incompetent evidence was adduced to prove an essential element of the crimes involved therein, theft and “tampering.” Because the incompetent evidence here involved a collateral matter and because, at trial, defense counsel in effect expressed his willingness to stipulate to “what they have” from the Secretary of State’s office, we cannot conclude that the admission of such evidence, under the circumstances of this case, constituted plain error. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Pickett (1973), 54 Ill. 2d 280, 282-83.

Ill

Undue emphasis is claimed by Cartalino to have been given to the prior consistent statement of Perkins because the jury was permitted to take the statement into the jury room during its deliberations. He acknowledges, as he must, that a prior consistent statement is admissible where, as here, the witness is charged with having a motive for testifying falsely and the prior consistent statement was made before the alleged motive existed. (People v. Powell (1973), 53 Ill. 2d 465, 474-75, 292 N.E.2d 409.) But he maintains that “this tactic” unfairly bolstered Perkins testimony. This issue was waived by his failure to include it in his written motion for a new trial. (People v. Pickett (1973), 54 Ill. 2d 280, 282-83.) In the absence of waiver, we would still find the assertion without merit. Whether or not an exhibit may be taken to the jury room rests within the sound discretion of the circuit court and its ruling, absent an abuse of discretion, will not be disturbed on appeal. (People v. Allen (1959), 17 Ill. 2d 55, 62-63, 160 N.E.2d 818; but cf. People v. Carr (1977), 53 Ill. App. 3d 492, 368 N.E.2d 128.) A court may allow the jurors to take with them writings which have been duly admitted into evidence. (People v. Dixon (1978), 58 Ill. App. 3d 557, 561, 374 N.E.2d 900; Wilkinson v. Mullen (1975), 27 Ill. App. 3d 804, 808-09, 327 N.E.2d 433.) The circuit court here did not abuse its discretion or prejudice defendant’s rights by allowing the statement, duly admitted, into the jury room.

IV

Cartalino maintains that he was denied due process by the following colloquy during the State’s closing argument:

“[State’s Attorney]: *** Cartalino has the right to be proven guilty beyond a reasonable doubt, that is true, that is the burden in every single criminal case in this country and the Cook County Jail and the Illinois State Penitentiary are filled with people who have been proven guilty beyond a reasonable doubt.
Mr. Bailey [defense counsel]: Objection to that, that has no bearing on this case.
The Court: Overruled. Would you conclude?
[State’s Attorney]: There is nothing, ladies and gentlemen, that makes the crime of murder or any of the other crimes involved here that raises that burden of proof.”

The State observes that the challenged comment was made after defense counsel stated in closing argument:

“When I’m through, the Judge is going to tell you that the burden of proof is on the State and he’s going to tell you that before you can find an individual guilty of a crime, in fact, you got to be convinced beyond a reasonable doubt. That is very much what I said when I said you have to be happy in your hearts and in your souls.”

The right to assert the alleged error was waived because defendant failed to include his objection in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 282-83.) Assuming the issue was properly before this court, however, the error complained of does not warrant reversal (People v. Smith (1981), 93 Ill. App. 3d 1133, 1139, 418 N.E.2d 172; People v. Hamilton (1980), 80 Ill. App. 3d 794, 400 N.E.2d 599; People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127; but cf. People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86), particularly in light of defense counsel’s closing argument equating being “happy in your hearts and souls” with being convinced beyond a reasonable doubt. People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180; People v. Vriner (1978), 74 Ill. 2d 329, 344.

V

A. The conviction for armed violence based on the predicate offense of attempted armed robbery must be vacated, is next máintained by Cartalino. The State responds that this contention is not appealable, because a sentence was never imposed on the armed violence conviction. Thus, the State asserts, there was no final judgment from which defendant can appeal. We disagree. Although the final step in a criminal judgment is the sentence (People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283), the absence of sentence on one of two or more defendant-appealed convictions is not a jurisdictional defense. (People v Dixon (1982), 91 Ill. 2d 346, 353.) Since Cartalino has properly appealed his murder conviction, and since the failure to impose a sentence upon the armed violence conviction was intimately related to an “dependent upon” the appealed convictions within the meaning of Supreme Court Rule 615(b)(2) (73 Ill. 2d R. 615(b)(2)), this court has jurisdiction to consider defendant’s claim. People v. Dixon (1982), 91 Ill. 2d 346, 353-54; see People v. Lilly (1974), 56 Ill. 2d 493, 496, 309 N.E.2d 1.

Cartalino urges that the presence of a dangerous weapon during the commission of an attempted robbery cannot enhance an attempted robbery offense from a Class 3 felony to a Class 1 felony and also serve as the basis for a charge of armed violence. (See Ill. Rev. Stat. 1977, ch. 38, pars. 8—4(c), 18—1, 18—2, 33A—2.) Therefore, he argues, his armed violence conviction cannot stand. A similar defense argument was raised and rejected in People v. Goodman (1982), 109 Ill. App. 3d 203, 208-10, 440 N.E.2d 345, where we held that a conviction for armed violence based on the predicate felony of attempted armed robbery did not constitute an impermissible double enhancement in violation of People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627. For the reasons set forth in Goodman, we find defendant’s argument unpersuasive.

B. The State claims that Cartalino was sentenced solely on the murder conviction and requests this court to remand the cause for imposition of sentences on all convictions. At the sentencing hearing, however, the State simply requested that defendant “be sentenced to natural life”; it did not seek the imposition of separate sentence for each conviction. Nor did the State object when the court failed to impose separate sentences. Under these circumstances, the State has waived the right to assert this issue on appeal. People v. Szudy (1982), 108 Ill. App. 3d 599, 606, 439 N.E.2d 137; cf. People v. Garner (1981), 102 Ill. App. 3d 755, 758, 430 N.E.2d 320.

VI

A. The Unified Code of Corrections (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1001—1—1 et seq.) is claimed by Cartalino to con-

tain no basis for distinguishing between those offenders who qualify for an extended term only and those who are to be imprisoned for natural life. He observes that under section 5 — 8—1(a)(1) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1)) the court may sentence a defendant convicted of murder to a term of natural life if it finds that “the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” He further notes that under the extended-term provisions (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—8—2(a)(1), 1005—5—3.2(b)(2)), a court may sentence a defendant guilty of murder to a term of not less than 40 years and not more than 80 years if it finds that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Therefore, Cartalino contends, a circuit court has, in violation of the equal protection clause, totally unbridled discretion to sentence a defendant convicted of murder to a term of natural life rather than an extended term based on the identical finding that the murder was exceptionally brutal and heinous. This argument has been waived, since it was not raised by defendant at either the sentencing hearing or in his motion for a new trial. (People v. Pickett (1973), 54 Ill. 2d 280, 282-83.) Assuming there had been no waiver, the merits of defendant’s contention are unsupportable.

Section 5 — 8—1(a)(1) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)) does not permit the court to impose a sentence of natural life solely on the basis of the seriousness of the offense committed (People v. Smith (1980), 91 Ill. App. 3d 438, 449, 414 N.E.2d 1281) without regard to a defendant’s rehabilitative potential. (People v. Merchel (1980), 91 Ill. App. 3d 285, 295, 414 N.E.2d 804.) In determining a proper sentence for any felony, including murder, factors in aggravation and mitigation must be considered (People v. Bartik (1981), 94 Ill. App. 3d 696, 703, 418 N.E.2d 1108; People v. Merchel (1980), 91 Ill. App. 3d 285, 295) “as well as any other such factors as the judge shall set forth on the record that are consistent with the purposes and principles of sentencing set out in the Code.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(b). See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1.) Among aggravating factors listed are whether: defendant received compensation for committing the offense; defendant has a history of criminal activity; and the sentence is necessary to deter others from committing the same offense. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a).) Mitigating factors are set forth in section 5—5—3.1(a). Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.1(a).

Cartalino’s argument ignores the aggravating and mitigating factors — as distinct from a finding of brutal conduct — which the Code mandates a circuit court to weigh before imposing any sentence, including one for natural life or an extended term. It is the presence or absence of the specified statutory factors which determine the nature of the sentence imposed on a defendant found guilty of a brutal and heinous murder. It cannot be concluded, from the foregoing, that a circuit court has the totally unbridled discretion to sentence a defendant to natural life or to an extended term. We conclude, therefore, that Cartalino has failed to overcome the strong presumption of the statute’s constitutionality (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344), even had there been no waiver.

B. The final contention raised by Cartalino is that the United States Constitution bars imposition of a natural life term based on the finding of an aggravating factor which was not found to exist by a unanimous jury at the death penalty hearing. The circuit court imposed a term of natural life, in part, because, “*** of the finding of the jury in this case, who have found the facts to be that John Cartalino did commit this murder and that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty.” At the end of the death penalty hearing, the jury could not unanimously find an aggravating factor was present so as to qualify defendant for imposition of the death penalty. Specifically, Cartalino maintains that the jury could not unanimously conclude that the victim “was killed by the defendant and not by another party to the crime.” He argues that application of the doctrine of collateral estoppel requires that the sentence of natural life imprisonment, to the extent that it is based on the finding of the existence of an aggravating factor, be vacated and the cause remanded for new sentencing.

The State argues that this issue was waived since it was not raised by defendant at his sentencing hearing or in his post-trial motion. Assuming, for the purpose of argument, that the point had been properly preserved, Cartalino’s position cannot be sustained. The doctrine of collateral estoppel bars relitigation of an issue of ultimate fact that has been determined by a valid and final judgment. (People v. Ward (1978), 72 Ill. 2d 379, 382, 381 N.E.2d 256.) In criminal cases, collateral estoppel is not to be applied in a hyper-technical fashion, but with an eye toward realism and rationality. (People v. Ward (1978), 72 Ill. 2d 379, 384.) The fundamental problem with Cartalino’s estoppel argument is that the jury here did not affirmatively find that the aggravating factor did not exist (People v. Hipkins (1981), 97 Ill. App. 3d 174, 423 N.E.2d 208); it simply was unable to make an express finding either way on the factual question. Therefore, we find that the principles of collateral estoppel do not apply in the instant controversy.

For the reasons set forth above, no basis for disturbing the jury verdict or sentences exist. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

STAMOS, P.J., and PERLIN, J., concur.

      In his written statement of April 2, 1979, Perkins said both men had ski masks on. At trial, Perkins stated that the word “on” was a mistake.

      A natural life sentence may be given “if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9—1 of the Criminal Code of 1961 are present.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1).) Thus, the court, in a proper case, may impose a natural life sentence even if none of the aggravating factors are present.