author: JUSTICE PERLIN

text:
      In re ESTATE OF GLADYS WINTON, Deceased-(The People of the State of Illinois, Plaintiff-Appellant, v. Michael Schiessle, Ex’r of the Estate of Gladys Winton, Defendant-Appellee).
    First District (2nd Division)
    No. 83—208
    Opinion filed December 6, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for the People.
    Arthur M. Scheller, Jr., of Park Ridge, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

The State of Illinois (State) appeals from an order entered December 22, 1982, by Judge Joseph Schneider of the circuit court of Cook County in which he denied defendant’s motion to dismiss and affirmed the inheritance assessment contained in the court’s earlier order of September 30,1982.

On February 20, 1979, Gladys Winton (decedent) died testate at age .76. In her will executed November 18, 1974, she bequeathed all but $1,000 of her $237,421 estate to John R. Winton, Jr. (John), who she characterized in the will as “my step-son.” On December 20, 1979, Michael Schiessle, executor of decedent’s estate, filed an inheritance tax return in which he classified John as the “mutually acknowledged son of decedent” and therefore claimed for him the benefits of the preferential tax rate and higher exemption provided by then section 1 of the Inheritance Tax Act. The executor calculated the inheritance tax due to be $7,785.31.

On August 14, 1981, the Attorney General, refusing to accord to John Class 1 status, notified the executor of a proposed tax assessment based upon the premise that John was decedent’s “step-son” rather than “a mutually acknowledged child” and therefore entitled only to the exemption and tax rate of the third class of beneficiaries. His proposed assessment resulted in a tax of $44,140.88.

On June 1, 1982, Judge Schneider, sitting by assignment pursuant to section 11 of the Inheritance Tax Act, conducted an evidentiary hearing for the purpose of assessing and fixing the inheritance tax due. In the performance of this assignment, Judge Schneider on July 22, 1982, issued his “Memorandum Opinion and Order” in which he found that John was the “mutually acknowledged child” of decedent under section 1 of the Act.

On September 30, 1982, Judge Schneider entered his “Order of Circuit Court Judge Assessing Tax.” On December 22, 1982, following a motion by the Attorney General for leave to appeal and a motion by the executor to dismiss, Judge Schneider, sitting in review of his September 30, 1982, order assessing tax, denied the executor’s motion to dismiss and affirmed the tax assessment of September 30, 1982.

This case presents two issues on appeal.

I

The executor contends that the instant appeal is procedurally defective and time-barred by the 30-day proviso of Supreme Court Rule 303 (87 Ill. 2d R. 303(a)), requiring that a notice of appeal to this court from a final judgment or order of the circuit court be filed within 30 days after entry of such judgment or order. The executor argues that when, on July 22, 1982, Judge Schneider entered his memorandum opinion and order, he was “construing” a statute, thereby acting in a judicial rather than an administrative capacity. Thus the executor contends that the order entered on that date was a final “judicial” order subject to Rule 303. Because the State failed to appeal to this court from the July 22, 1982, order within 30 days, the executor urges that the instant appeal is untimely.

A similar argument was rejected by our supreme court in In re Estate of Barker (1976), 63 Ill. 2d 113, 120, 345 N.E.2d 484. Relying upon judicial interpretations of the New York statute which was the forerunner of our section 11, the supreme court found that “the assessment of taxes is in its nature an administrative or executive function and not a judicial one.” (63 Ill. 2d 113, 119-20.) The court in Barker found that a circuit judge is constitutionally authorized to assess inheritance taxes under section 11 and the resulting orders are “administrative order[s] and not [final judgments].” 63 Ill. 2d 113, 120.

Since the assessment orders issued by a circuit judge under section 11 are not final orders, they are not subject to the 30-day appeal limit of Rule 303. The court in Barker explained that “the term ‘appeal’ as used in section 11 is not used in the same sense as it is used in article VI of the Constitution and Rule 303. Rather it is used in section 11 in the sense of a judicial review of administrative action.” 63 Ill. 2d 113, 120.

When, on July 22, 1982, Judge Schneider ordered a redetermination of the Attorney General’s proposed August 14, 1981, inheritance tax assessment, Judge Schneider was acting in an administrative capacity. Likewise, the September 30, 1982, tax assessment order entered by Judge Schneider was an administrative order which was then timely appealed by the Attorney General to the circuit court. Judge Schneider’s December 22, 1982, order affirming his previously entered tax assessment order was a final “judicial” order subject to Rule 303 which the State has now timely appealed to this court.

II

The parties agree that the only other issue here involved is: In view of the fact that when their relationship began, John was 28 years old, did decedent stand in the “acknowledged relation of parent” to John?

The State urges that Judge Schneider’s conclusion that John “has submitted sufficient evidence for a finding that he is the mutually acknowledged child of ,Mrs. Gladys Winton under the Inheritance Tax Act” is error since the court allegedly failed to apply the “objective criteria” which previously had been relied upon by Illinois courts. The following facts were presented in the evidentiary hearing .on June 1, 1982, and are pertinent to our review of the State’s contention:

In 1943, at age 19, John entered the Navy. In 1945 he was discharged and joined his parents in California. John’s father, John R. Winton, Sr., and his natural mother, Dorothy, were divorced in California in 1946 and John’s father moved to the Chicago area. John remained in California, and in 1949 he married and entered UCLA.

In 1952 John received his degree from UCLA and was recalled to active duty in the Navy. In that same year John’s father married Gladys Winton (decedent) and they continued to live in Chicago. John, stationed in Pensacola, Florida, first met decedent in February 1953 during a three-day “holiday” leave from the Navy. While in the Navy, John was required to make “frequent” training visits to the Glenview Naval Air Station in the Chicago suburb of Glenview. During these visits, John often stayed with his father and decedent in their Chicago home. The attic of their home was “finished” to accommodate John’s visits and to make him more comfortable. During one of these visits John assisted decedent in purchasing an automobile and, to show her gratitude for his assistance, decedent promised to leave the auto to John upon her death.

In 1973, John, now age 49, retired from the Navy with the rank of Commander and moved to Santa Fe, New Mexico. He remained in contact with his father and decedent by telephone, letters and “occasional” visits. During one such visit prior to his father’s death in 1974, John prevailed upon his father to place his assets, including bank accounts, into joint tenancy with decedent, thereby enabling her to have access to funds upon John, Sr.’s, death. John, in an affidavit filed with the Attorney General, stated that he was informed by “his father that he was leaving all of his assets to *** decedent and *** John would inherit only after the death of [decedent].” John was aware at that time that if his father’s assets were placed in joint tenancy with decedent, John would not receive a share of those assets upon his father’s death.

Following the death of John’s father in 1974, although no visits were made between them due to the expense and decedent’s refusal to travel, John and decedent remained in contact by letter and telephone. In one such letter decedent offered to John $22,000 to ease the financial difficulties resulting from his wife’s extended illness and the construction expenses of his new home in Santa Fe. John declined decedent’s offer at that time but in 1977, following a telephone conversation with decedent in which John indicated he was unable to secure the necessary funds to complete the construction of his house, decedent forwarded to John a bank draft for $10,000. On his own initiative, John executed a promissory note payable to decedent for $10,000 plus 10% interest and made monthly payments until her death. The unpaid balance was listed among the assets of decedent’s estate.

At the June 1, 1982, hearing before Judge Schneider, a number of decedent’s letters to John were admitted which indicated that decedent was relying upon John to dispose of certain items of personal property which she apparently did not intend to include in her will. Decedent addressed these letters to “Jackie” (John’s nickname) and signed them “Gladys.” John stated that, although his natural mother was alive and he addressed her as “Mom” or “Dorothy,” he also referred to decedent as “Mom” or “Gladys.” Two other witnesses who testified at the hearing, Beverly Saunders and Doris Jirgrke, longtime family friends of decedent and John, Sr., stated that they heard John refer to decedent as “Gladys,” “Mom” or “Mother” and that decedent referred to John as her “son.”

On July 22, 1982, Judge Schneider entered his “Memorandum Opinion and Order” in which he found that John had “submitted sufficient evidence for a finding that he is the mutually acknowledged child of [decedent] under the Inheritance Tax Act.” Judge Schneider then ordered the Attorney General to recompute his August 14, 1981, tax assessment of John’s beneficial interest “to allow for [John’s] proper filing status as a mutually acknowledged child of the decedent.” On September 30, 1982, Judge Schneider entered his “Order of Circuit Judge Assessing Tax,” providing for a redetermined tax in the amount of $8,918.72. It is from this order that the State now appeals.

The Illinois Inheritance Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 375 et seq., repealed effective July 1, 1983) was originally enacted in 1895 and was based upon the New York transfer act. Section 1 of the Act provided preferential tax treatment for persons to whom the decedent stood in the acknowledged relation of parent, provided (1) the relationship existed for 10 years prior to decedent’s death, (2) the relationship began prior to the beneficiary’s 15th birthday and (3) the parents of the beneficiary were dead at the time the relationship began. (Ill. Ann. Stat., ch. 120, par. 375, Historical Note, at 140 (SmithHurd 1974).) Section 1 subsequently was legislatively amended and judicially interpreted to include within the preferred class of beneficiaries any lineal descendant of an adopted child or mutually acknowledged child of such decedent (Posler v. People (1957), 11 Ill. 2d 557, 560, 144 N.E.2d 589), eliminate the requirement that the beneficiary’s parents be dead prior to the beginning of the acknowledged relationship (People v. Moczek (1950), 407 Ill. 373, 381, 95 N.E.2d 428), and, in 1970, to eliminate the requirement that the relationship begin prior to the beneficiary’s 15th birthday. In re Estate of Zimmerman (1978), 63 Ill. App. 3d 560, 562-63, 380 N.E.2d 434.

The result of these legislative and judicial modifications of section 1 was to “[expand] the breadth of eligibility of” preferred beneficiaries. (In re Estate of Zimmerman (1978), 63 Ill. App. 3d 560, 563.) During oral argument before this court, the State acknowledged this expansion of eligibility but maintained that the criteria previously applied by Illinois courts when determining if decedent stood in the acknowledged relation of parent to the beneficiary should be applied in the instant case. Such criteria, the State urged, include the reception and housing of the beneficiary in decedent’s home and treatment of the beneficiary as a member of decedent’s family (First National Bank v. People (1952), 412 Ill. 29, 30, 104 N.E.2d 630); treatment of the beneficiary by decedent “in every way and manner as his own child,” such as through financial support and maintenance, providing for his education and bestowing love and affection upon the beneficiary (People v. Moczek (1950), 407 Ill. 373, 381, 95 N.E.2d 428); exercise by decedent of parental control, supervision and authority over the beneficiary (People v. Northern Trust Co. (1954), 3 Ill. 2d 285, 289, 120 N.E.2d 543); and the acknowledgment by decedent that decedent is the beneficiary’s parent (People v. Moczek (1950), 407 Ill. 373, 381, 95 N.E.2d 428).

Judge Schneider rejected the State’s argument that the court should apply such criteria to the case at bar. In his “Memorandum Opinion and Order” of July 22, 1982, Judge Schneider concluded that “new tests *** have to be devised as obviously the relationship between adults and their parents take on completely different characteristics from those between young children and their parents.” Judge Schneider found that it would be “inappropriate” to require decedent to feed, clothe, educate and maintain a beneficiary who was, as here, an adult at the outset of the relationship. He concluded that the test to be used in the instant case “[was] whether the relationship is of such a kind and character as that of other adults and their parents.”

Judge Schneider noted specifically decedent’s alteration of her home to accommodate John’s visits, John’s intervention with his father on decedent’s behalf, decedent’s financial assistance to John and their public expression of one another as “mother” or “son” as examples of the kind of interaction which occurs between adults and their parents. Judge Schneider concluded that there was, in this instance, sufficient evidence to find that decedent stood in the acknowledged relation of parent to John. We believe that the observations of the trial court represent an enlightened and appropriate view.

It is a proper function of the courts to determine and enforce the intent of the legislature. To accept the State’s position that the same criteria generally applied in cases where the beneficiary was at the outset of the relationship a minor should be applied as well in cases where the beneficiary was at the outset of the relationship an adult is, in our opinion, unwarranted. As the Illinois Supreme Court noted in People v. Moczek (1950), 407 Ill. 373, 381, 95 N.E.2d 428, such interpretation “would largely, if not completely, nullify the beneficent legislative intent expressed.” The court there noted: “We are not warranted, under the guise of statutory construction, of imputing to the General Assembly an intent to confer merely a still-born right ***.” The court further stated: “*** the Inheritance Tax Act imposes a special tax and, in cases of doubt, its language is to be construed strictly against the State and in favor of the taxpayer.” 407 Ill. 373, 382, 95 N.E.2d 428.

We believe that under the circumstances of this case Judge Schneider properly concluded that decedent stood in the acknowledged relation of parent to John. Judge Schneider’s affirmation of his September 30, 1982, order of tax assessment was, in our opinion, not error.

For the reasons herein stated, the order of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS and HARTMAN, JJ., concur.

      This opinion will have limited precedential significance since the Illinois Inheritance Act (Ill. Rev. Stat. 1979, ch. 120, par. 375 et seq.) underlying this appeal was repealed by Public Act 82 — 1021, effective July 1, 1983. Transfer of the estate of a decedent dying on or after January 1, 1983, will be subject to the new “Illinois Inheritance and Transfer Tax Law.” Ill. Rev. Stat., 1982 Supp., ch. 120, par. 405 et seq.

      The new act eliminates the beneficiary classification scheme heretofore provided under section 1 of the repealed act and renders moot issues of the nature here involved. Henceforth the State transfer tax will be determined in accordance with the maximum tax credit allowable against the Federal estate tax. Obviously, the reasoning we employ in the instant case and the authorities cited herein relate to the act previously in effect.

      included among the preferred beneficiaries listed in section 1 was “any person to whom decedent, for not less than 10 years prior to death, stood in the acknowledged relation of a parent, or to any decedent of such person if that relationship began at or before such person’s 15th birthday and was continuous for ten years thereafter.”


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS LEE RHODES, Defendant-Appellant.
    First District (5th Division)
    No. 81—2108
    Opinion filed December 9, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago (Ellen M. Babbitt and Dennis R. Hansen, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Following a jury trial defendant Douglas Lee Rhodes was found guilty of attempted murder and unlawful use of weapons and sentenced to concurrent terms of 10 years and five years on the respective convictions. Three issues are raised on appeal: (1) whether the court erred in denying Rhodes’ motion to suppress confessions; (2) whether the court erred in instructing the jury; and (3) whether the State established Rhodes’ guilt beyond a reasonable doubt. We affirm.

On August 10, 1980, police officers Fred Wheat and Everett Johnson were on special assignment investigating stolen automobiles. At approximately 10:30 p.m. they had parkéd their unmarked car at the end of an alley in the area of 6734 South Eberhart and were proceeding on foot toward several vehicles parked in the alley when they came upon defendant Rhodes. The evidence pertaining to the nature of the ensuing confrontation is in conflict and will be discussed in detail below. In any event, Rhodes eventually was handcuffed and given Miranda warnings following which he made the first of three inculpa-tory statements. Rhodes was then transported to the police station and again advised of his Miranda rights. In the presence of Officers Wheat and Johnson and two other officers he made a second inculpa-tory statement. Rhodes’ third inculpatory statement occurred before an assistant State’s Attorney and two police officers not previously involved. This statement also was preceded by a repetition of the Miranda warnings. After his conversation with the assistant State’s Attorneys, Rhodes was taken to Jackson Park Hospital for treatment of injuries incurred at the time of his arrest. A photograph of him was taken at the time of his admission. He was transferred on August 11 to Cook County Hospital and underwent diagnostic tests for tuberculosis. The tests proved negative on August 13. Rhodes was discharged from the hospital on August 18.

Rhodes was charged with one count of unlawful use of weapons and one count of attempted murder. Prior to trial he filed a motion to suppress any evidence of the alleged confessions on the grounds that (1) due to his physical and physiological condition, he was incapable of understanding the full meaning of the Miranda rights, and (2) the statements sought to be suppressed were obtained as a result of physical, psychological and mental coercion and were, therefore, involuntary.

The following testimony was adduced at the hearing on the motion to suppress. Officer Fred Wheat testified that on the evening of August 10, 1980, he was working in plain clothes with his partner, Officer Everett Johnson. At approximately 10:30 p.m. he was walking in the alley near 6734 South Eberhart when he first saw the individual later identified as defendant Rhodes about four feet away, coming from between two trucks. Rhodes spoke and pointed a sawed-off shotgun at Wheat. Wheat announced that they were police officers whereupon Rhodes stated that he was going to kill them. Wheat grabbed for the shotgun and a violent struggle ensued, lasting from two to five minutes, during which Johnson hit Rhodes in the face with his gun and Wheat “kneed” Rhodes several times. Wheat and Johnson finally prevailed and succeeded in handcuffing Rhodes while he was on the ground. Rhodes had continued struggling on the ground until he was handcuffed. After Rhodes was handcuffed, Officer Johnson read him the Miranda warnings and Rhodes then made an inculpatory statement. By that time other officers were arriving at the scene in response to the officers’ radio calls for assistance. Wheat testified that he. did not strike Rhodes and did not observe anyone else strike Rhodes after he was handcuffed. Wheat testified that Rhodes’ nose was bleeding when he was put into the squadrol for transport to the police station. At the police station, in the presence of Officers Johnson and Roden, Officer Gilmore read Rhodes his Miranda rights and Rhodes indicated that he understood them. Rhodes at that time made the second inculpatory statement. At no time did Rhodes complain of injuries or of having been beaten or request to be taken to a hospital. Rhodes did not indicate reluctance to answer questions nor did he ask to consult a lawyer. He was able and cooperative in answering questions. Wheat stated that he saw Rhodes immediately before and after his interview with the assistant State’s Attorney and that he appeared to be in the same physical condition at both times.

Officer Everett Johnson’s testimony regarding the events of August 10, 1980, corroborated that of Officer Wheat. In addition, Officer Johnson stated that he hit Rhodes more than once during the struggle over the shotgun. Johnson further stated that Rhodes was able to walk under his own power to the squadrol and that the only injury he observed at that time was that Rhodes’ nose was bleeding. At the police station, after being advised by Officer Gilmore of his Miranda rights, Rhodes said that he understood and then answered clearly the questions asked by Gilmore. Johnson stated that he observed Rhodes enter an inner, office with a State’s Attorney and two investigators and that Rhodes’ physical condition was the same when he exited that office. Johnson stated that at no time after Rhodes was handcuffed did he or anyone else strike Rhodes. At no time did Rhodes complain of injury or ask to be taken to a hospital, nor did he indicate that he did not want to answer questions put to him by police or ask to consult a lawyer.

Officer Edward L. Gilmore testified that on August 8, 1980, when he and his partner, Officer Victor Roden, arrived at the alley near 6734 South Eberhart, he observed Officer Johnson reading the Miranda warnings to Rhodes who was on the ground being handcuffed. Officer Gilmore stated that he next saw Rhodes at the police station. Rhodes’ clothes were disarranged and he noticed dried blood around Rhodes’ nose but saw no fresh cuts. Gilmore read Rhodes the Miranda warnings in the presence of Officers Wheat, Johnson and Roden. Rhodes indicated that he understood the warnings and gave clear, cogent responses to the questions he was asked. Rhodes did not request a lawyer and did not complain of injuries or ask for medical care. Officer Gilmore testified that he did not strike Rhodes and did not see anyone else strike Rhodes either at the scene of the arrest or in the police station.

Officer Victor Roden testified to the same occurrences. When he arrived at the scene of the arrest, Officer Wheat was handcuffing Rhodes, who was on the ground, and Officer Johnson was reading Rhodes his Miranda rights. Roden observed that Rhodes’ nose was bleeding but that the blood had dried when he saw Rhodes at the police station. At the police station Rhodes acknowledged the second reading of his Miranda rights and readily answered questions. At no time did Officer Roden see anyone strike Rhodes. Nor did he hear Rhodes complain of having been beaten by the police or request to be taken to a hospital.

Officers Guiney and Gahan testified that, upon their arrival at the scene of the arrest, they saw Rhodes being put into the squadrol to be transported to the police station. Neither of them saw anyone strike Rhodes.

Officer Joseph Theilmann testified that he drove the squadrol on the evening in question and transported Rhodes from the alley at 6734 South Eberhart to the Third District Station. He did not see anyone strike Rhodes. Rhodes did not complain of being beaten and was able to walk without assistance. On cross-examination Theilmann stated that if it appears that a person is in need of hospitalization, he takes him to the hospital, regardless of whether he so requests.

Assistant State’s Attorney William Rehling testified that he interviewed Rhodes at about 12:15 a.m. on August 11, 1980, with Detective David Oravetz and Detective James Minogue present. Rehling noticed that Rhodes’ clothes were blood-stained and disheveled but he observed no sign of injury. Upon inquiry, Rhodes stated that he was all right and that his clothes were disarranged when the police officers were struggling to get his gun away from him. Rehling gave Rhodes the Miranda warnings and Rhodes indicated that he understood and would waive those rights. He did not ask to consult a lawyer and answered all questions willingly and clearly. He did not complain of having been beaten or of any injuries and did not ask to be taken to a hospital. Rehling did not strike Rhodes, nor did he observe anyone else strike him.

The testimony of Officers Minogue and Oravetz was substantially the same as that of the assistant State's Attorney. Neither of them saw anyone strike Rhodes nor did either of them observe signs of Rhodes having been beaten. Rhodes did not complain of having been beaten or ask to be taken to a hospital or to consult with a lawyer.

Defendant Douglas Rhodes testified that he was only a few inches away from Officer Wheat when he first saw him on August 10, 1980. He stated that he relinquished the gun without a fight or struggle and that he was beaten, kicked and dragged up and down the alley by Officers Wheat and Johnson; no other officers were present. He said he was afraid of the police officers and made the statements to them under threats of further beating. Rhodes stated that, at the police station, Officer Wheat struck him in the face and that he was thrown on the floor and kicked. With respect to his interview by the assistant State’s Attorney, Rhodes said that he was forced to sign statements under threats of further beating. He stated that his nose was broken and bleeding and that no one offered him any treatment for it. He was in pain throughout the time he was in the police station but did not mention it because he had been told to be quiet.

Howard Jones testified that on the evening of August 10, 1980, he was 30 to 50 feet from two police officers and a man he later identified as Rhodes when he saw one of the officers kick Rhodes, who was on the ground rolling from side to side with his hands and arms covering his face. He did not see Rhodes struggle or fight back and stated that the police were not trying to handcuff Rhodes at the time of the kicking. As other officers arrived Jones approached the scene and was within five to 10 feet of Rhodes when he was taken away.

Larry Pappas, M.D., an intern in internal medicine at Cook County Hospital, testified that when Rhodes came into his care he was suffering from a broken nose, swelling around the right eye, soft tissue swelling and abrasions on his back and blood in the urine. He stated that Rhodes’ facial injuries were consistent with the types of blows described by Officers Wheat and Johnson and that internal bleeding is consistent with repeated kicking or beating but found that the back injuries were not consistent with having been struck with a hand or kicked with knees or feet.

The court found that: (1) there was no improper beating of Rhodes; (2) Rhodes’ injuries were not of sufficient severity to warrant a conclusion that he was capable of making a voluntary statement; and (3) the police did not use force so excessive as to put Rhodes in fear of further abuse. The court concluded, therefore, that Rhodes’ in-culpatory statements were not involuntary and, accordingly, denied Rhodes’ motion to suppress.

Officers Wheat, Johnson and Gilmore and Assistant State’s Attorney Rehling testified at trial. Their testimony as to the arrest, Rhodes’ condition and the circumstances surrounding the interviews and statements was substantially the same as their suppression hearing testimony. In addition, the following testimony was presented.

Officer Wheat stated that as Rhodes advanced toward him in the alley he had cocked the shotgun which rendered it capable of firing and had moved his finger toward the trigger. Wheat testified that he had “kneed” and kicked Rhodes during the struggle for control of the shotgun. He said that when asked why he had attacked them, Rhodes answered that he was going to stick them up but decided to kill them when he discovered they were police officers. Wheat stated that Rhodes made substantially the same statement at the police station with Officers Johnson, Gilmore and Roden also present. Finally, Wheat testified that he had examined the shotgun after it was taken from Rhodes and that it was loaded; the barrel of that weapon measured 145/s inches.

Officer Johnson’s testimony regarding the events leading up to Rhodes’ arrest and Rhodes’ inculpatory statements was identical to Officer Wheat’s testimony.

Officer Gilmore testified that, at the police station, Rhodes had told him that he was on his way to rob a block party when he saw Officers Wheat and Johnson and had decided to rob them before he robbed the party. Upon discovering that they were police officers, he “realized he had to kill them.’ ’

Assistant State’s Attorney Rehling testified that Rhodes orally acknowledged and waived his Miranda rights. In response to Rehling’s questions Rhodes stated that during the struggle with Officers Wheat and Johnson he was trying to get his finger on the trigger of the gun because he was trying to kill the two officers. Rehling said that his conversation with Rhodes was not reduced to writing and Rhodes did not sign a confession.

Finally, Grace Henderson testified at trial that on the evening of August 10, 1980, a party was held at 6714 South Eberhart for the purpose of raising money for charity.

The defense presented no evidence at trial.

The jury found Rhodes guilty of unlawful use of weapons and attempted murder and the court imposed sentence.

Opinion

I

The first issue raised is whether the trial court erred in denying the motion to suppress confessions. Rhodes contends generally that his alleged confessions were not voluntary and were, therefore, inadmissible. The test of whether a statement is admissible at trial is “whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed.” (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) This determination depends upon the totality of the relevant circumstances surrounding the making of the statement including the existence of any threats, promises or physical coercions; the length and intensity of the interrogation; and the age, intelligence, experience and physical condition of the defendant. (People v. Rhoads (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512.) In making its determination as to the voluntary nature of the confession the trial court is not required to be convinced beyond a reasonable doubt. (People v. Medina (1978), 71 Ill. 2d 254, 375 N.E.2d 78.) The finding of the trial court on this question will not be disturbed on review unless it is contrary to the manifest weight of the evidence. People v. Medina.

Rhodes first argues that the State failed to meet its burden of showing that his injuries were not the result of unnecessary force used to coerce his confessions. Specifically, he contends that the medical testimony regarding the injury to his back and torso was consistent with his claim of brutality and that the State offered no evidence to rebut this testimony or to explain how the injury occurred.

Where the voluntary nature of a confession or statement is called into question by a motion to suppress, the State has the burden of proving that the statement or confession was voluntarily made. (People v. Armstrong (1972), 51 Ill. 2d 471, 282 N.E.2d 712.) “A confession obtained by force or brutality is not voluntary and is inadmissible.” (People v. Davis (1966), 35 Ill. 2d 202, 205, 220 N.E.2d 222.) It is undisputed that Rhodes was injured at the hands of the police and that treatment for his injuries required hospitalization. Contrary to Rhodes’ contention, however, the evidence that his injuries were sustained in the struggle with the police for control of the shotgun was sufficient to sustain the trial court’s finding that there was no improper beating. In the instant case Dr. Pappas stated that Rhodes’ fractured nasal bone and swollen eye were consistent with Officer Johnson’s testimony that he struck Rhodes in the face with his gun. Dr. Pappas further stated that blood in Rhodes’ urine was not inconsistent with the officers’ admissions of striking and “kneeing” Rhodes while struggling for control of the shotgun. The soft tissue swelling and abrasions on Rhodes’ back were consistent with Officer Wheat’s testimony that Rhodes continued to struggle on the ground until he was handcuffed. In addition to the medical testimony, there were denials of abuse by both arresting officers, six other police officers and the assistant State’s Attorney. The record here shows that the State met its burden of proof and, therefore, the trial court did not err in finding that the statements were not the result of unnecessary force.

Defendant also contends that the State failed to meet its burden in that the testimony of Howard Jones was unrebutted. It is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony. Where the evidence is in conflict a court of review may not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) The court in the instant case noted the inadequacy of Jones’ vantage point and observed that the testimony of the events surrounding the arrest was otherwise uncontradicted. The record here adequately supports a finding that the State met its burden of proof.

In addition, Rhodes contends that the State’s failure to produce a photograph taken at the hospital at the time of his admission supports a finding of involuntariness, citing People v. Wilson (1973), 16 Ill. App. 3d 473, 481, 306 N.E.2d 626. Rhodes asserts that the photograph would have been highly relevant to the issues of police misconduct and the obviousness of his physical injuries. The question implicit in Rhodes’ contention is whether the State’s failure to produce the photograph mandated a finding of involuntariness. We find that it did not. The court was bound to base its determination of the voluntariness of Rhodes’ statements on the “totality of all the relevant circumstances.” (16 Ill. App. 3d 473, 479.) One such circumstance was the fact of Rhodes’ injury. It is our opinion that the photograph would have been duplicative of the medical testimony presented by the defense and its evidentiary value was, therefore, minimal. Thus, Rhodes was not prejudiced in his ability to present evidence supporting his contention of involuntariness because the trial court was apprised of the extent of injuries by the medical testimony. Furthermore, we note that in its determination as to the voluntariness of Rhodes’ statements, the trial court was free to consider the State’s failure to produce the photograph and any inference that could be drawn therefrom. We, therefore, find that the court did not err in finding Rhodes’ statements voluntary, notwithstanding the State’s failure to produce the photograph.

Rhodes next contends that even if he was not subjected to unnecessary force, his physical condition rendered him incapable of confessing voluntarily. He argues that the severity of his injuries, evidenced by his subsequent week-long hospitalization, and the proximity in time between his injury and purported confession establish the involuntariness of his confession.

Although a defendant’s physical or emotional condition at the time of questioning is an element to be considered as to whether it is voluntary (see Mincey v. Arizona (1978), 437 U.S. 385, 396-402, 57 L. Ed. 2d 290, 302-06, 98 S. Ct. 2408, 2415-18), the trial court must, nevertheless, make its determination of voluntariness from “the totality of the circumstances” and that determination will not be disturbed on review unless it is against the manifest weight of the evidence. (People v. Medina (1978), 71 Ill. 2d 254, 375 N.E.2d 78.) In the instant case the circumstances in evidence surrounding Rhodes’ statements are sufficient to sustain the trial court’s finding of voluntariness. At no time during questioning by the police did Rhodes complain of injury or ask to be taken to the hospital. His answers were clear and cogent. The fact of Rhodes’ injury was simply a factor to be considered by the trial court; the mere existence of pain is not sufficient to render a statement involuntary. (People v. Byrd (1980), 90 Ill. App. 3d 429, 434, 413 N.E.2d 148.) There was no evidence that the pain suffered by Rhodes was of such nature and extent as to overcome his ability to understand either the Miranda warnings or the implications of his statements. (See People v. Byrd.) Therefore, the trial court’s failure to find Rhodes incapable of confessing voluntarily cannot be said to be against the manifest weight of the evidence and, therefore, will not be disturbed on review.

Rhodes next contends that his confessions were not preceded by a valid waiver of his Miranda rights. He argues that the same facts which rendered his confessions involuntary also establish that he did not effectively waive his Miranda rights.

The test as to whether a defendant has made a knowing waiver of rights was enunciated by the supreme court in People v. Turner (1973), 56 Ill. 2d 201, 205-06, 306 N.E.2d 27, wherein the court, quoting from Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, stated: “A waiver is ordinarily an intentional relinquishment or abandonment of known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” The finding of the trial court is not to be disturbed unless it is against the manifest weight of the evidence. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.

The uncontradicted evidence adduced at the suppression hearing was that Rhodes was advised of his Miranda rights before each inculpatory statement, that he stated that he understood them and that he indicated his willingness to answer questions. At no time did Rhodes request an attorney or cut off questioning in any way. The existence of pain is a factor to be considered but is not, by itself, determinative of voluntariness. (See People v. Walden (1976), 43 Ill. App. 3d 744, 357 N.E.2d 232.) Rhodes here asserts that his pain was sufficient to render him incapable of waiving his Miranda rights but at no time during questioning did he complain of injury or ask to be taken to a hospital. Thus, there is no evidence that the pain suffered by Rhodes was of such nature and extent as to overcome his ability to understand the Miranda warnings or the implications of his statements. The trial court’s finding that Rhodes’ statements were voluntary is, therefore, not against the manifest weight of the evidence.

For all of the foregoing reasons we are unable to find that Rhodes’ statements were involuntary and, accordingly, we find no error in the denial of his motion to suppress.

II

The second issue raised is whether the court committed reversible error in instructing the jury. The jury found Rhodes guilty of attempted murder under the following instructions:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder.
The crime attempted need not have been committed.” Illinois Pattern Jury Instruction (IPI), Criminal, No. 6.05 (1968).
“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill *** that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death *** to that individual.” IPI Criminal No. 7.01.
“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the defendant did so with intent to commit the crime of murder.” IPI Criminal No. 6.07.

Rhodes argues that the court erred in instructing the jury on the elements of the offense of attempted murder because the jury was not required to find that Rhodes had a “specific intent to kill” but, instead, only that he had intended to commit the crime of murder, which crime does not require the intent to kill.

The crime of attempt is a specific intent crime. “An instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown.” (People v. Harris, consolidated with People v. Shields (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28.) In People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816, the jury received instructions on the offense of attempted murder, which instructions were identical to those here at issue. The Morano court found that the specific intent to kill is evidenced by engaging in conduct which creates a “strong probability of death,” the third alternative description of murder, and found a similar specific intent evident in the first and second alternative descriptions. The court held, therefore, that the jury was properly instructed on the elements of the offense of attempted murder. We find Morano dispositive. Accordingly, the court in the instant case did not err in instructing the jury on the elements of the offense of attempted murder.

Ill

The third issue raised on review is whether Rhodes was proved guilty beyond a reasonable doubt. Rhodes contends that the severity of his injuries considered in conjunction with various inconsistencies in the officers’ testimony call into question the credibility of such testimony. It is well established that a reviewing court will not set aside a jury’s verdict unless the evidence presented at trial is so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of guilt. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) The credibility of the witnesses and the weight to be given to their testimony and the inferences to be drawn therefrom are solely for the jury. People v. Harris (1972), 53 Ill. 2d 83, 288 N.E.2d 873.

We have examined the alleged discrepancies in the trial testimony and find them to be insignificant. The evidence presented at trial was set forth herein and need not be repeated. Upon a review of the entire record, we find that there was sufficient credible evidence from which the jury could have found Rhodes guilty beyond a reasonable doubt of the offenses of unlawful use of weapons and attempted murder.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE HOLLOWAY, Defendant-Appellant.
    First District (5th Division)
    No. 81—2836
    Opinion filed November 28, 1983.

      James J. Doherty, Public Defender, of Chicago (Ina S. Marks, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Peter M. Delongis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted and sentenced to concurrent terms of imprisonment for the following offenses: murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), natural life; aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1.1), 60 years; armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), 60 years, and burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1), 14 years. We modify the sentence imposed and remand.

On October 2, 1980, in Chicago Heights, Illinois, defendant and a friend, Dennis Adams entered Inez Lazzari’s apartment to steal money and jewelry. Both men carried golf clubs. Ms. Lazzari was 86 or 87 years old and lived alone in an apartment behind a grocery store that her husband owned until his death. Adams told Lazzari that he wanted her money, but she did not comprehend what he said because she only understood Italian. Adams began hitting her on the leg with his golf club. She stood and Adams pushed her. During this ordeal defendant rummaged through drawers to find anything of value. He discovered approximately $20 in half-dollar coins. Adams repeated his demand for money. Defendant allegedly told Adams to stop hitting Ms. Lazzari, but to no avail.

By this time Lazzari was sitting on the floor because her legs were bleeding. She had been struck on the head and there was blood in her hair. According to defendant, Adams took candles out of a drawer and attempted to set one of the bedrooms on fire. Defendant said he ran outside but when he smelled smoke he went back in and discovered that the bedroom and another room were in flames. Adams joined defendant outside a few moments later with packs of cigarettes and two new wallets taken from the apartment. The two young men then went to a nearby restaurant with female friends.

At trial, Lazzari’s neighbor, Alena Troiana, was the first to testify. She stated that Lazzari did not have any relatives in the United States and that she took care of Lazzari, did her grocery shopping and stopped in every day to see if everything was alright. On the afternoon of the incident, she brought Lazzari a few groceries. Laz-zari paid for the items with money that she kept in a wallet inside a black purse. At approximately 6 p.m. that evening Troiana brought Ms. Lazzari her dinner. She stated that when she left she made sure that the front and back doors were locked. Troiana then made an in-court identification of a black leather purse as that which belonged to Ms. Lazzari.

Further testifying, Troiana stated that one day when she was looking for Ms. Lazzari’s front door key she opened a drawer and noticed rolls of dimes and nickels. She then identified photographs of Ms. Lazzari and the exterior of the building which housed Ms. Laz-zari’s apartment.

Next to testify was Officer Allen Vehrs, who stated that he and another officer, Michael Cammelli, were on routine parol in Ms. Laz-zari’s neighborhood when they smelled smoke. They discovered that the smoke was coming from a nearby storefront. After calling the dispatcher for a fire unit and unsuccessfully attempting to enter the front and back doors of the burning building they waited for the unit to arrive. Upon entering the apartment Vehrs observed that drawers were pulled out of the china cabinets and that dressers had been turned upside down on the floor. Ms. Lazzari’s body was found in the hallway. Vehrs described Lazzari as a heavy set woman who wore a large, dark nightgown, the top of which was pulled down exposing her breasts. The bottom was pulled up to reveal her pubic area. Her head was in a small pool of blood and her body was covered with soot. Vehrs further stated that one bedroom was badly charred and that a hole had burned through the floor. In another. bedroom the bed and floor were burned, drawers had been pulled out and items were scattered throughout. He was then asked to identify pictures of the front of the house and several rooms inside as well as pictures of Ms. Laz-zari’s body, the back of her head and a picture of her right hand. Vehrs’ narration of the preceding events remained unchanged on cross-examination.

John Valaveris, owner of the Skyline Restaurant in Chicago Heights, testified that at approximately 11:30 p.m. on October 2 defendant and another young man entered his restaurant. Valaveris was immediately suspicious because defendant carried a silver golf club and a yellow or gold sock-like pouch. The other young man (Dennis Adams) had a hammer. Soon afterward two young ladies joined the men. They ordered food and defendant paid the bill ($25 to $28) in half-dollar coins. Valaveris estimated that defendant had a total of 50 or 60 coins.

Next, Detective John Schmidt, who had been dispatched to investigate the fire, testified that when he saw Ms. Lazzari’s body her breasts and pubic area were exposed. She did not have undergarments on and her body was bruised. Schmidt then identified a picture of Lazzari’s injuries and further testified that he had noticed swelling around her mouth and that there appeared to have been an attempt to remove a gold wedding band on her finger. Schmidt was also shown a photograph of the hand injuries. He then identified a pair of tongs, hand tools, a baseball bat and a camera that he took from the apartment and placed in the property room of the Chicago Heights police station.

When Schmidt returned to Ms. Lazzari’s apartment the next morning he discovered a bent golf club near the area where her body was found. He also discovered a black leather purse which contained a wallet and religious objects. These items were identified at trial.

Schmidt further testified that on October 16, 1980, he talked to defendant, who by that time had been placed under arrest and was in custody. After he advised defendant of his Miranda rights Schmidt said that defendant confessed to having been involved in the murder and explained how the incident occurred. Defendant said that he and Adams were together on October 2 and that he decided to burglarize the Lazzari home because he knew that Ms. Lazzari was elderly and had money and jewelry. Defendant also said that he initiated these plans and that Adams agreed with them. When they arrived at Ms. Lazzari’s home they noticed that lights were on. They peered through the window from the sidewalk and saw Lazzari in a chair watching television. Both men walked to the rear door and forced it open. Each carried a golf club. Ms. Lazzari approached them. Adams asked her where she kept her money. When it became evident that Ms. Lazzari did not understand English, Adams began to hit her legs with his golf club. Defendant tojd Officer Schmidt that he was not sure, but he thought that he struck Ms. Lazzari once or twice. He also said that Adams continued to strike Lazzari with his golf club even after she had fallen onto the hallway floor. Defendant found a camera that he decided he did not want and in a dresser drawer he found $25 or $27 in half-dollar coins. He said that because Adams had not worn gloves he set the apartment on fire to destroy fingerprints. He allegedly made an effort to extinguish one of the fires but could not and ran out the door. Defendant stated that he and Adams went to the Skyline Restaurant with two young women they knew, ordered food and paid the bill with the half-dollar coins. Thereafter, defendant was interviewed at the police station by an assistant State’s Attorney.

On cross-examination Schmidt stated that he destroyed his handwritten notes of his conversation with defendant because a court reporter was present to record what was said. Schmidt also stated that defendant’s statements and his conversation with the assistant State’s Attorney were substantially the same. Under further questioning, however, Schmidt stated that he had two conversations with defendant. During the first conversation, defendant stated that he might have struck Ms. Lazzari once. Schmidt said that during the second conversation, which was the only one that was transcribed by the court reporter, defendant denied striking Ms. Lazzari. Schmidt also testified that during the second conversation defendant said that he told Adams to stop beating Ms. Lazzari. Schmidt never asked defendant how he tried to stop Adams from assaulting Ms. Lazzari, however. It was further revealed that Schmidt had stated at a preliminary hearing that defendant said that “someone else” struck Ms. Lazzari with a golf club, had started the fire and that defendant could not recall whether he had hit her or not.

Assistant State’s Attorney Joseph Caliban testified that he interviewed defendant at the Chicago Heights police station and that a court reporter transcribed defendant’s statements into 10 typed pages which defendant initialed on the bottom after he read them. Near the end of the statement, defendant added the words “he [Adams] was acting crazy.” Caliban then read defendant’s statement verbatim in its entirety.

Last to testify was Dr. Lee F. Beamer of the Cook County Medical Examiner’s office. Beamer stated that Ms. Lazzari weighed 163 pounds, measured five feet in height and had numerous bruises and lacerations on her head, face, chest, arms and legs which had been caused by a blunt instrument. Soot was noted in her nose, mouth and windpipe. Beamer then identified 12 pictures of injuries to Lazzari’s head, knee, thighs, lower legs, shoulder, back and right hand. He attributed the cause of death to the combined effects of carbon monoxide intoxication and multiple contusions and abrasions.

At the conclusion of Beamer’s testimony, defendant waived cross-examination and rested his case. Following the State’s motion to admit certain exhibits into evidence, the jury was excused. A number of photographs were then admitted into evidence, most of them over defendant’s objections. Defendant made a motion for a directed verdict and argued that there was insufficient evidence to prove that he was responsible for the charges against him and that the evidence only showed that he attempted to put the fire out. Denying this motion, the trial court reasoned that the question of accountability was for the jury to decide. Defendant was subsequently found guilty of all charges and judgment was entered. This appeal followed.

Opinion

We first consider defendant’s contention that the State introduced inflammatory and irrelevant evidence, the total effect of which subjected him to a trial based on the emotional nature of the death of an elderly woman. We disagree for the following reasons.

Alena Troiana, the first witness to testify at trial, gave an account of her relationship with Ms. Lazzari which, in our opinion was not unduly sympathetic. Rather, it explained how she knew Lazzari, who lived nearby, the type of life Lazzari led and how Troiana became aware of the fact that her neighbor had died. Troiana’s identification of the black leather purse that belonged to Ms. Lazzari was clearly relevant since it had been established at trial that $25 was stolen from it during the course of the offense. Also, her identification of the religious items in the purse in our judgment was not an attempt by the State to elicit sympathy for Lazzari but instead rendered Troiana’s testimony more credible. We further note that defendant objected only twice during the course of Troiana’s testimony, neither of which instance was in response to testimony about the purse or religious material. This issue can therefore be considered waived on appeal. Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575.

Defendant next contends that he was prejudiced by Dr. Reamer’s testimony concerning Lazzari’s cause of death. This testimony in pertinent part was as follows:

“Q: Now, aside from the injuries that you described on these photographs, did you find any other injuries or abrasions and so forth particular to the vaginal area?
A: Yes. I found—
Mr. Lee: Objection, Judge, I am going to object to that. How is that possibly relevant to this case.
The Court: Sustained.
Mr. Phillips: The condition of the body following death, your Honor.
Mr. Lee: May I have a side bar, then, so I can make comment outside the presence of the jury?
The Court: Yes, sir.”

While we agree that the State’s question was an improper reference to a collateral crime (rape) for which defendant was not being tried, this colloquy was harmless in light of the overwhelming evidence of defendant’s guilt. (People v. Lindgren (1980), 79 Ill. 2d 129, 141, 402 N.E.2d 238.) Additionally, any possible prejudice was minimized by the court’s subsequent instruction to the jury “to disregard and strike from your minds any recollection of the last question that was posed to Dr. Beamer.” Also, the court’s final instructions to the jurors included an admonition to disregard questions which were withdrawn or to which objections were sustained and to disregard testimony which the court refused or which was stricken. The record further reveals that the line of questioning objected to in this instance was not pursued. Instead, the next inquiry by the State concerned Beamer's tests to determine Lazzari’s cause of death and his results and medical conclusions therefrom. There was no further reference to vaginal injuries or abrasions suggestive of rape. We therefore find that defendant was not prejudicially harmed.

Defendant next assigns error to the trial court’s admission of 14 photographs of Lazzari’s injuries. He argues that the only question before the court was whether defendant’s admitted involvement in the occurrence established legal accountability for the crimes charged. Defendant contends that the pictures were not probative of this issue.

We initially note that the admission of photographs is a matter within the sound discretion of the trial court. (People v. Foster (1979), 76 Ill. 2d 365, 375-76, 392 N.E.2d 6; People v. Stocks (1981), 93 Ill. App. 3d 439, 447, 417 N.E.2d 1080.) Photographs are admissible despite their gruesome or inflammatory nature if they depict the amount of force used in the crime or tend to corroborate or not corroborate the testimony of the pathologist or other witnesses. People v. Lindgren (1980), 79 Ill. 2d 129, 143-44, 402 N.E.2d 238; People v. Williams (1975), 60 Ill. 2d 1, 12, 322 N.E.2d 819.

Here, the photographs showed various parts of the victim’s battered and soot-covered body. Two pictures were of the victim’s shaven head and were taken at the morgue. Our careful review of the description of these pictures in the record leads us to conclude that none were gruesome and shocking and that each was relevant to the degree of force used to carry out the murder. According to defendant, Adams “acted crazy” and repeatedly beat Lazzari to unconsciousness or death. Thus, the pictures were particularly relevant because they revealed that virtually no part of Lazzari’s body was left unscathed by the perpetrator and that the murder was committed in a deliberate manner. (People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 176, 387 N.E.2d 1284.) Additionally, the photographs corroborate the testimony of Dr. Beamer as to the extent of the inflicted injuries. We therefore find that the photographs did not inflame and prejudice the jury and that their admission was not an abuse of discretion.

Defendant further urges that the prosecutor’s closing argument was inflammatory and that it impugned defense counsel’s character. During closing argument the prosecutor referred to defendant as a ghoul, told the jury not to be swayed by a clever attorney and labeled defendant’s theory of the case as the oldest trick in the book.

The characterization of defendant as a ghoul was as follows: “When the fires are being set, does he [defendant] call the fire department? Does he tell them, hey, there is an old lady in the apartment that is on fire? No, what does he do? He waits and after that act is done, the[y] walk together, pick up a couple of girls and like a couple of ghouls go to the Skyline Restaurant and have dinner.” This characterization was stated in argument only once.

In view of the fact that defendant admitted that both he and Adams were armed with golf clubs, that he struck Ms. Lazzari once or twice, that he rummaged through the apartment, found several half-dollar coins and entertained lady friends at dinner that same evening, it appears that these remarks were supported by the record and did not have any bearing on the jury’s verdict. (People v. Franklin (1976), 42 Ill. App. 3d 408, 416, 355 N.E.2d 634.) We further believe that the error committed by the two latter comments (that the jury should not be swayed by a clever attorney and that defendant’s defense was the oldest trick in the book) was obviated when the trial court properly sustained defendant’s objections. Furthermore, the Court instructed the jury that neither opening statements nor closing arguments are evidence and that any statements made in an argument which were not based on the evidence or reasonable inferences drawn therefrom should be disregarded. Also, the mere occurrence of improper remarks does not mandate reversal. To merit reversal defendant must show that the statements constituted a material factor in his conviction, resulted in substantial prejudice to him or that the verdict would have been different had the remarks not been made. (People v. Baker (1979), 78 Ill. App. 3d 411, 420-21, 396 N.E.2d 1174.) In this case we are unable to say that the remarks were so prejudicial that defendant did not receive a fair trial or were so flagrant as to threaten deterioration of the judicial process. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge performed his duty and properly exercised the discretion vested in him. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument and unless a clear abuse of discretion is shown, its ruling should be upheld. (People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324.) Here, we find no error or abuse of discretion which requires reversal.

Defendant’s final contention is that the court’s imposition of a sentence of natural life for his murder conviction is excessive and unfairly disparate when compared with that of his codefendant, Dennis Adams, who pled guilty in a bench trial to all charges and was sentenced to 28 years. We agree.

It is well settled that it is not the function of a reviewing court to serve as a sentencing court and that absent an abuse of discretion by the trial court, a sentence will not be disturbed upon review. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541.) In determining a sentence, the trial court is authorized to consider the defendant’s character, the nature and circumstances of the offense as well as his mentality, age, credibility and demeanor. (People v. Requena (1982), 105 Ill. App. 3d 831, 838, 435 N.E.2d 125.) A sentence imposed within the statutory limits will not be reduced merely because we, as a reviewing court, might have imposed a different punishment. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

Murder is a felony for which a sentence of natural life imprisonment may be imposed if the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(1)(b).) In the instant matter, the sentence imposed was within the statutory limit. Upon entering sentence, the court indicated that it had considered the above-mentioned factors and, of course, the fact that the victim was 86 or 87 years old. The court stated further, however, that the offense exhibited wilful and wanton cruelty and that “the onus of that test must fall equally on each defendant. There can’t be any difference between them, by and large, by virtue of age or in conduct, and in this case Mr. Holloway says the other defendant did it, the other defendant testified here that Holloway did it, so my view would be that they stand on an equal par.”

While we agree with the court’s reasoning that both defendants “stand on equal par,” we are of the opinion that in view of this fact as well as other similarities, defendant’s sentence was unnecessarily disparate when compared.to Adams’. Clearly, the revolting nature of this crime is a compelling factor in aggravation of defendant’s sentence; however, the evidence fails to reveal that defendant alone was responsible for the murder. As the court noted, each defendant placed the blame on the other.

Also, we observe a general similarity in defendants’ mental capacity as well as their chronological age. A psychiatric report dated February 26, 1981, indicated that Adams was not mentally fit for trial because he was unable to cooperate with his defense counsel due to an “Atypical Organic Mental Disorder.” Holloway’s psychological report was equally discouraging. It revealed that his full scale IQ was 65 and that he functioned intellectually in the “mentally impaired range and academically from the mid-second to mid-third grade level.” Further, there was only a two-year age differential between the young men (at the time of the incident Holloway was 18, Adams was 16), and each lived with and was financially dependant on at least one parent.

Our careful review of the foregoing facts leads us to conclude that defendant’s sentence was excessive. We are well aware that the evidence reveals that defendant instigated the criminal scheme, however, and that the murder was a brutal and heinous one. Thus, we find that this is a sufficient basis upon which to impose a more severe sentence for defendant than Adams. Defendant’s penalty for murder is therefore modified to 40 years with an extended term of 40 years. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-8-1(a)(1)(a), 1005-8-2(a)(1) and 1005 — 5—3.2(b)(2).) The judgment and sentences imposed for aggravated arson, armed robbery and burglary are affirmed.

Accordingly, the sentence for murder is modified as stated and the cause is remanded to the circuit court for proceedings consistent with this opinion.

Affirmed in part, modified and remanded.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT LANESSA GOKA, Defendant-Appellant.
    First District (2nd Division)
    No. 82—931
    Opinion filed December 6, 1983.

      Richard A. Wohlleber, of Chapman and Cutler, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of armed violence, armed robbery and rape. He was sentenced to 10 years for armed robbery to be served concurrently with a sentence of 18 years for rape. No judgment and sentence were entered for armed violence. Defendant appeals, contending that certain evidence was improperly and prejudi-cially admitted.

On April 10, 1981, just after 12:17 p.m., the victim, returning to her car parked in a well-lit Oak Park garage, opened her car door, manually turned on the dome light, and sat down in the driver’s seat. Defendant forced her into the passenger seat of the car at knife point and took $10 from her. She described the knife as having a yellow plastic handle and resembling a barber’s razor. He then forced her onto the floor of the back seat at knife point and raped her. He ordered her to remain on the floor and thereafter fled. The victim waited. She heard keys rattle and a car drive off with a loud or broken muffler sound. With the help of a passerby she went to a nearby hospital for treatment. Oak Park police investigators spoke with her at the hospital regarding the crime, but were unable to secure from her a detailed description of her assailant. They showed her seven photographs, but she did not recognize her assailant among them.

That evening at her home, the victim was visited by a police artist who attempted to draw a composite sketch of the assailant based upon her description, but he was unable to do so. The officer departed and made no report of his visit. There is no record indication that the victim and police officer discussed the rape.

The next day, April 11, 1981, a police officer stopped defendant’s car as matching the description of an auto reportedly driven by a Vincent Goka, who was wanted on an outstanding Texas rape warrant. The officer arrested defendant and upon arrival of additional officers, a yellow handled knife resembling that described by the victim was removed from the front seat of defendant’s car. That same afternoon, while defendant was in custody, the victim was again visited by police officers who showed her a new array of photographs, including defendant’s. She tentatively identified defendant’s picture and requested to see him in person.

The next day, the victim identified defendant in a police lineup. Thereafter she was taken to the police garage where she listened to the sound of defendant’s car and identified it as similar to the sound of the car she heard leaving the parking garage immediately following the rape.

On October 8, 1981, defendant’s motions to suppress both the lineup identification and the knife seized from his car were denied.

On March 10, 1982, defendant presented two pretrial motions in limine. The first attempted to bar testimony regarding the details of defendant’s arrest on the outstanding warrant based on rape charges in Texas. The court agreed to preclude testimony as to the nature of the warrant but allowed testimony to the effect that the arrest was based on a warrant. The second motion, which attempted to bar introduction of the evidence of the sound of defendant’s car, was denied.

At the trial, the victim made an in-court identification of defendant. During cross-examination, she reported the police artist’s visit to her home. This was defendant’s first knowledge of the visit and he moved for a mistrial, which was denied.

A police officer testified regarding the victim’s identification of defendant in a police lineup. A second officer testified about the arrest of defendant on the outstanding warrant, and a third officer testified about the recovery of the yellow handled knife from defendant’s car. On cross-examination of another officer, defendant learned of a police report made on the arrest of another suspect in the case. Defendant had not been provided a copy of the report by the State and again moved for a mistrial, which was denied.

Defendant testified that he is a registered nurse, is married and has five children. He was not working on the day of the assault and, at noon, he was at home in Oak Park. At 12:30 p.m. he drove to downtown Chicago with his wife and baby. At about 1 p.m. or 1:30 p.m. he picked up his paycheck downtown from his employer. He denied knowledge of or participation in the rape.

Louise Heads, staffing coordinator of defendant’s employer, testified that on the day of the assault, at about 1:30 or 1:35 p.m. defendant was in their downtown Chicago office picking up his paycheck. She did not know where defendant had been at 12:30 p.m. that day.

The jury returned the verdicts of guilt first noted above.

In this appeal, defendant challenges: (1) the lineup identification; (2) seizure of the knife; (3) evidence of defendant’s arrest on the outstanding Texas warrant; (4) the victim’s testimony concerning the sound of his auto; and, (5) failure to grant a mistrial following the presentation at trial of witnesses and evidence not produced by the State in response to discovery demands.

I

Defendant argues that the photo identification procedure used prior to the lineup identification was impermissible because defendant was already in custody; that there were no extenuating circumstances justifying such a procedure; and that the photo identification resulted in substantial prejudice to him. Defendant failed to raise this issue in his post-trial motion and it is therefore waived for purposes of review. (People v. Hebein (1982), 111 Ill. App. 3d 830, 842-43, 444 N.E.2d 782.) Nor does it fall under the plain error rule (People v. Smith (1981), 93 Ill. App. 3d 26, 416 N.E.2d 814), since the lineup identification was not so substantially erroneous as to require consideration. People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782.

Assuming, arguendo, that the objection had been properly preserved, it is groundless. Photographic identifications conducted while a defendant is in custody do not taint subsequent lineup identifications where the photos were not so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. (People v. Brown (1972), 52 Ill. 2d 94, 100, 285 N.E.2d 1.) The photo identification here was not impermissibly suggestive. There is no hint in the record suggesting that defendant’s photo portrayed him in a suggestive manner or that the officers influenced the victim in any way. Neither were the lineup procedures suggestive in any manner. The victim was not told that the man she had identified by photo would be in the lineup.

Prelineup photographic identifications are also permissible under extenuating circumstances. (People v. Williams (1975), 60 Ill. 2d 1, 9, 322 N.E.2d 819; People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.) The circuit court here considered the victim to have been in a traumatic state; that she was sedated for that condition; and that her ability to attend the lineup was questionable. The circumstances were sufficiently extenuating so as to justify the use of prelineup photographs in this instance.

We also note that the victim had ample opportunity to view defendant: the parking garage was well lighted; the car’s dome light was on; and defendant was within 14 inches of the victim during their initial conversation. Even if the photo identification had tainted the lineup, the courtroom identification had an independent basis and was therefore valid. People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1.

II

Defendant next contends that because the police lacked probable cause to search his car after his arrest, the denial of his motion to suppress the knife constitutes reversible error. This issue also was not raised in defendant’s post-trial motion; his contentions will be considered, however, for the purpose of determining whether or not to apply the plain error rule to these circumstances. People v. Lieberman (1982), 107 Ill. App. 3d 949, 954, 438 N.E.2d 516; People v. McMillan (1970), 130 Ill. App. 2d 633, 264 N.E.2d 554.

Defendant claims that there was no probable cause for the search because he was not engaged in illegal activity at the time he was stopped. He also asserts that an arrest based on an outstanding foreign warrant is akin to a traffic violation which is insufficient probable cause for a search and, alternatively, that even construed as a valid custodial arrest, justification for the search was still lacking. Defendant maintains that a search incident to an arrest is justified only when it is necessary to protect the officer, discover fruit of the crime, or prevent the offender from escaping, citing People v. Watkins (1960), 19 Ill. 2d 11, 18-19, 166 N.E.2d 433.

In New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, a police officer stopped a car for speeding. While determining who owned the car, the officer smelled burnt marijuana and saw on the car floor an envelope containing marijuana. The officer directed the occupants out of the car, arrested them, seized the envelope of marijuana and searched Belton’s jacket. The Supreme Court held that the search of the jacket was valid because an officer making a lawful custodial arrest of an auto’s occupant may conduct a search incident to the arrest of the auto’s passenger compartment. (453 U.S. 454, 460, 69 L. Ed. 2d 768, 774-75, 101 S. Ct. 2860, 2864.) In the present case, defendant was arrested pursuant to a valid warrant. Therefore, the search of his car was proper as incident to his arrest.

In addition to grounds set forth in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, the knife seized was lying on the front seat of defendant’s car in plain view. A police officer observing its shape and yellow handle recalled its similarity to the description of the knife used in the commission of the instant crime. Probable cause therefore existed for belief that the knife constituted evidence of its use in a criminal activity (People v. Tate (1967), 38 Ill. 2d 184, 187, 230 N.E.2d 697) and was, therefore, subject to seizure. In Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, Brown was stopped by an officer for a routine driver’s license check. While asking for Brown’s license, the officer noticed a knotted balloon, resembling a narcotics package, on the front seat of the car. The officer looked further and noticed small vials in the open glove compartment. The officer’s seizure of the balloon was upheld by the Supreme Court which concluded that the checkpoint was a lawful intrusion, the officer possessed probable cause to believe the balloon contained illicit substances, and the officer did not know in advance that the car contained contraband. (460 U.S. 730, 741-42, 75 L. Ed. 2d 502, 513-14, 103 S. Ct. 1535, 1542-43.) The record before us indicates that defendant was lawfully stopped because of the outstanding warrant; the officer did not know in advance that the knife was in the car; and, when he saw it, he suspected it might have been used in the rape on the previous day. We find no error in admitting the knife.

Ill

Defendant urges that the circuit court committed reversible error by allowing testimony concerning defendant’s arrest on the outstanding warrant. He maintains that the testimony was prejudicial and unrelated to the crime for which he was tried since evidence of the warrant was not related to the rape charges nor used to prove an element of the present offense. He cites cases in which evidence of collateral crimes were found to prejudice the accused, resulting in new trials. (People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650; People v. Dee (1957), 14 Ill. App. 2d 96, 142 N.E.2d 811; People v. Harris (1970), 128 Ill. App. 2d 256, 262 N.E.2d 99.) Defendant concludes that even though the jury could have inferred numerous prejudicial circumstances from the testimony of the warrant, the trial court did not remedy the problem by instructing the jurors to disregard the testimony. We disagree.

Whether a motion in limine to exclude evidence should be granted or denied is within the discretion of the circuit court. (People v. Van Riper (1970), 127 Ill. App. 2d 394, 398, 262 N.E.2d 141, cert, denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2228.) The circuit court exercised proper discretion in permitting testimony regarding the existence of the warrant, while precluding testimony as to its nature, since it was relevant in describing the consequential steps taken in the police investigation. (People v. Guyon (1983), 117 Ill. App. 3d 522, 534, 453 N.E.2d 849.) Evidence of prior crimes is admissible if it explains the circumstances surrounding defendant’s arrest and is part of a continuing narrative. (People v. Young (1983), 118 Ill. App. 3d 803.) Where, as here, evidence is relevant and otherwise admissible, it may not be excluded because it may also tend to prejudice an accused. (People v. Hariston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) The circuit court in the case before us eliminated potential prejudice to defendant by excluding testimony that the basis for the outstanding warrant involved other rape charges in Texas. Cf. People v. Harris (1970), 128 Ill. App. 2d 256, 262 N.E.2d 99.

IV

Prior to trial, defendant’s motion to bar the victim’s testimony comparing the sound of the loud muffler of his car to that heard in the garage shortly after the rape was denied. Defendant contends that admitting the evidence is reversible error because it was neither competent nor relevant in the absence of evidence that the victim’s assailant left the garage in an auto. Defendant also claims that the procedure used was highly suggestive since the victim listened to the car immediately following her identification of him in the lineup. Defendant also claims that a loud sounding car is not so unusual that it is relevant in connecting him with a crime.

Evidence having any tendency to make the existence of a consequential fact or issue more or less probable than without the evidence is relevant and admissible. (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297; People v. Allen (1959), 17 Ill. 2d 55, 63, 160 N.E.2d 818, 824.) A lay witness may testify to physical and natural facts capable of sensory perception (People v. Carbona (1975), 27 Ill. App. 3d 988, 1003, 327 N.E.2d 546, cert, denied (1976), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114), provided that testimony is confined to the witnesses’ personal knowledge. People v. Seider (1981), 98 Ill. App. 3d 175, 187, 423 N.E.2d 1217.

The similarity of sound emanating from defendant’s car after the lineup and that heard by the victim after the rape tends to show that defendant’s car was in the parking garage. Moreover, the testimony was competent because the victim had personal knowledge of the noise, which was a physical fact, capable of perception. (2 Wigmore, Evidence secs. 459, 460 (Chadbourn rev. 1979).) The victim listened to the sound of defendant’s car immediately following her lineup identification of defendant because she and the auto were then both available and the sensation of sound was arguably fresher in her recollection than might have been the case should a delay have taken place. We find no error in admitting evidence of the sound of defendant’s car. Were we to assume for the sake of argument that the circuit court erred in admitting this testimony, such error would have been deemed harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.

V

Defendant insists that a mistrial should have been granted following the presentation by the State at trial of witnesses and evidence withheld from him contrary to Supreme Court Rule 412 discovery (87 Ill. 2d R. 412), maintaining that his defense was thereby prejudiced. The first point involves evidence of an unsuccessful attempt by a police artist to create a composite sketch of defendant with the aid of the victim’s description, although it was the victim’s subsequent identification of defendant which led to his conviction. The State claimed that it was not advised by police of this evidence until two days before the victim testified and that there was no composite sketch made or police report filed concerning this action. The circuit court, after denying the motion for mistrial, directed that the victim return for further cross-examination by defense counsel on this narrow inquiry, which was done. The court thereafter permitted defense counsel to interview the police artist and have him testify as to his attempts to create the sketch, which also was accomplished.

Rule 412(a)(i) requires the State to disclose to defense counsel the names and persons the State intends to call as witnesses upon defense motion as was made in this case. (87 Ill. 2d R. 412(a)(1).) The State asserts that it had no intention to call the police artist as a witness. Rule 412(c), however, necessitates the disclosure to defense counsel of any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged. (87 Ill. 2d R. 412(c).) It is clear that the goal of furthering the fact-finding process by maintaining a flow of information between the State and its investigative personnel (87 Ill. 2d R. 412(f)), was thwarted in this case. The State’s failure to provide the necessary information in response to the defense request is not excused by police failure; both are required to cooperate so as to insure that all relevant information will be provided. People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442.

A fair trial is denied a defendant where the withheld evidence is favorable to him and is material as to his guilt or innocence. Materiality, in this sense, means evidence which when evaluated in the context of the entire record, creates a reasonable doubt of defendant’s guilt, not the mere possibility that it might have helped the defense in some way. (United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392; People v. Williams (1980), 91 Ill. App. 3d 631, 634, 414 N.E.2d 1235; People v. Abendroth (1977), 52 Ill. App. 3d 359, 367 N.E.2d 571.) A review of the entire record discloses, however, that the victim here positively identified defendant as her assailant by photograph, in a lineup, in a voice identification procedure and in the courtroom. The knife used in the commission of the crime was found lying on the front seat of his auto when he was stopped and arrested. The victim’s inability to aid a police artist to complete a composite sketch from her description does not rise to the level of reasonable doubt of defendant’s guilt and cannot be deemed material under these circumstances, but harmless. People v. Ojeda (1980), 91 Ill. App. 3d 723, 728, 414 N.E.2d 1156; People v. Mahaffey (1978), 60 Ill. App. 3d 496, 377 N.E.2d 85.

The second instance of withheld evidence concerns a previous arrest report on another suspect, which was discovered during defense cross-examination of a police officer. Defendant again moved for a mistrial which was denied. We fail to see how evidence that another suspect was arrested and later released after the victim could not identify him as her assailant can be favorable to defendant or material to his guilt or innocence since it raises no question or reasonable doubt as to defendant’s guilt. (Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97; People v. Nichols (1976), 63 Ill. 2d 443, 446, 349 N.E.2d 40; People v. Ojeda.) Even assuming the failure of the State to disclose this evidence could be deemed somehow prejudicial, that omission was neutralized by the circuit court’s order recessing the trial, allowing the defense to examine the report, and permitting defense counsel to cross-examine the reporting officer, as to the report and the description of the suspect who had been arrested and released. Defendant was not prejudiced by this late disclosure. People v. Taylor (1982), 107 Ill. App. 3d 1019, 1022, 438 N.E.2d 565.

From the foregoing, no basis appears upon which to disturb defendant’s conviction and sentences. Accordingly, we must affirm.

Affirmed.

STAMOS and PERLIN, JJ., concur.