People v. Alksnis

                                             THIRD DIVISION
                                             June 04, 1997
                                                                           









No. 1-95-3422

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

THOMAS ALKSNIS,

          Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

93 CR 9143

Honorable
Daniel J. Kelley,
Judge Presiding.


     JUSTICE CAHILL delivered the opinion of the court:
     Thomas Alksnis was convicted of residential burglary after a
jury trial and sentenced to 20 years in prison.  He raises multiple
issues on appeal, from jury selection to sentencing.  We affirm.
     Before trial, defendant challenged several jurors for cause. 
He challenged prospective juror Leslie Hyland because she and her
father had been victims of crimes.  The challenge was denied. 
Defendant's counsel then used a peremptory challenge to excuse
Hyland.  Subsequently, defendant told his attorney he did not want
to use his last peremptory challenge on Hyland.  Defendant's
counsel moved to withdraw that peremptory challenge.  The trial
court refused.
     With his peremptory challenges exhausted, defendant challenged
Carol Schweig because she had twice been a victim of residential
burglary for which no one was apprehended.  When asked if she could
put those incidents aside and view this case with an open mind, she
said "I don't know" and "I would hope so."  At defendant's request,
the court brought Schweig into chambers for additional inquiry. 
She said that although she was angry about the burglaries,  she
could give defendant a fair trial.  The trial court rejected the
challenge for cause.
     Just before trial, the prosecutor entered the courtroom with
a cart containing files relating to defendant, three relating to
other cases.  Defendant claimed this cart was three paces from the
jury box and that two alternate jurors walked by it.  The
prosecutor claimed he saw none of the jurors look at the cart.  The
court determined that only one of the files was visible and asked
the prosecutor to cover it.  Noting that defendant had not been
prejudiced, the trial court continued with the trial.  
     Frank Kasluga testified at trial that he returned home from
shopping on April 7, 1993, to find one of the panes of glass in his
side door broken and glass on the floor.  In his bedroom he saw
that a drawer had been pulled out and its contents spilled.  
     Scott Manchester and Don Bannon testified that they were at
Manchester's house across the street from Kasluga's house on April
7, 1993, when several children came in and said someone was across
the street breaking into Kasluga's house.  Manchester and Bannon
ran outside and saw a man wearing faded blue jeans, a black jacket
and a red baseball cap approaching the side door of Kasluga's
house.  They saw him take off his cap, place it against the window
on the door, and break the window.  Then he put his arm through the
broken window, opened the side door and entered the house. 
Manchester went inside and called 911.  A little later they saw the
man run out the front door of Kasluga's house.  Manchester and
Bannon identified defendant in a police station lineup, and again
at trial as the man who ran out of Kasluga's house. 
     Manchester further testified that, after watching defendant
exit Kasluga's house, he chased him down an alley and into a yard. 
While defendant was in the yard, Manchester told him to freeze. 
Defendant turned toward Manchester and approached him, saying,
"Don't come by me.  I'm going to let you have it."  Defendant then
sprayed mace at Manchester, who covered his face as defendant ran
past him.  Manchester resumed the chase through another yard, into
a park and across several baseball fields until he lost sight of
defendant.  
     Officer Andrew Wallace testified that he responded to a call
of a burglary in progress at Kasluga's address.  While searching
the area, Wallace saw defendant come out from under some stairs. 
Wallace told him to stay where he was, but defendant fled.  Other
officers soon found him hiding in a dollhouse in another backyard. 
Defendant was arrested and read his Miranda warnings.  Defendant
then stated that he had been in the area shopping and that his car
had broken down on the way to his father's house.  He could not
give the officers his father's address.    
     Officer Robert Anderson also testified that he responded to a
call of a burglary in progress at Kasluga's house.  He spoke to two
teen-agers, who gave him a description of some 14 to 16 year olds,
which he subsequently broadcast.  Five minutes later, Manchester
arrived and gave Anderson his description of the man he chased:  a
male white, 30 to 32 years old, 6 feet tall, 155 pounds, wearing a
black jacket and blue jeans, with acne on his face.  Anderson then
broadcast that description.  He entered Kasluga's house and found
glass on the floor and a drawer turned upside down in the bedroom. 
The State rested.
     Defendant introduced several close-up pictures of himself
taken by the police on the day of his arrest.  He then asked that
he be allowed to show his face to the jury to demonstrate the
condition of his face.  The trial court ruled that a display of
defendant's face to the jury would be testimonial and subject to
cross-examination.  Later at a hearing on defendant's motion for a
new trial, the court ruled that the condition of defendant's face
28 months after the incident was not relevant.  
     Before trial, the State sought to bar admission of a police
radio tape with descriptions of the burglary suspect.  No
transcript of the tape appears in the record, but defendant claims
on appeal that the tape contains different descriptions of the
suspect.  The trial court admitted the tape to show conflicting
descriptions of the perpetrator.  After Officer Anderson testified,
the State renewed its motion since Officer Anderson admitted he
broadcast two different descriptions.  The defense then asked that
the tape be played, not only to show that different descriptions
had been given, but also to impeach Manchester's testimony.  The
court limited the playing of the tape to the parts indicating that
two different descriptions of the perpetrator were broadcast.
     In closing argument, while discussing Manchester's
identification of defendant, the prosecutor told the jury that
"when you get as close as Scott Manchester got to his face[,] you
can see acne on his face."  Defendant claims that the prosecutor
was standing close to defendant and looking at his face as he said
this.  
     Defendant tendered an instruction for the lesser included
offense of criminal trespass, which the court refused.  The jury
returned a verdict of guilty.
     Defendant's motion for a new trial was denied.
     At the sentencing hearing, the court received a presentence
report and heard testimony from Detective Joseph Kirchens and
Officer William Sotak about two pending cases: an attempted
burglary charge and a residential burglary charge.  The court said
it would not consider the attempted burglary offense.  After
considering the presentence report and the residential burglary
charge along with mitigation, the court sentenced defendant to 20
years in prison.
     Defendant first argues on appeal that the trial court erred in
holding that a display of defendant's face to the jury for
demonstrative purposes would be testimonial and a waiver of
defendant's fifth amendment right against self-incrimination.  At
trial, the court said: 
     "[I]f the defendant were to get up on today's date about
     two and a half years after the date of the offense and
     display his face to the members of the jury to show that
     he does not have any acne or pock marks today would be
     testimonial in nature and he would be subject to cross
     examination as to how his face looked back on the date of
     the incident."
In denying defendant's post-trial motion, the court said "[a]s to
the display of the defendant's face, the threshold issue is that of
relevance.  I don't believe it was relevant to have the jurors view
what his face appeared like two years after the alleged incident." 
     Courts that have addressed whether a defendant's display of a
physical characteristic constitutes a waiver of his fifth amendment
rights have found that if the prosecution may compel a defendant to
display a physical characteristic on the ground that it is
nontestimonial, the defendant's decision to present such evidence
is not a waiver of his rights against self-incrimination.  See,
e.g., United States v. Bay, 748 F.2d 1344 (9th Cir. 1984), modified
on reh'g, 762 F.2d 1314 (9th Cir. 1985); State v. Gaines, No. 96-
0380 (Ariz. App. March 13, 1997); People v. Shields, 81 A.D.2d 870,
438 N.Y.S.2d 885 (1981); State v. Tillet, 351 So. 2d 1153 (La.
1977).  However, the traditional law of real or demonstrative
evidence still applies to a court's decision to allow the display. 
People v. Ward, 193 Ill. App. 3d 677, 681, 550 N.E.2d 576 (1990). 
The party offering the evidence must establish relevancy.  Ward,
193 Ill. App. 3d at 682.      The trial court questioned the
relevancy of the condition of defendant's face 28 months after the
offense.  Defendant did not make an offer of proof to support his
contention that his face was in the same condition at trial as it
had been 28 months earlier.  Nor did he make an offer of proof that
his facial condition at trial would confirm the appearance of his
face in the photographs taken of him on the day of the crime.
     This case is similar to United States v. Bay, 748 F.2d 1344
(9th Cir. 1984), modified on reh'g, 762 F.2d 1314 (9th Cir. 1985). 
In Bay, the court held that a defendant's display of tattoos was
non-testimonial and would not subject the defendant to cross-
examination.  In a modified decision on request for rehearing, the
court addressed the prosecution's argument that there had been no
foundation to establish that the defendant had tattoos at the time
of the crime.  The court observed that if a foundation had been
laid showing that the tattoos were on the defendant's hands at the
time of the robberies, those physical characteristics would have
been admissible without subjecting the defendant to cross-
examination.  Bay, 762 F.2d  at 1315-17.  
     The Appellate Court of Massachusetts addressed this issue when
a defendant was denied the opportunity to display a tattoo on his
hand at trial 11 months after the offense.  The court reasoned:
     "If we should take the view that the hand could supply
     its own foundation and constitute evidence of the
     condition of the hand at the time of the robbery, then
     the display of the hand would clearly have had a
     testimonial component and constituted an election by the
     defendant to testify."  Commonwealth v. Happnie, 3 Mass.
     App. Ct. 193, 198-99, 326 N.E.2d 25, 29 (1975).  
See also People v. Wong, 35 Cal. App. 3d 812, 835, 111 Cal. Rptr. 314, 330 (1973).
     The rule of evidence explained in Happnie applies here: if we
take the view that the defendant's face supplies its own foundation
and is evidence of the condition of his face at the time of the
crime, then the display of his face has a testimonial component and
is subject to cross-examination.  The alternative to cross-
examination is an offer of proof of relevancy by some other means. 
This defendant did not do.  
     Defendant next argues that the trial court erred when it
barred playing the full police tape.  Defendant sought to use the
complete tape to show that inconsistent descriptions of the
perpetrator had been given and that other material impeached
Manchester's testimony.  He was allowed to use the tape for the
former, over the State's objection.  
     Whether to admit evidence is a decision within the sound
discretion of the trial court, and a reviewing court will not
overturn that decision absent a clear abuse of discretion.  Gill v.
Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190 (1993).  
     The tape is not included in the record on appeal.  The only
indications we have of statements by Manchester are the parties'
different assertions.  The responsibility for properly preserving
the record rests with the appellant, and doubts raised by an
incomplete record are resolved against him.  People v. Hartfield,
137 Ill. App. 3d 679, 484 N.E.2d 1136 (1985).  
     Defendant next argues that the trial court erred when it
refused to tender a lesser included offense instruction on criminal
trespass to residence.  Defendant claims he was entitled to such an
instruction because the prosecution failed to prove defendant
possessed the requisite specific intent to commit a theft at the
time of his unlawful entry into the residence.  Defendant argues
that since nothing was taken from Kasluga's house, the jury could
have found a lack of intent to commit a theft.
     Defendants are entitled to an instruction on a lesser included
offense when the evidence would permit a jury rationally to find
him guilty of the lesser offense and acquit him of the greater. 
People v. Cramer, 85 Ill. 2d 92, 95, 421 N.E.2d 189 (1981), quoting
Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847,
93 S. Ct. 1993, 1995 (1973).
     A lesser included offense is "established by proof of the same
or less than all of the facts or a less culpable mental state (or
both), than that which is required to establish the commission of
the offense charged."  720 ILCS 5/2-9(a) (West 1994).  The State
does not dispute that criminal trespass is a lesser included
offense of residential burglary.  But the existence of a lesser
included offense does not automatically require a jury instruction. 
People v. Novak, 163 Ill. 2d 93, 108, 643 N.E.2d 762 (1994).  A
defendant is not entitled to an instruction on a lesser included
offense where the two offenses involve the same issues of disputed
fact.  Novak, 163 Ill. 2d  at 108, 643 N.E.2d 762; Cramer, 85 Ill. 2d  at 98, citing Berra v. United States, 351 U.S. 131, 100 L. Ed. 2d 1013, 76 S. Ct. 685 (1966).  In Sansone v. United States, the
United States Supreme Court explained:
     "[A] lesser-offense charge is not proper where, on the
     evidence presented, the factual issues to be resolved by
     the jury are the same as to both the lesser and greater
     offenses.  [Citations.]  In other words, the lesser
     offense must be included within but not, on the facts of
     the case, be completely encompassed by the greater.  A
     lesser-included offense instruction is only proper where
     the charged greater offense requires the jury to find a
     disputed factual element which is not required for
     conviction of the lesser-included offense."  Sansone v.
     United States, 380 U.S. 343, 349-50, 13 L. Ed. 2d 882,
     888, 85 S. Ct. 1004, 1009 (1965).
     The Illinois Supreme Court followed this reasoning in People
v. Cramer,  85 Ill. 2d  at 98.  In Cramer, the defendant was charged
with criminal theft of a truck.  The defendant admitted that he
took the truck.  The court found that there was sufficient evidence
to support a conviction of theft, a Class 3 felony, although the
same evidence supported an inference that the defendant did not
have the requisite intent to permanently deprive the owner of the
use and benefit of the truck.  The defendant asked for a lesser
included offense instruction under the Illinois Vehicle Code (Ill.
Rev. Stat. 1977, ch. 951/2, par. 4-103(a)), a Class 4 felony.  This
offense does not require proof that the defendant intend to deprive
the owner of the use and benefit of the truck.  The defendant
argued that because the facts supported an inference of more than
one mental state, he was entitled to the instruction.  Cramer, 85 Ill. 2d  at 94-95.  The trial court refused the instruction, and the
Illinois Supreme Court affirmed, reasoning that a defendant was not
entitled to a lesser included offense instruction where the
instruction tendered by the defendant "would have allowed the jury
to convict defendant  *** on the same facts necessary to convict
him of theft."  Cramer, 85 Ill. 2d  at 100.
     Here, as in Cramer, the jury could infer that defendant had
the requisite intent to commit theft and yet, under the
instructions tendered by defendant, return a verdict of guilty on
criminal trespass rather than residential burglary.  If the
prosecution proved residential burglary, the jury would still be
able to render a verdict of guilty on criminal trespass based on
the same factual determinations that would support the greater
offense of residential burglary.  Cramer makes clear that, in these
limited circumstances, the prosecution has discretion to choose the
statute under which it will proceed, and defendant is not entitled
to an instruction on the lesser included offense.  The trial court
did not err.
     Defendant next argues that the trial court erred when it
empaneled juror Schweig.  He alleges that she was a prejudicial
juror that he was forced to accept when the court refused to allow
him to retract the peremptory challenge exercised on Leslie Hyland.
     A court of review will not reverse a decision overruling
challenges for cause to jurors, unless it is shown that an
objectionable juror is forced upon defendant after he exhausts his
peremptory challenges.  People v. Washington, 104 Ill. App. 3d 386,
432 N.E.2d 1020 (1982).  An "objectionable juror" is "a juror who
should have been dismissed for cause -- one who would prejudice the
case."  People v. Reid, 272 Ill. App. 3d 301, 309, 649 N.E.2d 593
(1995), quoting Flynn v. Edmonds, 236 Ill. App. 3d 770, 782, 602 N.E.2d 880 (1992).
     After stating that her home had twice been burglarized, the
following exchange took place between Schweig and the trial court:
          "Q.  Is there anything about those incidents that
     you think would affect your ability to be fair and
     impartial?
          A.   I don't know.  I lost everything so I don't know.
          Q.   Do you feel you could put that aside and listen
     to the evidence in this case with an open mind?
          A.   I don't know.
* * *
               Q.   Do you understand that Mr. Alksnis, as he sits
     there, is presumed to be innocent of the charge against
     him, do you understand that?
          A.   Yes.
          Q.   And would you hold it against Mr. Alksnis that
     your home was burglarized two times?
          A.   No.
                                   * * *
          Q.   Will you listen to the evidence in this case
     with an open mind?
          A.   I would hope so.
          Q.   Do you feel that you can base any verdict that
     you reach on the evidence and the law that I give you
     that applies to this case?
          A.   Yes.
          Q.   And again I'll ask you do you think you can
     put--Do you believe you can give Mr. Alksnis a fair
     trial?
          A.   I would have to say yes."
After defendant attempted to have her removed for cause, the court
agreed to question Schweig further in chambers since defendant had
used all his peremptory challenges.  The following exchange then
took place:
          "Q.  Do you feel you could give Mr. Alksnis a fair
     trial?
          A.   I feel I could do anything I guess.  I have to
     say yes but I'm still angry about this because I have
     never been able to replace anything.
          Q.   You do feel you could put that aside?
          A.   I think so."
Defense counsel then asked her the following:
          "Q.  As you know this is a burglary case and my
     client is charged with a residential burglary and I'll
     just ask you in the interest of fairness do you think--
          A.   I'm a fair person.  I feel I am."
     The trial court denied defendant's challenge for cause,
stating that although Schweig was angry about being victimized, she
indicated she could be fair in this case.
     Defendant urges us to follow People v. Johnson, 215 Ill. App.
3d 713, 575 N.E.2d 1247 (1991).  There we held that the trial court
erred when it failed to dismiss for cause several jurors who were
unable to state their unequivocal impartiality because all were
victims, or had known victims, of criminal activity.  But we have
also held that a juror's lack of "meticulous preciseness" or "state
of uncertainty" does not necessarily disqualify a juror.  E.g.,
People v. Martin, 271 Ill. App. 3d 346, 354, 648 N.E.2d 992 (1995);
People v. Barragan, 266 Ill. App. 3d 961, 975, 641 N.E.2d 535
(1993).  In Martin, we upheld a trial court's refusal to strike a
juror when the juror responded "I don't think so" when asked if
there was anything about the case that would prevent him from being
fair and impartial.  When questioned further, he unequivocally
stated he could be fair and impartial.  Martin, 271 Ill. App. 3d at
353.  In Barragan, the following exchange took place:
          "Q.  Do you feel that you could listen to all the
     evidence before you made up your mind?
          A.   It would be kind of tough.
          Q.   Do you think you could not be fair to either
     the State or the defense?
          A.   It would be hard."  Barragan, 266 Ill. App. 3d
     at 975.
When questioned further, the juror agreed that the State must prove
defendant guilty, that he would follow the law as given by the
court, and that he would not let prejudice or sympathy influence
his decision.  Barragan, 266 Ill. App. 3d at 975.  Considering the
entire dialogue between the judge and juror, we held that the trial
court did not abuse its discretion when it refused to excuse the
juror for cause.  
     Here, Schweig, after making equivocal statements, said she
felt she could be fair in this case and that she could give
defendant a fair trial.  We cannot find an abuse of discretion  on
this record.
     Defendant also alleges that Schweig expressed discomfort
because of recent back surgery.  But he does not explain how that
would affect her ability to be a fair and impartial juror. 
     Defendant next argues that the trial judge erred when he
failed to poll the jurors about what they saw when the
prosecution's file cart with files relating to other cases
involving defendant was parked close to the jury box.  
     Defendant relies on People v. Bass, 220 Ill. App. 3d 230, 580 N.E.2d 1274 (1991).  In Bass, the defendant objected to the fact
that the State's cart was facing the jury.  The cart contained the
names of codefendants not on trial, and the words "Black Gangster
Disciples."  We found that placement of these items within possible
viewing range of the jurors was error.  But we also found the error
was harmless, in part, because there was no showing that the jurors
saw the items or that defendant was prejudiced.  Bass, 220 Ill.
App. 3d 251, 580 N.E.2d 1274.
     Defendant has failed to show that he was prejudiced by the
prosecutor's actions in this case.  The record reveals that one
folder was visible, but there is no evidence that a juror saw the
folder before the court told the prosecutor to turn it over. 
Defendant did not ask that the jurors be polled or show that a
juror had seen and been prejudiced by the folder.  
     Defendant next argues that the prosecutor's improper
statements and actions during closing argument substantially
prejudiced him.  
     Counsel are allowed latitude in their closing and rebuttal
arguments, and the trial court's determination will not be reversed
absent a clear abuse of discretion.  People v. Cisewski, 118 Ill. 2d 163, 175-76, 514 N.E.2d 970 (1987).   Counsel must confine their
remarks to facts in evidence.  People v. Scott, 108 Ill. App. 3d
607, 614, 439 N.E.2d 130 (1982); People v. Burton, 63 Ill. App. 3d
915, 918, 380 N.E.2d 929 (1978).  Opinions expressed by the
prosecutor about intuitive judgments within the province of the
jury are improper.  People v. Roach, 213 Ill. App. 3d 119, 124, 571 N.E.2d 515 (1991).  Improper remarks in closing argument are
reversible error where they result in substantial prejudice or
where the statements serve no purpose except to inflame the jury. 
People v. Tiller,  94 Ill. 2d 303, 321, 447 N.E.2d 174 (1982);
People v. Baptist, 76 Ill. 2d 19, 29, 389 N.E.2d 1200 (1979).  
     Defendant claims the prosecutor improperly recounted
Manchester's testimony regarding acne on defendant's face when that
testimony was controverted.  Defendant cites People v. Burton for
the proposition that the prosecutor should not have referred to the
controverted evidence.  In Burton, the prosecutor falsely
characterized the State's evidence about provocation as
uncontroverted.  Because the evidence was controverted, and because
other improper comments were made, the argument was reversible
error.  Burton, 63 Ill. App. 3d at 919.  This case is
distinguishable from Burton because the prosecutor here did not
claim that Manchester's testimony was uncontradicted. 
     Defendant also claims that the prosecutor approached him
during closing arguments, looked at his face, and said:  "[W]hen
you get as close as Scott Manchester got to his face[,] you can see
acne on his face."  Defendant suggests that this statement refers
to a matter not in evidence.  Burton, 63 Ill. App. 3d at 919.  We
agree.  The trial court had previously ruled that defendant could
not be allowed to display his face without cross-examination.  In
light of that ruling, the prosecutor's statement implying that 
defendant had acne at the time of trial was improper.  
     Error is cured by sustaining an objection, admonishments and
jury instructions.  People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746
(1984).  The trial court sustained defendant's objection to the
prosecutor's statement.  Before and after closing arguments, the
trial court instructed the jury that what the lawyers said in
closing arguments was not evidence and should not be considered as
evidence.    
     Defendant next argues that the cumulative impact of the errors
he points out on appeal deprived him of a fair trial.
     This argument depends on a finding that more than one of the
court's decisions was in error.  People v. Albanese, 102 Ill. 2d 54, 83, 464 N.E.2d 206 (1984).  We have found that among the eight
issues raised by defendant, only one justifies a finding of error:
that the prosecutor made an improper statement during closing
argument, cured by a prompt objection and court instructions. 
There was no cumulative error in this case.
     Defendant's final argument is that the trial court relied on
the unreliable testimony of Detective Kirchens and Officer Sotak at
sentencing.
     A trial court has wide discretion in the source and kind of
evidence to be considered in sentencing.  People v. Washington, 127
Ill. App. 3d 365, 468 N.E.2d 1285 (1984).  Indictments and criminal
conduct not prosecuted may be considered.  People v. Jackson, 149 Ill. 2d 540, 548, 599 N.E.2d 926 (1992).  This evidence should be
subject to cross-examination and rebuttal.  Jackson, 149 Ill. 2d  at
548.  Relevance and reliability are the important factors for
evidence offered at sentencing.  See People v. Richardson, 123 Ill. 2d 322, 361, 528 N.E.2d 612 (1988); People v. Johnson, 114 Ill. 2d 170, 205, 499 N.E.2d 1355 (1986).  Hearsay evidence of unprosecuted
crimes is admissible in sentencing hearings if it is relevant and
reliable.  People v. Williams, 164 Ill. 2d 1, 27, 645 N.E.2d 844
(1994).
     Defendant contends that the evidence offered by Detective
Kirchens and Officer Sotak regarding two unprosecuted crimes was
hearsay because they read from police reports.  The record does not
support the contention that they read from police reports.  
     Defendant also claims that their testimony was not reliable. 
Kirchens testified that, while he was investigating a different
burglary, an evidence technician was called to the scene and
recovered a fingerprint.  That print was identified as matching
defendant's fingerprint.  Kirchens received this information from
reliable police department sources during the course of an official
investigation.  See People v. Morgan, 112 Ill. 2d 111, 143-44, 492 N.E.2d 1303 (1986) (facts compiled during officer's official
investigation held reliable for sentencing purposes).  The trial
court did not abuse its discretion in relying on this information.
     We need not review the reliability of Sotak's testimony
because the trial court did not rely on it in sentencing.
     Affirmed.
     GORDON and LEAVITT, JJ., concur.