Find Legal Information

SECOND DIVISION
August 17, 2004

Following a jury trial, defendant Audrey Klimawicze was convicted offirst degree murder, armed robbery, and home invasion. The trial courtsentenced her to an extended term of 92 years' imprisonment for murder and twoconcurrent 30-year sentences for the remaining counts of armed robbery andhome invasion. On appeal, defendant challenged the legality of her arrest andthe admission of her subsequent hand-written statement at trial. This courtfound the police lacked probable cause to justify defendant's arrest andremanded the matter to the trial court for an attenuation hearing. People v.Klimawicze, No. 1-00-3531 (2003) (unpublished order pursuant to Supreme CourtRule 23). Following our instructions, the trial court made several factualfindings and concluded defendant's statement was sufficiently attenuated fromher illegal arrest.

In addition to appealing the trial court's finding regardingattenuation, defendant contends: (1) the trial court violated defendant'sright to confront witnesses by allowing hearsay statements into evidence; (2)jury selection was fundamentally unfair because the State falsely educated thejury on the law of accountability during voir dire; (3) the prosecutionimproperly questioned defense witnesses about defendant's prior bad acts; (4)the prosecution improperly used prior consistent statements to bolster itswitness's credibility; (5) the prosecution improperly asked defendant tocomment on other witnesses' truthfulness; (6) the trial court erred when itrefused to instruct the jury on second degree murder; and (7) defendant's 92-year sentence was unfairly disproportionate. We affirm defendant's convictionand sentences.

FACTS

We rely on the trial court's factual findings at the attenuationhearing. They are supported by the record.

The Chicago police found the partially burned body of Audrey V.Klimawicze on August 2, 1997, in a garbage container located in the alley ofthe 3300 block of South Emerald Avenue. The victim had been stabbed andstrangled. At 7:05 that evening, the police arrested defendant, who was thevictim's daughter, and codefendant Hector Mercado.⁽¹⁾

Police questioned both defendant and codefendant Mercado at 9:30 p.m. onAugust 2, 1997, and they denied any knowledge of the crime. At 10 p.m., aneyewitness identified Mercado in a lineup as the man she saw pushing thegarbage cart down the alley the previous evening. At 12:30 a.m. on August 3,1997, police told Mercado he had been identified in the lineup. Mercado toldpolice that defendant told him she had a fight with her mother and that shehad stabbed her. Defendant and a man named Mario placed the victim in agarbage can behind her apartment building. Mercado admitted he later movedthe can further down the alley.

At 4 a.m. on August 3, 1997, taxi driver Joe Martinez told police hedrove defendant and Mercado on August 2, 1997. Defendant told Martinez shehad an argument with her mother and had stabbed her. According to Martinez,defendant said, "The bitch deserved it," and Mercado replied, "You're right. She deserved it. They can't prove a thing."

At 4:30 a.m., police advised defendant of her Miranda rights andconfronted her with Mercado's and Martinez's statements. She told police shehad an argument with her mother and that her mother pulled a knife on her. Defendant was able to take the knife away. When she told Mercado whathappened, he took the knife, went to the victim's apartment, and stabbed her. According to defendant, Mercado placed her mother's body in the garbagecontainer. Defendant gave the same version of the story when interviewed bypolice three hours later.

At 8:30 a.m., Mercado repeated his 12:30 a.m. statement. The policeagain confronted defendant with Mercado's and Martinez's statements. She gavethe same statement as earlier and agreed to repeat her statement to Mercado.

After listening to defendant, Mercado told police defendant had talkedabout killing her mother for three weeks. At 10:30 p.m. on July 31, 1997,defendant asked Mercado to accompany her to her mother's apartment so theycould kill her. Mercado told police he refused but went down to the secondfloor apartment when he heard a loud noise. He saw defendant stab her motherwith a large knife several times. Over the next 20 hours, he used moneydefendant found in the victim's apartment to buy heroin. On August 1, 1997,he placed the victim in the garbage container and later pushed it down thealley.

Police then confronted defendant with Mercado's latest statement. Defendant repeated her earlier statements. At 4 p.m. defendant initiated aconversation with police. She reiterated her earlier statement but addedMercado did not return to their apartment on the night of August 1, 1997. Onthe morning of August 2, 1997, Mercado told defendant he had burned thegarbage cart and police were investigating.

At 7:30 p.m. on August 3, 1997, defendant, after being informed of herrights, gave the same statement to assistant State's Attorney Thomas Bilyk.

An hour later, Mercado gave Bilyk a different story. He said defendanttold him she was going "to do" her mother. Defendant returned because hermother would not let her enter the apartment. Defendant then took a longblack cord and Mercado took a hunting knife to the victim's apartment. Defendant kicked her mother and forced her way into the apartment. Mercadofollowed. Defendant then strangled the victim with the cord and instructedMercado to stab her. He stabbed the victim three times while defendantcontinued to choke her. After taking money from the victim's apartment, theywent to the projects to buy heroin and dispose of their weapons. The nextday, Mercado placed the victim and a carpet into a garbage container from thealley. Later, they moved the container to the alley and set it on fire. Healso said defendant told the cabdriver named Joe that she killed her mother.

At 9:15 p.m., defendant was confronted with Mercado's 8:30 p.m.statement. She expressed disbelief that Mercado made the statement; thepolice brought him into defendant's interview room. He told defendant, "Itold them the truth." Police escorted him from the room, and Bilyk informeddefendant of her rights. She agreed to give a handwritten statement, whichwas later admitted at trial.

The testimony at trial, including the contents of defendant'shandwritten statement, was summarized in our previous order. See Klimawicze,No. 1-00-3531 (2003). The jury found defendant guilty of first degree murder,armed robbery, and home invasion.

Defendant waived her right to a jury trial to determine her eligibilityfor the death penalty. At sentencing, the court heard evidence in mitigationand aggravation and determined defendant and Mercado were eligible for thedeath penalty because the murder occurred during an armed robbery. Based onthe mitigating evidence, the court declined to impose the death penalty. Thecourt also considered imposing life sentences, saying a life sentence "seemsto be awfully appropriate." Instead, the court sentenced both defendants to92-years' imprisonment based on the brutal nature of the murder. The courtalso imposed two concurrent 30-year terms for the armed robbery and homeinvasion convictions.

DECISION

I. Attenuation analysis

Defendant contends the trial court erred when it found her statement wasattenuated from her illegal arrest.

Evidence collected following an illegal arrest may be admissible if itis sufficiently attenuated from any illegality. Brown v. Illinois, 422 U.S.590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62 (1975). Courtsuse four factors in attenuation analysis: (1) the existence of Mirandawarnings; (2) the proximity in time between the arrest and the statement; (3)the presence of intervening circumstances; and (4) the flagrancy of policemisconduct. Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at2261-62; Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004). Typically, intervening circumstances and flagrancy of police misconduct arethe two key factors in determining whether police exploited the illegal arrestto obtain a confession. People v. Willis, 344 Ill. App. 3d 868, 884-85, 801N.E.2d 47 (2003), pet. for leave to appeal granted, 207 Ill. 2d 627, 807N.E.2d 981 (2004); People v. Ollie, 333 Ill. App. 3d 971, 986, 777 N.E.2d 529(2002). The prosecution bears the burden of showing the confession was not aproduct of the illegal arrest. People v. Foskey, 136 Ill. 2d 66, 86, 554N.E.2d 192 (1990).

A trial court's decision regarding a motion to suppress evidence isreviewed de novo; however, great deference is given to the trial court'sfactual findings, which will not be reversed unless they are found to beagainst the manifest weight of the evidence. People v. Pitman, No. 95783(Ill. June 17, 2004).

A. Miranda warnings

Courts have held that the presence of Miranda warnings alone will notpurge the taint of an illegal arrest. Wilberton, 348 Ill. App. 3d at 85. "Although police cannot dissipate the taint of an illegal arrest simply bygiving Miranda warnings, the presence of the warnings prior to interrogationcarries some weight." Wilberton, 348 Ill. App. 3d at 85 (this factor weighedin favor of attenuation where the defendant waived his rights six times). Inthis case, the trial court found defendant was given the Miranda warnings eachtime police questioned her. She waived those rights seven times. We agreewith the trial court that this factor weighs in favor of attenuation.

B. Proximity in time between arrest and confession

The length of time between the illegal arrest and a confession is anambiguous attenuation factor.

"[W]here intervening circumstances are present,a long period between arrest and confession maysupport the inference that it was the interveningcircumstance, and not the illegal arrest, whichprompted the confession. However where no interveningcircumstances are present, a long and illegaldetention may in itself impel the defendant toconfess." People v. White, 117 Ill. 2d 194, 224, 512N.E.2d 677 (1987).

In this case, we cannot determine whether the 27-hour period betweendefendant's arrest and her handwritten statement favors attenuation withoutdetermining whether there were intervening circumstances.

C. Intervening circumstances

Intervening circumstances are an important factor in attenuation becausethey break the causal connection between unconstitutional police conduct and aconfession. Wilberton, 348 Ill. App. 3d at 85-86. "Intervening circumstancessupport attenuation when they are capable of inducing a voluntary desire toconfess." Wilberton, 348 Ill. App. 3d at 86; People v. Austin, 293 Ill. App.3d 784, 788, 688 N.E.2d 740 (2000).

In this case, the court found Mercado's and Martinez's statements, whichoccurred before all but one of defendant's statements, were interveningcircumstances for two reasons. First, the statements provided the police withprobable cause they previously lacked to arrest defendant. Second, thestatements "sparked the desire of the defendant to confess voluntarily."

1. Intervening probable cause

"Intervening acquisition of probable cause is 'an important factor inthe attenuation analysis' even though it does not always assure the police didnot exploit a Fourth Amendment violation." Wilberton, 348 Ill. App. 3d at 87,quoting People v. Morris, 209 Ill. 2d 137, 158, 809 N.E.2d 377 (2004)overruled in part, Pitman, No. 95783, slip op. at 8 (overruled Morris to theextent it was inconsistent with the standard of review set forth in Ornelas v.United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1999)). InMorris, our supreme court explained why intervening probable cause weighsheavily in favor of attenuation, rather than application of the exclusionaryrule: "[I]t would place an unreasonable burden on police *** to release anillegally arrested defendant and then, based on probable cause obtained afterthe illegal arrest, arrest him again when he reached the sidewalk." Morris,209 Ill. 2d at 159.

A codefendant's statement can constitute intervening probable cause andserve as an attenuating circumstance if it is legally obtained and reliable. Wilberton, 348 Ill. App. 3d at 88; see also People v. James, 118 Ill. 2d 214,224-26, 514 N.E.2d 998 (1987) (codefendant's statement, which was foundsufficiently reliable, provided probable cause to arrest defendant even thoughit was illegally obtained).

In this case, Mercado's statement meets both requirements. AlthoughMercado challenged his arrest before trial, he was unsuccessful and did notraise the issue again on appeal. Based on the record, we have no reason todoubt the legality of Mercado's arrest. Second, Mercado's statement wassufficiently reliable. The details of his statement were corroborated byMartinez's statement and the physical evidence. Additionally, Mercado'sstatement was against his penal interest because he admitted helping defendantdispose of the victim's body. See generally James, 118 Ill. 2d at 223("admissions against penal interest may, by their very nature, possessinherent indicia of reliability").

While Mercado's statement supports intervening probable cause, we neednot rely on it exclusively. Martinez's statement that defendant admittedstabbing her mother also provides intervening probable cause and weighs infavor of attenuation.

We do not examine the legality of Martinez's detention because defendantfailed to sufficiently raise the issue in her brief. Defendant simply statedMartinez was detained without probable cause without arguing specific factsand applicable law. Bare contentions lacking sufficient legal argument do notwarrant our consideration. In re Estate of Divine, 263 Ill. App. 3d 799, 810,635 N.E.2d 581 (1994) ("It is an elementary rule of appellate practice that anappellant may not make a point merely by stating it without presentingarguments in support of it. This court will not research and argue a case foran appellant"). For purposes of this appeal, we assume no error in Martinez'sdetention.

2. Confronting defendant with Mercado's and Martinez's statements

"When police confront a defendant in custody with evidence policeobtained legally, the evidence may attenuate the connection between an illegalarrest and the defendant's subsequent statements." People v. Clay, No. 1-01-3462, slip op. at 12 (June 21, 2004); People v. Jennings, 296 Ill. App. 3d761, 766, 695 N.E.2d 1303 (1998).

In Wilberton, the police confronted defendant with another suspect'sstatement implicating defendant in a fatal shooting. The defendant did notchallenge the legality of the other suspect's arrest. This court held thesuspect's statement not only gave police probable cause, it served as anintervening circumstance when the police confronted defendant with it. Wilberton, 348 Ill. App. 3d at 89; see also People v. Wright, 294 Ill. App. 3d606, 613, 691 N.E.2d 94 (1998) (confronting defendant with his brother'simplicating statement served as an intervening circumstance).

In Austin, 293 Ill. App. 3d at 790-91, and People v. Beamon, 255 Ill.App. 3d 63, 70, 572 N.E.2d 1011 (1993), this court held that confronting adefendant with incriminating statements made against him by others does notserve as an intervening circumstance if those statements were made by someonewho also was arrested illegally.

In this case, before defendant gave her second statement at 4:30 a.m. onAugust 3, 1997, police confronted defendant with two statements by Mercado andMartinez implicating her in the crime. Unlike Austin and Beamon, Mercado'sand Martinez's statements were not fruits of illegal arrests. The trial judgeproperly found confrontation of defendant with these incriminating statements,rather than her illegal arrest, sparked her desire to voluntarily give astatement. At that point, neither her statement, nor those of Mercado andMartinez, was tainted by the illegal arrest. The causal chain was broken, andthe police were free to use the statements, including defendant's subsequentstatements, in their continuing interrogations. These additional statementsand confrontations by Mercado, which were not tainted by the illegal arrest,became additional intervening circumstances. Accordingly, this factor weighsin favor of attenuation.

Defendant contends Mercado's and Martinez's statements cannot beconsidered intervening circumstances because they resulted from defendant'sillegal custody. We find the facts do not support this contention.

Mercado and defendant gave their first statements to police at 9:30 p.m.on August 2, 1997. Both denied any knowledge of or involvement in the crime. Mercado did not incriminate defendant until 12:30 the next morning, afterpolice told him he had been identified in the lineup. Contrary to defendant'sallegation, there is no evidence that police told Mercado about defendant'sinitial denial to get his 12:30 a.m. statement.

Instead, we conclude Mercado's 12:30 a.m. statement was the result ofpolice confronting him with his lineup identification, and not defendant'sinitial denial or the fact Mercado knew defendant was in police custody. We also disagree with defendant's contention that Martinez's statementwas a product of defendant's illegal arrest. Although defendant contendspolice would not have independently discovered Martinez absent her statements,this contention is not supported by the facts. Detective Patrick McDonaldtestified the police learned Martinez's cab number through defendant's half-sister Bonnie Gentile and her uncle. Although Gentile testified she did notsee defendant leave in a cab, she did see a cab waiting for defendant in frontof their apartment building. Accordingly, we cannot conclude Gentile'stestimony disproves McDonald's testimony regarding the source of informationabout Martinez. Likewise, we find nothing to support defendant's contentionthat Martinez knew defendant had been arrested or that he gave his statementto police based on that knowledge.

D. Flagrancy of police misconduct

The presence of purposeful and flagrant police misconduct weighs againstattenuation. Wilberton, 348 Ill. App. 3d at 89. "Police action is flagrantwhere the investigation was carried out in such a manner to cause surprise,fear, and confusion, or where it otherwise has a 'quality of purposefulness,'i.e., where the police embark upon a course of illegal conduct in hope thatsome incriminating evidence (such as the very statement obtained) might befound." Jennings, 296 Ill. App. 3d at 765, citing Foskey, 136 Ill. 2d at 86.

Here, the trial court found no evidence of flagrant police misconduct:

"The police did not mistreat the defendantduring her detention and provided food, drink,opportunities to use the bathroom facilities, and shewas left alone in the interview room from 11 p.m. to 5a.m. the next day. She was not incessantlyinterrogated and was given plenty of time to ponder hersituation."

Nothing in the record persuades us the trial court's finding is againstthe manifest weight of the evidence. Defendant contends police misconduct wasflagrant in this case because of their method of interrogation, "playing threepeople *** against one another." Although the police interrogation strategywas purposeful, we do not believe it was done for the purpose of exploitingillegality. The first time detectives confronted defendant with Mercado'sstatement, or Mercado with defendant's statement, occurred after theintervening probable cause arose. Even before that point, the facts do notsuggest police were unreasonable in their belief that they had sufficientprobable cause to arrest defendant. See generally Morris, 209 Ill. 2d at 161-62.

II. Confrontation Clause

Defendant contends the prosecution violated her Sixth Amendment rightsby making numerous references to Martinez's statement to police, especiallyduring Officer Coughlin's testimony. Officer Coughlin testified aboutconfronting defendant with Martinez's statement and that Martinez told thepolice defendant had admitted stabbing her mother.

Before Coughlin testified, the State called Martinez as a witness. Martinez testified that defendant told him she stabbed her mother. Defensecounsel cross-examined Martinez thoroughly regarding the statement he gavepolice and focused on the circumstances of his interrogation.

Before a testimonial out-of-court statement can be admitted against acriminal defendant, the State must show the declarant is unavailable and thedefendant had a prior opportunity to cross-examine the declarant. Crawford v.Washington, __ U.S. __, 158 L. Ed. 2d 177, 203, 124 S. Ct. 1354, 1374 (2004).

Here, Martinez testified and was cross-examined by defendant's attorney. We find no Sixth Amendment violation of defendant's confrontation rights withregard to Martinez's testimony.

Next, defendant challenges the prosecution's repeated references toMercado's multiple statements to police. At trial, Detective Danzl testifiedhe told defendant that Mercado had given police a "different story". BothDetective Danzl and assistant State's Attorney Bilyk testified that Mercadowas brought into defendant's interview room. Mercado then told defendant thathe had given police "the true story." Although the substance of Mercado'sstory was not admitted into evidence, defendant contends she was prejudiced bythe State's references to his statements.

Defendant relies heavily on Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S. Ct. 1620 (1968), to support her contention. In Bruton, theUnited States Supreme Court held a criminal defendant's Sixth Amendment rightto confront witnesses is violated when a codefendant's incriminating statementis admitted into evidence during a joint trial.

This case differs from Bruton in two ways: (1) defendant's and Mercado'sjury trials were severed; and (2) the substance of Mercado's statement was notadmitted during defendant's trial.

People v. Fauntleroy, 224 Ill. App. 3d 140, 147, 586 N.E.2d 292 (1991),is very similar to this case. In Fauntleroy, the State introduced evidencethat a codefendant told the defendant during the course of interrogation,"Tell the truth, I did." The defendant and codefendant were tried by severedjuries and convicted. On appeal, the defendant contended the codefendant'sstatement, admitted through the assistant State's Attorney's testimony,violated his Sixth Amendment right to confront witnesses. This court found noviolation under Bruton, because the trials were severed and the substance ofcodefendant's statement was not admitted. The court said:

"Illinois cases have repeatedly held that wherethe substance of a co-defendant's statement is notrevealed, an officer may properly testify concerninginvestigatory procedures, even though the jury canreasonably infer therefrom that the accompliceimplicated the defendant. [Citation.]

In rejecting defendant's contention, werecognize that [the codefendant's] statement to [thedefendant] 'to tell the truth' is the statement of anon-testifying codefendant which carries with it astrong inference of implication. We believe, however,that its admission was not error as it was offered forthe non-hearsay purpose of showing the jury thecircumstances surrounding [the defendant's] confessionand the effect [the codefendant's] presence and his'truth' remark had on [the defendant]." Fauntleroy,224 Ill. App. 3d at 147.

Defendant contends we should follow People v. Campbell, 115 Ill. App. 3d631, 450 N.E.2d 1318 (1983). In that case, the State introduced evidence thata codefendant implicated the defendant in a robbery. The defendants' trialswere severed and the substance of the codefendant's statement was not used. The prosecutor argued the jury should infer the codefendant implicateddefendant in the crime, because police arrested the defendant shortly afterspeaking with the codefendant. The court determined evidence regarding thecodefendant's statements to police was used solely for the purpose ofconvincing the jury to convict on the basis the codefendant implicated thedefendant in the crime. Campbell, 115 Ill. App. 3d at 637.

Here, the State had another reason for using Mercado's statements topolice: the prosecution was explaining why defendant decided to confess,thereby bolstering the reliability of her confession. Following Fauntleroy,we find defendant's Sixth Amendment rights were not violated by the way theState referred to Mercado's statements.

III. Jury Selection

Defendant raises three challenges related to voir dire. First,defendant contends the trial court improperly allowed the State to questionpotential jurors about the law of accountability and their ability to applyit. Second, defendant contends the trial court erred by allowing the State toask the venire members whether they would feel sympathy toward defendantbecause she was a woman and a mother. Third, defendant contends the trialcourt improperly denied defense counsel's request to question potential jurorsabout their familiarity with articles on false confessions, which defendantcontends would have uncovered any potential bias on the issue of policemisconduct.

" 'The purpose of the voir dire examination is to assure selection of animpartial jury; it is not be used as a means of indoctrinating a jury, orimpaneling a jury with a particular predisposition.' " People v. Mapp, 283Ill. App. 3d 979, 986, 670 N.E.2d 852 (1996), citing People v. Bowel, 111 Ill.2d 58, 64, 488 N.E.2d 995 (1986). The scope of questions allowed on voir direis left to the trial judge's "broad discretion." Mapp, 283 Ill. App. 3d at988-89; People v. Dow, 240 Ill. App. 3d 392, 396, 608 N.E.2d 259 (1992).

In Mapp, 283 Ill. App. 3d at 899, this court held potential jurors maybe given a "brief and fair summary of accountability principles" and asked ifthey could apply those principles to the case. The court said such questionsserved the purpose of voir dire, " 'to discern fundamental bias ormisperception of the prospective jurors.' " Mapp, 283 Ill. App. 3d at 899,quoting People v. Nunn, 184 Ill. App. 3d 253, 273, 541 N.E.2d 182 (1989).

We find the trial court did not abuse its discretion by allowing theprosecution to ask jurors, "Do you understand under the law of accountability,that someone may be found accountable or responsible for the actions ofanother?". See Mapp, 283 Ill. App. 3d at 989, citing Nunn, 184 Ill. App. 3dat 273 (no error when the court allowed questions which tested the jurors'understanding of the law of accountability).

Next, defendant contends on appeal the court erred in allowing theprosecution to probe the venire regarding any sympathies they might havetowards defendant based on her gender or motherhood. Defendant contends thequestion may have "unfairly conveyed the subliminal message that sympathytoward the deceased was acceptable." Defendant failed to object to thisquestion at trial or in her post-trial motion. As a result, the issue iswaived. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (analleged trial error must be raised both at trial and in a posttrial motion orthe issue is waived). Waiver aside, we see no danger of the prosecution'squestion rousing sympathy for the victim, who also was a mother.

Third, we find the trial court acted within its discretion by preventingthe defense from asking the following question during voir dire: "*** hasanybody read any articles in the newspaper, a series of articles recentlyabout people that have been convicted of crimes and have given confessions andconfessions were later found to be not true?" This question was directed atthe venire's knowledge of newspaper articles discussing false confessionsrather than uncovering any bias toward police misconduct. The trial court didnot abuse its discretion by disallowing it. See Mapp, 283 Ill. App. 3d at 986(trial court does not abuse discretion by allowing questions that assure anybias would be discovered, but should not allow either side to use voir direfor the purpose of impaneling a jury with particular predispositions).

IV. "Prior Bad Acts" Testimony

Defendant contends trial error occurred when the State questioneddefendant, her father, and defendant's half-sister about "prior bad acts". The admissibility of evidence is a matter left to the trial court'sdiscretion. People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991). The decision to admit evidence will be overturned only if we find an abuse ofdiscretion which manifestly prejudiced the defendant. People v. Sutton, 316Ill. App. 3d 874, 891, 739 N.E.2d 543 (2000); Illgen, 145 Ill. 2d at 364;People v. Thompkins, 121 Ill. 2d 401, 441-42, 521 N.E.2d 38 (1988).

Generally, evidence of prior bad acts is inadmissible unless it isoffered for a specific relevant purpose, such as modus operandi, intent,identity, motive, or absence of mistake. People v. Maounis, 309 Ill. App. 3d155, 159, 722 N.E.2d 749 (1999). Courts must weigh the probative value of anyevidence against its prejudicial effect. Illgen, 145 Ill. 2d at 365.

Defendant challenges two questions the State asked about her drugpurchases: (1) the State cross-examined defendant's father and asked, "Andwere you aware, sir, that [defendant] and Mercado would go to the projects tobuy narcotics?"; and (2) the prosecution asked defendant, "And at that time,you were using public aid money for [your daughter] to buy drugs?"

The State contends these questions were proper because they establisheddefendant's motive to kill her mother: her need for money to buy drugs. Insome cases, evidence of the defendant's drug use can be admitted to showmotive; however, the State has the burden of showing both that the defendantlacked financial resources and that the defendant was addicted to narcotics. Maounis, 309 Ill. App. 3d at 159. In Maounis, this court determined the trialcourt abused its discretion by admitting evidence of the defendant's drug useto establish motive for armed robbery where the State failed to show he neededmoney or was an addict. Maounis, 309 Ill. App. 3d at 159. There, theadmission of the evidence constituted prejudicial error.

Here, defendant was not prejudiced by the State's questions about herdrug use, although neither question should have been asked. First, the trialcourt sustained defendant's objection to the question asked of her father, andthe witness did not answer the question. We find no prejudice occurred.

The second challenged question to defendant is different. There,defendant did answer the prosecutor's question regarding her use of public aidto buy drugs. Considering the State had already offered evidence thatdefendant used the victim's money to buy drugs, the question about her use ofpublic aid was more unfairly prejudicial than probative. Although we concludethe question was improper, we do not believe it was harmful enough toconstitute reversible error.

Defendant also contends she was denied a fair trial when the prosecutorasked her half-sister about prior arguments between defendant and theirmother. When the State called defendant's half-sister Bonnie Gentile as arebuttal witness, the following exchange occurred:

"[Assistant State's Attorney]: Bonnie, if I can drawyour attention to July and August of 1997, had you everbeen in your mother and [defendant's] presence whenthey were arguing?

[Gentile]: Yes

[Assistant State's Attorney]: Were they ordinaryarguments?

[Gentile]: No."

At that point, defense counsel objected to use of the word "ordinary",and the court sustained the objection.

The State contends Gentile's questioning was necessary to impeachdefendant's testimony as to the substance and severity of the arguments withher mother. Defendant contends the State improperly used collateral matter toimpeach defendant.

At trial, defendant did not object to the question on the basis ofrelevancy. Instead, defense counsel specifically objected to the form of thequestion.

Although the question was improper, we find no unfair prejudice becausethe trial court sustained defense counsel's objection. We conclude theimproper questioning did not deprive defendant of a fair trial.

V. Improper Cross-Examination of Defendant Regarding Veracity of Other Witnesses

Defendant contends the prosecution denied her a fair trial by repeatedlyasking defendant about the veracity of the State's witnesses.

"Although asking the defendant's opinion of the veracity of otherwitnesses has been condemned [citations], the practice generally has not, byitself been held reversible [citation]." People v. Nwadiei, 207 Ill. App. 3d869, 876, 566 N.E.2d 470 (1990). In Nwadiei, the prosecuting attorney askedthe defendant 23 questions about the veracity of six of the State's witnesses. Defense counsel did not object to the questions, and the defendant answeredthem. This court found the extensiveness of the improper questioningconstituted reversible error.

In this case, the State improperly asked defendant: (1) whether Martinezmisheard her or lied about what she told him; (2) whether the assistantState's Attorney "made up" facts about defendant's relationship with hermother; and (3) whether the assistant State's Attorney "made up" parts ofdefendant's written statement.

Although the prosecuting attorney's questions were improper, they arenot so pervasive as to warrant reversal in this case. Additionally, unlike inNwadiei, the trial court sustained defense counsel's objections each time theprosecutor asked the offending questions--defendant did not answer. We do notfind reversible error.

VI. Martinez's Prior Consistent Statements

Defendant contends the prosecution committed reversible error byquestioning Martinez about his prior consistent statements to police, whichdefendant contends improperly bolstered Martinez's credibility.

Prior consistent statements cannot be used to corroborate a witness'stestimony on direct examination, but they can be used to rebut an inferencethat the witness's testimony was recently fabricated or the witness wasmotivated to testify falsely if the inference arose after the consistentstatements were made. People v. Williams, 147 Ill. 2d 173, 227, 588 N.E.2d983 (1991).

In this case, both parties questioned Martinez about the statements hemade to police. On direct, Martinez's testimony included detailed factswhich, as defense counsel pointed out through cross-examination, were notincluded in his written statement to police.

On redirect examination, the State asked Martinez about some of the oralstatements he made to police officers, but none of these questions covered thedamaging statements the defendant purportedly made about the killing of hermother.

The State also asked Martinez if his testimony was the same as his priorstatements, and the court sustained all but one of defense counsel'sobjections. The following question was allowed:

"[Assistant State's Attorney]: You have never changedthe story you have told to the police from thebeginning right?

[Martinez]: Right.

[Defense counsel]: Objection.

***

[The Court]: *** I will allow the answer to stand. Let's proceed."

Martinez testified the police detectives several times told him theywere going to charge him as an "accessory after the fact," which Martinezunderstood to mean he would be put in jail. However, Martinez never specifiedwhen he was threatened. Was it before his oral statement or after his oralstatement but before the written statement? We cannot tell. He did say thatafter making his statement, the police did not charge him with a crime or takeaway his taxi.

Based on this record, we cannot say whether Martinez's alleged motive tofabricate his testimony--police coercion--occurred before, during or after hisoral statement to police. The oral statement was the first statement he gaveand is the statement the State used to rehabilitate Martinez after cross-examination. Even if police threatened to charge Martinez with a crime beforehe made his statements, any error was harmless beyond a reasonable doubt. SeePeople v. Ashford, 121 Ill. 2d 55, 71-72, 520 N.E.2d 332 (1988) (in theabsence of any promise of leniency, the statement at most showed a desire tobe released from custody; admission of prior consistent statements washarmless error and did not warrant reversal).

VII. Jury Instruction on Second Degree Murder

Defendant contends the trial court erred by denying her request to givethe jury an instruction on second degree murder.

Although jury instructions are left to the trial court's discretion, thecourt abuses its discretion if there is some evidence to support theinstruction and the court fails to give it. People v. Castillo, 188 Ill. 2d536, 540, 723 N.E.2d 274 (2000). A defendant is entitled to a juryinstruction on a lesser offense if there is "slight" evidence to support it,even though defendant's own testimony contradicts it. Castillo, 188 Ill. 2dat 540; People v. Jefferson, 257 Ill. App. 3d 258, 265, 628 N.E.2d 925 (1993). An instruction is not warranted if it is "based on the merest factualreference or witness comment." Jefferson, 257 Ill. App. 3d at 256. Aninstruction on second degree murder is not necessary in every case where thevictim is alleged to have provoked the defendant. Jefferson, 257 Ill. App. 3dat 265. "Instead, sufficient evidence must exist that at the time of thekilling, the defendant was acting under a sudden and intense passion resultingfrom serious provocation by the individual killed." Jefferson, 257 Ill. App.3d at 265-66; People v. Everette, 141 Ill. 2d 147, 156, 565 N.E.2d 1295 (1990)(the evidence must be sufficient for a reasonable jury to find in thedefendant's favor).

Here, the only evidence of any provocation on the victim's part wasMartinez's statement. Martinez testified, "[Defendant] said she got into anargument with her mother and that her mother pulled a knife out on her andthat she took the knife away from her mother and she stabbed her with it." Defendant contends his statement is evidence that the victim's use of a knifeduring an argument incited a sudden and intense passion within defendant,which provoked her to choke and stab her mother repeatedly.

Martinez's statement is not enough to justify the second degree murderinstruction. When defendant testified, she said she only told Martinez thatMercado had killed her mother, with no mention of her mother pulling a knife. More importantly, no other evidence supported the theory defendant stabbed hermother due to a serious provocation.

Even if the jury could reasonably believe what defendant told Martinez,the instruction would not be proper. According to Martinez, defendant saidshe disarmed her mother. There was no mutual combat--only an argument. Inturn, defendant stabbed her mother three times and choked her with anelectrical cord. This degree of retaliation is disproportionate to thealleged provocation and would not justify the second degree murderinstruction. See Nunn, 184 Ill. App. 3d at 274-75 (second degree murder juryinstruction is not necessary when the evidence shows the provocation wasslight or defendant retaliated disproportionately to the alleged provocation). We find the trial court did not abuse its discretion by refusing to instructthe jury on second degree murder.

VIII. Excessive Sentencing

Defendant contends her extended 92-year prison term for first degreemurder was unfair and excessive because Mercado received the same sentence. Defendant contends that, unlike Mercado, she has no criminal record andgreater rehabilitative potential.

Trial courts are given great deference when making sentencing decisions. Illgen, 145 Ill. 2d at 379. If a sentence falls within the statutoryguidelines, it will not be disturbed on review unless it constitutes an abuseof the trial court's discretion (Illgen, 145 Ill. 2d at 379) and it ismanifestly disproportionate to the nature of the case (People v. Nussbaum, 251Ill. App. 3d 779, 783, 623 N.E.2d 755 (1993)).

An abuse of discretion might also occur when two codefendants receivethe same sentence, despite having different criminal records or roles in theparticular crime, and have different mitigating and aggravating factors. People v. Stambor, 33 Ill. App. 3d 324, 326, 337 N.E.2d 63 (1975).

"[T]he factors which normally should beuppermost in the mind of the trial court during thesentencing process should be (1) the nature of theparticular crime; (2) the role of the defendant incommitting the crime (such as who instigated it andwhat each party did in connection with the crime); and(3) the history and character of defendant, includingage, prior record, family situation, employment andother related factors." Stambor, 33 Ill. App. 3d at326.

Absent an abuse of discretion, this court will not alter a sentence onappeal simply because we might have weighed the mitigating and aggravatingfactors differently. People v. Cord, 239 Ill. App. 3d 960, 968, 607 N.E.2d574 (1993). Furthermore, the rehabilitative potential of the defendant is notentitled to greater weight than the seriousness of the offense, the protectionof the public, and punishment. Cord, 239 Ill. App. 3d at 969.

In this case, the trial court focused on the nature of the crime, thefacts and method of the killing, including burning the body in a garbagecontainer. The court described the crime as brutal and heinous. The courtalso found defendant's role in the crime egregious because the victim was her64-year-old mother. The court said,

"Murdering, in [defendant's] behalf, murderingyour mother. The murder itself, going to the facts,where choking enough to break the cartilage in theneck, the stabbing three or four times. It's obviousthat two people were involved in this and it's obviousthat you both were."

The court also reviewed the mitigation evidence. The trial judge noteddefendant was younger than Mercado, was the mother of a small child, and hadno previous criminal history.

When addressing Mercado, the court said it found the pending attemptedmurder charge had more significance than his previous narcotics-relatedfelony. The court also commented both defendants were "model inmates" and"both were active participants in this murder that occurred."

The court found both defendants eligible for the death penalty becausethe murder was a felony murder. After reviewing all the mitigation evidence,the court declined to impose the death penalty or a life sentence and insteadchose to sentence both defendants to extended terms of 92 years' imprisonmentfor first degree murder.

The record clearly shows the court relied on the important factors givenin Stambor. The trial court focused particularly on the brutal nature of thecrime and defendant's role in committing the murder. In addition to the trialcourt's comments at sentencing, we note the evidence at trial indicateddefendant instigated the attack against her mother. Accordingly, we find thetrial court did not abuse its discretion by giving the same sentence to bothdefendants, even though the mitigating factors for defendant and Mercadodiffered. See Fauntleroy, 224 Ill. App. 3d at 153-54 (trial court did notabuse its discretion by giving same sentence to both defendants who were notsimilarly situated).

CONCLUSION

For the above-stated reasons, we affirm the judgment of the circuitcourt.

Affirmed.

HOFFMAN, and SOUTH, JJ., concur.

1. Defendant and Mercado were tried at the same time, but before separatejuries.