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FIRST DIVISION

DECEMBER 7, 1998

No. 1-97-2531

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

At issue on appeal is: (1) whether the trial court erred in denying defendant's motion to quasharrest and suppress evidence; (2) whether the trial court improperly admitted polygraph evidenceduring the hearing on the motion to quash arrest and suppress evidence; (3) whether the evidencesupports defendant's conviction for first degree murder; (4) whether defendant was proven guiltyof aggravated criminal sexual assault beyond a reasonable doubt; and (5) whether defendant'saggregate 100-year sentence was excessive. For the reasons that follow, we affirm.

I. FACTS

This case concerns the sexual assault and murder of Debbie Vinson. Defendant was indictedon4 counts of first degree murder, 14 counts of aggravated criminal sexual assault, 6 counts ofcriminal sexual assault and 1 count of unlawful restraint.

At trial the parties stipulated that if J.D. Stewart, Jr., were called to testify he would state thatatabout 9:30 a.m. on May 14, 1993, he was in the alley at the rear of a row of businesses in the1700 block of West 79th Street collecting cans. He discovered the naked, bloody body of thevictim, Debbie Vinson. Mr. Stewart phoned the police.

Detective Ernie Bell was assigned the case at 10 a.m. the same day. He proceeded to 1716West79th Street to investigate and he observed the victim lying face up. There was dried blood on herright thigh and genitalia and blood on the grass near the body. The victim's wallet, a ChicagoBears T-shirt, a red gym shoe and black baseball cap were also scattered on the grass near thebody. Detective Bell canvassed the area to interview possible witnesses.

The morning of May 15, 1993, Detective Bell spoke with Detective Bernatek, who hadworkedthe midnight shift at Area 2. Pursuant to this conversation, they went to the home of ArthurRobinson. Robinson knew the victim and told Detective Bell that the victim and defendant,known to Robinson only as "Mike," were at his home about 10 p.m. or 11 p.m. the night of May13, 1993. Robinson gave Detective Bell a physical description of defendant and told him theaddress of the furniture store where defendant worked.

Detective Bell spoke with Mr. Harris, the owner of the furniture store. Mr. Harris indicatedthatan individual named "Mike" who matched the physical description worked at the store. Defendant arrived at the store between 5 p.m. and 5:30 p.m. Officer Bell identified himself,showed his star and then asked defendant his name. Defendant stated his name was "MichaelMontgomery" and agreed to go to Area 2 with Detective Bell. The officers did not handcuffdefendant.

Upon arriving at Area 2, Detective Williams informed defendant of hisMiranda rights andinterviewed defendant. Defendant stated that he did not know Debbie Vinson, the victim. Hestated that on the evening of May 13, 1993, he went home from work, only left home about 9:30p.m. to find something to eat and then returned home for the night. This interview started atabout 5:40 p.m. and lasted approximately 20 minutes.

At about 6:10 p.m., Detectives Bell, Williams and Marbury reentered the interview room. During this second interview, defendant changed his story. Defendant stated that he knew thevictim. He related that he met her on the corner of 79th Street and Racine, showed her a bag ofcocaine and went with her to the house of an individual known as "Frank" to smoke the cocaine.Defendant stated that he and the victim engaged in consensual oral and vaginal intercourse in thehallway of a building. Defendant claimed he and the victim parted ways in an alley.

At about noon the following day, Detectives Bell, Williams and Marbury, along withdefendant,went to the police station at 11th and State Street. Defendant was introduced to Officer JohnStout. Detective Bell spoke with Officer Stout, then interviewed defendant again at about 1 p.m. During this interview, defendant repeated his story from his prior interview. He added that, aftersmoking cocaine with the victim, he went with her to the hallway of a building where theyengaged in consensual intercourse, both oral and vaginal. Defendant then took the victim into analley, telling her that he was going to obtain more narcotics for her, which he stated he had nointention of doing. Defendant took the victim into an alley where they again engaged in oral andvaginal sex. Defendant stated that the victim started swinging her arms violently and struck himin the head, knocking his glasses off. Defendant stated that he thought he might have beenstabbed and was afraid the victim had a weapon. Defendant stated that he then started chokingthe victim.

The police returned to Area 2 with defendant at approximately 2 p.m., May 16, 1993, andresumed the interview. This interview lasted about an hour. During the interview, defendantrepeated his story and added that he choked the victim until she became unconscious, then hewent home. Defendant stated that when he arrived at home, he discovered he had blood on thefront of his pants, on his underwear, on the front of his shirt and on his shirttail. Defendantstatedthat he did not know where the blood came from. He threw away the bloody clothing andreturned to the alley where he left the victim. Defendant stated that he placed his fist behind thevictim's back to lift her up slightly to check if she was still alive. He determined that she wasstillalive, then engaged in vaginal intercourse with her again. Afterward, he removed the victim'sclothing and threw the clothing in a dumpster because he wanted to make it look like a rape. Defendant then turned the victim over so she was facing the ground and engaged in vaginal oranal intercourse with her, he was not sure which. Defendant then stated he returned to his homeand again threw away the clothes he was wearing. The parties also stipulated that ArthurRobinson would testify that the victim and an unknown man were in his apartment at 7849 SouthTroop on May 13, 1993, at about 11 p.m. to 11:30 p.m. Robinson described the unknown man as"a black male, six foot tall approximately two hundred thirty pounds, dark skinned, late thirties toearly forties." The man told Robinson he worked at a furniture store at 1710 West 79th Street. Robinson would testify that the victim and this man did not appear to be in a hostile relationship. The two used narcotics at his house and, before leaving, the victim asked Robinson for money soshe could purchase additional narcotics. Arthur Robinson viewed a lineup at approximately 7:30p.m. on May 16, 1993. Robinson identified defendant as the individual that was at his homewithDebbie Vinson the evening she died. Assistant State's Attorney Nolan interviewed defendant at10:45 p.m., and defendant repeated the statement he had given to the police earlier that day at 2p.m.

Dr. Mitra Kalelkar, the deputy chief medical examiner for Cook County, testified on behalfof theState. Dr. Kalelkar performed a post-mortem examination on the victim. The externalexamination revealed an unclothed female body with grass and dandelions on her back and dirton her knees. The victim's body had hemorrhages over her eyes and abrasions on the bridge ofher nose, the right side of her forehead, her chin, the left side of her neck, the angle of the jawandabrasions on her left and right upper arms. She had abrasions on her knee and right thigh area. Dr. Kalelkar testified that the victim was menstruating at the time and had a wad of paper towelproduct inside her vagina. The victim had extensive injuries to her anal area. Specifically, theanus was large and gaping with tears at the 12 and 5 o'clock positions. There were extensivehemorrhages in the mucosa of the rectum.

Dr. Kalelkar's internal examination of the victim showed significant injuries to the neck. Thevictim had hemorrhages on the top of the right side of her neck to the muscle that becomesprominent when turning the head. She had hemorrhages to the inside layer of the neck musclethat connects the base of the tongue to the thyroid area. She also had hemorrhages in the mucosaof the larynx and trachea. An examination of the victim's tongue revealed multiple tongue bites. Dr. Kalelkar testified that "all of these combined together are hallmarks of a strangulation." Thedoctor's opinion to a reasonable degree of medical certainty was that Debbie Vinson wasstrangled to death. Dr. Kalelkar testified that the injuries to the victim's anus were consistentwith intrusion by a penis and that "[t]he injuries are so extensive I think besides a penissomething else was used." The doctor testified that the victim was strangled after the analinjuries occurred.

On cross-examination, Dr. Kalelkar testified that cocaine use may cause seizures and thatbitemarks to the tongue may occur in seizure deaths "sometimes, not all the time." The toxicologyreport on the victim was positive for cocaine and alcohol. On redirect, the doctor testified that aperson who suffered a seizure would not have the type of injuries to the neck that she observedon the victim. Dr. Kalelkar stated that Debbie Vinson did not die from a seizure, but died fromstrangulation.

The defendant presented evidence through stipulation that Leon Stockstill, the victim'slive-inboyfriend, would testify that the victim left their apartment at about 10 p.m. on May 13, 1993, togo to the liquor store. Mr. Stockstill would further testify that the victim had five seizures onMay 9, 1993. The parties further stipulated that Drs. Khan and Watson of Cook County Hospitalwould testify that the victim had a 20-year history of seizure disorders for which she was takingmedication. The defendant chose not to testify.

The trial judge denied defendant's motion to quash arrest and suppress evidence. The courtfoundprobable cause for arrest at approximately 6 p.m. on May 15, 1993, which was duringdefendant'ssecond interview with the police at Area 2. The court found that probable cause for defendant'sarrest existed during that second interview "at the time the defendant changed his story from notknowing or from being home the evening before to actually having been with Miss Vincent[sic]in an apartment and smoking cocaine with her."

Defendant's motion to suppress statements alleged that defendant did not receive hisMirandawarnings. The court found that it was clear from defendant's own testimony that he knew whatthe Miranda warnings were and that he, in fact, received such warnings. Specifically, the courtfound that Detective Williams gave defendant his Miranda warnings when he wasfirst taken toArea 2. He was again given Miranda warnings before the polygraph examination. Defendantwas advised of his rights again at Area 2 in the afternoon on May 16, 1993, and later that eveningby Assistant State's Attorney Nolan. The trial court also found that there was no evidence tosubstantiate defendant's claim that his statements were obtained through psychological coercion. Also, the court found that there was no evidence to substantiate defendant's allegations that hishistory of substance abuse and treatment impaired his ability to understand the nature andconsequences of his interrogation.

Following the bench trial, the court found defendant guilty of four counts of first degreemurderand four counts of aggravated criminal sexual assault. The court rejected the prosecution'srequest for the death penalty and sentenced defendant to an extended term of 70 years in theIllinois Department of Corrections for first degree murder and a consecutive sentence of 30 yearsfor aggravated criminal sexual assault. This appeal followed.

II. ANALYSIS

Defendant first argues that the trial court erred in denying his motion to quash arrest andsuppressevidence. Defendant contends he was arrested without probable cause. The trial court found thatprobable cause for arrest existed at approximately 6 p.m. on May 15, 1993, which was duringdefendant's second interview with police at Area 2. Defendant argues that he was under arresteven before the second interview and that probable cause to arrest did not exist until after 4 p.m.on May 16, 1993. The State maintains that the trial court properly denied defendant's motion toquash arrest and suppress evidence. The State asserts that probable cause was established duringdefendant's voluntary appearance at the police station.

A reviewing court will overturn a trial court's ruling on a motion to quash the arrest andsuppressevidence only where the trial court's ruling is manifestly erroneous. People v.Adams, 131 Ill. 2d387, 400, 546 N.E.2d 561 (1989). "Manifestly erroneous" or "against the manifest weight of theevidence" occurs where the trial court's ruling is " 'palpably erroneous and wholly unwarranted'or 'arbitrary, unreasonable, and not based upon the evidence.' " People v. Leach,245 Ill. App. 3d644, 655, 612 N.E.2d 825 (1993), quoting People v. Shelby, 221 Ill. App. 3d 1028,1039, 582N.E.2d 1281 (1991).

A person has been arrested when his or her freedom of movement has been restrained byphysicalforce or a show of authority. People v. Melock, 149 Ill. 2d 423, 436, 599 N.E.2d941 (1992). Indetermining whether a suspect has been arrested, the relevant inquiry is whether, under thecircumstances, a reasonable, innocent person in defendant's situation would conclude that he wasnot free to leave. People v. Eddmonds, 101 Ill. 2d 44, 61 (1984). In the absence ofa threateningpresence of police officers, display of a weapon, physical contact or the use of languagesuggesting compliance with the officer's request might be compelled, an arrest has not occurred. People v. McClom, 262 Ill. App. 3d 826, 833, 635 N.E.2d 677 (1994).

In determining whether probable cause existed to effectuate a warrantless arrest, a court mustlook to the totality of the circumstances and make a practical, commonsense decision whetherthere was a reasonable probability that an offense was committed and that the defendantcommitted it. People v. Tisler, 103 Ill. 2d 226, 237-38, 469 N.E.2d 147 (1984),citing Illinois v.Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The determination, whichconsiders only information available to officers before the arrest, must focus on the factualconsiderations upon which reasonable, prudent people, not legal technicians, act. Peoplev.Adams, 131 Ill. 2d 387, 398, 546 N.E.2d 561 (1989); People v. Henderson,266 Ill. App. 3d 882,640 N.E.2d 1344 (1994).

Here, Arthur Robinson told Detectives Bell and Bernatek that he last saw the victim withdefendant. Robinson supplied the officers with a physical description of defendant, his firstname and his work address. The officers went to defendant's place of employment and, whendefendant arrived, he matched the physical description. Further, the victim was last seen about ablock from defendant's home and her body was found in the vicinity of where defendant workedat the furniture store. Additionally, defendant was the last person seen with the victim. Defendant was seen smoking cocaine with the victim late in the evening on May 13, 1993. Herbody was discovered in the alley the next morning. Accordingly, the amount of time that hadelapsed from the last sighting of the victim with defendant to the time her body was discoveredby Mr. Stewart was minimal. Moreover, when defendant first spoke with police at Area 2, hetold them that he did not know the victim and that he was at home the evening of May 13, 1993. However, when defendant spoke with police the second time, he changed his story and said thathe had actually been with the victim in an apartment and smoked cocaine with her. Taking all ofthe foregoing into consideration, we hold that, based on the totality of the circumstances, the trialcourt's finding that there was probable cause for defendant's arrest at the second interview at Area2 when defendant changed his story was not against the manifest weight of the evidence.

Further, we find that defendant was not under arrest until after his second interview at Area2,which was at about 6:10 p.m. When the police arrived at defendant's workplace, defendantvoluntarily agreed to accompany them to the station for questioning. He was not placed inhandcuffs, nor was he patted down before entering the police car. Prior to his second interview,defendant was not handcuffed, fingerprinted or photographed. The fact that the questioning tookplace in a police station and that the police drove respondent to the station are not sufficient toconvert the questioning into an arrest. See People v. Matthews, 205 Ill. App. 3d371, 402, 562N.E.2d 1113 (1990). When a person voluntarily accompanies police, he is not subjected toimproper custodial interrogation even though he remains at the police station for some time andis periodically questioned in the course of an ongoing investigation. People v.Davis, 142 Ill.App. 3d 630, 636, 491 N.E.2d 1285 (1986). The words of our supreme court are particularlynoteworthy in this regard:

"What actually took place here was no more than what was minimallynecessary for thepolice to successfully investigate a crime, as is their duty. They were informed that acertain individual might have some knowledge about two burglaries. They asked thisindividual to come to the station so that they could question him about the burglaries. Tohold that this amounted to an arrest would be to hold that virtually any station-houseinterrogation is necessarily so custodial as to indicate that the person questioned has beenplaced under arrest. This would mean that the police could not request the presence ofanyone, even for noncustodial questioning, unless and until they had probable cause toarrest the person to be questioned. We see no reason to so restrict the investigatoryfunction of the police." People v. Wipfler, 68 Ill. 2d 158, 168, 368 N.E.2d 870(1977).

The trial court found that probable cause for defendant's arrest existed at the secondinterview atArea 2 when defendant changed his story. It should be noted that only 30 minutes separated thefirst and second interview. The first interview started around 5:40 p.m. and lasted approximately20 minutes. It was during the second interview, which began around 6:10 p.m., that defendantchanged his story.

The trial court specified the factors that established probable cause, including the fact thatthepolice had information that defendant had been seen at Arthur Robinson's home hours before thevictim was killed. The trial court also noted that the detectives had defendant's home address,which was one block from the area where the victim was discovered, there were at most 10 hoursbetween the time defendant was seen with the victim and the time her body was discovered, andonly 4